Sri Harsh Kumar vs Sri Velu Swamy
2022 Latest Caselaw 3002 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 22ND DAY OF FEBRUARY, 2022

                          BEFORE

       THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

MISCELLANEOUS FIRST APPEAL NO.4238 OF 2011 (MV-I)

BETWEEN:

       SRI HARSH KUMAR
       S/O. SRI VELUSWAMY,
       AGED ABOUT 21 YEARS,
       RESIDING AT YERAPANAHALLI BANDE,
       DODDABUDDI POST,
       BENGALURU EAST TALUK.
                                              ... APPELLANT

       (BY SRI CHANDRASHEKAR R., ADV.)

AND:

1.     SRI VELU SWAMY
       S/O. SRI KUPPASWAMY,
       NO.51, OPPOSITE TO 7TH CROSS,
       SIDDAIAH ROAD,
       BENGALURU-560 027.

2.     ICICI LOMBARD MOTOR INSURANCE CO. LTD.
       SVR COMPLEX, 2ND FLOOR,
       MADIWALA, HOSUR MAIN ROAD,
       BENGALURU-560 068.
                                          ... RESPONDENTS

       (BY SRI B.C. SHIVANNE GOWDA, ADV., FOR R-2, &
           NOTICE TO R-1 IS HELD SUFFICIENT VIDE ORDER
            DATED 22-10-2021)

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      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 18-1-2011 PASSED IN M.V.C.
NO.3056 OF 2009 ON THE FILE OF THE MOTOR ACCIDENT
CLAIMS TRIBUNAL, BENGALURU, DISMISSING THE CLAIM
PETITION FOR COMPENSATION.

     THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

                    JUDGMENT

This appeal is at the instance of the claimant calling

in question the judgment and award dated 18-1-2011 in

M.V.C. No.3056 of 2009 passed by the Motor Accident

Claims Tribunal, Bengaluru, dismissing the claim petition.

2. Claim petition was filed with the allegation that

the claimant was working as a Cleaner in lorry bearing

Registration No.AP-09 T-9849 belonging to one Velu

Swamy, who is father of the Cleaner and the said lorry

was insured with respondent No.2. On 22-1-2009 at about

11:30 p.m., when the claimant was proceeding in the said

lorry as a Cleaner, on account of rash and negligent

driving of the Driver, the lorry dashed against a parked

lorry bearing Registration No.KA-51 5186 and due to

which, the claimant suffered grievous injuries.

3. Before the Tribunal, respondent No.1-owner of

the lorry remained ex-parte. Respondent No.2-Insurance

Company entered appearance and filed separate written

statement denying the material averments made in the

claim petition.

4. During trial, the claimant was examined as

P.W.1, an Orthopedic Surgeon from Bowring and Lady

Curzon Hospital was examined as P.W.2 and Exs.P.1 to

P.12 were marked. The respondents did not examine any

witness and no documents were marked.

5. After hearing the learned counsel on both sides

and perusing the record, the Tribunal assessed the

compensation payable to the claimant at Rs.2,05,560/-,

but proceeded to dismiss the claim petition on the ground

that the offending lorry belonged to the father of the

claimant and he stepped into the shoes of his father-

owner and therefore, he cannot claim compensation.

6. Learned counsel for the appellant-claimant

submitted that the Tribunal was wholly in error in

dismissing the claim petition having recorded the finding

that the claimant was a Cleaner in the offending lorry and

tortious act was committed by the Driver as per the

charge-sheet filed under Ex.P.6. He, therefore, submitted

that the claimant having demonstrated that he had

suffered fracture of femur bone and several physical

disability resulting in loss of earning capacity, the

Tribunal could not have dismissed the claim petition on

an untenable ground. He, therefore, submitted that the

appeal is liable to be allowed and compensation to be

awarded to the appellant.

7. Learned counsel for the respondent-Insurance

Company submitted that the order of dismissal of the

claim petition made by the Tribunal is right and justified

and there is nothing to show that the claimant was

working as Cleaner in the lorry and he was only a

passenger and therefore, he is not entitled for

compensation.

Alternatively, learned counsel for the respondent-

Insurance Company submitted that the Insurance

Company has not collected any additional premium to

cover the risk of the Cleaner. Policy being an Act Policy,

and therefore, its liability, if any, is restricted to statutory

liability under Section 147 proviso (i)(c) of the Motor

Vehicles Act, 1988. He, therefore, submitted that the

claimant is only entitled to receive compensation under

the Employee's Compensation Act, 1923, and the appeal

lacks merit and it is liable to be dismissed.

8. I have given my anxious consideration to the

submissions made by the learned counsel on both sides

and perused the records.

9. There is no dispute about the fact that even

though the offending vehicle, namely lorry bearing

Registration No.AP-09 T-9849 was covered by a policy of

insurance by the Insurance Company, it is an Act Policy

and the insurer has not collected any additional premium

to cover the risk of the Cleaner. Further, there is no

dispute about the fact that insurer has collected the

premium for a paid Driver and there is a personal accident

cover for the owner-driver to an extent of Rs.2.00 lakh.

There is no other liability accepted by the insurer under

the policy issued by it. Notwithstanding the above, there

is statutory liability under Section 147 of the Motor

Vehicles Act, 1988. The same reads as under:

"147 Requirements of policies and limits of liability.-(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--

(a) is issued by a person who is an authorised insurer; and

(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)--

(i) against any liability which may be incurred by him in respect of the death of or bodily 90[injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:

Provided that a policy shall not be required--

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person

insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee--

(a) engaged in driving the vehicle, or

(b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or

(c) if it is a goods carriage, being carried in the vehicle, or

(ii) to cover any contractual liability."

(Emphasis supplied)

10. Learned counsel for the respondent-Insurance

Company is not in a position to dispute the above

statutory liability in the facts and circumstances and the

evidence adduced in this case.

11. It is therefore clear that the claimant is entitled

for a compensation which is required to be computed

under the Employee's Compensation Act, 1923. The

Tribunal has given a finding that the claimant was aged

19 years and the relevant factor is 225.22. In regard to

injuries suffered by the claimant, Ex.P.5-Wound

Certificate is produced which shows fracture of right

femur shaft. P.W.2 is a qualified medical practitioner and

Orthopedic Surgeon working at Bowring and Lady Curzon

Hospital, Bengaluru. He has stated that he examined the

claimant on 31-10-2009 at the Hospital for disability

assessment and his OPD number is 671217 and original

OPD card number his available in the records. Said card

is also signed by P.W.2. On his examination, he has noted

the following injuries:

"a. Swelling and tenderness in right thigh, hip, buttock inguinal and knee region.

Difficult to stand, walk and bear weight on right leg, difficulty to sit cross legged, to

squat, to use Indian toilet, to climb up and down the stair case. Limps while walking. 8 + 6 + 5 + 7 = 26% (a)

b. Range of movements of right hip joint. Active flexion and extension range (0-1400) = 1100 Abduction and adduction range (0-750) = 600 Internal rotation and external rotation range (0-750) = 650 Right Knee flexion and extension (0-1400) = 1100 Loss of range of movements is about 20% Strength or power of the muscles acting on right hip and right knee joint about 3/5 (5/5) about 40% loss of muscle power .

Combining the values = 20 + 40 = 60% x 0.3 = 18% (b)

Formula = a + [b(90-a)] = 26 + [18(90-26)]

= 26+[18(64)] = 26+[1152] = 26 + 12.8

38.08% of disability of right lower limb.

Radiological examination revealed the following:

Fracture of shaft of right femur is united with implant in situ.

Based on the findings and guidelines and gazette notification, Reg. No.DL 33004/99 (EXTRAORDINARY) PART II, SEC.1, JUNE 13 2001 ISSUED BY MINISTRY OF SOCIAL JUSTICE & EMPOWERMENT, GOI, the petitioner suffers the permanent residual physical disability of about 38.8% present right lower limb which is about 19.4% of whole body."

12. As per the same, the assessment of the whole

body disability made by P.W.2 is 19.4%. Even in the

cross-examination, the said version of P.W.2 has not been

shaken. Learned counsel for the respondent-Insurance

Company, no doubt, submitted that the qualified medical

practitioner has only given his evidence to the whole body

disability, but he has not spoken about the functional

disability or loss of earning capacity. In this regard, it

needs to be noticed that the claimant had suffered

fracture of shaft of right femur. On account of the same,

movements of right hip joint have been affected and there

is limping while working. P.W.2 has noticed the same

and he has given the details of restriction of movements of

the hip as well as the right knee. It clearly shows that the

claimant would not be in a position to do any manual

work with full efficiency and the potential employer will

look out for 100% efficiency for work by the labourer to

pay wages. In that view of the matter, the physical

disability noticed by P.W.2 in the claimant will result in

greater extent of loss in his earning capacity. Therefore,

the functional disability on account of the physical

disability caused to the movement of his right leg is to the

extent of 35%. The accident took place on 22-1-2009 and

at that time, the maximum notional income fixed under

the Employee's Compensation Act, 1923, is Rs.4,000/- per

month. Since the claimant was working as Cleaner,

Rs.4,000/- is taken as his monthly income. Therefore, the

compensation payable under the Employee's

Compensation Act, 1923, is Rs.1,89,185/-

[(4,000 x 60%) 2400 x 35% x 225.22] with interest at the

rate of 12% per annum. Accordingly, I proceed to pass the

following

ORDER

i. Appeal is partly allowed;

ii. The claimant is entitled for compensation of

Rs.1,89,185/- (Rupees one lakh eighty-nine

thousand one hundred and eighty-five only) with

interest at the rate of 12% per annum from the

date of the accident till the date of deposit;

iii. Respondent No.2-Insurance Company shall

deposit the amount with interest within six weeks'

from the date of receipt of a certified copy of this

judgment, and

iv. Transmit the records to the Tribunal, forthwith.

Sd/-

JUDGE

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