1 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2018 BEFORE THE HON'BLE MR. JUSTICE H P SANDESH M.F.A.NO.9500/2011 (MV) BETWEEN: [ENTITY] S/o [ENTITY] Aged about 39 years R/at Door No.80/1 Haralahalli village Periyapatna Taluk Mysore District Now R/at Door # 1/3 2nd Main, 1st Cross Jayanagar, Mysore-570 014 Appellant (By Sri [ENTITY], Advocate) AND: 1. Sri [ENTITY] S/o [ENTITY], Major R/at Door # 256, Makodu village Periyapatna Taluk Mysore District-572710 2. The Authorized Officer M/s Bajaj Allianz General Insurance Company Limited No.363, Srihari Complex Sithavilas Road, Mysore-570024 2 3. [ENTITY] S/o [ENTITY] Aged about 44 years R/at Makodu village Periyapatna Taluk Mysore District-572710 Respondents (By Sri [ENTITY], Advocate for R2; R1 & R3 served) This Miscellaneous First Appeal is filed under [SECTION] of [ACT] praying to set aside the judgment and award dated 14.07.2011 passed in [CASE NUMBER] on the file of the Judge, Small Causes and Civil Judge (Sr.Dn) and MACT at Mysore, partly allowing the claim petition for compensation and seeking enhancement of compensation. This MFA coming on for final hearing this day, the Court delivered the following:- JUDGMENT
This Miscellaneous First Appeal is filed by the claimant challenging the quantum of compensation awarded by the Tribunal and also challenging the liability fixed on the owner in [CASE NUMBER] on the file of the Court of Small Causes and MACT, Bengaluru.
2. The claimant before this Court in the appeal contended that the Tribunal is unjustified in awarding compensation of Rs.1,79,200/- with interest @ 7% instead of awarding interest @ 12% per annum. The tribunal also committed grave error by not taking the permanent disability to the whole body as per the evidence of the treated doctor who has been examined as PW-2 and has taken only 20%. It is further contended that the tribunal also committed an error in fastening the liability on the insured instead of fixing the liability on the insurer on the ground that there was no any endorsement to the driver who was driving the vehicle. The tribunal ought to have taken the income of the mason who is earning more than Rs.9000/- and only taken Rs.3,000/- per month. It is further contended that the decision rendered by the Hon'ble Supreme Court in [ENTITY]'s case is aptly applicable to the case on hand, wherein the liability is fixed on the insurance company. Hence it requires modification of the judgment and award.
3. The learned counsel appearing for the insurance company has contended that the decision rendered in [ENTITY]'s case has been referred to the larger Bench for re- consideration and as such, the said contention cannot be accepted at this stage.
4. After having heard the arguments of both the counsel appearing for the insurance company and the claimant. I have perused the judgment and award of the Tribunal.
After hearing the arguments of the appellant's counsel and the counsel appearing for insurance company, this court has to examine regarding consideration about fastening of liability on the owner.
5. The Apex Court in the recent judgment reported in [PRECEDENT] in the case of [ENTITY] vs. Oriental Insurance Company Ltd., has held that if the driver is having LMV, there is no need to take endorsement to drive Light Goods Vehicle and fastened the liability on the insurance company.
6. The counsel appearing for the insurance company vehemently contended that the matter is referred to the larger Bench for reconsideration and the same may not detor this court following the law laid down in the case of [PRECEDENT] at para 29 was considered by this Court and another judgment in the case of [PRECEDENT] at Paragraphs 25 and 26 of the judgment were extracted in [CASE NUMBER] c/w [CASE NUMBER] and categorically held that the judgments of the Apex Court are complete answer to the question raised by the counsel appearing for the insurer and hence the contention of the insurance company cannot be accepted.
7. On perusal of the records of the Tribunal, the respondent/insurance company though taken the defense of there was no driving license, examined the Officer of the insurance company as RW-1 and relied upon the certified copy of the insurance policy, copy of the notice issued by the insured and postal acknowledgement and in the cross examination admits that the policy was in force as on the date of the accident and that they have taken up the defense that the driver of the vehicle was not holding driving license. Hence, the contention of the counsel for the insurance company that the Tribunal has rightly exonerated the liability of paying compensation cannot be accepted in view of the [ENTITY]'s case and hence, the contention of the insurance company fails and the liability is to be fixed on the insurance company instead of the owner.
8. Now the question is with regard to quantum of compensation awarded by the tribunal. On perusal of the judgment and award of the Tribunal, the tribunal has awarded an amount of Rs.25000/- on the head pain and sufferings and the injuries sustained by the claimant is, communited fracture of lower third of right Femur and Fracture of upper third of right tibia. Considering the nature of injuries, the compensation awarded by the tribunal at Rs.25,000/- on the head pain and suffering is very meager and hence, taking into note of the accident is of the year 2007, it is appropriate to enhance the same to Rs.35,000/- as against Rs.25,000/-.
9. Regarding medical expenses also the tribunal has taken note of the documentary evidence placed before the Tribunal and also by taking note of the period of treatment an amount of Rs.9,000/- has been awarded. Hence, I do not find any grounds to enhance the compensation on the head medical expenses.
10. On perusal of the judgment and award, the Tribunal has taken the monthly income of the injured-claimant @ Rs.3,000/-. This accident is of the year 2007, the monthly income ought to have been taken at least Rs.4,000/- as notional income. Hence I have taken the notional income at Rs.4000/- per month. With regard to permanent disability is concerned, the tribunal has taken only 20% disability, even though the doctor has deposed that the disability to whole body is 40%, no reason is assigned to reduce the disability to 20% as against the evidence of doctor PW-2 and the tribunal has committed an error in taking disability at 20%.
11. However, taking note of the loss of income during the laid up period, the tribunal has not awarded any amount on this head. Considering the nature of injuries, it requires more than three months for uniting of fractures and also the rest and hence, I have taken three months period for calculating the compensation under the head loss of income during laid up period and it comes to Rs.4000/- x 3 = Rs.12,000/-.
12. The tribunal also while considering the loss of future earnings has taken the disability at 20%, wherein the doctor who has been examined before the tribunal has categorically deposed that he is having permanent disability of 40%. But the tribunal has reduced to 20% without any basis. Hence, the same is to be considered in consonance with the evidence of doctor who has been examined before the Tribunal. After having taken note of the monthly income of the claimant as Rs.4,000/-, the claimant is entitled to compensation on the head future loss of income at Rs.4000x12x16x40%=Rs.3,07,200/- as against Rs.1,15,200/-.
13. The doctor who has been examined before the Tribunal has deposed that the claimant needs a surgery for removal of implants and the Tribunal has awarded compensation of Rs.10,000/- under the head future medical expenses and the same is just and proper. Hence, I did not find any ground to interfere with the same.
14. The tribunal while awarding compensation on the head loss of amenities and unhappiness, awarded a meager amount of Rs.15,000/-. It is the evidence of doctor who has been examined as PW-2 that the claimant has suffered disability of 40% to whole body and he is aged about 39 years, he has to lead the rest of life with the said disability and hence, the compensation under the head loss of amenities and unhappiness is to be enhanced to Rs.20,000/- instead of Rs.15,000/-.
15. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Compensation Compensation Enhanced Particulars awarded by this awarded by MACT compensation Court Pain and agony Rs.25,000 Rs.35,000 10,000 Medical expenses Rs.9,000 Rs.9,000 -
Food, Conveyance Rs.5,000 Rs.5,000 - & Nourishment charges etc., Loss of earning - Rs.12,000 12,000 during the laid up period Loss of Amenities Rs.15,000 Rs.20,000 5,000 Disability 3000x12x16x20%= 4000x12x16x40% Rs.1,92,000 Rs.1,15,200/- = Rs.3,07,200 Future Medical Rs.10,000 Rs.10,000 - Expenses Total Rs.1,79,200/- Rs.3,98,200/- Rs.2,19,000
16. Lastly, the tribunal has awarded interest @ 7% per annum. Taking note of the accident of the year 2007, it appears that the rate of interest awarded by the tribunal seems to be on higher side and hence, considering the rate of interest of nationalized banks, it is just and appropriate to reduce the rate of interest to 6% as against 7% per annum. Hence, I proceed to pass the following:-
ORDER
(i) The appeal is hereby partly allowed.
(ii) The compensation awarded by the Tribunal in [CASE NUMBER] is modified by enhancing the compensation to Rs.3,98,200/- (Rupees Three Lakhs Ninety Eight Thousand and Two Hundred Only) as against Rs.1,79,200/- with interest @ 6% per annum.
(iii) The respondent No.2-insurance company is directed to pay the compensation amount with interest @ 6% p.a., within six weeks from the date of receipt of the copy of this Order.
(iv) Office is directed to transmit the amount in deposit, if any, to the Tribunal forthwith.
JUDGE Kmv/-