Karnataka High Court
Sri Imran Pasha vs The United India Insurance Co Ltd on 11 April, 2022
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
M.F.A. NO.4181/2019(MV)
BETWEEN:
SRI IMRAN PASHA
S/O RAFIQ PASHA
AGED ABOUT 21 YEARS,
R/O NO.164,
MUSLIM BURIAL GROUND
FAROOQIA NAGAR,
PADARAYANAPURA
BENGALURU - 560 026
...APPELLANT
(BY SRI.HARISH N.R., ADV.)
AND:
1. THE UNITED INDIA
INSURANCE CO LTD
REGIONAL OFFICE
NO.1872, 20TH MAIN
MARENAHALLI MAIN ROAD
VIJAYANAGARA
BENGALURU - 560 040.
2. SRI.SHEKAR.K.H
S/O VANNAPPA
AGE MAJOR
R/O KAGGALAHALLI
VILLAGE AND POST
HAROHALLI HOBLI
RAMANAGARA DISTRICT - 562 109
...RESPONDENTS
(BY SRI. MOHAN KUMAR T., ADV. FOR R1:
NOTICE TO R2 IS DISPENSED WITH
V/O DATED: 03.06.2019)
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THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
30/03/2019, PASSED IN MVC NO.789/2018, ON THE FILE
OF THE VII ADDITIONAL SMALL CAUSES JUDGE & XXXII
ACMM., MEMBER, MACT-3, BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this matter is listed for admission, with the consent of both the learned counsel, the same is taken up for final disposal.
2. Heard learned counsel Sri Harish N. R., appearing on behalf of the appellant and learned counsel Sri Mohan Kumar T, appearing on behalf of respondent No.1/Insurance Company.
3. This is an appeal preferred by the claimant being aggrieved by the judgment and award dated 30.03.2019 passed by the VII Additional SCJ & XXXII ACMM, Member, MACT-3, Bengaluru in MVC No.789/2018. This appeal is premised on the ground of inadequacy of compensation awarded by the Tribunal and hence seeking for enhancement of the compensation.
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4. Brief facts of the case:
On 23.12.2017 at 10.00 P.M. while the claimant was driving an Auto Rickshaw bearing Registration No.KA-02- AC-6370 along with a passenger slowly and cautiously on the left side of the road near Pattareddypalya, at that time, a lorry bearing Registration No.KA-52-6147 came from Kanakapura in a rash and negligent manner with high speed without following the traffic rules and regulations, dashed against the Auto Rickshaw which was driven by the claimant. Due to impact of the accident, Imran Pasha, the claimant herein sustained grievous injuries all over his body and the passenger, who was traveling in the said Auto Rickshaw also sustained severe injuries and later succumbed to the injuries. Pursuant to the accident, the claimant was shifted to NIMHANS Hospital, Bengaluru, wherein he took first aid treatment and thereafter, he was shifted to ESI Hospital, Bengaluru wherein he took treatment as an inpatient. It is pleaded that the claimant was hale and healthy aged about 21 years and working as a Mechanic by profession, earning income of Rs.20,000/- per month. It is also stated that the jurisdictional police have registered the criminal case against the driver of the 4 offending lorry for the offences punishable under Sections 279, 337 and 304(A) of IPC. In view of the serious injures having been suffered by the claimant due to the accident caused by the driver of the offending lorry, he claimed compensation from the Tribunal against the respondents.
5. On notice being served, respondents appeared before the court and filed their statement of objections. Respondent No.1/Insurance Company took up the plea that the accident occurred due to rashness and negligence of the driver of the Auto Rickshaw and not due to any negligence of the driver of the offending lorry. However, Insurance company admitted the issuance of policy in favour of the offending vehicle namely lorry. But contended that the driver of the offending lorry did not possess a valid and effective driving license to drive such class of vehicle and the RC owner has contravened the terms and conditions of the insurance policy. It further denied the age, avocation and income of the claimant and sought for dismissal of the claim petition.
6. On consideration of the pleadings, the Tribunal framed relevant issues for consideration. 5
7. In order to prove and establish his case, the claimant got examined himself as PW1 and got marked Exs.P.1 to P.10, whereas respondents examined two witnesses as RW1 and RW2, who are the Administrative Officer and the Doctor and got marked Exs.R.1 to R.3.
8. On the basis of material evidence, both oral and documentary and after hearing the learned counsel on both sides, the Tribunal came to the conclusion that the claimant would be entitled for a global compensation in a sum of Rs.50,000/- along with interest at 8% per annum to the claimant and attributed 80% negligence as against the driver of the offending lorry and 20% negligence as against the claimant herein. Being aggrieved by the said judgment and award passed by the Tribunal, the claimant is before this Court seeking enhancement of compensation.
9. Leaned counsel for the claimant has vehemently contended that the impugned judgment and award passed by the Tribunal is illegal, erroneous and arbitrary and the same is contrary to the material evidence placed on record both oral and documentary. He further contends that the Tribunal has failed to take into consideration Ex.P.1 to P.10 inclusive of the police records where the charge sheet laid 6 by the Police after conducting the investigation and enquiry against the driver of the offending lorry. He further contends that the Tribunal has erred in not appreciating that the entire criminal prosecution is lodged against the driver of the offending lorry though no case has been registered against the driver of the Auto Rickshaw, the claimant. He further contends that the Tribunal has committed serious error in assessing contributory negligence against the driver of the Auto Rickshaw for the simple reason that the driver of the Auto Rickshaw did not possess valid and effective driving license as on the date of occurrence of accident.
10. Learned counsel further contends that this finding and conclusion arrived by the Tribunal is not proper and without any basis as no material is placed by the respondent No.1/Insurer or no evidence elicited in the cross- examination to show that the driver of the Auto Rickshaw contributed to the occurrence of the accident. Nothing is also forthcoming in the reasoning and finding arrived by the Tribunal with regard to the driver of the Auto Rickshaw having contributed to the occurrence of the accident. Learned counsel further contends that on the other heads, 7 the Tribunal has grossly erred in awarding a meager compensation without considering the elements of pain and suffering, loss of amenities and the loss of income during the laid up period and other aspects which the Tribunal ought to have awarded to the claimant.
11. It is further contended by the learned counsel for the claimant that the Tribunal has grossly erred in attributing the contributory negligence against the driver of the Auto Rickshaw namely the claimant as it is contrary to the material evidence and also the law laid down in catena of decisions of the Hon'ble Apex Court as well as this Court in several judgments which are as follows:
1. DINESH KUMAR J. ALIAS DINESH.J v. NATIONAL INSURANCE COMPANY LIMITED AND OTHERS reported in (2018) 1 SCC 750
2. SUDHIR KUMAR RANA v. SURINDER SINGH AND ORS.
reported in AIR 2008 SC 2405
3. MOHAMMED SIDDIQUE AND ANR. v. NATIONAL INSURANCE COMPANY LTD. AND ORS. reported in AIR 2020 SC 520 Hence, on these grounds, he sought for allowing the appeal, consequently enhance the compensation by setting 8 at naught the contributory negligence attributed against the claimant herein.
12. Per contra, learned counsel Sri Mohan Kumar T, for respondent No.2 - Insurer vehemently contends that the Tribunal has passed the just and reasonable order on the basis of the material evidence placed on record both oral and documentary and thereby awarded reasonable compensation, commensurate to the injuries sustained by the claimant in the accident. There is no requirement of any interference at the hands of this Court as all aspects awarding compensation under the various heads has been considered by the Tribunal and has rightly attributed 20% contributory negligence as against the driver of the Auto Rickshaw, the claimant herein in view of there being, no driving license on the clamant.
13. Learned counsel further contends that the Tribunal has awarded just and reasonable compensation which does not call for any interference. On these grounds, he seeks for dismissal of the appeal.
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14. Having heard the learned counsel for appellant and respondent No.2-Insurer, the points which arise for consideration are:
1. Whether the Tribunal has awarded meager compensation ignoring the material placed on record?
2. Whether the Tribunal is justified in attributing 20% contributory negligence as against the driver of the Auto Rickshaw?
3. Whether the enhancement is called for in the facts and circumstances of the case?
15. There is no dispute with regard to the occurrence of the accident on 23.12.2017 between Auto Rickshaw driven by the claimant and offending lorry, in which the passenger traveling in the Auto Rickshaw succumbed to the injuries and the claimant sustained serious injuries to his body. To evidence this fact, PW.1 has produced documentary evidence at Ex.P.1 to P.7 being the police records which are not in dispute and the same establishes the fact that there is a charge sheet laid by the jurisdictional police after enquiry and investigation and the criminal prosecution is set into motion against the driver of the offending lorry. Neither the charge sheet has been challenged nor the 10 criminal prosecution or contra material has been placed before the Tribunal or before this Court to establish that the criminal prosecution is bad in law. Further, there is no material placed by the learned counsel for the Insurance Company that the clamant, driver of the Auto Rickshaw has contributed to the occurrence of the accident apart from merely stating that he did not possess the valid and effective driving license as on the date of occurrence of the accident.
16. When this being the state of affairs, it is inferred on the basis of the evidentiary value of Exs.P.1 to P.7 that the liability and negligence is apparent as against the driver of the offending lorry by initiation of the criminal proceedings. In order to establish that the driver of the Auto Rickshaw, the claimant, was involved or contributed to the occurrence of the accident, the owner or the respondent/insurer have not proved the fact and neither is the same established by sufficient cogent material evidence. It is also seen from the impugned judgment and award passed by the Tribunal that the Tribunal has merely on the premise that the claimant, driver of the Auto Rickshaw did not possess a valid and effective driving license has attributed 20% contributory 11 negligence against him without there being any material to show that the driver of the Auto Rickshaw per se contributed to the occurrence of accident.
17. In a case where the contributory negligence is attributed by the Tribunal on the basis of allegations made by the respondent, it becomes incumbent for the respondent to prove this fact before the Court by placing the cogent material evidence either oral or documentary. In the present case on hand, there being no documents evidencing any criminal prosecution or any complaint against the driver of the Auto Rickshaw and there being no material evidence oral or any elicitation in cross- examination with regard to the claimant, the driver of the Auto Rickshaw having contributed to the occurrence of the accident, I am afraid, the finding arrived at by the Tribunal is hard to countenance and the same deserves to be set aside out-rightly. Merely for the reason that there is no driving license, it cannot be assumed or presumed that the driver of the Auto Rickshaw, the claimant, has contributed to the accident unless there is cogent material evidence pinpointing at the clamant/driver of the Auto Rickshaw to have contributed in the causation of the accident. In the 12 present case on hand, no such material is placed before the Court. Hence, I am of the opinion that the finding arrived at by the Tribunal is erroneous and the same requires to be set aside. Accordingly it is set aside.
18. Coming to the age, avocation and income of the claimant, though the claimant has stated in his evidence that he was earning income of Rs.20,000/- per month as Mechanic, no material has been placed before the Court in proof of same. It is also not the case of the clamant that he sustained permanent disability affecting his future earning capacity, no material has been placed to that effect and neither has he examined any doctor to establish the said aspects. However, it is the contention of the learned counsel for the claimant that the Tribunal has not awarded just and reasonable compensation on all other heads.
19. The Tribunal has however awarded global compensation of Rs.50,000/- to the claimant. I am afraid that the Tribunal has committed a serious error in not considering the aspect of injuries sustained by the claimant, the pain and agony and suffering meted out to the claimant in the occurrence of the accident and post thereafter and the loss of amenities to the claimant. Hence, there is 13 marginal indulgence required in the global award by the Tribunal for the reasons mentioned below.
20. The accident having occurred in the year 2017, in view of any absence of proof of income, the notional income chart prescribed for the relevant year is Rs.11,000/- per month. For awarding compensation under the head of 'loss of income during laid up period', this amount will have to be taken for consideration. Accordingly, if Rs.11,000/- is taken as income for the relevant period of accident i.e. 2017 and the claimant having suffered mild injury to the head and he was inpatient for a period of 5 days and on diagnosis mild head injury, CT: right temporal specks of contusion. However, the claimant has not examined any doctor to show that he sustained the disability due to occurrence of the accident. That being the case of the claimant would not be entitled to any 'loss of future earning capacity' as no evidence is placed before the Court. However, the claimant would be entitled for the 'loss of income during laid up period'. Taking into consideration that the clamant was inpatient for a period of 5 days and the notional income taken at Rs.11,000/-, I deem it appropriate to award two months as laid up period considering the injuries sustained 14 and towards recuperation and to get back to the normal work. Accordingly, Rs.22,000/- is taken as 'loss of income during laid up period. The claimant having been inpatient for a period of 5 days in the hospital, towards treatment, nourishment, food and transportation charges, I deem it appropriate to award Rs.15,000/- under the head.
21. Towards 'pain and sufferings', in view of the fact that the claimant was admitted as inpatient and suffered certain injuries as mentioned, I deem it appropriate to award Rs.35,000/- towards 'pain and sufferings'.
22. Towards admitted medical bills produced by the claimant, the Tribunal has awarded Rs.1,097/- which is retained.
23. The Tribunal having attributed 20% contributory negligence as against the claimant, the driver of the Auto Rickshaw is set at naught, entire compensation is liable to be paid by the respondent / insurer.
For the reasons aforesaid, the claimant is entitled for enhancement of compensation of Rs.73,097/- as against Rs.50,000/- awarded by the Tribunal. Accordingly I pass the following order:
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a) The appeal is partly allowed.
Consequently, Judgment and Award dated 30.03.2019 passed by the VII Additional SCJ & XXXII ACMM, Member, MACT-3, Bengaluru in MVC No.789/2018 is modified.
b) The claimant is entitled to a total compensation of Rs.73,097/- as against Rs.50,000/- awarded by the Tribunal.
c) The Insurance Company is directed to deposit the compensation amount along with interest from the date of filing of the claim petition till the date of realization, within a period of four weeks from the date of receipt of copy of this judgment.
d) The enhanced amount shall carry interest
at 6% p.a.
e) All other conditions imposed by the
Tribunal being left intact.
f) The claimant shall not be entitled to
interest for the delayed period.
No order as to costs.
Sd/-
JUDGE
HA/-