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2020 DIGILAW 1250 (KAR)

N. R. Manu v. New India Assurance Co. Ltd.

2020-06-26

E.S.INDIRESH

body2020
JUDGMENT E.S.Indiresh, J. - This appeal is preferred against the judgment and award dated 08.08.2014 passed in MVC No.98/2013 on the file of the Senior Civil Judge and Motor Vehicles Accident Tribunal, Madikeri (hereinafter referred to as the 'Tribunal' for short). The appellant herein is the claimant in MVC No.98/2013. 2. For the sake of convenience, the parties in this appeal would be referred to as per their ranks before the Tribunal. 3. The brief facts of the case are that on 07.01.2013 at about 05.00 p.m., the petitioner and his wife were traveling in a motor cycle bearing Reg. No. KA-12-K-4708 from Somwarpet towards Kudige and when they reached near Kudige-Koppal, respondent No.3 being the rider of motor cycle bearing Reg. No. KA- 12-J-9499 came in high speed and dashed to the motor cycle of the claimant and due to said accident, the claimant as well as his wife Smt.M.N.Cauvery sustained injuries. On account of the said accident, the petitioner has suffered grievous injuries to his right leg 5th toe and multiple abrasions all over the body. Immediately after the accident, the claimant, as well as, his wife were shifted to the Hospital and they took treatment in the Hospital. Kushalnagar Police have registered a criminal case in Crime No.5/2013 against respondent No.3 and filed charge sheet in C.C.No.529/2013. 4. The case of the claimant is that he was in Hospital as an in-patient for a period of 13 days. He was earning nearly Rs.18,000/- to 20,000/- per month through carpentry work and in view of the said accident, he was not able to carry out his profession as a Carpenter and since it is a skilled avocation, he has been put to hardship. The appellant herein has filed MVC No.98/2013 before the Tribunal and sought for compensation against respondents therein. After service of summons, the respondents appeared before the Tribunal and filed objections. Respondent No.1 admitted that vehicle which has caused accident to the petitioner and admitted that the vehicle in question was covered with insurance at the time of the accident. Respondent No.1 took up a contention that though the vehicle in question is insured with respondent No.1, however, the same is subjected to terms and conditions as stated in the Policy. Respondent Nos.2 and 3 contended that the petitioner is not entitled for compensation. However, they have admitted the alleged accident occurred on 07.01.2013. 5. Respondent No.1 took up a contention that though the vehicle in question is insured with respondent No.1, however, the same is subjected to terms and conditions as stated in the Policy. Respondent Nos.2 and 3 contended that the petitioner is not entitled for compensation. However, they have admitted the alleged accident occurred on 07.01.2013. 5. On the basis of the pleadings of the parties, the Tribunal has framed the following issues: "1. Whether the petitioner proves that, on 07.01.2013 at about 5.00 p.m, near Kudige Koppal, Kudige Village, Kushalnagar, when the Petitioner along with his wife was traveling in a motor cycle bearing Reg.No.KA-12-K-4708, at that time a motor cycle bearing Reg. No.KA-12-J-9499 driven by the 3rd Respondent came in a rash and negligent manner and hit the Petitioner directly on his leg. Due to the impact, he sustained injuries? 2. Whether the petitioner is entitled for compensation? If so, at what rate and from whom? 3. What order or award?" 6. In order to establish the case of the petitioner, he got examined himself as PW1 and produced documents as Exs.P1 to P10. Though the respondent - Insurance Company has not adduced any oral evidence, however, got marked three documents by consent of the petitioner as Exs.R1 to R3. 7. The Tribunal, after hearing the parties and after consideration of materials on record, by order dated 08.08.2014 has ordered that the petitioner is entitled for compensation of Rs.22,114/- from respondent Nos.2 and 3 with interest at the rate of 6% per annum from the date of petition till deposit. The Tribunal while allowing the petition in part, however, dismissed the claim petition against respondent No.1 Insurance Company on the ground that the driver of the vehicle in question did not possess requisite valid and effective driving license as on the date of the accident and in view of the same, the Tribunal has fastened the liability on respondent Nos.2 and 3. Being aggrieved by the judgment and award dated 08.08.2014 passed in MVC No.98/2013 by the Tribunal, the appellant herein has preferred this appeal seeking enhancement of compensation as well as sought for fastening the liability on respondent No.1 Insurance Company. 8. I have heard the learned counsel for the parties. 9. Being aggrieved by the judgment and award dated 08.08.2014 passed in MVC No.98/2013 by the Tribunal, the appellant herein has preferred this appeal seeking enhancement of compensation as well as sought for fastening the liability on respondent No.1 Insurance Company. 8. I have heard the learned counsel for the parties. 9. Learned counsel appearing for the appellant submits that the appellant has suffered grievous injuries as stated at Ex.P4 Wound Certificate and the appellant is a Carpenter by occupation. The age of the appellant at the time of the accident was 40 years and it was a prime age for him to earn more money by his avocation. He further submits that, though the Doctor was not examined before Tribunal, however, a perusal of injuries sustained by the appellant as per Ex.P4 Wound Certificate clearly envisages the fact that it is difficult for the appellant to work as a Carpenter in usual course of employment and in that view of the matter, he sought for enhancement of compensation as awarded by Tribunal. He further submits that though the Tribunal has fastened the liability on respondent Nos.2 and 3, however, in view of the law declared by the Hon'ble Supreme Court in the case of Pappu and Others vs. Vinod Kumar Lamba and Another, (2018) AIR SC 592 , whereunder, it is observed that in the event the driver of the vehicle in question not possessing a valid and effective driving license, in such cases, though the Tribunal fastens the liability on the driver and the insured of the vehicle, the Court can direct the respondent Insurance Company to pay the compensation to the claimants and thereafter, it may be recovered from the insured and as such, he sought for applying the principle of 'pay and recovery' as stated in the aforesaid judgment. 10. Per contra, learned counsel for respondent No.1 vehemently opposed the appeal. He submits that compensation awarded by the Tribunal is just and proper and the same does not call for any interference in this appeal. He further submits that the Doctor, who is a competent person to say about the injuries, was not examined, hence, no enhancement needs to be made in this appeal as the award made by the Tribunal itself is on a higher side and therefore, he submits that no interference may be called for in the compensation awarded by the Tribunal. 11. 11. I have heard the learned counsel for the parties and after careful consideration of the materials on record, it is not in dispute that the accident occurred on 07.01.2013 and as a result of the said accident, the appellant has sustained injuries as stated at Ex.P4 Wound Certificate. A perusal of Ex.P4, by guess work, would clearly indicate that it is very difficult for the appellant to work as Carpenter and he was in the prime age i.e., 40 years at the time of the accident. In that view of the matter and also taking into account the fracture of right 5th toe with compromised vasularity and extensor digitorum IV rupture of right foot of the appellant, which is grievous in nature, the appellant is entitled for just compensation under Section 166 of the Motor Vehicles Act. 12. The Tribunal has awarded a sum of Rs.10,000/- towards 'pain and suffering', which according to this Court is on the lower side by looking into the injuries sustained by the appellant and in that view of the matter, another Rs.30,000/- is awarded under the said head. 13. The age of the appellant at the time of the accident was 40 years and this Court in Lok Adalat while taking into account the monthly income of the claimant during the accidents of the year 2013 is between Rs.7,000/- to Rs.8,000/-. However, in the ends of justice, this Court would take the income of the appellant at Rs.7,000/- per month. Taking note of the fact that the income of the appellant is Rs.7,000/- per month, since the appellant was not able to work for three months, he is entitled to Rs.21,000/- (Rs.7,000 x 3) towards 'loss of income during treatment'. The same is awarded including the amount awarded by the Tribunal. 14. After perusing the impugned judgment and award, it is seen that the Tribunal has not awarded any compensation towards 'amenities, attendant charges and nourishment etc'. A perusal of the Wound Certificate at Ex.P4 would clearly establish the fact that the claimant has suffered fracture of right 5th toe with compromised vasularity and extensor digitorum IV rupture of right foot and in view of the same, this Court is of the opinion that Rs.25,000/- towards 'amenities' and Rs.5,000/- towards 'attendant charges' is just and proper. Hence, a sum of Rs.25,000/- is awarded towards 'amenities' and Rs.5,000/- is awarded towards 'attendant charges'. Hence, a sum of Rs.25,000/- is awarded towards 'amenities' and Rs.5,000/- is awarded towards 'attendant charges'. In that view of the matter, the petitioner is entitled to total compensation of Rs.76,650/- in addition to the compensation awarded by the Tribunal. 15. It is further considered that the Tribunal has fastened the liability on respondent Nos.2 and 3 on the ground that the driver of the vehicle in question did not possess valid and effective driving license as on the date of the accident. However, in view of the law declared by the Hon'ble Supreme Court in the case of Pappu stated supra, whereunder the Hon'ble Supreme Court was pleased to hold that in such cases, the insurer would be directed to satisfy the compensation amount payable to the claimant and thereafter, shall recover the same from the insured and in view of the same, the judgment and award passed by the Tribunal is liable to be modified. Hence, the following:- ORDER i) The appeal is allowed in part. ii) The appellant is entitled to total compensation of Rs.76,650/- in addition to the award passed by Senior Civil Judge and Motor Vehicles Accident Tribunal, Madikeri in MVC No.98/2013 with 6% interest per annum from the date of petition till the date of deposit. iii) Respondent No.1 shall deposit the compensation amount within a period of eight weeks from today. iv) Liberty is reserved to respondent No.1 to recover the compensation amount from respondent Nos.2 and 3 in accordance with law. No order as to costs.