Karnataka High Court
Smt.Kausar Begum W/O Moinuddin ... vs Maqbool Patel S/O Modin Patel And ... on 1 June, 2022
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
MFA No.201581/2014 (MV)
BETWEEN:
Smt. Kausar Begum
W/o Moinuddin Patel,
Age: 35 years,
Occ: Labour & House-hold,
R/o Azadpur Road, Gulbarga.
... Appellant
(By Sri. Sharanabasappa K. Babshetty, Advocate)
AND:
1. Maqbool Patel S/o Modin Patel,
Age: 62 years, Occ: Owner of Jeep,
R/o H.No.58, Chincholi (A),
Tq: Chincholi, Dist: Gulbarga.
2. Oriental Insurance Company Ltd.,
N.G. Complex, 1st Floor,
Opp: Mini Vidhana Soudha, Gulbarga.
Through it's Divisional Manager.
... Respondents
(Sri. B.M.Kinikeri & Sri. Sanjeev Patil, Advocates for R1;
Sri. R.V.Nadagouda, Advocate for R2)
2
This MFA is filed under Section 173(1) of the Motor
Vehicles Act, praying to allow the appeal and modify the
judgment and award dated 17.07.2014 passed by the
III Addl. Senior Civil Judge & MACT, Gulbarga, in MVC
No.554/202 and enhance the compensation amount as
claimed by the appellant and fix the liability on the 2 nd
respondent insurance company.
This appeal coming on for Final Hearing this day, the
Court delivered the following:
JUDGMENT
This appeal is filed by the claimant under Section
173(1) of the Motor Vehicles Act, challenging the judgment
and award dated 17.07.2014 passed in MVC No.554/2012
by the III Addl. Senior Civil Judge and MACT, Gulbarga
(hereinafter referred to as 'the Tribunal' for short), seeking
enhancement of compensation.
2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them
before the Tribunal.
3. The brief factual matrix leading to the case are
that, on 09.10.2011 at about 1.15 a.m. on Humnabad ring
road, Gulbarga, the claimant and her relatives were
travelling in a jeep bearing Reg. No.KA-32/M-7234 from
Azadpur to MSK Mill area for attending the marriage of her
relative. The said vehicle was being driven by its driver in
a rash and negligent manner and dashed to Innova Car
bearing Reg. No.KA-51/M-999. Due to the said accident,
the claimant, who was the inmate of the jeep suffered
grievous injuries and she was immediately shifted to
Kamareddy's Hospital at Gulbaga, wherein she was an
inpatient from 09.10.2011 to 05.12.2011 and she spent
Rs.2,00,000/- towards medical expenses. It is asserted
that the claimant was doing labour work and earning
Rs.6,000/- per month, but due to accidental injuries, she is
permanently disabled. Hence, she filed a claim petition
under Section 166 of the M.V. Act, claiming compensation
of Rs.12,00,000/- from the respondents.
4. In pursuance of the notice, respondents have
appeared, but respondent No.1 did not contest the
petition, while respondent No.2-insurance company filed
objection statement denying the allegations and assertions
made thereunder. It is contended by respondent No.2 that
the vehicle was covered under the Act policy and no extra
premium was paid towards the inmates of the vehicle and
as such, the claimant being the gratuitous passenger is not
entitled for compensation from respondent No.2-insurer
and hence sought for rejection of the claim petition as
against the insurer.
5. The Tribunal, after appreciating the oral and
documentary evidence has awarded total compensation of
Rs.3,15,086/- with interest at the rate of 6% p.a. from the
date of petition till its realisation by fastening the liability
on respondent No.1 alone.
6. Being aggrieved by this finding, the claimant
has filed this appeal, seeking enhancement of
compensation and also challenging the fastening of liability
on respondent No.1 alone contending that the insurer is
also equally liable to pay the compensation.
7. Heard the arguments advanced by the learned
counsel for the appellant and the learned counsel for
respondent No.2-insurer. Perused the records.
8. The learned counsel for the appellant/claimant
would contend that the Tribunal has erred in taking the
monthly income at Rs.4,500/- as against Rs.6,000/- per
month and hence, he would contend that the
compensation awarded by the Tribunal is on the lower
side. He would also contend that the liability ought to
have been fastened on respondent No.2-insurer.
9. Per contra, learned counsel for respondent
No.2-insurer would contend that the policy was Act policy
and no premium was paid towards inmates/passengers
travelling in the vehicle and hence, the question of
respondent No.2 indemnifying the claimant does not arise
at all, as there is breach of policy conditions. Hence, he
would seek for dismissal of the appeal as against
respondent No.2.
10. Having heard the arguments and perusing the
records, it is evident that the Tribunal after discussing the
oral and documentary evidence has come to a conclusion
that the accident is because of actionable negligence on
the part of the driver of the Mahindra Jeep bearing Reg.
No.KA-32/M-7234. This finding of the Tribunal is not at all
challenged.
11. The Tribunal has taken the income of the
claimant at Rs.4,500/- per month, which is on the lower
side. Admittedly, the accident has occurred in the year
2011 and this Court is consistently taking the notional
income at the rate of Rs.6,000/- per month. Hence, it is
just and proper to consider the income of the claimant at
Rs.6,000/- per month. The Tribunal has considered the
disability at 9% by appreciating the oral and documentary
evidence, which does not call for any interference.
Considering the age of the claimant, the Tribunal has
applied the multiplier of 16, which is also proper. Hence,
the total loss of future income works out to Rs.1,03,680/-
(Rs.6,000 x 12 x 16 x 9%).
12. Further, the Tribunal has awarded
compensation of Rs.35,000/- towards pain and suffering
and Rs.10,000/- towards loss of amenities, unhappiness
and enjoyment in life. The compensation awarded under
these two heads does not call for any interference.
13. Under medical expenses and incidental
charges, the Tribunal has awarded Rs.1,50,326/- based on
medical records and it also does not call for any
interference.
14. The Tribunal has also awarded compensation
of Rs.28,500/- towards attendant charges, food,
nourishment and conveyance expenses and it also does
not call for any interference.
15. Towards loss of income during laid up period,
the Tribunal has awarded Rs.13,500/- by taking the
monthly income at the rate of Rs.4,500/-, but when the
notional income is taken as Rs.6,000/- per month, it ought
to have Rs.18,000/-. Hence, the claimant is entitled for a
sum of Rs.18,000/- towards loss of income during laid up
period.
16. Thus, the claimant is entitled for total
compensation under various heads as under:
Sl. Heads Amount
No.
1. Pain and suffering Rs.35,000/-
2. Loss of amenities, Rs.10,000/-
unhappiness and
enjoyment of life
3. Loss of future income Rs.1,03,680/-
4. Medical expenses & Rs.1,50,326/-
incidental charges
5. Loss of income during laid Rs.18,000/-
up period
6. Attendant charges, food, Rs.28,500/-
nourishment & conveyance
Total Rs.3,45,506/-
Hence, the claimant is entitled for total
compensation of Rs.3,45,506/- along with interest at the
rate of 6% p.a. as against Rs.3,15,086/- awarded by the
Tribunal.
17. The appellant/claimant has contended that
respondent No.2 being the insurer is liable to pay the
compensation. But, the insurance policy produced at Ex.R2
disclose that no risk of the passengers is covered, as it is
an Act policy. The inmate of the passenger vehicle is not a
third party and under such circumstances, the question of
respondent No.2 being the insurer indemnifying the
claimant does not arise at all and it is only the owner of
the vehicle who is liable to pay the compensation.
18. As such, looking to the facts and
circumstances, the appeal needs to be allowed in part.
Accordingly, I proceed to pass the following:
ORDER
i. The appeal is allowed in part as against
respondent No.1.
ii. The appellant/claimant is held entitled for total
compensation of Rs.3,45,506/- as against
Rs.3,15,086/- awarded by the Tribunal.
iii. The enhanced compensation of Rs.30,420/-
(Rs.3,45,506/- less Rs.3,15,086/-) shall carry
interest at the rate of 6% p.a. from the date of
petition till its realisation.
iv. The liability is fastened on respondent No.1
alone being the owner of the Mahindra Jeep.
v. Respondent No.1-owner is directed to deposit
the entire compensation amount with accrued
interest thereon within six weeks from the date
of this order.
vi. The appeal as against respondent No.2-insurer
stands dismissed.
Sd/-
JUDGE
LG
