Branch Manager, National Insurance Co. Ltd. vs Siddappa <BR> Siddappa Vs Maharudrappa

B. Manohar, J.—These appeals are directed against the judgment and award dated 23.07.2007 made in M.V.C. Nos. 2636 and 2639 of 2003 passed by the Additional Motor Accident Claims Tribunal, Saundatti, (for short ''the Tribunal'').

M.F.A. Nos. 2494 and 2495 of 2008 are filed by the National Insurance Co. Ltd., challenging the judgment and award of the Tribunal insofar as directing them to pay the compensation and thereafter recover the same from the insured, whereas M.F.A. Nos. 1796 and 1797 of 2008 are filed by the claimants being aggrieved by the quantum of compensation awarded and also challenging fastening of the liability on the owner of the vehicle and directing the insurer to compensate the claimants and recover the same from the owner of the vehicle.

Since common questions of law and that of fact are involved in these appeals and since common judgment made in M.V.C. Nos. 2636 and 2639 of 2003 are challenged in these appeals, the appeals, though listed for admission, with the consent of the parties, are heard together and disposed of by this common judgment.

Appellant-Siddappa (in MFA No. 1796/2008), since minor represented by his father-Mahadevappa Kuri, had filed claim petition, MVC No. 2636/2003, contending that on 12.09.2003, at about 11.00 a.m., while he was sitting by the side of the road, the rider of the motor cycle bearing registration No. KA-24/E-9215 riding the motor cycle in a rash and negligent manner, while negotiating a curve, lost control over the same and dashed against him. Due to the said accident, he sustained grievous injuries, took treatment for the fracture of limb of right forearm, left hand wrist and spent huge money and also lost his education. Therefore, he sought for compensation of Rs. 7,75,000/-.

Appellant-Smt. Sharada (in MFA No. 1797/2008) had filed claim petition in MVC No. 2639/2003 contending that on 12.09.2003, she, along with her husband, was proceeding towards Ramdurg on Hero Honda Splendor motor cycle bearing No. KA-24/E-9215 as a pillion rider and, at that time, one Siddappa (the appellant in MFA No. 1796/2008) suddenly came across the road and as such there was an accident. Due to the said accident, she fell down from the motor bike due and sustained grievous injury and took treatment in the hospital. Prior to the accident, she was working as a tailor earning Rs. 7,500/- per month. Due to the accident, she was not able to do the work of tailoring and sought for compensation of Rs. 14,30,000/-.

The owner and insurer of the offending motor bike, in both the claim petitions, were served with the notice. However, the 1st respondent did not file any written statement to the claim petition.

The insurer filed written statement to both the claim petitions contending that due to rash and negligent riding of the motor bike, the accident had occurred. There was contributory negligence on the part of Siddappa (claimant in MVC No. 2636/2003). Further, the rider of the motor bike was not holding a valid and effective driving licence to drive the motor bike as on the date of the accident. Hence, insurer was not liable to compensate the claimant and sought for dismissal of the claim petitions as against them.

On the basis of the pleadings of the parties, the Tribunal framed necessary issues. On behalf of the claimants, the claimant-Smt. Sharada Maharudrappa Hoskoti (in MVC No. 2639/2003) was examined as P.W. 1; one Mahadevappa S. Kuri, father of the claimant-Siddappa (in MVC No. 2636/2003), was examined as P.W. 2 and two doctors as P.Ws. 3 and 4 and Exs. P.1 to P.43 were marked. On behalf of the respondent, no witnesses were examined. However, with the consent of the parties, copy of the insurance policy was marked as Ex. D.1. The Tribunal, after considering the oral and documentary evidence let in by the parties and taking into consideration the police records i.e., the FIR, spot panchanama and MVI report, held that due to rash and negligent riding of the motor bike, the accident had occurred and the claimants in both the claim petitions were entitled for compensation.

With regard to the quantum of compensation in respect of the claimant in MVC No. 2636/2003, the Tribunal taking into consideration the wound certificate noticed that the claimant had sustained fracture of limb of right forearm, injury to the left wrist, injury to both the hands and other injuries to his body; the claimant was aged 7 years as on the date of the accident; the doctor, who treated the claimant, assessed the disability to an extent of 10% to the particular limb, took the whole body disability as 3%, awarded a sum of Rs. 75,000/- towards loss of future income; Rs. 10,000/- towards pain and suffering and Rs. 26,201 towards medical expenses, in all, a sum of Rs. 1,11,201/- with 6% interest from the date of claim petition till realisation.

With regard to liability, though the driving licence was produced along with a memo dated 09.04.2007, since the driving licence was not marked in evidence, the Tribunal though fastened the liability on the owner of the vehicle, directed the insurer of the offending vehicle to pay the compensation and recover the same from the owner of the vehicle. Being aggrieved by the quantum of compensation and also fastening the liability on the owner of the vehicle to pay the compensation has filed M.F.A. No. 1796/2008.

With regard to quantum of compensation in respect of the claimant in MVC No. 2639/2003, the Tribunal found that the claimant had sustained five injuries viz., i) injury to left hand wrist; ii) injury to upper lip; iii) injury to the chin and shoulder; iv) injury to the right knee; and v) loss of teeth. The doctor, who treated the claimant, assessed the disability to an extent of 30% towards loss of four teeth and 20% in respect of injury to left upper limb. Taking into consideration the nature of injuries sustained by the claimant, the Tribunal assessed the disability to an extent of 12%, the income of the claimant as Rs. 3,000/- per month, though the claimant had claimed Rs. 7,500/- as her monthly income, awarded a sum of Rs. 64,800/- towards loss of future income; Rs. 37,000/- towards pain and suffering; and Rs. 25,552/- towards medical expenses, in all, a sum of Rs. 1,27,352/- with 6% interest and directed the insurer to compensate the claimants and recover the same from the 1st respondent. Being aggrieved by the said order, the claimant has filed MFA. No. 1797/2008 challenging the quantum of compensation awarded and also the liability fixed on the owner of the vehicle to compensate the claimant.

The insurer being aggrieved by the judgment and award directing them to pay the compensation and recover the same from the owner of the vehicle, have filed M.F.A. Nos. 2494 & 2495 of 2008.

I have carefully considered the arguments addressed by the parties, perused the judgment and award and oral and documentary evidence adduced by the parties.

The records clearly disclose that due to rash and negligent riding of the motor bike by its rider the accident had occurred on 12.09.2003. In the said accident, the pillion rider as well as a 7 year old boy, who was sitting by the side of the road, sustained injuries. The Tribunal considering the oral and documentary evidence on record has held that on account of actionable negligence on the part of the rider of the motor bike, the accident had occurred and the said finding of the Tribunal has become final.

Insofar as MFA. No. 1796/2008 filed by the claimant-Siddappa seeking enhancement of compensation is concerned, it is seen that, in the alleged accident, he sustained fracture of limb of right forearm, injury to the left wrist and injury to both hands. The doctor who treated Siddappa assessed the disability to an extent of 10% to the particular limb. Taking into consideration 1/3rd of the said disability, the Tribunal in all awarded a sum of Rs. 1,11,201/- Looking at the quantum of compensation awarded by the Tribunal with reference to the nature of injuries suffered and the treatment taken, the compensation awarded by the Tribunal is in accordance with law. The claimant has not made out a case for enhancement of the compensation. Therefore, M.F.A. No. 1796/2008 filed by minor claimant-Siddappa is liable to be dismissed only insofar as it relates to quantum of compensation.

Insofar as MFA No. 1797/2008 filed by claimant-Smt. Sharada, seeking enhancement of compensation is concerned, it is seen that she sustained five injuries including loss of 4 teeth. The doctor, who treated her, assessed the disability to the extent of 30% in respect of loss of teeth and 20% to the left upper limb. The Tribunal took the whole body disability to the extent of 12%. Though the claimant had claimed that she was earning a sum of Rs. 7,500/- from tailoring work, as no documents were produced to prove the same, the Tribunal took the income of Rs. 3,000/- per month and awarded a sum of Rs. 64,800/- towards future loss of income. The compensation awarded by the Tribunal towards future loss of income, taking the income of the claimant as Rs. 3,000/-, is on the lower side. Though, no document was produced to prove the monthly income as claimed by the claimant, she cannot be treated as a coolie. In fact, she has undergone training in tailoring and she was doing tailoring work. The Tribunal ought to have taken the income of the claimant as Rs. 3,500/- and applying multiplier 15, awarded the compensation. Further, no compensation is awarded towards loss of amenities though she has to suffer the disability through out her life. Hence, claimant is entitled to a sum of Rs. 20,000/- towards loss of amenities and Rs. 10,000/- towards future loss of income, in all, Rs. 30,000/- in addition to Rs. 1,27,352/- awarded by the Tribunal with 6% interest.

With regard to the liability to pay compensation, the Tribunal has fastened the liability on the owner of the vehicle and directed the insurance company to pay the compensation and to recover the same from the owner of the vehicle solely on the ground that the driving licence was not produced and marked in the evidence. The record clearly discloses that though the rider of the motor vehicle has not filed written statement, on 09.04.2007 along with a memo, he had produced the driving licence. Though the Tribunal accepted the said document, it was not marked in evidence. The insurance company also did not dispute the driving licence produced by the rider of the motor bike. The record clearly discloses that as on the date of the accident, the rider of the motor bike was having a valid and effective driving licence to drive the vehicle. Only on the ground that the driving licence was not marked in the evidence, the Tribunal fastened the liability to compensate the claimant on the owner of the vehicle, which is contrary to law.

The insurance company has filed M.F.A. No. 2494/2008 and M.F.A. No. 2495/2008 challenging the award insofar as directing the insurer to compensate, the claimant and recover the same from the 1st respondent, the rider of the motor bike. Since the rider of the motor bike was having a valid and effective driving licence as on the date of the accident and that the insurance policy was issued in respect of the said motor bike, the order passed by the Tribunal directing the owner to compensate the claimant is contrary to law. A motor vehicle has to be compulsorily insured in order to protect the interest of the 3rd party as well as the pillion rider. In the instant case, unfortunately, the accident in question occurred on 12.09.2003 and in the said accident the pillion rider as well the 3rd party sustained injuries. Only on the ground that driving licence was not marked in the evidence, though it was produced along with a memo dated 09.04.2007, the finding of the Tribunal fastening liability on the owner of the motor cycle cannot be sustained in law. Hence, as already stated, I am of the view that the order passed by the Tribunal directing the insurer to recover the amount from the owner-rider of the motor vehicle is contrary to law. Therefore, the impugned judgment passed in the above claim petitions insofar as it relates to reserving liberty to the insurance company to recover the compensation amount from the owner of the vehicle is liable to be set aside and it is held that the insurer of the offending motor cycle is liable to satisfy the award passed in the above claim petitions.

In the result, I proceed to pass the following:

ORDER

(i) M.F.A. Nos. 2494 and 2495 of 2008 filed by the National Insurance Company Limited are dismissed.

(ii) M.F.A. No. 1796/2008 filed by claimant Siddappa is dismissed insofar as it relates to quantum of compensation. The insurance company is liable to pay the compensation.

(iii) MFA No. 1797/2008 is allowed in part. The claimant is entitled for an enhanced compensation of Rs. 30,000/- with 6% interest. The insurance company is held liable to compensate the claimant.

(iv) The judgment and award of the insofar directing the insurer to recover the compensation from the owner of the vehicle is set aside.