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Judgment
P.S. Dinesh Kumar, J—Insurance company, feeling aggrieved by the judgment and award dated 06.05.2008 in M.V.C. No. 64/2007 on the file of Civil Judge (Sr.Dn.) A.M.A.C.T., Haven (''the Tribunal'', for short) has challenged the liability foisted on it to satisfy the award. On the other hand, claimant has filed cross objection in M.F.A. Crob. No. 804/2012 seeking enhancement.
Briefly stated facts of the case are, a lorry bearing registration No. MEW-8685 in order to avoid a bullock cart which was coming from the opposite side, dashed against the compound wall of factory building at Kumarpattananam, Ranebennur Taluk on 25.09.2006 at about 2.00 p.m. A driver of the auto rickshaw filed a complaint which is registered as Crime No. 50/2006 by Kumarpatnam police station for the offences punishable under Sections 279 and 338 of IPC against the claimant who was the driver of the vehicle. Complaint discloses that lorry driver stopped suddenly, re-started the lorry and zoomed in high speed and dashed against the compound of a factory building and jumped out of the lorry. One of the wheels ran over the left leg of driver resulting in him sustaining injuries. He was initially treated in Government Hospital, Harihar and subsequently in City Central Hospital, Davangere. The claimant filed a claim petition before the Tribunal claiming compensation of Rs. 8,00,000/-. On being notified, the respondent/insurance company resisted the petition by filing objections contending inter alia
"(i) the driver could not have maintained a petition because the accident occurred due to his negligence;
(ii) the driver of the lorry did not possess a valid driving license at the time of accident."
Claimant examined 3 witnesses and got marked 103 documents on his side. One witness was examined on behalf of the respondent/insurance company and policy was marked. The owner of the lorry remained ex-parte. On consideration of the material on record, the Tribunal awarded a sum of Rs. 2,33,253/- with interest at 6% per annum. Questioning the liability, the insurer has filed M.F.A. No. 20068/2008 and claimant has filed M.F.A. Crob. No. 804/2012 seeking enhancement of compensation.
Heard Sri N.R. Kuppelur, learned counsel for the insurance company and Sri KG. Shantharaj, learned counsel for the claimant.
Learned counsel for the insurer vehemently contends that the Tribunal erred in not correctly appreciating the facts on record particularly, the FIR which narrates the manner in which the accident occurred. He submits that the driver of an offending vehicle cannot maintain a petition against the insurer and even if it is held to be maintainable, the instant claim petition does not merit consideration as the driver of the lorry did not possess a valid driving license at the time of accident. He further submits that the quantum of compensation awarded by the Tribunal is just and proper and therefore, he prays for allowing the appeal filed by the insurer and dismissal of the cross objection filed by the claimant.
Per contra, learned counsel for the cross objector/claimant supports the order of the Tribunal to the extent of fastening liability upon the insurer but submits that the compensation awarded by the Tribunal is inadequate and prays for enhancement.
Insofar as the first contention of the learned counsel for the insurer with regard to maintainability of the appeal by the claimant is concerned, it is to be noted that, no material is forthcoming except the complaint filed by an auto rickshaw driver who is said to be an eyewitness. Further, he is not examined before the Tribunal.
Insofar as the license of the driver is concerned, there is nothing on record to disclose that efforts, if any, were made by the insurance company to demonstrate that the driver did not possess a license at the material point of time. In the circumstance, both the grounds urged by the learned counsel for insurer do not merit consideration. Insofar as the quantum of compensation is concerned, the claimant has suffered crush injuries. Discharge summary at Ex. P-5 discloses that he was an in-patient in City Central Hospital, Davangere from 25.09.2006 to 28.10.2006. Ex. P-5 further discloses that skin drafting was done on 13.10.2006. On behalf of the claimant, PW-3 an orthopedic surgeon has been examined. He has deposed in his evidence that on examination, he found diffuse swelling of left leg and foot which had spitting Oedema; extensive scar over left leg and lower thigh with evidence of skin grafts; tenderness over left leg and foot. According to him, movement of left leg was found painful and restricted. Flexion was limited to 80�. He has opined that claimant cannot bear full weight on his left leg and assessed the disability at 60%. In the cross-examination, he has admitted that fracture has healed. The Tribunal on appreciation of the medical evidence on record, has allowed full medical expenses of Rs. 54,053/-. However, while computing the income of the claimant, the Tribunal has considered his earning capacity at Rs. 4,500/- per month. The accident has occurred in September, 2006. The Hon''ble Supreme Court in the case of Sri Ramachandrappa Vs. The Manager, Royal Sundaram Alliance Insurance Company Limited, (2011) ACJ 2436 : AIR 2011 SC 2951 : (2011) 8 JT 628 : (2011) 4 RCR(Civil) 107 : (2011) 8 SCALE 399 : (2011) 13 SCC 236 : (2011) 9 SCR 922 : (2011) 4 TAC 1 : (2011) AIRSCW 4787 : (2011) 5 Supreme 536 has held earning capacity of claimant in the absence of record, at Rs. 4,500/- per month in the year 2004. In the instant case, there is no dispute with regard to the avocation of the claimant as a lorry driver. In the circumstances, earning capacity of the claimant can be considered at Rs. 5,500/- per month. PW-3 doctor has opined that the claimant has suffered permanent disability at 60%. Based on the same, the Tribunal has rightly assessed the disability at 20% to the whole body. Multiplier of 14 is also rightly construed by the Tribunal based on the age of the claimant at the time of accident. Therefore, the loss of earning capacity is worked out to Rs. 5,500 x 12 x 14 x 20% = 1,84,800/-.
The compensation awarded by the Tribunal towards other heads is also inadequate and requires some increment. Hence, the compensation awarded by the Tribunal is modified as follows:
In the result, I pass the following:
ORDER
"(i) Appeal filed by the insurer is dismissed and the cross-objection filed by the claimant is allowed in part.
(ii) Claimant shall be entitled for an additional compensation of Rs. 74,050/- with interest at 9% p.a. from the date of petition till the date of payment."
The insurance company is directed to pay the enhanced compensation along with 9% interest within three months from the date of receipt of a copy of this order.
Registry is directed to transmit the amount in deposit to the Tribunal for disbursement in accordance with law.
Ordered accordingly. No costs.