Mr.Mohammed Althaf vs Mr.Abdul Salam
2021 Latest Caselaw 254 Kant

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 6TH DAY OF JANUARY 2021

                     BEFORE

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

            MFA No.6122 OF 2013(MV)

BETWEEN:

MR. MOHAMMED ALTHAF
S/O LATE GM AZIZ
AGED ABOUT 36 YEARS
R/AT SAJIPANADU HOUSE
SAJIPANADU POST & VILLAGE
BANTWAL TALUK
PRESENTLY R/AT ADHIL MANZIL
6TH CROSS, SHIVABHAG
MANGALORE TALUK-575002.
                                     ... APPELLANT

(BY SRI. GURUPRASAD B.R., ADV. )

AND

1.    MR. ABDUL SALAM
      S/O SULAIMAN
      AGED ABOUT 41 YEARS
      R/AT BASTIGUDDE, SAJIPA PETE
      SAJIPANADU POST & VILLAGE
      BANTWAL TALUK-574231.

2.    UNITED INDIA INSURANCE CO. LTD.,
      BRANCH OFFICE: VARANSHI TOWERS
                            2



     MISSION STREET, BUNDER
     MANGALORE-575001
     REPRESENTED BY ITS MANAGER.
                              ... RESPONDENTS

(BY SRI. Y.P.VENKATAPATHY, ADV. FOR R2:
R1 SERVED & UNREPRESENTED)

    THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 09.11.2012 PASSED IN MVC NO.1405/2011
ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL
JUDGE, MEMBER, MACT, MANGALORE, D.K., PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSTION
AND SEEKING ENHANCEMENT OF COMPENSATION.

    THIS MFA COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                      JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the claimant being

aggrieved by the judgment dated 09.11.2012 passed

by the Motor Accident Claims Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 29.05.2011, the claimant

was proceeding on motorcycle bearing registration

No.KA-19/EA-743 along with his friend Mr. Abdul

Salam as a pillion rider from his house. When they

reached near K.S.Hegde Hospital, Deralakatte,

Mangalore at about 8 a.m., rider of the said

motorcycle drove the same at a high speed, and in a

rash and negligent manner and lost control over the

same and skidded and fell on the road. 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 aged about

34 years and was working as an Office Supervisor in

Delta Info Logistics at Mangalore and was earning

Rs.8,000/- per month. It was pleaded that he also

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 rider.

4. On service of notice, the respondents

appeared through their counsel and filed separate

written statement in which the averments made in the

petition were denied. The age, avocation, income,

manner in which the accident took place as alleged in

the petition and injuries sustained by the claimant are

denied. It was pleaded by respondent No.1 that the

accident was not due to the rash and negligent riding

of the vehicle by its rider. It was further pleaded that

the policy was in force as on the date of accident.

Hence, he sought for dismissal of the petition.

It was pleaded by the respondent No.2 that the

petition itself is false, frivolous, vexatious and

unsustainable at law and on facts. The age, avocation,

income, manner in which the accident took place as

alleged in the petition, injuries sustained by the

claimant and treatment taken by him and expenses

incurred thereon are denied. It was further pleaded

that the compensation claimed by the claimant is

highly exorbitant, arbitrary, baseless. It was further

pleaded that the accident was not due to any rash and

negligent riding of the offending vehicle by its rider

and it was due to negligent act of the claimant

himself. It was further pleaded that the issuance of

policy is subject to terms and conditions of the policy.

It was further pleaded that the rider of the offending

vehicle was not holding valid and effective driving

licence as on the date of accident. It was further

pleaded that the interest claimed by the claimant is

excessive. Hence, he sought for dismissal of the

petition.

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.Adyanthaya as PW-2 and

got exhibited 14 documents namely Ex.P1 to Ex.P14.

On behalf of the respondents, they have not examined

any witness but got exhibited insurance policy as

Ex.R1. 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 rider, as a result of which, the

claimant sustained injuries. The Tribunal further held

that the claimant is entitled to a compensation of

Rs.1,31,460/- 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 claimant has

raised the following contentions.

Firstly, at the time of accident the claimant was

working as an Officer Supervisor in Delta Info Logistics

at Mangalore and was earning Rs.8,000/- per month.

The Tribunal is not justified in taking monthly income

of the claimant as Rs.6,000/-.

Secondly, the claimant has suffered two grievous

injuries and he has examined the doctor, who has

assessed disability of 10%. The claimant has suffered

lot of pain during the treatment and he has to suffer

with the disability throughout his life.

Thirdly, the compensation awarded by the

Tribunal under the head of 'pain and sufferings' is on

the lower side. The Tribunal has not granted any

compensation under the head of 'loss of amenities'.

Hence, he sought for allowing the appeal.

7. On the other hand, the learned counsel for

the Insurance Company has raised the following

contentions.

Firstly, even though the claimant was earning

Rs.9,500/- per month, and produced salary slip, but

he has not examined the employer of the said

document to establish the same.

Secondly, the injuries suffered by the claimant

are minor in nature. Therefore, the compensation

awarded by the Tribunal under the head of 'pain &

sufferings' is just and reasonable.

Thirdly, the compensation awarded by the

Tribunal under other heads are also just and

reasonable. Hence, he sought for dismissal of the

appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that the claimant has

suffered injuries in a road traffic accident occurred due

to rash and negligent driving of motorcycle bearing

Reg.No.KA-19/EA-743 by its rider. Even though the

claimant was working as an Office Supervisor in Delta

Info Logistics at Mangalore and was earning

Rs.9,500/- per month, and has produced salary

certificate, but he has not examined the employer of

the said document to establish the same. Under this

circumstance, to assess the notional income, as per

the circular issued by the Karnataka State Legal

Services Authority, for the accident of the year 2011,

the income should be taken notionally as Rs.6,500/-

per month. Accordingly, monthly income of the

claimant is considered as Rs.6,500/-. The Tribunal

has rightly assessed whole body disability of 3%. At

the time of accident, the claimant was aged about 34

years, multiplier applicable to the said age group is

16. Accordingly, loss of future earnings is calculated

as follows:

Rs.6,500 x 12 x 16 x 3/100 = 37,440/-.

Since the income of the claimant is enhanced to

Rs.6,500/- per month, the claimant is entitled for

compensation of Rs.19,500/- (Rs.6,500*3 months)

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

The claimant has suffered the above said

injuries. He has taken treatment as inpatient for a

period of 9 days. He has examined the doctor as

PW.2. In his testimony, he has deposed that the

claimant has suffered disability of 10%. The claimant

has suffered lot of pain during the treatment and he

has to suffer with the disability throughout his life.

Therefore, considering the evidence of the doctor and

wound certificate-Ex.P6, I am inclined to enhance the

sum awarded by the Tribunal under the head of 'pain

and sufferings' from Rs.25,000/- to Rs.45,000/-. The

claimant is also entitled for compensation of

Rs.20,000/- under the head of 'loss of amenities'.

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 25,000 45,000 Medical expenses & 50,300 50,300 future medical expenses Food, nourishment and 2,600 2,600 attendant charges Loss of income during 18,000 19,500 laid up period Loss of amenities - 20,000 Loss of future income 34,560 37,440 due to disability Conveyance charges 1,000 1,000 Total 1,31,460 1,75,840

The claimant is entitled to a total compensation

of Rs.1,75,840/-.

The Insurance Company is directed to deposit

the compensation amount along with interest at 6%.

p.a. from the date of petition till the date of

realization, within a period of four weeks from the

date of receipt of copy of this judgment.

To the aforesaid extent, the judgment of the

Claims Tribunal is modified.

Accordingly, the appeal is allowed in part.

Sd/-

JUDGE

Mkm/-