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2019 DIGILAW 1414 (KAR)

Golla Shivanna v. G. Ramanjineyulu

2019-06-25

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. The claimants and the insurer being aggrieved by the common judgment and award dated 19.1.2011, passed in MVC Nos.678/2009, 679/2009 and 680/2009, by MACT-III, Ballari, have filed these appeals. 2. It is the case of the claimants before the tribunal that, the 1st respondent was the driver of auto bearing No.AP-02/X-1228, the 2nd respondent is the owner and 3rd respondent is the insurer of the vehicle. It is stated that all the claimants were travelling in the said auto on 9.8.2008 from Kothigudda in Rayadurga towards Devi Reddy Palli and the driver drove the said vehicle in a high speed and in a rash and negligent manner and lost control over the vehicle, as a result the said auto turtle and met with an accident near RDT office near Udegolam village. The claimants sustained grievous injuries. Immediately they were shifted to Community Health Centre, Rayadurga and later on they were shifted to VIMS Hospital, Ballari, for treatment. 3. The claimant in MVC No.678/2009 has further stated that he was shifted to Sanjeevini Hospital, Ballari, for higher and follow up treatment and took treatment for more than one month, a major operation was conducted and his left leg was amputed up to knee level. Even now he is under medical care. The opinion of the doctor is that he has to suffer pain and agony and permanent disablement throughout his life. 4. The claimant in MVC No.679/2009 has further stated that he took follow up treatment with private doctors and now he is under medical care. He has to suffer pain and agony and permanent disablement throughout his life. 5. The claimant in MVC No.680/2009 has further stated that he took follow up treatment with Dr.Shashidhar Reddy, Orthopedic Surgeon, Ballari and also with other private doctors. Even now he is under medical care. According to the opinion of the doctors, he has to suffer pain and agony and permanent disablement throughout his life. 6. Therefore, the claimants filed claim petitions against the driver, owner and insurer of the offending vehicle. 7. In pursuance of notice, respondents No.1 and 3 appeared before the tribunal. Respondent No.2 did not appear and he was placed ex parte. Respondent No.1 has not chosen to file any written statement. Respondent No.3/insurer has filed the written statement denying the case of the claimants in toto. 7. In pursuance of notice, respondents No.1 and 3 appeared before the tribunal. Respondent No.2 did not appear and he was placed ex parte. Respondent No.1 has not chosen to file any written statement. Respondent No.3/insurer has filed the written statement denying the case of the claimants in toto. He has further contended that the driver of the said vehicle did not possess valid driving licence as on the date of accident. Therefore there is a breach of policy conditions and he is not liable to pay compensation and prayed for dismissal of all the claim petitions. 8. On the basis of the pleadings of the parties, the tribunal framed issues. All the cases were clubbed together for recording common evidence and disposed of by common judgment. In support of their claim petitions, claimants got examined themselves and one witness as PWs.1 to 4. They got marked 13 documents as Exs.P.1 to P.13. Respondent No.3 insurer has got examined his official witness as RW.1 and got marked two documents as Exs.R.1 and R.2. The learned member of the tribunal after hearing both the parties, passed the impugned common judgment, awarding a compensation of Rs. 3,43,153/- in MVC No.678/2009, Rs. 7,000/- in MVC No.679/2009 and Rs. 5,000/- in MVC No.680/2009, with interest at 6% p.a. from the date of petition till realization. Respondent No.3 insurer was directed to deposit compensation amount in all the cases. 9. The claimants being dissatisfied with the impugned judgment and award have filed MFA Nos.21550/2011, 21551/2011 and 21552/2011 seeking enhancement of compensation. The insurer being aggrieved by the impugned judgment and award has filed MFA Nos.22166/2011, 22167/2011 and 22168/2011, on the grounds that there is a breach of policy conditions as the driver of the offending vehicle did not possess valid and effective driving licence to drive the said vehicle and therefore the liability saddled against him is liable to be set aside. 10. Heard the learned counsel for the insurer and the claimants. 11. 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 as to whether the claimants have made out grounds for enhancement of compensation. 12. 10. Heard the learned counsel for the insurer and the claimants. 11. 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 as to whether the claimants have made out grounds for enhancement of compensation. 12. The only contention raised by the insurer in the appeals filed by him is that, the driver of the offending vehicle did not possess a valid and effective driving licence to drive the vehicle involved in the case. Therefore there is a breach of policy condition and as such the liability saddled against him is liable to be set aside. The vehicle involved in the accident is a passenger carrying auto which falls under the category of LMV. It is also not disputed that the driver of the said vehicle was holding valid and effective driving licence to drive LMV (NT). In view of the judgment of the Hon'ble Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited, (2017) AIR SC 3668, a person holding valid driving licence to drive LMV (NT) need not obtain a special endorsement for driving LMV transport or passenger vehicle. Under these circumstances, the contention of the insurer in these appeals that there was a breach of policy condition on the ground that the driver of the offending vehicle did not possess a valid driving licence cannot be accepted. Therefore the appeals filed by the insurer are liable to be dismissed. MFA No.21550/2011 13. The learned counsel for the claimant submitted that the tribunal has considered the income of the claimant at Rs. 3,000/- per month, which is on lower side and the same may be enhanced and further submitted that the compensation awarded by the tribunal on other heads is also on lower side. 14. Per contra, the learned counsel for the insurer supports the impugned judgment and award. 15. The claimant has contended before the tribunal that he was working as a coolie and earning Rs. 100/- per day and was earning Rs. 75,000/- per annum from agriculture. The claimant has also deposed to that effect before the tribunal. However the tribunal considered notional income of the claimant at Rs. 15. The claimant has contended before the tribunal that he was working as a coolie and earning Rs. 100/- per day and was earning Rs. 75,000/- per annum from agriculture. The claimant has also deposed to that effect before the tribunal. However the tribunal considered notional income of the claimant at Rs. 100/- per day and evidence regarding his agricultural income was not considered in the absence of any documents produced by the claimant. Under these circumstances, considering the age and avocation of the claimant and the year of accident, and also in view of 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. 4,250/- per month for the purpose of awarding compensation. The tribunal has considered the permanent disability of the claimant at 50% of the whole body which needs no interference. Hence, the compensation towards loss of future earning capacity would be Rs. 4,08,000/- (Rs. 4,250/- x 12 x 16 x 50%). 16. The compensation awarded by the tribunal at Rs. 15,000/- towards pain and suffering needs to be enhanced. Hence, a sum of Rs. 75,000/- is awarded towards pain and suffering. The tribunal has not awarded any compensation towards loss of amenities. Considering the disability of the claimant, a sum of Rs. 25,000/- is awarded towards loss of amenities. The compensation towards medical expenses of Rs. 31,153/- awarded by the tribunal is left undisturbed. 17. Thus, the claimant would be entitled for a total compensation of Rs. 5,39,153/- as against Rs. 3,43,153/- awarded by the tribunal . 18. With regard to two other appeals filed by the claimants are concerned, the assessment of compensation made by the Tribunal is proper and this Court find no reasons to interfere with the same and therefore these two appeals are liable to be dismissed. Hence, the point for consideration is answered accordingly. 19. In the result, this Court proceeds to pass the following: ORDER MFA Nos.22166/2011, 22167/2011 and 22168/2011 are dismissed. MFA Nos.21551/2011 and 21552/2011 are also dismissed. MFA No.21550/2011 is partly allowed. The claimant is awarded compensation of Rs. 5,39,153/- with interest at 6% p.a. from the date of petition till realization. The amount of compensation deposited by the insurer in the above three appeals shall be transmitted to the concerned Tribunal for disbursement.