Karnataka High Court
Syed Imtiyazuddin S/O Sirajuddin vs T.Jagadishreddy S/O T.Sattereddy & Anr on 7 March, 2018
Bench: Raghvendra S.Chauhan, R.Devdas
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 07TH DAY OF MARCH 2018
PRESENT
THE HON'BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN
AND
THE HON'BLE MR.JUSTICE R.DEVDAS
MISCELLANEOUS FIRST APPEAL No.201312/2014 (MV)
BETWEEN:
Syed Imtiyazuddin S/o Sirajuddin,
Age: 48 years, Occ: Ex-instrument
Site Engineer in e XPRO Gulf Limited
in Saudi Arabia,
R/o H.No.1-949-61-147,
Army Cottage, Rahamat Nagar,
Gulbarga-585102.
... Appellant
(By Sri B. Ali Mohammad, Advocate)
AND:
1. T.Jagadishreddy S/o T.Sattireddy,
Age: 48 yeas, Occ: Owner of Lorry
Bearing Reg.No.AP-28/TA-2793,
R/o Plot No.18, Sri Ganesh Co-Opeative
Housing Society Bovanpalli,
Rangareddy (AP)-500074.
2. The Reliance General
Insurance Co. Ltd.,
Asian Plaza Complex, Station Main Road,
Gulbarga-585102.
... Respondents
(Sri C.S.Kalburgi, Advocate for R2;
Notice to R1 is D/w V/o dated 11.01.2017)
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This MFA is filed Under Section 173(1) of the Motor
Vehicles Act, praying to call the records in MVC
No.973/2011 on the file of I Addl. Senior Civil Judge &
MACT, at Gulbarga and the impugned judgment and award
dated 06.02.2014 caused in MVC No.973/2011 on the file of
the Court of I Addl. Senior Civil Judge & MACT, Gulbarga
may be modified by granting compensation as claimed in the
claim petition and this Miscellaneous First Appeal may be
allowed as prayed with cost in the interest of justice and
equity.
This appeal coming on for admission this day,
RAGHVENDRA S. CHAUHAN J., delivered the following:
JUDGMENT
Aggrieved by the award dated 06.02.2014, passed by the I Addl. Senior Civil Judge & MACT (henceforth to be referred to as the 'learned Tribunal') at Gulbarga, whereby the learned Tribunal granted a compensation of Rs.4,14,000/- along with interest at the rate of 6% p.a., the appellant has approached this court.
2. In short the facts of the case are that the appellant was returning from Hyderabad to Gulbarga on 30.11.2010 in his car. When he reached near the village Sathwar, he stopped his car on the side of the road. While he was alighting from the car, suddenly a lorry, bearing registration No.AP-28/TA-2793, which was being driven in a rash and negligently, by its driver, 3 came and hit the car from behind. Consequently, appellant fell down and sustained grievous injuries. He sustained compound fracture of tibia and fibula left side, fracture of supra and infra pubic ramus left side and burn injuries over chest and right thigh, and on other parts of the body. Immediately, he was shifted to APVVC Hospital, Zaheerabad. After taking primary treatment, he was shifted to Kothadia Nursing Home, Solapur. There he underwent an operation. After recovering from his injuries, he filed the claim petition before the learned Tribunal. In order to support his case, he examined himself as PW1, and examined the Dr. Veeresh Shettar, as PW2; the appellant submitted twenty-one documents. However, the Insurance Company neither examined any witness, nor submitted any documents. Relying on the oral and documentary evidence produced by the appellant, the learned Tribunal granted the compensation, as mentioned above. Hence, this appeal for enhancement. 4
3. Mr. B. Ali Mohammad, the learned counsel for the appellant has raised a single point before this court, namely that the appellant was a B.E. Graduate and working as an Engineer with the Indcon Engineering Consultants Pvt. Ltd., Saudi Arabia. Therefore, the learned Tribunal was neither justified in taking the appellant to be a driver, nor justified in assessing his monthly salary as merely Rs.10,000/-. In fact, he was earning in U.S. Dollars. The fact that he was earning in U.S.Dollars is apparent from the bank account statement, (Ex.P12). Moreover, a copy of passport (Ex.P16), clearly reveals that he was working as an engineer and not as a driver. Therefore, the learned Tribunal has faultered in taking his occupation as that of a driver, and assessing his income as merely Rs.10,000/- per month. Hence, the impugned award deserves to be modified by this court.
4 Mr. C. S. Kalaburagi, the learned counsel for the respondent No.2, the Insurance Company, has pleaded that the appellant has singularly failed to 5 establish as occupation. Although, his passport (Ex.P16) shows him as an engineer, but it relates to the year 2007, whereas the accident occurred in the year 2010. Thus, what was his occupation in the year 2010 is unclear. Moreover in the FIR, filed by the appellant himself, he has shown his occupation is that of a driver, and not of an engineer.
5 Secondly, even the bank account statement (Ex.P12), indicates that different amounts of U.S. Currency were deposited with the bank. In case the amounts so deposited were really the appellant's salary, the amount could not have fluctuated from Rs.3,000/- to about Rs.6,000/-. Thus, the amount deposited by the appellant, in his bank account, cannot be taken as his salary, as an engineer.
6 Lastly, the learned Tribunal has noticed the other documents, such as, the appointment letter (Ex.P10), such as another appointment letter (Ex.P11), and has validly concluded that neither of these two documents reveal the fact that the appellant was 6 appointed as an engineer. Hence, the learned counsel has supported the impugned award.
7. Heard the learned counsel for the parties, and perused the impugned award.
8. It is, indeed, trite to state that a party has to establish his case by preponderance of evidence based on cogent and convincing evidence. The appellant would have this court believe that he was working as an engineer with a firm in the Mid-East. Although, the passport (Ex.P16), indicates that he was working as a Engineer, but it relates to the year 2007. But the accident occurred in the year 2010. Thus, it is unclear whether the appellant was working on post of engineer in the year 2010 or not. Moreover, in the FIR, lodged by the appellant himself, he has shown his occupation is that of a driver. In case, he was, indeed, working as an engineer in the year 2010, there is no reason why the appellant would have claimed before the police that he is working as a driver. Therefore, the FIR (Ex.P1) belies 7 the appellant's claim that, in fact, he was working as an engineer with a firm.
9. The learned Tribunal has also noted the fact that the appointment letter dated 18.05.2010 (Ex.P10) does not contain the employer's signature. Moreover, the appointment order through e-mail (Ex.P11), issued by one Rashesh M.Shah, Director (For Indcon Engineering Consultants Pvt. Ltd). does not bear the appellant's signature. Thus, it is unclear whether the appellant accepted the appointment on the terms of the contract and not. Therefore, in the light of Ex.P10 and Ex.P11, the learned Tribunal is justified in concluding that the appellant has failed to establish that he was work as an engineer. On the other hand, the only document, which reveals the appellant's occupation in 2010 is the F.I.R., (Ex.P1). According to the said FIR, (Ex.P1), appellant was working as a driver. Thus, the conclusion drawn by the learned Tribunal cannot be faulted by this court. For the said conclusion is based 8 on the documentary evidence produced by the appellant himself.
10. The learned counsel for the appellant claims that the U.S. dollars deposited by the appellant with his Bank reveals his salary. But, a bare perusal of a bank statement (Ex.P12), indicates that for the month of December-2008, the appellant had deposited $3,494 U.S. dollars and in the same month of December-2008, he had again deposited $2,877 U.S. Dollars, in month of Feburary-2009, he had deposited $6,992 U.S. dollars, and in the month of March-2009, he had deposited $3,500 U.S. dollars. Thus, the statement clearly reveals that the amount differs, and fluctuates, from $3,494 to $6,992 and back to $3,500 U.S.Dollars. Therefore, the fluctuating figures cannot be taken as figures of a salary. Of course, the learned counsel for the appellant has tried to justify the fluctuation by claiming that while working as a engineer, the appellant was not working for the entire month. Since he was working only for a few days of the month, the salary commensurateed with 9 the days when he had worked. However, such an explanation has not been given by the appellant in his examination-in-chief. Therefore, the explanation given by the learned counsel for the appellant, is clearly belied by the record of the case. Therefore, the explanation is merely an afterthought, and not a valid justification for the fluctuation shown in the bank statement of accounts (Ex.P12).
11. Since the appellant failed to prove the post on which he was working, since the appellant failed to prove the actual salary he was receiving, the learned Tribunal was justified in taking a notional salary for the appellant. Therefore, the learned Tribunal was justified in concluding that a driver would have received approximately Rs.6,000/- per month for the year 2010, and if the "bhatta" were added, the salary would be increased to Rs.8,000/- per month. Hence the conclusion drawn by the learned Tribunal cannot be faulted by this court.
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12. However, considering the fact that the appellant was hospitalized from 30.11.2010 to 10.01.2011 i.e., for a period of one and a half month, and considering the fact that he has undergone four operations, the compensation in the category of "pain and suffering" to the tune of Rs.15,000/- is certainly on the lower side. Therefore, this court enhances the compensation from Rs.15,000/- to Rs.30,000/-.
13. The learned counsel for the appellant is certainly justified in claiming that no compensation has been paid for "loss of amenities" to the appellant. Considering the fact that due to the accident, the appellant's left leg has been shortened by half an inch, and he has suffered burnt injuries in different parts of the body, considering the fact that there is restrainment on the left knee joint, and deformity over the left leg, and the waisting of left calf and thigh muscles, naturally the appellant's life is adversely affected by such injuries. Therefore, this court grants Rs.15,000/- for "loss of amenities".
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14. Considering that the appellant was hospitalized for one and half month and that he has undergone numerous operations, diet and nourishment and the need of an attendant has to be taken into amount. The learned Tribunal has granted a compensation of Rs.15,000/- which in the opinion of this court, is on the lower side. Therefore, this court enhances the compensation by further amount of Rs.10,000/-.
15. For the reasons stated above, the appeal is partly allowed; the impugned award is modified as under;
As awarded As awarded
by the by this
Compensation under different Tribunal Court
Heads Rs. Rs.
2,16,000/- 2,16,000/-
Towards loss of future income
Towards pain and suffering 15,000/- 15,000/-
Towards loss of prospects in life 15,000/- 15,000/-
Towards loss of income during 11,200/- 11,200/-
laid off period
Towards diet, nourishment, 15,000/- 25,000/-
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attendant and conveyance
charges
Medical expenses 1,41,758/- 1,41,758/-
Loss of amenities -- 15,000/-
Total 4,13,958/-
4,38,958/-
Rounded off 4,14,000/-
16. The Insurance Company is directed to
deposit the compensation amount as indicated above, along with interest at the rate of 6% per annum from the date of filing of the petition till date of realization, with the learned Tribunal, within a period of one month from the date of receipt of the certified copy of this judgment.
17. The learned Tribunal is directed to release the compensation amount, forthwith, in favour of the appellant on deposit by the insurance company.
Sd/-
JUDGE Sd/-
JUDGE SMP/BL