Sri M Manjunatha Vs Mr Ramakrishna K

SRI M MANJUNATHA S/O LATE MUNIYAPPA AGED ABOUT 46 YEARS, RESIDING AT NO.3, MANCHENAHALLI VILLAGE GOWRIBIDANUR TALUK, CHIKKABALLAPURA DISTRICT PIN-561211

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…APPELLANT

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(BY SRI. HARISH BABU K N, ADVOCATE)

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AND:

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Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA

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MR RAMAKRISHNA K S/O KADIRAPPA KADIRENAHALLI VILLAGE PAPATHIMMANAHALLI POST, CHINTAMANI TALUK KOLAR DISTRICT-563125

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THE REGIONAL MANAGER REGIONAL OFFICE, UNITED INDIA INSURANCE COMPANY LTD 6TH FLOOR, KRISHI BHAVAN, NEAR HUDSON CIRCLE NRUPATHUNGA ROAD BENGALURU-560 001

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…RESPONDENTS

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(BY SRI. MOHAN KUMAR T, ADVOCATE FOR R2 R1 IS SERVED AND UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.10.2018 PASSED IN MVC

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NC: 2025:KHC:25656 MFA No. 9859 of 2018

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HC-KAR

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NO.7239/2016 ON THE FILE OF THE XVI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT, BENGALURU (SCCH-14), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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The above appeal is filed by the claimant under Section 173(1) of the Motor Vehicles Act, 1988¹ challenging the judgment and award dated 22.10.2018 passed in MVC No.7239/2016 by the Member, MACT., XVI Addl. Judge, Court of Small Causes, Bangalore² seeking for enhancement of compensation.

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The Tribunal by its judgment and award dated 22.10.2018 partly allowed the claim petition and awarded a total compensation of `2,14,000/- together with interest 7% per annum. Being aggrieved, the claimant has filed the above appeal assailing the finding of the Tribunal regarding liability as also seeking for enhancement of compensation.

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1 Hereinafter referred as to ‘Act’

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2 Hereinafter referred to as the ‘Tribunal’

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HC-KAR

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Heard the submissions of learned counsel

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Sri Harish Babu appearing for appellant/claimant and Sri Mohan Kumar T., appearing for the respondent No.2/insurer. Perused the records including the records of the Tribunal.

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The submissions of the learned counsels have been considered and the material on record including the records of the Tribunal have been perused. The questions that arise for consideration are that:

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i) Whether the finding of the Tribunal fastening the liability on the owner of the vehicle is erroneous and liable to be interfered with?

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ii) Whether the quantum of compensation awarded by the Tribunal is just and proper?

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Re: Question No.(i):

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The Tribunal has awarded compensation of `2,14,000/-.

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However, the Tribunal has exonerated the insurer from payment of the compensation awarded and directed that the compensation should be paid by the owner of the vehicle. Learned counsel for the appellant/claimants assailing the finding of the Tribunal on liability and contends that the Tribunal has recorded a finding that the insured vehicle did not have a permit as on the date of the accident. However, having

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regard to the judgment of the Hon’ble Supreme Court in the case of Amrith Paul Singh v. TATA AIG General

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Ins.Co.Ltd. ,³ the insurer is liable to pay the compensation awarded with liberty to recover the same from the owner of the vehicle.

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Learned counsel for the insurer justifies the finding recorded by the Tribunal on liability.

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The Tribunal while considering the contentions of the insurer that there is violation of the permit, noticing the testimony of RW.1 and Ex.R3 has recorded a finding that the permit of the injured bus was in force from 17.9.2010 to 16.09.2015 whereas the accident occurred on 18.08.2016. Hence, the Tribunal has held that the insurer is not liable to pay the compensation.

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As rightly contended by the learned counsel for the claimant having regard to the judgment of the Hon’ble Supreme Court in the case of Amrith Paul Singh⁴ , in the absence of permit, the insurer is liable to pay the compensation awarded with liberty to recover the same from the owner of

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3 (2018) 7 SCC 558

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the vehicle. Hence, the finding of the Tribunal exonerating the insurer from payment of compensation is erroneous and liable to be interfered with. Accordingly, it is held that the insurer is liable to pay the compensation awarded with liberty to recover the same from the owner of the vehicle. Hence, question No(i) is answered partly in the affirmative.

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Re: Question No.(ii)

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It is forthcoming that the claimant was aged 44 years as on the date of the accident. He was working as a Police Constable at the time of the accident. The claimant sustained crush injury of the left foot as is forthcoming from the wound certificate (Ex.P5). It is further forthcoming from the discharge summaries (Exs.P10, 11 and 12) as well as the other medical records that the claimant was treated as an inpatient on various dates for a period of 28 days. The claimant has produced five certificates (Ex.P9 series) to indicate the number of days that he has taken leave. It is forthcoming from the same that he has availed initially medical leave and thereafter, Earned Leave⁴ for a total period of 204 days. The Tribunal has

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4 Hereinafter referred to as the ‘EL’

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recorded that PW.1 in his cross examination has admitted that for the EL period the salary has been deposited to his account. However, the Tribunal has further recorded that the claimant has the right to surrender the said leave and encash it. Hence, the Tribunal has recorded a finding that two months salary is to be paid to the claimant as loss of income during the period of treatment. Having regard to the fact that the Tribunal has specifically noticed that the EL could have been surrendered and encashed by the claimant, the Tribunal ought to have awarded compensation towards loss of income for the entire period of 204 days. The salary slip (Ex.P16) discloses that the gross salary of the claimant was 28,015/-. Professional Tax of 200/- is to be deducted. Hence, net salary of the claimant is 27,815/-. No income tax is deducted in his salary. Hence, no deduction in that regard is necessary. Having regard to the income of the claimant, the loss of income for 204 days is assessed as 1,89,108/-.

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The Doctor (PW2) has deposed regarding the injuries sustained by the claimant and the treatment undergone. PW.2 has stated regarding the various procedures that the claimant

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HC-KAR

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has undergone, three times the claimant was treated as an inpatient and it is clear that the claimant has undergone five surgeries. It is further evident from the testimony of PW.2 that to avoid amputation of the left lower limb, skin grafting over the entire dorsum and lateral aspect of the left foot was done. PW.2 also deposed that left foot is disfigured with tingling and numbness; left toes of the of the forefoot are stiff; there is power loss in the left toes; that claimant needs compression garments and constant care to prevent dryness and skin breakdown; that x-rays show degeneration and reduction of left foot lateral joint space (lack of blood supply). It is also noticed that due to skin grafting there is constant numbness and itching and that the claimant is unable to wear shoe; that the claimant has been assigned light work. PW2 has assessed the lower limb disability at 59% and whole body disability at 20%. PW.2 has further deposed that the claimant needs specialized soft footwear which will costs about `10,000/- per year as also stockings for the left lower limb.

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The Tribunal has rightly noticed that the claimant has continued in his job as a Police Constable and has not been

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awarded any compensation towards loss of future earning capacity/disability. However, the aspects deposed to by PW.2 are required to be taken into account while assessing the loss of amenities. In view of the aforementioned, the compensation is re-assessed as follows:

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11.1 Having regard to the fact that the claimant has undergone five surgeries, the compensation towards pain and suffering is re-assessed as 75,000/- as against 40,000/awarded by the Tribunal;

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11.2 Having regard to the nature of injuries sustained and the period of treatment, the compensation towards food, nourishment and attendant charges is re-assessed as 30,000/as against 25,000/- awarded by the Tribunal;

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11.3 The medical expenses of `57,000/- awarded by the Tribunal is just and proper;

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11.4 Having regard to what is stated in para No.9 hereinabove, the loss of income is re-assessed as 1,89,108/- as against 42,000/- awarded by the Tribunal;

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HC-KAR

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11.5 Having regard to the discussions made at para No.10 above, the compensation towards loss of amenities is reassessed as 75,000/- as against 40,000/- awarded by the Tribunal;

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11.6 PW.2 has specifically deposed regarding future medical expenses to be incurred. Keeping in mind the same, the future medical expenses is re-assessed as 20,000/- as against 10,000/- awarded by the Tribunal.

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In view of the aforementioned, the compensation is re-

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assessed as follows:

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Sl.No	Compensation Head	Amount Awarded by the Tribunal(`)	Amount awarded by this Court (`)
1	Pain and suffering	40,000.00	75,000.00
2	Food and nourishment, conveyance and attendant charges	25,000.00	30,000.00
3	Medical expenses	57,000.00	57,000.00
4	Loss of income during the period of treatment	42,000.00	1,89,108.00
5	Loss of future earnings	00
6	Loss of amenities	40,000.00	75,000.00
7	Future medical expenses	10,000.00	20,000.00
	Total	2,14,000.00	4,46,108.00

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Accordingly, the claimant is entitled to enhanced compensation of (4,46,108/- – 2,14,000/-) `2,32,108/-.

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HC-KAR

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Hence, question No.2 is answered in the affirmative.

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In view of the aforementioned, 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 22.10.2018 passed in MVC No.7239/2016 by the Member, MACT., XVI Addl. Judge, Court of Small Causes, Bangalore is hereby modified to the extent ordered herein. In all other respects, the judgment and award of the Tribunal remains unaltered;

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iii) The appellant/claimant is entitled to a total compensation of `4,46,108/- together with interest at 7% per annum from the date of petition till its realization;

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iv) Respondent No.2 – insurer is liable to pay the compensation awarded by the Tribunal with liberty to recover the same from the owner of the vehicle ( Respondent No.1);

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