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2019 DIGILAW 1520 (KAR)

Srinivasa T. v. United India Insurance Co. Ltd.

2019-07-02

K.SOMASHEKAR

body2019
JUDGMENT : K. Somashekar, J. 1. Though this appeal is listed for admission, with the consent of learned counsel on both sides, the matter is heard for final disposal. 2. This appeal is directed against the judgment and award dated 01.06.2013 rendered by the Member, MACT, IV Addl. Judge, Court of Small Causes, Bangalore City in MVC No. 347/2012. 3. The factual matrix of the appeal is as under: It is stated in the claim petition that on 30.10.2011 at about 3.00 p.m. when the petitioner was returning to his home, near Gurumurthy's shop, a Tractor-Trailor bearing No. KA-40-T-8805/8806 came from Geddalapalya towards Palpal Dinne in a rash and negligent manner without observing the traffic rules and regulations and dashed against the petitioner. Due to the impact, the petitioner sustained grievous injuries. Immediately, he was shifted to Sri Laxmi Venkateshwara Hospital at Yelahanka New Town and was treated as an inpatient. He has spent huge amount towards medical and other incidental expenses. As a result of the said accident, he has lost his earning capacity. Prior to the accident, he was hale and healthy and was working as Tailor at Garment factory and earning Rs. 300/- per day. He claims that the accident took place due to the negligence of the driver of the offending Tractor-Trailor. Therefore, respondent no. 1 being the insurer and respondent no. 2 being the owner of the offending vehicle are liable to pay the compensation. On all these grounds, he filed the claim petition before the Tribunal, seeking compensation. 4. After service of notice, respondents appeared before the Tribunal through their counsel and filed separate written statements denying the petition averments and sought for dismissal of the claim petition. 5. Based upon pleadings of the parties, the Tribunal framed the issues for consideration. In order to substantiate his case, petitioner got examined himself as PW-1 and got marked Exs.P1 to P12 and also got examined PW-2 who is a Doctor and got marked Ex.P13. On behalf of respondents, RW-1 was examined and Exs.R1 to R3 were got marked. After hearing arguments advanced by learned counsel for the parties and on evaluation of oral and documentary evidence on record, the Tribunal passed the impugned judgment, awarding compensation of Rs. 1,60,000/- along with interest @ 6% p.a. from the date of petition till payment. It is this judgment which is under challenge in this appeal. 6. After hearing arguments advanced by learned counsel for the parties and on evaluation of oral and documentary evidence on record, the Tribunal passed the impugned judgment, awarding compensation of Rs. 1,60,000/- along with interest @ 6% p.a. from the date of petition till payment. It is this judgment which is under challenge in this appeal. 6. Learned counsel for the appellant contends that the Tribunal has erred in awarding inadequate, unreasonable and meager compensation of Rs. 1,60,000/- as against the claim of the appellant. Further, he contends that the Tribunal erred in dismissing the claim petition against the respondent insurance company holding that the driver of the offending vehicle did not had valid driving licence but whereas the insurance company has not led any effective evidence to prove the same. Further, he contends that the Tribunal erred in holding that there is contributory negligence of 75% in respect of driver of the offending vehicle and 25% on the part of the appellant. The reasons assigned by the Tribunal in this regard, is erroneous and untenable and hence, the same has to be modified by re-appreciating and reassessing the entire evidence on record. 7. It is contended that the appellant was working as a tailor in a garment shop and earning Rs. 9,000/- per month, but the Tribunal has erred in assessing the income of appellant at Rs. 4,500/-. Further, the compensation awarded towards pain and suffering, loss of amenities, loss of income during treatment, incidental expenses and future medical expenses are on lower side and the same needs to be enhanced suitably by looking into the nature of injuries sustained by the appellant and treatment taken in this regard. Further, the Tribunal has erred in not considering the disability factor whereas the appellant suffered permanent disability of 45% to the left leg and 15% to the whole body and thereby lost his future earning capacity. On all these grounds, learned counsel for the appellant seeks for enhancement of compensation and further, the liability may be saddled on the insurance company keeping in view the ratio of reliance of the Hon'ble Supreme Court in Pappu and Others vs. Vinod Kumar Lamba and Another, (2018) AIR SC 592. 8. On all these grounds, learned counsel for the appellant seeks for enhancement of compensation and further, the liability may be saddled on the insurance company keeping in view the ratio of reliance of the Hon'ble Supreme Court in Pappu and Others vs. Vinod Kumar Lamba and Another, (2018) AIR SC 592. 8. Per contra, learned counsel for the insurance company contends that the driver of the offending tractor-trailor did not had valid and effective DL as on the date of the accident and that the accident took place due to the negligence on the part of petitioner himself. Hence, there is clear violation of the terms and conditions of the policy. Further, he contends that the Tribunal, on appreciation of oral and documentary evidence available on record, has rightly fastened the contributory negligence on the part of the petitioner and awarded just and fair compensation, and the same does not call for interference of this Court. Accordingly, he sought for dismissal of the appeal. 9. In the context of contentions as taken by the learned counsel for the appellant and so also learned counsel for the respondent stated supra, it is relevant to state that there is no dispute about the injuries sustained by the appellant in the road traffic accident. PW-1 in his evidence has reiterated the petition averments. In support of his claim he has produced Ex.P1 - FIR, Ex.P2 - Complaint, Ex.P3 - Mahazar, Ex.P4 - IMV report, Ex.P5 - wound certificate, Ex.P6 - charge sheet. On perusal of these documentary evidence and so also evidence of PW-1 and RW-1, the finding of the Tribunal in holding that the accident in question occurred due to the contributory negligence both on the part of the petitioner as well as the driver of offending vehicle in the ratio of 25:75 is just and proper. The said finding is based on appreciation of oral and documentary evidence available on record and I do not find any ground to interfere with the same. Accordingly, the contributory negligence as held by the Tribunal is maintained. 10. The appellant/PW-1 in his evidence has stated that he was working as a Tailor at Garments factory and earning Rs. 300/- per day. But the petitioner did not produce any document to prove his income and avocation. Therefore, the Tribunal assessed the monthly income of the petitioner at Rs. 10. The appellant/PW-1 in his evidence has stated that he was working as a Tailor at Garments factory and earning Rs. 300/- per day. But the petitioner did not produce any document to prove his income and avocation. Therefore, the Tribunal assessed the monthly income of the petitioner at Rs. 4,500/- p.m. The accident is of the year 2011 and where there is no proof of income, the notional income has to be taken. As per the guidelines and illustrations specified in the Lok Adalath chart, the income that has to be taken for the relevant year is Rs. 6,500/- p.m. 11. Ex.P5 is the wound certificate, Ex.P12 - x-ray films and Ex.P13 is the case sheet. As per the said documents, the petitioner has suffered compound fracture of left leg. PW-2 Dr. Prasad has opined that petitioner has suffered the disability of 45% to the particular organ and 15% to the whole body. The medical records placed before the Court as well as the evidence of PWs. 1 and 2 reveals that the petitioner undergone surgery on 30.10.2011 with ORIF for the fracture of left fibula, with CRIF, with interlocking nail for the fracture of tibia. But the Tribunal has erred in not considering the physical disability as assessed by the Doctor - PW-2 and no compensation has been awarded towards permanent physical disability. Hence, in this appeal, the same has to be considered by re-appreciating and re-assessing the evidence on record. By considering the nature and gravity of injuries sustained by the petitioner and treatment taken by him and so also, in totality of the evidence of PW-1 and PW-2 - Doctor who has assessed the disability at 45% to the particular organ and 15% to the whole body, it is just and proper to hold that the petitioner has suffered permanent disability at 20% to the whole body. At the time of accident, the petitioner was aged 25 years. As per the decision of Hon'ble Apex Court in Sarla Verma vs. Delhi Transport Corporation, (2009) ACJ 1298, multiplier 18' has to be taken for the age group of 25 years. Accordingly, the compensation towards loss of future income would come to Rs. 2,80,800/- (Rs. 6,500 x 12 x 18 x 20%). 12. Further, the Tribunal has awarded a sum of Rs. 5,000/- towards loss of comfort and amenities. Accordingly, the compensation towards loss of future income would come to Rs. 2,80,800/- (Rs. 6,500 x 12 x 18 x 20%). 12. Further, the Tribunal has awarded a sum of Rs. 5,000/- towards loss of comfort and amenities. Having regard to the nature of injuries sustained and the difficulties narrated by the petitioner in his evidence and so also, keeping in view the evidence of PW-2 Doctor, an additional sum of Rs. 10,000/- is awarded under the above head. 13. The Tribunal has awarded Rs. 18,000/- towards loss of income during laid up period considering the treatment taken by the petitioner on different occasions and also considering the nature and gravity of the injuries sustained by the petitioner and on the basis of the medical records, 4 months was considered as the laid up period. Accordingly, the income of the petitioner having been raised to Rs. 6,500/- p.m. in this appeal, the compensation towards loss of income during laid up period would be Rs. 26,000/- (Rs. 6,500 x 4). 14. PW-2 in his evidence has stated that the petitioner has to undergo one more surgery for removal of the implants and it may approximately cost about Rs. 40,000/-. By considering this evidence, I deem it just and proper to award a sum of Rs. 15,000/- in addition to Rs. 20,000/- awarded by the Tribunal. However, the compensation awarded by the Tribunal under other heads appears to be just and proper and the same does not call for interference of this Court. 15. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:- Particulars Compensation awarded by MACT Compensation by this Court Enhancement Medical expenses 59,000 59,000 --- Pain and suffering 40,000 40,000 --- Loss of amenities 5,000 15,000 10,000 Loss of income during laid up period 18,000 26,000 8,000 Attendant charges 8,000 8,000 --- Nutritious food 5,000 5,000 --- Conveyance charge 5,000 5,000 --- Future Medical expenses 20,000 35,000 15,000 Loss of future income --- 2,80,800 2,80,800 Total 1,60,000 4,73,800 3,13,800 Therefore, in all, the claimant is entitled for compensation of Rs. 4,73,800/- as against Rs. 1,60,000/- awarded by the Tribunal and the enhanced compensation would be Rs. 3,13,800/-. 16. Now coming to the aspect of contributory negligence, as already discussed above, the petitioner has also contributed his negligence for the cause of the accident. 4,73,800/- as against Rs. 1,60,000/- awarded by the Tribunal and the enhanced compensation would be Rs. 3,13,800/-. 16. Now coming to the aspect of contributory negligence, as already discussed above, the petitioner has also contributed his negligence for the cause of the accident. Hence, the ratio of negligence of the petitioner and the driver of offending vehicle is apportioned in the ratio of 25:75. Accordingly, petitioner is entitled for 75% of the enhanced compensation of Rs. 3,13,800/- and the same would come to Rs. 2,35,350/-. 17. The Tribunal on the issue relating to liability, has dismissed the petition against respondent-insurance company and fastened the entire liability on the owner of the offending vehicle, holding that the respondent no. 2-owner by entrusting the vehicle to a person having no valid and effective DL, violated the terms and conditions of the policy and thereby, the respondent no. 1-insurer does not become liable to indemnify respondent no. 2 in making payment of the compensation. 18. This issue has been answered by the Apex Court against the insurer in the case of Pappu and Others vs. Vinod Kumar Lamba and Another, (2018) AIR SC 592 wherein it is held that as under: "S.149 - Insuser's liability - Accident occurred due to rash and negligent driving of truck - insurer taking plea that driver of offending truck had no valid licence - except copy of driving licence of person, owner of offending truck not producing any evidence establishing that it was driven by authorised person having valid driving licence - fact that offending truck was duly insured - would not per se make insurance company liable - however, insurance company directed to pay award amount to claimants in first instance and in turn, recover same from owner of vehicle." 19. The question as to the liability of the insurer in the absence of the driver of the offending vehicle not possessing a "valid and effective driving license" is no longer res integra as the same has been answered by the Apex Court against the insurer and in favour of the claimant in the judgment referred to supra subject to the principle of "Pay and Recover." 20. In view of the judgment of Hon'ble Apex Court in Pappu's case referred to supra, the liability has to be fastened on the insurer subject to the principle of pay and recover. In view of the judgment of Hon'ble Apex Court in Pappu's case referred to supra, the liability has to be fastened on the insurer subject to the principle of pay and recover. The Apex Court in the said judgment has held that insurance company can be fastened with liability on the basis of valid insurance policy and negatived the contention of insurer that no liability can be levied on it, when the driver of the offending vehicle lacks a valid driving licence. Insurance company was directed to pay award amount to the claimants in first instance and in turn, recover the same from the owner of the vehicle. 21. For the aforesaid reasons and findings, I proceed to pass the following: ORDER: Appeal is allowed in part. Consequently, the impugned judgment and award passed by the Tribunal in MVC No. 347/2012 is here modified. The appellant/claimant is entitled for compensation to the extent of 75% out of the enhanced compensation of Rs. 3,13,800/- which comes to Rs. 2,35,350/- along with interest @ 6% p.a. from the date of petition till realisation. The liability saddled on the owner of the offending vehicle is set aside and entire liability is fastened on first respondent-United India Insurance Company Ltd. The respondent insurer shall pay the compensation awarded to the appellant in the first instance, with liberty to recover the same from the owner of the vehicle, in accordance with law. Respondent-United India Insurance Company Ltd. shall deposit the entire compensation with accrued interest, before the Tribunal, within four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimant, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered. Office to draw the decree accordingly.