1 IN THE HIGH COURT OF KARNATAKA GULBARGA BENCH DATED THIS THE 09TH DAY OF OCTOBER 2013 BEFORE THE HON'BLE MRS.JUSTICE B.S.INDRAKALA [CASE NUMBER] C/W MFA CROB No.1058/2012 (MV) IN [CASE NUMBER] BETWEEN: The [ENTITY], Now represented by National Insurance Co. Ltd. Divisional Office Gulbarga Through Administrative Officer Appellant (By Smt. [ENTITY], Advocate) AND: 1. [ENTITY] S/o Sangappa Uppe Age: 41 years, Occ: Business & Agri. R/o Aurad (B), Dist. Bidar 2. [ENTITY] S/o Gundappa Yedve Age: 28 years, Occ: Business R/o Ragagalli, Aurad (B), Dist. Bidar Respondents (Sri. [ENTITY], Adv. for R1; R2 is served) 2 This MFA is filed under Section 173(1) of MV Act, against the judgment and award dated 04.09.2008 passed in MVC No.253/2005 on the file of the Prl. Civil Judge (Sr.Dn.) & MACT-II, Bidar, awarding a compensation of Rs.11,38,600/- with interest at the rate of 6% P.A. IN MFA CROB No.1058/2012 BETWEEN: [ENTITY] S/o Sangappa Uppe Aged 45 years, Occ: Business & Agril. R/o Aurad (B), Dist. Bidar - 585 401 Cross Objector (By Sri [ENTITY], Adv.) AND: 1. [ENTITY] S/o Gundappa Yedve Age: 32 years, Occ: Business R/o Ragagalli, Aurad (B) Dist. Bidar - 585 401 2. The [ENTITY] Now represented by National Insurance Co. Ltd. Divisional Office, Gulbarga Through Administrative Officer Respondents (Smt. [ENTITY], Adv. for R2) This MFA Crob is filed under Order 41 Rule 22 of CPC against the judgment and award dated 04.09.2008 passed in MVC No.253/2005 on the file of the Prl. Civil Judge (Sr.Dn.) & MACT-II, Bidar, partly allowing the claim petition and seeking enhancement of compensation. 3 These appeal and cross objection coming on for dictating judgment this day, the Court delivered the following: JUDGMENT
Respondent No.2-insurer in MVC No.253/2005 on the file of the Principal Civil Judge (Sr. Dn.) & MACT-II, Bidar has preferred the appeal in [CASE NUMBER] against the judgment and award dated 04.09.2008 passed therein, while the claimant in the said case has preferred the cross objection No.1058/2012 in the said appeal.
2. The brief facts of the case leading to filing of both the appeal as well as cross objection are that on 24.12.2004 while the petitioner along with one [ENTITY] was returning from Hyderabad on the vehicle TVS Victor bearing Reg. No.KA.38.J/564, as a pillion rider which was being ridden by the 1st respondent-the owner of the vehicle and when they were so proceeding on N.H.9 at 1400 hours towards half Kilometer west of the Pathancheru Police Station, as the rider was riding the same in a rash manner he lost control over the vehicle, dashed against a parked autorickshaw which was parked by the side of the road, and caused the accident. In the said accident, the petitioner sustained grievous injuries and he was admitted to Sri. Sai Maternity Surgical Nursing Home, Pathancheru for first aid treatment and thereafter at Apex Hospital, Bidar; subsequently, he was also referred to Hyderabad where he took treatment in a hospital as inpatient and spent Rs.2,00,000/-, despite which, he suffered permanent disability; he is unable to stand, walk or sit etc. In the circumstances, he filed the clam petition seeking compensation towards the same.
3. In the statement of objections filed by the 2nd respondent while denying the cause of accident, the nature of injuries suffered and the disability to which the claimant is exposed, it is specifically pleaded that as the owner of the vehicle had not paid any additional premium the 2nd respondent-insurer is not liable to indemnify the pillion rider.
4. To prove his case, the claimant got examined himself as PW.1, besides, he also examined one of the doctor, who treated him as PW.2 and got marked Exs.P1 to P13. On behalf of the respondents, no evidence was adduced.
5. On considering the evidence so let in by the claimant, the Tribunal deemed it fit to award a sum of Rs.11,38,600/- with interest at the rate of 6% p.a. from the date of petition till realisation and held that the 2nd respondent - insurer is liable to indemnify the owner of the vehicle.
6. Aggrieved by the said passing of the award and fixing of the liability on the 2nd respondent-insurer, the insurer has preferred the [CASE NUMBER] interalia contending amongst other grounds that the risk of the pillion rider is not covered under the policy, the income of the injured assessed at Rs.6,000/- per month is on the higher side, the loss of future earning assessed at Rs.9,07,200/- is also exorbitant etc., and has sought allowing of the appeal.
7. Learned counsel appearing for the appellant- insurer in [CASE NUMBER] submitted that the amount awarded is in excess of what was claimed in the claim petition, inasmuch as in the claim petition, the claimant sought awarding of only Rs.6,00,000/-, but, the award is passed to an extent of Rs.11,38,600/-. Further she submitted that as additional premium was not paid, the pillion rider is not covered under the policy. Further she also submitted that though the claimant has not adduced any evidence in proof of the income said to have been derived by him from running provisional store, the Tribunal erred in calculating the income at Rs.200/- per day / 6,000/- per month and the same is taken into consideration only on presumption which is not proper.
8. Per contra, the learned counsel appearing for the claimant/respondent No.1 herein submitted that though the claimant sought only Rs.6,00,000/- in the claim petition, considering the circumstances of the case, there is no bar either on the Tribunal or on this Court to award excess of the one which was sought by the claimant at its discretion. In that regard, he relied upon the decision reported in AIR 2012 SC (Civil) 236 (Sanjay Batham v. Munnalal Parihar and Ors.) wherein at paragraph No.17 it is observed as hereunder:
"17. It is true that in the petition filed by him under [SECTION] of the Act, the appellant had claimed compensation of Rs.4,20,000/- only, but as held in Nagappa v. Gurudayal Singh (2003) 2 SCC 274: (AIR 2003 SC 674), in the absence of any bar in the Act, the Tribunal and for that reason any competent Court is entitled to ward higher compensation to the victim of an accident."
9. Admittedly, the vehicle was covered with package policy in other words a comprehensive policy and in the circumstances, the risk of the pillion rider of the vehicle is covered irrespective of whether the additional premium is paid or otherwise. In that regard, he has relied upon the decision reported in ILR 2007 KAR 5307 (Bajaj Allianz General Insurance Company Limited vs B.M.Niranjan and Another).
10. With regard to the other submission of the learned counsel for the appellant-insurer that there is a delay in lodging the FIR, the learned counsel appearing for the claimant/respondent No.1 submitted that irrespective of whether there is delay or not, the accused is convicted in the criminal case. In the circumstances, the delay is immaterial, besides, for preferring the clam petition, the delay in lodging the FIR cannot be a bar.
11. In MFA Crob No.1058/2012 preferred by the claimant, amongst other contentions it is contended that while awarding the compensation, the Tribunal has failed to award any amount towards incidental expenditure during the period of treatment and future medical expenses, though the claimant is totally incapacitated.
12. In view of the submissions made, the points that arise for consideration are:
(1) Whether the impugned judgment and award dated 04.09.2008 passed in MVC No.253/2005 on the file of the Prl. Civil Judge (Sr. Dn.) & MACT-II, Bidar are liable to be modified?
(2) What Order?
13. Though the insured preferred the above appeal the there is also cross objection filed the cause of accident as well as the claimant suffering certain injuries in the said accident are not in dispute.
14. With regard to the liability of the Insurance Company to indemnify the owner of the motor bike with regard to the risk of the pillion rider, it is seen that the Insurance Regulatory and Development Authority vide its notification dated November 16 2009 has clearly mentioned that as per the circulars issued by the Tariff Advisory Committee vide Circular bearing No.MOT/GEN/10 dated 2nd June 1986, the pillion rider of a two wheeler is entitled to be compensated and the risk is covered under the policy. Further in the said circular it is also classified that the same is made effective from the date of circular namely, 02.06.1986. In the circumstances, the contention of the learned counsel for the appellant-insurer in [CASE NUMBER] that the pillion rider is not covered under the policy is not proper and more so, when it is a package policy (comprehensive policy). Thus, the appellant-insurer is liable to indemnify the owner of the motor bike for the risk of the pillion rider.
15. With regard to awarding of more compensation than what is claimed in the claim petition, as contended too by the learned counsel for the claimant and also as per the decision relied upon by him, there is no bar to award excess compensation than what is claimed in the claim petition if the circumstance warrants the same.
16. With regard to quantum of compensation awarded it is seen that the Tribunal by considering the evidence of the claimant as well as PW.2, the Medical Officer who treated the claimant deemed it fit to consider the percentage of disability at 90%. In that regard it is seen that PW.2 has deposed that the claimant was admitted in Udaya Clinic on 26.12.2004; the accident occurred on 24.12.2004; the claimant was operated on 29.12.2004; the claimant suffered fracture of L1 vertebra with Paraplegia; his post operative period was unevenful and he was discharged on 08.01.2005. Further he has deposed that the claimant was re- admitted on 23.02.2005 and discharged on 24.02.2005 and lastly he had seen the patient on 29.03.2008. After examination he issued disability certificate stating that there was 90% disability and he needs intensive rehabilitation. Further he also deposed that the approximate cost of which would be Rs.1,00,000/- to Rs.1,50,000/- and the paralysis that the claimant sustained is secondary to his injury and he had no control over his urine or motion, he can not have normal sexual function, he cannot undertake any work that involves significant physical activity, he requires the presence of attendant for 24 hours.
17. Further the claimant was also brought on wheel chair before this Court and on seeing him it is held that the evidence of PW.2 with regard to condition of the claimant is not exaggerated version.
18. Further on perusal of the impugned judgment it is seen that even before the Tribunal such an observation of the claimant was made and considering the totality of the evidence so let in, the Tribunal has held that the claimant suffered disability to an extent of 90%.
19. With regard to the income of the injured, the Tribunal has taken into consideration the licence issued to the claimant to run a Kirana shop/provisional store marked as Ex.P8. In the circumstances, the Tribunal has taken the income of the claimant at Rs.200/- per day. Further it is seen that the said licence was obtained in the year 2004 and it was valid from 01.04.2004 to 31.03.2005 and as such it cannot be said that the said licence was concocted one for the purpose of this case. In the circumstances, the assessment of the income of the claimant at Rs.200/- per day is proper.
20. Thus, considering the age of the claimant as 38 years by applying the multiplier of '15' as per the [PRECEDENT]'s case reported in 2009 ACJ 1298, for 90% disability, the claimant is entitled for Rs.9,72,000 (Rs.5,400x12x15).
21. Considering the nature of injuries suffered, the Tribunal awarded Rs.60,000/- towards pain and agony which is proper; likewise considering the medical bills marked as Ex.P13, the Tribunal awarded a sum of Rs.41,400/- towards medical expenses which is also proper. The Tribunal has also awarded a sum of Rs.50,000/- towards attendant charges and Rs.80,000/- towards loss of amenities of life which are also proper.
22. The Tribunal has failed to award any amount towards loss of income during the period of treatment and it s reasonable to award the same for a period of 6 months at Rs.6,000/- i.e., Rs.6,000x6=36,000/-. Further, the Tribunal also failed to award any amount towards incidental expenses incurred during the said period of treatment and it is reasonable to award a sum of Rs.25,000/- towards such expenditure. PW.2 who treated and assessed the disability of the claimant has deposed that for further treatment, a sum of Rs.1,00,000/- to Rs.1,50,000/- is required. Considering the said evidence of PW.2 it is reasonable to award Rs.1,00,000/- towards said future treatment/intensive rehabilitation.
23. Thus, in all the claimant is entitled to be compensated as under:
Towards pan and suffering Rs. 60,000-00 Towards Medical expenses Rs. 41,400-00 Towards attendant charges Rs. 50,000-00 Towards loss of amenities of life Rs. 80,000-00 Towards loss of income on Account of disability Rs. 9,72,000-00 Towards loss of income during the period of treatment for a period of 6 months (6,000x6) Rs. 36,000-00 Towards incidental expenditure During the period of treatment Rs. 25,000-00 Towards future medical expenses/rehabilitation Rs.1,00,000-00
Total Rs.13,64,400-00 Accordingly, the impugned Judgment and Award are liable to be modified. Hence, the following:
ORDER
i) MFA Crob No.1058/2012 filed by the claimant is allowed in part modifying the Judgment and Award passed in MVC No.253/2005 dated 04.09.2008 on the file of the Prl. Civil Judge (Sr.Dn.) & MACT-II Bidar, enhancing the compensation to Rs.13,64,400/- with interest at 6% p.a. from the date of petition till realisation as against Rs.11,38,600/- awarded by the Tribunal. However the claimant is not entitled for interest for the delayed period of 1236 days.
ii) It is made clear that Rs.1,00,000/- awarded towards future medical expenses does not carry any interest.
iii) Respondent No.2 - Insurance Company in the cross objection is directed to deposit the amount so awarded within 4 weeks from the date of receipt of copy of this order.
iv) Out of the enhanced amount of Rs.2,25,800/-, a sum of Rs.1,50,000 with proportionate interest shall be invested in fixed deposit in any of the Nationalised Bank of the choice of the claimant for a period of 10 years with liberty to withdraw 50% of the periodical interest as and when the same accrues on such deposit. The balance of 50% of the interest is payable on the maturity.
v) The balance amount of compensation with interest shall be released in favour of the claimant for his day today necessities. Office to draw the award accordingly.
[CASE NUMBER] filed by the insurer is hereby dismissed.
The amount in deposit is ordered to be transmitted to the jurisdictional Tribunal namely, the Prl. Civil Judge (Sr.Dn.) & MACT-II, Bidar for disbursement.
JUDGE LG