Karnataka High Court
Rahamathulla @ Rahamathi vs Roshan Jameer on 30 July, 2024
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NC: 2024:KHC:30149
MFA No. 8264 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 8264 OF 2012 (MV)
BETWEEN:
RAHAMATHULLA @ RAHAMATHI
S/O LATE NASEER SAB
AGED ABOUT 26 YEARS
BARBENDING WORK
R/O TANK-BLOCK
J C EXTENSION,HARIHAR
DAVANAGERE DIST - 577 601 ...APPELLANT
(BY SRI. KALEEMULLAH SHARIFF, ADV.)
AND:
1. ROSHAN JAMEER
S/O K H GHOUSE
AGED ABOUT 39 YEARS
R/O 1ST MAIN 3RD CROSS
H S EXTENSION, HARIHAR - 577 601
2. SRI IRFAN
S/O YOUSUF SAB
Digitally signed by AGED ABOUT 34 YEARS
PRAJWAL A
R/O VIDHYANAGAR
Location: HIGH COURT 11TH CROSS C BLOCK
OF KARNATAKA
HARIHAR - 577 601
3. THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE COMAPNY LTD
168/1, NARASARAJA ROAD
DAVANAGERE - 577 001 ...RESPONDENTS
(BY SRI. N SRINIVAS, ADV. FOR R1;
VIDE ORDER DATED 29.05.2024;
NOTICE TO R2 IS HELD SUFFICIENT;
SMT.HARINI SHIVANAND, ADV. FOR R3[VC])
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NC: 2024:KHC:30149
MFA No. 8264 of 2012
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 9.4.2012 PASSED
IN MVC NO.908/2008 ON THE FILE OF THE SENIOR CIVIL
JUDGE, ADDITIONAL MACT, HARIHAR, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
In this appeal, the petitioner has challenged the judgment and award dated 09.04.2012 passed in M.V.C.No.908/2008 by the Senior Civil Judge & Addl. M.A.C.T., Harihara ('the Tribunal' for short).
2. For the sake of convenience, the rank of the parties shall be referred to as per their status before the Tribunal.
3. Brief facts of the case are, on 05.03.2008 at about 10.30 p.m., while the petitioner was proceeding near Amaravathi Colony of Harihar, an auto rickshaw bearing Reg.No.KA-17-8325 hit against him causing him injuries. After taking treatment at Government Hospital, S.S.Institute of Medical Sciences & Research -3- NC: 2024:KHC:30149 MFA No. 8264 of 2012 Centre, Davangere, the petitioner approached the Tribunal for grant of compensation of Rs.11,30,000/-. Claim was opposed by the Insurance Company. The Tribunal after taking the evidence allowed the claim petition awarding compensation of Rs.95,192/- with interest @ 6% p.a. directing the owner and the driver of the auto rickshaw to pay the compensation and dismissing the claim against the Insurance Company. Assailing the same and seeking enhancement of compensation, the petitioner has filed this appeal on various grounds.
4. Heard the arguments of Sri.Kaleemullah Shariff, learned counsel for the petitioner and Sri.N.Srinivas, learned counsel for owner of the auto rickshaw and Smt.Harini Shivanand, learned counsel for the Insurance Company.
5. It is the contention of the learned counsel for the petitioner that the petitioner has suffered fracture to both Tibia and Fibula of his right leg. The medical -4- NC: 2024:KHC:30149 MFA No. 8264 of 2012 evidence explains the limb disability of 30%, but the Tribunal has considered 5% disability to the whole body. Even the income taken is meager and sought for enhancement.
5.1. It is further contended that the accident took place within the limits of Harihara Nagara Sabha; Nagara Sabha has been grown up, Municipality has built up bus shelter and near bus shelter, the accident took place. Hence, there is no fundamental violation of the permit and the Insurance Company is liable to pay compensation.
6. Learned counsel for the owner of the auto rickshaw has contended that the accident took place within the limits of Harihara Nagara Sabha, extension has been grown, Municipality has built up the bus shelter and the auto rickshaw was going out of the limits is not a reason for the accident. There is no fundamental violation of the terms and conditions of the policy and the Insurance Company cannot avoid its -5- NC: 2024:KHC:30149 MFA No. 8264 of 2012 liability, Tribunal erroneously dismissed the claim against the Insurance Company and sought a direction to the Insurance Company to pay compensation.
7. Per contra, learned counsel for the Insurance Company has contended that by producing cogent evidence before the Tribunal, it has established that the place of accident is not within the limits of Harihara Nagara Sabha. The Permit under Ex.R2 restricts 7 kilo meter radius from Nagara Sabha limits, thereby the accident took place outside the city limit and it is in violation of the permit conditions. The Insurance Company can avoid its liability and the Tribunal has rightly considered all the material facts and awarded the compensation and dismissed the claim against the Insurance Company and she supported the impugned judgment.
8. I have given my anxious consideration to the arguments addressed on behalf of the parties and perused the records.
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NC: 2024:KHC:30149 MFA No. 8264 of 2012
9. The material on record points out that there was an accident involving the petitioner and the auto rickshaw in question on 5.3.2008 at about 10.30 p.m., near Amaravathi Colony of Harihar. PW-2 is the treated Doctor, who explains that the petitioner has suffered fracture of right Tibia and Fibula. The Tribunal has placed much reliance on the discharge summary issued by the SS Hospital, Davangere. The Tribunal assessed the disability of the petitioner at 5%. Having regard to the nature of injury and the limb disability of 30% spoken to by the medical officer, it is proper to assess 10% whole body disability instead of 5%. Accident is of the year 2008. A person with no proof of income will earn not less than Rs.4,500/- and the Tribunal has taken Rs.3,900/- at lower side. Hence, the income has to be taken at Rs.4,500/- per month.
10. The Tribunal has awarded compensation as follows:
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NC: 2024:KHC:30149 MFA No. 8264 of 2012 Sl. No. Particulars Rs.
1 Disability (46800x18x5%) 42,125/- 2 Pain and suffering 25,000/- 3 Discomfort in future life 10,000/- 4 Medical Bills 13,067/- 5 Medical attendant charges 5,000/-
and transportation Total 95,192/-
11. The petitioner was under hospitalization for 28 days. He was attended by an attendant, spent money towards transportation and food and nourishment; medical bills spent at Rs.13,067/- has been reimbursed by the Tribunal. Loss of amenities and discomfort at Rs.10,000/- is on the lower side, it should be Rs.25,000/-. Pain and suffering awarded at Rs.25,000/- is kept intact. Towards incidental expenses, the Tribunal has awarded Rs.5,000/-. Petitioner was inpatient for 28 days, an attendant has attended him, money needs to be spent towards food and nourishment. Hence, under these heads, a sum of Rs.10,000/- is assessed. The petitioner will be laid up for minimum of three months, loss of income is assessed at Rs.13,500/- (Rs.4,500/- x 3). As -8- NC: 2024:KHC:30149 MFA No. 8264 of 2012 discussed above, the petitioner has suffered 10% whole body disability, his notional income is taken at Rs.4,500/- and his age at 22 years, the applicable multiplier is '18'. Then, the loss of future income will be: Rs.4,500/-x12x18x10%= Rs.97,200/-. There are no good grounds to assess the compensation on other heads. Thus, the petitioner is entitled for compensation thus:
Sl. No. Particulars Rs.
1 Pain and suffering 25,000
2 Medical expenses 13,067
3 Conveyance, Attendant and 10,000
Nourishing food
4 Loss of earning during laid-up 13,500
5 Loss of Amenities and 25,000
discomfort
7 Loss of income due to disability 97,200
TOTAL 1,83,767
Thus, petitioner is entitled for enhancement of
Rs.88,575/-, which is the just compensation to which the petitioner is entitled, in the facts and circumstances of the case.
12. As regards liability is concerned, as rightly argued on behalf of the Insurance Company, the accident -9- NC: 2024:KHC:30149 MFA No. 8264 of 2012 took place outside the Nagara Sabha limits. Ex.R2/Permit indicates 7 kilometers radius. The accident took place just abutting to 7th kilometer in the extension of Harihara. The extension though not come within Nagara Sabha, the evidence on record did not point out that there is fundamental breach of policy for violation of the permit conditions.In Gohar Mohammed
-vs-U.P.State Road Transport Corporation and others, the Hon'ble Apex Court confirmed the order of the Tribunal and also the High Court on the ground that there is no permit to bus on the date of accident and claim of the owner of the bus that there is a valid permit, is doubtful. In the present case, the evidence does not stand in support of the Insurance Company that the violation of permit condition is the cause for the accident. For violation of permit conditions, the Insurance Company can avoid its liability but it has to satisfy the award and to recover the same from the owner of the auto rickshaw under the principle of 'pay and recovery'. Hence, the order of dismissal of the
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NC: 2024:KHC:30149 MFA No. 8264 of 2012 claim against the Insurance Company though proper, but the Insurance Company has to pay compensation and recover it from the owner of the auto rickshaw. In view of the above, appeal merits consideration, in the result, the following:
ORDER
(i) The appeal is allowed in part;
(ii) The impugned judgment and award is modified;
(iii) The petitioner would be entitled to total compensation of Rs.88,575/- with interest at 6% p.a. from the date of petition till realisation;
(iv) The Insurance Company is directed to deposit the entire compensation with interest @ 6% per annum within eight weeks from the date of receipt of certified copy of this judgment and to recover the
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NC: 2024:KHC:30149 MFA No. 8264 of 2012 same from the owner of the auto rickshaw in the same proceedings;
(v) The amount in deposit, if any, shall be transmitted to the Tribunal.
SD/-
(T.G. SHIVASHANKARE GOWDA) JUDGE KNM List No.: 1 Sl No.: 32