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Judgment
Ram Mohan Reddy, J.—These appeals arise out of common judgment and award dated 27th August 2011 of the XIII Addl. Small Causes Judge and Member, Motor Accident Claims Tribunal, Bengaluru, SCCH-15, (for short ''MACT'') in MVC Nos. 5663 to 5671/2009.
MFA Nos. 5146/2012, 5147/2012, 5148/2012, 5149/2012 and 5150/2012 are filed by the insurer of the offending motor vehicle calling in question the direction to pay compensation to the nine occupants of the offending motor vehicle being a Tata Sumo bearing certificate of registration KA-14/A-1034, a taxi with a permitted seating capacity of five passengers and a driver and the insurer being liable to the extent of permitted number of passengers and bound to cover higher of the various awards, in the light of the decision in National Insurance Co. Ltd. Vs. Anjana Shyam and Others, . In addition, in MFA No. 5147/2012, it is asserted that the claimant in MVC No. 5664/2009 was reported dead during pendency of the claim petition before the MACT and therefore, by application of Section 306 of the Indian Succession Act, 1925, proceeding stood terminated and the right to sue did not survive on the legal representatives hence could not prosecute the claim petition for compensation, for expenses incurred in the medical treatment, in the light of the decision of the Full Bench of this Court in Kannamma Vs. Deputy General Manager, .
MFA No. 10481/2011 is preferred by the claimant/injured in MVC No. 5665/2009 calling in question the very same judgment and award, alleging that the compensation is on the lower side.
There is no dispute over the finding recorded by the MACT attributing actionable negligence to the offending motor vehicle insured by the appellant in the accident that occurred on 26.04.2009, causing grievous injuries to the occupants, nine in number.
There is no dispute that the registration certificate of the offending vehicle permits seating capacity of five passengers and a driver, while, on the date of accident, there were 12 occupants and a driver, out of whom, 9 injured preferred MVC Nos. 5663 to 5671/2009 which were clubbed by the MACT and were disposed off by the common judgment and award impugned.
If the permitted number of passengers as per the seating capacity of the offending vehicle is 5 plus the driver, the insurer in terms of the policy of insurance, without doubt is bound to indemnify the owner, against risk of only 5 passengers in the offending vehicle, as held by the Apex Court in Anjana Shyam supra, while also bound to cover higher of the various awards, in other words, out of the nine claim petitions, five of the higher awards are to be satisfied by the insurer. The MACT to that extent was not justified in directing the insurer to satisfy all the nine awards by the judgment and award impugned.
There is force in the submission of the learned counsel for appellant that the claimant in MVC No. 5664/2009 reported dead during pendency of the proceeding before the MACT, in the light of Section 306 of the Indian Succession Act, 1925, regard being had to the decision of the Full Bench of this Court in Kannamma''s case supra, the right to sue of the legal representatives of the deceased claimant did not survive for a claim which they restricted to medical expenses. The MACT at paragraphs 22 and 36 of the judgment and award impugned directed payment of Rs. 68,200/- towards medical expenses incurred by the claimant, since deceased. The finding of the MACT is contrary to the decision of the Larger Bench and on that score, the finding in MVC No. 5664/2009 calls for interference.
The claimant/injured/appellant in MFA No. 10481/2011 suffered concussive head injury, fracture of right nasal bone, fracture of superior orbital ridge, fracture of left frontal bone, injury and laceration over left eye vision with less of vision and abrasion all over the body and was treated as inpatient at Shiradi Sai Hospital, whereafterwards, he was shifted to Manipal Hospital and was inpatient from 28.04.2009 to 06.05.2009, as indicated in the discharge summary/Exs. P-8 and 9, while, discharge summary/Ex. P. 10 discloses that claimant was admitted on 02.06.2009 and discharged on 04.06.2009 at Shankar Hospital, while Ex. P. 11 another discharge summary discloses that claimant was admitted on 11.08.2009 and discharged on 13.08.2009. The medical records, Exs. P. 36 to 39 of which P.W. 11 Medical record keeper spoke to, discloses nature of injuries and treatment extended to the claimant. P.W. 10, Dr. P. Mahesh Shanmugam, spoke to and testified to the disability sustained by the claimant which in his opinion is 30% to the whole body. Claimant/injured placed on record the medical bills, Ex. P. 12 totaling to Rs. 2,57,532/-, while P.W. 11 the record keeper Smt. T. Padma spoke to Ex. P. 39 inpatient bill which is part of Ex. P. 12 while bills placed before Court for the period from 26.04.2009 to 06.05.2009 disclosing expenses of Rs. 1,45,099/- and Rs. 59,130/- in all totaling to Rs. 2,08,329/- which the MACT rounded off to Rs. 2,08,330/- and one of the bills at Sl. No. 34 amounting to Rs. 19,000/- which was an advance payment made was discarded.
The claimant/injured having failed to place on record relevant material constituting substantial legal evidence of the fact that he was working as a driver earning Rs. 8,000/- per month, there was a necessity for the MACT to do some guess work over the monthly income of the injured.
The MACT reckoned Rs. 4,500/- as income of the injured and since the injured might have been out of duty for a period of three months and reckoning 20% as whole body disability in place of 30% opined by the doctor and that the claimant might have spent towards food and nourishment, conveyance, attendant charges, etc., awarded Rs. 5,12,100/- with interest at 6% per annum by the judgment and award impugned, under the following heads.
If regard is had to the fact that the claimant was unable to establish neither his avocation that he had as a driver nor income, no exception can be taken to the reasons, findings and conclusion arrived at by the MACT reckoning Rs. 4,500/- as monthly income of the injured.
The injured is said to be aged 27 as on the date of accident and injury and reckoning disability as 30% as opined by P.W. 10/Dr. P. Mahesh Shanmugam whose oral testimony stood the test of cross-examination, as nothing incriminating is elicited to discard the evidence, the MACT was not justified in reckoning the whole body disability as 20%. In the absence expertise in deciding the disability suffered by the claimant, there was no need for the MACT to do guess work to reduce the percentage of disability to 20% and that too without assigning any valid reasons for such a reduction. Reckoning 30% as whole body disability and the monthly income as Rs. 4,500/- applying multiplier 17 for the age 27 of the injured, the loss of future earning is Rs. 2,75,400/- as against 1,83,600/- awarded by the MACT, in other words, appellant is entitled to additional sum of Rs. 91,800/-.
Regard being had to the number of spells in which the injured was in and out of hospital for treatment, it is reasonable to reckon atleast 5 months as period of rest and if so done, appellant is entitled to Rs. 22,500/- as against Rs. 13,500/- awarded by the MACT and therefore, claimant is entitled to the balance of Rs. 9,000/-. In the facts and circumstances, the award of compensation under other heads of damage cannot be said to be on the lower side qualifying interference.
In the result, appeals are allowed in part. The appellant insurer of the offending motor vehicle is liable to pay compensation to the five occupants/claimants of higher compensation in terms of the decision in Anjana Shyam''s case and MVC No. 5665/2009 is dismissed. Judgment and award impugned is modified entitling the claimant in MVC No. 5665/2009/appellant in MFA No. 10481/2011 to Rs. 99,800/- rounded off of Rs. 1,00,000/- with interest at 6% per annum, in addition to what is awarded by the MACT and in all other respects, remains unaltered.
I.A. No. 2/2012 for stay in MFA Nos. 5149/2012 and 5146/2012 are disposed of.