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Judgment
MFA 476/2009 and MFA 477/2009 are filed by the insurer of offending vehicle challenging the judgment and award of the Tribunal on the ground of liability. MFA 4142/09 and MFA 4143/09 are filed by the claimants seeking enhancement of compensation.
As all these four appeals are arising out of a common road traffic accident and common judgment but different awards of the Tribunal, they are heard together, admitted and with the consent of the learned Counsel appearing for the parties, they are taken up for final disposal.
Learned Counsel appearing for the insurer of offending vehicle submits, vehicle in question is a light goods vehicle and driver having possessed the licence to drive light motor vehicle was not authorised to drive the light goods vehicle as on the date of accident and the Tribunal has committed an error in fastening liability against the insurer of offending vehicle, that too, without reserving liberty to the insurer to pay and recover the same from the owner of the offending vehicle. In support of his submission, he relied upon the judgment of Apex Court in the case of New India Assurance Co. Ltd. vs. Roshanben Rahemansha Fakir and another, reported in 2008 AIR SCW 4048. With this, he prays for allowing the appeals preferred by the Insurance Co. and set aside the judgment and award made by the Tribunal, in so far as liability is concerned and saddle the liability against the owner of the offending vehicle.
Whereas, the learned Counsel appearing for the claimants submits the driver of offending vehicle having possessed the driving licence to drive light motor vehicle was authorised to drive the offending vehicle, which is classified as light goods vehicle and therefore, the Tribunal considering the same, has rightly fastened the liability against the insurer of offending vehicle. He submits, quantum of compensation awarded is on the lower side and therefore he prays for allowing the appeals preferred by the claimants by enhancing the compensation and dismiss the appeals preferred by the insurer of offending vehicle.
Sri. T. Mohan Kumar, learned Counsel appearing for second respondent which is the insurer of two wheeler submits, in view of dismissal of claim petitions against the insurer of two wheeler, he has nothing to say in the matter.
Respondents 1, and 2 in MFA 476/09 who are the claimants and the owner of offending jeep, are served and remained unrepresented. In MFA 477/09, owner of offending jeep is served and remained unrepresented. In MFA 4142/09 notices were served on R.2 and R.4, who are insurers of two wheeler and the offending jeep respectively and they were represented through their Counsels. Notice to R. 1 and R.3 is dispensed with. In MFA 4143/09 R.2 - insurer of offending vehicle was served and represented through counsel and notice to R. 1 was dispensed with.
After hearing the learned Counsel appearing for the appellant/insurer of offending jeep and the learned Counsel appearing for the claimants and the insurer of two wheeler, the points that arise for my consideration in the appeals are:
Whether Tribunal is justified in fastening liability against the insurer of offending jeep and whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?
Brief facts of the case as averred in the claim petitions are on 16-10-03 when claimants were travelling in their motor cycle, at Jeppinamogaru the offending jeep bearing registration No. KA-21-4242 driven by its driver in a rash and negligent manner, dashed against their motor cycle. As a result, they fell down and sustained injuries. The rider of the two wheeler, namely Abuacker Siddiq filed a claim petition in MVC No. 1743/2003 under Sec. 166 of Motor Vehicles Act, against the owner and the insurer of offending jeep, whereas, pillion rider - Mohammad Sali filed a claim petition in MVC No. 1746/2003 under Sec. 166 of Motor Vehicles Act. against the owners and insurers of both the two wheeler and the offending jeep.
The Tribunal holding both the claimants had sustained injuries in the road traffic accident occurred on 16-10-03 due to rash and negligent driving of offending jeep by its driver, awarded compensation of Rs. 75,000/- and Rs. 89,000/- respectively and fastened the liability against the insurer of offending jeep.
The offending jeep is classified as a light goods vehicle. Admittedly, the driver has got driving licence to drive light motor vehicle. Light motor vehicle as defined under Sec. 2(21) of the Motor Vehicles Act, 1988, means:
(21) "light motor vehicle" means, a transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road-roller, the unladen weight of any of which, does not exceed 7,500 kilograms.
Admittedly the unladen weight of the offending jeep is less than 7500 kg. and it comes within the definition of ''light motor vehicle''. In such cases, the insurer of jeep cannot escape from their liability to pay compensation to the claimants who are third parties to the accident but they have a right to recover the same from the owner of the vehicle, as per the decision of the Supreme Court in Oriental Insurance Co. Ltd. Vs. Angad Kol and Others, .
In that view of the matter, finding of the Tribunal on liability is to be modified, holding the insurer is liable to pay compensation awarded by the Tribunal to the claimants with a right to recover the same from the owner of the offending jeep.
Now, I have to see whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement.
In MFA 4142/09 (MVC 1746/03) :
The claimant is one Mohammed Sali.
As per Ex.P. 29 - wound certificate, he had sustained the following injuries:
i) Abrasion over right forearm lower third of right thigh
ii) Punctured wound on middle of right skin
iii) Fracture middle third of right tibia and fibula
Injuries sustained by him are also evident from discharge summary - Ex.P.30 and supported by oral evidence of the claimant and doctor examined as P.Ws.2 and 3 respectively.
P.W.3 - Dr. Mahabala Rai, in his evidence has stated that claimant has suffered disability of 20% to whole body.
Considering the nature of injuries. Rs. 35,000/- is awarded towards pain and suffering as against Rs. 20,000/- awarded by the Tribunal under this head.
As Rs. 27.000/- awarded by the Tribunal towards medical expenses is based on medical bills produced by the claimant for Rs. 26,432,92 ps. the same is just and proper and there is no scope for enhancement under this head.
He was treated as inpatient from 16-10-03 to 21-10-03 for a period of 6 days in Omega Hospital. Considering the duration of treatment, Rs. 7,000/- awarded by the Tribunal towards incidental expenses such as conveyance, nourishment and attendant charges is just and proper and there is no scope for enhancement.
Claimant was a student at the time of accident. Therefore, awarding compensation towards loss of income during laid up period or loss of future income does not arise. Nevertheless he has to bear with the disability stated by the doctor and certain amount of discomfort and unhappiness for the rest of his life. Considering the same, a sum of Rs. 60,000/- is awarded towards loss of amenities and disability as against Rs. 35,000/- awarded by the Tribunal.
Thus the claimant is entitled for the following compensation:
1)
Pain and suffering
Rs. 35,000/-
2)
Medical expenses
Rs. 27,000/
3)
Incidental expenses
Rs. 7,000/-
4)
Towards loss of amenities
Rs. 60,000/-
Total
Rs. 1,29,000/-
Less compensation awarded by the Tribunal
Rs. 89,000/-
Additional compensation comes to Rs. 40,000/-
In MFA 4143/09 (MVC 1743/03) :
The claimant is Abubacker Siddiq.
As per Ex.P. 6 - wound certificate, he had sustained the following injuries:
i) Lacerated wound (3 x 4 cm.) over right parietal region.
ii) Punctured wound over right leg anterior aspect.
iii) Fracture middle third of light tibia.
Injuries sustained by him are also evident from discharge summary - Ex.P.7 and supported by oral evidence of the claimant and doctor examined as P.Ws.1 and 3 respectively.
P.W.3 - Dr. Mahabala Rai, in his evidence has stated that claimant has suffered disability of 20% to limb and 5% to whole body.
Considering nature of injuries, a sum of Rs. 25,000/- is awarded towards pain and suffering as against Rs. 20.000/- awarded by the Tribunal under this head.
As Rs. 20.000/- awarded by the Tribunal towards medical expenses is based on medical bills produced by the claimant, the same is just and proper and there is no scope for enhancement under this head.
He was treated as inpatient from 16-10-03 to 18-10-03 for a period of 3 days in Omega Hospital. Considering the duration of treatment, Rs. 5,000/-awarded by the Tribunal towards incidental expenses such as conveyance, nourishment and attendant charges is just and proper and there is no scope for enhancement.
He claims to have been earning Rs. 4,000/- per month by driving an autorickshaw and his income is assessed at Rs. 4,000/- per month. Nature of injuries suggest, he must have been under rest and treatment for a period of three months. Therefore, a sum of Rs. 12,000/- is awarded towards loss of income during laid up period.
Considering disability stated by the doctor at 20% to limb and 5% to whole body and an amount of discomfort and unhappiness which the claimant has to undergo for the rest of his life, a sum of Rs. 50,000/- is awarded towards loss of amenities and disability as against Rs. 30,000/- awarded by the Tribunal.
Thus the claimant is entitled for the following compensation:
1)
Pain and suffering
Rs. 25,000/-
2)
Medical expenses
Rs. 20,000/-
3)
Incidental expenses
Rs. 5.000/-
4)
Loss of income during laid up period
Rs. 12,000/-
5)
Towards loss of amenities
Rs. 50,000/,
Total
Rs. 1,12,000/-
Less compensation awarded by the Tribunal
Rs. 75,000/-
Additional compensation comes to Rs. 37,000/-
Accordingly, appeals are allowed in part and the judgment and awards of the Tribunal are modified both on liability as well as quantum, and it is held, the insurer of the offending jeep is liable to pay the compensation awarded by the Tribunal as well as the additional compensation awarded in these appeals, with a right to recover the same from the owner of offending vehicle.
The claimants are entitled for additional compensation of Rs. 40.000/- and Rs. 37,000/- with interest at 6% p.a. from the date of claim petition till the date of realisation. The Insurance Co. is directed to deposit the additional compensation amount with interest within two months from the date of receipt of a copy of this judgment from which, 75% with proportionate interest is ordered to be deposited in FD in the name of the claimants in any nationalised or scheduled Bank for a period of 6 years, renewable once every two years, with a right of option for them to withdraw interest periodically and the remaining amount is ordered to be released in their favour.
No order as to costs.