Sri Kapithulla @ Kaputha @ Mohammed Faik vs The Oriental Insurance Co. Ltd. and Transport Corporation of India Ltd.

K.N. Keshavanarayana, J.—Being dissatisfied with the quantum of compensation awarded, the claimant in MVC No. 2498/2003 on the file of MACT, Bangalore, (SCCH No. 13) has preferred this appeal u/s 173(1) of Motor Vehicles Act (for short ''the Act'') seeking enhancement of compensation.

The appellant filed claim petition u/s 166 of the Act seeking compensation of Rs. 10,00,000/- (Rupees Ten lakhs) for the personal injuries sustained by him in the road traffic accident that occurred at about 5.00 PM on 21/11/2002 as a result of the wheel of the lorry bearing registration No. HR-38-E-4837 in which he was working as a cleaner, running over his left leg while he was attending to cleaning and greasing work of the lorry by lying down under it in front of Sri. Vinayaka Tyre Works, Tumkur Main Road, Nelamangala, on account of the driver of the lorry suddenly moving the vehicle. According to the claimant, immediately he was shifted to Sanjay Gandhi Hospital Bangalore, where on clinical and radiological examination he was found having sustained fracture of Pelvis on both sides and fracture of shaft of left Femur with hypovolemic shock and he was treated there as inpatient for several months and in-spite of best treatment he has suffered permanent disability which has rendered him unfit for doing any work as such he is left with no source of livelihood.

The claim petition was contested by the insurer of the offending lorry while the owner though appeared before the tribunal through his counsel did not file statement of objections nor participated in the proceedings. In its objection, the insurer though disputed the accident as alleged and the injuries said to have been suffered by the claimant, admitted issuance of policy of insurance in respect of the lorry in question and its validity as on the date of the accident alleged. However, the insurer contended that its liability is subject to the terms and conditions of the policy.

In the light of the pleadings of the parties the tribunal framed the following issues:

i. Whether the petitioner proves that he sustained bodily injuries in a road traffic accident occurred on 21.11.02 at about 5.00 p.m. on National Highway No. 4, Bangalore-Tumkur Main Road, in front of Sri. Vinayaka Tyre works, Nelamangala, Bangalore, due to the rash and negligent driving of the lorry bearing Registration No. HR-38-E-4327 by its driver as alleged in the petition?

Whether the petitioner proves that he is entitled for compensation? If so, at what quantum and from whom?

What order or award?

During enquiry, the claimant examined himself as PW.1 and the doctor who treated him as PW.2. He got marked Exs.P.1 to P. 11. On the other hand, the insurer of the lorry did not lead any oral evidence nor produced any documentary evidence. The tribunal on assessment of the oral and documentary evidence, by the judgment under appeal, answered the issue No. 1 framed regarding actionable negligence in the affirmative in favour of the claimant holding that the claimant has proved that he sustained bodily injuries due to the rash and negligent act of the driver of the lorry in question. The tribunal having regard to the facts and circumstances of the case quantified the compensation payable under different heads at Rs. 2,05,000/- asunder:

Injuries, pain and sufferings Rs. 40,000-00 2. Medical Expenses Rs. 8,000-00 3. Loss of earning during medical Treatment Rs. 25,000-00 4. Loss of future income Rs. 1,20,000-00 5. Conveyance and nourishment Rs. 2,000-00 6. Future medical expenses Rs. 10,000-00 ----------------- Total Rs. 2,05,000-00 -----------------

The tribunal directed the insurer of the offending lorry to satisfy the award with interest at 6% per annum from the date of the petition till its payment. Being dissatisfied with the quantum of compensation, the claimant is in appeal before this Court inter alia contending that the compensation awarded by the tribunal under different heads is on the lower side therefore, he is entitled for enhanced compensation.

Upon service of notice of this appeal, the respondents have appeared through their counsel. We have heard Sri. T.N. Vishwanatha, learned Counsel appearing for the appellant and Sri. O. Mahesh, learned Counsel appearing for the first respondent - insurance company while the learned Counsel for respondent No. 2 - owner of the lorry has remained absent.

Sri. T.N. Vishwanatha, learned Counsel for the appellant contended that the compensation of Rs. 40,000/- awarded by the tribunal towards pain and suffering is grossly inadequate having regard to the fact that the claimant had suffered fractures of pelvis and the shaft of left femur and he was treated as inpatient in all, for a period of 10 months and during this period he underwent surgery for correction of fractures by internal fixation which was subsequently taken out on account of infection therefore, he contended that award of Rs. 1,00,000/- towards pain and suffering would be adequate and commensurate with the pain and suffering undergone by the claimant. He further submitted that in spite of the evidence that the claimant has suffered permanent disability which come in the way of enjoyment of life, the tribunal has not awarded any compensation towards loss of amenities in life as a result of the permanent disability. According to the learned Counsel under this head, the tribunal ought to have awarded compensation of Rs. 50,000/-. It is his further submission that the tribunal has committed error in assessing the monthly income of the claimant at Rs. 2,500/- though the evidence on record clearly establishes that the claimant was earning a monthly income of not less than Rs. 4,000/-. According to the learned Counsel the tribunal ought to have awarded loss of earning during treatment and laid up period as well as loss of future earning by taking the monthly income of the claimant at least at Rs. 4,000/-. It is his further submission that the tribunal has committed error in assessing the functional disability suffered by the claimant at 25% though the evidence on record establishes that the functional disability suffered by him is 100%, therefore, the tribunal ought to have quantified the compensation by assessing the functional disability at not less than 60%. It is his further submission that though the claimant has not produced any medical bills, having regard to the fact that he was treated as inpatient for nearly 10 months, the award of Rs. 8,000/- towards medical expenses is grossly inadequate and under this bead the tribunal ought to have awarded at least Rs. 50,000/-. He also submitted that the tribunal has committed error in not awarding any compensation towards attendant charges and in awarding a meagre sum of Rs. 2,000/- towards conveyance and nourishing food. According to the learned Counsel under these heads the tribunal ought to have awarded at least Rs. 45,000/-. He also contended that the award of Rs. 10,000/- towards future medical expenses is inadequate and it deserves to be enhanced to Rs. 25,000/-.

Per contra, Sri. O. Mahesh, learned Counsel for the first respondent - insurance company would urge that even as per the specific case of the claimant, as on the date of the accident he was working as a cleaner in the lorry and at the time of the accident he was discharging his duty as cleaner, as such the injury suffered by him was during the course of employment and it was an employment injury therefore as per proviso (i) to Section 147(1)(b) of the Act, the liability of the insurer is limited to the liability arising under the Workmen''s Compensation Act (for short ''W.C. Act''). It is his further submission that assuming that the compensation awarded under some of the heads is to some extent on the lower side, the overall compensation awarded is just and reasonable and if the liability of the insurer is restricted to the liability arising under W.C. Act, liability of the insurer would not be more than the compensation already awarded by the tribunal and therefore there is no ground for interference with the judgment under appeal.

He further contended that in the absence of any acceptable evidence regarding functional disability suffered by the claimant, the tribunal is not justified in awarding substantial amount towards future loss of income and therefore the question of enhancing the compensation payable under this head does not arise. It is his further submission that in the light of the specific pleading by the claimant with regard to his monthly income, there is no scope for increasing the monthly income as assessed by the tribunal at Rs. 2,500/-.

In reply, Sri. Vishwanath contended that perusal of copy of the policy which is produced before this Court indicates that the insurance company by accepting additional premium had undertaken to cover the wider liability in respect of the employees of the insured and therefore the liability of the insurance company is unlimited as such the insurer is liable to indemnify the insured to the entire extent of liability incurred by him towards the claimant.

Alternatively, he contended that in view of the fact that since the claimant was out side the lorry when it ran over him, ht would fall within the category of ''third party'' though he was an employee of the owner of the lorry, in which event the insurer of the lorry is liable to indemnify the insured to the entire extent of his liability towards the claimant.

We have bestowed our serious considerations to the submissions made on both sides, perused the records and the judgment under appeal.

As could be seen from the pleadings and the evidence on record, there is no dispute as to the manner in which the accident occurred. The claimant while was attending to the cleaning and greasing work beneath the lorry, the driver of the lorry drove the vehicle unmindful of the claimant lying beneath the lorry, as a result the back wheel of the lorry ran over the claimant and he sustained fracture of pelvis and also fracture of shaft of left femur. Therefore, the tribunal is justified in answering the issue regarding actionable negligence in favour of the claimant and against the driver of the lorry.

The evidence on record further establishes that immediately after the accident, he was shifted to Sanjay Gandhi Hospital where he was treated as inpatient. Though the admission record marked as Ex.P.8 indicates that he was admitted to the Hospital on 21.11.2002 and discharged on 27.2.2003 and thereby he was in the hospital for 98 days, copy of the discharge record and the progress sheet maintained by the hospital indicates that he was discharged on 30.1.2003 and not on 27.2.2003. In fact in the admission record - Ex.P.8, there is over-writing both in respect of date of discharge and the number of hospital days. Be that as it may, the case record indicates that during the treatment as inpatient, he underwent surgery on 20.1.2003 for correction of fracture of shaft of left femur and during the surgery, K-nail was used and he was discharged on 30.1.2003. From the records, it is further noticed that the appellant was re-admitted in Sanjay Gandhi hospital on 23.10.2003; on 27.10.2003 he was operated, K-nail was removed and subsequently on 23.12.2003, wound debridement was done, external fixture was fixed and ultimately he was discharged on 7.1.2004. From this, it is clear that the claimant was in-patient in the hospital for nearly 10 months. Under these circumstances, it is reasonable to hold that the claimant has undergone great amount of pain and sufferings. The evidence of the doctor examined as PW.2 would also indicate that in spite of the best treatment the claimant has suffered permanent disability, which has affected the future enjoyment of life and his future earning to great extent if not to the extent of 100% as deposed. The evidence of PW.2 further establishes that the claimant has suffered shortening of left lower limb by 2 1/2 inches and this has resulted in limping. Thus the claimant is not in a position to enjoy his life as before. He has to put up with this discomfort and inconvenience through out the rest of his life on account of the permanent disability suffered by him. Thus there is great loss of amenities in life of the claimant. However in spite of the same, the tribunal has not awarded any compensation towards loss of amenities.

The tribunal on the basis of the pleadings and evidence of the claimant, has assessed the monthly income at Rs. 2,500/-. In column No. 6 of the claim petition meant for mentioning monthly income, the claimant has stated therein as Rs. 2,000/-. In paragraph 22(c) once again the claimant has stated that he was working as cleaner cum loader and un-loader in the lorry on a monthly salary of Rs. 2,000/- and since the date of the accident, he is not attending to his duty as such he has lost his income at the rate of Rs. 2,000/-per month. In his examination-in-chief filed by way of affidavit also the claimant has reiterated this fact. Thus it is the specific case of the claimant that he was getting salary of Rs. 2,000/- per month.

However in his evidence he has stated that in addition to the salary he was also getting daily batta and free food. But he has not indicated the quantum of batta he was getting. This part of the evidence of PW. 1 has not been seriously challenged in the cress examination. No doubt, in the pleadings, the claimant has not stated that he was getting daily batta and free food in addition to the salary. Nevertheless judicial notice of the fact may be taken that employees such as drivers and cleaners in lorries who travel long distance along with the lorry are generally paid batta apart from their salary to meet their incidental expenses. Therefore, in our opinion, the tribunal is justified in quantifying the income of the claimant at Rs. 2,500/-per month. In the light of the specific case of the claimant with regard to his salary and other earnings, we see no ground to assess the monthly income of the claimant at any rate higher than Rs. 2,500/-.

Having regard to the fact that the claimant was inpatient in the hospital for nearly 10 months, at the time of discharge from the hospital he must have been advised to take rest for some more time. Therefore, in our opinion, the claimant is entitled for loss of earning during treatment and laid up period at least for 12 months.

The evidence of PWs. 1 and 2 establishes that the claimant has suffered permanent disability, which comes in the way of his future earning capacity. According to the evidence of PW.2, the check x-ray taken showed mal-union of the fracture of the femur, there is shortening of the left lower limb by 2 1/2 inches, there is restriction in the movement of left lower limb, he cannot walk without the help of an attender or walker and the is unable to sit cross leg. PW.2 has further stated that the total permanent physical impairment of the left lower limb is 89% and the whole body disability is 45%. According to PW.2, there is no chance of improvement and the claimant will not be able to do any manual work. Thus according to PW.2, functional disability is 100%. Though PW.2 has been cross examined at length, there is nothing to discard his evidence with regard to the permanent disability suffered by the claimant. Therefore, in the light of the nature of permanent disability suffered by the claimant and regard being had to his vocation as cleaner in the lorry, in our opinion, assessment of the functional disability by the tribunal at 25% is not proper and is on the lower side. The disability suffered by the claimant has been to a great extent affected his earning capacity as; work of a cleaner involves physical labour. However it cannot be said that the claimant is unable to do any work and earn. Though with the nature of permanent disability suffered the claimant is not in a position to do any work involving strenuous physical labour, certainly he can engage himself in such jobs which do not involve strenuous physical labour and earn some amount. Therefore, it cannot be said that the claimant has suffered 100% functional disability. Taking into consideration the nature of disability suffered by the claimant and its resultant effect on his future earning as a cleaner, in our opinion, the functional disability could be safely taken at 60% and on that basis the future loss of earning is required to be quantified.

The perusal of the medical record indicates that during the entire period of hospitalisation, there was no attendant for the claimant. In fact, on several dates, the doctors/nursing staffs have noted in the case sheet that there is no attendant to the patient. Therefore, we see no error committed by the tribunal in not awarding any compensation towards attendant charges. Notings made in the hospital record produced indicates that the entire cost of treatment has been waived off by the hospital authorities in view of poor economic condition of the claimant. From this, it is clear that the claimant has not spent any amount towards treatment, medicines and attendant charges. Therefore we see no ground to enhance the compensation towards medical expenses or to grant any amount for attendant charges. In view of the above discussion, we re-determine the compensation payable to the appellant as under:

Injury, pain and suffering Rs. 60,000-00 2. Loss of amenities Rs. 30,000-00 3. Medical expenses Rs. 08,000-00 4. Future medical expenses Rs. 10,000-00 5. Loss of earning during treatment and laid up period Rs. 30,000-00 (Rs. 2500 X 12) 6. Conveyance and nourishing food Rs. 10.000-00 7. Future loss of earning Rs. 2,88,000-00 (2,500 x 12 x 16 x 60/100). ----------------- Total Rs. 4,36,000-00 -----------------

Thus the claimant is entitled for total compensation of Rs. 4,36,000/- as against Rs. 2,05,000/- awarded by the tribunal.

No doubt, as per proviso (i) to Section 147(1)(b) of the Act, the liability of the insurer in respect of the employees of the insured carried in a goods carriage is limited to the liability arising under the W.C. Act. No doubt, as could be seen from the specific claim of the claimant, at the time of the accident he was discharging his duties as a cleaner in the lorry and therefore, the injury suffered by him occurred during the course of employment as such it was employment injury. However, before the tribunal, it appears the insurer did not contend that its liability is only to the extent of the liability under the W.C. Act, nor the insurer produced copy of the policy issued by it. However, before this Court the insurer has produced a copy of the insurance policy. Perusal of the copy of the policy indicates that the insurance company has collected additional premium to cover the legal liability for paid drivers/workmen No. 4 as per the endorsement No. 17, endorsement No. 17 reads as under:

Legal Liability to person employed in connection with the operation and/or maintaining and/or Loading and/or Unloading of Motor Vehicles. (For Goods Vehicle)

In consideration of the payment of an additional premium of...it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the Company shall indemnify the Insured against his legal liability under:

The Workmen''s Compensation Act, 1923 and subsequent amendments of that Act prior to the date of this Endorsement, the Fatal Accidents Act, 1855 or at Common Law in respect of personal injury to any paid driver (or cleaner or conductor or person employed in loading/or unloading but in any case not exceeding seven in number including driver and cleaner) whilst engaged in the service of the Insured in such occupation in connection with the and not exceeding seven in number and will in addition be responsible for all costs and expenses incurred with its written consent.

The premium having been calculated at the rate of Rs. 15/- per driver (and/or cleaner or conductor and/or person employed in loading and/or unloading but not exceeding seven in number including driver and cleaner). Provided always that:

(1) This Endorsement does not indemnify the Insured in respect of any liability in cases where the Insured holds or subsequently effects with any Insurance Company or Group of Underwriters a Policy of Insurance in respect of liability as herein defined for his general employees.

(2) The Insured shall take reasonable precautions to prevent accidents and shall comply with all statutory obligations.

(3) The Insured shall keep a record of the name of each driver cleaner conductor or person employed in loading and/or unloading and the amount of wages salary and other earnings paid to such employees and shall at times allow the Company to inspect such record.

(4) In the event of the Policy being cancelled at the request of the Insured no refund of the premium paid in respect of this Endorsement will be allowed.

Subject otherwise to the terms exceptions conditions and limitations of this Policy except so far as necessary to meet the requirements of the Motor Vehicles Act, 1988.

Thus from the above it is clear that the insurer by accepting additional premium has under taken to indemnify the insured to the entire extent of liability incurred by him even hi respect of the employees. In other words, the liability of the insurer is unlimited and it has to satisfy the entire award. Under these circumstances, question of considering the argument as to whether the claimant was a third party at the time of the accident does not arise. In view of the above, there is no substance in the contention of the learned Counsel for the respondent - insurer with regard to its liability being limited. Therefore, insurer is liable to indemnify the insured of the offending lorry to the entire extent of his liability towards the claimant. In view of the above it is not necessary for us to consider the question as to whether the claimant could be treated as third party.

In view of the above discussions, the appeal is allowed in part enhancing the compensation to Rs. 4,36,000/- as against Rs. 2,05,000/- awarded by the tribunal. The enhanced compensation of Rs. 2,31,000/-shall carry interest at 6% per annum from the date of the petition till the date of payment. The first respondent insurance company is directed to deposit the enhanced compensation with interest within 6 weeks from today. Out of the enhanced compensation, a sum of Rs. 2,00,000/- is ordered to be kept in FD in any Nationalised or Scheduled Bank for a period of 6 yeans in the name of the claimant with liberty to withdraw periodical interest quarterly. Balance amount of Rs. 31,000/- with accrued interest on the entire enhanced compensation is ordered to be paid to the claimant.