Karnataka High Court
The Divisional Manager National ... vs Mohammed Shakeel S/O Chandsab And Anr on 11 October, 2022
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11 TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MFA.NO.30108/2013 (MV-I)
C/w
MFA.NO.30102/2013
In MFA No.30108/2013
BETWEEN:
Mohammed Shakeel S/o Chand Sab,
Age : 33 years, Occ: Nil
(Previously working as a driver)
R/o Fatapur, Tq : Humnabad,
Dist : Bidar - 585 330.
...Appellant
(By Sri S.G.Patil Ikaly and
Sri Sanosh R.Belamagi, Advocates)
AND:
1. Mohmmed Rafiq S/o Abdul Hakeem Solapuri,
Age : Major, Occ: Owner of Auto rickshaw
bearing No.KA-39/4268,
R/o H.No.1065, Mominpura,
Chittaguppa, Tq: Humnabad,
Dist : Bidar - 585 412.
2. The Divisional Manager,
National Insurance Co.Ltd.,
Bilgundi Complex, Main Road,
Gulbarga - 585 103.
... Respondents
(By Smt.Preeti Patil Melkundi, Advocate for R2;
Notice to R1 served)
2
This Miscellaneous First Appeal is filed under
Section 173(1) of the Motor Vehicle Act praying to allow
the appeal and modify the judgment and award dated
28.07.2012 passed by the learned Prl. Senior Civil Judge
and MACT at Gulbarga in MVC No.448/2010 and award
just and reasonable compensation with interest at the rate
of 6% per annum and with costs in the interest of justice
and equity.
In MFA No.30102/2013
BETWEEN:
The Divisional Manager,
National Insurance Co.Ltd.,
Bilgundi Complex, Station Road,
Opp. Mini Vidhan Soudha, Gulbarga
(Now represented through
Asst. Manager, National Insurance Co.Ltd.,
D.O.Gulbarga)
...Appellant
(By Smt.Preeti Patil Melkundi, Advocate)
AND:
1. Mohammed Shakeel S/o Chandsab,
Age : 35 years, Occ: Nil
(Previously working as a driver)
R/o Fatapur, Taluka : Humnabad,
District : Bidar - 585 401.
2. Mohmmed Rafiq S/o Abdul Hakeem Solapuri,
Age : Major, Occ: Owner of Auto rickshaw
bearing No.KA-39/4268,
R/o H.No.1065, Mominpura,
Chittaguppa, Taluka : Humnabad,
District Bidar - 585 401.
... Respondents
(By Sri S.G.Patil, Advocate for R1;
Notice to R2 served)
3
This Miscellaneous First Appeal is filed under
Section 173(1) of the Motor Vehicle Act, 1988 praying to
allow the appeal by setting aside the impugned judgment
and award dated 28.07.2022 in MVC No.448/2010 passed
by the Prl. Senior Civil Judge and MACT at Gulbarga with
exemplary costs in the interest of justice and equity.
These appeals coming on for Final Hearing, this day,
the Court delivered the following:
JUDGMENT
The claimant has preferred MFA No.30108/2013 against the judgment and award dated 28.07.2012 passed by the Principal Senior Civil Judge and Motor Accident Claims Tribunal at Kalaburagi (hereinafter referred to as the 'Tribunal' for brevity) in MVC No.448/2010. This appeal is premised on the ground of inadequate and meager compensation awarded by the Tribunal.
2. The Insurance Company has preferred MFA No.30102/2013 against the same judgment and award, stated supra challenging the exorbitant compensation awarded to the claimant contrary to the material evidence placed on record and to set aside the judgment and award.
3. Parties to the appeal shall be referred to as per their status before the tribunal.
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4. Brief facts of the case is as under:
On 03.10.2009 while claimant along with his friend Venkatesh were proceeding on his motorcycle bearing Reg.No.KA-39/H-9959 from Chittaguppa to their village Fatimpur, on the left side of the road and when they reached Chittaguppa-Hudgi road near Ismail Dhaba, at that time the driver of autorickshaw bearing Reg.No.KA- 39/4268 came from opposite direction, in a rash and negligent manner so as to endanger the human life and safety and being unable to control the vehicle dashed to the motorcycle of the claimant at about 8.30 p.m. causing accident. Due to the above said accident claimant suffered multiple injuries and was shifted to General Hospital at Humnabad and thereafter he was shifted to Osmania General Hospital, Hyderabad. It is stated that prior to occurrence of accident, the claimant was hale and healthy, aged about 35 years and was working as a Driver and earning salary of `7,500/- per month. Due to the occurrence of accident, the claimant has expended some amount towards medical expenses and incidental expenses and has sustained grievous injuries in the 5 accident due to the rash and negligent driving by the driver of the autorickshaw.
4.1. Due to the said accident and injuries suffered, the claimant is not in position to do his work as he was doing prior to the accident and he was unable to get back to work for almost three months. Hence, he filed a claim petition before the tribunal seeking compensation.
4.2. On service of notice, respondent No.1 remained exparte and the respondent No.2-Insurnce Company appeared and filed detailed statement of objections inter alia contending that the claim made by the claimant in the claim petition is exorbitant and denied the age, avocation and income including the injuries as alleged in the claim petition. It further pleaded that the autorickshaw was not at all involved in the alleged accident. The claimant in collusion with respondent No.1 and the police have falsely registered a case and falsely implanted the autorickshaw to seek wrongful gain from respondent No.2. It further pleaded that the driver of the autorickshaw was not holding valid and effective driving licence on the date of accident and the claim made by the claimant is excessive, 6 exorbitant and without any basis. On the basis of this, sought for dismissal of claim petition.
4.3. On the basis of pleadings, the tribunal has framed relevant issues for consideration.
4.4. In order to substantiate the issues and to establish the case, the claimant got examined himself as PW.1 and the Doctor as PW.2 and got marked documents as Exs.P1 to P.10, whereas respondents examined one witness as R.W.1 and got marked Ex.R.1 to Ex.R.3.
4.5. On the basis of material evidence both oral and documentary, the tribunal awarded the compensation of `1,72,200/- with interest @ 6% per annum and directed the respondent No.2-Insurance Company to pay the compensation.
5. Being aggrieved by the meager compensation amount awarded, the claimant is before this Court seeking enhancement of compensation.
6. It is the contention of the learned counsel for the claimant that the Tribunal has committed a gross error in not considering any material evidence both oral and 7 documentary and has awarded meager and inadequate compensation, which requires to be enhanced. It is further contention of the learned counsel for the appellant that the Tribunal has grossly erred in awarding meager compensation under the heads towards pain and suffering, medical expenses, loss of future earnings and towards loss of income during laid-up period and the Tribunal has awarded a meager compensation under the head of loss of amenities.
7. Learned counsel further contended that the Tribunal has committed an error in calculating the disability at 15% whereas PW.2, the Doctor has opined and expressed the disability to an extent of 37% to the whole body in his evidence.
8. Learned counsel further contends that the Tribunal has committed a gross error in assessing the income of the claimant at `4,000/- per month whereas the notional income chart for the accident year 2009 prescribed by the Legal Services Authority is at `5,000/-.
Hence, the Tribunal ought to have atleast taken the base value of `5,000/- as income of the claimant for 8 assessment of compensation. On the basis of these submissions he seeks to allow the appeal and enhance the compensation.
9. Per contra, learned counsel Smt.Preeti Patil Melkundi appearing for respondent No.2-Insurance Company who was filed an appeal has raised several grounds for setting aside the judgment and award by the Tribunal. Her main contentions are that the Tribunal has not considered the material evidence placed on record and has awarded exorbitant compensation against the material placed on record. It is her further contention that initially it is the case of the claimant that it was hit and run case and the number of the vehicle not mentioned in the FIR. Therefore, this is a false case implicating the offending vehicle only for the purpose of making illegal and fast money. She further contends that there was no driving licence of the driver of the offending vehicle and so also the registration certificate of the offending vehicle. She further contends that despite issuance of Ex.R1 notice to the owner of the offending vehicle and the postal acknowledgment at Ex.R2 which is shown as having been 9 served on the owner of the offending vehicle, he has not responded by furnishing the driving licence or the registration certificate of the vehicle to the Insurance Company. Thereby, this clearly depicts that the owner of the offending vehicle has colluded with the claimant to facilitate the claimant in securing higher compensation.
10. It is the vehement contention of the learned counsel for the Insurance Company that claimant has not produced any material documents with regard to the proof of income and the Tribunal has assessed the income at `4,000/- which is on the higher side. She further contends that the driver of the offending vehicle was not possessing valid driving licence and owner has violated the terms and conditions of the policy issued to the offending vehicle. Thereby, there is a violation of the Motor Vehicle Rules by the owner of the offending vehicle who has handed over the vehicle to a person who did not possess a valid and effective driving licence as on date of occurrence of accident.
11. She has further contended that the owner of the offending vehicle remained exparte before the Tribunal 10 and so also before this Court despite service of notice. She further contends that the Tribunal has committed a gross error in assessing the disability at 15% to the whole body. It is her contention that even according to the medical records produced by the claimant the same reveals that the wound and scar are healed. Therefore, there is no loss of future earning capacity or disability to the injured - claimant. Therefore, the disability assessment made by the Tribunal is grossly erroneous and the same deserves to be reversed and set-aside.
12. Further it is her vehement contention that claimant has not got examined the neuro surgeon who is the concerned surgeon for having operated and conducted surgery on the body of the claimant and he has not produced or furnished any opinion. The opinion and the evidence adduced by PW.2 who is a General Surgeon is of no value and the same cannot be taken into consideration for assessment of disability.
13. She further contends that the Tribunal has committed an error in granting compensation including loss of future earning capacity in this particular matter and 11 hence she seeks to allow her appeal and set-aside the judgment and award passed by the Tribunal.
14. Having heard the learned counsel for the appellant-claimant and learned counsel for respondent- Corporation, the points that would arise for consideration before this Court are:
i) Whether the tribunal has awarded meager compensation, which calls for interference by this Court?
ii) Whether the claimant is entitled for enhancement of compensation?
iii) Whether the Insurance Company has made out a case to set aside or modify the award?
iv) What order?"
15. Having perused the entire material evidence both oral and documentary and the impugned judgment and award and having heard the submissions of learned counsel, I am of the opinion that the tribunal has committed an error in awarding meager compensation 12 thereby point Nos. (i) and (ii) are answered in the affirmative i.e. in favour of the claimant. With regard to Point No. (iii) case is made out to modify the award only with regard to pay and recover from the owner of offending vehicle. Therefore, the claimant would be entitled for marginal indulgence of enhancement of compensation and the judgment and award is modified for the reasons stated herein below:
(a) It is not in dispute that the accident occurred on 03.10.2009 at 8.30 p.m. when the claimant was proceeding on his motorcycle bearing Reg.No.KA-39/H-
9959, at that time the driver of the auto rickshaw came in rash and negligent manner, having lost control caused the accident. Due to which, the claimant sustained grievous injuries. In order to substantiate this aspect and to prove the same, the claimant has produced the documents as Exs.P1 to P3, which are the Police records wherein the driver of the auto rickshaw has been charged with criminal offence punishable under Section 279, 337, 338 of IPC and Section 187 of the IMV Act by filing an FIR, and charge sheet.
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16. There is no dispute that the charge sheet has been laid against driver of auto rickshaw for the afore stated offences. Ex.P.1 to Ex.P.3 are the police records, the same is not disputed or challenged either by the driver of the offending vehicle or the owner of the offending vehicle of laying the charge-sheet by the jurisdictional police. Though the name and number of the vehicle is not mentioned in the FIR and subsequently the same has been mentioned and charge-sheet is filed against the offending vehicle, which is not seriously challenged. Hence, the same will have to be accepted on the face value of the records produced at Ex.P.1 to Ex.P.3. With regard to assessment of income, the Tribunal has assessed the income at `4,000/-. In the case where there is no proof of income the Tribunal and this Court will have to do guess work on the basis of notional income stipulated by Legal Services Authority, which prescribes at `5,000/- for the accident of the year 2009, same ought to have been adopted by the Tribunal. I deem it appropriate to assess the income at `5,000/- as against `4,000/- taken by the Tribunal.
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17. PW.2, the Doctor has been examined by the claimant in order to establish the injuries suffered by the claimant and the nature of the said injuries PW.2 has adduced evidence and he has stated on oath that there are evidence of old fracture of right temporal parietal bone, no abnormal calcification seen, sella tursica and suprasellar areas and cranial fossae dorsum sella and clivus are normal and cerebleum, sulci and gyri, cerebral hemispheres, thalamus and basal ganglia and internal capsule are normal and no evidence of hemorrhage of SOL seen. However, PW.2 has admitted to the fact that he is not a treated document, but has given the disability to an extent of 37% to the whole body. Though there are certain medical records of the neurosurgeon which is placed and produced by the claimant. Admittedly, there is no report of the neurosurgeon or the opinion of the neurosurgeon with regard to the exact disability suffered by the claimant, but nevertheless there is a disability because of right temporal parietal bone and fracture having been undergone by the appellant. However, after considering the medical evidence and the opinion 15 expressed by the Doctor the Tribunal has assessed 15% of disability to the whole body as against 37% opined by the Doctor who is not a treated Doctor. It is to be seen that in a case of nature of fracture of the right temporal parietal bone where head injury is suffered by the claimant though there may not be evidence of hemorrhage of SOL seen or physical impairment. This Court will have keep in mind the impact and consequence of injuries suffered by the claimant when it is a case of head injury of the parietal bone and where there is a hematoma and the Doctor has expressed that there will be difficulty of the claimant/patient in having trouble in lifting of weight which may not be visible, but however this would be a persistent problem which can occur during the course of his life.
18. Considering all these aspects the Tribunal has reduced the disability to an extent of 15%, I do not find any legal impediment or illegality or irrationality in the judgment of the Tribunal in assessing the disability to an extent of 15%. Considering the fact that the claimant is a driver of a vehicle, the claimant was aged 35 years, accordingly, the appropriate multiplier is '16' which does 16 not call for interference as there is no illegality or irregularity in the same. Hence, the loss of future earnings due to the disability suffered by the claimant would be `5,000 x 12 x 16 x 15 / 100 which would be `1,44,000/-.
19. Towards pain and suffering, the Tribunal has awarded a sum of `30,000/-, I do not find any error committed by the Tribunal and same is not interfered.
20. Towards medical expenses the Tribunal has awarded a sum of Rs.5,000/- on the basis of actual bills and expenses incurred by the claimant and the same calls for no interference by this Court.
21. Towards attendant, nursing, extra nourishment charges and conveyance the Tribunal has awarded a sum of Rs.5,000/-. I am of the opinion that the same requires to be enhanced to Rs.10,000/-.
22. In view of the fact that this Court has enhanced the income of the claimant from Rs.4,000/- to Rs.5,000/- and atleast three months time is required for recuperation and to get back to normal working capacity and ability a sum of Rs.15,000/- (Rs.5,000/- X 3) is 17 awarded under the head of loss of income during the laid up period as against a sum of Rs.2,000/- awarded by the Tribunal.
23. The Tribunal has awarded a sum of Rs.15,000/- towards loss of amenities. I am of the opinion that considering the fact and circumstances of the case a sum of Rs.30,000/- is required to be awarded and it is enhanced.
24. It is the vehement contention of the learned Counsel for Insurance Company that the driver of the offending vehicle did not possess a valid and effective license on the date of occurrence of accident. In view of the fact that the Insurance Company admits the policy in force with regard to offending vehicle, it is their contention that the owner of the offending vehicle has handed over the said vehicle to a person, who did not have valid and effective driving license to driver the offending vehicle thereby violated the terms and conditions of the insurance policy and Motor Vehicles Rules. Accordingly, respondent No.1 issued notice to the owner to produce driving license or RC book, which was not produced. The postal shara 18 produced by the respondent No.1, no doubt, prove that the owner has received the notice but not participated before the Tribunal or before this Court and not controverted the statements of respondent Nos.1 and 2. Thus, adverse inference has to be drawn against the owner of the offending vehicle with regard to non-production of driving license or RC book. However, as held by the Hon'ble Apex Court in catena of judgments that production or non- production of driving license would not absolve the Insurance Company in making payment and therefore, the Insurance Company and owner of the offending vehicle are liable to satisfy the award and claimant could not be put into difficulty. However, Insurance Company is at liberty to pay and recover from the owner of the offending vehicle for violation of any terms and conditions of the policy.
25. In all the claimant is entitled to total compensation in a sum of Rs.2,34,000/- against a sum of Rs.1,72,200/- awarded by the Tribunal, as detailed in the table below:
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SL. NO. HEAD AMOUNT
01. PAIN AND SUFFERING Rs. 30,000=00
02. MEDICAL EXPENSES Rs. 5,000=00
03. ATTENDANT, NURSING, Rs. 10,000=00
EXTRA NOURISHMENT
CHARGES AND
CONVEYANCE
04. LOSS OF FUTURE EARNINGS Rs. 1,44,000=00
05. LOSS OF INCOME DURING Rs. 15,000=00
LAID UP PERIOD
06. LOSS OF AMENITIES Rs. 30,000=00
TOTAL Rs.2,34,000=00
26. Accordingly, I pass the following;
ORDER
(1) Appeal in MFA No.30108/2013 preferred by
the claimant and MFA No.30102/2013 by
the Insurance Company, are partly
allowed.;
(2) The judgment and award dated 28.07.2012
passed by the Principal Senior Civil Judge and Motor Accident Claims Tribunal at Kalaburagi in MVC No.448/2010, is modified.;
(3) The claimant is entitled to total compensation in a sum of Rs.2,34,000/-
as against Rs.1,72,200/- awarded by the Tribunal.;
20(4) The claimant is entitled to interest @ 6% per annum on the enhanced amount.;
(5) The respondent No.2 - Insurer of the offending vehicle shall deposit the enhanced compensation within four weeks from the date of receipt of the copy of the order along with interest before the jurisdictional Tribunal.;
(6) The Insurance Company shall pay the entire compensation amount to the claimant and is at liberty to recover the same from the owner of the offending vehicle due to the violation of the terms and conditions of the policy.;
(7) All other terms and conditions stipulated by the Tribunal is retained;
(8) The amount in deposit shall be transmitted to the jurisdictional M.A.C.T forthwith.
Sd/-
JUDGE SN / VK