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2020 DIGILAW 1092 (KAR)

Hanumanthu v. D. Surayya

2020-06-16

S.G.PANDIT

body2020
JUDGMENT S G Pandit, J. - The claimant/appellant is before this Court not being satisfied with the quantum of compensation awarded and aggrieved by the exoneration of respondent No.3-insurance company, under the judgment and award dated 01.09.2010 passed in M.V.C. No.1194/2009 by the XI Motor Accident Claims Tribunal at Ballari. 2. Even though the appeal is listed for admission, with the consent of the learned counsels for the parties, the same is heard finally and disposed of by this judgment. 3. The claimant/appellant filed claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') claiming compensation for the accidental injuries suffered by him in a road traffic accident. It is stated that on 26.02.2009, when the claimant was traveling in an autorickshaw bearing registration No.AP-02/W-4592, as a passenger, the driver of the autorickshaw drove the same at high speed and in a rash and negligent manner, due to which the driver lost control over the autorickshaw and the auto turtled on the extreme side of the road. Due to the said accident, the claimant and other inmates of the autorickshaw sustained injuries. It is stated that the claimant took treatment as an inpatient in VIMS Hospital, Ballari from 26.02.2009 to 21.03.2009 and incurred a sum of Rs.1,00,000/- towards medical and other expenses. The claimant was aged 33 years, doing laundry work, earning Rs.6,000/- per month which he used to contribute to his family. 4. On issuance of notice, respondent Nos.1 and 2, even though served with the notice, remained absent and they were placed ex parte. Respondent No.3- insurance company appeared and filed its written statement denying the averments made in the claim petition. Further respondent No.3-insurance company contended that the driver of the autorickshaw was not having a valid and effective driving licence as on the date of the accident. Further it contended that the vehicle had no permit to ply within the area of the accident. It also contended that there was violation of terms and conditions of policy and that the insurance company was not liable to pay any compensation. 5. The claimant, in support of his case, got examined himself as P.W.1 and also examined the doctor as P.W.2, apart from marking the documents as Exs.P.1 to P.16. Respondent No.3 examined R.W.1 and marked the documents as Exs.R.1 & R.2. 5. The claimant, in support of his case, got examined himself as P.W.1 and also examined the doctor as P.W.2, apart from marking the documents as Exs.P.1 to P.16. Respondent No.3 examined R.W.1 and marked the documents as Exs.R.1 & R.2. The Tribunal, on a careful consideration of the material on record, awarded compensation of Rs.1,43,800/- with interest at 6% per annum from the date of petition till the date of realization. While awarding the above compensation, the Tribunal assessed the disability suffered by the claimant at 15% and the income at Rs.3,000/- per month. The Tribunal saddled the liability to pay the compensation on respondent Nos.1 and 2, the driver and the owner of the vehicle, while absolving the respondent No.3-insurance company of its liability to pay the compensation. Hence, the claimant/appellant is before this Court in this appeal. 6. Heard the learned counsel for the appellant and the learned counsel for respondent No.3-insurance company. 7. The learned counsel for the appellant would submit that the Tribunal committed an error in saddling the liability on respondent Nos.1 and 2 the driver and the owner of the vehicle, and absolving respondent No.3-insurance company of its liability. It is his submission that the Tribunal on a wrong notion came to the conclusion that the driver of the autorickshaw had no valid and effective driving licence as on the date of the accident. Further, he submits that the driver of the autorickshaw had licence to drive light motor vehicle based on record as per Ex.R.2. Relying upon the decision of the Hon'ble Apex Court in Mukund Dewangan Vs. Oriental Insurance Company Limited and Others, (2016) 4 SCC 298 , learned counsel submits that a driver who possess a licence to drive the light motor vehicle (non-transport) can also drive a light motor vehicle (transport). He further submits that the tractor-trailor and the autorickshaw both fall in the same category i.e., light motor vehicle, as defined under the Act, since their unladen weight is less than 7500 kgs. Further, the learned counsel for the appellant submits that the Tribunal committed an error in assessing the income of the claimant at Rs.3,000/- per month. The claimant was doing the laundry work and was earning Rs.6,000/- per month. But the Tribunal without assigning any reason assessed the income of the claimant at Rs.3,000/- per month which needs to be enhanced. Further, the learned counsel for the appellant submits that the Tribunal committed an error in assessing the income of the claimant at Rs.3,000/- per month. The claimant was doing the laundry work and was earning Rs.6,000/- per month. But the Tribunal without assigning any reason assessed the income of the claimant at Rs.3,000/- per month which needs to be enhanced. Learned counsel further submits that the compensation awarded on other heads are on the lower side when compared to the injuries sustained, treatment taken by the claimant as an inpatient for 24 days. Thus, he prays for allowing the appeal. 8. Per contra, learned counsel for respondent No.3-insurance company would submit that the compensation awarded by the Tribunal is just compensation which needs no interference. Further, he submits that the claimant has not produced any material on record to prove his income and, in that circumstance, the Tribunal is justified in assessing the income at Rs.3,000/- per month. Further, the learned counsel would submit that the compensation awarded on the other heads is also just compensation which needs no interference. Learned counsel for respondent No.3-insurance company, with regard to saddling of liability on respondent Nos.1 and 2 the driver and owner of the autorickshaw, submits that since the driver, who was driving the autorickshaw at the time of the accident had no licence to drive the autorickshaw and hence, the Tribunal is justified in saddling the liability to pay the compensation on respondent Nos.1 and 2, while absolving the insurance company of its liability to pay the compensation. Thus, he prays for dismissal of the appeal. 9. Having heard the learned counsels for the parties and on perusal of the material on record, the following points would arise for consideration: i) Whether the Tribunal is justified in saddling the liability on respondent Nos.1 and 2 while absolving respondent No.3-insurance company of its liability? ii) Whether the claimants would be entitled for the enhanced compensation? 10. The answer to the above Point Nos.i) and ii) would be in the negative and affirmative respectively for the following reasons: (a) The accident which had taken place on 26.02.2009 involving autorickshaw bearing registration No.AP-02/W-4592, and the accidental injuries suffered by the claimant is not in dispute in this appeal. 10. The answer to the above Point Nos.i) and ii) would be in the negative and affirmative respectively for the following reasons: (a) The accident which had taken place on 26.02.2009 involving autorickshaw bearing registration No.AP-02/W-4592, and the accidental injuries suffered by the claimant is not in dispute in this appeal. The claimant's appeal is for enhancement of the compensation as well as to saddle the liability on respondent Nos.2 and 3 jointly and to direct respondent No.3-insurance company to deposit the compensation amount. There is no dispute that the driver of the autorickshaw had light motor vehicle licence. Ex.R.2- D.L. extract would indicate the same. Ex.R.2 would also indicate that the driver of the autorickshaw was possessing licence to specifically drive tractor-trailor. At the time of the accident, the driver was driving the autorickshaw which is a transport vehicle. Both, the tractor-trailor and autorickshaw are light motor vehicles as defined under the Act since the unladen weight of both the vehicles is less than 7500 kgs. Therefore, following the decision of the Hon'ble Apex Court rendered in Mukund Dewangan's case (supra), the insurer would be liable to indemnify respondent No.2- owner of the vehicle. (b) The Tribunal assessed the income of the claimant at Rs.3,000/- per month. It is stated that the claimant was aged 33 years and was earning Rs.6,000/- per month by doing laundry work, but no material is placed to establish that claimant was earning Rs.6,000/- per month. In the absence of any material placed on record to establish the income claimed, it is for the Tribunal to assess the income notionally. The notional income of the claimant determined by the Tribunal at Rs.3,000/- per month is on the lower side. This Court and the Lok Adalats, while settling the accidental claims of the year 2009, normally would take Rs.5,000/- as the notional income of a person. In the instant case also, in the absence of any material to indicate the exact income of the deceased, I deem it appropriate to assess the notional income of the claimant at Rs.5,000/- per month. (c) The Tribunal based on the medical evidence of P.W.2-doctor and the documentary evidence such as Ex.P.14-disability certificate and Ex.P.8-wound certificate has come to the conclusion that the claimant suffers 15% disability, which needs no interference. (c) The Tribunal based on the medical evidence of P.W.2-doctor and the documentary evidence such as Ex.P.14-disability certificate and Ex.P.8-wound certificate has come to the conclusion that the claimant suffers 15% disability, which needs no interference. As stated above, the claimant was aged 33 years as on the date of the accident and the appropriate multiplier applicable would be 16, but the Tribunal adopted wrong multiplier 17' which needs to be modified to 16'. Thus, the claimant would be entitled to a sum of Rs.1,44,000/- towards 'loss of income due to disability', and a sum of Rs.20,000/- towards 'loss of income during laid up period' (d) The claimant was admitted to the VIMS hospital, Balari, where he took treatment as an inpatient from 26.02.2009 to 21.03.2009. The doctor is also examined. The claimant has also placed on record case-sheet as per Ex.P.11, and Exs.P.15 and 16 which are x-ray report and x-ray films. The claimant has sustained fracture of left femur and other injuries to the left leg and was operated for the same. Hence, I feel that the claimant would be entitled for another sum of Rs.10,000/- on the head 'pain and suffering', and another sum of Rs.15,000/- towards 'loss of amenities'. The claimant is also entitled to a further sum of Rs.5,000/- on the head 'attendant charges and conveyance'. The amount awarded by the Tribunal towards medical expenses and future medical expenses are not disturbed. 11. On reassessment, the claimant would be entitled for the following modified compensation: 1. Loss of income due to disability Rs.1,44,000/- 2. Loss of income during laid up period Rs.20,000/- 3. Pain and suffering Rs.20,000/- 4. Loss of amenities Rs.25,000/- 5. Medical expenses Rs.5,000/- 6. Attendant charges, extra nourishment and conveyance charges Rs.10,000/- 7. Future medical expenses Rs.10,000/- Total Rs.2,34,000/- Thus, the claimant is entitled to a total compensation of Rs.2,34,000/-, as against Rs.1,43,800/- awarded by the Tribunal, along with interest at 6% per annum from the date of petition till the date of realization. 12. Accordingly, the appeal is allowed in part. The judgment and award dated 01.09.2010 passed in M.V.C. No.1194/2009 passed by the Tribunal is hereby modified. The claimant is entitled to a total compensation of Rs.2,34,000/-, as against Rs.1,43,800/- awarded by the Tribunal, along with interest at 6% per annum from the date of petition till the date of realization.