Karnataka High Court
Mr Syed Afsar vs M/S Sharma Transport on 6 June, 2019
Bench: B.V.Nagarathna, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2019
PRESENT
THE HON'BLE MRS. JUSTICE B. V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
M.F.A. NO.7616/2014 (MV)
BETWEEN:
MR. SYED AFSAR,
S/O. SYED ZAFER,
AGED ABOUT 59 YEARS,
OCC: NIL, RESIDENT OF GORIPALLYA,
HOSALLI MAIN ROAD,
11TH 'B' CROSS,
BENGALURU-560 026. ... APPELLANT
(BY SRI M.S.RAJENDRA PRASAD, SR. ADV., A/W
SRI MOHAMMED SALEHA, ADV.)
AND:
1. M/S. SHARMA TRANSPORT,
#328, SANGEETHA BHAVAN,
T.S.P. ROAD,
KALASIPALYAM,
BENGALURU-560 002,
REPRESENTED SRI SURESH KUMAR SHARMA.
2. THE ORIENTAL INSURANCE CO. LTD.,
ISSUED OFFICE NAME:
OFFICE CODE NO:8096746
CBO-14, SHANKARAPURAM,
NO.19/1, 1ST FLOOR, 3RD CROSS,
CHIKKANNA GARDEN SHANKARMUTT
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COMPOUND,
BENGALURU-560 004.
CORPORATE OFFICE:
ORIENTAL HOUSE,
P.B.NO.7037, A-25/27
ASAF ALI ROAD,
NEW DELHI-110 002.
3. NATIONAL INSURANCE COMPANY LTD.,
REGD. OFFICE # 3, MIDDLETON STREET,
POST BOX NO.9229,
KOLKATA-700 071.
4. MR. UMESH M MUNNOLIMATH,
S/O. MURGADHRAYYA,
RESIDING AT AZAD ROAD,
SANKESHWAR TALUK,
HUKKERI DISTRICT,
BELGAUM. ... RESPONDENTS
(BY SRI PRASANNA V.R., ADV. FOR R-1;
SRI P.B.RAJU, ADV., FOR R-2;
SRI A.N.KRISHNASWAMY, ADV., FOR R-3;
R-4 - SERVED AND UNREPRESENTED)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 21.03.2013
PASSED IN MVC NO.8477/2008 ON THE FILE OF THE CHIEF
JUDGE, MEMBER, PRINCIPAL MACT, COURT OF SMALL CAUSES,
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY,
NATARAJAN. J., DELIVERED THE FOLLOWING:
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JUDGMENT
Though this appeal is listed for admission, with the consent of learned senior counsel appearing for the appellant and learned counsel for respondent Nos.1 and 3, it is heard finally.
2. This appeal is preferred by the injured claimant by assailing the judgment and award dated 21.03.2013 passed in M.V.C.No.8477/2008 by the Prl. MACT and Chief Judge, Court of Small Causes, Bengaluru (hereinafter referred as 'Tribunal')
3. We have heard the arguments of the learned counsel for the appellant as well as the respondent-Insurance Company.
4. The status of the parties before the Tribunal is retained for the sake of convenience.
5. The injured claimant filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter 4 referred as MV Act) claiming compensation of Rs.50,00,000/- inter-alia, contending that he was the driver working with Sharma Transport Company, Bengaluru; that on 05.02.2008 he was driving the bus bearing registration No.KA.01/B.2611 from Mumbai to Bengaluru, one Khaja Nawaz Khan was the second driver and Doddegowda was the conductor/cleaner of the bus. At about 08.45 p.m., when the bus reached near Chikkalagudda Cross on NH 4 after Sankeshwar, a Tipper lorry bearing registration No.KA.23/9090, driven by its driver in rash and negligent manner so as to endanger human life and safety of others, suddenly entered NH-4 from the cross road and thereby, a collision took place between the bus and Tipper lorry. Due to the said accident, the cleaner of the bus died on the spot and another person caught fire which broke out on account of spilling of diesel from the tank of the Tipper. The claimant who was the driver of the bus sustained grievous injuries. He was shifted to KLE Hospital, Belgaum, treated as an 5 in-patient for a prolonged period. Thereafter, he was shifted to Seetha Bathija Hospital, Bengaluru. He has spent more than Rs.5,00,000/- for treatment. He has lost his earnings at the rate of Rs.12,000/- per month. Apart from that, he has suffered disability. Hence, he has claimed the compensation on various heads.
6. Respondent Nos.1 and 2 are the owner and Insurer of the bus and respondent No.3 is the Insurer of the Tipper lorry and respondent No.4 is the owner of the Tipper lorry. Respondent No.4 remained absent and was placed ex-parte.
7. Respondent No.1, owner of the Volvo bus filed statement of objections by denying the manner of accident and injuries sustained by the claimant including the period of treatment, expenditure incurred, avocation of the claimant, earnings and disability. However, it was contended that the accident has occurred purely due to the negligence of the driver of Tipper lorry and the bus was insured with respondent No.2. If there was any liability of 6 respondent No.1, the same had to be fastened on respondent No.2, the insurer of the bus. The driver of the bus had a valid and effective driving licence. He also contended that respondent No.1 had paid Rs.91,900/- to KLE Hospital towards the hospital charges and treatment of claimant. However, he had denied the monthly salary of Rs.16,000/- earned by the claimant.
8. Respondent No.2, the insurer of the bus also took similar contentions and that it was not a necessary party, as the accident had occurred purely due to the rash and negligent driving of the Tipper lorry by its driver and hence, prayed for dismissing the claim petition.
9. Respondent No.3-Insurer of the Tipper lorry also filed statement of objections by denying all the averments made in the petition including the injuries sustained by the claimant, treatment expenditures incurred, avocation etc., and also denied the negligence on the part of the driver of the Tipper lorry. However, it admitted the issuance of 7 policy in respect of Tipper lorry in question. But, if there was any liability, the same was subject to the terms and conditions of the Insurance Policy and hence, prayed for dismissing the claim petition.
10. On the basis of above pleadings, the Tribunal framed the issues (since it is in the vernacular language, the same is translated into English):
"1) Whether the claimant proves that the accident occurred due to the rash and negligent driving of the vehicle bearing No.KA.23/9090 by its driver due to which the claimant had sustained injury and permanent disability?
2) Whether the claimant is entitled for the compensation? If so, what amount and from whom?
3) What order or award?"
11. To substantiate the case, the claimant examined himself as PW.1 and also examined two doctors as PWs.2 and 3 and got marked 30 documents as per Ex.P1 to 8 Ex.P30. On behalf of respondent No.3, one Smt. Jayashree was examined as RW.1 and she got marked two documents.
12. The Tribunal after hearing the arguments, answered issue No.1 in the affirmative; Issue No.2 partly in the affirmative and awarded compensation of Rs.8,58,139/- together with interest at the rate of 6% p.a. by fastening liability on respondent Nos.3 and 4, which is detailed as under :-
Sl. Head of Amount
No. Compensation Rs.
a) Injury, pain and suffering Rs.1,00,000
b) Medical expenses Rs.4,32,019
c) Attendant charges Rs.12,000
d) Conveyance charges Rs.5,000
e) Loss of income during Rs.24,000
treatment
f) Loss of income on account of Rs.2,85,120
disability
Total Rs.8,58,139
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Assailing the Judgment and award passed by the Tribunal, the claimant has filed the present appeal.
13. Learned counsel for the appellant contended that the appellant was admitted in various hospitals having sustained injuries and has examined two doctors. He has undergone various surgeries. He has spent more than Rs.15,00,000/- towards medical expenditure. He has suffered a lot of pain and agony as he suffered fractures and underwent various surgeries. Though the claimant contended that his earning was Rs.16,000/- per month as the driver of the Volvo bus, but the Tribunal considered notional income of Rs.6,000/- per month, which is meager. There is no award passed in respect of loss of amenities. The claimant was treated at Belgaum and thereafter, at Bengaluru. He has spent lot of amount towards the transportation charges but the Tribunal has awarded only Rs.5,000/- which is also meager. Therefore, learned counsel for claimant-appellant prayed for enhancing the total compensation.
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14. Per contra, learned counsel for the Insurance Company contended that there is no document produced before the Court to prove the salary of the claimant. The Tribunal after considering the records, considered the notional income at Rs.6,000/- as income of the claimant and the disability at 36% has been considered. The Tribunal awarded the compensation of Rs.8,58,139/-, which is just and proper. Therefore, he prayed for dismissing the same.
15. Upon hearing the arguments of learned counsel for the respective parties and perusing the evidence on record, the following points would arise for our reconsideration:
1) Whether the appellant is entitled for the enhancement of compensation?
2) If so, what amount?
16. The case of the claimant is that on 05.02.2008, when he was driving the bus bearing No.KA.01/B-2611 11 from Mumbai to Bengaluru, it collided with the Tipper lorry bearing No. KA.23/9090, due to the rash and negligent driving by the driver of the Tipper lorry and he suffered fractures and serious injuries. The accident is not in dispute. The Tribunal after considering the documentary evidence on record, that is Ex.P1-FIR, Ex.P2-IMV Report and Ex.P16-Charge Sheet, held that the accident had occurred due to the rash and negligent driving by the driver of Tipper lorry bearing No. KA.23/9090.
17. The claimant contended that the Tribunal has awarded Rs.1,00,000/- towards pain and suffering, even though, he had undergone surgeries and prolonged treatment in various hospitals. In support of his case, he also produced sufficient medical records and also examined the Doctors. Considering the documents, the Tribunal has awarded Rs.1,00,000/- under the head of injury, pain and suffering. We find that the amount of Rs.1,00,000/- awarded by the Tribunal is sufficient and need not be enhanced.
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18. As regards to the medical expenditure, the Tribunal after calculating the medical bills has awarded Rs.4,32,019/-. After considering the documents, we do not intend to interfere with the compensation awarded towards the medical expenditures.
19. The counsel for the claimant contended that the claimant was a Volvo bus driver. He was earning Rs.16,000/- per month but the Tribunal considered Rs.6,000/- as notional income which is meager. Therefore, he prayed for enhancing the same. However, the claimant had neither produced any salary certificates nor pay slip before the Tribunal to prove that he was earning Rs.16,000/- per month. Even, respondent No.1, the employer of the claimant has also disputed the income. Such being the case, by looking to the occupation of the claimant who was the driver of the Volvo bus having valid driving licence and experience, we propose to assess Rs.10,000/- per month as income.
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20. In order to prove the disability, the claimant has examined two witnesses. PW.2-Doctor has opined that the claimant is suffering from disability of 25% for the whole body, whereas PW.3-Dr.Sathya Prakash consultant Orthopedic Surgeon has opined that the total disability is 33%. By analyzing the entire evidence on record, the Tribunal has assessed the disability at 36% towards whole body. In our view, the disability assessed by the Tribunal is correct.
21. If Rs.10,000/- is considered as income per month and the assessment of disability at 36%, it comes to Rs.3,600/- p.m., which is the loss of income due to the disability. Applying multiplier of 11, it comes to Rs.4,75,200/-. Therefore, we hold the loss of earning capacity assessed by the Tribunal requires to be enhanced accordingly.
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22. The Tribunal has considered the loss of income during the treatment period and has awarded Rs.24,000/- for four months. As we have already considered the income of the claimant at Rs.10,000/- per month, the claimant is entitled to Rs.40,000/- towards the loss of income during the laid up period.
23. The Tribunal has awarded Rs.12,000/- per month towards attendant charges and Rs.5,000/- towards conveyance charges. On perusal of the medical records which go to show that the claimant obtained treatment at KLE Hospital, thereafter, he took further treatment in Bengaluru and has undergone surgeries, he would have spent lot of amount towards conveyance and attendant charges. Therefore, we propose to award Rs.30,000/- towards attendant and conveyance charges (incidental charges).
24. The counsel for the appellant/claimant also contended that due to the disability, he is unable to sit or 15 squat and walk normally, therefore, he has lost amenities, but no compensation has been awarded on the head of loss of amenities. Therefore, by considering the facts and circumstances of the case, the injuries and disability suffered by the claimant, we propose to award Rs.30,000/- under the head of loss of amenities.
25. In the result, the re-assessed compensation is as under:
Heads of Amount in
Compensation Rupees
(Rs.)
i) Injury, pain and suffering 1,00,000.00
ii) Medical expenses 4,32,019.00
iii) Towards incidental charges 30,000.00
including attendant
charges, conveyance
charges and other charges
iv) Loss of income during 40,000.00
treatment period
(10,000 x 4 months)
v) Loss of future earning 4,75,200.00
capacity
(36% disability, Rs.10,000
monthly income = 3,600 x
12 x 11)
v) Loss of amenities 30,000.00
TOTAL 11,07,219
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26. The enhanced compensation shall carry interest at the rate of 6% p.a. from the date of claim petition till realization.
27. 50% of the enhanced compensation shall be deposited in any Post Office or Nationalized Bank deposit for an initial period of ten years. Claimant shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to the appellant- claimant after due verification. Respondent No.3 shall deposit the compensation within two months from the date of receipt of certified copy of this judgment.
The appeal is allowed in-part in the aforesaid terms.
Parties to bear their respective costs.
Sd/-
JUDGE Sd/-
JUDGE GBB