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2020 DIGILAW 1138 (KAR)

New India Assurance Co Ltd. v. B. Ravi Raj Shetty

2020-06-19

ALOK ARADHE, M.NAGAPRASANNA

body2020
JUDGMENT Nagaprasanna, J. - This appeal, though listed for admission, is taken up for final disposal with the consent of the learned counsel appearing for the parties. 2. This appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act , for short), by the Insurance Company being aggrieved by the compensation of Rs.19,15,682/- determined by the Principal MACT, Bengaluru (hereinafter referred to as the Tribunal ), in its judgment and award dated 02.08.2014 passed in MVC No.7449/2012. 3. Parties will be referred to as per their ranking before the Claims Tribunal. 4. The facts giving rise to filing of the appeal briefly stated are that, it transpires that on 16.06.2012 at about 5.45 p.m., the claimant was going home from Office after applying half day leave. On the way to her home, when she was at Babusab Palya Junction Bus Stop, Banaswadi Ring Road, Bengaluru, one petrol tanker bearing registration No.KA-02-B-7305 being driving in a rash and negligent manner, endangering human lives dashed his vehicle against the claimant and others. In the accident, the claimant suffered grievous injuries and another person died on the spot. The claimant after the accident was shifted to Hosmat Hospital, Benguluru and on examination she was found to have suffered following injuries: 1. Right - left crush injury from knee to ankle 2. Fibula fracture 3. Lateral compartment muscle crush 4. Bone exposed in full length 5. Contamination clear present 6. Left leg - 2 cms., CLW present over anterior aspect 7. ROM painful and restricted 8. Left ankle tenderness present over lateral malleolous 9. Left hand tenderness present over left little finger 10. Right thigh abrasion present over lateral aspect. 5. The claimant also underwent multiple surgeries in the form of muscle flap and treatment for fracture. The claimant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act ) interalia contending that she has incurred medical expenses to the tune of Rs.7,00,000/- and she was a Government Servant working as Judgment Writer at City Civil Court, Bengaluru, drawing gross salary of Rs.42,675/- and net salary of Rs.33,925/- and she was aged about 56 years. It was contended that the injuries suffered by her due to the accident resulted in permanent disability and she lost her income during the period of treatment of five months. It was contended that the injuries suffered by her due to the accident resulted in permanent disability and she lost her income during the period of treatment of five months. Therefore, the claimant claimed compensation to the tune of Rs.50,00,000/-. 6. After service of notice, the first respondent the owner of the offending vehicle remained absent and was placed ex-parte. Respondent No.2 - insurance company appeared through its counsel and filed the statement of objections. It contended that the FIR was lodged belatedly and the driver of the petrol tanker was not holding valid and effective driving license including the endorsement for driving hazardous goods vehicle at the time of the accident. That the driver was not qualified to drive such vehicle and inspite of that, the first respondent permitted the driver to drive the petrol tanker without having valid and effective driving license. Therefore, the respondent No.1 has committed breach of policy conditions. It was further contended that the tanker vehicle was not possessing valid fitness certificate and permit at the time of the accident. As also that the accident was due to the negligence and ignorance of the claimant as she was a pedestrian without taking any precaution, cross the road and she was responsible for the accident. In the result, she is not entitled to any compensation. 7. From the aforesaid facts and circumstances of the case, the Claims Tribunal framed issues and recorded the evidence of the witnesses. 8. The claimant, in order to prove her case examined himself as P.W.1 and one witness namely, Dr. Krishan Prasad, who treated the claimant as P.W.2 and got marked 27 documents namely, Exs.P1 to P27, on her behalf. On the other side, insurance company examined four witnesses as R.Ws.1 to 4 and marked 22 documents, namely, Exs.R.1 and R.22. 9. The Claims Tribunal interalia on the basis of the evidence on record held that the accident took place on account of rash and negligent driving of the offending petrol tanker. It was further held that the insurance company was liable to make payment of compensation to the claimant and recover it from the owner. It was further held that the claimant was entitled to the compensation to the tune of Rs.19,15,682/- along with interest at the rate of 6% p.a. Challenging the award of the Tribunal, the insurance company has filed the instant appeal. 10. It was further held that the claimant was entitled to the compensation to the tune of Rs.19,15,682/- along with interest at the rate of 6% p.a. Challenging the award of the Tribunal, the insurance company has filed the instant appeal. 10. We have heard Sri R. Jaiprakash, learned counsel for appellant and Sri A.S.Girish, learned counsel for caveator - respondent No.2 and perused the records. 11. Learned Counsel for the appellant-insurance company while inviting the attention of this Court to Section 14(2) of the Act submitted that the license to drive the motor vehicle carrying goods of dangerous and hazardous nature shall be effective for a period of one year. It is further submitted that from the perusal of the inquest report (Ex.P.4), it is evident that the driver of the offending petrol tanker was carrying petrol, which is hazardous as defined under Schedule III of the Central Motor Vehicle Act, 1989. It is further submitted that since the driver of the offending tanker did not have an endorsement/entrustment as required under Section 14(2) of the Act, the insurance company cannot be held liable to make payment of any compensation. In support of his submission, the learned Counsel has placed reliance on the judgment of the Division Bench of this Court in NEW INDIA ASSURANCE CO. LTD. Vs. SHRI VELUMURUGAN V. AND ANOTHER, (2015) ILR(Kar) 393 . It is also submitted that the Tribunal has grossly erred in awarding compensation to the tune of Rs.10,72,872/- towards loss of income on account of disability as the claimant had taken voluntary retirement on her own accord and she was never disabled from working further. It is also contended that there was no evidence of the doctor - PW.2 that the claimant required future treatment. It was the evidence of the doctor that the claimant suffered 76% disability to the lower limb and 26% to the whole body and she was never disabled from discharging her duty and contends that the award of compensation Rs.19,15,682/- is very much on the higher side and liable to be set aside. 12. On the other hand, learned counsel for the claimant would support the award of the Tribunal and submit that she had to take voluntary retirement only on account of injuries sustained by her as she was not able to perform her duties. 12. On the other hand, learned counsel for the claimant would support the award of the Tribunal and submit that she had to take voluntary retirement only on account of injuries sustained by her as she was not able to perform her duties. She has clearly indicated the same reason for the voluntary retirement and the compensation awarded by the Tribunal is just and proper and does not call for any interference. 13. Though the driver of the offending petrol tanker does not have the driving license, the same would not absolve the insurance company of its liability, and pay and recovery has to be invoked. The Hon ble Supreme Court in NATIONAL INSURANCE COMPANY Vs. SWARAN SINGH AND OTHERS, (2004) AIR SC 1531 has held that even if a driver of the offending vehicle which was duly insured did not have a valid driving license, the Insurance Company in such a case can be directed to pay the award in the first instance and can be granted liberty to recover the same from the owner. In view of the aforesaid enunciation of law by the Hon ble Supreme Court, in the instant case, even though the driver of the offending petrol tanker did not possess any valid and effective driving license to drive the vehicle containing dangerous and hazardous substance, we are inclined to invoke the principle of pay and recover in view of the law laid in SWARAN SINGH case (supra) which has been affirmed by the Hon ble Supreme Court subsequently in the case of PAPPU AND OTHERS Vs. VINOD KUMAR LAMBA AND ANOTHER, (2018) AIR SC 592 . 14. Now, we may advert to the quantum of compensation awarded by the Tribunal. The claimant was working as a Judgment Writer in the City Civil Court and was earning a salary of Rs.42,675/- p.m. The doctor who treated the claimant was examined as PW.2, who in his evidence opines that he has assessed the whole body disability of the claimant at 26% and in the cross-examination, nowhere states that he has given an opinion that the claimant would not be in a position to perform her duties due to the injuries sustained in the accident. But the fact remains that the claimant herein submitted her letter for seeking voluntary retirement (Ex.P.15) after reporting to the duty after completion of the leave period. But the fact remains that the claimant herein submitted her letter for seeking voluntary retirement (Ex.P.15) after reporting to the duty after completion of the leave period. The letter seeking voluntary retirement reads as follows: I, Smt. S. Hemalatha, Judgment writer, working at City Civil Court, Bangalore City hereby wish to submit my requisition seeking permission to take voluntary retirement from service on health grounds. I humbly submit that I met with a road accident on 16.6.2012 and my legs were severely injured and due to those injuries I am unable to walk normally and I need assistance at times and it will be very difficult for me to travel to office and back home. As such I am not in a position to attend the office. For the said reason I am constrained to take voluntary retirement from service. Hence I request you kindly to permit me to take voluntary retirement from service with effect from 31.03.2013 under Rule 285(1)(a) of KCSRs with all pension benefits as admissible as per KCSRs Rules. Ex.P.16 is the communication accepting the letter of voluntary retirement and relieving the claimant from the services. In the afore-extracted letter, the claimant has clearly indicated that she is not in a position to perform her duties due to the accident. Though the doctor in his evidence does not say so, the injuries sustained by the claimant read with the letter of voluntary retirement would clearly indicate that performance of her duties for the remainder period of service was hampered due to the accident. 15. The claimant was aged 56 years at the time of the accident and was left with four years of service. The Tribunal has applied a uniform multiplier of 9 considering the age of the claimant. The Tribunal ought to have applied split multiplier and determine the compensation. Precisely, the claimant was left with 39 months of service when she was relieved from service on voluntary retirement. The Hon ble Supreme Court in the case of SARLA VARMA (SMT.) AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANOTHER, (2009) 6 SCC 121 has held that 50% of the income of the claimant has to be deducted towards personal expenses if the claimant is earning the monthly salary of the claimant was Rs.42,675/- p.m. and 50% of the monthly salary would be Rs.21,338/-. DELHI TRANSPORT CORPORATION AND ANOTHER, (2009) 6 SCC 121 has held that 50% of the income of the claimant has to be deducted towards personal expenses if the claimant is earning the monthly salary of the claimant was Rs.42,675/- p.m. and 50% of the monthly salary would be Rs.21,338/-. The claimant was aged 56 years at the time of the accident and the applicable multiplier would be 9 but in the facts of the case, since the claimant was a government employee, her age of superannuation was determined at 60 years. Thus, she was left with 4 years of service when the accident took place. In the facts of the case, a split multiplier will have to be applied. With the income determined at Rs.21,338/-, for the remainder period of service namely, 39 months and for the remaining five years, the pension that she would get is to be adopted as income. The disability of the claimant is assessed at 26% to the whole body. Thus, the compensation of Rs.8,65,469/- (Rs.21,338/- x 4 x 39 months x 26 / 100) would be upto retirement period. For the remainder of the multiplier, i.e. 5 , pension will have to be taken as the income, Rs.21,338/- x 5 = Rs.1,06,690/-. Thus, the claimant would be entitled to the total compensation under the head loss of future income due to disability which would be Rs.9,72,159/-. 16. The claimant was an inpatient for about one month. The doctor has not stated in his evidence that the claimant was unable to perform her duties in future and would need rest for a particular period. Though the claimant had availed a leave for 9 months and the Tribunal has taken 6 months, since the claimant was admitted only for one month, we deem it appropriate to consider the loss of income for the laid up period for 4 months in all. The income under the head, loss of income during the laid up period would be taking the net salary of the claimant for 4 months, is Rs.1,17,832/- (Rs.38,208/- - Rs.8,750/- (HRA) x 4). 17. Insofar as the compensation on other heads are concerned, the compensation awarded by he Tribunal is just and proper compensation and does not call for interference by this Court. 18. The break up of the compensation is as follows: Sl. 17. Insofar as the compensation on other heads are concerned, the compensation awarded by he Tribunal is just and proper compensation and does not call for interference by this Court. 18. The break up of the compensation is as follows: Sl. No. Description In MVC.No. 7449 Of 2012 (in Rupees) Reduction in MFA.No. 7716 of 2014 (in Rupees) Total Compensati on (in Rupees) 1 Injury, pain and suffering 70,000 - 70,000 2 Loss of Income during laid up period 1,76,748 58,916 1,17,832 3 Medical expenses, nursing, dressing and physiotherapy expenses 4,86,062 - 4,86,062 4 Loss of income on account of disability 10,72,872 1,00,713 9,72,159 5 Loss of amenities in life 50,000 - 50,000 6 Future medical expenses 50,000 - 50,000 7 Attendant charges, conveyance charges and incidental expenses 10,000 - 10,000 Total 19,15,682 1,59,629 17,56,053 19. Thus, the claimant is entitled to total compensation of Rs.17,56,053/-. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made. It is also held that the insurance company shall pay the amount of compensation to the claimant. Liberty is granted to the insurance company to recover the same from the owner of the offending petrol tanker. 20. Accordingly, the appeal stands disposed of with the modification of the award of the claims Tribunal to the aforesaid extent. The amount in deposit, if any, shall be transmitted to the Claims Tribunal for payment to the claimant.