Mallikarjun vs Ninganna and another

Mrs. S. Sujatha, J.—This appeal is directed against the judgment and award in MVC No. 712/2010 passed by the Motor Accident Claims Tribunal, Gulbarga.

The Tribunal has awarded compensation of Rs. 1,26,046/- on the claim petition filed by the claimant on the ground that the 5 claimant has sustained grevious injuries in the road traffic accident that occurred on 8-1-2009. The Tribunal while awarding compensation of Rs. 1,26,046/- along with interest has fastened the liability on respondent No. 1 exonerating respondent No. 2 from the liability of indemnifying the owner.

Being aggrieved by the said judgment and award, the claimant is before this Court challenging the liability as well as the quantum awarded by the Tribunal.

Learned counsel appearing for the appellant would contend that the Tribunal proceeded on a wrong assumption that the jurisdictional police/authorities have submitted the charge-sheet against the rider of the offending vehicle for the offences punishable under Section 3 read with Section 181 of Motor Vehicles Act, 1988. The police had prosecuted the driver of the offending vehicle. In such circumstances, the Tribunal has wrongly held that the insurer is not liable to satisfy the award ignoring the judgments placed on record by the appellant. It is also contended that the compensation awarded under different heads is too meager compared to the grevious injuries sustained by the claimant more particularly, the monthly income determined by the Tribunal at Rs. 4,000/- is contrary'' to the principles of law laid down by this Court in several judgments.

Per contra, learned counsel appearing for the respondent justifying the judgment and award passed by the Tribunal would contend that the Tribunal appreciating the material on record has arrived at a proper and just compensation which does not call for any interference by this Court.

Having heard the rival submissions made by the learned counsel for the parties and perusing the material on record, it is noticed that the Tribunal proceeded to fasten the liability to satisfy the award on the owner i.e., respondent No. 1 exonerating respondent No. 2 from indemnifying the owner mainly on the basis of the charge-sheet filed by the jurisdictional police against the driver of the offending vehicle for not producing the valid driving licence before the authorities. It is hardly required to be stated that the standard of proof to be established in criminal proceedings is entirely different from that of the evidence required to be looked into by the Tribunal in summary proceedings. At this juncture, it is beneficial to refer to the judgment of this Court in the case of Iffco-Tokio General Insurance Company v. K. Prabhakar Reddy, 2015 Kant TMAC 301 (Kant) wherein, this Court after referring to the judgments of the Apex Court has held thus :

Keeping the dicta laid down by the Apex Court in the above referred case and also the judgments of the co-ordinate benches of this Court and applying the same to the facts on hand, it would clearly indicate that insurer having raised a plea in its written statement about the driver of the offending vehicle not possessing a valid licence, by relying upon Exhibit P5 to claim that it should be absolved of its liability, particularly when the contents of Exhibit P5, (charge-sheet) has not been proved either by examining the Investigating Officer of any other concerned official to prove the same. Said plea has remained as such without proof.

It is also pertinent to note that the insurer has not led any evidence to prove that the driver of the vehicle had no valid licence. The burden of proving that the driver had no valid licence was open to the insurer which it has failed to discharge. The Apex Court in the case of Punam Devi v. Divisional Manager, New India Assurance Co. Ltd. (C.A. No. 7191/2002 decided on 12-2-2004) (reported in AIR 2004 SC 1742) following the judgment of the Apex Court in the case of National Insurance Co. Ltd. v. Swaran Singh and Ors. has held thus :

In National Insurance Co. Ltd., Chandigarh v. Nicolletta Rogagi and Ors., AIR 2002 SC 3350, it was held that the insurance company cannot challenge the quantum of compensation awarded by the Tribunal. The only ground open to insurer is contained in Section 149(2) of the Motor Vehicles Act. In National Insurance Co. Ltd. v. Swaran Singh and Ors., AIR 2004 SC 1531, this Court has held that "mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence or failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at me relevant time." In the present case, the insurer has not led any evidence that the driver of the vehicle had no licence. The burden of proof that the driver had no licence was open to the insurer which it failed to discharge."

In view of the dicta laid down by the Apex Court and this Court in the above referred cases, it would clearly indicate that the insurer has failed to discharge the burden of proof that the driver had no valid licence, the Tribunal proceeding only on assumptions and surmises, based on the proceedings initiated by the jurisdictional police authorities, exonerating the insurer from satisfying the award, is totally unjustifiable.

As regards the quantum awarded by the Tribunal under different heads at Rs. 1,26,046/- appears to be too meager. The monthly income of the injured determined for the accident of the year 2009 at Rs. 4000/- is contrary to the monthly income at Rs. 5000/- normally determined by this Court in the case of a labourer having no adequate proof of income. Adopting the same, loss of future income works out to Rs. 72,600/-.

Compensation awarded under the head loss of amenities at Rs. 10,000/- requires suitable enhancement considering the facts and circumstances of the case. Accordingly, the compensation under this head is enhanced to Rs. 25,000/-.

Loss of income during laid up period works out to Rs. 20,000/- taking the monthly income at Rs. 5000/- for 4 months.

Compensation awarded towards attendant charges, extra diet and conveyance has also to be suitably enhanced taking the attendant charges at Rs. 200/- per day against Rs. 75/- per day awarded by the Tribunal. The same works out to Rs. 6,000/- + 2,000/- + 2,000/- under the three heads respectively totalling Rs. 10,000/-.

Under the head, future medical expenses, compensation awarded is Rs. 15,000/-. Taking into consideration the deposition of PW 2 - doctor that the claimant has to undergo surgery for removal of implant and further that he has to undergo post operational treatment, the compensation awarded under this head is enhanced to Rs. 25,000/-.

Accordingly, the total compensation awarded by the Tribunal is modified and enhanced to Rs. 1,90,600/-. The enhanced compensation shall carry interest @ 6% p.a. from the date of the petition till realisation.

Appeal is allowed to the extent indicated above.