H. ESHWARAPPA v. VISHWANATH

(BY SMT. ANUSHA SANGAMI, ADV. FOR SRI. S. K. KAYAKAMATH, ADV. FOR R3; NOTICE TO R1 AND R2 DISPENSED WITH) …RESPONDENTS THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL-XII, AT BALLARI, IN M.V.C NO.509/2014, DATED 18.04.2016 AND ALLOW THE APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY. IN MFA NO. 103193 OF 2016 BETWEEN: THE BRANCH MANAGER, M/S RELIANCE GENERAL INSURANCE COMPANY LIMITED, NO.40, 1ST FLOOR, S.L.V. TOWERS, PARVATHI NAGAR, MAIN ROAD, BALLARI. NOW REPRESENTED BY ITS AUTHORIZED SIGNATORY, RELIANCE GENERAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, CTS # 172/171, V.A. KALBURGI SQUARE, DESAI CROSS, DESHPANDE NAGAR, HUBBALLI. …APPELLANT (BY SMT. ANUSHA SANGAMI, ADV. FOR SRI. S. K. KAYAKAMATH, ADVOCATE) AND:

1. H. ESHWARAPPA - 3 - NC: 2025:KHC-D:5475 MFA No. 102942 of 2016 C/W MFA No. 103193 of 2016 S/O. LATE CHANNA BASAPPA, AGE 50 YEARS, OCC: AGRICULTURIST CUM MILK VENDOR, R/O. METRI VILLAGE, PRESENTLY RESIDING AT SIREGERI VILLAGE, SIRUGUPPA TALUK, BALLARI DISTRICT.

2. VISHWANATH S/O. VEERABHADRAPPA, AGE 28 YEARS, DRIVER OF THE TATA SUMO, R/O. MOKA GONAL VILLAGE, BALLARI TALUK AND DISTRICT.

3. JITHENDRA KUMAR R. S/O. RAMACHANDRAPPA, AGE 34 YEARS, OWNER OF THE TATA SUMO, R/O. #16, KALAMAT STREET, W.NO.12, BALLARI. (BY SRI. G. R. TURAMARI, ADV. FOR R1; SRI. Y. LAKSHMIKANT REDDY, ADV. FOR R2; NOTICE TO R3 IS SERVED) …RESPONDENTS THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF MV ACT, 1988, PRAYING TO CALL THE RECORDS, HEAR THE PARTIES, AND ALLOW THE PPEAL AS PRAYED FOR BY SETTING ASIDE THE IMPUGNED JUDGMENT AND AWARD DATED 18.04.2016 PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL-XII, BALLARI, IN MVC NO.509/2014, WITH COST IN THE INTEREST OF JUSTICE AND EQUITY. THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - NC: 2025:KHC-D:5475 MFA No. 102942 of 2016 C/W MFA No. 103193 of 2016 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA)

1. MFA No.102942 of 2016 is filed by the claimant and MFA No.103193 of 2016 is filed by the Insurer against the judgment and award dated 18.04.2016 passed in MVC No.509 of 2014 by the MACT-XII, Ballari (for short, ‘the Tribunal’).

2. Both the appeals are taken up together for disposal since they arise out of common judgment.

3. The parties are referred to as per their ranking before the Tribunal.

4. It is the case of claimant that on 22.09.2013 claimant along with one H.Giriyappa who was petitioner in MVC No.510/2014 were going on the motorcycle bearing registration No.KA-34/W-965, from Ballari towards Hosapete. They met with an accident due to rash and negligent driving of Tata Sumo vehicle bearing registration - 5 - NC: 2025:KHC-D:5475 MFA No. 102942 of 2016 C/W MFA No. 103193 of 2016 No.Ka-34/8928. Both the claimant as well as said H.Giriyappa sustained grievous injuries. They treatment in VIMS Hospital, Ballari. Claimant sustained fracture of left clavicle bone along with the following injuries: 1) Lacerated would 6X10ms over injection right parietal region. 2) Abrasion 5X8cms forehead. 3) Loss of ala of the right side of nose. 4) abrasion over the lips. 5) abrasion over the right knee. 6) tenderness over the left clavicle region.

5. It is further contended that he had spent huge amount towards medical expenses. He has been suffering from permanent disability due to injuries sustained in the accident. He has also contended that he was aged about 48 years and was working as coolie and was doing milk vending business and earning Rs.8,000/- per month. With - 6 - NC: 2025:KHC-D:5475 MFA No. 102942 of 2016 C/W MFA No. 103193 of 2016 reasons prayed to award compensation of Rs.10,80,000/-.

6. The respondent No.3/insurer denied contention of the claim petitioner. It is further contended that driver of the offending vehicle was holding licence to drive LMV non- transport vehicle bearing DL No.6568/07- 08 dated 18.02.2008. He was not authorized to drive transport vehicle; however at the time of accident, he was driving transport vehicle and violated terms and conditions of policy of insurance and hence respondent No.3 is not liable to pay compensation. Respondent No.3/insurer also contended that owner of the vehicle violated terms and conditions of policy of insurance, therefore it is not liable to pay the compensation. With these reasons prayed to dismiss the claim petition.

7. From the rival contentions of the parties, the Tribunal framed necessary issues. - 7 - NC: 2025:KHC-D:5475 MFA No. 102942 of 2016 C/W MFA No. 103193 of 2016

8. The claimant to prove his case got examined two witnesses as PWs.1 and 3 i.e., himself as PW1 and examined a doctor who has issued disability certificate, as PW.3.

9. The Tribunal has clubbed both MVC Nos.509 and 510 of 2014 and recorded common evidence.

10. The claimants in both the cases have got marked 12 documents as per Exs.P1 to P12. Respondents examined two witnesses as RW1 and RW2 and got marked 4 documents as per Exs.R1 to R4.

11. The Tribunal after hearing both the parties and appreciating materials available on record, awarded total compensation of Rs.1,30,000/- to the claimant with interest at the rate of 7% per annum. The Tribunal also directed that all respondent are jointly and severally liable to pay compensation. The same is challenged by both the parties in the present case. - 8 - NC: 2025:KHC-D:5475 MFA No. 102942 of 2016 C/W MFA No. 103193 of 2016

12. Claimant has challenged the award enhancement of the compensation and Insurer has challenged on the ground of liability to pay compensation since the owner has violated conditions of policy of insurance and permitted the driver, who was not holding valid and effective driving licence, to drive that class of vehicle.

13. Heard the arguments of both the sides.

14. Learned counsel for the claimant submits that the amount of compensation assessed by the Tribunal is on lower side. The Tribunal has not awarded just amount of compensation towards medical and incidental expenses. The claimant was admitted as inpatient for 15 days in the Hospital. Thereafter he had taken follow up treatment. No amount of compensation was awarded towards attendant charges and special diet etc. The amount of compensation award towards loss of future earning capacity and amenities is meager sum of Rs.60,000/-, therefore prayed to enhance the said amount of compensation. - 9 - NC: 2025:KHC-D:5475 MFA No. 102942 of 2016 C/W MFA No. 103193 of 2016

15. He further submits that in view of the law laid down by the Hon’ble Apex Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited reported in (2017) 14 SCC 663, there is no need of special endorsement to drive transport vehicle. A person holding LMV licence can drive transport vehicle also. Therefore driving of transport vehicle without endorsement do not amount to violation of the conditions of policy of insurance. Hence both the insurer as well as owner are liable to pay the compensation.

16. Learned counsel insurer vehemently contends that in addition to awarding excessive amount of compensation, the Tribunal arbitrarily awarded interest at the rate of 7% per annum, which is on much higher side. Learned counsel also accepted that in view of the law laid down in the case of Mukund Dewangan referred supra, another ground taken by respondent/insurer is not tenable. Accordingly passed appropriate orders. - 10 - NC: 2025:KHC-D:5475 MFA No. 102942 of 2016 C/W MFA No. 103193 of 2016

17. Learned counsel for claimant in reply contend about the interest awarded by the Tribunal. Award of interest is the discretion of the Court or Tribunal. Exercising the said discretion, the Tribunal has awarded interest at the rate of 7% per annum. It is not arbitrary or exorbitant. Therefore this Court is not inclined to interfere in the said finding.

18. The following questions arise for determination: i. Whether claimant entitled enhancement of compensation? ii. Whether insurer is absolved from its liability to the pay compensation? iii. What order?

19. The main contention of the appellant/claimant is that no amount of compensation was awarded towards attendant charges, special diet and conveyance charges. PW1 in his evidence has stated that he was admitted as inpatient in the hospital for more than 15 days and thereafter he took follow up treatment. Admittedly they - 11 - NC: 2025:KHC-D:5475 MFA No. 102942 of 2016 C/W MFA No. 103193 of 2016 were not considered by the Tribunal. The Tribunal awarded in all Rs.20,000/- towards medical expenses and attendant charges. Claimant had taken treatment in VIMS Hospital, Ballari. He has produced some of the medical receipts which are already considered by the Tribunal.

20. Looking to the nature of injury and treatment taken as inpatient, and follow up treatment, some more amount needs to be added towards attendant charges, special diet and conveyance charges.

21. Claimant was said to be working as coolie and earning Rs.8,000/- per month. No amount of compensation is awarded towards loss of income during laid up period. Atleast for a period of 2 to 3 months he might not have been in a position to attend to his work and lost his earnings.

22. The Tribunal has assessed disability on the basis of the evidence of PW2. As per evidence of PW2 claimant has been suffering from permanent disability to an extent of 15%, but the Tribunal has not calculated loss of future earning capacity due to permanent disability, but - 12 - NC: 2025:KHC-D:5475 MFA No. 102942 of 2016 C/W MFA No. 103193 of 2016 awarded in all Rs.60,000/- towards loss of future income as well as permanent disability. It is settled law that fracture of clavicle bone may not lead to permanent disability, affecting the earning capacity. However it may lead to some difficulty in day to day work because of which the claimant may have to suffer of discomfort and inconvenience and loss of some of the amenities. Therefore the amount of Rs.60,000/- awarded by the Tribunal on both the head is inadequate. Considering all these facts and circumstances claimant is entitled for enhancement of global compensation of Rs.50,000/- in addition to whatever amount awarded by the Tribunal.

23. The main contention of the respondent is that driver of the offending vehicle was driving the vehicle without having valid licence. In view of the law laid down by the Hon’ble Apex Court in the case of Mukund Dewangan referred supra, the said contention do not hold any water and person having LMV driving licence can drive transport vehicle without any special endorsement it. Therefore the finding of the Tribunal that - 13 - NC: 2025:KHC-D:5475 MFA No. 102942 of 2016 C/W MFA No. 103193 of 2016 respondents are jointly and severally liable to pay compensation cannot be disturbed.

24. For the aforesaid discussions, the above said points are answered accordingly and this Court pass following: ORDER i. MFA No.103193/2016 is dismissed. ii. MFA No.102942/2016 is allowed in part. iii. The judgment and award dated 18.04.2016 passed in MVC No.509 of 2014 on the file of MACT-XII, Ballari is modified. iv. Claimant is entitled for enhanced global amount of compensation of Rs.50,000/- in addition to whatever amount awarded by the Tribunal along with interest at the rate of 6% per annum on the enhanced amount of compensation from the date of petition till its realization. v. The respondent No.3 shall deposit the said enhanced amount of compensation with - 14 - NC: 2025:KHC-D:5475 MFA No. 102942 of 2016 C/W MFA No. 103193 of 2016 interest within a period of six weeks from the date of drawing of the award. vi. Whatever amount deposited by the insurer before this Court shall be transmitted to the Tribunal. vii. Send back the TCR along with copy of this judgment. Sd/- (UMESH M ADIGA) JUDGE KGK /CT-AN List No.: 1 Sl No.: 7