(Prayer: This MFA is filed U/S 173(1) of MV Act, against the Judgment and Award dated: 17.06.2010 passed in MVC No.4979/2008 on the file of the III Additional Senior Civil Judge and Motor Accident Claims Tribunal, Bengaluru, awarding a compensation of Rs. 11,42,300/- with interest @ 6% P.A. from the date of petition till deposit.)
(Prayer: This MFA is filed U/S 173(1) of MV Act, against the Judgment and Award dated: 17.06.2010 passed in MVC No.4979/2008 on the file of the III Additional Senior Civil Judge and Motor Accident Claims Tribunal, Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.)
1. These two appeals respectively by the Insurer and the injured claimant are directed against the same judgment and award dated 17th June, 2010 passed in MVC No.4979/2008, by the III Additional Senior Civil Judge and Motor Accident Claims Tribunal, Bengaluru, (for short, 'Tribunal').
2. While the Insurer has filed the appeal, on the ground that, the Tribunal is not justified in directing the Insurer to indemnify the award and liable to be set aside; the injured claimant has filed the appeal or the ground that the compensation awarded by Tribunal is on the lower side and needs to be enhanced. Thus, both have sought for modification of the impugned judgment and award passed by Tribunal.
3. The facts in brief are that, the injured claimant claims to be aged about 28 years, at the time of accident, working as Teacher in a Primary School, earning a sum of Rs.6,000/- per month. She was hale and healthy prior to the accident. That at about 04:45 A.M, on 21-02-2008, when the injured claimant along with her husband was travelling in a hired Indica Taxi bearing Registration No.KA-05/TRA-2713, slowly and cautiously from Deccan Car Rentals and returning from Sandur to Bangalore on NH-4 at Batawadi, By-pass, Tumkur, at that time, the driver of the said Car drove the same at a high speed, in a rash and negligent manner, and dashed against the Lorry resulting in multiple injuries, viz. injury to the spinal cord i.e. cervical bone C-5 and 6, grade III listhesis of C-5 over C6 with fracture of anterior-inferior end plate of C-5, fracture of left lamina of C-5 retropusion of C-5 body and other injuries and has lost her' sensation below trunk and also the movement of hands. Immediately she was shifted to BGS Global Hospital and District Hospital, Tumkur and other Hospitals.
4. It is the case of the injured claimant that, on account of the road traffic accident, she has sustained severe injuries as stated above including permanent disability and for the treatment of the said injuries, she has spent considerable amount towards conveyance, nourishing food and attendant charges, apart from medical expenses and other incidental expenses and therefore, she has to be compensated reasonably.
5. On account of the injuries sustained in the accident, the injured claimant filed the claim petition before the Tribunal, seeking compensation of a sum of Rs.50,00,000/- against the owner and the Insurer of the offending vehicle. The said claim petition had come up for consideration before the Tribunal on 17th June, 2010. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of Rs.11,42,300/- under different heads, with 6% interest per annum, from the date of petition till the date of realization and directed the insurer to indemnify the said amount. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the injured claimant is in appeal before this Court, seeking enhancement of compensation and being aggrieved by the liability fastened on it and as also the quantum of compensation awarded, the Insurer also is in appeal before this Court, seeking to set aside the same by modifying the impugned judgment and award passed by Tribunal.
6. We have heard learned counsel for Insurer and learned counsel appearing for injured claimant, for considerable length of time.
7. Shri.A.N. Krishna Swamy, learned Counsel appearing for Insurer vehemently submitted that the Tribunal grossly erred in directing the Insurer to indemnify the award and the same is liable to be set aside, for the reason that, the Tribunal ought to have noticed that the vehicle in question was not duly registered as mandatory under Sections 39 and 43 of the Motor Vehicles Act. In the case on hand, the temporary registration of the offending vehicle was obtained on 10-01-2008 and the same was valid only for a period of 30 days from the date of issue as per the relevant provisions, which expired on 10-02-2008. But, the accident in question has occurred on 21-02-2008, much after the expiry of the 30 days period. Therefore, the Tribunal ought not to have come to the conclusion that there existed no registration of motor vehicle and that the Insurer cannot be saddled with the liability. Further, he submitted that the Tribunal ought to have noticed that the vehicle cannot be plied in any place if it is not registered as per Sec tion 39 of the Motor Vehicles Act. He also submitted that the Tribunal ought to have noticed that no vehicle could be treated as a transport vehicle, unless it is registered as a transport vehicle and question of indemnifying the owner would not arise if the motor vehicle is not registered and further, the liability is always co-extensive with Section 146 of the Motor Vehicles Act and that the policy of Insurance would lapse automatically if provisions of the Act are not complied with, more particularly, with regard to the registration of motor vehicle. Therefore, he submitted that, the direction issued by Tribunal to the Insurer to indemnify the award is liable to be set aside, by modifying the impugned judgment and award passed by Tribunal.
8. As against this, learned counsel appearing for injured claimant, inter alia submitted that, the compensation awarded by Tribunal towards all the heads is on the lower side and liable to be enhanced, for the reason that, the injured claimant was aged about 28 years, working as a Teacher, drawing salary of Rs.6,000/- per month as per Ex.P7 and hale and healthy prior to the accident and on account of the grievous injuries and disability sustained in the road traffic accident, she was hospitalized on many occasions, for a total period of nearly 111 days and she has spent huge amount towards conveyance, nourishing food and attendant charges apart from medical and other expenses. He further submitted that the Tribunal committed an error in assessing the whole body disability at 70% in spite of observing and coming to the conclusion that she has lost earning capacity to an extent of 100% at paragraph 29, internal page.22 of its judgment. Further, he submitted that, the Tribunal grossly erred in not awarding any compensation towards future medical expenses. Therefore, he submits that having regard to all the above aspects, the injured claimant is entitled to just and reasonable enhancement of compensation, by modifying the impugned judgment and award passed by Tribunal, after reassessing the whole body disability.
Further, regarding the direction issued by the Tribunal to the Insurer to indemnify the award, he vehemently submitted that the Tribunal, after critical evaluation of the oral and documentary evidence available on file and also considering the various citations, has recorded a specific finding of fact, holding that the Insurer is liable to indemnify the award. However, he fairly submitted that, if there is any breach of the terms and conditions of the Insurance Policy, it is open to the Insurer to initiate appropriate proceedings against the owner of the offending vehicle for recovery of the award amount and the injured claimant being the third party to the accident, cannot be deprived the legitimate compensation for the grievous injuries and disability suffered by her and she cannot be dragged on from pillar to post for getting the reasonable compensation. This aspect of the matter has been rightly taken note of by the Tribunal as envisaged under Section 149(7) of the Act. Therefore, interference by this court in the said direction issued by Tribunal is not called for.
9. After careful consideration of the submission of the learned counsel appearing for the parties, after perusal of the impugned judgment and award passed by the Tribunal and after evaluation of the original records available on file, the points that arise for our consideration in these two appeals are:
I] Whether the Tribunal is justified in directing the Insurer to indemnify the award?
II] Whether the quantum of compensation awarded by Tribunal is just and reasonable?
10. Re-Point I] : After perusal of the entire material available on file, it emerges that, occurrence of accident and the resultant injuries sustained by the injured claimant are not in dispute. It 13 further not in dispute that, the offending vehicle was duly insured with the Insurer and it was very much in force. But, it is the specific case of the Insurer that, the temporary registration is valid only for a period of 30 days and that, the same had lapsed much prior to the accident. But, it should be noted as observed by Tribunal at paragraph 38, internal page 26 of its judgment that, the Insurer has not produced any evidence to prove breach/violation of the terms and conditions of the policy. Further, as rightly pointed out by learned counsel appearing injured claimant, the Tribunal, after due appreciation of the oral and documentary evidenceavailable on file, has rightly directed the Insurer to indemnify the award. However, if there is breach of the terms and condition of the policy, issued by Insurer, then, it is very much open for it to proceed against the owner of the offending vehicle and it is not justifiable for the Insurer to shirk its responsibility from indemnify the injured claimant, on the ground that the vehicle was not duly registered as on the date 01 accident. It is worthwhile to extract the relevant provision of Section 149(7) of the Motor Vehicles Act, which reads thus:
"149. Duty of Insurers to satisfy judgments and awards against persons insured in respect of third part risks :
(1) If, after a certificate of Insurance has been issued under sub-Section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of Section 147(being a liability covered by the terms of the policy) (2) xx
(3) xx
(4) xx
(5) xx
(6) xx
(7) No insurer to whom the notice referred to in sub-section (2) or sub section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in sub- Section (1) or in such judgment as is referred to in sub-Section (3) otherwise than in the manner provided for in sub-Section (2) or in the corresponding law of the reciprocating country, as the case may be."
(underlining by us)
Thus, it is clear that, the Insurer, having issued the policy cannot wriggle out of its liability to indemnify the award passed in respect of third parties. Therefore, considering all the above aspects of the matter, including the provisions of Section 149(7) of the Motor Vehicles Act, as extracted above, and as rightly pointed out by the learned counsel appearing for injured claimant, we hold that the Insurer is liable to indemnify the award and thereafter recover the same from the owner, if there is breach or violation of the terms and conditions of policy, in accordance with law. Accordingly, we answer point Mo. 1] 'partly affirmative'.
11. Re-Point III : So far as the quantum of compensation awarded by Tribunal for the injuries sustained by injured claimant is concerned, it can be seen that, occurrence of accident and the resultant injuries sustained by injured claimant are not in dispute. The Tribunal, after critical evaluation of the oral and documentary evidence available on file and also considering the number of bills and prescriptions produced by the injured claimant and also the nature and duration of treatment undergone by injured claimant on account of the grievous injuries and disability sustained, has rightly awarded compensation of Rs.50,000/- towards conveyance, nourishing food and attendant charges; Rs.80,000/- towards loss of income during laid up period; and Rs.1,96,100/- towards medical expenses. Hence, interference in the same is not called for.
12. However, so far as compensation awarded towards loss of amenities, discomfort and unhappiness, injury, pain and sufferings, loss of future earning capacity, loss of marital bliss is concerned, the same is on the lower side and liable to be re-determined. Further no compensation is awarded towards future medical expenses. Admittedly, in view of the road traffic accident, the injured claimant has sustained fracture of anterior inferior end plate of C5 and upper body of C6, fracture of left lamina of C5 noted, retropulsion of C5 body was severely compressing the cord. As per X-ray, both upper and lower limb movements were not in order and she could not lift both hands and move from bed. Further, it is stated that there was total loss of sensation of all modalities below trunk. The Doctor has assessed 100% disability towards whole body. But, contrary to the oral evidence of the Doctor and its own observation at paragraph 29, internal page 22, has re-assessed the whole body disability at 70%. The same, in our opinion is on the lower side. Considering the nature of injuries sustained and also the disability, the injured claimant is in a state of vegetable condition. Therefore, we hereby re-assess the whole body disability at 100%, to meet the ends of justice. The injured claimant, being aged about only 28 years has to endure this disability for the rest of her life and also has lost the marital bliss. Further, the monthly income of Rs.4,000/- assessed by Tribunal is also on the lower side and liable to be re-assessed. Therefore, considering the age, avocation and the year of accident coupled with the documentary evidence at Ex.P7, we re-assess the income of the injured claimant at Rs.6,000/-, to meet the ends of justice. Further, for the age of the injured claimant, the proper multiplier applicable is '17' as per the decision of the Hon'ble Apex Court in Sarla Verma's case (2009 AC J 1298). Therefore, having regard to the age, avocation, nature of injuries, permanent whole body disability re-assessed by us, nature arid duration of treatment and the facts and circumstances of the case on hand, we award a sum of Rs.12,24,000/- (i.e. Rs.6,000/- x 12 x '17' x 100%) towards loss of future income as against Rs.5,71,200/-; Rs.1,50,000/- towards injury, pain and sufferings as against Rs.1,20,000/-; Rs.1,00,000/- towards loss of amenities, discomfort and unhappiness as against Rs.50,000/-; Rs.1,00,000/- towards loss of marital bliss as against Rs.50,000/-; and Rs.1,00,000/- towards future medical expenses as the Tribunal has not awarded any compensation under this head.
13. However a sum of Rs.25,000/- awarded by Tribunal towards loss of job cannot be considered for the reason that the injured claimant has been awarded reasonable compensation towards loss of future income/earning capacity on account of 100% disability suffered by injured claimant. Hence, the said sum awarded by Tribunal is set aside.
14. Thus, the total compensation would work out to Rs.20,00,100/- as against Rs.11,42,300/- awarded by Tribunal. There would be enhancement of compensation by a sum of Rs.57,800/- with 6% interest per annum, from the date of petition till the date of realization. Accordingly, we answer point No.II] in the 'Negative' and award the aforesaid additional compensation.
15. In the light of the facts and circumstances of the case, as stated above, the appeal filed by Insurer and also the appeal filed by injured claimant are allowed in part.
The impugned judgment and award dated 17th June, 2010, passed in MVC No.4979/2008, by the III Additional Senior Civil Judge and Motor Accident Claims Tribunal, Bengaluru, is hereby modified;
The compensation awarded by Tribunal at Rs. 11,42,300/- is enhanced to Rs.20,00,100/-, with interest at 6% per annum, from the date of petition till the date of realization.
The break-up is as follows:
| Towards Pain and sufferings | Rs. 1,50,000/- |
| Towards Loss of amenities and enjoyment in life on account of disability | Rs. 1,00,000/- |
| Towards Medical Expenses | Rs. 1,96,100/- |
| Towards conveyance, nourishing food and attendant charges | Rs. 50,000/- |
| Towards Loss of earning during treatment period | Rs. 80,000/- |
| Towards loss of future earnings | Rs. 12,24,000/- |
| Towards loss of marital bliss | Rs. 1,00,000/- |
| Towards future medical expenses | Rs. 1,00,000/- |
| Total | Rs. 20,00,100/- |
The direction issued by Tribunal to indemnify the award amount is hereby modified, by directing the Insurer to first pay and thereafter liberty is reserved to it to recover the same from the owner of the offending vehicle, in accordance with law, in the same proceedings, if so advised;
Accordingly, the Insurer is directed to deposit the total compensation with interest, after deducting the compensation if any deposited by it, within a period of three weeks from the date of receipt of a copy of this judgment.
Out of the enhanced compensation of Rs.8,57,800/-, a sum of Rs.6,50,000/ with proportionate interest shall be invested in the name of the injured claimant, in any nationalized or schedule Bank, in Fixed Deposit, for a period of ten years, renewable for another ten years, with liberty to the injured claimant to withdraw the periodical interest;
Remaining sum of Rs. 2,07,800/- with proportionate interest shall be released in favour of the injured claimant, upon deposit by the Insurer;
The statutory amount deposited by the Insurer shall be transmitted to the jurisdictional Tribunal, forthwith.
Office is directed to draw the award accordingly.