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Judgment
B. Sreenivas Gowda, J.—MFA 30483, 30491, 30484, 30485 of 2008 and MFA Nos. 30561, 30562 of 2011 are filed by the insurer of offending truck challenging the judgment and awards passed by the Tribunal on the ground of liability.
MFA Nos. 30121 and 30119 of 2013 are filed by the injured-claimants seeking enhancement of compensation awarded by the Tribunal.
As all these appeals are arising out of a common road traffic accident, with the consent of learned counsel appearing for the parties, they are heard together and disposed of by this common judgment.
As there is no dispute regarding death of four persons and injury sustained by several persons in a road traffic accident occurred on 20.06.2005 due to rash and negligent driving of Ashok Leyland Cargo Truck bearing registration No. GA-01/W-6089 by its driver, the points that arise for consideration in these appeals are;
"i) Whether finding of the Tribunal on liability in fastening the same on the insurer of truck is sustainable in law?
ii) Whether quantum of compensation awarded in MVC No. 599/2007 and 598/2007 which are subject matter of MFA Nos. 30121 and 30119 of 2013 is just and reasonable or does it call for enhancement?"
Sri Sudarshan M., learned counsel appearing for the insurer of truck submits the deceased and injured persons having travelled in the offending truck as unauthorized passengers as evident from the complaint and the FIR, their risk is not covered under the policy and therefore the insurer of truck is not liable to indemnify the owner of the truck and to pay compensation to the claimants. Therefore, he prays for allowing the appeals filed by the insurer of truck by modifying the judgment and award of the Tribunal on liability.
Regarding quantum he submits, compensation already awarded by the Tribunal is just and reasonable, there is no scope for enhancement and therefore, he prays for dismissing the appeals filed by the claimants.
Sri Babu H. Metagudda and Sri Chandrakanth Koujalagi, learned counsel appearing for the claimants submit that deceased persons had travelled in the offending truck as coolies under the owner of the truck, considering the same the Tribunal was justified in fastening the liability on the insurer of offending vehicle.
Regarding quantum, Sri Chandrakanth Koujalagi, learned counsel appearing for the appellants-claimants in MFA 30121 and 30119/2013 submits, compensation awarded by the Tribunal is not just and reasonable and therefore he prays for allowing the appeals filed by the claimants by enhancing compensation and dismissing the appeals filed by the insurer of the offending truck.
Regarding liability:
In the complaint lodged by one Hanamanth marked along with the FIR as Ex. P.1 and P. 2 respectively it is clearly stated that about 40-50 persons including deceased Shanthabai and Pandit Rajput and injured Ramchandra, Ramappa and Tippavva after finishing coolie work while returning to their village in the offending truck for Deepavali festival, the truck met with an accident as a result four persons died and several persons injured. In column No. 5 and para-22 of the claim petition filed in MVC No. 570/2005 and 569/2005 seeking compensation for the death of Shanthabai and Pandit Rajput, it is pleaded that at the time of accident deceased Shantabai and Pandith Rajput were working as coolies under the first respondent-owner of the offending truck.
Even in the claim petitions filed in MVC No. 598, 599 & 600 of 2007 by the injured-claimants it is stated that they were proceeding in the offending lorry as coolies under the owner of the truck. Averments made in the claim petitions filed in MVC Nos. 570 and 569/2005 and in MVC Nos. 598, 599 & 600/2007 that the deceased and injured persons were travelling in the truck as coolies under the owner of the truck was corroborated by oral evidence of claimants. From the above discussion it is clear that at the time of accident deceased viz., Shantabai and Pandith Rajput and injured Ramchandra, Ramappa and Tippavva had travelled in the offending truck as coolies under the first respondent owner of the offending truck. Admittedly, the seating capacity of the truck was 4+1, therefore the policy covers the risk of the deceased Shantabai and Pandith Rajput and injured-Ramchandra and Ramappa.
At the same time, it cannot be said that deceased Kasturibai aged about 15 years and Appu aged about 2 years had travelled in the offending lorry as coolies. Therefore, the finding of the Tribunal on liability is to be confirmed in MVC Nos. 570/2005, 569/2005, 598 and 599 of 2007 which were filed for seeking compensation for the death of Shanthabai and Pandith Rajput and for the personal injuries sustained by Ramchandra and Ramappa and it is to be modified in MVC No. 571/2005 and 568/2005 filed for seeking compensation for the death of minor persons viz., Kasturibai and Appu. Therefore, MFA Nos. 30483/2008, 30484/2008, 30561/2011 and 30562/2011 filed by the insurer of truck challenging the finding of the Tribunal on liability in MVC Nos. 570 and 569/2005 and MVC Nos. 598 and 599/2007 are liable to be dismissed. MFA Nos. 30491/2008 and 30485/2008 filed by the insurer challenging the finding of the Tribunal in MVC Nos. 571 and 568/2005 on liability are required to be allowed.
Now we have to see whether compensation awarded in MVC Nos. 599/2007 (MFA 30121/2013) and 598/2007 (MFA 30119/2013) is just and proper or not.
MFA No. 30121/2013 is arising out of MVC No. 599/2007. Injured-claimant in this case is one Ramappa. As per Ex. P.5 wound certificate he has sustained following injuries;
"i) Tenderness present over both shoulder joint, movements of both shoulder joint are painful and restricted.
ii) Tenderness present over the back from vertebra."
X-ray of spine shows evidence of compression fracture of L-3 vertebra and shoulder joint. PW.4 Dr. A.A. Maagi in his evidence has stated that claimant has suffered disability of 30% to 35% related to spine.
Considering nature of injuries sustained by the claimant and the disability stated by the doctor, a sum of Rs. 25,000/-is awarded towards pain and suffering as against Rs. 10,000/- awarded by the Tribunal.
Though claimant has stated that he has spent Rs. 50,000/- towards medical expenses, no bills are produced regarding amount spent towards medical and hospital expenses. Therefore, Rs. 5,000/- awarded by the Tribunal towards medical expenses is just and proper.
He was treated as inpatient for one week at District Hospital, Belgaum. Considering the duration of treatment, a sum of Rs. 5,000/- awarded by the Tribunal towards incidental expenses such as conveyance, nourishment and attendant charges is just and reasonable and there is no scope for enhancement under this head.
In the absence of proof of income, considering his age as 40 years, year of accident as 2005 and avocation as coolie, his income could be assessed at Rs. 3,250/- per month. Nature of injuries suggests he must have been under rest and treatment for a period of three months therefore, a sum of Rs. 9,750/- is awarded towards loss of income during laid-up period.
Considering nature of injuries sustained, disability stated by the doctor and an amount of discomfort and unhappiness that he has to suffer in his future life, a sum of Rs. 15,000/- is awarded towards loss of amenities as against Rs. 5,000/- awarded by the Tribunal under this head.
His income is now assessed at Rs. 3,250/- per month, multiplier applicable to his age group is 15 as against 14 applied by the Tribunal. 10% disability considered by the Tribunal is just and proper. Therefore, loss of future income works out to Rs. 58,500/- (3250X10/100X12X15) and it is awarded as against Rs. 50,400/- awarded by the Tribunal.
Thus, he is entitled for the following compensation:
Claimant is entitled to additional compensation of Rs. 42,850/-.
MFA 30119/2013 is arising out of MVC No. 598/2007. Injured claimant in this case is one Ramchandra. As per Ex. P.5-wound certificate he has sustained following injuries;
"i) Tenderness present over the both shoulder joint, movements of both shoulder joint are painful and restricted.
ii) Tenderness present over the back from vertebra."
X-ray of spine shows evidence of compression fracture of L-3 vertebra and shoulder joint. PW.4 Dr. A.A. Magi has deposed that during the course of his examination, he has noticed old healed operated scar mark present over the back. There is tenderness present over D-6 and D-7 spinous process of thoracic cerebra and at C-7 cervical cerebra. He has stated that claimant had suffered disability of 55% to 60% to whole body.
Considering nature of injuries sustained by the claimant, a sum of Rs. 40,000/- is awarded towards pain and suffering.
In the absence of production of medical bills, a sum of Rs. 10,000/- awarded by the Tribunal towards medical expenses is just and proper and there is no scope for enhancement under this head.
He was treated as inpatient for 15 days at Neuro Science Centre, Bijapur. Considering the duration of treatment, a sum of Rs. 7,000/- is awarded towards incidental expenses such as conveyance, nourishment and attendant charges.
In the absence of proof of income, considering his age as 23 years, year of accident as 2005 and avocation as daily wager, his income could be easily assessed at Rs. 3,250/- per month. Nature of injuries suggests he must have been under rest and treatment for a period of four months therefore, a sum of Rs. 13,000/- is awarded towards loss of income during laid-up period.
Considering nature of injuries sustained, disability stated by the doctor and an amount of discomfort and unhappiness that he has to suffer in his future life, a sum of Rs. 25,000/- is awarded towards loss of amenities.
His income is now assessed at Rs. 3250/-, multiplier applicable is 18, disability taken by the Tribunal at 20% to whole body is sound and proper. If so loss of future income works out to Rs. 1,40,400/- (3,250X20/100X12X18) and it is awarded.
Thus, he is entitled for the following compensation:
Thus the claimant is entitled to additional compensation of Rs. 67,200/-. Hence, the following:
"ORDER
MFA Nos. 30483, 30484 of 2008, 30561 and 30562 of 2011 are dismissed as devoid of merit.
MFA Nos. 30491 and 30485 of 2008 are allowed. Finding of the Tribunal on liability is modified. The insurer of offending lorry is exonerated from liability and liability is fastened on the owner of the lorry. It is open to the claimants to recover the compensation from the owner of the lorry. If the insurer has already satisfied the awards in these two cases, it is open for the insurer to recover the compensation paid by them to the claimants from the owner of the vehicle.
MFA Nos. 30121/2013 (MVC No. 599/2007) and 30119/2013 (MVC No. 598/2007) are allowed in part.
In MFA No. 30121/2013 compensation awarded by the Tribunal is enhanced from Rs. 75,400/- to Rs. 1,18,250/-. The claimant is entitled for additional compensation of Rs. 42,850/- with interest @ 6% per annum from the date of petition till the date of realization excluding the interest for the delayed period of 667 days in filing the appeal.
In MFA No. 30119/2013 compensation awarded by the Tribunal is enhanced from Rs. 1,68,200/- to Rs. 2,35,400/-. The claimant is entitled for additional compensation of Rs. 67,200/- with interest @ 6% per annum from the date of petition till the date of realization excluding the interest for the delayed period of 667 days in filing the appeal.
Insurance Company is directed to deposit the additional compensation amount together with interest excluding the interest for the delayed period within two months from the date of receipt of a copy of this judgment. From the balance of compensation amount to be deposited by the Insurance company, 70% with proportionate interest is to be invested in Fixed Deposit in the name of claimant in any Nationalized Bank/Scheduled Bank/Grameena Bank for a period of three years with a right of option for the claimant to withdraw interest periodically. Remaining 30% with proportionate interest is ordered to be released in their favour.
Draw up the awards accordingly.
No order as to costs."