Karnataka High Court
Ashok @ Shekhappa vs Mohammadafarook And Anr on 11 April, 2023
-1-
MFA No. 201602 of 2018
C/w MFA No.201611 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCL. FIRST APPEAL NO.201602 OF 2018 (MV-I)
C/W
MISCL. FIRST APPEAL NO.201611 OF 2018(MV-I)
IN MFA NO 201602/2018:
BETWEEN:
ASHOK @ SHEKHAPPA
S/O YAMANAPPA BIRADAR
AGED: 34 YEARS, OCC: AGRI & COOLIE,
R/O LOTAGERI LINGASUGUR VILLAGE
TQ. MUDDEBIHAL DIST. VIJAYAPURA
...APPELLANT
(BY SRI GOPALKRISHNA B. YADAV, ADVOCATE)
AND:
Digitally 1. MOHAMMADAFAROOK
signed by
RAMESH S/O RAJAMAHAMMAD PATHAN
MATHAPATI AGE: MAJOR OCC: BUSINESS
Location: High R/O NO.E/G/20 R/O NARAYANAPUR
Court of TQ.SURAPUR DIST.YADAGIR-585201.
Karnataka
2. THE MANAGER
SRI. RAM GENERAL INSURANCE COM.LTD,
E-8 RICO INDUSTRIAL AREA,
SEETAPUR JAIPUR
RAJASTHAN 302022.
...RESPONDENTS
(BY SRI VISHWANATH RAMPUR, ADVOCATE FOR R1;
SRI SUBHASH MALLAPUR, ADVOCATE FOR R2)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
MODIFYING THE JUDGMENT AND AWARD DATED 27.11.2015
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MFA No. 201602 of 2018
C/w MFA No.201611 of 2018
PASSED BY THE SENIOR CIVIL JUDGE AND MACT VIII
MUDDEBIHAL IN MVC NO.107/2012 AND CONSEQUENTLY BE
PLEASED TO ENHANCE THE COMPENSATION FROM RS.1,26,548
TO RS.10,20,000/- WITH INTEREST @ 6% PER ANNUM FROM THE
DATE OF PETITION TILL ACTUAL REALIZATION.
IN MFA NO.201611/2018:
BETWEEN:
BEERANNA S/O BASANNA NAGARBETTA
AGED: 41 YEARS, OCC: AGRI & COOLIE/
GOUNDI R/O LOTAGERI VILLAGE
TQ. MUDDEBIHAL DIST. VIJAYAPURA-585 104
...APPELLANT
(BY SRI GOPAL KRISHNA B. YADAV, ADVOCATE)
AND:
1. MOHAMMADAFAROOK
S/O RAJAMAHAMMAD PATHAN
AGE: MAJOR OCC: BUSINESS,
R/O NO E/G/20 R/O NARAYANAPUR
TQ. SURAPUR DIST. YADAGIR-585622
2. THE MANAGER
SRI. RAM GENERAL INSURANCE COM LTD.,
E-8 RICO INDUSTRIAL AREA,
SEETAPUR JAIPUR
RAJASTHAN 302022,
...RESPONDENTS
(BY SRI VISHWANATH RAMPUR, ADVOCATE FOR R1;
SRI SUBHASH MALLAPUR, ADVOCATE FOR R2)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, MODIFYING
THE JUDGMENT AND AWARD DATED 29.05.2018 PASSED BY THE
SENIOR CIVIL JUDGE AND MACT-VIII, MUDDEBIHAL IN MVC
NO.108/2012 AND CONSEQUENTLY BE PLEASED TO ENHANCE
THE COMPENSATION FROM RS.25,000/- TO RS.7,20,000/- WITH
INTEREST @ 6% PER ANNUM FROM THE DATE OF PETITION TILL
ACTUAL REALIZATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 201602 of 2018
C/w MFA No.201611 of 2018
JUDGMENT
Since these two appeals arise out of the common judgment and award, they are heard together and disposed of by this common judgment.
2. These appeals are filed by the petitioners seeking enhancement of compensation passed by the learned Sr. Civil Judge & MACT-VIII, Muddebihal (for short 'Tribunal') in MVC.Nos.107/2012 and 108/2012 respectively dated 29.05.2018.
3. Though these appeals are listed for admission, with the consent of learned counsel for both parties, it is taken up for final disposal.
4. For the sake of convenience, parties are referred to as per their ranking before the Claims Tribunal.
5. The brief facts of the case are:
That on 26.11.2012 the petitioners were proceeding on motorcycle bearing No.KA-28/X-7565 towards petrol pump of Nalatwad and when they were infront of Nalatwad Government Hospital, driver of tum-tum auto rickshaw bearing No.KA-36/A- -4- MFA No. 201602 of 2018 C/w MFA No.201611 of 2018 1409, drove the said vehicle in a rash and negligent manner and dashed against the motorcycle, due to which the petitioners sustained the grievous injuries. Due to the injuries sustained in the accident, they have been permanently disabled and lost source of income. Thereby causing dent to them financially, mentally and physically. Hence, they preferred a claim petitions seeking compensation.
6. Pursuant to the notices, the respondents entered appearance and filed the written statement denying the contents of claim made by the petitioners and sought for dismissal of the claim petitions.
7. Based on these rival contentions, the claim petition was set down for trial.
8. Based on the oral and documentary evidence, the Tribunal after considering the notional monthly income of the petitioners awarded compensation at 1,26,548/- in MVC No.107/2012, and Rs.25,000/- in MVC No.108/2012.
9. Being aggrieved by the quantum of the compensation awarded by the Tribunal, the present appeals are filed.
-5- MFA No. 201602 of 2018 C/w MFA No.201611 of 201810. The learned counsel for the petitioners contended that having regard to the nature of the injuries sustained by the petitioners, the Tribunal ought to have awarded adequate compensation. Further it is submitted that the tribunal has fastened the liability on the owner of the vehicle by exonerating the Insurance Company only on the ground that respondent No.2 has violated the policy conditions which is against the judgment of the Hon'ble Apex Court in the case of Amrit Pal Singh and Another Vs. TATA AIG General Insurance Co.
Ltd., and Others, in Civil Appeal No.2253/2018. Hence, on the these grounds sought for allowing of the appeals.
11. Per contra, the learned counsel for the respondent No.2-insurer supported the judgment and award of the Tribunal and therefore contended that the judgment and award passed by the Tribunal be not disturbed.
12. It is seen that the owner/insurer had not challenged the judgment and award. Further it is seen from the impugned judgment at paragraph No.52 to 62 wherein the tribunal has observed in MVC No.107/2012 as under;
-6- MFA No. 201602 of 2018 C/w MFA No.201611 of 2018Pain and Suffering:-
52. The petitioner-Ashok has taken treatment at Dr.Daddennavar Hospital, Bagalkot, wherein he was an indoor patient from 26-11-2012 to 11-12-2012.
This is evident from Ex.P.5/Madical Card and wound certificate Ex.P.11. Medical Bills are also produced and exhibited.
53. Except for denials and suggestions in respect of medical bills, nothing worth is elicited in the cross- examination of PW-1. Thus, the evidence of PW-1 and medical documents prove that, the petitioner- Ashok has met with Road Traffic Accident occurred on 26-11-2012. The wound certificate at Ex.P.11 shows the injuries already mentioned earlier.
54. The fracture injury as mentioned in Ex.P.11 is opined as grievous in nature. In this regard the petitioner has examined himself as PW-1 who has stated about the injuries. The petitioner-Ashok has certainly undergone 30 M.V.C.No.107 & 108 of 2012 the trauma of the accident and due to the fracture, he was unable to attend his daily scores without the help of his family members. Thus considering the nature of injuries and fracture sustained by the petitioner-Ashok, the petitioner-Ashok is entitled for amount of Rs.50,000/- towards injuries, shock, pain and suffering.
Traveling and attendant expenses:
55. It is stated in the petition that, the petitioner- Ashok has taken treatment at Dr.Daddennavar Hospital, Bagalkot. The accident has occurred in Muddebihal taluka and the petitioner is resident of Muddebihal taluka. Thus the petitioner-Ashok has incurred traveling and attendant expenses. The petitioner has claimed amount of Rs.20,000/- towards attendant charges and Rs.50,000/- towards -7- MFA No. 201602 of 2018 C/w MFA No.201611 of 2018 trouble to family and expenses. No document in this regard are produced by the petitioner- Ashok. Looking into the distance between Muddebihal and Bagalkot and the number of days the petitioner was in Hospital, amount of Rs.5,000/- is appropriate. Hence, amount of Rs.5,000/- is awarded towards traveling, trouble to family and other expenses and attended expenses. Medical Expenses
56. In the petition the petitioner-Ashok has claimed Rs.1,00,000/- towards medical expenses. In this regard medical bills are produced. On perusal of the bills, it is found that, Bill No.26161 dated 27-11-2012 for Rs.2930/- is over written in Kannada language. Therefore, the said bill is not admissible. Thus the total of admissible bills is only Rs.60,817.93/- rounded to Rs.60,818/- Thus the petitioner-Ashok is entitled for amount of Rs.60,818/- only towards Medical Expenditure.
Compensation for laid up period:-
57. It is stated in the petition and averred by the petitioner-
Ashok that, he was under treatment for nearly 12 days. The wound certificate at Ex.P.11 and admission card at Ex.P.5 show that, the petitioner was admitted from 32 M.V.C.No.107 & 108 of 2012 26.11.2012 to 11-12-2012. Admittedly, there is fracture and the petitioner was bound by plaster and his movements were restricted. Thereby he was unable to do his work.
58. The petitioner has claimed that, he was earning Rs.10,000/- per month from Agriculture and coolie work. No relevant documents about the income of the petitioner are produced. In the absence of proof of income, notional income is to be considered. The wage rate under NREGA is considered as standard for notional income.
-8- MFA No. 201602 of 2018 C/w MFA No.201611 of 201859. Under the (Mahatma Gandhi National Rural Employment Guarantee Scheme) NREGA scheme, which guarantees minimum wages and employment for all, it is just and appropriate to consider the wages fixed under NREGA as standard for notional income of the injured. As on the date of the accident, the wage rate under NREGA in Karnataka was Rs.191/- per day. Hence the income of the petitioner is considered as Rs.191/- per day i.e., (191x30)=Rs.5730/- for a month.
33 M.V.C.No.107 & 108 of 2012 Admittedly, the said doctor has also not been examined. In the absence of disability certificate and medical evidence of the doctor, percentage of disability cannot be calculated. Hence, no amount is awarded under the head of loss of income or permanent disablement.
62. Therefore in view of the discussion above, the petitioner- Ashok in MVC No.107/2012 is entitled for compensation under the following heads:
Sl.No. Heads :Amount
1. Pain and suffering : Rs.50,000-00
2. Traveling, attendant, troubled
to family and expenses. Rs.5,000-00
3. Medical expenditure : Rs.60,818-00
4 Compensation for laid up period Rs.5,730-00
5 Loss of amenities : Rs.5,000-00
Total : Rs.1,26,548-00
13. In paragraph No.22 of the impugned judgment, the tribunal has observed that petitioner had sustained injuries as per Ex.P11, wound certificate are as under;
-9- MFA No. 201602 of 2018 C/w MFA No.201611 of 2018(i) Laceration over right knee area 12x8 cms, bone deep, exposing the muscles, tenders and the bones.
(ii) Fracture of both bones of right leg i.e., tibia and fibula-swelling tenderness scene.
(iii) Abrasion over right leg, lower part 3x2 cm's, red.
(iv) Abrasion over back of right forearm 2x1 cm, red.
(v) X-ray of right leg shows evidence of fracture of shaft of tibia and fibula bones.
(vi) X-ray of right knee shows evidence of fracture of right patella bone (chair line fracture).
14. Hence, considering the nature of injuries, period of treatment, medical bills, I am of the considered opinion that the compensation awarded by the Tribunal deserves to be re-
determined and re-calculated as under:-
IN MVC No.107/2012:
Sl. Awarded by the Enhanced by this
Heads
No Tribunal Court
01 Towards pain and Rs.50,000/- Rs.70,000/-
suffering
02 Traveling, attendant, Rs.5,000/- Rs.10,000/-
troubled to family
03 Medical expenses Rs.60,818/- Rs.61,000/-
04 Compensation for laid Rs.5,730/- Rs.15,000/-
up period
05 Loss of amenities Rs.5,000/- Rs.50,000/-
Total Rs.1,26,548/- Rs.2,06,000/-
- 10 -
MFA No. 201602 of 2018
C/w MFA No.201611 of 2018
15. In paragraph No.69 of the impugned judgment with regard to MVC No.108/2012, the tribunal has observed as under;
69. In the instant case the petitioner-Beeranna has sustained simple injuries due to negligent act of the driver of tum-tum Auto Rickshaw bearing No.KA.36/A-1409. In the light of the entire evidence on record and in the absence of any proper medical certificate, the petitioner-Beeranna is altogether entitled for Global compensation of Rs.25,000/- only under the Motor Vehicle Act. In the absence of evidence of the doctor and considering the nature of injuries as simple injuries amount of Rs.25,000/- is regarded as just and appropriate Global compensation to the petitioner- Beeranna.
16. Hence, considering the nature of injuries, period of treatment, medical bills, I am of the considered opinion that the compensation awarded by the Tribunal deserves to be re-
determined and re-calculated as under:-
- 11 -MFA No. 201602 of 2018
C/w MFA No.201611 of 2018 IN MVC No.108/2012:
Sl. Enhanced by this
Heads
No Court
01 Towards pain and Rs.30,000/-
suffering
02 Traveling, attendant, Rs.5,000/-
troubled to family
03 Compensation for laid Rs.5,000/-
up period
04 Loss of amenities Rs.20,000/-
05 Conveyance Rs.5,000/-
nourishment charges
Total Rs.65,000/-
17. Considering the nature of injuries, pain and agony, it is just and proper to award compensation of Rs.80,000/- as against Rs.25,000/- awarded by the tribunal.
18. With regard to liability of the respondent-Insurance Company is concerned, the tribunal has observed in paragraph No.47 of the impugned judgment, wherein the tribunal relying upon the judgment of the Hon'ble Supreme Court Amrit Pal Singh and Another Vs. TATA AIG General Insurance Co.
Ltd., and Others, in Civil Appeal No.2253/2018 has held as under;
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MFA No. 201602 of 2018 C/w MFA No.201611 of 2018"47. Recently, the Hon'ble Supreme Court of India in the case of Amrit Paul Singh and another v/s TATA AIG General Insurance Co.Ltd and others, Civil Appeal No.2253 of 2018 (arising out of SLP (civi) No.7692 of 2017 on 17.5.2018 has held that, plying of transport vehicle in public without permit is a statutory breach and if such vehicle gets involved in an accident, the insurer will be absolved of the liability to pay. It was held "In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have permit. The appellant had taken the stand that the vehicle was not involved in the accident. That apart Capat they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an agreement to seek absolution from liability. Use of vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of series of exceptions carved out in Section 66 Thereby the insurer was absolved from the liability to pay.
48. In the present case also the vehicle tom- tom auto rickshaw bearing No.36/A-1409 was admittedly plying in public without permit and thereby there, statutory breach. Hence, relying on the decision mentioned supra, the Insurance company is absolved from the liability to pay the compensation.
19. In view of the above said decision the tribunal dismissed the claim petition as against respondent-Insurance Company only on the ground that owner of the offending
- 13 -MFA No. 201602 of 2018
C/w MFA No.201611 of 2018 vehicle has violated the policy conditions. Hence, the insurance company is not liable to pay compensation. Further the tribunal has observed that the tribunal cannot exercise discretionary powers vested with the Hon'ble Supreme Court of India under Article 142 of the Constitution of India to direct the insurer to make the payment and to recover the same from the owner and dismissed the petition.
20. Hence, in view of the above cited decision, the Insurance Company cannot escape from its liability. Hence, I hold that respondent No.2-Insurance Company is liable to pay compensation with liberty to recover the same from the owner of the vehicle.
21. In view of the above, I proceed to pass the following;
ORDER
(a) Both the appeals are allowed in part.
(b) The judgment and award passed by the Tribunal is modified.
(c) The petitioner in MVC No.107/2012 is entitled for compensation of Rs.2,06,000/- as against Rs.1,26,548/- awarded by the Tribunal.
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MFA No. 201602 of 2018 C/w MFA No.201611 of 2018(d) The petitioner in MVC No.108/2012 is entitled for compensation of Rs.65,000/- as against Rs.25,000/- awarded by the Tribunal.
(e) The respondent Nos.1 and 2 are jointly and severally liable to pay the compensation to the petitioners along with interest at the rate of 6% per annum from the date of claim petition till realization.
(f) The respondent No.2-insurer is directed to deposit the enhanced compensation within a period of one month from the date of receipt of a certified copy of this judgment with liberty to recover the same from the owner of the vehicle.
(g) All other terms and conditions stipulated by the Tribunal shall stand intact.
(h) All other terms and conditions stipulated by the Tribunal shall stand intact.
Sd/-
JUDGE MSR List No.: 1 Sl No.: 36