Karnataka High Court

Noor Ali vs Mohankumar C on 8 December, 2021

Bench: H T Prasad

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 8TH DAY OF DECEMBER 2021

                     BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

           MFA No.2783 OF 2014 C/W
           MFA NO.5091 OF 2014 (MV)


IN MFA No.2783 OF 2014

BETWEEN:

NOOR ALI
S/O KOUSAR ALI
AGED ABOUT 58 YEARS
C/O FIRDOS, R/AT RAIN DROPS
APARTMENTS, ARALUR MAIN
ROAD, BANGALORE
                                     ...APPELLANT
(BY SRI. SHRIPAD V. SHASTRI, ADV.)

AND

1.    MOHANKUMAR C.
      S/O CHIKKAVENKATAPPA
      NO.34, AVALAHALLI VILLAGE
      HUSKUR POST, ANEKAL TALUK
      BANGALORE RURAL DIST.

2.    THE UNITED INDIA INSURANCE CO. LTD.
      NO.21, ST. PATRICK'S BUILDING
      MUSEUM ROAD, BANGALLORE - 25
                         2



    BY ITS MANAGER
                                   ...RESPONDENTS
(BY SRI. JANARDHANA REDDY, ADV. FOR R2;
    VIDE ORDER DATED 30.08.2017
    NOTICE TO R1 DISPENSED WITH)

    THIS MFA IS FILED UNDER SECTION 173(1) OF
M.V.ACT, AGAINST THE JUDGMENT AND AWARD
DATED 21.02.2014 PASSED IN MVC NO.1035/2018
ON THE FILE OF THE JUDGE, & XXVI ACMM, COURT
OF SMALL   CAUSES, MACT, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.


IN MFA NO. 5091 OF 2014
BETWEEN:

UNITED INDIA INSURANCE CO. LTD.,
BRANCH OFFICE
BANGALORE - 560 025

THROUGH ITS REGIONAL
OFFICE NO.18, 5TH & 6TH FLOOR
HUDSON CIRCLE
BANGALORE - 560 001
REP. BY ITS MANAGER
                                     ...APPELLANT
(BY SRI. JANARDHAN REDDY, ADV)
                         3




AND

1.    SRI.NOOR ALI
      AGED ABOUT 56 YEARS
      S/O SRI. KOUSAR ALI
      C/O FIRDOS
      R/AT RAIN DROPS APARTMENT
      ARALUR MAIN ROAD
      BANGALORE

2.    SRI. MOHAN KUMAR C.
      S/O CHIKKAVENKATAPPA
      MAJOR IN AGE, NO.34
      AVALAHALLI VILLAGE
      HUSKUR POST
      ANEKAL TALUK
      BANGALORE RURAL
                                  ...RESPONDENTS

(BY SRI.SHRIPAD V. SHASTRI, ADV. FOR R1;
    VIDE ORDER DATED 8.12.2021
    NOTICE TO R2 DISPENSED WITH)


      THIS MFA IS FILED UNDER SECTION 173(1) OF
THE MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 21.02.2014 PASSED IN MVC NO.1035/2008
ON THE FILE OF THE JUDGE, COURT OF SMALL
CAUSES,    &   XXVI   ACMM   MACT,   BANGALORE,
AWARDING COMPENSATION OF RS.3,54,000/0- WITH
                            4



INTEREST @ 6% P.A., FROM THE DATE OF PETITION
TILL PAYMENT.


     THESE APPEALS COMING ON FOR ORDERS, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                     JUDGMENT

MFA 2783/2014 is filed by the claimant and MFA

5091/2014 is filed by the Insurance Company under

Section 173(1) of the Motor Vehicles Act, 1988

(hereinafter referred to as 'the Act', for short) being

aggrieved by the judgment dated 21.2.2014 passed

by the Motor Accident Claims Tribunal, Bangalore in

MVC 1035/2008.

2. Facts giving rise to the filing of the appeals

briefly stated are that on 21.1.2008, the claimant was

proceeding as a pedestrian towards Sarjapura Main

Road, at that time, water tanker bearing registration

No.KA-22-A-9898 being driven by its driver at a high

speed and in a rash and negligent manner, dashed to

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 seeking compensation. It was pleaded

that he spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent driving of the offending vehicle by

its driver.

4. On service of notice, the respondent No.2

appeared through counsel and filed written statement

in which the averments made in the petition were

denied. The respondent No.1 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.S.Rajanna and

Dr.Sreedhara.K.C. were examined as PWs-2 and 3 and

got exhibited documents namely Ex.P1 to Ex.P16. On

behalf of the respondents, two witnesses were

examined as RWs-1 and 2 and got exhibited

documents namely Ex.R1 to Ex.R5. 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 Rs.354,000/- 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, these appeals have

been filed.

6. The learned counsel for the claimant has

raised the following contentions:

Firstly, even though the claimant claims that he

was doing coolie work and earning Rs.4,500/- per

month, but the Tribunal has taken the notional income

as merely as Rs.3,000/- per month.

Secondly, due to the accident, the claimant has

sustained fracture of left ankle joint, fracture of right

tibia and fibula and left foot and ankle amputation of

the left lower limb. He is not in a position to

discharge his regular work. PW-2, the doctor has

stated in his evidence that the claimant has suffered

disability of 70% to right lower limb, disability of 50%

of lower limb and disability of 60% to whole body.

There is functional disability of 100% and claimant is

entitled for future prospects. But the Tribunal has

erred in taking the whole body disability at only 40%.

In support of his contention, he has relied upon the

decision of the Apex Court in the case of ERUDHAYA

PRIYA vs. STATE EXPRESS TRANSPORT

CORPORATION LTD. 2020' SCC Online SC 601

and in the case of 'PAPPU DEO YADAV vs. NARESH

KUMAR AND OTHERS' AIR 2020 SC 4424.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 48 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

other heads are on the lower side.

Fourthly, in respect of liability is concerned, the

driver of the offending vehicle was having driving

licence to drive LMV (Non-transport) and he was

driving the transport vehicle. However, in view of the

decision of the Apex Court in the case of MUKUND

DEWANGAN vs. ORIENTAL INSURANCE

COMPANY LIMITED reported in (2017) 14 SCC

663, a person holding driving licence to drive LMV

(Non-Transport) can also drive transport vehicle, the

unladen weight of which does not exceed 7500 kgs.

Hence, the Insurance Company is liable to pay

compensation to the claimant. Therefore, the Tribunal

has rightly fastened the liability on the Insurance

Company. Hence, he sought for allowing the appeal

filed by the claimant.

7. On the other hand, the learned counsel for

the Insurance Company has raised following counter

contentions:

Firstly, even though the claimant claims that he

was earning Rs.4,500/- per month, he has not

produced any documents to establish his income.

Therefore, the Tribunal has rightly assessed the

income of the claimant notionally.

Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered disability of

70% to right lower limb, disability of 50% of lower

limb and disability of 60% to whole body. Even

though the claimant claims that there is functional

disability of 100%, PW-2 in his cross examination has

admitted that amputation of ankle will not come in the

way of claimant doing his regular work. The Tribunal

considering the injuries sustained by the claimant, has

rightly assessed the whole body disability at 40%.

Thirdly, considering the oral and documentary

evidence and considering the age and avocation of the

claimant, overall compensation awarded by the

Tribunal is on the higher side.

Fourthly, as on the date of accident the driver of

the offending vehicle was having driving licence to

drive LMV (Non-transport), but he was driving the

transport vehicle. Since the insured has violated the

policy conditions, the Insurance Company is not liable

to pay compensation. The Tribunal is not justified in

fastening the liability on the Insurance Company

Hence, he sought for allowing the appeal filed by the

Insurance Company.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

due to rash and negligent driving of the offending

vehicle by its driver.

The claimant claims that he was aged about 50

years at the time of the accident and he was earning

Rs.4,500/- per month. But he has not produced any

documents to prove his income. In the absence of

proof of income, the Tribunal considering the age and

avocation of the claimant has rightly assessed the

income at Rs.4,500/- p.m. Even as per the guidelines

issued by the Karnataka State Legal Services

Authority, for the accident taken place in the year

2008, the notional income has to be taken at

Rs.4,500/- p.m.

As per wound certificate, the claimant has

sustained fracture of left ankle joint, fracture of right

tibia and fibula and left food and ankle amputation of

the left lower limb. PW-2, the doctor has stated in his

evidence that the claimant was admitted to the

hospital and his right leg below knee was amputed on

21.1.2008 and his left leg ankle was amputed on

24.1.2008 and the claimant has suffered disability of

70% to right lower limb, disability of 50% of lower

limb and disability of 60% to whole body. Since the

claimant was a coolie by avocation, due to the

amputation, he is unable to do his regular work and

hence there is functional disability of 100%. Since

there is functional disability, in view of the law laid

down by the Hon'ble Apex Court in the case of

ERUDAYA PRIYA (supra) and PAPPU DEO YADAV

(supra), the claimant is entitled for future prospects.

In view of the law laid down by the Hon'ble Apex

Court in the case of 'NATIONAL INSURANCE CO. LTD.

-v- PRANAY SETHI AND OTHERS' AIR 2017 SC 5157,

addition of 10% of the income of the claimant towards

future prospects has to be considered. Hence, the

monthly income of the claimant is assessed at

Rs.4,950/- (Rs.4500+10%). The claimant is aged

about 50 years at the time of the accident and

multiplier applicable to his age group is '13'. Thus, the

claimant is entitled for compensation of Rs.7,72,200/-

(Rs.4,950*12*13) on account of 'loss of future

income'.

In view of awarding compensation under the

head of 'loss of future income' by taking 100%

functional disability, the claimant is not entitled for

any compensation under the head of 'loss of income

during laid-up period'.

Considering the nature of injuries, the

compensation awarded by the Tribunal under other

heads is just and reasonable.

10. 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 50,000 50,000 Medical expenses 49,429 49,429 Food, nourishment, 30,000 30,000 conveyance and attendant charges

laid up period

Loss of amenities 25,000 25,000 Loss of future income 187,200 772,200 Total 353,629 926,629

11. In respect of liability is concerned, as on

the date of the accident, the driver of the offending

vehicle was having driving licence to drive LMV (Non-

transport), but he was driving the transport vehicle.

As per the decision of the Apex Court in the case of

MUKUND DEWANGAN (supra), a person holding

driving licence to drive LMV (Non-Transport) can also

drive transport vehicle, the unladen weight of which

does not exceed 7500 kgs. The unladen weight of the

vehicle involved in the accident is less than 7500 kgs.