IN THE HIGH COURT OF KARNATAKA, BANGALORE PRESENT THE HON BLE MR.JUSTICE N.K.PATIL AND THE HON'BLE MR. JUSTICE B.MANOHAR

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1 1 IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE 7 TH DAY OF AUGUST 2013 PRESENT THE HON BLE MR.JUSTICE N.K.PATIL AND THE HON'BLE MR. JUSTICE B.MANOHAR MFA.NO.7995/2011(MV) BETWEEN MFA.NO.7995/2011 C/W. MFA.NO.8619/2011(MV) MUNIYAPPA AGED ABOUT 29 YEARS, S/O DURUGAPPA, R/O RANGAVVANAHALLI VILLAGE, CHALLAKREE, CHITRDURGA DISTRICT.... APPELLANT (BY SMT.SPOORTHY HEGDE, ADVOCATE) AND SMT. SARASWATHI D/O RAMACHANDRA REDDY, AGED ABOUT 31 YEARS, OWNER OF MAHADEVI

2 2 BUS NO.KA-16/A 9936, R/O JAIN COLONY, CHITRADURGA M/S ORIENTAL INSURANCE COMPANY LIMITED., BY ITS BRANCH MANAGER, OPP. KSRTC BUS STAND, CHITRADURGA RESPONDENTS (BY SRI.SANKET M YANAGI, ADVOCATE) MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: PASSED IN MVC NO.15/2010 ON THE FILE OF SENIOR CIVIL JUDGE, CHALLAKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. MFA.NO.8619/2011(MV) BETWEEN SMT SARASWATHI D/O.RAMACHANDRA REDDY RC OWNER OF MAHADEVI BUS BEARING NO.KA-16/A-9936, R/AT.JAIN COLONY CHITRADURGA.... APPELLANT (BY SRI.SANKET M YENAGI, ADVOCATE) AND SRI MUNIYAPPA S/O.DURUGAPPA R/AT.RANGAVVANAHALLI VILLAGE CHALLAKERE TALUK

3 3 THE BRANCH MANAGER THE ORIENTAL INSURANCE COMPANY LIMITED OPPOSITE KSRTC BUS STAND CHITRADURGA RESPONDENTS (BY SMT.SPOORTHY HEGDE, ADVOCATE FOR R1) MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: PASSED IN MVC NO.15/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, CHALLAKRE, AWARDING A COMPENSATION OF Rs.2,49,000/- WITH 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT. THESE MFAS HAVING BEEN HEARD AND RESERVED AND COMING ON FOR PRONOUNCEMENT OF JUDGEMENT THIS DAY, B.MANOHAR J., DELIVERED THE FOLLOWING: J U D G M E N T These two appeals are filed by the claimant as well as the owner of the vehicle, being aggrieved by the judgment and award dated made in MVC No.15/2010 on the file of the Senior Civil Judge and MACT, Challakere (hereinafter referred to as the Tribunal ). 2. MFA No.7995/2011 was filed by the claimant in MVC No.15/2010 being not satisfied with the quantum of compensation awarded by the Tribunal. MFA 8619/2011

4 4 was filed by the owner of the offending vehicle, being aggrieved by the very same judgment and award passed by the Tribunal fixing the liability on the owner of the vehicle to compensate the claimant. 3. The facts of the case are as follows: The claimant in his claim petition has contended that on at about 6.00 p.m., the Vykunta Mahadevi bus bearing registration No.KA-16/A-9936 came from Chtiradurga to the bus stand of Challakere and the driver of the said bus wanted to take the bus in reverse direction and to park in the platform. The claimant who was working as a cleaner cum-conductor got down from the bus and while signaling the driver to take the bus back in reverse direction towards the platform, all of a sudden, the driver took the bus in reverse direction with a high speed and in a rash and negligent manner and dashed against the claimant. Due to the accident, the claimant fell down and sustained injuries. Immediately, after the accident, he was shifted to the

5 5 Government Hospital at Challakere and thereafter Government Hospital at Chitradurga. In the accident, he has sustained the following injuries: (i) (ii) (iii) (iv) (v) (vi) injuries on occipital region; bleeding injury on right side of the forehead; injuries on both the eyes and the left ear; abrasion over the left side of the face; sustained bilateral sub conjunctive hemorrhage; mobility of lower left central incisors; (vii) canine and right central incisor; (viii) fracture of mandible; (ix) fracture of lower right lateral incisor including enamel and dentin. He has sustained four fractures. He had taken treatment in S.S. Institute of Medical Sciences and Research Center at Davanagere, CT Scanning was also done on and and found that he has sustained fracture of bilateral petrous temporal bone and sustained cerebral

6 6 edema. Thereafter he has taken treatment for his eye in Victoria Hospital and also in Minto Hospital at Bangalore. He had undergone surgery to his right eye in Narayana Netralaya at Bangalore. He was in the hospital for more than 78 days and undergone four surgeries and he has spent huge money for the treatment. 4. The claimant has further contended that prior to the accident, he was hale and healthy working as a conductorcum-cleaner in the said bus and the first respondent who is the Proprietor of the bus was paying him the salary of Rs.5,000/- p.m. and batta of Rs.100/- per day. Due to the accident, he has lost the vision and movement of jaws are restricted. Due to the head injury, he has lost mental equilibrium; the face has become irregular shape and there is bleeding in the ears. Due to the accident, he cannot work as a conductor in future. The claimant is married having two minor children and aged parents and sought for

7 7 compensation of Rs.31,07,000/- with interest at the rate of 12% p.a. 5. The owner of the vehicle filed objections to the claim petition denying the averments made in the claim petition and also contended that the claimant was not working as a cleaner or a conductor in the bus owned by her. She was not paying any salary to him. She also denied the accident, age, occupation and income of the claimant. Since the vehicle is covered by insurance, if there is any injuries to the claimant due to the accident, the Insurer has to compensate the claimant and sought for dismissal of the claim petition as against the first respondent. 6. The second respondent Insurer filed objections statement and they have also denied the accident, age, avocation and injuries sustained by the claimant, duration of treatment and the expenditure incurred by the claimant. However, the second respondent admitted that the vehicle is

8 8 covered by insurance. But, the policy covers 48 passengers, a driver and a conductor and it does not cover the risk of the cleaner of the bus. Hence, the first respondent had violated the terms and conditions of the policy by allowing the claimant to do the work of cleaner in the Bus alleged to be involved in the accident. Hence, the Insurer is not liable to compensate the claimant. The Policy does not cover the risk of the conductor and sought for dismissal of the claim petition as against the Insurer. 7. On the basis of the pleadings of the parties, the Tribunal has framed the following issues: (i) Whether the petitioner proves that, he sustained injuries in the alleged RTA on at about 6.00 p.m. at Challakere bus stand, due to rash and negligent driving of the Vykunta Mahadevi bus bearing No.KA- 16/A-9936 by its driver?

9 9 (ii) Whether petitioner is entitled for compensation? If so, at what quantum and from whom? (iii) What order or award? 8. The claimant in order to prove his case, examined himself as P.W.1 and examined two doctors who had treated him as P.W.2 and P.W.3 and got marked the documents as Ex.P1 to Ex.P29. On behalf of the respondents, owner of the vehicle examined her Power of Attorney Holder as R.W.1 and got marked the documents as Ex.R1 to Ex.R4. The Administrative Officer of the second respondent was examined as R.W The Tribunal, after considering the oral and documentary evidence let in by the parties and after taking into consideration the copy of the FIR, wound certificate, IMV report, spot mahazar, copy of the statement and Charge sheet as per Ex.P1 to Ex.P6 held that due to the rash and negligent

10 10 driving of the offending vehicle by its driver, the claimant has sustained injuries and he is entitled for compensation. Taking into consideration the wound certificate and CT scan report and also on the basis of the evidence let in by Dr.Narayanappa, an Eye Specialist and Dr.Kodandaram, a Dentist who have assessed the whole body disability at 40% and further taking into consideration age, profession and also the injuries sustained and expenditure incurred, the Tribunal has awarded a sum of Rs.50,000/- towards pain and sufferings; Rs.15,000/- towards medical, attendant, conveyance and nourishment etc.; Rs.20,000/- towards loss of income during the laid up period and Rs.20,000/- towards loss of amenities. Taking into consideration the salary of the claimant as Rs.3,000/- p.m.; disability at 25% and applying the multiplier of 16, the Tribunal has awarded compensation of Rs.1,44,000/- towards loss of future income due to disability. In all, the Tribunal has awarded a sum of Rs.2,49,000/- with interest at 6% p.a. from the date of

11 11 petition till realization. Since the claimant was working as cleaner in the bus bearing No.KA-16/A-9936 and the policy of the said bus do not cover the risk of the cleaner, the Insurer is not liable to pay the compensation and the Tribunal has directed the owner of the vehicle to compensate the claimant. 10. The claimant being not satisfied with the quantum of compensation awarded by the Tribunal filed MFA No.7995/2011 inter alia contending that the compensation awarded by the Tribunal is on the lower side. In the road traffic accident occurred on 30 th August 2009 he has sustained four fractures and other injuries and he was inpatient for a period of 78 days. In view of the head injury, he has lost the mental equilibrium and he has lost the eye sight and cannot work as a cleaner. Though the doctor had assessed the disability at 40%, he has lost the vision of left eye and having vision of only 25% to the right eye, he has suffered the dental injury of more than 40% and disfigurement of the face, the compensation awarded in

12 12 respect of pain and suffering, attendant charges; loss of income during the laid up period, loss of amenities and loss of future income is on the lower side. The loss of earning capacity is taken at 25% only which is on the lower side. However no compensation has been awarded towards medical expenditure incurred by the claimant though he has undergone four surgeries and sought for reasonable enhancement of compensation. 11. On the other hand, the respondents defended the judgment and award passed by the Tribunal with regard to the quantum of compensation is concerned and contended that taking into consideration the injuries sustained and expenditure incurred, the Tribunal has awarded just and reasonable compensation and the same does not call for interference by this court.

13 We have carefully considered the arguments addressed by the parties and perused the oral and documentary evidence adduced by the parties. 13. After considering the submissions made by the learned counsel appearing for both the parties and on perusal of the materials available on record, including the impugned judgment and award passed by the Tribunal, the points that arise for consideration in this appeal is: (i) Whether the quantum of compensation awarded by the Tribunal is just and reasonable? And (ii) Whether the owner of the offending vehicle of the Insurer is liable to compensate the claimant? 14. The records produced by the parties clearly disclose that the claimant has sustained injuries in the road traffic accident occurred on 30 th August Initially he was admitted in the Government Hospital at Challakere thereafter he had taken treatment at Government Hospital at

14 14 Chitradurga, Government Hospital at Chitgateri, Bapuji Hospital at Davanagere, Victoria Hospital and Minto Hospital at Bangalore and undergone eye surgery at Narayana Netralaya, Bangalore. The evidence of Dr.Narasappa who is an Eye Specialist clearly disclose that in view of the injuries sustained in the road traffic accident he has lost vision of left eye and having vision of only 25% to the right eye and the disability is more than 80%. Dr.Kodandaram, who is a Dentist and has treated the claimant in his evidence has deposed that in view of the injuries sustained, he has suffered the disability of 40%. In view of the head injury, he has lost mental equilibrium and disfigurement of the face, due to which, he cannot work in future. The total disability assessed by the doctor is 120% to the limbs, if 1/3 rd of the disability is taken, the disability of the whole body would be 30%. However the Tribunal has taken only 25%. Though the claimant has undergone four operations, no compensation has been awarded towards medical expenditure. He was

15 15 inpatient for more than 78 days in various hospitals and he has not yet fully recovered. The multiplier adopted by the Tribunal is contrary to the law laid down by the Hon ble Supreme Court in a judgment reported in SARLA VERMA AND OTHERS v/s DELHI TRANSPORT CORPORATION AND ANOTHER reported in 2009 ACJ 1298 and the appropriate multiplier to be adopted is 17 since he is aged about 28 years as on the date of the accident. We find that the compensation awarded by the Tribunal is on the lower side and it requires re-assessment. Though the claimant claims that he was working as a cleaner in the offending vehicle, no document has been produced, no credible oral and documentary evidence has been produced. Since the claimant is a married man with two minor children usually, the persons like agriculturists and coolies would earn more than Rs.4,500/- p.m. Hence, the compensation awarded by the Tribunal has to be modified taking into consideration the injuries

16 16 sustained, age, income and the expenditure incurred, which are as follows: Pain and suffering :: Rs. 75, Attendant charges, nutrition and Special diet and other incidental Charges :: Rs. 30, Loss of income during the laid up period. :: Rs. 27, Loss of amenities of life. :: Rs. 50, Medical expenditure :: Rs. 25, Loss of future income due to the disability (4,500 x 12 x 30 x 17/100) ::Rs.2,75, Total ::Rs.4,82, In all, the claimant is entitled to compensation of Rs.4,82,400/- as against Rs.2,49,000/- awarded by the Tribunal. Hence the claimant is entitled for enhanced compensation of Rs.2,33,400/-. Hence point No.1 is answered accordingly.

17 The owner of the offending vehicle filed MFA No.8619/2011 contending that fixing the liability on the owner of the vehicle is contrary to law. It was contended that the claimant was not appointed by the appellant-owner as a cleaner in the bus bearing registration KA-16/A She has not paid any salary or batta to the claimant. In the objection to the claim petition, she has specifically contended that the claimant is not an employee of the appellant. On behalf of the owner of the vehicle, she has examined her husband as power of attorney as R.W.1 who has clearly deposed in his evidence that the claimant was not appointed either as a conductor nor a cleaner in the bus. He does not possess the conductor license or badge, hence, the question of appointing him as a conductor does not arise. They have not appointed any cleaner to the bus. The claimant is a third party, hence the question of the owner of the vehicle compensating the claimant for the injuries he has sustained does not arise. Apart from that the claimant has not

18 18 produced any iota of documentary evidence to show that he was appointed and working as a cleaner in the said bus and owner is paying any salary, except his oral assertion in the evidence. The claimant himself admitted that he has no document to show that he was appointed as a cleaner in the said bus. 40 days after the accident, he has made a statement before the Police that he was working as a cleaner in the said bus only with a view to get more compensation from the owner. The claimant was not travelling in the bus as a cleaner nor as a passenger. If he had sustained any injuries in the said road traffic accident while taking the bus in the reverse direction, he is entitled to claim compensation as a third party, since the vehicle is fully covered by insurance. Fixing the liability on the owner of the vehicle taking into consideration that the claimant was working as a cleaner in the bus is erroneous in law. The Tribunal having found that the claimant has not produced any document to show that he was appointed as a cleaner, ought not to have

19 19 fixed the liability on the owner of the vehicle solely on the ground that the Insurance Policy does not cover the risk of the cleaner. Admittedly, the insurance policy covers 48 passengers and driver as well as the conductor. In the absence of any document, the finding of the Tribunal that the claimant was working as a cleaner in the offending vehicle is contrary to law. The Insurer has also not produced any document to show that the claimant was working as a cleaner in the said bus. Hence, the judgment and award passed by the Tribunal fixing the liability on the owner of the vehicle to pay compensation to the claimant cannot be sustainable. 16. The materials available on file clearly disclose that though the claimant claims that he was working as a cleaner in the offending vehicle, no document has been produced before the Tribunal. The claimant in his evidence admitted that he does not have any material to show that he was appointed as a cleaner in the offending vehicle and owner of

20 20 the vehicle was paying salary of Rs.5,000/- p.m. and batta of Rs.100/- per day. In the absence of the same, the finding of the Tribunal to the effect that the claimant was working as a cleaner in the offending vehicle is erroneous in law. The judgment relied upon by the Insurer reported in 2003 ACJ 1550 in the case of RAMASHREYA SINGH v/s NEW INDIA ASSURANCE COMPANY LIMITED is not applicable to the facts of the case. In the instant case, except oral assertion by the claimant to the effect that he was working as a cleaner in the bus no document has been produced either before the Tribunal or before this Court and also to prove that the owner of the offending vehicle was paying him the salary. On the other hand, the specific case pleaded by the owner of the vehicle in the written statement and also in the evidence is that the claimant was not appointed as a cleaner at any point of time and the owner was never paying salary to him. Learned counsel for the appellant-owner of the vehicle relied upon the judgment reported in ILR 2007 KAR 533 in the

21 21 case of NEW INDIA ASSURANCE CO. LTD. v/s R.THIPPESWAMY AND OTHERS wherein this Court held that some categories of employees at the time of accident though in the course of employment are out side the vehicle, then they would become third party under the Act, not withstanding the fact that such a person is also an employee of the Insured - Such an employee has the option of either claiming compensation under the provisions of Motor Vehicle Act as a third party or as an employee of the Insured under the provisions of Workmen s Compensation Act Tribunal has rightly foisted the liability on the appellant in respect of a claim of the injured cleaner as a third party. In view of the law laid down by this Court, the Insurer has to compensate the claimant. The case set up by the claimant is that while the driver of the offending vehicle was taking the bus in reverse direction, at that time he was signaling the driver. All of a sudden, the driver took the bus in the reverse direction in a rash and negligent manner and dashed against the claimant.

22 22 Admittedly, the claimant was not inside the bus. The claimant has failed to prove that he was employed as a cleaner of the bus. In the absence of the same, the Insurer has to compensate the injured as a third party, since the vehicle is fully covered by the policy. 17. Under Section 148(2) of the Motor Vehicles Act, the policy of the offending vehicle covers the third party risk apart form 48 passengers and driver and conductor. Hence, we are of the view that foisting the liability on the owner of the vehicle cannot be sustainable. Hence, the Insurer has to compensate the claimant. Accordingly, the judgment and award passed by the Tribunal requires to be modified insofar as fixing the liability on the owner of the vehicle and Insurer of the vehicle has to compensate the claimant. Point No.2 is answered accordingly. 18. Accordingly, we pass the following:

23 23 ORDER Both the appeals are allowed. The judgment and award dated made in MVC No.15/2011 on the file of the Senior Civil Judge and MACT, Challakere is modified. The appellant-claimant in MFA No.7995/2011 is entitled to compensation of Rs.4,82,400/- as against the Rs.2,49,000/- and entitled for enhanced compensation of Rs.2,33,400/- with interest at the rate of 6% p.a. from the date of filing of the claim petition till the date of realization on the enhanced compensation. The liability fixed on the owner of the vehicle is set aside. The Insurer-2 nd respondent is liable to compensate the claimant. Out of the enhanced amount, Rs.1,50,000/- with proportionate interest shall be deposited in any nationalized or Scheduled bank for a period of ten years renewable by another five years.

24 24 The remaining Rs.83,400/- with accrued interest may be released in favour of the claimant, within a period of 3 weeks from the date of receipt of a copy of this judgment, on deposit made by the Insurer. The amount deposited by the appellant-owner of the offending vehicle shall be refunded to him, forthwith. Office is directed to draw the award, accordingly. Sd/- Judge Sd/- Judge mpk/-*