Karnataka High Court
Sheik Mohammad Altaf S/O Sheik Mohammad ... vs Yankappa And Anr on 5 July, 2023
-1-
NC: 2023:KHC-K:4935
MFA No. 200139 of 2021
C/W MFA No. 200989 of 2020
MFA No.200154of 2021
MFA No.200990 of 2020
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
MISC. FIRST APPEAL NO. 200139 OF 2021 (MV)
C/W
MISC. FIRST APPEAL NO. 200989 OF 2020 (MV)
MISC. FIRST APPEAL NO. 200154 OF 2021 (MV)
MISC. FIRST APPEAL NO. 200990 OF 2020 (MV)
IN MFA NO.200139/2021
BETWEEN:
1. SHEIK MOHAMMAD ALTAF
S/O SHEIK MOHAMMAD JEELANI,
AGE: 25 YEARS, OCC. ELECTRICIAN, NOW NIL,
Digitally signed
R/O JALAL MOHALLA, SHORAPUR,
by LUCYGRACE DIST. YADGIRI.
Location: HIGH
COURT OF ...APPELLANT
KARNATAKA
(BY SRI. KRUPA SAGAR PATIL, ADVOCATE)
AND:
1. YANKAPPA
AGE. 61 YEARS,
OCC. OWNER OF VEHICLE AND AGRICULTURE,
R/O KODEKAL, TQ. HUNASAGI,
DIST. YADGIRI-585237.
2. THE HDFC ERGO GENERAL INSURANCE COMPANY
LTD.,
-2-
NC: 2023:KHC-K:4935
MFA No. 200139 of 2021
C/W MFA No. 200989 of 2020
MFA No.200154of 2021
MFA No.200990 of 2020
THROUGH ITS BRANCH MANAGER,
1ST FLOOR, VIRUPAKSHAKRUPA,
OPP. KIMS MAIN GATE, PB ROAD,
KIMS RD, VIDYA NAGAR, HUBLI-580021.
...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2,
NOTICE TO R1 IS HELD SUFFICIENT)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING
TO, MODIFY THE JUDGMENT AND AWARD DATED 24.07.2020,
PASSED BY THE SENIOR CVIIL JUDGE AND MACT, SHORAPUR,
IN FILE BEARING M.V.C. NO.10/2019, BY ENHANCING THE
COMPENSATION AS PRAYED FOR.
IN MFA NO.200989/2020
BETWEEN:
1. HDFC ERGO GEN. INS. CO. LTD.
THROUGH ITS BRANCH MANAGER,
1ST FLOOR, VIRUPAKSHAKRUPA,
OPP. KIMS MAIN GATE,
PB RAOD, KIMS RD,
VIDYA NAGAR, HUBLI- 580021
(NOW REPRESENTED BY AUTHORIZED SIGNATORY,
VIDYA NAGAR, HUBLI)
...APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
1. SHEIK MOHAMMAD ALTAF
S/O SHEIK MOHAMMAD JEELANI,
AGE 25 YEARS, OCC. ELECTRICIAN,
(ELECTRICAL WORKER), NOW NIL,
R/O JALAL MOHALLA SHORAPUR,
DIST. YADGIR- 585201
2. YENKAPPA
-3-
NC: 2023:KHC-K:4935
MFA No. 200139 of 2021
C/W MFA No. 200989 of 2020
MFA No.200154of 2021
MFA No.200990 of 2020
S/O YALLAPPA CHINNADASAR,
AGE 61 YEARS,
OCC. OWNER OF VEHICLE AND AGRICULTURE,
R/O KODEKAL, TQ. HUNASAGI,
DIST. YADGIRI- 585201
...RESPONDENTS
(BY SRI. KRUPA SAGAR PATIL, ADVOCATE FOR R1,
NOTICE TO R2 HELD SUFFICIENT,
VIDE ORDER DATED 13.03.2023)
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE IMPUGNED
COMMON JUDGMENT AND AWARD DATED 24.07.2020 IN MVC
NO.10/2019 PASSED BY THE SENIOR CIVIL JUDGE AND MACT
AT SHORAPUR.
IN MFA NO.200154/2021
BETWEEN:
1. KHAJA WASIM AHMED
S/O KHAJA KHALEE AHMED,
AGE: 24 YEARS, OCC: ELECTRICIAN,
NOW NIL, R/O: MULLA MOHALLA,
SHORAPUR DIST. YADGIRI
...APPELLANT
(BY SRI. KRUPA SAGAR PATIL, ADVOCATE)
AND:
1. YANAKAPPA
S/O YALLAPPA CHINNADASAR,
AGE: 61 YEARS,
OCC: OWNER OF VEHICLE AND AGRICULTURE,
R/O: KODEKAL, TQ. HUNASAGI,
DIST. YADGIRI-585237.
-4-
NC: 2023:KHC-K:4935
MFA No. 200139 of 2021
C/W MFA No. 200989 of 2020
MFA No.200154of 2021
MFA No.200990 of 2020
2. THE HDFC ERGO GENERAL INSURANCE COMPANY
LTD.,
THROUGH ITS BRANCH MANAGER,
1ST FLOOR, VIRUPAKSHKRUPA,
OPP. KIMS MAIN GATE, PB ROAD,
KIMS RD, VIDYA NAGAR HUBLI-580021
...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2,
NOTICE TO R1 HELD SUFFICIENT,
VIDE ORDER DATED 13.03.2023)
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO,
MODIFY THE JUDGMENT AND AWARD DATED 24.07.2020,
PASSED BY THE SENIOR CIVIL JUDGE AND MACT, SHORAPUR,
IN FILE BEARING MVC NO.14/2019, BY ENHANCING THE
COMPENSATION AS PRAYED FOR.
IN MFA NO.200990/2020
BETWEEN:
1. HDFC ERGO GEN. INS. CO. LTD.
THROUGH ITS BRANCH MANAGER,
1ST FLOOR, VIRUPAKSHAKRUPA,
OPP. KIMS MAIN GATE,
PB ROAD, KIMS RD,
VIDYA NAGAR, HUBLI- 580021.
(NOW REPRESENTED BY AUTHORIZED SIGNATORY,
VIDYA NAGAR, HUBLI.
...APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
1. KHAJA WASIM AHMED
S/O KHAJA KHALEE AHMED,
AGE: 24 YEARS, OCC: ELECTRICIAN
(ELECTRICAL WORKER),
-5-
NC: 2023:KHC-K:4935
MFA No. 200139 of 2021
C/W MFA No. 200989 of 2020
MFA No.200154of 2021
MFA No.200990 of 2020
NOW NIL, R/O MULLA MOHALLA
SHORAPUR, DIST. YADGIR 585201
2. YANKAPPA
S/O YALLAPPA CHINNADASAR,
AGE: 61 YEARS, OCC. OWNER OF VEHICLE
AND AGRICULTURE, R/O: KODEKAL,
TQ. HUNASAGI, DIST. YADGIRI- 585201
...RESPONDENTS
(BY SRI. KRUPA SAGAR PATIL, ADVOCATE FOR R1,
NOTICE TO R2 HELD SUFFICIENT,
VIDE ORDER DATED 13.03.2023)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE IMPUGNED
COMMON JUDGMENT AND AWARD DATED 24.07.2020 IN MVC
NO.14/2019 PASSED BY THE SENIOR CIVIL JUDGE AND MACT,
SHORAPUR.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.200139/2021 is filed by the claimant seeking enhancement of the compensation while MFA No.200989/2020 is filed by the insurer challenging the quantum of compensation as well as the liability fixed on it to pay the compensation awarded by the Senior Civil Judge and MACT at Shorapur (for short 'Tribunal') in MVC -6- NC: 2023:KHC-K:4935 MFA No. 200139 of 2021 C/W MFA No. 200989 of 2020 MFA No.200154of 2021 MFA No.200990 of 2020 No.10/2019, vide common judgment and award dated 24.07.2020.
2. MFA No.200154/2021 is filed by the claimant in MVC No.14/2019 while MFA No.200990/2020 is filed by the insurer challenging the quantum of compensation as well as liability fastened on it to pay the compensation awarded in MVC No.14/2019, vide common judgment and award referred above.
3. The claimants in both these claim petitions were proceeding on a motorcycle bearing registration No.KA- 33/L-7661 on 06.04.2018. At about 2.30 p.m., on the said date, a tractor bearing registration No.KA-33/TA-8646 (henceforth referred as 'offending vehicle') hauling two trailers bearing registration No.KA-33/TA-2856 and KA- 33/T-1076 dashed against the motorcycle. As a result, both the claimants suffered injuries and were treated for the fractures that they had suffered in the accident. The claimant in MVC No.10/2019 claimed that he was aged 24 -7- NC: 2023:KHC-K:4935 MFA No. 200139 of 2021 C/W MFA No. 200989 of 2020 MFA No.200154of 2021 MFA No.200990 of 2020 years and was a electrician while the claimant in MVC No.14/2019 claimed that he was 23 years and was also electrician. Both of them claimed that they were earning a sum of Rs.20,000/- and Rs.25,000/- per month respectively and due to the injuries, they were permanently disabled. Hence, they filed claim petitions under Section 166 of the Motor Vehicles Act, 1988 claiming compensation from the owner and insurer of the offending vehicle.
4. The owner of the tractor contested the claim petitions and denied the accident. It also denied entitlement of the claimants for compensation. He claimed that the offending vehicle was insured with the insurer and that the driver possessed a valid licence and therefore it was the insurer who was liable to indemnify him. The insurer contested the claim petition and denied the accident as well as injuries suffered by the claimants in the accident. It denied the age, income and occupation of the claimants. It claimed that the rider of the motorcycle -8- NC: 2023:KHC-K:4935 MFA No. 200139 of 2021 C/W MFA No. 200989 of 2020 MFA No.200154of 2021 MFA No.200990 of 2020 did not possess a valid licnece and as such the accident was due to negligence on part of the rider of the motorcycle. Similarly, it claimed that the driver of the offending vehicle did not possess a valid licence.
5. Based on these rival contentions, the claim petitions were set down for trial. The claimants were examined as PWs.1 and 2. They examined a doctor who deposed that the claimant in MVC No.10/2019 had suffered disability to the extent of 65% to the right lower limb and 25% to the whole body and the claimant in MVC No.14/2019 had suffered disability to the extent of 60% to the right lower limb, 55% to the right upper limb and 35% to the whole body. The owner of the offending vehicle examined as RW.1 and he marked Exs.R1 to R3.
6. Based on the oral and documentary evidence, the Tribunal held that the accident was due to rash and negligent driving by the driver of the offending vehicle. It held that the claimant in MVC No.10/2019 had suffered -9- NC: 2023:KHC-K:4935 MFA No. 200139 of 2021 C/W MFA No. 200989 of 2020 MFA No.200154of 2021 MFA No.200990 of 2020 fracture of right lower limb while the claimant in MVC No.14/2019 had suffered compound fracture of middle 1/3rd of right tibia and distal end of the right radius. It held that he underwent a surgery for fixing both the fractures. The Tribunal considered the age of the claimants as 27 years and their respective income as Rs.8,000/- per month and disability suffered by them at 25% and 35% respectively and awarded the following compensation:
In MVC No.10/2019
Loss of future income Rs.4,08,000/-
Pain and suffering Rs.10,000/-
Loss of income during Rs.16,000/-
treatment
Medical, conveyance, Rs.35,000/-
nutrition and attendants
charges
Future happiness and Rs.20,000/-
amenities
Total Rs.4,89,000/-
- 10 -
NC: 2023:KHC-K:4935
MFA No. 200139 of 2021
C/W MFA No. 200989 of 2020
MFA No.200154of 2021
MFA No.200990 of 2020
In MVC No.14/2019
Loss of future income Rs.5,71,200/-
Pain and suffering Rs.10,000/-
Loss of income during Rs.16,000/-
treatment
Medical, conveyance, Rs.35,000/-
nutrition and attendants
charges
Future happiness and Rs.20,000/-
amenities
Total Rs.6,52,200/-
7. The Tribunal directed the insurer to pay the compensation along with interest at the rate of 6% per annum from the date of claim petitions till the date of realization. Being aggrieved by the quantum of compensation awarded, the claimants are in appeal while the insurer has filed separate appeals challenging the liability fastened on it to pay the compensation as well as quantum of compensation awarded.
- 11 -
NC: 2023:KHC-K:4935 MFA No. 200139 of 2021 C/W MFA No. 200989 of 2020 MFA No.200154of 2021 MFA No.200990 of 2020
8. The learned counsel for the appellants/claimants contended that the Tribunal committed an error in considering the notional income of the claimants at a sum of Rs.8,000/- per month as against a sum of Rs.11,750/- per month, which is normally done by this Court in similar circumstances. He therefore prayed that the compensation awarded by the Tribunal be enhanced.
9. Per contra, the learned counsel for the insurer contended that the claimant in MVC No.10/2019 had suffered fracture of right lower limb and the evidence of PW.2 established that the fracture had united and therefore assessment of disability at 25% was without any basis. She further contended that the claimant in MVC No.14/2019 had suffered two fractures one of right tibia and right radius and therefore, assessment of disability at 35% was also without any basis. She further contended that the tractor was hauling two trailers which were not insured. She submitted that the tractor is authorized to
- 12 -
NC: 2023:KHC-K:4935 MFA No. 200139 of 2021 C/W MFA No. 200989 of 2020 MFA No.200154of 2021 MFA No.200990 of 2020 haul one trailer and not two and hence, there was violation of the conditions of the policy of insurance and consequently, the insurer is entitled to pay and recover the compensation to be determined by this Court.
10. I have considered the submissions made by the learned counsel for the appellants/claimants as well as learned counsel for the respondent/insurer.
11. The accident involving the two vehicles is not in dispute. It is also not in dispute that both the claimants had suffered injuries in the accident. The claimant in MVC No.10/2019 had suffered fracture of right lower limb and PW.2 deposed that fractures are united. The claimant was an electrician by profession and since the fractures had united, the disability assessed by the Tribunal at 35% was without any basis as there was no functional disability due to fractures. Therefore, disability assessed by the Tribunal deserve to be reduced from 25% to 12%. Likewise, the claimant in MVC No.14/2019 had suffered fracture of right
- 13 -
NC: 2023:KHC-K:4935 MFA No. 200139 of 2021 C/W MFA No. 200989 of 2020 MFA No.200154of 2021 MFA No.200990 of 2020 tibia and right radius and in the opinion of PW.2, the claimant had suffered disability to the extent of 35% to the whole body which again was without any basis and having regard to the avocation of the claimant, disability suffered by him deserves to be assessed at 15% to the whole body. As rightly contended by the learned counsel for the appellants/claimants the notional income of the claimants ought to have been considered at a sum of Rs.11,750/- per month. Taking into account the age of the claimants as 27 years, the multiplier applicable is 17. Thus, the claimants are entitled to following compensation:
In MFA No.200139/2021 (MVC No.10/2019) Pain and suffering Rs.20,000/-
Medical expenses Rs.31,253/-
Attendant, conveyance and Rs.5,000/-
nutritious food charges
Loss of income during the period Rs.35,250/-
of treatment (Rs.11,750x3)
Loss of income due to disability Rs.2,87,640/-
(Rs.11,750x12x17x12%)
Loss of amenities Rs.20,000/-
Total Rs.3,99,143/-
- 14 -
NC: 2023:KHC-K:4935
MFA No. 200139 of 2021
C/W MFA No. 200989 of 2020
MFA No.200154of 2021
MFA No.200990 of 2020
In MFA No.200154/2021 (MVC No.14/2019) Pain and suffering Rs.40,000/-
Medical expenses Rs.33,919/- Attendant, conveyance and Rs.10,000/- nutritious food charges Loss of income during the period Rs.35,250/- of treatment (Rs.11,750x3) Loss of income due to disability Rs.3,59,550/- (Rs.11,750x12x17x15%) Loss of amenities Rs.20,000/- Future medical expenses Rs.20,000/- Total Rs.5,18,719/-
12. In so far as liability is concerned, the insurer cannot avoid liability on the ground that the trailers were not insured and the tractor was hauling two trailers as the motorcycle which was ridden by the claimants as well as the tractor in question were duly insured. At any rate this was not a ground available to the insurer to assail the finding of the Tribunal. In that view of the matter, the insurer is bound to pay the compensation determined by this Court.
13. Consequently, the appeals filed by the insurer in MFA Nos.200989/2020 and 200990/2020 and the
- 15 -
NC: 2023:KHC-K:4935 MFA No. 200139 of 2021 C/W MFA No. 200989 of 2020 MFA No.200154of 2021 MFA No.200990 of 2020 appeals filed by the claimants in MFA Nos.200139/2021 and 200154/2021 are allowed in part. The compensation awarded by the Tribunal in MVC No.10/2019 is reduced from Rs.4,89,000/- to Rs.3,99,143/- and in MVC No.14/2019 it is reduced from Rs.6,52,200/- to Rs.5,18,719/-.
The reduced compensation of Rs.3,99,143/- in MFA No.200139/2021 (MVC No.10/2019) and Rs.5,18,719/- in MFA No.200154/2021 (MVC No.14/2019) shall be paid by the insurer to the claimants along with interest at the rate of 6% per annum from the date of claim petitions till the date of realization.
The reduced compensation along with interest shall be deposited by the insurer before the Tribunal within a period of one month from the date of receipt of a certified copy of this judgment and award.
- 16 -
NC: 2023:KHC-K:4935 MFA No. 200139 of 2021 C/W MFA No. 200989 of 2020 MFA No.200154of 2021 MFA No.200990 of 2020 Upon deposit, 50% of the reduced compensation and interest shall be deposited in the name of claimants in any nationalized Bank for a period of 3 years.
Any amount in deposit is ordered to be transferred to the Tribunal for necessary orders and any excess amount in deposit is ordered to be refunded to the insurer.
In view of disposal of main appeals, pending applications do not survive for consideration and same are disposed off.
Sd/-
JUDGE SRT List No.: 1 Sl No.: 29