Sri Srinivasa K a Vs Sri Ragavendra P

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.02.2018 PASSED IN MVC NO.3780/2012 ON THE FILE OF THE 7TH ADDITIONAL SMALL CAUSE JUDGE & 32ND ACMM, MEMBER, MACT-3, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE T.M.NADAF

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ORAL JUDGMENT

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This appeal is by the appellant/claimant seeking for enhancement of compensation arising out of judgment and award dated 15.02.2018, in MVC No.3780/2012, passed by the MACT, Court of Small Causes, Bengaluru (VII Addl. Senior Civil Judge and XXXII ACMM, Bengaluru (for short ‘Tribunal’).

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The date of accident, involvement of the

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vehicle, injury sustained are not in dispute. The only dispute is with the liability and the quantum of compensation awarded by the Tribunal.

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HC-KAR

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Heard Sri.Karthik A. Bhargav, learned counsel

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appearing for the appellant and Sri.H.C. Betsur, learned counsel appearing for the respondent – Insurance Company.

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By order dated 10.6.2025, notice of this appeal on respondent No.1 is held sufficient.

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Sri.Karthik A. Bhargav, learned counsel with all vehemence submits that appellant has suffered closed comminuted fracture of shaft femur (left) and other grievous injuries. The appellant-claimant was treated for a period of 27 days in ESI Hospital. As per Ex.P.1 wound certificate and as well as discharge summaries Ex.P7 to P10, clearly shows that appellant-claimant under went surgeries and has taken treatment earlier in Shreyas Hospital and subsequently admitted in ESI Hospital since he as an employee and having ESI card.

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It is submitted that the appellant-claimant has

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produced the salary certificate issued by the employer,

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HC-KAR

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which goes to show that the appellant-claimant was drawing a sum of Rs.7,900/- as salary as on the date of the accident. The Tribunal disbelieved salary certificate as well as certificate stating that the appellant-claimant was out of work for a period of six months as per Ex.P.14-leave certificate, issued by the employer, on the premise that author of the certificates has not been examined.

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He further submits that as per PW-2-Doctor, appellant-claimant has suffered injuries which has resulted in disability of 36.6% to left lower limb and 18% to the whole body. The doctor was cross-examined by the Insurance Company, however, nothing worthwhile is elucidated to discredit the evidence. The Tribunal considered the same but taken the disability at 12% to the whole body, and the same requires consideration. So also the compensation awarded by the Tribunal under other heads except medical expenses requires re-consideration, and accordingly sought to allow the appeal by enhancing the compensation.

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HC-KAR

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He further submits that the Tribunal has

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fastened entire liability to pay compensation amount on the owner of the vehicle on the premise that there is violation of permit condition. The Tribunal ought to have directed the Insurance Company primarily liable to pay the compensation, with a liberty to recover the same from the owner of the vehicle. In support of his submission, he placed reliance on the decision of the Hon'ble Apex Court in the case of RANI AND OTHERS Vs. NATIONAL

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INSURANCE CO. LTD AND OTHERS.¹

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Having heard learned counsel for the parties,

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perused the material placed on record, the points that arises for consideration of this Court are:

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“Whether the Tribunal is justified in fastening

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the liability on the owner of the vehicle on the premise of violation of the permit condition to the absolute exclusion of the insurer?"

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1 2018 ACJ 2430 , CIVIL APPEAL NOS.9078-9079 OF 2017

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HC-KAR

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"Whether the appellant-claimant has made out a

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case for enhancement of the compensation?”

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My answer to the above points are:

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Point No.1) Negative

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Pont No.2) Partly Affirmative for the following:

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:REASONS:

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The Hon'ble Apex Court in the case of RANI

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AND OTHERS supra, held that the violation of permit condition is not a fundamental breach which would enable the insurance company to seek absolute exoneration, and directed the Insurance Company to pay the amount primarily with a liberty to recover the same from the owner of the offending vehicle.

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In view of the law settled by the Hon'ble Apex Court, the Tribunal fastening the liability on owner of the vehicle in total exoneration of the Insurer from paying the compensation is modified, directing the Insurer primarily to pay the compensation with a liberty to recover the

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HC-KAR

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same from the owner of the vehicle. Accordingly, point

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no.1 is answered in favour of the appellant-claimant.

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Insofar point No.2 is concerned, it is not in dispute that the appellant-claimant has suffered closed comminuted fracture of shaft femur (left) and other grievous injuries. He was working as Supervisor with the Aravind Mills which requires constant attending the supervisory activities in the Mill. In the circumstances, disability taken by the Tribunal at 12% is on the lower side and the same is enhanced to 15% in order to meet ends of justice.

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It is not in dispute that the appellant-claimant has taken treatment in ESI Hospital on the basis of the employment Card which clearly shows that he was an employee of the Aravind Mills. The Tribunal has not considered the same on the premise that the author of the same and the said certificate has not been examined before the Tribunal. The Tribunal has failed to consider that the appellant-claimant has taken treatment in ESI

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HC-KAR

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Hospital a State Government Institution on the basis of the

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card which has been issued in respect of ESI number allotted to employee. In these circumstances, the income stated in the salary at Rs.7,900/- is considered instead of Rs.5,500/- assessed by the Tribunal. In view of document with respect to income at Ex.P.13, the income of the claimant is considered at Rs.7,900/- per month. Though Rs.900/- is in excess to the income fixed under the chart prepared by the Karnataka Legal Services Authority (for short ‘KSLSA’), for the year 2012, at Rs.7,000/- per month.

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Considering the nature of the injuries, duration of treatment, inpatient period, and expenses incurred, this Court finds that the appellant-claimant has made out a case for re-determination of compensation. The Tribunal missed this aspect of the matter while awarding compensation under specific heads.

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HC-KAR

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The claimant was aged 27 years as on the date

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of the accident and the appropriate multiplier applicable is ‘17’. The disability assessed by PW-2 – Doctor is taken at 15% instead 12% by the Tribunal. Therefore, the compensation under the head ‘Loss Of Future Income’ is recalculated and quantified as follows: Rs.7,900/- x 12 x 17 x 15% = Rs. 2,41,740/-.

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In view of the injuries suffered by the appellant-claimant, which are grievous in nature, a sum of Rs.50,000/- is awarded under the head 'Pain and sufferings', against Rs.40,000/- as awarded by the Tribunal.

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The Tribunal has awarded a sum of Rs.6,350/- towards 'Medical Expenses' , which is just and proper and does not call for interference.

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The Tribunal has not awarded compensation particularly under the head 'loss of amenities' , hence a sum of Rs.40,000/- is awarded under the said head.

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HC-KAR

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Towards ‘ Conveyance, Diet And Attendants

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Charges ’ a sum Rs.15,000/- is awarded.

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The appellant-claimant was an inpatient for 27 days in view of the accidental injuries, he would have taken rest at-least for a period of 4 months as injury suffered is to a major bone. Therefore, taking the income at Rs.7,900/- per month and calculating the laid up period for 4 months, the claimant is entitled for a sum of Rs.31,600/- (Rs.7900 X 4months) , under the head 'Loss of Income During Laid Up Period' .

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The Tribunal has awarded a sum of

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Rs.15,000/- towards 'Future Medical Expenses' , which is just and proper and does not call for interference.

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In summary, the total compensation redetermined by this Court under various heads in as follows:

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HC-KAR

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1.	Towards Pain and Sufferings	:	Rs.	50,000/-
2.	Towards Medical Expenses	:	Rs.	6,350/-
3.	Towards conveyance, diet and attendants charges	:	Rs.	15,000/-
4.	Towards income during laid up period (Rs.7,900 X 4=Rs.31,600)	:	Rs.	31,600/-
5.	Towards loss of amenities	:	Rs.	40,000/-
6.	Towards loss of income due to disability (Rs.7,900X12X17X15%=Rs.2,41,740)	:	Rs.	2,41,740/-
7.	Future Medical Expenses	:	Rs.	15,000/-
	TOTAL	:	Rs.	3,99,700/-

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In all the appellant-claimant is entitled for a compensation of Rs.3,99,700/- along with interest 6% per annum from the date of petition till realization as against the compensation of Rs.2,32,490/- awarded by the Tribunal.

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For the foregoing reasons, this Court proceeds

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to pass the following:

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ORDER

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i) The appeal is Allowed-In-Part ;

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ii) The judgment and award dated 15.02.2018, in MVC.No. 3780/2012, passed by the the MACT, Court of Small Causes, Bengaluru (VII Addl. Senior Civil Judge and XXXII ACMM, Bengaluru is modified;

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HC-KAR

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iii) The appellant – claimant is entitled for a redetermined compensation of Rs.3,99,700/- along with interest at 6% per annum from the date of filing of the petition till realization.

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iv) In view of answer to point No.1, the respondent No.2 - Insurance company shall pay the compensation amount primarily with a liberty to recover the same from the owner of the offending vehicle.

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v) The respondent - Insurance Company shall deposit the re-determined compensation along with interest at the rate of 6% per annum from the date of petition till realization, within six weeks from the date of receipt of copy of this order.

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vi) Upon deposit, the entire enhanced compensation with accrued interest be released in favour of appellant on proper identification.

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vii) In the facts and circumstances of the case, no order as to cost.

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Sd/(T.M.NADAF) JUDGE

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HR

Sri Srinivasa K a v. Sri Ragavendra P

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Sri Srinivasa K a v. Sri Ragavendra P

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