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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.8962 OF 2013(MV)
C/W
MFA No.8784 OF 2013(MV)
IN MFA 8962/2013
BETWEEN:
THE NEW INDIA ASSURANCE CO., LTD.,
MOTOR T.P. HUB, II FLOOR
MAHALAKSHMI CHAMBERS
NO.912, M.G.ROAD
BANGALORE-560 001.
REPRESENTED BY ITS REGIONAL OFFICE
NO.2-B, UNITY BUILDING ANNEX
MISSION ROAD, BANGALORE-560 027
BY ITS DULY CONSTITUTED ATTORNEY.
... APPELLANT
(BY SRI.C.R.RAVISHANKAR, ADV. )
AND
1. SRI. SYED KHADER PASHA @ ABDULLA
AGED ABOUT 32 YEARS
S/O SRI. AMEER SAB
R/O ANJANAPURA
BANGALORE-560026.
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2. SRI. SHAIK KHASIM, MAJOR
S/O SRI. SHAIK LALU SAB,
R/O AVLAHALLI, ANJANAPURA
BANGALORE-560 026.
... RESPONDENTS
(BY SRI. GIRIMALLAIAH, ADV. FOR R1:
NOTICE TO R2 IS SERVED BY WAY OF
PAPER PUBLICATION IS ACCEPTED
V/O DATED:13.03.2019)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:08.07.2013 PASSED IN MVC NO.5041/2011
ON THE FILE OF THE 14TH ADDITIONAL JUDGE, MACT,
COURT OF SMALL CAUSES, BANGALORE, (SCCH-10)
AWARDING A COMPENSATION OF RS.1,80,000/-
WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL PAYMENT.
IN MFA 8784/2013
BETWEEN
SYED KHADER PASHA @ ABDULLA
AGED 32 YEARS
S/O AMEER SAB
R/O ANJANAPURA
BENGALURU.
...APPELLANT
(BY SRI. GIRIMALLAIAH, ADV.)
AND
1. NEW INDIA ASSURANCE CO., LTD.,
MOTOR T.P. HUB, II FLOOR
MAHALAKSHMI CHAMBERS
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NO.9/2, M.G.ROAD
BANGALORE-560 001.
BY ITS MANAGER.
2. MR. SHAIK KHASIM, MAJOR
S/O SHAIK LALU SAB,
R/O AVALAHALLI, ANJANAPURA.
...RESPONDENTS
(BY SRI. C.R. RAVISHNKAR, ADV. FOR R1:
NOTICE TO R2 IS HELD SUFFICIENT
V/O DATED:06.12.2017)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MVACT AGAINST THE JUDGMENT AND AWARD
DATED: 08.07.2013 PASSEDIN MVC NO.5041/2011
ON THE FILE OF THE 14TH ADDITIONAL JUDGE, MACT,
COURT OF SMALL CAUSES, BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSTION
AND SEEKING ENHANCEMENT OF COMPENSTION.
THESE MFAs COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA 8962/2013 has been filed by the Insurance Company and MFA 8784/2013 has been filed by the claimant under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) being aggrieved by the judgment dated 4 8.7.2013 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 15.7.2011, when the claimant was giving signal to take turn to the driver of lorry bearing registration No.MYH-3995 near Government Hospital, Jayakumar Layout, Konanakunte, Bangalore, at that time, the driver of the said lorry drove the same in a rash and negligent manner and dashed to the vehicle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.
3. The claimant filed a petition under Section 166 of the Act on the ground that he was working as a cleaner cum loader in the said lorry and was earning Rs.9,000/- p.m. It was pleaded that he also spent huge amount towards medical expenses, conveyance, 5 etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending lorry by its driver.
4. On service of notice, the respondent No.1 filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the driver of the lorry is not made as party. There is no negligence on the part of the driver of the lorry and accident occurred due to the negligence of the claimant himself. The offending lorry had no valid permit as on the date of the accident. The driver of the offending vehicle did not have valid driving licence as on the date of the accident. The liability is subject to terms and conditions of the policy. The age, avocation and income of the claimant and the medical expenses are denied. It was further pleaded that the quantum of 6 compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition. The respondent No.2 did not appear before the Tribunal inspite of service of notice and was placed ex-parte.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and Dr.Prakashappa as PW-2 and Mr.Shaik Ameer as PW-3 and got exhibited documents namely Ex.P1 to Ex.P11. On behalf of the respondents, two witnesses were examined as RWs-1 and 2 and got exhibited documents namely Ex.R1 to Ex.R8. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of 7 Rs.1,80,000/- along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.
6. The learned counsel for the Insurance Company has contended that as on the date of the accident, the offending lorry was not having valid permit. To establish the same, he has relied upon Ex.R-5, permit extract which shows that the permit is valid from 16.12.2011 to 15.12.2016. As on the date of accident i.e., 15.7.2011, there was no permit. The respondent No.2, owner of the lorry was placed exparte before the Tribunal. Even before this court, notice is served, but he is not represented. Since there is no valid permit as on the date of the accident, the Tribunal is not justified in fastening the liability on the Insurance Company.
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Regarding quantum of compensation, even though the claimant claims that he was earning Rs.9,000/- per month, he has not produced any documents to establish his income. Therefore, the Tribunal has rightly assessed the income of the claimant notionally. PW-2, the doctor has stated in his evidence that the claimant has suffered whole body disability from left upper limb and right lower limb to the extent of 26%. The Tribunal considering the injuries sustained by the claimant, has rightly assessed the whole body disability at 10%. The injuries sustained by the claimant are minor in nature. Considering the oral and documentary evidence, the Tribunal has granted just and reasonable compensation and it does not call for interference. Hence, he sought dismissal of the appeal.
7. The learned counsel for the claimant has contended that at the time of the accident, the 9 claimant was working as cleaner cum loader and earning Rs.9,000/- per month, but the Tribunal has taken the notional income as merely as Rs.5,000/- per month.
Secondly, PW-2, the doctor has stated in his evidence that the claimant has suffered whole body disability from left upper limb and right lower limb to the extent of 26%. But the Tribunal has erred in taking the whole body disability at only 10%.
Thirdly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 21 days. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain during treatment. Considering the same, the compensation granted by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and 10 other heads are on the lower side. Hence, he sought for allowing the appeal.
8. Heard the learned counsel for the parties and perused the records.
9. It is not in dispute that the accident has occurred due to rash and negligent driving of the offending vehicle by its driver.
The specific contention of the Insurance Company is that the offending lorry was not having valid permit as on the date of the accident. As per Ex.R-5, permit extract, the permit was valid from 16.12.2011 to 15.12.2016. The accident has occurred on 15.7.2011. Therefore, as on the date of the accident, there was no valid permit.
The owner is served with notice, but remained unrepresented.
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It is very clear from the materials available on the record that as on the date of the accident, there was no valid permit in respect of the offending lorry. Hence, the Insurance Company is not liable to pay compensation to the claimant. However, in view of the law laid down by the Full Bench decision of this Court in the case of 'NEW INDIA ASSURANCE CO. LTD. BIJAPUR vs. YALLAVVA AND ANOTHER' ILR 2020 Kar.2239, the Insurance Company is liable to pay compensation to the claimants with liberty to recover the same from the owner of the offending vehicle. Re: Quantum of compensation
10. The claimant has not produced any evidence with regard to his income. Therefore, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken 12 place in the year 2011, the notional income has to be taken at Rs.6,500/- p.m. As per wound certificate, the claimant has sustained swelling abrasion whole arm left and left elbow, tenderness over the right hip, ACLW over dorsum of left foot. PW-2, the doctor has stated in his evidence that the claimant has suffered whole body disability from left upper limb and right lower limb to the extent of 26%. Therefore, taking into consideration the deposition of the doctor, PW-2 and injuries mentioned in the wound certificate, the whole body disability is taken at 15%. The claimant is aged about 30 years at the time of the accident and multiplier applicable to his age group is '17'. Thus, the claimant is entitled for compensation of Rs.1,98,900/- (Rs.6,500*12*17*15%) on account of 'loss of future income'.
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Since the income of the claimant is enhanced to Rs.6,500/- per month, the claimant is entitled for compensation of Rs.13,000/- (Rs.6,500*2 months) under the head 'loss of income during laid up period'.
Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. He has suffered lot of pain during treatment and he has to suffer with the disability stated by the doctor throughout his life. The claimant was treated as inpatient for more than 15 days in the hospital and thereafter, has received further treatment. Considering the same, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'loss of amenities' from Rs.10,000/- to Rs.30,000/-.
The compensation awarded by the Tribunal under other heads is just and reasonable. 14
11. Thus, the claimant is entitled to the following compensation:
As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 30,000 30,000 Medical and incidental 23,000 23,000 expenses Loss of income during 10,000 13,000 laid up period Loss of amenities 10,000 30,000 Loss of future income 102,000 198,900 Future medical expenses 5,000 5,000 Total 180,000 299,900 The claimant is entitled to a total compensation of Rs.299,900/-.
The Insurance Company is directed to deposit the compensation amount along with interest at 6% p.a. within a period of four weeks from the date of receipt of copy of this judgment with liberty to recover the same from the owner of the lorry.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
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Accordingly, the appeals are disposed of. The amount in deposit is ordered to be transferred to the Tribunal.
Sd/-
JUDGE DM