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2019 Supreme(Kar) 655
IN THE HIGH COURT OF KARNATAKA
K. Somashekar, J.
Srinivasa T. – Appellant
Versus
United India Insurance Co. Ltd. – Respondent
Miscellaneous First Appeal No. 7120 of 2013
Decided On : 02-07-2019
Advocate Appeared:
Vishwanath S. Shettar, K. Kishore Kumar, V. Rajivnath.
The main legal point established in the judgment is the liability of the insurance company to pay compensation in the first instance, with the liberty to recover from the owner of the vehicle, as established in the case of Pappu and Others vs. Vinod Kumar Lamba.
Headnote:
Compensation - Motor Accident - Pappu and Others vs. Vinod Kumar Lamba - S.149 - Insurer's liability - Accident occurred due to rash and negligent driving of truck - insurer taking plea that driver of offending truck had no valid licence - except copy of driving licence of person, owner of offending truck not producing any evidence establishing that it was driven by authorised person having valid driving licence - fact that offending truck was duly insured - would not per se make insurance company liable - however, insurance company directed to pay award amount to claimants in first instance and in turn, recover same from owner of vehicle.
Fact of the Case:
The appellant sustained grievous injuries in a road traffic accident and filed a claim petition seeking compensation. The Tribunal awarded compensation of Rs. 1,60,000, which the appellant appealed against, seeking enhancement. The appellant contended that the Tribunal erred in dismissing the claim petition against the insurance company and in assessing his income at Rs. 4,500 per month. The insurance company contended that the accident occurred due to the negligence of the appellant and that the Tribunal's award was just and fair.
Finding of the Court:
The Court found that the accident occurred due to contributory negligence on the part of both the appellant and the driver of the offending vehicle. The Court re-assessed the compensation and awarded an enhanced compensation of Rs. 3,13,800 to the appellant, holding the insurance company liable to pay the same in the first instance, with the liberty to recover from the owner of the vehicle.
Issues: The issues involved the assessment of compensation, contributory negligence, and the liability of the insurance company.
Ratio Decidendi: The Court held that the accident occurred due to contributory negligence and re-assessed the compensation based on the nature and gravity of the injuries sustained by the appellant. The Court also relied on the principle established in Pappu and Others vs. Vinod Kumar Lamba, holding the insurance company liable to pay the enhanced compensation in the first instance, with the liberty to recover from the owner of the vehicle.
Final Decision: The Court allowed the appeal in part, modified the judgment and award of the Tribunal, and awarded an enhanced compensation of Rs. 3,13,800 to the appellant, holding the insurance company liable to pay the same in the first instance, with the liberty to recover from the owner of the vehicle.
JUDGMENT :
K. Somashekar, J.
1. Though this appeal is listed for admission, with the consent of learned counsel on both sides, the matter is heard for final disposal.
2. This appeal is directed against the judgment and award dated 01.06.2013 rendered by the Member, MACT, IV Addl. Judge, Court of Small Causes, Bangalore City in MVC No. 347/2012.
3. The factual matrix of the appeal is as under:
It is stated in the claim petition that on 30.10.2011 at about 3.00 p.m. when the petitioner was returning to his home, near Gurumurthy's shop, a Tractor-Trailor bearing No. KA-40-T-8805/8806 came from Geddalapalya towards Palpal Dinne in a rash and negligent manner without observing the traffic rules and regulations and dashed against the petitioner. Due to the impact, the petitioner sustained grievous injuries. Immediately, he was shifted to Sri Laxmi Venkateshwara Hospital at Yelahanka New Town and was treated as an inpatient. He has spent huge amount towards medical and other incidental expenses. As a result of the said accident, he has lost his earning capacity. Prior to the accident, he was hale and healthy and was working as Tailor at Garment factory and earning Rs. 300/- per day. He claims that the accident took place due to the negligence of the driver of the offending Tractor-Trailor. Therefore, respondent no. 1 being the insurer and respondent no. 2 being the owner of the offending vehicle are liable to pay the compensation. On all these grounds, he filed the claim petition before the Tribunal, seeking compensation.
4. After service of notice, respondents appeared before the Tribunal through their counsel and filed separate written statements denying the petition averments and sought for dismissal of the claim petition.
5. Based upon pleadings of the parties, the Tribunal framed the issues for consideration. In order to substantiate his case, petitioner got examined himself as PW-1 and got marked Exs.P1 to P12 and also got examined PW-2 who is a Doctor and got marked Ex.P13. On behalf of respondents, RW-1 was examined and Exs.R1 to R3 were got marked. After hearing arguments advanced by learned counsel for the parties and on evaluation of oral and documentary evidence on record, the Tribunal passed the impugned judgment, awarding compensation of Rs. 1,60,000/- along with interest @ 6% p.a. from the date of petition till payment. It is this judgment which is under challenge in this appeal.
6. Learned counsel for the appellant contends that the Tribunal has erred in awarding inadequate, unreasonable and meager compensation of Rs. 1,60,000/- as against the claim of the appellant. Further, he contends that the Tribunal erred in dismissing the claim petition against the respondent insurance company holding that the driver of the offending vehicle did not had valid driving licence but whereas the insurance company has not led any effective evidence to prove the same. Further, he contends that the Tribunal erred in holding that there is contributory negligence of 75% in respect of driver of the offending vehicle and 25% on the part of the appellant. The reasons assigned by the Tribunal in this regard, is erroneous and untenable and hence, the same has to be modified by re-appreciating and reassessing the entire evidence on record.
7. It is contended that the appellant was working as a tailor in a garment shop and earning Rs. 9,000/- per month, but the Tribunal has erred in assessing the income of appellant at Rs. 4,500/-. Further, the compensation awarded towards pain and suffering, loss of amenities, loss of income during treatment, incidental expenses and future medical expenses are on lower side and the same needs to be enhanced suitably by looking into the nature of injuries sustained by the appellant and treatment taken in this regard. Further, the Tribunal has erred in not considering the disability factor whereas the appellant suf
