Sri. Anand vs Suresh

Mrs. Rathnakala, J.—Sri. S.S. Koliwad, Advocate is directed to take notice for the insurer-respondent No. 2 in MFA. No. 23094/2010 and file his vakalat within four weeks from today.

Though these appeals are listed for admission, with consent of learned counsel on both sides, the same is heard for final disposal.

While MFA. No. 23094/2C10 is filed by the injured-claimant, seeking enhancement of compensation, MFA. No. 20675/2010 is filed by the owner of the vehicle, questioning the liability fastened against him to pay the compensation. Since, both these appeals arise out of the judgment and award dated 13.01.2008 Passed in MVC No. 2516/2005 on the file of the Additional Civil Judge (Senior Division) and member, MACT Gokak, they are taken together for disposal.

The appellant in MFA. No. 20675/2010 is the owner of the un-numbered goods auto rickshaw having chassis No. 445010, which is involved in the accident. To maintain an appeal against the Judgment and award of the Tribunal, the appellant-owner was required to deposit an amount of Rs. 25,000/-, as per the proviso to Section-173(i) of the Motor Vehicles Act. But the appellant-owner has failed to comply with the said statutory requirement. In the said circumstance. the appeal filed by the owner in MFA.No.20675/2010 is dismissed as not maintainable.

Briefly stated, the appellant/claimant in MFA. No. 23094/2010 filed a claim petition U/S. 166 of the Motor Vehicle Act contending that on the night of 08.09.2005, the driver of the goods autorikshaw bearing No. KA-49-265 drove the vehicle in a rash and negligent manner, lost control over the vehicle and dashed against a pedestrian Shankar Kumbar and then hit the claimant, causing grievous injuries. He was hale and healthy at the time of the accident and he was earning Rs. 6000/- per month by running a laundry shop. The claim was contested by the insurer and owner of the vehicle.

On appreciation of the oral and documentary evidence on record, the Tribunal has awarded total compensation of Rs. 38,000/- with interest at the rate of 6% per annum from the date of petition till the date of realisation, as against the claim of Rs. 08,00,000/- under the following heads.

Rs.

1

Pain & agony

20,000-00

2

Global compensation for the injuries

10,000-00

3

Minimum medical expenses

05,000-00

4

Loss of earning during treatment

03,000-00

Total

38,000-00

However, on observing that the driver of the vehicle though had the licence to drive the light motor vehicle, he was not holding the licence to drive the goods vehicles, the liability was fastened solely on the owner of the vehicle.

Sri. Vitthal S. Teli, learned counsel for the appellant while attacking the impugned judgment and award submits that the Tribunal, by overlooking the fact that the injured had suffered fracture of condyle of right femur has erred in awarding meager compensation of Rs. 38,000/-. Though the claimant was earning a sum of Rs. 6000/- per month and suffered permanent physical disability, without assigning valid reason the Tribunal omitted to award compensation under ''loss of future earning capacity. As regards fastening of the liability on the owner of the vehicle, he submits that the Tribunal, in another claim petition (MVC. No. 3292/2005) arising out of the very same accident, in respect of a victim of death, relying on the Judgment of this Court reported in ILR 2005 KAR-2388 held that though the driver of the vehicle was holding the licence to drive the heavy motor vehicle, he can be said to be qualified for driving the light goods motor vehicle also and fastened the liability on the insurer to pay the compensation. Therefore, he prays for enhancement of compensation and to fasten the liability on the insurer, by modifying the Judgment and award of the Tribunal.

In reply, Sri. S.S. Koliwad, Advocate for insurer-respondent No. 2 seeks to sustain the Judgment and award of the Tribunal and prays for dismissal of the appeal MFA. No. 23094/2010 filed by the claimant.

In the light of the above submission and on perusal of the impugned award with reference to the medical evidence, it is seen that the injured-claimant had suffered fracture of condyle of right femur and the Doctor who examined him had assessed the physical disability at 40%. Despite that, the Tribunal was of the opinion that the fracture of condyle of right femur is not a schedule injury and awarded a lump sum of Rs. 20,000/- under ''pain and agony in respect of fracture of condyle of right femur''. That has resulted in substantial reduction of the compensation ana the same warrants reassessment in this appeal. Though the doctor has assessed the disability at 40%, keeping in view the age of the injured and the nature of injury suffered by the claimant, it is just and proper to assess the physical disability in respect of the whole body at 8%. Further, having regard to the date of accident (08.09.2005) and nature of employment of the injured, it is appropriate to assess his income at Rs. 3000/- per month. The injured since was aged 18 years at the time of the accident, suitable multiplier to work out less of future earning capacity is 18, as per the Judgment of the Supreme Court in Sarala Verma, which works out Rs. 51840/-(Rs. 3000 x 12 x 8 x 18/100 = 51,840/-). Having regard to nature of injury, period of treatment, it is just and proper award a sum of Rs. 10,000/- ''towards pain and sufferings'', Rs. 5000/-'' towards medical expenses'', Rs. 9000/- ''towards loss of income during laid-up period of three months (Rs.3000 x 3) and Rs. 10,000/- ''towards loss of amenities''. Totally, the claimant is entitled to compensation of Rs. 85,840/-, as against Rs. 38,000/- awarded by the Tribunal. The enhanced compensation would come to Rs. 47,840/-.

So far as the liability is concerned, on perusal of the driving licence possessed by the driver of the vehicle, it bears the endorsement of the RTO., depicting that he was authorised to drive the heavy motor vehicle from 27.12.i960 which was periodically renewed and as on the date of accident, it was valid. Being the holder of heavy motor vehicle licence, it cannot be said that he was disqualified or incompetent to drive goods autorikshaw which is a light motor vehicle. Wherefore, the owner has not committed breach of any of the policy conditions. Consequently, the insurer, as per the terms of the policy, is bound to indemnify the owner. The Tribunal has grossly erred in holding that the driver was not authorised to drive the light goods vehicle and not justified in fastening the liability on the owner of the vehicle. For the discussions supra, the impugned judgment ana award warrants modification.

The appeal (MFA. No. 20675/2010) filed by the owner of the vehicle is dismissed as not maintainable.

The appeal (MFA. No. 23094/2010) filed by the injured-claimant is allowed in part.

In modification of the Judgment and award dated 18.01.2008, passed by the Additional Civil Judge (Senior Division) and the member, MACT., Gokak in MVC. No. 2516/2005 the compensation payable to the injured-claimant is enhanced from Rs. 38,000/- to Rs. 85,840/- (Rupees eighty five thousand eight hundred forty only). Thus, the claimant-appellant is entitled to enhanced compensation of Rs. 47,840/-, which shall carry interest 6% per annum from the dace of petition till the date of realization. The insurer-2nd respondent in MFA. No. 23094/2010 is directed to deposit the enhanced compensation amount with accrued interest before the Tribunal within three weeks from the date of receipt of the certified copy of the judgment and award. On such deposit, entire amount shall be disbursed in favour of the claimant.

The Registry is directed to transmit the lower court records to the concerned Tribunal forthwith.

In view of the dismissal of the appeal, Miscellaneous Civil No. 101785/2010 filed in MFA. No. 20675/2010 for stay does not survive for consideration.

Draw up the award accordingly.