C. Srinivasalu vs Kata Siraj Basha and Others

Ram Mohan Reddy, J.—1. Claimant in MV 483/2008 on the file of the Additional Sr. Civil Judge & MACT, Bangalore, (for short ''MACT'') dissatisfied with the quantum of compensation and the finding declining to fasten liability on the insurance company to pay compensation, by judgment and award dated 24th September 2010, has preferred this appeal.

The appellant, while riding motor cycle bearing Registration No. AP 03 K 1438 on 6.8.2007, at about 5.40 p.m. near check post, on NH 218, on Palamaneer-Madanapalli Road, the driver of Autorickshaw bearing registration No. AP-03-U-9303, owned by the first respondent and insured with the 2nd respondent, driving at a high speed and in a rash and negligent manner dashed against the motor cycle resulting in grievous injuries to the appellant, whence despite treatment at several hospitals by surgical intervention, nevertheless, the right leg above knee was amputated.

In the petition under Section 166 of the Motor Vehicles Act, 1988, claiming Rs. 8,00,000/- as compensation, it was asserted that appellant was aged 30, a loader, earning Rs. 5,000/- per month due to the injuries and amputation of right leg above knee, is functional disabled. Appellant was examined as PW.1, and examined two witnesses PW.2 and 3 and marked Ex. P1 to P20, in support of the claims. While for the respondents, the 1st respondent insured was placed ex-parte, and the 2nd respondent Insurance Company examined one Krishna Sheernali as RW1, marked 4 documents as Ex. R1 to R4 in support of its defence that it was not liable to make good the compensation in the light of the driver of offending motor vehicle was charge sheeted for offence under Section 3(1) read with Section 181 of the Motor Vehicles Act, 1988, (for short ''MV Act) for not possessing a valid driving licence as on the date of accident to drive the offending motor vehicle.

The MACT having regard to the material on record, more appropriately, the testimony of Dr. PW.2, who assessed the disability as 80% to the lower limb and the requirement to change the artificial limb once in 2-3 years, costing Rs. 2,00,000/-, coupled with, medical record of R.L. Jalappa Hospital disclosing the number of days as an inpatient and treatment extended to the appellant, and regard being had to the police records, attributable actionable negligence on the part of the driver of autorickshaw and determined compensation of Rs. 7,84,000/- with interest at 6% p.a.. The MACT recorded a finding that the Insurance company was absolved of the liability to pay compensation on the sole premise that the driver of the vehicle was prosecuted for offences under Section 3(1) read with Section 181 of the ''MV Act'' for not possessing a valid driving licence to drive the offending motor vehicle on the date of the accident by the judgment and award impugned.

As regards, finding on fastening of liability, learned counsel for the appellant submits that merely because the driver of the autorickshaw was prosecuted by filing a charge sheet alleging offence under Section 3 (1) read with Section 181 of the MV Act, per se, it cannot be said is proof of violation of terms and conditions alleged to be fundamental to the cause of the accident. Learned counsel places reliance upon the decisions in M/s. Oriental Insurance Company Limited v. Ramesh B. Jain and Others , ILR 2003 Kar. 5164, and order dated 25th November 2015 in United India Insurance Co. Ltd. v. Smt. Rathna and another, in MFA No. 9308/2011, wherein, the learned single judge followed the dictum of the Supreme Court in Rukman v. New India Assurance Company , (1998) 9 SCC 160), observing, though under Section 96(2) (b) (ii) of the Motor Vehicles Act, 1939, that the Insurance Company has the burden of establishing a fact that the driver of the motor vehicle did not possess a valid driving licence as on the date of accident and in the absence of summoning the driver of the vehicle or records from the road transport authorities, were circumstances which establish that such burden was not discharged.

In the facts of this case, though the defence of the Insurance Company as can be noticed from the statement of objections and the evidence of Rw1 coupled with the records Ex. R1 to R4 the thrust of the case is that the driver of the motor vehicle having not produced the driving licence, within the period stipulated in Regulation 32 of the Rules of Road Regulations, 1989, when charged for offences under Section 3(1) read with Section 181 of the MV Act in the charge sheet Ex. R4, on which, the appellant too placed reliance upon to establish the factum of the accident and the cause thereof, the MACT was fully justified in declining fastening liability on the Insurance Company.

There can be no doubt that the charge sheet Ex. R4, states that the driver of the offending motor vehicle, is accused of commission of offences under the Indian Penal Code and violation of Section 3(1) read with Section 181 of the ''MV Act'' for not producing the driving licence, despite notice, by the investigating officer of the State constabulary. Except for the testimony of an officer of the insurer, none of the officers of the road transport authority or the constabulary, were examined in support of the defence of the insurer nor was the driver of the offending motor vehicle summoned to tender evidence much less, the insured called upon to tender evidence for noncompliance over failure to employ driver in possession of a valid driving licence.

In the facts and circumstances, the submissions of learned counsel for the Insurance company are without substance.

The only reason assigned by the MACT, as is palpable from paragraph-20 of the judgment and award impugned is that the filing of charge sheet against the driver of the offending vehicle, tantamount to violation of terms and conditions of the policy of insurance, which in the facts and circumstances, supra, is unsustainable.

Similar is the view taken by this Court in Ramesh B. Jains case, supra, as also in Rathna''s case. The finding of the MACT, decline to fasten the liability on the Insurance Company calls for interference.

MACT determined the following compensation:

Regard being had to the injuries, that is, fracture of right femur with comminuted fracture, fracture of right tibia extending upto middle third; segmental fracture of fibula at upper middle 1/3rd; fracture of 2nd and 3rd proximal of the leg, fracture of neck of 5th metacarpal right hand leading to amputation of right leg above knee, the award of compensation under different heads, cannot be said to be either meager or on the lower side. However, the MACT fell in error in not awarding compensation towards amputation of leg above knee.

It is must be noticed that the MACT awarded Rs. 56,000/- towards loss of income during laid up period while also awarded future loss of income of Rs. 3,84,000/- from the date of accident and injury, though 50% only. If the choice of multiplier is adopted as applicable to the age of the injured and future loss of income is calculated then it is from the date of accident and injury, hence there can be no duplication in the award of compensation under the head of loss of income during laid off period, as rightly submitted by Sri O. Mahesh, learned counsel for the insurance company.

Appellant is entitled to in the least Rs. 1,00,000/- towards amputation of the leg above knee. If Rs. 56,000/- towards loss of income during laid up period is set-off, appellant is entitled to the balance of Rs. 44,000/-.

In the result, this appeal is allowed in part. The judgment and award impugned is modified fastening the liability on the insurance company to pay the compensation and the appellant is entitled to Rs. 44,000/- with interest at 6% p.a. from the date of petition, in addition to what is awarded by the MACT and in other respects remains unaltered.