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2020 DIGILAW 1194 (KAR)

Prasanna Kumar @ Kumar v. Puttaraju

2020-06-23

MOHAMMAD NAWAZ

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JUDGMENT Mohammad Nawaz, J. - The claimant is in appeal being aggrieved by the quantum of compensation awarded by the Tribunal as well as absolving the insurance Company from paying the compensation. 2. The Tribunal has awarded a total compensation of Rs.51,000/- at 6% interest per annum for the injuries suffered by the appellant/claimant in a road traffic accident, which took place on 22.10.2007 at about 9.30 a.m involving a motor cycle bearing Registration No.KA-02.EX- 9322. 3. The case of the appellant is that while he was traveling as a pillion rider in the aforesaid motor cycle on 22.10.2007 at about 9.30 a.m., the rider of the motor cycle in question rode the same in a rash and negligent manner, as a result of which the said motor cycle dashed against a pedestrian. Consequently, the appellant fell down from the motor cycle and sustained severe injuries. 4. The learned counsel for the appellant would contend that the appellant was treated as an inpatient in Harsha Hospital, Nelamangala from 22.10.2007 to 25.10.2007. He sustained fracture of Nasal bone and fracture of Vomer bone. The appellant has spent substantial amount towards treatment. He further submits that the appellant was working as a delivery boy in a private company and he was earning a sum of Rs.4,000/- per month and in addition to that he was earning perks of Rs.500/- per day. Hence, he submits that the income taken by the Tribunal at Rs.3,000/- per month is on a lower side and seeks to enhance the compensation awarded by the tribunal. 5. The learned counsel for the appellant would also contend that the tribunal was not justified in absolving the insurer from paying the compensation and directing respondent No.1 to indemnify the claimant on the ground that the rider of the motor cycle was not holding a driving licence to drive a two wheeler, on the other hand, he was holding a driving licence to drive LMV. He places reliance on the decisions of the Hon'ble Apex Court in the case of PAPPU AND OTHERS VS. VINOD KUMAR LAMBA AND ANOTHER , (2018) AIR SC 592 , SHAMANNA AND ANOTHER Vs. DIVISIONAL MANAGER ORIENTAL INSURANCE CO. LTD AND OTHERS, (2018) 9 SCC 650 AND ORIENTAL INSURANCE CO., LTD VS. ZAHARULNISHA AND OTHERS , (2008) ACJ 1928 . 6. VINOD KUMAR LAMBA AND ANOTHER , (2018) AIR SC 592 , SHAMANNA AND ANOTHER Vs. DIVISIONAL MANAGER ORIENTAL INSURANCE CO. LTD AND OTHERS, (2018) 9 SCC 650 AND ORIENTAL INSURANCE CO., LTD VS. ZAHARULNISHA AND OTHERS , (2008) ACJ 1928 . 6. Per contra, the learned counsel for respondent No.2 justified the impugned judgment and award ad seeks to dismiss the appeal. 7. The accident in question and the actionable negligence on the part of rider of the motor cycle in question is not in dispute. The Tribunal has awarded a total compensation of Rs.51,000/- with interest at 6% per annum and held that the claimant is entitled to recover the said sum from respondent No.1- owner of the vehicle. 8. The appellant has got examined himself as PW-1. According to him, he was working as a delivery boy in a private company and he was earning a sum of Rs.4,000/- per month as well as perks of Rs.500/- per day. Except his oral testimony, there are no other convincing material placed on record to arrive at a conclusion that the appellant was receiving perks of Rs.500/- per day. The appellant has produced and marked his salary certificate at Ex.P6, which shows that he was earning a salary of Rs.3,000/- per month. Considering Ex.P6, the income of Rs.3,000/- per month taken by the Tribunal is just and proper. 9. The appellant was aged about 26 years at the time of accident as per wound certificate marked at Ex.P4. The medical evidence on record discloses that the appellant sustained Laceration over the upper lip and fracture of Nasal bone (VOMER). The appellant has examined PW.2 who was working as an Orthopedic Surgeon in Victoria Hospital, Bengaluru. PW.2 has assessed the disability to an extent of 13% to the whole body with regard to absence of sense of smell and persistent infection and breathing problem. In the cross examination, PW.2 has stated that he has not treated the appellant personally. He examined him on 03.12.2009 for the first time for assessing the disability. He has admitted that he has no special technique to elicit the loss of sense of smell. He has stated that he made the assessment of disability on the basis of statement made by the appellant. He has stated that the fracture is united but, in a malposition. He has admitted that he has no special technique to elicit the loss of sense of smell. He has stated that he made the assessment of disability on the basis of statement made by the appellant. He has stated that the fracture is united but, in a malposition. He has further stated that the fracture is Mal-united and it is not likely to cause any obstruction to breathe in the case of appellant. Further, loss of sense of smell will not effect tasting of food. Though PW.2 has assessed the total disability to an extent of 13% to the whole body, however, in the light of admissions elicited in the crossexamination as noted, it cannot be said that the appellant has suffered a disability of 13% to the whole body. However, taking into consideration the injuries suffered and the fact that the fracture is malunited, a global compensation of Rs.25,000/- is awarded towards disability and loss of amenities. 10. The Tribunal has awarded a sum of Rs.20,000/- towards pain and suffering. The same is enhanced to Rs.25,000/-. The compensation of Rs.20,000/- towards medical expenses is just and reasonable. The appellant was inpatient for a period of three days and a sum of Rs.5,000/- is awarded towards Nutritious food and under the head conveyance charges. A sum of Rs.9,000/- is awarded towards loss of income during laid up period. Hence, appellant is entitled for a total compensation of Rs.84,000/- as against Rs.51,000/- awarded by the Tribunal. 11. It is not disputed that the rider of the motor cycle was not holding a Driving licence to ride a two wheeler but he was holding a driving licence to drive LMV. In the decisions referred supra rendered by the Hon'ble Apex Court, it has been held that when there is no valid driving licence, the insurance Company shall pay compensation to the claimant at the first instance and it can recover the same from the owner of the vehicle. 12. In 'Zaharulnisha and others' (supra) it is held by the Hon'ble Supreme Court that when the driver was driving a different class of vehicle and if he had a licence to drive a LMV vehicle but he was driving a two wheeler vehicle, then the insurance company can be directed to satisfy the award and to recover the amount from the owner. In view of the aforesaid dictum laid down by the Hon'ble Apex Court, the insurance Company-respondent No.2 is directed to pay the compensation awarded herein to the claimant/appellant with liberty to recover the same from the owner of the vehicle in accordance with law. Hence, the following ORDER The appeal is partly allowed. The judgment and award passed by the tribunal dated 04.06.2010 is modified to the effect that the appellant/claimant shall be entitled for a total compensation of Rs.84,000/- with interest at 6% per annum. Respondent No.2 - Insurance Company shall pay compensation to the appellant/claimant with liberty to recover the same from the owner in accordance with law. Respondent No.2 shall deposit the compensation amount within a period of 4 weeks from the date of receipt of a copy of this judgment. The entire compensation shall be released in favour of appellant.