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2019 DIGILAW 1611 (KAR)

Purushothama Gouda v. Sreenivasa

2019-07-08

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. The insurer and the claimants being aggrieved by the judgment and award dated 1.9.2016, passed in MVC No.1002/2014, by the MACT XII, Bellary, have filed these appeals. 2. It is the case of the claimants before the tribunal that, on 7.3.2014, at about 6.15 p.m. the petitioner-claimant had proceeded on the motorcycle bearing registration No.KA- 34/E.3485 for taking water near Sreenivasa Nagar Camp and when he was returning from Sreenivasa Nagar Camp near SH-19, one TATA ACE auto bearing registration No.KA.34/A6512 driven by the first respondent came in a rash and negligent manner and dashed to the petitioner's motorcycle, due to which, he fell down on the road and at the same time, one lorry bearing registration No.AP.04/X.9245 driven by the forth respondent came in a rash and negligent manner, and ran over the petitioner's left leg causing grievous injuries. Immediately, he was shifted to VIMS Hospital, Ballari, and he has spent Rs.1,50,00/- towards medical and other expenses. Therefore, the petitioner filed claim petition seeking compensation of Rs.10,00,000/- against the owner and insurer of both the vehicles. 3. Petitioner further contended that the he was hale and healthy and he was aged about 28 years and earning Rs.10,000/- per month and contributing the same towards his family, now due to the accidental injuries he has became permanently disabled. 4. In pursuance to the notice, the respondents No.1, 2, 3 and 6 appeared before the tribunal and filed their written statements and contended that the petition is not maintainable either in law or on facts and liable to be dismissed. The compensation claimed is highly excessive and exorbitant. It is for the petitioner to prove the allegations and averments made in the claim petition. The respondent Nos. 3 and 6 have taken specific contention that the respondent No.1 and the respondent No.4 were not having valid and effective driving licence as on the date of the accident and also there was contributory and composite negligence against the claimant in riding the motorcycle in a rash and negligent manner, on these grounds they sought for dismissal of the claim petition. The respondent Nos. 4 and 5 were placed Ex-parte before the tribunal. 5. On the basis of the pleadings of the parties, the tribunal framed issues. The respondent Nos. 4 and 5 were placed Ex-parte before the tribunal. 5. On the basis of the pleadings of the parties, the tribunal framed issues. In support of his claim petition, the claimant has got examined himself as PW.1 and another witness as PW.2 and got marked 12 documents as Exs.P.1 to P.12. Per contra, the respondent No.3 insurance company got examined its witness as R.W.1 and got marked 4 documents as Exs.R.1 to 4 The tribunal after hearing both the parties, passed the judgment, awarding compensation of Rs.2,87,000/- with interest at 7% p.a. from the date of petition till the date of deposit in the Court. Respondent Nos. 1 to 6 were jointly and severally held liable to pay compensation. However, the respondent No.3 Reliance General Insurance Company was directed to deposit 50% of the total compensation amount and the respondent No.6 Oriental Insurance company was directed to deposit another 50% of the compensation amount. 6. The respondent Nos.3 has filed MFA.No.1004145/2016 on the grounds that the tribunal has committed error in saddling the liability on the appellant insurer in spite of evidence on record that the driver of the TATA ACE was not holding valid and effective driving licence and he was holding licence to drive LMV (NT) only. He has also contended that awarding interest at the rate of 7% pa. is on higher side. 7. The claimant being dissatisfied with the impugned judgment has filed MFA.No.103067/2017 for enhancement of the compensation on the ground that the tribunal has considered income of the petitioner on lower side and that the disability of the petitioner considered by the tribunal at 10% of the whole body is not proper and it ought to have considered disability of 15% of whole body being 1/3rd of 45% of the particular limb. 8. Heard the arguments of the learned counsels appearing for the parties. 9. A short question which arise for consideration in these appeals is whether the insurer has made out grounds to set aside the liability saddled against him and whether the claimant has made out grounds for enhancement of the compensation. 10. The learned counsel for the appellant insurer submitted that the interest awarded by the tribunal at 7% p.a. is on higher side and it ought to be at 6% p.a. 11. 10. The learned counsel for the appellant insurer submitted that the interest awarded by the tribunal at 7% p.a. is on higher side and it ought to be at 6% p.a. 11. The first contention raised on behalf of the appellant insurer to set aside the liability saddled against him is that the driver of the offending TATA ACE vehicle was not holding valid and effective driving licence to drive the said vehicle as on the date of the accident. It is admitted that the he was holding a valid and effective driving licence to drive LMV(NT) vehicle which was produced at Ex.R.3. Therefore, in view of the judgment of the Hon'ble Supreme Court, in the case of Mukund Dewangan V. Oriental Insurance Company Limited, (2017) AIR SC 3668. This contention does not survive for consideration. The Hon'ble Supreme Court at para 34 has held as under: 34. Coming to conflicting decisions of this Court entailing reference in Ashok Gangadhar Maratha (supra), this Court has considered the definition of 'light motor vehicle' and held thus: "10. The definition of "light motor vehicle" as given in clause (21) of Section 2 of the Act can apply only to a "light goods vehicle" or a "light transport vehicle". A "light motor vehicle" otherwise has to be covered by the definition of "motor vehicle" or "vehicle" as given in clause (28) of Section 2 of the Act. A light motor vehicle cannot always mean a light goods carriage. Light motor vehicle can be a non- transport vehicle as well." No doubt about it, that in addition thereto the Court while dealing with the matter comprehensively has gone in question as to the pleadings and the evidence adduced and it was observed that since there was neither a pleading nor a permit produced on record, the vehicle remained a light motor vehicle. If we proceed on the basis of the definition itself, we reach to the same conclusion that for driving transport vehicle of light motor vehicle category, no separate endorsement is required on a licence. Even when a light motor vehicle is used for carrying goods or for hire or rewards, it becomes a transport vehicle, though it remains included in the category of light motor vehicle as per Section 2(21) of the Act. Even when a light motor vehicle is used for carrying goods or for hire or rewards, it becomes a transport vehicle, though it remains included in the category of light motor vehicle as per Section 2(21) of the Act. The interpretation of the definition in Ashok Gangadhar Maratha (supra), makes it clear that light motor vehicle cannot always be a light goods carriage. It can be a non- transport vehicle as well. The definition of a light motor vehicle includes light goods vehicle and light transport vehicle also. The interpretation of the definition of light motor vehicle in aforesaid extracted para 10 is sound and we are in unison with the same. It was not necessary for the Court to go into the question of pleadings and evidence in Ashok Gangadhar Maratha (supra). 12. The driver having valid and effective driving licence to drive the LMV(NT) need not obtain a special endorsement for driving LMV Transport vehicle or passenger vehicle. 13. Therefore, the contention of the appellant insurer cannot be accepted and there is no breach of policy condition on this ground. Hence, the insurer has not made out any grounds for setting aside the liability saddled against him. 14. The claimant has contended before the tribunal that he was working as Hotel employee and earning Rs.10,000/- per month however, he has not produced any positive evidence to prove his income and therefore, the tribunal in the absence of such evidence considered the income of the claimant at Rs.5,000/- per month. Considering the age and occupation of the petitioner and also the year of the accident namely 2014 and considering 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.7,500/- per month for the purpose of assessing the compensation. The tribunal on the basis of the evidence of PW.2 and disability certificate produced at Ex.P.7 has observed that the petitioner is suffering from permanent disability of 45% to the particular limb. However, the tribunal has considered permanent disability of the petitioner at 10% of the whole body. The tribunal ought to have considered the permanent disability at 15% of whole body being 1/3rd of 45%. However, the tribunal has considered permanent disability of the petitioner at 10% of the whole body. The tribunal ought to have considered the permanent disability at 15% of whole body being 1/3rd of 45%. Therefore, on consideration of the evidence on record, this court holds that compensation has to be awarded considering the permanent disability of the petitioner at 12% of whole body, considering the income of the petitioner at Rs.7,500/- per month. On such reconsideration, the following just compensation is awarded: 1 Pain and suffering Rs.25,000/- 2 Loss of amenities and unhappiness in the life Rs.40,000/- 3 Medical expenses and also attendant charges Rs.1,50,000/- 4 Loss of future earnings due to disability (7,500x12%x12x17) 1,83,600/- 5 Loss of earnings during the period of treatment (7,500x2) Rs.15,000/- Total Rs.3,93,600/- Therefore, the claimant is entitled for total compensation of Rs.3,93,600/- as against the Rs.2,87,000/- awarded by the tribunal. The point for consideration is answered accordingly. In the result, this Court proceed to pass the following: ORDER MFA.Nos.103067/2017, 104145/2016 are allowed in part. Claimant is awarded compensation of Rs.3,93,600/- with interest at 6% from the date of petition till its realization. The amount of compensation deposited by the insurer shall be transmitted to the concerned tribunal forthwith.