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2019 DIGILAW 1409 (KAR)

Musaveer v. Mohammed Rafiq

2019-06-24

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. The insurer and the claimant being aggrieved by the judgment and award dated 30.11.2009 in MVC No.274/2008 by the Fast Track Court-II cum Motor Accident Claims Tribunal-X at Bellary have filed these appeals. 2. It is the case of the claimant before the Tribunal that on 20.04.2007 at about 6.30 p.m., the petitioner was going along with his father by walk from Dalawala Maszid towards his house on proper side of the road. It is alleged that at that time one Tata Sumo bearing Registration No.Ka-35/M-4000 came from the opposite direction from Kasai Street driven by respondent No.3 in a rash and negligent manner and dashed to the petitioner, due to which, he sustained grievous injuries. Immediately he was shifted to VIMS Hospital, Bellary, where he took treatment from 24.04.2007 to 26.04.2007, thereafter he has taken treatment from other private doctors. Therefore he filed the petition claiming compensation of Rs.3,50,000/- against the driver, owner and insurer of the offending vehicle. 3. In response to the notice, respondents No.1 and 3 remained absent and were placed ex parte. The respondent No.2-insurer appeared through counsel and filed written statement. He has admitted that the offending vehicle was insured with him. However he has denied that the accident took place due to the negligence of respondent No.3. He has denied that the driver had valid licence to drive the offending vehicle and denied injuries and also the medical expenses. 4. On the basis of the pleadings of the parties, the Tribunal framed issues. 5. The next friend of the petitioner was examined as PW1 and got marked 30 documents as Ex.P1 to P30. Respondent No.2 got examined one witness as RW1 and got marked Ex.R1. 6. Learned member after hearing both the parties passed the impugned judgment awarding compensation of Rs.48,000/- with interest at 6% from the date of petition, till realization. Respondent No.2 was directed to deposit the compensation amount with a liberty to recover the same from respondent No.1 owner of the vehicle. 7. The insurer being aggrieved by the impugned judgment has filed MFA No.22500/2010 on the ground that the Tribunal has committed grave error directing the appellant insurer to pay and recover the compensation. Respondent No.2 was directed to deposit the compensation amount with a liberty to recover the same from respondent No.1 owner of the vehicle. 7. The insurer being aggrieved by the impugned judgment has filed MFA No.22500/2010 on the ground that the Tribunal has committed grave error directing the appellant insurer to pay and recover the compensation. The appellant has established that the driver of the vehicle did not possess a valid driving licence as on the date of accident and therefore, the insurer ought to have been exonerated and ought not have been directed to pay and recover the compensation. 8. The claimant being dissatisfied with the impugned judgment has filed MFA Crob. No.100156/2014 seeking enhancement of the compensation awarded by the Tribunal on the ground that compensation awarded is on the lower side. 9. Heard the learned counsel for the parties. 10. A short question which arise for consideration in these appeals and cross objections before this Court is, as to whether the insurer has made out grounds to set aside the order, directing him to pay and recover the compensation amount and whether the claimants has made out grounds for enhancement of the compensation. 11. Learned counsel for the insurer/appellant submitted that it has been proved before the Tribunal that the driver of the offending vehicle had no driving licence as on the date of accident and that the driving licence was renewed subsequent to the accident. Further, as the application for renewal was not filed within a period of 30 days from the date of expiry of the driving licence, the renewal would not take effect from the date of expiry. Therefore, it is clear case of not holding a valid driving licence as on the date of accident and therefore the order of the Tribunal directing the insurer to pay compensation amount and recover the same from the owner is not sustainable. 12. Per contra learned counsel for the claimant relying on the judgment in the case of Lal Singh Marabi v. National Insurance Company Limited and Others, (2017) 5 SCC 82 and in the case of Singh Ram v. Nirmala and others, (2018) AIR SC 1290 submitted that the order passed by the Tribunal directing the insurer to pay the compensation and recover the same from the owner of the offending vehicle is sustainable in law. 13. 13. In the case of Lal Singh stated supra, the Hon'ble Supreme Court considered the facts that on the date and time of the accident, driver of the bus did not posses valid licence for driving the vehicle and further observed that in such a case, award passed by the Tribunal directing the insurance company to pay and recover the same is proper. 14. In the case of Singh Ram stated supra, the Hon'ble Supreme Court has held in paragraph 8 is as follows: "8. In the present case it is necessary to note, as observed by the Tribunal, that the owner did not depose in evidence and stayed away from the witness box. He produced a licence which was found to be fake. Another licence which he sought to produce had already expired before the accident and was not renewed within the prescribed period. It was renewed well after two years had expired. The appellant as owner had evidently failed to take reasonable care (proposition (vii) of Swaran Singh) (AIR 2004 Hon'ble Supreme Court 1531) since he could not have been unmindful of facts which were within his knowledge." 15. The Hon'ble Supreme Court has further observed at paragraph 9 as follows: "9. In the circumstances, the direction by the Tribunal, confirmed by the High Court, to pay and recover cannot be faulted. The appeal is, accordingly, dismissed. There shall be no order as to costs." 16. The facts in the present case are also is similar to the said case, wherein it is proved that the driver of the offending vehicle did not posses a valid licence as on the date of accident and the driving licence was renewed subsequent to the accident. In view of the principles stated in the above cases, the order passed by the Tribunal directing insurer to pay the compensation and recover the same from the owner of the Tata Sumo vehicle cannot be faulted. Therefore, the contention of the insurer to interfere with the said finding cannot be accepted. 17. The learned counsel for the claimant submitted that the Tribunal has awarded only Rs.5,000/- towards loss of amenities and that the compensation awarded towards pain and suffering and other heads are also on the lower side. 18. The claimant has not got examined the Doctor nor he has produced the disability certificate in order to prove his disability. 17. The learned counsel for the claimant submitted that the Tribunal has awarded only Rs.5,000/- towards loss of amenities and that the compensation awarded towards pain and suffering and other heads are also on the lower side. 18. The claimant has not got examined the Doctor nor he has produced the disability certificate in order to prove his disability. The documents produced at Ex.P3 and P4 would go to show that the minor petitioner has sustained posterior deformity at lower 1/3rd of right leg. 19. Considering these injuries, it is just to award a sum of Rs.40,000/- as against Rs..25,000/- towards pain and suffering. A sum of Rs.50,000/- towards loss of amenities and partial disability is awarded. Medical expenses of Rs.2,000/- and Rs.500/- towards attendant charge, another Rs.500/- towards conveyance charges as awarded by the Tribunal are maintained. Thus on reassessment of the compensation, following just compensation is awarded. Towards pain and suffering Rs. 40,000.00 Loss of amenities in life Rs. 50,000.00 Medical expenses Rs. 2,000.00 Attendant Charges Rs. 500.00 Conveyance charges Rs. 500.00 TOTAL Rs. 93,000.00 20. Therefore the claimant is entitled for total compensation of Rs.93,000/- as against compensation awarded by the Tribunal at Rs.48,000/-. 21. The point for consideration is answered accordingly. In the result, this Court proceed to pass the following: ORDER MFA No.22500/2010 is dismissed. MFA Crob. No.100156/2014 is allowed in part. The claimant is awarded compensation of Rs.93,000/- with interest at 6% p.a. from the date of petition till realization. The amount of compensation deposited in MFA No.22500/2010 shall be transmitted to the concerned Tribunal forthwith. The entire compensation amount is ordered to be released to the claimant as he is major.