Basanagouda vs Ajit C. George and Others

P.S. Dinesh Kumar, J.—The claimant in M.V.C. No. 87/2003 on the file of Addl. Civil Judge (Sr. dn) and Addl. MACT, Ranebennur, (hereinafter referred to as ''Tribunal'', for short) has preferred this appeal challenging the judgment and award of the Tribunal dated 16.10.2007 with regard to quantum of compensation and the liability.

For the sake of convenience, the parties shall be referred to in this appeal as per their rankings before the Tribunal.

Briefly stated facts of the case are that on 20.12.2002 at about 17-45 hours, while the claimant was riding his bicycle near Halgeri cross on P.B. Road, a motorcycle bearing registration No. CTU-8800 dashed against his bicycle causing injuries to him. He suffered fracture of tibia with 45% disability to right lower limb. He filed the instant petition before the Tribunal for compensation. On being notified, the insurer/respondent No. 2 contested the petition on the ground that the rider of the motorcycle did not possess a valid driving license. Owner of the vehicle viz., respondent No. 1 remained ex-parte before the Tribunal. Claimant examined himself as PW-1 and a doctor viz., Umakant Ullal as PW-2 and got 33 documents marked as Exs. P-1 to P-33. On behalf of the insurer, one witness was examined as RW-1 and 4 documents marked as Exs. R-1 to R-4. On consideration of the material evidence on record, the Tribunal awarded a compensation of Rs. 37,560/- with interest at 6% per annum and absolved the insurer from the liability on the ground that the rider of the motorcycle did not possess a valid driving license which was a breach of condition of the contract. Being aggrieved by the quantum and absolving the insurer, the claimant has preferred this appeal.

Heard Sri M.M. Khannur, learned counsel appearing for the appellant and Sri N.R. Kuppelur, learned counsel appearing for the insurer. Perused the records.

Learned counsel for the appellant submits that the appellant has suffered grievous injuries such as fracture of tibia and fibula and 3 simple injuries resulting in 45% disability of right lower limb. He further submits that he has spent a sum of Rs. 36,115/- towards medical expenses and produced bills to that effect which have not been considered by the Tribunal. In sum and substance, he submits that the quantum of compensation awarded by the Tribunal is grossly inadequate and further, that absolving the insurer from satisfying the award is also not tenable. On these grounds, he prays that the appeal be allowed.

Per contra, learned counsel for the insurer while supporting the judgment of the Tribunal submits that should there be breach of condition of contract the insurer shall not be liable to satisfy the award and in the instant case, as the rider of the offending vehicle did not possess a valid driving license, the Tribunal has rightly absolved the insurer. Placing reliance on a judgment of the Hon''ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh and Others, he submits that the Hon''ble Supreme Court has held that when the driver of the offending vehicle did not possess a valid driving license, the insurance company cannot be held liable to satisfy the award. Accordingly, he prays for dismissal of the appeal.

Insofar as the first contention of the appellant that the quantum of compensation is grossly inadequate, the records reveal that the claimant has produced medical bills and got marked in his evidence. Contesting insurer has denied the averments made in the claim petition and cross-examined the petitioner as well as the doctor in detail. Admittedly, the PW-2 is not the treated doctor. He has issued certificate at Ex. P-7 wherein it is stated that the claimant was treated at different Hospital at Ranebennur and later in Apoorva Hospital, Davanagere. His statement is based on the history given by the claimant. On examination, PW-2 doctor has opined that the claimant has suffered 45% disability. The Tribunal has construed the disability at 10% whereas the disability ought to have been considered at 15%. The medical bills have not been supported by either a certificate issued by the doctor or his testimony. However, considering 45% disability suffered by claimant, it can be inferred that the claimant has incurred expenses towards medical treatment. The Tribunal has awarded a sum of Rs. 3,000/- based on the wound certificate at Ex. P-3 on the ground that the said certificate reveals 3 simple injuries. Insofar as the injury No. 4 mentioned in the wound certificate, which is grievous in nature, the Tribunal has not granted any compensation. The Tribunal has accepted the disability certificate at Ex. P-7 and considered the disability at 10%. The said inference is drawn from Ex. P-7. Ex. P-7 discloses that the claimant has suffered 45% disability to the right lower limb. In such circumstance, the whole body disability will have to be reckoned at 15%. Having accepted that the claimant has suffered 10% disability, the medical expenses have not been allowed by the Tribunal. In the circumstances, accepting Ex. P-7, disability is considered at 15%. Corresponding medical expenses will have to be allowed. Accordingly, the claimant shall be entitled for medical expenses at Rs. 28,300/- as per bills Ex. P-8 to Ex. P-27.

So far as the loss of earning capacity is concerned, the Tribunal has considered the earning capacity of the claimant as Rs. 1,800/- per month. The accident is of the year 2002. Learned counsel for appellant is right in his submission that while calculating earning capacity of victims of road accident occurred during 2002 at Rs. 3,250/- as uniformly applied in Lok Adalats. Hence, I am inclined to consider the earning capacity at Rs. 3,250/- which works out to as follows:

Rs. 3,250 X 15% X 12 X 16 = Rs. 93,600/-

The Tribunal has not awarded any compensation towards pain and suffering, loss of amenities, attendant charges which also need to be granted. Consequently, the claimant shall be entitled to compensation as follows:

So far as the liability upon the insurer is concerned, it is the specific contention of the insurer that the rider of the motorcycle did not possess a valid licence. The owner of the vehicle is respondent No. 1 Shri Ajit C. George. Charge sheet is filed against one Mahammad Iqbal. R.W. 1 in his evidence categorically stated that the rider of the vehicle has pleaded guilty and paid a fine of Rs. 1,500/-. However, the order sheet in C.C. No. 256/2003 on the file of the I Addl. JMFC Ranebennur reveals that one Mahammad Iqbal was charge sheeted for the offences punishable under Sections 279 , 338 IPC under Section 3 read with Section 181 of Motor Vehicles Act and he has paid a fine of Rs. 1,200/- which has been admitted by P.W. 1 claimant. In such circumstances and in the light of the judgment of the Hon''ble Supreme Court referred to above, liability cannot be saddled upon the Insurance Company.

In the result, I proceed to pass the following:

(i) Appeal is allowed in part.

(ii) Finding of the Tribunal that the Insurance Company stands absolved of its liability to satisfy the award is concerned, remains undisturbed.

(iii) Claimant is held entitled for a compensation of Rs. 1,82,500/- with interest at 9% from the date of claim petition till the date of payment. Claim against owner remains undisturbed.

Ordered accordingly. No costs.