SRI. HUSSAIN PEERA vs SMT. G. PARVATHI, & ANR.

This appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988, seeking enhancement of the compensation awarded by the Civil Judge (Sr.Dn.) cum Member, VI MACT, Kudligi (hereinafter referred to as ''The Tribunal'', for short), by its judgment and award dated 15.07.2009 in MVC No.63/2008.

In his memorandum of appeal, the appellant/claimant has taken a contention that the compensation awarded by the Tribunal below is a meager amount and that it did not appreciate the fact that he had sustained four fractures and had suffered 100% disability. It further erred in holding that the insurer was not liable to pay the compensation, but only the owner of the vehicle was liable to pay it. However, stating that the compensation awarded under all other heads are also inadequate and smaller amounts, the appellant has prayed for allowing the appeal by modifying the judgment and award under appeal and awarding a compensation of Rs.14,15,000/- as prayed in the claim petition.

On notice being issued, respondent No.2 ? Insurance Company is being represented by its learned counsel Sri. R. R. Mane. Notice to respondent No.1 is held sufficient. The records of Tribunal below were called for and the same are placed before me. Heard the arguments from both sides and perused the memorandum of appeal, impugned judgment and the entire materials placed before this Court.

The point that arises for my consideration is: "Whether the appellant/claimant has made out grounds for enhancement of compensation?

The summary of the case of the claimant as could be gathered from the materials placed before me is that, on 30.10.2007 at about 3.00 pm, while the claimant was riding a Hero-Honda Splender motorcycle on proper side of the road, a pickup van bearing registration No.KA-34/8929, being driven by its driver in a rash and negligent manner by its driver, came from the opposite direction and dashed against the claimant''s motorcycle, on National Highway No.63, near police guest house, Gandhinagar. As a result of which accident, the claimant fell down from the motorcycle and sustained grievous injuries. The motorcycle was also damaged extensively. Thereafter, the claimant was shifted to VIMS Hospital, Ballari for treatment and then to Saint Mary Hospital, Ballari for further treatment. As an inpatient for more than two months he took treatment in the hospitals and on medical advice, he was shifted to Manipal Hospital, Bengaluru, where he was inpatient for more than 20 days. He underwent a major surgery on his right leg. He has also stated that, in the accident, he has sustained fracture of both bones of lower 1/3rd right forearm, fracture of bi-condyler fracture of tibia and middle 1/3rd, fracture of shaft of tibia and fibula, candylar fracture of right fumer and injuries all over body. It is his further case that, he has spent a sum of Rs.4,50,000/- towards medical expenses and requires another sum of Rs.1,00,000/- for his follow up treatment. At the time of accident, he was getting a salary of Rs.4,500/- per month working as a driver. Due to the accident, he is not in a position to do his work as was doing earlier. Holding respondents No.1, 2 and 3 respectively as the driver, owner and insurer of the offending vehicle, he has claimed a total compensation of Rs.19,18,000/- from them with interest thereupon. The Tribunal below after recording the evidence led before it and perusing the materials placed before it and also after hearing the parties, by its judgment and award dated 15.07.2009, partly allowed the claim petition as against respondents No.1 and 2, by holding them jointly and severally liable to pay to the claimant a compensation of a sum of Rs.5,65,000/- together with interest thereupon at the rate of 8% p.a. from the date of petition till the deposit of the amount in the Tribunal. However, it dismissed the claim petition as against respondent No.3 ? insurer. It is the said judgment and award, the claimant has challenged in this appeal, seeking enhancement of compensation.

For the sake of convenience, the parties would be referred to with the rankings they were holding in the Tribunal below.

Learned counsel for the appellant in her argument submitted that the Tribunal below erroneously dismissed the petition as against the insurer of the offending vehicle only on the ground that the said driver had a learner''s licence, but not pakka driving licence. In the light of the judgment of the Hon''ble Supreme Court in the case of Mahamooda and others reported in 2006 ACJ 2825, the insurer is liable even if the driver of the offending vehicle possesses the learner''s licence. Further, the learned counsel contended that the compensation awarded by the Tribunal below under all the heads are meager amounts and as such, they deserve to be enhanced.

On the other hand, the learned counsel for the respondent ? Insurance Company in his argument submitted that, neither the owner nor a driver of the vehicle have established that the conditions of the learner''s licence were duly complied with. As such, the insurer is not liable to pay any compensation. He further submitted that the quantum of compensation awarded under all the heads are quite reasonable, as such, they do not warrant any interference at the hands of this Court.

The present appeal being the claimant''s appeal and the respondents having not preferred either crossobjection or a counter appeal, the question of occurrence of accident on the date, time and place alleged by the claimant and also the alleged fault on the part of the driver of the offending vehicle is not in dispute. Therefore, the question of occurrence of the accident and the liability of the driver and owner of the offending vehicle to pay the compensation to the insured claimant towards the injuries sustained by him in the accident need not be reanalyzed again. However, the question remaining open for consideration is about the alleged liability of the insurer towards the claimant and about the quantum of compensation awarded by the Tribunal below.

After analysing the evidence and the materials placed before it, the Tribunal below has awarded the compensation under the following heads with the sum shown against them:

Amount(Rs.)

Towards pain and suffering 60,000.00

Towards Hospitalization charges and medical expenses

1,77,000.00

Towards conveyance, food, nourishment and other incidental expenses

15,000.00

Loss of earning capacity 48,000.00

Loss of future earning 2,44,800.00

Amenities and future unhappiness 20,000.00

Total 5,64,800.00 (Rounded off to Rs. 5,65,000)

In the instant case, the evidence of PW1 corroborated by the wound certificate at Ex.P5 goes to show that the claimant sustained the following fracture and injuries in the accident: i. Fracture of both bones of lower 1/3rd of right forearm

ii. Fracture of bi-condyler fracture of tibia and middle 1/3rd fracture of shaft of tibia and fubula

iii. Candylar fracture of right fumer

The discharge summary of Manipal Hospital, Belgaluru at Ex.P6 goes to show that the injured was admitted in the said hospital as inpatient from 31.03.2008 to 12.04.2008 for medical treatment. Ex.P7 is another discharge summary issued by St.Mary''s Hospital, Ballari, which also corroborates the injured sustaining multiple comminuted fractures. Ex.P8 is the OPD book of VIMS Hospital, Ballari. Exs.P9, P10 are Electro Cardiogram reports, Ex.P11 is Haematology and Serology report and Ex.P14 is X-ray films which are 31 in numbers. These documents clearly go to establish that, in the accident, the injured/claimant sustained multiple comminuted fracture both to his right forearm and both bones of right leg. Considering the multiple fracture and the length of the hospitalization as an inpatient, it is quite obvious that the injured must have suffered severe pain for a long time. As such, the compensation awarded by the Tribunal below towards ''pain and suffering'', which is at Rs.60,000/- requires enhancement. Accordingly, I enhance it and fix it at Rs.70,000/-. Towards ''conveyance, food and incidental charges'', the Tribunal below has awarded a compensation of a sum of Rs.15,000/-. As observed above, the injured was treated as an inpatient in three different hospitals on 3 different occasions, totaling to a length of a period of about 2? months. For his conveyance to different hospitals at different places, he must have incurred considerable expenses. Further, the Tribunal below has not considered compensating him for the expenses incurred by him towards attendant charges. Thus, the compensation awarded by the Tribunal below at Rs.15,000/- requires to be enhanced. Accordingly, I enhance the said amount and fix it at Rs.30,000/- as compensation towards ''conveyance, food, nourishment, attendant charges and other incidental expenses''. Towards ''loss of amenities'', the Tribunal below has awarded a compensation of Rs.20,000/-. As observed above, the claimant had sustained multiple comminuted fracture both to his right arm and right leg and according to the evidence of PW2 - doctor, the petitioner has been suffering with certain percentage of permanent physical disability. Obviously, these aspects, more particularly, comminuted fracture to both bones of right forearm and right leg, has prevented him from enjoying the amenities in life. As such, the compensation of Rs.20,000/- awarded by the Tribunal below towards ''loss of amenities'' proves to be a smaller amount. Thus, enhancing the said quantum, I fix it at Rs.35,000/-, which is a just and reasonable compensation under the said head in the instant case.

The Tribunal below has awarded a compensation of Rs.1,77,000/- towards hospitalization charges and medical expenses after going through the documents at Ex.P12, which are 73 medical bills and Ex.P13, which are 21 prescriptions. Since all the medical bills produced by the claimant have been honored by the Tribunal below, I find no reason to enhance the said compensation. As such, the same is retained.

The Tribunal below has also awarded a sum of Rs.48,000/- as compensation towards the loss of earning during the period of treatment. As observed above, the injured is shown to have admitted as inpatient in the hospital at different occasions, for a period of 2? months. Even after adding another couple of months as a period of rest at home, still the quantum of compensation awarded at Rs.48,000/- under the said head does not show it to be a smaller amount, as such, the same is retained.

Learned counsel for the appellant in her argument further contended that, though the monthly income at Rs.4,000/- as assessed by the Tribunal below is not disputed, so also the age at 25 and appropriate multiplier at 17, but she questions the percentage of disability considered by the Tribunal below restricting it to 30% to the whole body, when in fact, the evidence of PW2 as well as the doctor''s certificate at Ex.P15 show the percentage of disability at 45%. This length of argument was vehemently opposed by the learned counsel for the 2nd respondent-Insurance Company, who submitted that the evidence of PW2 has been properly appreciated by the Tribunal below. However, the percentage of disability is required to be furthermore reduced and restricted to 15% and this Court can exercise the said power under Order XLI Rule 33 of CPC. PW2 who is stated to be an Orthopedic surgeon has given a detailed evidence about he examining the injured and assessing his permanent disability. He has also given the details of the shortcomings in the physic of the injured after the accident and has stated that 45% is the percentage of permanent partial physical disability. However, the point to be noticed here is, the Tribunal below has observed that the said doctor was a regular witness before the said Tribunal, who has issued disability certificate in many cases. At the same time, the Tribunal below has also properly observed that the said factor of regularity of doctor cannot be a ground to ignore the disability certificate in toto. As such, after careful consideration of the disability certificate and appreciating the assessment made therein, to some extent, the Tribunal below has confined the percentage of disability at 30% to the whole body of the injured claimant. The reasoning given to the said finding, since is convincing and by applying the said percentage of disability since the Tribunal below has arrived at a reasonable quantum as the compensation towards ''loss of future income'', by fixing it at Rs.2,44,800/-, I do not want to interfere in the said finding.

Barring the above, the claimant is not entitled for enhancement of compensation or awarding or compensation under any other heads.

Accordingly, the claimant/appellant is entitled for compensation under the following heads with the sum shown against them:

Amount( Rs.)

Towards pain and suffering 70,000.00

Towards Hospitalization charges and medical expenses

1,77,000.00

Towards conveyance, food, nourishment and other incidental expenses

30,000.00

Loss of earning capacity 48,000.00

Loss of future earning 2,44,800.00

Amenities and future unhappiness 35,000.00

Total 6,04,800.00

Insofar as the question of liability of the present respondent No.2 (respondent No.3 in the Court below), who is admittedly the insurer of the alleged offending vehicle is concerned, it is not in dispute that the driver of the offending vehicle did not possess a valid driving licence to drive the auto rickshaw. However, he was holding a learner''s licence to drive the said vehicle. Learned counsel for the respondent relying upon the judgment in Electrical Engineering Agencies and Anr. Vs. New India Assurance Company Limited and Anr. reported in 2006 ACJ 1957, submitted that neither the owner, nor the driver of the offending vehicle have established that the conditions of the learner''s licence have been fulfilled, as such, the insurer is not liable. In the said case, relied upon by the learned counsel for the respondent, a coordinate bench of this Court with respect to Sections 147 and 166 of the Motor Vehicles Act and more particularly, with respect to the rule of ''pay and recover'', was pleased to observe that, in order to fasten the liability on the insurer, the owner and the rider must establish that the conditions of the learner''s licence were fully complied with.

Learned counsel for the appellant in support of her argument relied upon a judgment of our Hon''ble Supreme Court in the case of Mahamooda and others Vs. United India Insurance Co. Ltd., and Others reported in 2006 ACJ 2825. The Hon''ble Apex Court in the said decision, after referring to its previous judgment in National Insurance Co. Ltd. Vs. Swaran Singh, 2004 ACJ (1) SC, was pleased to hold that, even when the offending vehicle was driven by the person holding learner''s licence, the insurer liability existed. Neither in the judgment of said Swaran Singh(supra) nor in the judgment of Mahamooda(supra), anywhere the Hon''ble Apex Court was pleased to observe that the conditions of the learner''s licence was fully fulfilled and established by the owner and the rider of the vehicle. Even otherwise also, nowhere in the instant case, the respondents have taken any contention that the condition of the learner''s licence was breached either by the owner or the driver of the offending vehicle. At least a suggestion to that effect also was not made in the cross-examination of PW1.

Therefore, by following the judgment of the Hon''ble Apex Court in Mahamooda (supra), it is to be held that, even in the present case also, the present insurer/respondent No.2 is liable to pay the compensation. Since the Tribunal below has dismissed the petition against the said respondent, the said finding deserves to be modified in this appeal.

Accordingly, the present appeal deserves to be allowed in part and the judgment and award under appeal requires to be modified.

Thus, the claimant is entitled for a total sum of Rs.6,04,800/- (Rupees Six Lakhs Four Thousand Eight Hundred Only), as compensation towards the injuries sustained by him in the alleged motor vehicle accident. Since the judgment and award passed by the Tribunal is a lower amount than what the reasonable compensation is, appeal deserves to be partly allowed and the judgment and award under appeal requires to be modified.

Accordingly, I answer the above point partly in the affirmative and proceed to pass the following:

ORDER

The appeal is allowed in part.

The judgment and award passed by the Civil Judge (Sr.Dn.) cum Member, VI MACT, Kudligi In MVC No. 63/2008, dated 15.07.2009 is modified to the extent that the compensation awarded by the Tribunal below at Rs.5,65,000/- is enhanced and fixed at Rs.6,04,800/- (Rupees Six Lakhs Four Thousand Eight Hundred Only). The judgment and award of the Tribunal below dismissing the claim petition against respondent No.3 therein (respondent No.2 herein) - Insurance Company is set aside. Consequently, the present respondents No.1 and 2 in this appeal are jointly and severally held liable to pay the enhanced compensation amount to the claimant/appellant.

The present 2nd respondent being the insurer of the vehicle, to deposit the awarded amount together with interest thereupon in the Tribunal below within 30 days from the date of this order.

The rest of the order of the Tribunal below with respect to awarding the interest, its rate, terms regarding release of the amount awarded shall remain unaltered.

Registry to send a copy of this judgment together with lower Court records to the Tribunal below without any delay.