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Judgment
These two appeals are directed against the judgment and award dated 18.12.2019 passed in MVC No.1226/2016 by the Senior Civil Judge at MACT at Holalkere (for short, 'the Tribunal'), whereby the Tribunal partly allowed the claim petition and awarded compensation of Rs.1,86,640/- with interest at the rate of 6%.
The factual matrix of the case is that, on 06.06.2009 at about 02:00 p.m., the claimant while returning from Sharma Dabha towards his lorry to attend his duty as a cleaner, the rider of TVS Star City motorcycle bearing registration No.KA-16/R-9603 came from Hiriyur side towards Chitradurga in a rash and negligent manner and dashed against the claimant. As a result, the claimant sustained injuries to his head, right leg and other parts of the body. Immediately he was shifted to District Hospital, Chitradurga for treatment. Subsequently, he filed a claim petition before the Tribunal claiming compensation for the accidental injuries he had sustained.
The Tribunal, upon assessment of oral and documentary evidence, partly allowed the claim petition as stated supra and directed the Insurance Company to make good the compensation. The said judgment is challenged by the Insurance Company in MFA No.297/2021 challenging the liability and the claimant filed MFA No.2409/2020 for enhancement of compensation.
Heard learned counsel for the respective parties.
The primary contention of the learned counsel for the Insurance Company is that the Tribunal has erred while fixing liability on the Insurance Company without appreciating the evidence placed on record that the rider of the offending motorcycle was not possessing valid driving licence at the time of accident. According to him, the Insurance Company has issued the statutory notice to the owner of the motorcycle to place the driving license of the rider of the motorcycle. Despite, either the owner or the rider failed to produce the driving license before the Insurance Company. Moreover, during the course of proceedings also, though such a contention was raised by the Insurance Company, by filing necessary application under Order XVI Rule 1 & 2 of CPC, either the rider or the owner failed to produce the driving licence before the Tribunal. In such circumstances, it is proved that the rider was not possessing the driving licence at the time of accident. Thus, the Tribunal, at the most, ought to have passed an order of pay and recover by directing the Insurance Company to make good the compensation initially with liberty to recover the same from the owner/insured of the motorcycle. He also contented that the Tribunal awarded exorbitant compensation, which requires interference by this Court. Accordingly, he prays to allow the appeal filed by the Insurance Company by rejecting the appeal filed by the claimant.
Per contra, learned counsel for the claimant in MFA No.2409/2020 contended that the Tribunal is justified in passing the order by directing the Insurance Company to make good the compensation, since no charge sheet has been laid against the rider of the motorcycle under Sections 3(1) and 181 of Motor Vehicles Act. In such circumstances, it could be presumed that the rider of the motorcycle was possessing valid driving licence at the time of accident. She further contented that the Tribunal is not justified in awarding meagre compensation. Accordingly, she prays to allow the appeal filed by the claimant by dismissing the appeal filed by the Insurance Company.
I have given my anxious consideration to the submission made by learned counsel for the respective parties and perused the impugned judgment and award and other documents made available before this Court.
As could be gathered from records, the occurrence of accident dated 06.06.2009 and coverage of insurance policy for the offending motorcycle are not in dispute. However, the contention of the learned counsel for the Insurance Company that the rider of the motorcycle was not possessing valid driving licence is concerned, I have perused the evidence of RW.1, the officer of the Insurance Company, where in his evidence he has categorically stated that despite issuing notice to the owner by the Insurance Company to produce the driving licence of the rider, the owner failed to produce the same. Thereafter, before the Tribunal, the Insurance Company has filed an application under Order XVI Rule 1 & 2 of CPC to produce the driving licence by directing the owner and the investigation officer. Though the Tribunal issued bailable warrant against them, they failed to appear before the Tribunal. In such circumstances, mere placing reliance on the charge sheet that the Police have not filed charge sheet against the rider of the motorcycle for not possessing valid driving license itself cannot be a ground to discard the evidence of RW.1, wherein he has specifically asserted that the rider was not possessing valid driving licence at the time of accident. The claimant also not placed any such document to discredit the assertion made by RW.1. In such circumstance, I am of the considered view that the Insurance Company is justified in claiming that the rider of the motorcycle was not possessing valid driving licence at the time of accident.
The Hon'ble Apex Court in the case of PAPPU VS. VINOD KUMAR LAMBA AND ANOTHER, reported in (2018) 3 SCC 208, and NATIONAL INSURANCE CO. LTD. VS. SWARAN SINGH, reported in (2004) 3 SCC 297 has held that though the rider was not possessing valid driving licence, the Insurance Company is liable to make good the compensation initially with a liberty to recover the same from the insured/owner of the offending motorcycle.
In the light of the aforesaid authoritative pronouncements, the liability to satisfy the award is required to be fastened on the insurer with liberty to recover the same from the insured. Accordingly, the impugned judgment and award passed by the Tribunal stand modified to the said extent.
The Tribunal, on an analysis of medical evidence and by considering the evidence of PW.2-Doctor has rightly assessed the disability of the claimant at 9%. As the claimant was aged 20 years at the time of accident, the Tribunal has rightly adopted the multiplier as ‘18’ and also rightly considered the monthly income of the claimant at Rs.6,000/-. Accordingly, the sum awarded under the head ‘loss of future income’ at Rs.1,16,640/- (Rs.6,000 x 12 x 18 x 9%) by the Tribunal, is just and proper.
Having regard to the injuries suffered by the claimant, I deem it just and appropriate to award a sum of Rs.45,000/- towards 'pain and suffering' as against Rs.25,000/- awarded by the Tribunal.
Having regard to the lasting effects of the injuries on the claimant, the claimant would also be entitled to a sum of Rs.40,000/- as against Rs.10,000/- towards ‘loss of amenities’.
As a consequence, the amount of Rs.10,000/-awarded by the Tribunal towards 'loss of income during laid up period' would also stand enhanced to Rs.18,000/- (6,000 X 3 months) treating the laid period as three months.
Having regard to the length of the stay of the claimant in the hospital and having regard to the injuries suffered, the claimant would be entitled to a sum of Rs.30,000/- towards 'attendant charges, nourishment and diet food', as against the sum of Rs.10,000/- awarded by the Tribunal.
As a As a consequence, the amount of Rs.10,000/-awarded by the Tribunal towards 'future medical treatment' would also stand enhanced to Rs.20,000/- awarded by the Tribunal.
The sum awarded under the head ‘conveyance' remain unaltered.
Consequently, the award of the Tribunal is modified and the claimant would be entitled to the following compensation: As As
awarded awarded
Sl. Compensation under
by the by this
No. different Heads
Tribunal Court
(Rs.) (Rs.)
Towards future medical 1. 10,000 20,000 treatment Towards attendant 2. charges, nourishment and 10,000 30,000 diet food 3. Loss of amenities 10,000 40,000 Towards loss of earning 4. during the laid up period of 10,000 18,000 treatment 5. Towards pain and suffering 25,000 45,000 Towards conveyance 6. 5,000 5,000 charges Towards loss of future 7. earnings on account of 1,16,640 1,16,640 permanent disability Total 1,86,640 2,74,640
Thus, the claimant is held entitled to the total compensation of Rs.2,74,640/- as against Rs.1,86,640/-, along with interest at the rate of 6% per annum from the date of petition till its realization.
As discussed above, the Insurance Company shall initially pay the compensation to the claimant and subsequently is at liberty to recover the same from owner/insured.
The Insurance Company is directed to deposit the amount of compensation awarded within six weeks from the date of receipt of a certified copy of this judgment.
The appeals are accordingly disposed of.
The amount in deposit, if any, shall be transmitted to the Tribunal.
The apportionment of compensation amount shall be in terms of the award of the Tribunal.