Nagabhushan S. vs M/s. Oriental Insurance Co. Ltd. and M.D. Bose

B. Sreenivase Gowda, J.—This appeal is by the claimant challenging the judgment and award made by the Tribunal on the ground of liability as well as quantum. Heard. The appeal is admitted and with the consent of the learned Counsel appearing for the parties, it is disposed of finally.

For the sake of convenience parties are referred to as they are referred to in the claim petition before the Tribunal.

The learned Counsel for the claimant submits, the driver of the offending vehicle having possessed the driving licence to drive light motor vehicle (non-transport) was empowered to drive the offending vehicle which is a light goods vehicle/light motor transport vehicle. The Tribunal without noticing the same has committed an error in not fastening the liability on the insurer of the offending vehicle. He submits, even quantum of compensation awarded by the Tribunal is not just and proper, it is on the lower side. Therefore, he prays for allowing the appeal.

Whereas, the learned Counsel for the insurer of offending vehicle submits, the driver having possessed the driving licence to drive only light motor non-transport vehicle was not entitled to drive the offending vehicle which is a goods vehicle and therefore the Tribunal is justified in not fastening the liability on the insurer of the offending vehicle. He further submits, quantum of compensation awarded by the Tribunal is just and proper and there is no scope for enhancement and he prays for dismissal of the appeal.

Admittedly, there is no dispute regarding injuries sustained by the claimant in a road traffic accident occurred on 27-6-08 due to rash and negligent driving of the offending goods vehicle bearing registration No. KA-05-A-8585 by its driver. Therefore, points that arise for my consideration in this appeal are:

Whether Tribunal is justified in fastening liability on the owner of the offending vehicle and whether compensation awarded by the Tribunal is just and proper or does it call for enhancement?

Admittedly, the offending vehicle is a goods vehicle, the unladen weight of which is less than 7,000 kgs. If that is so the driver having possessed the driving licence to drive light motor non-transport vehicle was empowered to drive light motor goods vehicle provided the unladen weight of the vehicle is less than 7,000 kgs. Even otherwise non-possessing of effective driving licence or endorsement is not a ground to absolve the insurer from liability to pay compensation, as per the latest Judgment of the Apex Court in the case of S. Iyyapan vs. M/s. United India Insurance Co. Ltd. and another (Civil Appeal No. 4834/2013) wherein it was held that it is the statutory right of a third party to recover the amount of compensation awarded from the insurer if there is valid insurance policy.

In that view of the matter, finding of the Tribunal on liability is modified and the insurer is directed to pay compensation awarded by the Tribunal as well as additional compensation awarded by this Court to the claimant.

Now I have to see whether compensation awarded by the Tribunal is just and proper or does it call for enhancement.

As per Ex. P. 6 - wound certificate, claimant has sustained the following injuries;

1) Crack fracture right ulna

2) Laceration wound hypothenar eminence right

3) Abrasion over right knee

Injury No. 1 is grievous in nature and injuries 2 and 3 are simple in nature.

Injuries sustained and treatment taken by him are also evident from Ex. P. 7 - discharge summary and supported by oral evidence of the claimant examined as P.W. 1. Doctor is not examined regarding disability.

Considering one grievous injury and two simple injuries sustained by the claimant, a sum of Rs. 30,000/- is awarded towards pain and suffering as against Rs. 25,000/- awarded by the Tribunal under this head.

Claimant has produced 21 medical bills as per Ex. P. 8 worth Rs. 7,021.80 and set of 5 prescriptions as per Ex. P. 9. The Tribunal holding medical bills 12, 18 and 19 are not standing in the name of the claimant and they are standing in the name of one Revanth Khoushik, and amount mentioned in those bills is Rs. 300/-, has deducted Rs. 300/- and some other bills are also standing in the name of same person has rightly awarded Rs. 6,000/- towards medical expenses.

He was treated as inpatient for 2 days in Shekar Hospital, Bangalore. Considering the same, Rs. 5,000/- awarded by the Tribunal towards incidental expenses such as conveyance, nourishment and attendant charges is just and proper and there is no scope for enhancement.

He claims to have been earning Rs. 10,000/- per month by working as a Marketing Executive in R.V. Enterprises which is owned by his wife and he produced salary certificate at Ex. P. 10. Neither the owner nor the author of Ex. P. 10 is examined. Considering his age as 53 years and year of accident as 2008, his income is assessed at Rs. 4,000/- per month. Nature of injuries suggest that he must have been under rest and treatment for a period of three months. Considering the same, a sum of Rs. 12,000/- is awarded towards loss of income during laid up period.

In the absence of evidence of doctor regarding disability and its impact on future earning, no compensation can be awarded towards loss of future income. However, the Tribunal considering the nature of injuries sustained by the claimant has awarded Rs. 10,000/- towards loss of amenities. The same is just and proper and there is no scope for enhancement under this head.

Thus the claimant is entitled for the following compensation:

Accordingly the appeal is allowed in part and the Judgment and award of the Tribunal is modified on liability as well as quantum. The claimant is entitled for additional compensation of Rs. 7,000/- with interest at 6% p.a. from the date of claim petition till the date of realisation. The Insurance Co. is directed to deposit the additional compensation amount with interest, within two months from the date of receipt of a copy of this judgment, and the same is ordered to be released in favour of the claimant.

No order as to costs.