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2022 DIGILAW 1364 (KAR)

Punith Kumar C. v. Mahalakshmi P.

2022-10-14

H.P.SANDESH

body2022
JUDGMENT H.P. Sandesh, J. - Heard the learned counsel appearing for the appellant-claimant and the learned counsel appearing for the respondent No. 2-Insurance Company in MFA No. 5946/2016. Heard the learned counsel appearing for the appellant-Insurance Company and the learned counsel appearing for the respondent No. 1-claimant in MFA No. 4039/2016. 2. These two appeals are filed challenging the judgment and award dated 11.03.2016 passed in E.C.A. No. 2/2015 on the file of XXI Additional Small Causes Judge and the MACT., (SCCH-23) at Bengaluru ('the Tribunal' for short). 3. The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court. 4. The factual matrix of the case of the claimant before the Tribunal is that he was working as driver under first respondent in the Car bearing registration No. KA-05-AD-7183, drawing a salary of Rs. 7,000/-per month and bata of Rs. 100/-per day. On 07.01.2013 at about 3:15 p.m, when he was driving the said car from Bannerghatta to Electronic City on Nice road, Bengaluru, he lost control over the car and fell into the drain. Due to the impact, he suffered fracture of right leg femur neck, comminuted fracture of left leg femur and other injuries all over the body and he was an inpatient in the hospital for more than 15 days. Due to the accident he has suffered permanent disability and unable to work as a driver. 5. In support of his claim, he examined himself as P.W.1 and also examined the Doctor as P.W.2. The Doctor-P.W.2 assessed the disability in respect of the right lower limb 25.5% and in respect of the left lower limb 26.5% and also assessed the whole body disability at 17.5%, the same has been accepted by the Tribunal and awarded compensation. While awarding the compensation, the Tribunal came to the conclusion that the driver was not having a transport endorsement. Hence, the liability is fastened on the Insurance Company and awarded compensation of Rs. 2,95,095/-with 12% interest per annum from the date of incident till its realization. Being aggrieved by the judgment and award of the Tribunal, the present appeal-MFA No. 5946/2016 is filed by the injured contending that though the income was taken as Rs. Hence, the liability is fastened on the Insurance Company and awarded compensation of Rs. 2,95,095/-with 12% interest per annum from the date of incident till its realization. Being aggrieved by the judgment and award of the Tribunal, the present appeal-MFA No. 5946/2016 is filed by the injured contending that though the income was taken as Rs. 8,000/-per month in terms of the notification, the Tribunal failed to award the just and reasonable compensation only took 17.5% functional disability and failed to notice the fact that he has suffered the fracture of femur of both leg and his occupation is driver and he is unable to work. Hence, it requires enhancement. 6. Per contra, learned counsel appearing for the Insurance Company in his appeal-MFA No. 4039/2016 would vehemently contend that the Tribunal ought to have fastened the liability on the owner instead of the Insurance Company. The driver/injured was not having the transport endorsement to drive the vehicle in question. Hence, it requires an interference of this Court. 7. Having heard the respective counsel and on perusal of the material available on record, it is clear that he has suffered comminuted fracture of right leg femur neck, fracture of left leg femur and other injuries all over the body. The Doctor has assessed the disability separately for both the limbs and the whole body disability taken as 17.5% by the Tribunal. The Tribunal failed to take note of the fact that the nature of the job of the injured viz., driver and admittedly he was working as a driver with the first respondent. When such being the case, when he suffered fracture to both the limbs, certainly it affects the functional disability of the injured and the Tribunal lost sight in considering the functional disability of the injured and accepted only the physical disability as deposed by the Doctor-P.W.2. Hence, it requires an interference of this Court. 8. Having taken note of the injured has suffered fracture of both limbs i.e., particularly femur and the femur is the main bone in respect of both the legs. Hence, it is appropriate to take the functional disability of the injured to the extent of 30%. 9. Considering the age of the claimant i.e., 21 years at the time of the accident, the appropriate income would be Rs. 8,000/-and the relevant factor applicable is 222.71 considering the age of the injured. Hence, it is appropriate to take the functional disability of the injured to the extent of 30%. 9. Considering the age of the claimant i.e., 21 years at the time of the accident, the appropriate income would be Rs. 8,000/-and the relevant factor applicable is 222.71 considering the age of the injured. According to the enactment 60% has to be deducted in the case of injured from his income and after deducting the same, it comes to Rs. 4,800/-and applying the relevant factor and 30% functional disability, it comes to Rs. 3,20,702/-[4800 x 222.71 x 30%]. 10. The medical expenses of Rs. 1,08,015/-awarded by the Tribunal is based on the bills furnished by the claimant. Hence, it does not require any interference. 11. In all, the claimant is entitled to a compensation of Rs. 4,28,717/-as against Rs. 2,95,095/-awarded by the Tribunal with interest at the rate of 12% per annum after 30 days of the accident till its realization. 12. The contention of the Insurance Company is that the Tribunal ought not to have fastened the liability on the Insurance Company when he was not having the transport endorsement and the said contention cannot be accepted. Even the Judgment of the Hon'ble Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited [AIR 2017 SC 3368], held that the driver, who is having the driving license to drive LMV vehicle can drive the LMV non-transport vehicle. Under the circumstances, the contention of the Insurance Company cannot be accepted. Hence, I do not find any merit in the appeal filed by the Insurance Company. 13. In view of the discussions made above, I pass the following: ORDER (i) The appeal filed by the claimant in MFA No. 5946/2016 is allowed-in-part. (ii) The Judgment and Award of the Tribunal dated 11.03.2016 passed in E.C.A. No. 2/2015, is hereby modified. The appellant is entitled to a compensation of Rs. 4,28,717/-as against Rs. 2,95,095/-awarded by the Tribunal with interest at the rate of 12% per annum after 30 days of the accident till its realization. (iii) The respondent No. 2/Insurance Company is directed to deposit the enhanced compensation amount within six weeks from today. (iv) The appeal filed by the Insurance Company in MFA No. 4039/2016 is dismissed. (v) The amount in deposit is ordered to be transmitted to the concerned Tribunal, forthwith.