Liability of the Insurance Company in the absence of a transport endorsement for the driver and the need to consider the claimant's functional disability in determining the compensation amount.

JUDGMENT

H.P. Sandesh, J. - Heard the learned counsel appearing for the appellant-claimant and the learned counsel appearing for the respondent No. 2-Insurance Company in MFA No. 5946/2016. Heard the learned counsel appearing for the appellant-Insurance Company and the learned counsel appearing for the respondent No. 1-claimant in MFA No. 4039/2016.

2. These two appeals are filed challenging the judgment and award dated 11.03.2016 passed in E.C.A. No. 2/2015 on the file of XXI Additional Small Causes Judge and the MACT., (SCCH-23) at Bengaluru ('the Tribunal' for short).

3. The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.

4. The factual matrix of the case of the claimant before the Tribunal is that he was working as driver under first respondent in the Car bearing registration No. KA-05-AD-7183, drawing a salary of Rs. 7,000/-per month and bata of Rs. 100/-per day. On 07.01.2013 at about 3:15 p.m, when he was driving the said car from Bannerghatta to Electronic City on Nice road, Bengaluru, he lost control over the car and fell into the drain. Due to the impact, he suffered fracture of right leg femur neck, comminuted fracture of left leg femur and other injuries all over the body and he was an inpatient in the hospital for more than 15 days. Due to the accident he has suffered permanent disability and unable to work as a driver.

5. In support of his claim, he examined himself as P.W.1 and also examined the Doctor as P.W.2. The Doctor-P.W.2 assessed the disability in respect of the right lower limb 25.5% and in respect of the left lower limb 26.5% and also assessed the whole body disability at 17.5%, the same has been accepted by the Tribunal and awarded compensation. While awarding the compensation, the Tribunal came to the conclusion that the driver was not having a transport endorsement. Hence, the liability is fastened on the Insurance Company and awarded compensation of Rs. 2,95,095/-with 12% interest per annum from the date of incident till its realization. Being aggrieved by the judgment and award of the Tribunal, the present appeal-MFA No. 5946/2016 is filed by the injured contending that though the income was taken as Rs. 8,000/-per month in terms of the notification, the Tribunal failed to award the just and reasonable compensation only took 17.5% functional disability and failed to notice the fact that he has suffered the fracture of femur of both leg and his occupation is driver and he is unable to work. Hence, it requires enhancement.

6. Per contra, learned counsel appearing for the Insurance Company in his appeal-MFA No. 4039/2016 would vehemently contend that the Tribunal ought to have fastened the liability on the owner instead of the Insurance Company. The driver/injured was not having the transport endorsement to drive the vehicle in question. Hence, it requires an interference of this Court.

7. Having heard the respective counsel and on perusal of the material available on record, it is clear that he has suffered comminuted fracture of right leg femur neck, fracture of left leg femur and other injuries all over the body. The Doctor has assessed the disability separately for both the limbs and the whole body disability taken as 17.5% by the Tribunal. The Tribunal failed to take note of the fact that the nature of the job of the injured viz., driver and admittedly he was working as a driver with the first respondent. When such being the case, when he suffered fracture to both the limbs, certainly it affects the functional disability of the injured and the Tribunal lost sight in considering the functional disability of the injured and accepted only the physical disability as deposed by the Doctor-P.W.2. Hence, it requires an interference of this Court.

8. Having taken note of the injured has suffered fracture of both limbs i.e., particularly femur and the femur is the main bone in respect of both the legs. Hence, it is appropriate to