Meera vs Mohammed Zahirulla
2021 Latest Caselaw 5656 Kant

    IN THE HIGH COURT OF KARNATAKA, BENGALURU

      DATED THIS THE 7TH DAY OF DECEMBER, 2021

                        BEFORE

         THE HON'BLE MR.JUSTICE P.N. DESAI

  MISCELLANEOUS FIRST APPEAL NO.95 OF 2015 (MV)


BETWEEN

MEERA
W/O. SURESHA
AGE 31 YEARS, HOUSE WIFE
R/O. 1ST CROSS, SIDDARAMAPPA
EXTENSION, HOLALKERE TOWN-577 526.
                                             ... APPELLANT
(BY SRI. SHASHIDHARA, ADVOCATE)

AND

1. MOHAMMED ZAHIRULLA
S/O. ADAM ALI, AGE 29 YEARS
OWNER OF VEHICLE BEARING
NO.KA-16/B-816, 2ND CROSS
SIDDARAMAPPA EXTENSION,
HOLALKERE TOWN-577 526.

2. THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD.,
OPP: BAPUJI AUDITORIUM
MCC B-BLOCK, DAVANAGERE - 577 001.

3. SHARABAIAH
S/O. SIDDANAGOWDA,
AGED ABOUT 37 YEARS
OWNER OF LORRY BEARING
NO.KA-34-A-4182,
R/O. GOGGARAHATTY,
HONNALI ROAD,
BELLARY TOWN-583 101.
                                        ... RESPONDENTS

(BY SRI. B.A. RAMAKRISHNA, ADV. FOR R2, R1 SERVED, R3
NOTICE DISPENSED WITH)
                                  2

      THIS MFA FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 02.07.2014
PASSED IN MVC NO.162/2013 ON THE FILE OF THE SENIOR
CIVIL JUDGE & MACT, HOLALKERE, PARTLY ALLOWING THE
CLAIM   PETITION  FOR  COMPENSATION   AND    SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS MFA COMING ON FOR ADMISSION THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING, THIS DAY THE
COURT DELIVERED THE FOLLOWING:


                            JUDGMENT

Heard the learned counsel for the appellant and

also the learned counsel for the respondents. With the

consent of both the parties, at the stage of admission

itself, this matter is taken up for final disposal.

2. This appeal arises out of the judgment and

award dated 02.07.2014, passed by the Senior Civil

Judge, MACT, Holalkere in MVC No.162/2013, wherein

the Tribunal has awarded a compensation of

Rs.90,000/- with interest at 8% per annum from the

date of petition till the date of realization. The appellant

has filed this appeal seeking enhancement of

compensation.

3. The brief facts of the case is that on

24.02.2012 at about 5.30 a.m., the petitioner was

traveling in Maxicab bearing registration No.KA-16-B-

816 from Holalkere to Bengaluru. When the said said

vehicle came in front of the Snesidri gate in Hiriyur

Taluk, the driver of the said Maxicab drove the vehicle in

a rash and negligent manner and dashed the lorry

bearing registration No.KA-34-A-4182, which was

standing at the place of the accident, due to the impact,

the petitioner/claimant sustained injury. She was

immediately shifted to the Government Hospital, Hiriyur

and then to Kasturba Medical Hospital, Manipal.

4. Respondent No.1 is the owner of the vehicle

Maxicab. But they have not filed any written statement.

Respondent No.2 is the insurer of the vehicle appeared

and denied the incident. It is contended that the liability

is subject to terms and conditions of the policy.

5. The petitioner got examined herself as PW1

and got examined one witness as PW2 and produced

documents marked as Exs.P1 to P59, which consist of

FIR, wound certificate, police report, disability certificate,

medical bills. Respondents have not examined the

witness. On the other hand, insurance Company Policy

copy i.e., R2 was produced and marked as Ex.R1. After

hearing the arguments, the Tribunal passed the

impugned judgment and award, which is under

challenge.

6. Learned counsel for the appellant

Sri. Shashidhara , argued that the Tribunal has erred in

appreciating the evidence on record. Though the

claimant was in-patient for 12 days. Only a sum of

Rs.20,000/- was awarded towards 'pain and suffering'.

No amount is awarded for 'loss of amenities'. Towards

nourishment and other charges, only a sum of

Rs.1,800/- is awarded. No amount is awarded under the

head 'loss of income during laid up period'. Though the

doctor has stated that 16% disability to the limb, the

Tribunal has awarded only a sum of Rs.8,000/- towards

'disability', without disclosing or stating how Rs.8,000/-

is arrived.

7. The Tribunal has apportioned the negligence

of 70:30 on both the vehicles. The Tribunal ought to

have directed the liability joint and several. In this

regard, he relied on the decision of the Hon'ble Supreme

Court in the case of KHENYEI VS. NEW INDIA

ASSURANCE COMPANY LIMITED reported in (2015) 9

SCC 273. In view of his submission, the learned counsel

argued that the compensation be re-determined and

enhanced.

8. The learned counsel for respondent No.2 -

Insurer Sri B.A.Ramakrishna, supported the judgment

and contended that the Tribunal has rightly appreciated

the evidence and in view of the medical evidence, has

properly assessed the compensation and needs no

interference.

9. I have perused the impugned judgment and

also the records of the trial court. Though the injury

certificate initially shows that simple injuries as per

Ex.P6, but subsequently there was a tenderness and

pain. She was admitted to Kasturba Hospital and on

examination of x-ray that was produced, it shows that

there is a pelvic fracture: superior and inferior pubic

rami fracture of left hemipelvis - grievous. The said Ex.P8

- treatment certificate shows she has taken the

treatment as an in-patient from 26.02.2012 to

06.03.2012. She underwent postural reduction of

fracture and brace application, discharged with advice of

bed rest. Readmitted from 16.04.2012 to 18.04.2012 for

mobilization and gait training and after three months the

fracture union was noted. Therefore, looking into the

nature of injury and period she was treated as an in-

patient and the treatment she has taken, the amount

awarded under the head 'pain and suffering' appears to

be on the lower side. Hence, the same is enhanced to

Rs.40,000/- instead of Rs.30,000/-. The Tribunal after

considering the medical bills, has awarded a sum of

Rs.25,695/-. The claimant suffered a fracture and has

admittedly the petitioner has to travel from Holalkere to

Manipal, she required proper diet. The Tribunal has

awarded only a sum of Rs.1,800/- towards diet,

nourishing and other incidental charges, which is on

very lower side. Considering the nature of treatment the

laid up period, the same is enhanced to Rs.10,000/-

instead of Rs.1,800/-. Regarding the disability, the

Tribunal has not stated anything as to how it is arrived

at Rs.8,000/-, though the doctor in his evidence has

stated about the treatment and there is a disability to an

extent of 16% below legs portion. He has also stated

about the inconvenience, hardship that the petitioner

will suffer and she would have difficulty in normal

walking, activities of daily living, climbing stairs. She

would be unable to sit on ground, perform heavy manual

labour. Looking into the nature of the work and injury

sustained, it is just and proper to take the disability at

5% to the whole body. The age of the petitioner was 30

years as on the date of the accident. Therefore, the

appropriate multiplier that is applicable to her age group

is 17. It is stated that the petitioner was a house wife

and shown that her monthly income was Rs.8,000/- per

month. Even according to the notional income to be

taken whether there is no proof of income in the Lok-

Adalath chart which is usually considered that awarding

compensation in MVC cases in Lok-Adalath for the year

2012, a sum of Rs.7,000/- is taken as notional income.

Therefore, the same is taken as the notional income of

the petitioner. Then, the loss of income due to disability

would be Rs.71,500/- (7,000x12x17x5%).

10. Looking into the nature of fracture and after

the treatment, the petitioner has to suffer the

inconvenience and unhappiness through out her life.

Therefore, a sum of Rs.10,000/- is awarded under the

head 'Loss of amenities'.

11. It is seen that no separate compensation is

awarded by the tribunal under the head 'loss of income

during laid up period' and hence a sum of Rs.10,000/- is

awarded under the said head and a sum of Rs.5,000/- is

awarded under the head 'attendant charges'. In all the

petitioner is entitled for a total compensation of

Rs.1,92,095/-. The break-up is as under :

PARTICULARS        AMOUNT            AMOUNT
                   AWARDED      BY AWARDED        BY
                   THE TRIBUNAL      COURT
Loss of earning           8,000-00         71,400-00
due to disability
Pain           and       30,000-00         40,000-00
suffering
Medical expenses         25,695-00         25,695-00
Food           and        1,800-00         10,000-00
nourishment
expenses
Loss of amenities                  -       10,000-00
Loss of income                     -       10,000-00
during laid up
period
Attendant                          -        5,000-00
charges
Conveyance and           20,000-00         20,000-00
hire charges
TOTAL                    85,495-00
                     (rounded off to    1,92,095-00
                       Rs.90,000/-)

12. As far as the apportionment portion is

concerned, though the Tribunal has determined the

liability on respondents No.2 and 3 at 70:30, it is settled

principles of law that the claimant can recover the

amount from any of the vehicle which involved in the

accident when there is a composite negligence,

determination of the accident between the parties. The

liability is only for the parties, since both of them have

been impleaded. Therefore, in the operative portion

though at para 15 held that respondents No.1 and 3 are

liable to pay the compensation joint and severally at the

ratio of 70:30, however, since the claimant was traveling

in the vehicle belonging to respondent No.1, which is

insured with respondent No.2, since the liability is joint

and several, the claimant can recover the entire amount

from respondent No.2 and if respondent No.2 paid the

entire amount, it can recover to an extent of 30% of

liability from respondent No.3 in the execution

proceedings by filing execution proceedings in

accordance with law.

13. In all, the appellant is entitled for an

enhanced compensation of Rs.1,92,095/- with interest at

6% per annum from the date of petition till the date of

realization. Accordingly, I pass the following :

ORDER

Appeal is allowed in part.

The judgment and award dated 02.07.2014, passed

by the Senior Civil Judge, MACT, Holalkere in MVC

No.162/2013, is modified.

The appellant is entitled for an enhanced

compensation of Rs.1,92,095/- with interest at 6% per

annum from the date of petition till the date of

realization.

The other order regarding deposit made by the

Tribunal stands unaltered. The respondent No.2 shall

make good of compensation amount enhanced, within

six weeks from the date of the receipt of the certified

copy of order.

Cost made easy.

If respondent No.2 pays the entire amount, it can

recover 30% of liability amount from respondent No.3 by

directly filing Execution Petition as held in the case of

ORIENTAL INSURANCE COMPANY LTD., vs.

NANJAPPA AND OTHERS reported in (2004) 13 SCC

224.

Sd/-

JUDGE

Snc