Mahammad Muthahir Ur Rehman vs Sri. Mohammad Hussain
2022 Latest Caselaw 10208 Kant

                       1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 4TH DAY OF JULY 2022

                    BEFORE

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

          MFA No.3217 OF 2019(MV)

BETWEEN

MAHAMMAD MUTHAHIR UR REHMAN
@ MAHAMMED VASSEM
@ MUUTHAHIR UR REHAMAN
S/O M.D.ALLEM ULLA
AGED ABOUT 21 YEARS
R/AT BEEDI COLONY
CHAMARAJANAGARA PATANA
C/O RAMAIAH, BELAGOLA
SRIRANGAPATANA TALUK
MANDYA DISTRICT PIN:571405.
                                      ...APPELLANT

(BY SRI. SANATH KUMARA K M., ADV.)

AND

1 . SRI. MOHAMMAD HUSSAIN
    S/O ABDUL BASEER, MAJOR
    R/AT NO.25, 4TH STAGE, GALIPURA
    CHAMARAJANAGARA PIN 571303.

2 . THE DIVISIONAL MANAGER
    UNITED INDIA INSURANCE CO. LTD.,
    SRI VENKATESHWARA PLAZA
                                  2




     NO.2912, 1ST STAGE
     SARASWATHIPURAM
     MYSORE PIN -570009
                                           ...RESPONDENTS

(BY SRI.JANARDHAN REDDY, ADV. FOR R2:
NOTICE TO R1 IS D/W V/O DATED: 04.07.2022)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
15/09/2018, PASSED IN MVC NO.1241/2016, ON THE
FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND
MEMBER,     MACT,    SRIRANGAPATANA,    PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

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


                          JUDGMENT

This appeal under Section 173(1) of Motor

Vehicles Act, 1988 (hereinafter referred to as 'the

Act') has been filed by the claimant being aggrieved

by the judgment dated 15.9.2018 passed by MACT,

Srirangapatna in MVC 1241/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 16.8.2016 when the

claimant was riding motorcycle near Ramanna's work

shop, Chamarajanagara Town, at that time, another

motorcycle bearing registration No.KA-10-S-8919

being ridden by its rider at a high speed and in a rash

and negligent manner, 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 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 riding of the offending vehicle by

its rider.

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. It was pleaded that the petition itself is false

and frivolous in the eye of law. It was further pleaded

that the accident was due to the rash and negligent

riding of the vehicle by the claimant himself. The

claimant as well as the rider of the offending vehicle

did not have valid riding 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.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.Vasan and

Dr.Girishchandra.R were examined through court

commissioner as CW-1 and CW-2 and got exhibited

documents namely Ex.P1 to Ex.P220 and Ex.C-1 to

C-6. On behalf of the respondents, one witness was

examined as RW-1 and got exhibited documents

namely Ex.R1 . The Claims Tribunal, by the impugned

judgment, inter alia, held that the accident took place

on account of contributory negligence The Tribunal

further held that the claimant is entitled to a total

compensation of Rs.12,11,000/- along with interest at

the rate of 9% p.a. and directed the Insurance

Company to deposit 80% of the said compensation

amount (i.e., Rs.9,69,000/-) along with interest.

Being aggrieved, the present appeal has been filed.

6. The learned counsel for the claimant has

raised the following contentions:

Negligence:

The accident occurred due to sold negligence of

the rider of the offending motorcycle bearing No.KA-

10-S-8919. The Tribunal has given a clear finding that

the rider of the offending vehicle is negligent in

causing the accident. Only because the claimant has

failed to produce his driving licence has held that

claimant has contributed to the accident to the extent

of 20%. The said finding of the Tribunal is contrary to

the materials available on record. The rider of the

offending vehicle alone is negligent in causing the

accident. In support of his contention, he has relied

upon the decision of Hon'ble Supreme Court in the

case of Dinesh Kumar J -v- National Insurance

Company Limited reported in (2018) 1 SCC 750.

Quantum of compensation:

Firstly, even though the claimant claims that he

was doing motor winding worker and earning

Rs.15,000/- per month, but the Tribunal has taken the

notional income as merely as Rs.7,000/- per month.

Secondly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 30 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 awarded by the Tribunal under the

heads of 'loss of amenities', 'pain and sufferings' and

other incidental expenses are on the lower side.

Hence, he sought for allowing the appeal.

7. On the other hand, the learned counsel for

the Insurance Company has raised following counter

contentions:

Negligence:

It is not in dispute that as on the date of

accident, the claimant was not having valid and

effective driving licence. He has failed to produce the

same. Therefore, the Tribunal has rightly held that

claimant has contributed to the accident to the extent

of 20%.

Quantum of compensation

Firstly, even though the claimant claims that he

was earning Rs.15,000/- per month, he has not

produced any documents to establish his income.

Therefore, the Tribunal has rightly assessed the

income of the claimant notionally.

Secondly, considering the injuries sustained by

the claimant and considering the age and avocation of

the claimant, the overall compensation awarded by

the Tribunal is just and reasonable and it does not call

for interference.

Thirdly, the interest awarded by the Tribunal at

9% p.a. on the compensation amount is on the higher

side. Hence, he sought for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award of the Tribunal.

Re: Negligence

9. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

on 16.8.2016 due to rash and negligent riding of the

offending motorcycle bearing No.KA-10-S-8919 by its

rider. The Tribunal after considering the materials

available on record has rightly held that the rider of

the offending motorcycle alone was negligent in

causing the accident. But only on the ground that the

claimant was not having valid driving licence as on the

date of accident has held that the claimant has

contributed to the accident to the extent of 20%.

However, the Apex Court in the case of Dinesh Kumar

(supra), has held that if one drives a vehicle without a

licence, he commits an offence but by itself, the same

may not lead to a finding of negligence as regards

accident. Therefore, the finding of the Tribunal that

the claimant has contributed to the accident to the

extent of 20% is unsustainable. Hence, the said

finding of the Tribunal is set aside.

Re: Quantum of compensation:

10. The claimant claims that he was earning

Rs.15,000/- per month. He has not produced any

documents to prove his income. Therefore, in the

absence of proof of income, notional income has to be

assessed. As per the guidelines issued by the

Karnataka State Legal Services Authority, for the

accident taken place in the year 2016, the notional

income has to be taken at Rs.9,500/- p.m.

As per wound certificate, the claimant has

sustained fracture of both bones of left leg. Therefore,

taking into consideration the deposition of the doctor

and injuries mentioned in the wound certificate, the

Tribunal has rightly taken the whole body disability at

45%. The claimant is aged about 18 years at the time

of the accident and multiplier applicable to his

age group is '18'. Thus, the claimant is

entitled for compensation of Rs.923,400/-

(Rs.9,500*12*18*45%) on account of 'loss of future

income'.

Considering the nature of injuries, the

compensation awarded by the Tribunal under all 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 80,000 80,000 Medical expenses 346,000 346,000 Food, nourishment, 30,000 30,000 conveyance and attendant charges Loss of income during 35,000 35,000 laid up period

Loss of amenities 30,000 30,000 Loss of future income 680,000 923,400 Future medical expenses 10,000 10,000 Total 12,11,000 14,54,400

12. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is modified.

The claimant is entitled to a total compensation

of Rs.14,54,400/-.

The Insurance Company is directed to deposit

the entire compensation amount along with interest @

9% p.a. (enhanced amount shall carry interest at 6%

p.a.) from the date of filing of the claim petition till

the date of realization, within a period of six weeks

from the date of receipt of copy of this judgment.

Sd/-

JUDGE

DM