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2020 DIGILAW 1408 (KAR)

Krishna, S/o Hottaiah v. Chikkaraju, S/o Muthappa

2020-07-14

E.S.INDIRESH

body2020
JUDGMENT : This appeal is directed against the judgment and award dated 05th October, 2013 passed in MVC No.308 of 2008 on the file of Additional Senior Civil Judge, Ramanagar (for short hereinafter referred to as ‘the Tribunal’). The claimant-appellant being aggrieved by the compensation awarded by the Tribunal, has preferred this appeal for enhancement of compensation, as well as sought for fastening liability on the Respondent No.2 Insurer. 2. For the sake of convenience, the parties in this appeal are referred to with their rank before the Tribunal. 3. The factual aspects of the case are that, the appellant who claims to be an agriculturist has stated in the claim petition, that on 22nd January, 2008 at about 12.30 am after loading the sand to the lorry bearing registration No.KA20/5001 when the appellant-claimant was standing beside the lorry and during the said period the driver of the lorry took it reverse and dashed to the appellant and as a result of the said accident, the appellant-claimant fell down and sustained grievous injuries and immediately thereafter, he was taken to hospital. Since the appellant-claimant has suffered disability on account of the accident and as such, he filed claim petition before the Tribunal in MVC No.308 of 2008 and sought for compensation of sum of Rs.4,50,000/under Section 166 of the Motor Vehicles Act. After service of notice to respondents No.1 and 2, second respondent has filed written statement denying the averments made in the claim petition. The first respondent remained absent and placed exparte before the Tribunal. The Tribunal, having taken note of the pleadings, has formulated the following issues: 1. Does the petitioner proves that on 22.01.2008 at about 12.30 am he was standing beside the lorry after loading sand on it, at that time the driver of lorry moved the lorry in reverse direction in a rash and negligent manner and dashed against the petitioner as a result of which petitioner suffered grievous injuries as stated in the petition? 2. Does the 2nd respondent proves that the driver of lorry was not holding valid driving licence as stated in para 8 of the written statement? 3. Does the 2nd respondent proves that the claim do not come under purview of Indian Motor Vehicles Act as stated in para 6 of the written statement? 4. Whether the petitioner is entitled for the compensation? If so, how much and from whom? 3. Does the 2nd respondent proves that the claim do not come under purview of Indian Motor Vehicles Act as stated in para 6 of the written statement? 4. Whether the petitioner is entitled for the compensation? If so, how much and from whom? 5. What order or award? 4. In order to establish his case, the appellant-claimant was examined as PW1 and marked documents as per Exhibits P1 to P14 and he has examined Doctor as PW2. The second respondent has examined their officer as RW1 and marked documents Exhibits R1 and R2. The Tribunal, having considered the material on record and the documents produced by the parties, by its judgment and award dated 05th October, 2013 has allowed the claim petition in part and held that the appellant-claimant is entitled for compensation of Rs.1,15,956/along with interest @ 6% per annum from the date of petition till the date of realisation. Further, the Tribunal has held that, since the driver of the vehicle in question did not possess valid and effective driving licence as on the date of the accident and as such, directed the respondent No.1-Insured to pay the compensation to the appellant-claimant and absolved the respondent No.2-Insurer. Being not satisfied with the compensation awarded by the Tribunal and directing the Respondent No.1 to pay compensation, the appellant has preferred this appeal seeking enhancement of compensation. 5. The appellant contends that the Tribunal has not properly appreciated the documents insofar as the pain and suffering is concerned as the appellant-claimant has suffered five fractures, which injuries are grievous in nature and on account of the said accident, the appellant-claimant has suffered disability to an extent of 10%, however, the Tribunal had taken the disability at 3%, and has awarded meager compensation which is erroneous and liable to be interfered with by this Court. It is also stated by the appellant that exonerating respondent No.2 Insurer is not correct in view of the law declared by the Hon’ble Supreme Court and as such the same is liable to be modified by this Court. The Tribunal has awarded compensation, which is as under: Head Amount (Rs.) Pain and Agony 50,000.00 Loss of amenities 10,000.00 Medical expenses 1,416.00 Rest, nourishment and attendant charges 1,500.00 Conveyance 1,000.00 Loss of income during the laid­up period 4,500.00 Loss of future income 27,540.00 Marriage prospectus 20,000.00 Total 1,15,956.00 6. The Tribunal has awarded compensation, which is as under: Head Amount (Rs.) Pain and Agony 50,000.00 Loss of amenities 10,000.00 Medical expenses 1,416.00 Rest, nourishment and attendant charges 1,500.00 Conveyance 1,000.00 Loss of income during the laid­up period 4,500.00 Loss of future income 27,540.00 Marriage prospectus 20,000.00 Total 1,15,956.00 6. Heard Shri K. Shantharaj, learned counsel appearing for the appellant-claimant and Shri Srishaila, learned counsel appearing for the second respondent-Insurance Company. Shri Shantharaj, learned counsel appearing for the appellant-claimant contends that the claimant has suffered five fractures and was an inpatient for about fourteen days, and further, Doctor was examined in the matter to prove the disability on account of injuries sustained by the appellant-claimant, however, the Tribunal has not considered the factual aspects in its right perspective and therefore, he contends that the compensation awarded by the Tribunal under each head is on the lower side and accordingly sought for enhancement of compensation. He further contends that fastening of liability on the first respondent-Insured is bad in law as the Tribunal ought to have ordered for pay and recovery in the matter, and therefore, he prays for modification of the judgment and award passed by the Tribunal. 7. Per contra, Shri. Srishaila, learned counsel appearing for the second respondent-Insurance Company contends that the compensation awarded by the Tribunal is based on material on record which does not require modification by this Court. He further contends that the Tribunal has rightly fastened the liability on the first respondent-Insured (owner) since the driver of the alleged vehicle did not possess valid and effective driving licence as on the date of accident and in that view of the matter, he sought to justify the judgment and award. 8. Having heard the learned counsel for the parties, points that arise for consideration in this appeal are: (i) Whether the award made by the Tribunal is just and proper? and (ii) Whether the doctrine of pay and recovery is applicable in this appeal? 9. I have perused the original records made available in this appeal and have carefully considered the submissions advanced by the learned counsel appearing for the parties. and (ii) Whether the doctrine of pay and recovery is applicable in this appeal? 9. I have perused the original records made available in this appeal and have carefully considered the submissions advanced by the learned counsel appearing for the parties. The appellant-claimant, in order to substantiate his case, has examined himself as PW1 and has produced documents Exhibits P1 FIR, P2 charge sheet, P3-spot mahazar, P4 and P5-medical certificates to prove issue No.1 before the Tribunal and insofar as the issue No.1 is concerned, neither the appellant-claimant nor the second respondent-Insurer have disputed the same, and accordingly, the finding recorded by the Tribunal on issue No.1 does not call for interference by this Court. The Tribunal has considered issues No.2 and 3 together and held that the driver of the lorry was not possessing valid and effective driving licence as on the date of accident, and as per Exhibit P2-Charge sheet, wherunder one Nagendra S/o Jawaraiah has been charge sheeted as per ExhibitP2 and RW1, has produced extract of driving licence issued from the Regional Transport Office which is marked as Exhibit R1, and as per Exhibit R1 the licence is said to have been issued by the competent authority to said Nagendra driver of the vehicle in question to drive Heavy Transport Vehicle and Heavy Passenger Vehicle with effect form 05th February 2008 to 04th February, 2011. The accident occurred on 22nd January, 2008 which is almost two weeks prior to the issuance of licence by the competent authority and accordingly the finding recorded by the Tribunal with regard to issue No.2 in the affirmative and issue No.3 in the negative, does not call for any interference by this Court. 10. In respect of quantum of compensation awarded by the Tribunal, the perusal of record would indicate that the appellant-claimant was hospitalized and was an inpatient from 23rd January 2008 to 04th February, 2008, i.e. for a period of fourteen days and also perusal of exhibit P4-wound certificate and Exhibit P5-discharge summary indicates that the appellant-claimant has suffered five fractures, particularly, the injury caused to pelvic bones, is grievous in nature. Taking into account the deposition made by PW2-Doctor, the finding recorded by the Tribunal that the appellant-claimant has suffered grievous injuries, is in accordance with factual aspects of the case on record. Taking into account the deposition made by PW2-Doctor, the finding recorded by the Tribunal that the appellant-claimant has suffered grievous injuries, is in accordance with factual aspects of the case on record. The Tribunal had taken the income of the appellant-claimant as Rs.4,500/per month and having applied multiplier 17 and taking into account the total disability to the whole body at 3%, has awarded Rs.27,540/, towards loss of disability and as such, has awarded total compensation of Rs.1,15,956/, which according to this Court is on the lower side and requires to be enhanced in this appeal. 11. The Tribunal has awarded Rs.50,000/towards pain and agony and the same does not call for interference by this Court. The Tribunal has awarded Rs.10,000/towards loss of amenities. By looking at the injuries sustained by the appellant-claimant (five fractures), award of Rs.30,000/under the said head would be just and proper. Awarding of Rs.1,416/by the Tribunal towards medical expenses does not call for any interference. The Tribunal has awarded Rs.1,500/and Rs.1,000/towards nourishment and attendant charges and conveyance respectively, which is on the lower side, as the appellant-claimant was an inpatient for about fourteen days and accordingly awarding of Rs.3,000/- towards nourishment and attendant charges and Rs.2,000/towards conveyance charges is just and proper and the same is awarded under the said heads. The Tribunal had taken income of the appellant-claimant as Rs.4,500/per month which is on the lower side. This court, in a catena of decisions, for the accidents of the year 2008, had taken the income of the injuredclaimant at Rs.5,000/per month, and in the instant case also, considering the year of accident, this Court is of the opinion that taking income of Rs.5,000/per month would be just and proper and hence the same is taken. Accordingly, appellant-claimant is entitled for compensation of Rs.5,000/under the head loss of income during the laidup period. So also, by taking income at Rs.5,000/per month and applying multiplier 17 as per the law declared by the Hon’ble Supreme Court in the case of SMT. SARLA VARMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in (2009)6 SCC 121 , the loss of future income would be Rs.30,600/(Rs.5,000/x 12 x 17 x 3/100) and the same is awarded under the said head in lieu of Rs.27,540/awarded by the Tribunal. SARLA VARMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in (2009)6 SCC 121 , the loss of future income would be Rs.30,600/(Rs.5,000/x 12 x 17 x 3/100) and the same is awarded under the said head in lieu of Rs.27,540/awarded by the Tribunal. Considering the age of the claimant, and the compensation awarded by the Tribunal under the head marriage prospects at Rs.20,000/is enhanced to Rs.25,000/. Accordingly, the appellant-claimant is entitled to total compensation of Rs.1,47,016/with interest @ 6% per annum from the date of petition till the date of realisation. 12. The Tribunal has fastened the liability on the first respondent-owner of the vehicle in question on the ground that the driver of the vehicle in question did not possess valid and effective driving licence. The Hon’ble Supreme Court in PAPPUU AND OTHERS VS VINOD KUMAR LAMBA AND ANOTHER reported in AIR 2018 SC 592 has held as follows: “However, considering fact that owner of vehicle had produced insurance certificate indicating that offending vehicle was comprehensively insured by insurance company and in order to subserve ends of justice, insurance company directed to pay claim amount awarded by Tribunal to claimants in first instance, with liberty to recover same from owner of vehicle in accordance with law.” 13. In view of the law declared by the Hon’ble Supreme Court stated above, the respondent No.2-Insurer is directed to pay the entire compensation to the appellant-claimant and to recover from respondent No.1-Insured (owner). Accordingly, points for consideration are answered in favour of the appellant-claimant. Accordingly, the appellant-claimant is entitled for the enhanced compensation as follows: Head Amount (Rs.) Pain and Agony 50,000.00 Loss of amenities 30,000.00 Medical expenses 1,416.00 Rest, nourishment and attendant charges 3,000.00 Conveyance 2,000.00 Loss of income during the laid­up period 5,000.00 Loss of future income 30,600.00 Marriage prospects 25,000.00 Total 1,47,016.00 ORDER (i) Appeal is allowed in part; (ii) Judgment and award dated 05th October, 2013 passed in MVC No.308 of 2008 by the Additional Senior Civil Judge, Ramanagara, is modified and the appellant is entitled for compensation of Rs.1,47,016/together with interest @ 6% per annum from the date of petition till the date of realisation; (iii) Respondent No.2-Insurer is directed to pay the entire compensation with interest to the appellant-claimant within eight weeks from the date of receipt of copy of this judgment and thereafter recover the said amount from respondent No.1-owner. Ordered accordingly.