Smt. Jayamma Vs Syed Falauddin

THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:17.04.2018 PASSED IN MVC NO.792/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, MEMBER, MACT, ARKALGUD, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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NC: 2025:KHC:9302 MFA No. 8662 of 2018

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THIS APPEAL, COMING ON FOR ‘DISMISSAL’, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL JUDGMENT

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The present appeal is filed aggrieved by the order passed in M.V.C.No.792/2014 dated 17.04.2018 by the Senior Civil Judge and Member MACT, at Arakalgud, whereby the Tribunal had granted compensation of an amount of Rs.2,15,060/- to the claimant and fixed the liability on the owner of the vehicle.

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The facts of the case are that on 14.01.2014 at 7:00 p.m. when the claimant was going from Arakalgud to her house by walk near R.M.C. Yard, H.N.Pura road, the rider of Discover motor bike came from Arakalgud in a rash and negligent manner and dashed against her from the back side causing the accident. Immediately, she was shifted to Government Hospital, Arakalgud and was referred to Hemavathi Hospital, Hassan. The right radius and left tibia and fibula bones got fractured. Many operations were conducted by

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the doctor and on the advice of doctor, she was discharged and she is still under treatment. The claimant has spent an amount of Rs.80,000/- towards medical expenses. Due to the accident,

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she is unable to work. Hence, the claimant has filed the petition seeking compensation of an amount of Rs.8,00,000/-.

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When it comes to the negligence, the Tribunal has given a finding that the accident has happened because of the rash and negligent driving of the driver of the offending vehicle. When it comes to the compensation and the liability of the Insurance Company, it is the case of the claimant that she was working as a coolie and was earning an amount of Rs.10,000/per month. The Tribunal had taken the income of the claimant at Rs.4,500/- per month and considering the evidence of the doctor with regard to the disability to the limb, the Court had taken 13% as disability to the whole body and granted compensation as per the table given below:

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	Heads	Co	mpensation Awarded
1.	Pain and agony	: Rs.	40,000/-
2.	Medical expenses	: Rs.	63,800/-
3.	Food, conveyance and attendant charges	: Rs.	5,000/-
4.	Loss of future income due to disability	: Rs.	91,260/-
5.	Loss of income during laid up period	: Rs.	5,000/-
6.	Loss of future amenities	: Rs.	10,000/-
	TOTAL	: Rs.	2,15,060/-

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When it comes to the liability, the Tribunal had held that the driver of the offending vehicle had obtained Learner's License and at the time of the accident, he was alone riding the said bike and hence violated Rule 3 of Central Motor Vehicles Rules. Hence, the Insurance Company is not liable to pay the compensation.

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Learned counsel appearing for the appellant/claimant is before this Court questioning the aspect of liability as well as seeking enhancement of the compensation. On the aspect of liability, it is stated that though the driver of the offending vehicle is not having a valid driving license as on the date of the accident and the appellant is third party to the policy, as such in the light of the law laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Swaran Singh And Others1, the principal of pay and recover will apply to this case.

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Then coming to the aspect of enhancement, it is submitted that the accident had taken place in the year 2014, the Court ought to have taken the income of the claimant at

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1 (2004) 3 SCC 297

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Rs.8,500/- per month, but the Court had taken the income at Rs.4,500/- per month. He submits that even towards loss of future income, loss of amenities, food, conveyance and attendant charges, the Court had granted compensation which is not reasonable and on the lower side and the same needs to be enhanced.

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Learned counsel appearing for the respondent/ Insurance Company submits that the Tribunal had rightly fixed the liability on the driver as he was not having a valid driving license to drive the vehicle. It is submitted that when there is no evidence to show that the claimant was earning an amount of Rs.10,000/- per month, the Tribunal had rightly taken the income at an amount of Rs.4,500/- per month and even on all other counts, the amount that is granted is reasonable and there is no interference called for the well considered order passed by the Tribunal.

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Having heard the learned counsels on either side, perused the entire material on record. The first aspect as far as the liability is concerned is that though the driver of the offending vehicle was not having a valid driving license, in the

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light of the settled law in Swaran Singh's case stated supra, the Insurance Company is liable to pay the compensation and recover the same from the owner of the vehicle. In view of the same, the Insurance Company shall pay the compensation to the claimant and recover the same from the owner of the vehicle.

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Coming to the aspect of enhancement of the compensation, under the head of pain and agony and medical expenses, the Tribunal had granted reasonable amounts. When it comes to food, conveyance and attendant charges, the claimant was admitted in the hospital for 11 days and the Tribunal had granted only an amount of Rs.5,000/-. Hence, this

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Court is granting an amount of Rs.11,000/- towards food, conveyance and attendant charges. As the accident had taken place in the year 2014, considering the income at Rs.4,500/per month is on the lower side and this Court is considering the income at Rs.8,500/- per month. Considering the disability of 13% to the whole body and applying the multiplier of 13, loss of future income due to disability would come to Rs.8,500x12x13x13/100 = Rs.1,72,380/-. Coming to the loss of income during the laid up period, considering the injuries

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and as the income is considered at Rs.8,500/- per month, for two months, it will come to Rs.8,500x2 i.e., an amount of Rs.17,000/- towards loss of income during the laid up period. Towards loss of future amenities, the Tribunal had granted an amount of Rs.10,000/- and considering the occupation and disability, this Court is granting an amount of Rs.15,000/towards loss of future amenities.

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In the light of the law laid down by the Hon'ble Supreme Court in the case of V.MEKALA vs. M. MALATHI AND ANOTHER² , the claimant is entitled for an amount of Rs.10,000/- towards Legal Expenses .

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The claimant is therefore, entitled to the

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compensation under the following heads:

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	Heads		Com Aw T	pensation arded by ribunal	Compensation Awarded by this Court
1.	Pain and agony	:	Rs.	40,000/-	40,000/-
2.	Medical Expenses	:	Rs.	63,800/-	63,800/-
3.	Food, conveyance and attendant charges	:	Rs.	5,000/-	11,000/-
4.	Loss of future income due to disability (Rs.8,500x12x13x13/100)	:	Rs.	91,260/-	1,72,380/-

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2 (2014) 11 SCC 178

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4.	Loss of income during laid up period	:	Rs.	5,000/-	17,000/-
5.	Loss of future amenities	:	Rs.	10,000/-	15,000/-
6.	Legal Expenses	:	Rs.	00/-	10,000/-
	TOTAL	:	Rs.	2,15,060/-	3,29,180/-
	Enhancement	:	Rs.	1,14,	120/-

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Altogether, the claimant is entitled for an amount of Rs.3,29,180/-. Hence, this Court is passing the following order:

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ORDER

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i. Accordingly, the appeal of the claimant is partly allowed enhancing the compensation from an amount of Rs.2,15,060/- to Rs.3,29,180/- .

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ii. The Insurance Company shall pay the compensation to the claimant and recover the same from the owner of the vehicle.

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iii. The enhanced amount shall carry interest at 6% per annum from the date of petition till the date of realization.

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iv. The respondent No.2 - insurance company shall deposit the amount within a period of eight weeks from the date of receipt of copy of the judgment. On such deposit, the claimant is

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entitled to withdraw the entire amount without furnishing any security.

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v. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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vi. No costs.

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vii. Pending miscellaneous petitions, if any, shall stand closed.

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SD/(LALITHA KANNEGANTI) JUDGE

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MEG List No.: 1 Sl No.: 6

Smt. Jayamma v. Syed Falauddin

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Smt. Jayamma v. Syed Falauddin

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