Karnataka High Court
Vishwanath vs Abdul Hafeez And Anr on 22 November, 2022
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MFA NO.200110 OF 2018 (MV-I)
C/W
MFA NOS.202416/2017, 202417/2017 &
MFA No.200111 OF 2018
IN MFA NO.200110 OF 2018
BETWEEN:
The Manager
Cholamandalam M.S.General
Insurance Company Limited,
Bellary Club, Bellary.
(Through its authorised signatory)
... Appellant
(By Sri Subhash Mallapur, Advocate)
AND:
1. Vishwanath S/o Siddappa Bangenoor,
Age : 44 years, Occ: Business
(Commission Agent) & Agri,
R/o. Honnadi Village,
Tq. & Dist. : Bidar - 585 401.
2. Abdul Hafeez S/o Abdul Aziz,
Age: 48 years, Occ: Business
(Owner of Vehicle No.KA-38/5645),
R/o. No.4-1-95, Head Post office,
Near Gawan Chowk, Noor Khan Taleem,
Bidar - 585 401.
... Respondents
(By Sri Basavaraj R Math, Advocate for R-1;
Notice to R-2 is dispensed with v.o.d 31.03.2022)
2
This Miscellaneous First Appeal is filed under
Section 173 of the Motor Vehicles Act, praying to allow the
above appeal and consequently be pleased to set aside the
judgment and award dated 29.08.2017 passed by the
Addl.MACT & Senior Civil Judge & CJM, Bidar in MVC
No.709/2015.
IN MFA NO.202416/2017
BETWEEN:
Vishwanath S/o Siddappa Bangenoor,
Age: 43 years, Occ: Business/Commission
Agent) & Agriculture , R/o. Honnadi Village,
Tq. & Dist : Bidar - 585 402.
... Appellant
(By Sri Basavaraj R Math, Advocate)
AND:
1. Abdul Hafeez S/o Abdul Aziz,
Age: 47 years, Occ: Business (owner of
Vehicle Bearing No.KA-38/5645),
R/o.No.4-1-9, Head Post Office,
Near Gawan Chowk, Noor Khan Taleem,
Bidar - 585 401.
2. The Manager,
Cholamandalam M.S.General Insurance
Company Ltd, Bellary Club,
Bellary - 583 101 .
... Respondents
(By Sri Subhash Mallapur, Advocate for R-2;
Notice to R-1 is dispensed with v.o.d 04.01.2019)
This Miscellaneous First Appeal is filed under
Section 173 of the Motor Vehicles Act, praying to call for
records and modify the impugned judgment and award
dated 29.08.2017 passed by the Addl. MACT & Prl.Senior
Civil Judge & CJM, at Bidar in MVC No.709/205.
3
IN MFA NO.202417/2017
BETWEEN:
Anand S/o Vishwanath Bangenoor,
Age: 20 years, Occ: Student,
R/o. Honnadi Village,
Tq & Dist : Bidar - 585 402.
... Appellant
(By Sri Basavaraj R Math, Advocate)
AND:
1. Abdul Hafeez S/o Abdul Aziz,
Age: 47 years, Occ: Business
(owner of Vehicle bearing No.KA-38/5645),
R/o.No.4-1-9, Head Post Office,
Near Gawan Chowk, Noor Khan Taleem,
Bidar - 585 401.
2. The Manager,
Cholamandalam M.S.General Insurance
Company Ltd, Bellary Club,
Bellary - 583 101 .
... Respondents
(By Sri Subhash Mallapur, Advocate for R-2;
Notice to R-1 is dispensed with v.o.d 22.04.2019)
This Miscellaneous First Appeal is filed under
Section 173 of the MV Act, praying to call for records and
modify the impugned judgment and award dated
29.08.2017 passed by the Addl. MACT & Prl. Senior Civil
Judge & CJM, at Bidar in MVC No.710/2015.
IN MFA NO.200111/2018
BETWEEN:
The Manager,
Cholamandalam M.S.General,
Bellary Club, Bellary - 583 101.
(Through its authorised signatory)
... Appellant
( By Sri Subhash Mallapur, Advocate)
4
AND:
1. Anand S/o Vishwanath Bangenoor,
Age: 21 years, Occ: Student,
R/o. Honnadi Village,
Tq & Dist :Bidar - 585 401.
2. Abdul Hafeez S/o Abdul Aziz,
Age: 48 years, Occ: Business
(owner of vehicle bearing No.KA-38/5645),
R/o.No.4-1-9, Head Post Office,
Near Gawan Chowk, Noor Khan Taleem,
Bidar - 585 401.
... Respondents
(By Sri Basavaraj R Math, Advocate for R-1;
Notice to R-2 is dispensed with v.o.d 22.11.2022)
This Miscellaneous First Appeal is filed under
Section 173 of the Motor Vehicles Act, praying to call for
records and modify the impugned judgment and award
dated 29.08.2017 passed by the Addl.MACT & Prl.Senior
Civil Judge & CJM, at Bidar in MVC No.710/2015.
These Appeals are coming on for Admission, this
day, the court delivered the following:
JUDGMENT
The appellant/claimant-Vishwanath S/o Siddappa Bangenoor in MFA No.202416/2017 and the appellant/claimant-Anand S/o Vishwanath Bangenoor in MFA No.202417/2017 have preferred the aforesaid appeals against the judgment and award dated 29.08.2017 passed by the Additional Motor Accident Claims Tribunal and Principal Senior Civil Judge and Chief 5 Judicial Magistrate at Bidar (hereinafter referred to as the 'Tribunal' for brevity) in MVC No.709 and 710 of 2015 respectively. The aforesaid appeals are premised on the ground of inadequate and meager compensation awarded by the Tribunal.
2. The Insurance Company has preferred MFA Nos.200110 and 200111 of 2018 against the same judgment and award, stated supra challenging the exorbitant compensation awarded to the appellants/ claimants contrary to the material evidence placed on record and to set aside the judgment and award.
3. Though this matter is listed for admission with consent of both learned counsel, matter is taken-up for final disposal.
4. Parties to the appeal shall be referred to as per their status before the tribunal.
5. Brief facts of the case are as under:
On 18.07.2015 at about 10.30 a.m. claimants were proceeding from their village Honnadi towards Bidar on Mannaekhelli to Bidar road on a motorcycle bearing 6 Reg.No.KA-38/L-1927 as rider and pillion rider and when they were near Khasimpur (P) Cross, driver of Tata Indica car bearing Reg.No.KA-38/5645, came in a rash and negligent manner at high speed and dashed against the claimants vehicle, due to which both the claimants sustained grievous injuries and shifted to Government Hospital at Bidar and then shifted to Solapur Hospital for better treatment and took treatment as inpatient from 18.07.2015 till 17.08.2015. Thereafter, they got admitted to Gurunanak Hospital, Bidar from 18.08.2015 to 31.08.2015.
Due to the occurrence of accident, the claimants expended `15,07,629/- and `2,55,686/- towards medical expenses and incidental expenses and have sustained grievous injuries and became disabled in the accident due to the rash and negligent driving by driver of the Tata Indica car.
It is stated that prior to occurrence of accident, the claimant in MVC No.709/2015 was hale and healthy, aged 41 years and doing work as Commission Agent in food grains and getting net income of `50,000/- per month. 7 The claimant in MVC No.710/2015 was hale and healthy, aged 18 years and was meritorious engineering student. Due to the said accident and injuries suffered, the claimants are not in position to do their work as they were doing prior to the accident and they are unable to get back to work. Hence, they filed a claim petitions before the tribunal seeking compensation.
6. Respondent No.1/owner of the offending vehicle placed exparte and respondent No.2 filed detailed statement of objections inter alia contending that the claim made by the claimants are exorbitant and denied the age, avocation and income including the injuries as alleged in the claim petitions. Respondent No.2 has further pleaded that liability of the Insurance Company is subject to the terms and conditions of the insurance policy, if any, and terms and conditions of the policy has been violated by the respondent No.1
7. It is also contended that the accident was due to negligence of rider of the motorcycle and at the time of accident the rider of the motorcycle did not have a valid and effective driving licence. Hence, claim petitions are 8 bad for mis-joinder and non-joinder of necessary parties. Therefore, respondent No.2 is not liable to pay any compensation. Hence, on this ground, sought for dismissal of claim petitions.
8. On the basis of pleadings, the tribunal framed relevant issues for consideration.
9. In order to substantiate the issues and to establish the case, the claimants got examined themslves as PW.1 and 2 and the Doctor as PW.2 and got marked documents as Exs.P1 to P.178 respectively. Respondents neither examined any witness nor produced any documents on their behalf.
10. On the basis of material evidence both oral and documentary, the tribunal awarded the compensation of `28,51,000/- in MVC No.710/2015 and `12,34,000/- in MVC No.709/2015 with interest at the rate of 6% per annum and directed the respondent No.2 to pay the compensation.
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11. Being aggrieved by the meager compensation amount awarded, the claimants are before this Court seeking enhancement of compensation.
12. It is the vehement contention of learned counsel for appellants/claimants that the tribunal has erred in awarding meager compensation and has not taken into consideration the material evidence both oral and documentary thereby causing miscarriage of justice to the claimant.
13. He further contends that even under the other heads the Tribunal has not awarded reasonable compensation commensurate to the injuries sustained by the claimant. On this basis, he seeks to allow the appeals and to enhance the compensation awarded by the tribunal.
14. Per contra, learned counsel for the respondent No.2/Insurance Company vehemently contends that the judgment and award passed by the tribunal is in accordance with material evidence both oral and documentary and same does not call for interference at 10 the hands of this Court. Learned counsel contends that the Tribunal has awarded just and reasonable compensation based on the injuries sustained by the claimant and interference by this Court is not warranted. On these grounds, he seeks to dismiss the appeals as same does not merit consideration.
15. Having heard the learned counsel for the appellants/claimants and learned counsel for respondents, the points that would arise for consideration before this Court are:
i) Whether the claimants are entitled for enhancement of compensation?
ii) What order ?
16. Having perused the entire material evidence both oral and documentary and the impugned judgment and award, I am of the opinion that the tribunal has committed an error in awarding meager compensation thereby point Nos.1 and 2 are answered in the affirmative i.e. in favour of the claimants. Therefore, the claimants would be entitled for marginal indulgence of enhancement of compensation for the reasons stated herein below: 11
(a) It is not in dispute that the accident occurred on 18.07.2015 at 1.30 a.m. The involvement of the vehicle, occurrence of accident, injuries having been sustained by the claimants are all not disputed. It is also not disputed that a case came to be registered in Crime No.91/2015 for the offences punishable under Sections 279, 337 and 338 of IPC read with Section 187 of the M.V.Act.
(b) In order to substantiate this aspect and to prove the same, the claimants have produced the documents as Exs.P1 to P5, which are the police records wherein the driver of the Tata Indica car has been charged with criminal offence as stated above. There is no dispute that the charge-sheet has been laid against driver of Tata Indica car for the aforestated offences. No contra material has been placed before the tribunal or before this Court to prove the same as invalid or not being genuine. In the absence of such material before the Court and there being no challenge to the charge-sheet by the driver of car, the negligence is rightly attributed against the driver of car by the tribunal.
12In MFA No.202416/2017 :
(c) Coming to the aspect of age, avocation and income of claimant, no doubt the claimant has averred that he was doing work as Commission Agent and earning `50,000/- per month nothing material has been placed before the Court to substantiate the statement in proof of income. In the absence of any cogent material proof of income, the Tribunal as well as this Court would have to do a guess work to assess the income. In order to arrive at standard guess work, the Legal Services Authority has prescribed notional income chart, which prescribes `10,000/- as income for the year 2015. Accordingly, income requires to be assessed at `10,000/- per month in the present case and so it is.
(d) The claimant has examined PW.2 Doctor who was given disability to an extent of 79%, Tribunal has taken the disability at 30%. The Doctor, PW.2 has not treated the claimant, however, disability is assessed by the Doctor on the basis of radiological and clinical assessment and even if it is divided body three parts of the body it would come to around 26.3%. Therefore, it is 13 rounded of to 30% is correct and same does not call for any interference. Disability of 30% taken by Tribunal is not disturbed.
(e) In the present case on hand, the claimant being aged 45 years, the appropriate multiplier to be calculated in the case would be '14' which is rightly adopted by the Tribunal in consonance with the judgment of the Hon'ble Apex Court in the case of Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another, reported in (2009) 6 Supreme Court Cases 121, which is not interfered. Therefore, towards loss of future earning capacity due to disability would be :-
`10,000x12x14x30%=5,04,000/-
same is awarded under the aforesaid head.
(f) Towards pain and suffering, the tribunal has awarded `1,00,000/-, Towards loss of income, the tribunal has awarded `60,000/- and towards medical expenses the Tribunal has awarded `4,85,000/-, I do not find any illegality or infirmity, same are retained. 14
(g) Towards future medical expenses `25,000/- is awarded as against `15,000/-.
(h) Towards foods, nutrition, attendant charges and conveyance since the claimant was admitted 30 days `30,000/- is awarded under this head as against `10,000/-.
(i) Towards disfigurement of leg Tribunal has awarded `15,000/- calls for interference `50,000/- is awarded under this head.
17. In view of the above discussions, claimant in MFA No.202416/2017 is entitled to total compensation of `12,89,000/- as against `12,24,000/-, morefully mentioned in the table below ;-
As awarded by As awarded by
Head
the tribunal (`) this Court (`)
Towards pain and 1,00,000/- 1,00,000/-
sufferings
Towards loss of future 5,04,000/- 5,04,000/-
income due to disability
Towards loss of income 60,000/- 60,000/-
Towards medical 4,85,000/- 4,85,000/-
expenses
Towards future medical 15,000/- 25,000/-
expenses
Towards loss of 35,000/- 35,000/-
amenities
Towards food and extra 10,000/- 30,000/-
15
nourishment and
attendant charges
Towards disfigurement 15,000/- 50,000/-
TOTAL 12,24,000/- 12,89,000/-
In MFA No.202417/2017 :
(a) In this case the son - Anand who was
travelling along with his father aged 18 years was involved in the accident, who was a engineering student to prove the same he has produced Ex.P.10 to Ex.P.14 which is not in dispute.
(b) PW.2-Doctor ha examined him and given disability to an extent of 70% has permanent disability. The Tribunal has taken the disability to be 50% which may not be correct. The disability of the son assessed by the Tribunal at 50% is reduced to 30%.
(c) Towards pain and suffering `1,00,000/- is awarded as against `75,000/-.
(d) In this case the loss of future earning capacity due to disability has not been awarded by the Tribunal considering the fact that the claimant in this case was an engineering student, held obviously he would have gone 16 out of become a engineer and earn good income for himself which he may do now also, but due to the accident and disability occurring out of the accident, the same has dented him mentally, physically and financially. Therefore, for an engineering student he cannot be treated as coolie to take the notional income chart therefore, `10,000/- is taken as notional income in view of the fact that the claimant was aged 18 years, appropriate multiplier would be 18. Therefore, loss of income due to disability would be `6,48,000/- (` `10,000/-x12x18x30%) as against `1,35,000/- awarded by the Tribunal.
(e) Towards medical expenses Tribunal awarded a sum of `2,56,600/-. Towards food, attendant charges, nourishment and conveyance in all `30,000/- is awarded, same is not disturbed.
(f) The amount awarded towards future prospects at `3,00,000/- is awarded as loss of marriage prospects. Towards future medical expenses `25,000/- is awarded as against `15,000/-.
17
(g) Towards disfigurement of leg `50,000/- is awarded as against `15,000/-. Towards loss of amenities `50,000/- is awarded as against `25,000/-.
18. Learned counsel Sri Subhash Mallapur, appearing on behalf of respondent No.2/Insurance Company vehemently contends that the Tribunal has committed an error in calculating the disability as the same is on the higher side in view of the fact that PW.2- Doctor is not the one who treated the claimant and he has given disability to one particular part of the limb. Therefore, Tribunal is right in the case of father, in assessing disability at 30%, but wrong in assessment of disability of 50% in the case of son.
19. He also sustains the award of compensation under other heads in fact he contends that in some of the heads Tribunal has awarded excess compensation including `3,00,000/- towards future prospects to the son as he does not lose the earning capacity merely because there is a disfigurement and shortening of the leg. Though the argument of the learned counsel for the Insurance company at the first flush is appealing, but considering the 18 fact that the claimants in both the cases i.e., father and son having suffered disability to an extent of 30% and in the other case 30% again, the award of compensation requires to be marginally enhanced in both the cases and accordingly it is. Therefore, this Court marginally enhances the compensation on various heads as discussed above.
20. In view of the above discussions claimant in MFA No.202417/2017 is entitled to total compensation of `14,59,600/- as against `8,51,000/-, morefully mentioned in the table below ;-
As awarded by As awarded by
Head
the tribunal (`) this Court (`)
Towards pain and 75,000/- 1,00,000/-
sufferings
Towards loss of future 1,35,000/- 6,48,000/-
income due to disability
Towards medical 2,56,600/- 2,56,600/-
expenses
Towards future medical 15,000/- 25,000/-
expenses
Towards future 3,00,000/- 3,00,000/-
prospects (loss of
marriage prospects)
Towards disfigurement 15,000/- 50,000/-
Towards loss of 25,000/- 50,000/-
amenities
Towards food and extra 30,000/- 30,000/-
nourishment and
attendant charges
TOTAL 8,51,600/- 14,59,600/-
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Accordingly, I pass the following :
ORDER
i) The appeals filed by the claimants in MFA
No.202416/2017 and MFA No.202417/2017 and the appeal filed by the Insurance Company in MFA No.200111/2018 are allowed-in-part;
ii) The appeal filed by the Insurance Company in MFA No.200110/2018 is dismissed.
iii) The judgment and award passed by Addl. MACT and Prl. Senior Civil Judge and CJM, Bidar in MVC No.709 and 710 of 2015 dated 29.08.2017 is modified;
iv) The claimant in MFA No.202416/2017 is entitled to total compensation of `12,89,000/- as against `12,24,000/- awarded by the Tribunal;
v) The claimant in MFA No.202417/2017 is entitled to total compensation of `14,59,600/- as against `8,51,000/- awarded by the tribunal; 20
vi) The entire liability is fixed on respondent Nos.1 and 2 i.e. the owner of the offending vehicle and the insurer respectively;
vii) Respondent No.2-Insurer having insured vehicle and policy being in subsistence, is liable to pay the compensation along with interest amount within four weeks from the date of receipt of certified copy of the judgment;
viii) All other terms and conditions stipulated by the Tribunal stand intact.
ix) Amount in deposit before this Court be transmitted to the jurisdictional Tribunal forthwith along with the original records.
Sd/-
JUDGE sn