The New India Assurance Co Ltd vs Sri Syed Khader Pasha @ Abdulla
2021 Latest Caselaw 475 Kant

                        1



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.
                         2



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
                              3



     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

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,

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

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

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.

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

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

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.

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

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'.

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.

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.

Accordingly, the appeals are disposed of.

The amount in deposit is ordered to be

transferred to the Tribunal.

Sd/-

JUDGE

DM