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Karnataka High Court · body

2019 DIGILAW 1302 (KAR)

Ramesh Maruti Chavan v. Basavaraj M Pujari

2019-06-17

P.G.M.PATIL

body2019
JUDGMENT : P. G. M. PATIL, J. 1. Though these matters are listed for admission, with the consent of the learned counsels appearing on both the sides, these matters are taken up for final disposal, as service is complete. 2. The claimants and insurer being aggrieved by the common judgment and award dated 17.5.2012, passed by the Fast Track Court- III and Addl. MACT, Belagavi, in MVC No.1838 and 1839 of 2010 have filed these appeals. 3. It is the case of the claimants before the tribunal that, on 3.8.2010, the claimants were proceeding from Belagavi to Balagundi on a motorcycle bearing registration No.KA-22/R-2649; the rider of the motorcycle was riding the same in a moderate speed; when they reached the spot of accident, a Mahindra pick up van came from Balgundi towards Belagavi in a rash and negligent manner, without following traffic rules and dashed against the motorcycle, thereby both the claimants fell down and sustained grievous injuries. The claimants were shifted to hospital and they have also taken treatment from the other hospitals. They have spent huge amount for medical expenses. Prior to the accident they were earning Rs. 4,000/- p.m. and Rs. 5,000/- p.m., respectively. Now due to the injury suffered in the accident, they have become permanently disabled. Therefore they claimed compensation against the owner and insurer of the offending vehicle. 4. Both the claim petitions filed in MVC No.1838 and 1839 of 2010 were heard together before the tribunal by recording common evidence and disposed of by common judgment. 5. In pursuance of notice, though respondents No.1 and 2 appeared before the tribunal, respondent No.1 has not filed any objections to the claim petition. The respondent No.2 insurer has filed objections to the claim petition contending that the petition averments are false and the rider of the motorcycle had no driving license and the accident is due to his negligence. Therefore the insurer and owner of the motorcycle are necessary parties. It was also further contended that the driver of the Mahindra pick up van had no effective and valid driving license to drive the goods vehicle with necessary endorsement and therefore there is a breach of policy condition. Hence the insurer is not liable to pay compensation. 6. On the basis of the pleadings of the parties, the tribunal framed issues. Hence the insurer is not liable to pay compensation. 6. On the basis of the pleadings of the parties, the tribunal framed issues. In order to prove their claim, both the claimants got examined themselves and two witnesses as PW.1 to PW.4 and got marked 35 documents as Exs.P.1 to P.35. Respondent No.2 insurer has got marked 3 documents as Exs.R.1 to R.3. No oral evidence was adduced by the respondents. The learned member of the tribunal, after hearing both the parties, passed the impugned judgment awarding compensation of Rs. 1,28,000/- in MVC No.1838/2010 and Rs. 1,94,000/- in MVC No.1839/2010, with interest at 6% p.a. from the date of petition till its realization. Respondent No.2 the insurer was directed to deposit the compensation amount. 7. The claimant in MVC No.1838/2010 being dissatisfied with the impugned judgment has filed MFA No.21636/2013 and the claimant in MVC No.1839/2010 has filed MFA No.21635/2013 seeking enhancement of the compensation on the ground that the income considered by the tribunal is on lower side and the disability considered by the tribunal is also on lower side. 8. The insurer being aggrieved by the impugned judgment in both the cases has filed MFA No.23511/2012 and MFA No.23512/2012 on the grounds that the tribunal erred in saddling the liability on the insurer, though it was proved that the driver of the of fending vehicle had no valid and effective driving license to drive the said vehicle and there was a breach of policy condition. The quantum of compensation is also disputed. 9. Heard the arguments of the learned counsels appearing for the parties. 10. A short question which arises for consideration before this Court in these appeals is as to whether the insurer has made out grounds to set aside the liability saddled against him and whether the claimants have made out grounds for enhancement of the compensation. 11. The main ground on which the insurer has questioned the impugned judgment and award is that the driver of the of fending vehicle had no valid and effective driving license to drive the vehicle involved in the accident and therefore there is a breach of policy condition and as such he is not liable to pay compensation and he has to be exonerated. In this regard the judgment of the Hon'ble Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited, (2017) AIR SC 3668, has to be considered. Admittedly in the present case, the driver of the of fending vehicle had valid and effective driving license to drive the LMV (NT) as can be seen from Ex.R.1, the copy of the driving license. The vehicle involved in the case is also LMV being Mahindra pick up van. In view of the dictum of the Hon'ble Supreme Court in the case stated supra, the driver who is having a valid and effective driving license to drive LMV (NT) need not obtain special endorsement for driving LMV transport or passenger vehicle. Therefore the contention of the insurer that there is a breach of policy condition on the ground that the driver of the of fending vehicle had no valid and effective driving license to drive the vehicle involved in the accident, cannot be accepted and insurer cannot be exonerated from his liability. MFA No.21636/2013 12. The learned counsel for the appellant/claimant submitted that the tribunal has considered the income of the claimant at Rs. 3,750/- which is on lower side. The accident in question occurred on 3.8.2010. It is stated that the claimant was working as a driver and earning Rs. 4,000/- per month. However no positive evidence is produced to prove the income. In the absence of such evidence, the tribunal has considered the income of the claimant at Rs.3,750/- per month. Considering the age and occupation of the claimant and also year of the accident and the guidelines provided for settlement of cases before Lok Adalat, it is just and necessary to consider the income of the claimant at Rs. 4,000/- per month, as claimed by him for the purpose of calculation of the compensation. 13. The tribunal has considered the disability of the claimant at 5% of the whole body. The evidence on record of the claimant and the doctor goes to show that the claimant is suffering from 20% disability of the lower limb and 1/3rd of the same has to be taken towards whole body which comes to 7% of the whole body. Therefore, compensation towards loss of future earning capacity has to be calculated by considering the disability at 7% of the whole body. Therefore, compensation towards loss of future earning capacity has to be calculated by considering the disability at 7% of the whole body. On such reassessment, the following just compensation is awarded to the claimant. 14. Towards loss of future earning capacity, the claimant is awarded with a compensation of Rs. 60,480/- (Rs. 4,000/- x 12 x 7% x 18). Towards pain and suffering Rs. 20,000/-, towards medical expenses Rs. 47,657/-, towards damages to the vehicle of the claimant Rs. 3,800/- and towards loss of future unhappiness Rs. 15,000/- as awarded by the tribunal are left undisturbed. Rs. 2,000/- is awarded towards nourishment and attendant charges etc.,. Rs. 8,000/- is awarded towards loss of income during laid up period (Rs. 4,000/- x 2). Thus, in all the claimant would be entitled for a total compensation of Rs. 1,56,937/- as against Rs. 1,28,800/- awarded by the tribunal . MFA No.21635/2013 15. The learned counsel for the claimant submitted that the tribunal has considered the income of the claimant at Rs. 3,750/- against the claim of the claimant that he was earning Rs. 5,000/- per month. The claimant has stated that he was working as a supplier in a hotel and earning Rs. 5,000/- per month. However he has not produced any document to prove his income. In the absence of any document, the tribunal has considered his income at Rs. 3,750/-. By considering the year of accident, age and occupation of the claimant and also the guidelines provided for settlement of cases before the Lok Adalat, it is just and necessary to consider the income of the claimant at Rs. 5,000/- per month as claimed by him, for calculating the compensation. Further, the tribunal has considered the disability of the claimant at 10% of the whole body, though it is made out that he is suffering from permanent disability of 40% in respect of the right lower limb. Therefore it is just and necessary to consider the permanent disability of the claimant at 13% of the whole body. Therefore on reassessment of the compensation, the claimant would be entitled for the following just compensation by considering the income of the claimant at Rs. 5,000/- per month. 16. Towards pain and suffering Rs. 35,000/- and towards medical expenses Rs. 50,000/- awarded by the tribunal is left undisturbed. Towards nourishment attendant charges, etc., Rs. 5,000/- is awarded. Therefore on reassessment of the compensation, the claimant would be entitled for the following just compensation by considering the income of the claimant at Rs. 5,000/- per month. 16. Towards pain and suffering Rs. 35,000/- and towards medical expenses Rs. 50,000/- awarded by the tribunal is left undisturbed. Towards nourishment attendant charges, etc., Rs. 5,000/- is awarded. Towards loss of income during laid up period Rs. 10,000/- is awarded. Towards loss of future earning capacity, Rs. 1,40,400/- (Rs. 5,000/- x 12 x 13% x 18). Towards loss of amenities and future unhappiness, Rs. 15,000/- as awarded by the tribunal is left undisturbed. Therefore the claimant would be entitled for a total compensation of Rs. 2,55,400/- as against Rs. 1,94,000/- awarded by the tribunal . 17. Under these circumstances, it is held that the appeals filed by the claimants deserve to be partly allowed and the appeals filed by the insurer are liable to be dismissed. Hence the point for consideration is answered accordingly. 18. In the result, this Court proceed to pass the following: ORDER The appeals in MFA No.23511 of 2012 and MFA No.23512 of 2012 filed by the insurer are hereby dismissed. The appeal in MFA No.21636/2013 is allowed in part. The appellant/claimant is awarded with a compensation of Rs. 1,56,937/- with interest at 6% p.a. from the date of petition till its realization. The appeal in MFA No.21635/2013 is allowed in part. The appellant/claimant is awarded with compensation of Rs. 2,55,400/- with interest at 6% p.a. from the date of petition till its realization. The amount of compensation deposited in MFA No.23511 of 2012 and MFA No.23512 of 2012 shall be transmitted to the concerned tribunal for disbursement.