Sri.Venkatesh Vs the Manager

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:7.11.2013 PASSED IN MVC NO.3010/2008 ON THE FILE OF THE VI ADDL.SMALL CAUSES JUDGE & XXXI ACMM, MACT, (SCCH-2), BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This is the claimant's appeal seeking enhancement of the compensation against the judgment and award dated 07.11.2013, passed by the VI Additional Small Causes Judge and XXXI ACM, Bengaluru City (SCCH-2) in MVC No.3010/2008 (for short 'the Tribunal') .

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The parties are referred to as per their ranking before the Tribunal.

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HC-KAR

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The brief fact of the case are that on

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11.06.2007, around 4.30 p.m., the petitioner was driving an auto rickshaw bearing registration No.KA-11-4277 from Bellur town to Kadagahalli on the left side of NH-48 near Thittanahosahalli Gate. At that time, the driver of Toyota Qualis car bearing No.KA-13-6714 drove it in a rash and negligent manner and hit the auto rickshaw, as a result, the petitioner as well as some of the passengers of autorickshaw fell down on the road and sustained multiple injuries. Two passengers succumbed to the injuries in the said accident.

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As per the medical records, appellant has sustained

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the following injuries:

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i. Type-II compound fracture both bones right forearm.

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ii. Fracture of left humerus mid 1/3^rd with radial nerve palsy.

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iii. Fracture mid 1/3 right femur; iv. Fracture mid and lower 1/3 junction left femur; v. Undisplaced fracture left fibula at mid 1/3.

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vi. Fracture ulnar styloid process of left hand.

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HC-KAR

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He had taken treatment as in-patient from 11.06.2007 to 05.08.2007. With these reasons, prayed to award the compensation.

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Respondent No.1 is insurer and Respondent Nos.2 and 3 are the owner of the car bearing registration No.KA-136714 and they did not appear before the Tribunal. Learned counsel for the appellant submits that since they were placed ex-parte before the Tribunal and hence in the present appeal notice was dispensed with. Respondent No.1, the insurer of the offending vehicle appeared before the Tribunal and denied the contentions of the claim petitioner and also denied its liability to pay the compensation. On these grounds, prayed to dismiss the claim petition.

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From the rival contentions of the parties, the Tribunal framed necessary issues.

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The claimant to prove his contention examined four witnesses as PWs-1 to 4 and marked documents as Ex.P1 to P22. Respondent No.1 examined one witness as RW.1 and marked 7 documents as Exs.R1 to R7.

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HC-KAR

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The Tribunal after hearing both the parties and considering the evidence answered the issues accordingly and held that the accident occurred due to contributory negligence of driver of the offending car as well as auto rickshaw and apportioned negligence in the ratio of 70:30 respectively. The Tribunal held that the claimant sustained the fractures mentioned in the medical records as well as on the basis of evidence of PWs.1 and 2. It has observed that the claimant was suffering from permanent disability to an extent of 25% to whole body. The Tribunal accepted the claimant's monthly income as Rs.3,000/- and applied the multiplier as '18' and awarded the compensation. The Tribunal further held that the driver of the offending car was not holding valid and effective driving license and therefore respondent Nos.2 and 3 are liable to pay the compensation. Being aggrieved by the said findings, the claimant preferred this appeal for enhancement of compensation amount as well as to make reapondent no.1 liable to pay the compensation.

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Heard the arguments.

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The following questions arises for my determination:

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HC-KAR

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i. Whether the claimant is entitled for enhancement of compensation?

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ii. Whether the finding of the Tribunal exonerating respondent No.1-insurer from its liability to pay the compensation is justifiable?

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iii. What Order?

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Point No.1 : PW-1 is the claim petitioner. In his evidence, he has reiterated the averments of the claim petition. He also examined PW-2 to prove his disability. According to him, the claimant has suffered disability of 45% to the whole body. PW-3, is the custodian of records of Victoria Hospital, Bengaluru; and he produced medical records that were marked. PW-4 is the ARTO, was examined to prove the driving license of the driver of the offending car. on behalf of claimants, the documents pertaining the charge sheet and its enclosures were marked.

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The said evidence was placed on record to prove that claimant had sustained injuries. The said injuries sustained by the claimant were denied in the cross-examination but nothing was elicited to disbelieve the same. He had sustained fracture of femur of both the legs, left fibula, both the bones of right

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HC-KAR

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forearm, fracture of left humerus. Considering evidence of PWs-1 and 2, permanent disability assessed by the Tribunal is on the lower side. On re-appreciating evidence the permanent disability is assessed as 30% to the whole body. It is true that there are no reliable materials placed on record to believe that claimant was earning Rs.60,000/-. Therefore, notional income of the claimant is assessed as Rs.4,000/- per month. Undisputedly, the multiplier applicable in this case is 18 since the age of the claimant was 24 years. The petitioner in his evidence, has stated that he was not married at the time of accident. Due to fracture of both the upper and lower limbs, his marriage prospects has seriously been affected. Considering the same, he is entitled to compensation for the adverse impact on his marriage prospects. Considering the contentions of the appellant, the amount of compensation awarded to the claimant is on the lower side, which requires enhancement.

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14. Accordingly, the following amount of compensation is

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awarded:

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SL.NO	PARTICULARS		AMOUNT IN RS.
1.	Pain and sufferings		1,00,000
2.	Medical expenses, attendant, nourishment, conveyance etc.,	food,	2,60,000

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HC-KAR

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3.	Loss of income during the laid up period	24,000
4.	Loss of future earning capacity due to Permanent disability 4000x18x30%	2,59,200
5.	Loss of amenities and future Unhappiness	75,000
6.	Marriage prospects	50,000
7.	Future medical expenses	1,00,000
	Total	Rs.8,68,200/-
	30% contributory negligence	Rs.2,60,460/-
	Total	Rs.6,07,740/-
	Amount awarded by Tribunal after deducti 30% of contributory negligence	Rs.4,13,000/- _____________
	Enhancement Rounded off to	Rs.1,94,740/- Rs.1,95,000/-

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Claimant is entitled for interest on the enhanced amount @

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6% per annum.

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The Tribunal after appreciating the evidence on record rightly held that the accident had taken place due to the contributory negligence of the driver of the claimant, who was driving autorickshaw to an extent of 30%. The claimant contended that he had a driving license but the same was not placed on record. According to the charge sheet, which was produced by him, there were 12 passengers in the autorickshaw. In his cross-examination, he pleaded ignorance about the presence of said passengers. This clearly indicates that he was

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HC-KAR

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lying before the Court. Considering these facts, the Tribunal rightly held that he was also negligent in causing the accident in question. It does not call for any interference by this Court. For the above said discussion, point No.1 is answered partly in the affirmative.

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Point No.2 - The Tribunal in the impugned judgment held that the driver of the offending vehicle was not holding valid and effective driving license. Undisputedly, the driver of the offending vehicle was holding LMV, non-transport license and he was said to be driving commercial vehicle. Therefore, the Tribunal held that driver of the offending vehicle was not holding valid and effective license and hence, exonerated the liability of insurer and directed the owner of the vehicle to pay the compensation. In the case of Mukund Dewangan vs.Oriental Insurance Co., Ltd¹ , it was held that even driver authorized to drive light motor non-transport vehicle can also drive LMV transport vehicle without endorsement and it does not amount to violation of rules. The Insurance company cannot disown its

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1 (2017) 14 SCC 663

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HC-KAR

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liability on that ground. Principle of the said judgment is applicable to the facts of present case. It is not in dispute that the policy was in force as on the date of the accident. Therefore, respondent No.1, 2 and 3 are jointly and severally liable to pay the compensation. Respondent No.1 being the insurer shall indemnify respondent Nos.2 and 3 and pay compensation. Accordingly, point No.2 is answered in the 'affirmative'.

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For the reasons discussed above, I proceed 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 impugned judgment and award dated 07.11.2013 passed by the VI Additional Judge and MACT, Bengaluru city (SCCH-2), in MVC.No.3010/2008 is modified.

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iii. The claimant is entitled to enhancement of Rs.1,95,000/- with interest @ 6% per annum from the date of the petition till its realization.

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