Karnataka High Court
Syed Shafi Quaderi S/O Syed Shehe ... vs Syed Jahanger Ali, Ayed Sadat Ali on 13 July, 2013
Author: C.R.Kumaraswamy
Bench: C.R.Kumaraswamy
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 13TH DAY OF JULY, 2013
BEFORE
THE HON'BLE MR.JUSTICE C.R.KUMARASWAMY
Miscellaneous First Appeal No. 30325 OF 2011 (MV)
BETWEEN :
1. Syed Shafi Quaderi,
S/o Syed Shehe Hussein Khaderi,
Age: 33 Years, Occ: Coolie,
R/o: Bapur now at Top Galli,
Tq: Humnabad.
2. Mahaboobe alias Tobosum Begum,
D/o Syed Shahe Hussein Khaderi,
Age: 35 Years, Occ: Household,
R/o: Wadankhera, Tq: Humnabad.
3. Mumtazbegum
W/o Syed Shahi Husain Khadari,
Age: 48 Years, Occ: Household.
R/o: Bapur, Tq: Bidar.
Now at Top Galli, Humnabad.
... APPELLANTS
(BY SRI. BASAVARAJ .R.MATH, ADVOCATE)
AND:
1. Syed Jahanger Ali, Syed Sadat Ali,
Age about: 33 Years, Occ: Business,
R/o: H.NO.18-7-425/385,
Bhavani Nagar, Talabketta,
Hyderabad. (A.P.)
2. The Manager
EFFCO-Tokeyo General Insurance Ltd.,
2
Cunning Ghaam Road,
Bangalore.
Policy Bearing NO.40616970.
... RESPONDENTS
(SMT. PREETI PATIL, ADV. FOR R-2)
(R-1 NOTICE DISPENSED WITH )
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLE ACT, AGAINST THE
JUDGMENT AND AWARD DATED 20.10.2011 PASSED IN MVC
NO.211/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL AT HUMNABAD, WHEREIN
PARTLY ALLOWING THE CLAIM PETITION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL IS COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the judgment and award dated 20.10.2011 passed in MVC No.211/2009 on the file of the Motor Accident Claims Tribunal at Humnabad, partly allowing the claim petition and seeking for enhancement of compensation.
2. With the consent of the learned counsel for the appellants as well as the learned counsel for the respondent No.2, this matter is heard on merits. The material placed 3 before this Court is sufficient to dispose of the matter at this stage.
3. Parties will be referred to with reference to the status in the claims tribunal.
4. The appellants have produced the copies of the claim petition, list of documents, first information report, complaint, spot panchanama, post-mortem examination report, IMV report, insurance policy and certificate issued by the Biraja Medical College to Syed Sha Hussain Khadri to licentiate of Medicine and Surgery in Ayurbeda of the college and he was declared to fit to practice and injection according to law. They have also produced RTC extract, objections of Respondent No.2.
5. The case of the claimants in the Claims Tribunal is as under:
That on 01.05.2009 at about 7.15 a.m. near Meenkhera cross, on National Highway No.9 while the deceased Syed Shaha was proceeding on his vehicle TVS Champ bearing registration No.KA-38-E-1534, at that time a motorcycle i.e., Hero Honda bearing No.,AP-12-H-8113 came in a rash and negligent manner and hit against the 4 motorcyclist, as a result of which Syed Shaha Hussain Khadri sustained injuries and succumbed to the injuries. The age of the deceased was mentioned as 50 years. Occupation of the deceased was mentioned as Registered Medical Practitioner and he was also carrying on the agriculture. Monthly income of the deceased was shown at Rs.14,000/- per month.
5. Respondents No.1 and 2 appeared through their advocates in the Claims Tribunal. Respondent No.1 has not filed objection statement. Respondent No.2 has filed objection statement denying the averments made in the claim petition.
6. The Claims Tribunal relying on the evidence of petitioner and also documentary evidence viz., Ex.P.1-FIR, Ex.P.2-spot panchanama, Ex.P.4-P.M.Report and also since the criminal case was registered against the rider of the vehicle bearing registration No.AP-12-H-8113, in the absence of contrary evidence of respondent No.2, the Claims Tribunal has come to the conclusion that the rider of the vehicle bearing Reg. No.AP-12-H-8113 was riding the same in a rash and negligent manner. This finding recorded by the Claims Tribunal is based on record, it is sound and proper. 5
7. The Claims Tribunal has awarded compensation of Rs.2,34,028/- with interest at 6% p.a.
8. Feeling aggrieved by the same, the Claimants have preferred this appeal.
9. It is the contention of the learned counsel for the appellants that the deceased was a Registered Medical Practitioner and he has studied at Biraja Medical College, Homeopathy, Allopathy and Ayurbeda etc. and he has completed the course of study according to the rules and regulations of the college and obtained the degree of L.A.M.S. (Licentiate of Medicine and Surgery in Ayurbeda) of the college. He was permitted to practice and injection according to law. This certificate was issued on 2nd day of July 1981.
Therefore, though the deceased was a Registered Medical Practitioner, the income was assessed at Rs.4,000/- which is on the lower side. Besides he was also agriculturist. Therefore, earning of the deceased can be suitably assessed and just compensation may be awarded.
10. Learned counsel for the respondent No.2 supports the impugned judgment and award. She also submitted that the deceased was not a member of the Indian Medical Council 6 and Indian Medical Association. Claimants have not produced any document to indicate his income.
11. Affidavit evidence is filed in the Claims Tribunal along with list of documents attested notarised copy of certificate of RMP was produced. The Claims Tribunal in its judgment at para-11 mentioned that the claimants have produced copy of the certificate issued by the Biraja Medical College, Debidwar (Jajpur) Orissa. The certificate is dated 2.7.1981. As per the said certificate the age of the deceased was 35 years as on 2.7.1991. The accident took place in the year 2009. Considering the age mentioned in the certificate. the Claims Tribunal has opined that at the time of accident, deceased might have aged 63 years. Even in the post-mortem report, the age of the deceased was mentioned as 52 years. The age mentioned in the certificate issued by the Biraja Medical College can be declared as a conclusive proof. The age mentioned in the post-mortem examination report will be based on the observation made by the Medical Officer. However, the age mentioned in the certificate issued by the Medical College will have to be presumed to be true. There is no evidence adduced by the claimants to point out that the age mentioned in the certificate issued by the Biraja Medical 7 College is incorrect. No evidence is adduced in this regard. Therefore, age of the deceased is assessed at 63 years.
12. The next aspect I have to consider is, what is the income or the earning of the deceased. A Photostat copy of the certificate issued by the Biraja Medical College is produced by the learned counsel for the appellants. It is the submission of the learned counsel for the appellants that the Claims Tribunal declined to mark this document, because it is a photostat copy. The said document reads as under;
" Under instruction and approval (No.526125 L.S.G. Dated 2nd Nov 1943) by Ray Sahib B. Misra M.Sc. Asst. Secretary Health and L.S.G. Department Govt. of British Orissa Awarded from the personaln fund of SJP.M.Pradhan, Labour (also Deputy Chief) Minister of Orissa THE BIRAJA MEDICAL COLLEGE HOMOEOPATHY, ALLOPATHY AND AYURBEDA ETC.
Estd. 1943-44 Regd.Roll No.4321
AYURBEDIC DIPLOMA
(Government of British India Registered No.IV 862, April 1946) DEBIDWAR (JAJPUR) ORISSA This is to certify that Sri Syed Sha Hussain Khadri age 35 years, Son of Sri Syed Osman Ali Khadri Village Manna Ekheli P.O. Manna Ekheli Dist. Bidar Prov. Karnatak completed the Course of study according to the rules and regulations of the Collage and 8 obtained the degree of L.A.M.S. (Licentiate of Medicine and Surgery in Ayurbeda) of the College.
We declare him/her to practice and injection, according to law from this 2nd day of July 1981.A.D. Sd/- Sd.- PRINCIPAL REGISTRAR Examiner Regd No.839(Intigrated) Regd No. H.M.B. (Cal) SANGITA SASTRI F.2060(Ayurbeda) & Regd No. Regd. Pharmacist No.D.18936 (W.B.) D/173 (Homoeopathy) "
13. Based on this document as stated earlier, the age of the deceased can be assessed at 63 years and also he was having a degree i.e., Diploma in Ayurbeda and the degree of L.A.M.S. (Licentiate of Medicine and Surgery in Ayurbeda). Based on his practice and also avocation of agriculture I can assess the income of the deceased at Rs.9,000/- per month. 1/3rd is to be deducted towards his personal expenses. Therefore, the loss of dependency will be Rs.5,04,000/- (Rs.6000x12=72,000/- x 7=Rs.5,04,000/-).
14. The wife of the deceased is aged about 45 years and she has got one daughter and one son. Taking into consideration the age of the wife i.e., 45 years, I award a sum of Rs.46,000/- towards conventional heads. Therefore, the claimants are entitled for a total compensation of Rs.5,50,000/-. The enhanced compensation amount will 9 bear interest @ 6% P.A. from the date of petition till the date of payment.
15. In view of the above discussion, I pass the following:
ORDER i. This Miscellaneous First Appeal is allowed in part.
ii. Compensation of Rs.2,34,028/- as awarded by
the Claims Tribunal is enhanced to
Rs.5,50,000/-.
iii. The enhanced compensation will bear interest at
6% p.a. from the date of petition till the date of payment.
iv. Out of the enhanced compensation, 30% amount shall be deposited in the name of wife of the deceased for a period of five years.
v. Rest of the judgment and award is accepted.
SD/-
JUDGE NSP