Karnataka High Court
Khaleem @ Mohd. Kaleem vs Dinesh E on 21 November, 2017
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
M.F.A. NO.700 OF 2015 (MVC)
BETWEEN
KHALEEM @ MOHD.KALEEM
@ KALEEMULLA
S/O LATE ABDUL SUAN
AGED ABOUT 45 YEARS
R/AT #786/4, FATHIMA LAYOUT
GOVINDAPURA ARABIC COLLEGE POST
BANGALORE - 560 045 ... APPELLANT
(BY SRI UDAYA KUMAR R.L. AND SRI N.S.DEVADASA, ADVS.)
AND:
1. DINESH E.
S/O ERANNA H.C.
NO.76, HUTTAGERE VILLAGE
MANDYA DISTRICT - 571 401
2. SHRIRAM GENERAL INSURANCE CO. LTD.,
NO.14, 2ND FLOOR, MONARCH CHAMBERS
INFANTRY ROAD, BANGALORE - 560 001
3. THE MANAGING DIRECTOR
BMTC DEPOT, BANGALORE CENTRAL
K.H.ROAD, SHANTHINAGAR,
BANGALORE - 560 027. ... RESPONDENTS
(BY SRI M.BABU, ADV. FOR R1;
SRI B.C.SHIVANNEGOWDA, ADV. FOR R2;
SRI D.VIJAYAKUMAR, ADV. FOR R3)
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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 31.10.2014 PASSED IN MVC
NO.4501/2013 ON THE FILE OF THE XII ADDITIONAL SMALL
CAUSES JUDGE, AND MEMBER, MACT, BANGALORE, SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is by the claimant injured seeking to set aside the Judgment and Award passed by the MACT, Bengaluru in MVC No.4501/2013, in so far as fastening liability on the 1st respondent and dismissing the claim petition against the 2nd respondent and to grant reasonable and just compensation.
2. The appellant suffered injuries in a motor vehicle accident occurred on 29.07.2013 while he was standing on the extreme left side of Bengaluru - Magadi Road at Taverekere bus-stop waiting for bus, when the driver of the lorry bearing registration No.KA-41/6399 came from Magadi side in a rash and negligent manner and dashed against a BMTC Bus and the said bus in turn caused accident to the appellant. It is submitted that by 3 virtue of this composite accident, appellant suffered grievous injury and was treated at Amma Hospital, Tavarekere. Thereafter, he has taken treatment at Jayalakshmi Hospital, Kottigepalya and Shanmuga Nursing Home, Bengaluru. Again, due to severe injuries suffered, he was shifted to Chaitanya Nursing Home, Bengaluru. The complainant is the 3rd respondent - BMTC. On the basis of the complaint lodged by the Corporation, case was registered in Crime No.481/2013 for the offences punishable under Ss. 279 and 338 of IPC. The driver and owner of the lorry in question have been charge-sheeted for the said offences. The I.O. has reported that the driver of the lorry was not in possession of valid permit when the accident took place.
3. The injured / appellant filed claim petition before the MACT, Bangalore in MVC No.4501/2013. Notice was issued to the respondents namely, the owner, the insurer of the lorry and the BMTC. The prayer made in the claim petition is for fastening liability on the respondents 4 jointly and severally. Since as per the complaint made by the 3rd respondent, it is the lorry which came in a rash and negligent manner endangering human life and caused the accident, the Tribunal, finding that the owner of the lorry had no valid permit and FC, has fastened the liability on owner of the lorry alone, learned counsel for the appellant prays that the order of the Tribunal be set aside.
4. Learned counsel for the appellant submits that the appellant has suffered grievous injuries. In a composite accident, even if the accident has occurred due to the negligence of a tortfeasor and the driver of the other vehicle was not involved, the injured claimant can claim compensation from the owner and insurer of both vehicles jointly and severally. In support of his submission, learned counsel has relied upon the Judgments of the Supreme Court in TUMMALA RAJI REDDY AND OTHERS V. T.PANDURANGA RAO AND ANOTHER, 2014 ACJ 2786 and KHENYEI V. NEW INDIA ASSURANCE CO. LTD. AND OTHERS, 2015 ACJ 1441.
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5. Learned counsel for the appellant submitted that from the evidence of Doctor - PW-3 and medical reports as per Exs.P8, P9, P10, P11, P15 and P19 and also the photographs produced as per Ex.P12, it is clear that the appellant has suffered grievous injuries and as per the evidence of doctor - PW-3, disability caused is to an extent of 15% to the whole body. In respect of income for the purpose of awarding compensation under the head 'loss of future income' learned counsel submits that the appellant was earning a sum of Rs.15,000/- per month by doing tailoring work. Learned counsel submits that compensation awarded by the Tribunal under other heads is also on the lower side and it needs to be enhanced.
6. Learned counsel for the 3rd respondent - BMTC seeks dismissal of the appeal on the ground that, firstly, there is no specific prayer made in the appeal to fasten liability on BMTC. Secondly, the driver and owner of the lorry have been charge-sheeted for the offence. Hence, liability should have been fastened on the owner of the 6 lorry which the Tribunal has rightly fastened. Insurer of the lorry was excluded since the lorry in question was not having valid permit to ply in a particular area. Learned counsel submitted that under the circumstances, there is no justification to claim compensation from BMTC. Learned counsel further submitted that there are several Judgments of Hon'ble Supreme Court and High Courts wherein it is held that a direction cannot be issued to Insurer of the offending vehicle, in case of gross violation of terms and conditions of insurance policy.
7. Learned counsel for the Insurance Company- respondent No.2 supported the order of the Tribunal and submitted that since there is violation of the terms of the Insurance Policy by the owner of the lorry, if at all there is any relief for the injured claimant, it is only against the owner of the lorry and not the insurer.
8. Having heard learned counsel appearing for the parties, perused the Judgments referred by the learned 7 counsel for the appellant, reported in 2014 ACJ 2786 and 2015 ACJ 1441, noted supra.
9. The submission of the appellant when examined in the light of the complaint made by the 3rd respondent, the occurrence of the accident and grievous injury suffered by the appellant are not in dispute. It is the lorry which caused the accident dashing against the standing bus on the hind wheel. The impact was such that the bus caused accident against the pedestrian - appellant. For the complainant - 3rd respondent it is the driver of the lorry who is the tortfeasor and for the injured
- claimant, it is the bus which is the tortfeasor. In a case of this nature this Court cannot be expected to sit in appeal, it is for the competent Claims Tribunal to fix the liability. It is open to the claimant to initiate proceedings in a competent Court/Tribunal against concerned immediate parties and seek compensation.
10. IMV report, evidence of PW-1, police documents such as FIR, Panchanama etc. when examined, clearly make out that it is the lorry which caused the 8 accident and it is for the injured appellant to initiate necessary proceedings and claim compensation.
11. The submission of learned counsel appearing for BMTC is that there is no specific prayer in the claim petition. Appeal is continuation of the claim petition. Though there is no specific prayer in the First Appeal, ultimately, some relief by way of compensation has to be awarded in the ends of justice. In other words, just compensation has to be awarded to the injured claimant.
12. The prayer made before the Tribunal when examined, it is seen that claimant has made a specific prayer seeking compensation for the injuries sustained by him against the respondents. Tribunal, after trial has held that owner of the lorry is liable to pay the compensation. The Tribunal, in my opinion has committed error in fastening liability on the owner alone on the ground that there was no basis to apportion liability jointly and severally either on the driver of the lorry and its owner or the owner and insurer of the lorry or BMTC bus and its 9 insurer. The fastening of liability by the Tribunal is against the merits and purpose of Motor Vehicles Act. Thus liability has to be fastened on the 3rd respondent, the immediate tortfeasor for the claimant. In turn, 3rd respondent may claim against lorry owner. Hence, liability is fastened on the 3rd respondent BMTC, reserving liberty to it to recover the same from the owner of the lorry if so advised.
13. With regard to quantum of compensation, learned counsel for the appellant submits that the appellant was doing tailoring work as well as working in a mutton shop and thus, earning a sum of Rs.15,000/- per month. However, as the claimant has not proved his income, a notional income has to be assessed by taking note of the fact that accident occurred in the year 2013.
14. This Court, taking note of the reference made in NATIONAL INSURANCE COMPANY LTD. VS. PRANAY SETHI AND OTHERS, REPORTED IN 2017 SCC ONLINE SC 1270, has consistently held that notional income has to be assessed 10 by taking note of the cost of living, size of family, place of accident etc. Accordingly, with reference to the year of accident i.e., 2013, the income of the injured can be taken at Rs.8,000/- per month. The evidence of the doctor is that the injured has suffered disability to the whole body at 15.35%, whereas, Tribunal has taken it at 10%. Same has to be taken for the present purpose also. Hence, 8000 x 12 x 14 x 10% i.e., Rs.1,34,400/- has to be awarded under the head 'loss of future income'. As the claimant has suffered fracture of both bones of left leg, it is reasonable to award a sum of Rs.50,000/- towards pain and suffering. So also, the claimant must have taken bed- rest at least for a period of four months having regard to the surgery undergone by him. Hence, loss of income for a period of four months works out to Rs.8000 x 4 i.e., Rs.32,000/-. Under conventional heads, i.e., towards loss of amenities, food and nourishment, attendant charges etc., a sum of Rs.25,000/- is to be awarded. The sum awarded by the Tribunal towards 'future medication' and 'medical bills' is not disturbed. Accordingly the total 11 compensation amount payable to the claimant is reckoned as below:
Heads Amount
(in Rupees)
Pain and suffering 50,000/-
Loss of income during laid up 32,000/-
period
Medical Bills 79,446/-
Loss of future income 1,34,400/-
Loss of amenities, conveyance, 25,000/-
Food, attendant charges, etc.
Future medication 10,000/-
Total 3,30,846/-
In the result, the appeal is allowed. Appellant -
claimant is held entitled to total compensation of
Rs.3,30,846/- as against the sum of Rs.2,38,446/-
awarded by the Tribunal. The amount of Rs.10,000/-
awarded under the head 'future medication' shall not carry any interest. The 3rd respondent - BMTC is held liable to pay the compensation amount of Rs.3,30,846/- to the appellant, with interest at 6% p.a. (excluding the sum 12 awarded under 'future medication') from the date of claim petition till realization.
Enhanced compensation is permitted to be withdrawn by the claimant.
Liberty is reserved to the 3rd respondent to claim recovery against the owner of the lorry if it is so advised.
Sd/-
JUDGE sac*