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2020 DIGILAW 1175 (KAR)

R. Murthy v. P. Sagayam

2020-06-22

MOHAMMAD NAWAZ

body2020
JUDGMENT Mohammad Nawaz, J. - Heard the learned counsel for the appellant and the learned counsel for respondent No.2 insurance company. Though respondent No.1 is served, he is unrepresented. 2. The appellant has challenged the findings recorded in MVC No. 8980/2009 dated 22.06.2012 on the file of MACT, Court of Small Causes, Bengaluru City, wherein a total compensation of Rs.1,27,000 with interest @ 6% per annum was awarded to the appellant for the injuries sustained by him in a road traffic accident occurred on 30.05.2009 involving an Active Honda Motor cycle bearing Reg.No.KA-51-K-168 and a goods tempo bearing Reg.No.KA-21-5360. The Tribunal while awarding the aforementioned compensation, held that the driver of the goods tempo was not holding a valid driving license to drive the said tempo and accordingly held that the owner of the said vehicle is solely liable to pay the compensation. 3. Assailing the impugned judgment and award passed by the Tribunal, learned counsel for the appellant would vehemently contend that the accident in question and the actionable negligence on the part of the driver of the vehicle is not in dispute. However, the Tribunal has erred in exonerating the insurance company from its legal liability to pay compensation though there was a valid insurance policy for the vehicle in question. He contends that even if the driver was not holding a driving licence, the insurer cannot be absolved from its liability to indemnify the third party. He relies on the judgment of the Hon'ble Apex Court in the case of Pappu and others V/s Vinod Kumar Lamba and another, (2018) 3 SCC 208 . He further contends that the appellant was working as a mason and he has suffered neurological disability. The doctor has assessed the whole body disability at 38.8%. However, erroneously the Tribunal has taken the disability at 10%. He further contends that the income taken and the total compensation awarded under different heads are on a lower side and accordingly seeks to allow the appeal by enhancing the compensation as claimed. 4. Per contra, learned counsel appearing for respondent No.2 contends that the vehicle in question is a goods tempo and the gross weight of the vehicle is more than 7500 kgs as noted in Ex.R1 i.e., Policy Copy and therefore the insurance company is not liable to pay the compensation as there is violation of the policy conditions. 4. Per contra, learned counsel appearing for respondent No.2 contends that the vehicle in question is a goods tempo and the gross weight of the vehicle is more than 7500 kgs as noted in Ex.R1 i.e., Policy Copy and therefore the insurance company is not liable to pay the compensation as there is violation of the policy conditions. He contends that the driver of the said vehicle was not holding a valid driving license to drive that class of vehicle. He further submits that the Tribunal after considering the entire material on record has rightly held that the owner is solely liable to pay the compensation. He submits that there are no grounds to interfere with the findings recorded by the Tribunal and seeks to dismiss the appeal. 5. The accident in question and the actionable negligence on the part of the driver of the goods tempo in question is not in dispute. Appellant is examined as PW.1. According to him he was working as a mason and was earning a sum of Rs.5,000/- p.m. The Tribunal has assessed his income at Rs.4,000/-. The accident is of the year 2009. Considering the avocation of the appellant and the year of accident, as it is consistingly taken, the income of the appellant is assessed at Rs.5,000/- p.m. 6. Pw.3 is a Consultant Neurosurgeon at Abhaya Hospital. He has stated that the appellant had sustained head injury following a road traffic accident on 30.05.2009. Appellant had lost consciousness. He was then taken to Nimhans Hospital with bleeding in the right ear. The appellant took further treatment at Sri Vijayslaxmi Pragathi Hospital. PW.3 has stated that on examination of the appellant he found that he had a persisting headache and he was given medications to heal the brain injury with follow up treatment. He has stated that a detailed clinical neurological assessment did not reveal any obvious motor deficits. A detailed neuro psychological assessment done on 24.11.2010 revealed the following; a) Impaired motor speed both hands (right < 5th percentile, left > 5th percentile) b) Impaired category fluency (10th percentile) c) Impaired verbal fluency (< 5th percentile) d) Impaired logical memory (< 5th percentile) e) Impaired working memory (< 5th percentile) f) Impaired verbal comprehension (< 5th percentile) g) Impaired verbal learning & memory (< 5th percentile) h) Impaired logical memory (< 5th percentile) 7. Pw.3 has assessed the permanent physical impairment in neurological conditions to an 7 extent of 26% and whole body disability to an extent of 38.8%. In the cross-examination he has admitted that the appellant has no Neurological disability. 8. The Tribunal has assessed the disability at 10% to the whole body. However, considering the avocation of the appellant and considering the medical evidence on record, the disability to the whole body can be assessed at 15% as against 10% assessed by the Tribunal. 9. The appellant was aged about 40 years. Hence, the appropriate multiplier is 15'. The total loss of future earning capacity therefore, comes to Rs.1,35,000/- (Rs.5,000/- X 15% X 12 X 15). 10. Considering the nature of injuries suffered by the appellant, the compensation awarded for 'pain and sufferings' is enhanced from Rs.25,000/- to Rs.35,000/- . The compensation awarded towards 'loss of amenities and future discomfort' is enhanced from Rs.10,000/- to Rs.20,000/-. The compensation awarded towards 'medical expenses and other incidental charges' is enhanced from Rs.10,000/- to Rs.15,000/- . The compensation awarded for 'loss of earnings during the treatment' is maintained at Rs.10,000/- . Hence, the appellant is entitled for a total compensation of Rs.2,15,000/- as against Rs.1,27,000/- awarded by the Tribunal. 11. It is not in dispute that there was a valid insurance policy to the vehicle in question at the time of accident. The Tribunal has fixed the liability on the owner of the vehicle holding that the driver was not holding a valid driving license as he was holding a driving license to drive a light motor vehicle and not a transport/goods vehicle. Ex.R1 shows that the gross weight of the vehicle is more than 7500 kgs. Hence, the liability cannot be solely fixed on the Insurance Company. However, in view of the decision rendered by the Hon'ble Apex Court in Pappu's case (quoted supra) the insurer cannot avoid its liability and as it is held in various decisions of the Hon'ble Apex Court, the insurer shall pay the compensation to the appellant/claimant in the first instance with liberty to recover the same from the owner of the vehicle, in accordance with law. Accordingly, I pass the following: ORDER The appeal is allowed in part. Accordingly, I pass the following: ORDER The appeal is allowed in part. The appellant/claimant is entitled for a total compensation of Rs.2,15,000/- as against Rs.1,27,000/- awarded by the Tribunal, with interest of 6% p.a. from the date of petition, till the date of deposit. The insurer-respondent No.2 shall satisfy the award and shall pay the claim amount awarded to the appellant/claimant in first instance, with liberty to recover same from owner of the vehicle, in accordance with law. The amount shall be deposited within a period of 6 weeks from the date on which the judgment is ready.