Mohammed Shabbir @ Shabbir Ahmed ... vs Tabassum Kousar W/O.Shabuddin ...
2022 Latest Caselaw 11157 Kant

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                                           MFA No. 21251 of 2013


      IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

            DATED THIS THE 27TH DAY OF JULY, 2022

                            BEFORE
             THE HON'BLE MR JUSTICE H.P.SANDESH
     MISCELLANEOUS FIRST APPEAL NO. 21251 OF 2013 (MV-)
BETWEEN:

1.    MOHAMMED SHABBIR @ SHABBIR AHMED
      S/O ABDUL SATTAR BAROODWALE,
      AGE: 49 YEARS, OCC: DRIVER,R/O: GOUSIYA TOWN, OLD
      HUBLI, HUBLI, DIST: DHARWAD



                                                     ...APPELLANT

(BY SRI.RAGHAVENDRA A PUROHIT., ADVOCATE FOR SRI.DINESH M
KULKARNI, ADV.,)

AND:

1.    TABASSUM KOUSAR W/O.SHABUDDIN KHAZI
      AGE: MAJOR, OCC: OWNER OF GOODS TRUCK
      BEARING NO.KA-26/9989,R/O: ASAR MOHALLA, OLD
      HUBLI,HUBLI, DIST: DHARWAD

2.    NATIONAL INSURANCE CO.LTD., BY ITS
      DIVISIONAL MANAGER, 1ST FLOOR
      SUJATHA SHOPPING COMPLEX,
      P.B.ROAD, OPP: GLASS HOUSE
      HUBLI, HUBLI, DIST: DHARWAD

                                                  ...RESPONDENT'S

(BY SRI.S.V.YAJI.,ADVOCATE FOR R1;

        NOTICE TO R1 IS HELD SUFFICIENT)

        THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED:31-10-2012
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                                       MFA No. 21251 of 2013


PASSED IN MVC NO.172/2009 ON THE FILE OF THE II-ADDL. SENIOR
CIVIL JUDGE AND MEMBER, ADDL. MACT, HUBLI, PARTLY ALLOWING
THE   CLAIM    PETITION   FOR    COMPENSATION   AND   SEEKING
ENHANCEMENT OF COMPENSATION.

      THIS APPEAL COMING ON FOR ADMISSION THIS DAY. THE
COURT DELIVERED THE FOLLOWING.

                          JUDGMENT

Though this matter is listed for admission, with the

consent of learned counsel for the parties, the matter is taken

up for final disposal.

2. The factual matrix of the case of the claimant is

that on 28/2/2009, claimant met with an accident and

sustained grievous injury and immediately he was taken to

KIMS hospital, wherein in he has taken treatment as inpatient.

Before the accident, he was hale and healthy and working as a

driver and earning Rs.5,000/- p.m. Due to the accidental

injuries, he has sustained permanently disabled and unable to

do work.

3. In support of his claim, claimant was examined

three witnesses as PWs-1 to 3 and got marked documents

Exs.P.1 to 18. On the other hand, the respondents got

examined three witnesses as RWs-1 and 2 and got marked two

MFA No. 21251 of 2013

documents and the same were marked as Exs.R.1 and 2. The

Tribunal after consideration of both oral and documentary

evidence granted compensation of Rs.1,29,800/- with interest

at the rate of 6% p.a. and exonerated the liability of

respondent No.2 and fastened the liability on respondent Nos.1

and 3, who are owner and driver respectively. Being aggrieved

by the said judgment and award, the present appeal is filed by

the injured claimant.

4. Learned counsel appearing for the appellant would

submit that claimant has sustained disability of 30% towards

left and Tribunal has erred in only taking the disability at 12%

and ignored the evidence of PW.2. He further contended that

Tribunal has awarded meager compensation on the head of

pain and suffering, loss of amenities, medical expenses and

hence, he sought for allowing the appeal.

5. Per contra, learned counsel appearing for

respondent No.1 sought to justify the impugned judgment and

award passed by the Tribunal. He further contended that

Tribunal has rightly fastened the liability on the respondent

MFA No. 21251 of 2013

Nos. 1 and 3 as fitness certificate was not valid as on the date

of the accident and hence, he sought to dismiss the appeal.

6. Having heard the respective counsel and perusing

the material on record, the point that arise for consideration of

this Court are:

i) Whether the Tribunal has committed an error in not

awarding just and reasonable compensation?

ii) Whether Tribunal has committed an error in

exonerating liability on the insurance company?

iii) What order?

7. Answer to point Nos.1 and 3: It is not in dispute

that due to the accident occurred on 28/2/2009, the claimant

has suffered injuries to his left foot i.e crush injury. Claimant

was admitted as an inpatient for a period of 47 days i.e from

28/2/2009 to 15/4/2009 and during the course of treatment

debridment of left foot was conducted and four toes of claimant

have been amputed and hence, it is just and proper to award

compensation of Rs.50,000/- under the head of pain and

suffering. Tribunal awarded just and proper compensation of

MFA No. 21251 of 2013

Rs.15,000/- under the head of medical expenses based on

medical bills which remains unaltered. Prior to the accident, the

claimant was working as a driver and hence, having taken note

of photographs-Ex.P.10, which discloses that claimant's left foot

was amputed, it is just and proper to consider 20% disability

considering the evidence of PW.2-Doctor, who assessed the

disability and the same has not been considered while

considering the diability. The Tribunal has assessed the

monthly income of the claimant at Rs.3,000/-. However,

having regard to the fact the accident occurred in the year

2009, the monthly income of the claimant is assessed at

Rs.6,000/- since he is skilled driver and taking disability at

20%, the claimant is entitled for compensation of Rs.2,16,000/-

(6,000X12x15x20%) under the head loss of future earning

capacity. As the claimant was admitted as an inpatient for a

period of 47 days, the claimant is entitled for enhancement of

compensation of Rs.30,000/- under the head of conveyance,

attendant charges and food and nourishment and also the

claimant is entitle for compensation of Rs.30,000/- under the

head of laid up period for a period of 5 months. The claimant is

entitled for enhancement of compensation of Rs.40,000/- under

MFA No. 21251 of 2013

the head of loss of amenities since he has to lead his rest of the

life with disability of 20%. Thus, in all claimant is entitled for

compensation of Rs.3,81,000/-.

8. Answer to point No.2: Insofar as exonerating

liability of the insurance company is concerned, the Tribunal

while considering the material on record has come to the

conclusion that there is no fitness certificate as on the date of

the accident and Tribunal has failed to take note of the fact that

the same is not fundamental breach merely on the basis of not

producing the fitness certificate, the court cannot absolve

liability of the insurance company. Learned counsel for the

respondent No.1 relied upon the judgment of this court in the

case of Chetan Kumar L.M. V/s. Oriental Insurance

Company Limited reported in 2021 ACJ 1907, wherein this

court has ordered to pay and recover the same from owner.

Admittedly, in the case on hand, as on the date of issuance of

the policy, fitness certificate was not valid and the accident was

taken place on 28/2/2009 fitness certificate was expired on

25/10/2008 itself and hence, the insurance company cannot

contend that insurance company is not liable to pay

compensation and the company did not verify the fitness

MFA No. 21251 of 2013

certificate at the time of issuance of policy. The judgment relied

by the counsel is not applicable to the case on hand and hence,

question of pay and recovery does not arise.

9. In view of the above, I pass the following:

ORDER

i) The Appeal is allowed in part.

ii) The judgment and award dated 31/10/2012 passed

in MVC No.172/2009 by the II Addl. Senior Civil Judge and

MACT, Hubballi, is modified.

iii) Claimant is entitled for compensation of

Rs.3,81,000/- with interest at 6% p.a. from the date of petition

till realization against Rs.1,29,800/-.

iv) The insurance company is directed to pay

compensation within six weeks from the date of receipt of

certified copy of this order.

Sd/-

JUDGE

VB