Hussainappa vs Nabichand and Others

A.S. Pachhapure, J.—The appellant dissatisfied with the amount of compensation awarded for the injuries sustained in the motor vehicle accident has filed this appeal, seeking enhancement.

The facts reveal that on 03.12.2009 at about 10.00 a.m., while the appellant was proceeding in the autorickshaw bearing reg. No. KA-33/4363, an accident occurred due to the rash and negligent driving by its driver and the appellant suffered the fracture of left pubic bone, fracture of 8th and 9th ribs of right side and fracture of 8th to 11th ribs of left side. He is said to have suffered disability of 10% of the whole body, as held by the Tribunal. The Tribunal assessed his income at Rs. 3,000-00 p.m. and granted a sum of Rs. 2,12,000-00 as compensation for the said injuries on all the heads. Dissatisfied with the said sum, the present appeal is filed.

I have heard learned counsel for both sides.

The points that arise for my consideration are;

1) Whether the appellant is entitled to enhancement of compensation? If so, to what extent?

2) Whether the insurer is liable to pay the compensation?

Learned counsel for the appellant submits that as the compensation granted on each of the heads is on the lower side and proper income is not considered.

On the other hand, learned counsel for the 2nd respondent/insurer supports the Judgment and Award of the Tribunal.

The Tribunal granted a sum of Rs. 35,000-00 for pain, suffering and mental agony. The appellant has suffered fracture of left pubic bone, two ribs of right side and 4 ribs of lift side. Hence an additional sum of Rs. 15,000-00 is payable towards pain, suffering and mental agony.

The-doctor was examined and the disability was assessed. The Tribunal accepted the disability at 10%. It had the opportunity to observe the appellant. No grounds are made out to enhance the said percentage. The income of the appellant is considered by the Tribunal at Rs. 3,000-00 p.m. The accident is of the year 2009. It is just and proper to consider his income at Rs. 4,750-00.

The appellant was 19 years and the multiplier applicable is 18. Therefore, the compensation payable towards loss of future earning would be;

Rs. 4,750 x 12 x 18 x 10/100 = 1,02,600-00 Deducting sum of Rs. 65,000-00 awarded by the Tribunal, the appellant is entitled to Rs. 37,600-00. Only a sum of Rs. 5,000-00 has been granted towards loss of income during the period of treatment. It requires minimum 3 months to resume to the duty after union of the fracture. Hence, the appellant is entitled to a sum of Rs. 9,250-00 towards loss of income during the period of treatment. No compensation is awarded by the Tribunal towards loss of amenities despite the fact that the appellant has suffered 10% disability of the whole body. He is entitled to a sum of Rs. 10,000-00 on this head. A sum of Rs. 5,000-00 is granted towards food, nourishment, etc. It is reasonable. A sum of Rs. 92,000-00 is granted towards medical expenses on the basis of the bills produced. There are no reasons to enhance the same.

The Tribunal held that the xerox copy of the license has been produced by the owner of the vehicle. It was in respect of the autorickshaw, non-transport. Anyhow, the insurer has taken up a contention that there was no valid license to drive. No evidence has been led to establish breach of the policy conditions. There is a primary duty on the part of the insurer to establish breach of the policy conditions and therefore, in the absence of any evidence, it cannot be said that there was no valid driving license. Even if the xerox copy is produced, it is in respect of a vehicle autorickshaw, non-transport. The vehicle in question is a passenger autorickshaw. Though it is contended that there was no valid license to drive a passenger autorickshaw, as held in the decision of the Apex Court in Civil Appeal Nos. 9927-28/2014 and connected matters [Kulwant Singh and Ors. Vs. Oriental Insurance Company Ltd.] dated 28.10.2014; in respect of the driver, who had a license to drive a light motor vehicle for non-transport could drive even a light motor vehicle transport, without obtaining endorsement to drive a commercial vehicle. In the aforesaid circumstances, I am of the opinion that the insurer has the liability to indemnify the owner.

Thereby the additional compensation payable would be as under:

Hence, The appellant is entitled to a sum of Rs. 71,850-00 with interest at 9% p.a. In the circumstances, both the points are answered in affirmative.

Consequently, the appeal is allowed in part. The impugned Judgment and Award are set aside. The appellant is entitled to a sum of Rs. 71,850-00 with interest at 9% p.a. from the date of the petition till its payment in addition to the compensation payable by the Tribunal. The 2nd respondent/insurer is liable to pay the compensation awarded and enhanced. Out of the compensation payable, a sum of Rs. 2,00,000-00 shall be deposited in the name of the injured-appellant in any nationalized bank for a period of five years.