Sri. Ningamaraiah Vs Sri. Srikantaiah

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:13.4.2011 PASSED IN MVC NO.5074/2008 ON THE FILE OF XIII ADDITIONAL SMALL CAUSE JUDGE & MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 9252/2011

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BETWEEN:

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UNITED INDIA INSURANCE COMPANY LIMITED, LAKSHMI COMPLEX,

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HC-KAR

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NO.40, K.R. ROAD, BANGALORE - 560 002, REPRESENTED BY THE MANAGER UNITED INDIA INSURANCE COMPANY LIMITED, 5TH AND 6TH FLOORS, KRISHI BHAVAN, HUDSON CIRCLE, BANGALORE - 560 001.

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...APPELLANT

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(BY SRI. A.M. VENKATESH, ADVOCATE)

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AND:

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SHRI. NINGAMARAIAH SON OF LATE SHRI. MALLAIAH DEAD BY LRS

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1(A). SMT. YELLAMMA WIFE OF NINGAMARAIAH AGED ABOUT 42 YEARS

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1(B). SMT. PADMA

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WIFE OF SRI. MANJU DAUGHTER OF NINGAMARAIAH AGED ABOUT 25 YEARS

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1(C). KUM. PRIMA DAUGHTER OF NINGAMARAIAH AGED ABOUT 23 YEARS

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ALL ARE RESIDING AT KATAGANAPALYA, LAKSHMIPURA, RAMANAGAR TALUK AND DISTRICT - 561 200.

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SHRI SRIKANTAIAH, MAJOR

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HC-KAR

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SON OF GANGAIAH BUDANAHALLI, LAKSHMIPURA POST KUNIGAL TALUK TUMKUR DISTRICT - 572 130.

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SHRI. FAYAZ S/O.SHRI MAHABOOB SHARIFF MAJOR, KATUKANAPALYA, LAKSHMIPURA POST KOOTAGAL HOBLI, RAMANAGAR TALUK AND DISTRICT - 571 511.

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...RESPONDENTS

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(BY SRI. P.M. SIDDAMALLAPPA, ADVOCATE FOR R2; SRI. B.N. GOPALAKRISHNA, ADVOCATE FOR R3; SRI. NAIK RAMACHANDRA R, ADVOCATE FOR R1(A TO C))

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.04.2011 PASSED IN MVC NO.5074/2008 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSES JUDGE, MEMBER MACT, COURT OF SMALL CAUSES, BANGALORE, AWARDING A COMPENSATION OF Rs.1,76,040/WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA

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HC-KAR

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ORAL JUDGMENT

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Heard the arguments of learned counsel for the appellants and learned counsel for the respondents. The ranks of the parties are retained as per Tribunal for the sake of convenience.

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Learned counsel for respondent No.1-previous owner is present but the counsel for respondent No.2-present owner is absent and it is stated that there is no arguments on his behalf.

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2. MFA No.7521/2011 is filed by claimants for enhancement of compensation against the judgment and award dated 13.04.2011 passed in MVC No . 5074/2008 on the file of the XIII Additional Small Causes Judge and Member, MACT, Bengaluru.

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The petitioner/injured claimant met with an accident on 16.11.2007 and filed claim petition claiming compensation of Rs .3,50,000/ -. The Tribunal considering the entire oral and documentary evidence on record

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HC-KAR

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granted an amount of Rs . 1,76,040/ - with interest at the rate of 6% per annum from the date of petition till the date of deposit. Being aggrieved by the said order, the claimant preferred an appeal and mainly contended that the petitioner/injured claimant sustained the injuries, out of which, 1 and 2 are g rievous injuries and was treated as an inpatient from 16.11.2007 to 10.12.2007. He incurred Rs. 65,000 towards medical expenses and the Tribunal granted Rs.65,000/- which needs no enhancement.

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Due to the injuries sustained in the accident, he could not have attended any work at least for a period of three months. He examined the doctor as PW.2, has assessed lower limb disability as 30% and 10% to the whole body. But the Tribunal has taken only at 8%, which is on the lower side. The appellant was working as a coolie, earning Rs .200/- per day, but the Tribunal has taken his income as Rs.3,500/- per month, which is on the lower side. The amounts awarded under the other heads

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HC-KAR

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are meagre. Therefore, requested for enhancement of the compensation.

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5. Insurance company preferred MFA

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No.9252/2011 against the same order and mainly contented that the 1^st respondent was working as a coolie under the 2^nd respondent. But the policy in question is not required to cover the employees of the hirer of the vehicle and the Tribunal erred in fastening the liability on them. The policy in question is an Act policy. Even assuming that there was any liability, it could not exceed what was payable under WCC Act and it works out to Rs.28,465.92. But the Tribunal granted excess compensation. Admittedly, tractor/trailor in question was used for hire and its usage for such purpose is excluded from the coverage as it is used for commercial purpose. And it cannot be said that it is used for agricultural or forestry purpose. Tractor/trailor is used as a goods vehicle and it amounts to violation of the permit conditions and policy excludes risks. The tractor driver has no valid driving

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HC-KAR

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licence and he should have transport endorsement if the tractor/trailor is treated as goods vehicle. In the absence of such endorsement, coverage under the policy gets excluded. 1^st respondent is not a third party and he is employed by the 2^nd respondent. Therefore, request put forth to satisfy the order of the trial Court.

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6. The counsel of the respondents stated that the policy issued in this case is an Act policy, but not comprehensive or package policy. As such, it will not cover the risk of the passengers travelling in the vehicle Tractor/trailor. Petitioner herein was travelling in the tractor as a coolie/loader. As such, his liability is not covered by Act policy. He relied upon a citation reported in (2013) 1 SCC 731 between National Insurance Company Limited v. Balakrishnan and another in which, it was held as follows:

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"26. In view of the aforesaid factual position, there is no scintilla of doubt tha a comprehensive/package policy" would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an "Act policy" stands on a different footing from a "comprehensive/package policy". As the circulars have made the position very clear and IRDA, which is presently the statutory authority,

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HC-KAR

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has commanded the insurance companies stating that a "comprehensive/package policy" covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the "Act policy" which admittedly cannot cover a third-party risk of an occupant in a car. But, if the policy is a "comprehensive/package policy", the liability would be covered. These aspects were not noticed in Bhagyalakshmi 12 and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same."

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7. Learned counsel for the appellant stated that he filed an appeal requesting for enhancement of

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compensation. T he petitioner was working as coolie. He was aged 45 years and the relevant multiplier is '14'. The petitioner produced Exhibit P6 - the wound certificate and Exhibit P7 - the discharge summary. T he petitioner sustained grievous injuries like crush injury left, fracture of 5th metatarsal bone, lacerated wound over the 1st web space with deglove injury measuring 5 cm. x 5 cm. x 2 cms., blunt injury over the lumbar vertebra and abrasion injury over the right dorsum of the foot, out of which injuries No.1 and 2 are grievous in nature.

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HC-KAR

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Though it is stated that the petitioner is earning

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Rs.200/- per day, he has not filed any income proof. The Tribunal has taken his income as Rs.3,500/-. So, as the petitioner failed to prove his income and he met with an accident in the year 2007, this Court finds it reasonable to take his notional income as Rs.4,000/- per month as per the chart prepared by Karnataka State Legal Services Authority. So the loss of future income comes to Rs.4,000 x12x14x10% = Rs. 67,200/-. Tribunal granted Rs.47,040/- under the loss of future earning.

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He also examined an Orthopedic surgeon as PW2 and he assessed the disability of the left lower limb as 30% and that of the whole body as 10%. The tribunal has granted Rs.65,000/- under the head of medical expenses, this Court finds no reason to interfere with the said amount. The petitioner was hospitalized for a period of 22 days. Considering the nature of injuries, period of hospitalization and other relevant factors, this Court finds it reasonable to award Rs.40,000/- towards pain and

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HC-KAR

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suffering and Rs.20,000/- towards loss of amenities, Rs.30,000 /- towards transportation, extra nourishment and attendant charges. The petitioner might not have attended any other work at least for a period of three months. Therefore, a sum of Rs.12,000/- (4,500 × 3) is awarded towards loss of income during the laid-up period.

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Thus in all, compensation awarded by this Court

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is as below:

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Sl.Nos.	Particulars	Amount in Rs.
1.	Towards pain and suffering	40,000/-
2	Towards medical expenses	65,000/-
3	Towards loss of amenities	20,000/-
4	Towards transportation, extra nourishment and attendant charges	30,000/-
5	Towards loss of future earning capacity	67,200/-
6	Towards loss of income during the laid up period	12,000/-
	Total	2,34,200/-

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HC-KAR

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Hence, the appellant-claimant is entitled for a

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total compensation of Rs.2,34,200/- along with interest at the rate of 6% p.a.

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In the result, the following order is passed:

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ORDER

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i. The appeals are allowed in part.

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ii. The judgment and award dated 13.04.2011 passed in MVC No . 5074/2008 on the file of the XIII Additional Small Causes Judge and Member, MACT, Bengaluru, is modified.

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iii. The claimant is entitled to a sum of Rs.2,34,200/- along with interest at the rate of 6% p.a. from the date of petition till the date of realization, instead of Rs.1,76,040/- granted by the Tribunal.

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iv. As the policy insured by the petitioner is an Act policy and the Insurance Company is not liable to pay the compensation and

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HC-KAR

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amount already deposited by the Insurance Company before this Court has to be refunded to the appellant/Insurance Company through RTGS.

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v. The owner of vehicle/respondent No.2 is liable to pay the compensation and he is directed to deposit the same within one month from the date of this order.

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vi. On such deposit, petitioner/claimant is permitted to withdraw the entire amount along with interest accrued on the same.

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Sd/(P SREE SUDHA) JUDGE

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PSJ List No.: 1 Sl No.: 9

Sri. Ningamaraiah v. Sri. Srikantaiah

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Sri. Ningamaraiah v. Sri. Srikantaiah

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