Zainuddin S/O Saifansab vs Laxman S/O Shankar Metre And Ors
2022 Latest Caselaw 4092 Kant

                             1




          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

     DATED THIS THE 10TH DAY OF MARCH, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


               MFA No.31548/2013 (MV)

Between:

Zainuddin S/o Saifansab,
Age: 59 years, Occ: Fruits Seller,
R/o: H.No.7-2336/07, Mijguri,
Nayamohalla, Gulbarga-585 101.
                                             ... Appellant

(By Sri Babu H.Metagudda, Advocate)

And:

1.     Laxman S/o Shankar Metre,
       Age: 34 years, Occ: Driver of the
       Tum-Tum Goods Vehicle KA-32/A-0672,
       R/o Siddaroodh Colony, Kapnoor,
       Tq. & Dist. Gulbarga-585101.

2.     Mohd. Usman S/o Mohd. Ismail,
       Age: 42 years, Occ: Business & owner of the
       Tum-Tum goods Vehicle KA-32/A-0672,
       R/o H.No.4-569/2
       Sangtrashwadi, Darga road,
       Gulbarga-585 101.
                                2




3.     The Divisional Manager,
       National Insurance Co. Ltd.,
       Bilgundi Complex,
       1st floor Station road,
       Gulbarga-585 101.
                                            ... Respondents

(By Ms.Sangeeta Bhadrashetty, Advocate for R3;
 Notice to R1 & R2 dispensed with v/o
 Dated 03.01.2014)

       This Miscellaneous First Appeal is filed under Section
173(1) of M.V.Act, praying to allow this appeal and modify
the judgment and award dated 03.01.2012 passed in MVC
No.1247/2009 by the II Addl. Senior Civil Judge and MACT
at   Gulbarga. And      enhancing the     compensation    from
Rs.59,025/- with 6% interest to Rs.3,75,000/- with 12%
interest and etc.


       This appeal coming on for hearing, this day, the
Court delivered the following:-

                         JUDGMENT

This appeal is filed under Section 173(1) of the

Motor Vehicles Act, 1988 (hereinafter referred to as

'the Act', for short) by the appellant/claimant

challenging the judgment and award dated

03.01.2012 passed in MVC No. 1247/2009 by the

II Additional Senior Civil Judge, and Motor Accident

Claims Tribunal, Gulbarga.

2. For the sake of convenience, parties are

referred to as per their ranking before the Claims

Tribunal. Appellant is the petitioner and respondents

are the respondents before the Tribunal.

3. Facts giving rise to the filing of the appeal

briefly stated are that on 20.06.2009 at about 7.30

p.m., when the petitioner was standing near his four

wheeler fruits vending car, in front of Basaveshwara

Hospital, Sedam Road, Gulbarga, the driver of the

tum-tum goods vehicle bearing Reg.No.KA-32/A-0672

came from Sedam side in a rash and negligent

manner and dashed against the petitioner and caused

the accident. On account of the said accident, the

petitioner sustained grievous injuries to his left leg.

After the accident, the petitioner was admitted to the

Government Hospital, Gulbarga, wherein he has taken

treatment as inpatient from 22.06.2009 to

01.07.2009. Prior to the accident, the petitioner was

earning Rs.6,000/- per month from vending fruits.

Due to the injuries sustained by him in the accident,

the petitioner has suffered permanent disability and

he is not able to do his work as he used to do earlier.

The respondent No.1 is the driver of the vehicle and

respondent No.2 is the owner and respondent No.3 is

the Insurance company. The respondents are jointly

and severally liable to pay compensation. Hence, the

petitioner has filed the claim petition under Section

166 of the Act seeking for compensation on account of

injuries sustained in the road traffic accident.

3.1. Respondent No.1 did not appear before the

Tribunal inspite of service of notice and was placed

ex-parte.

3.2. Respondent No.3 filed written statement in

which the averments made in the petition were

denied. It was further denied that the accident was

due to the rash and negligent driving of the driver of

the said tum-tum goods vehicle and denied the

injuries sustained by the petitioner and denied the

age, avocation and income of the petitioner. It is

contended that the vehicle has not at all caused any

accident as alleged by the petitioner in the claim

petition. It is contended that the driver was not

holding valid and effective driving licence as on the

date of accident and prayed to dismiss the claim

petition.

4. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded evidence. The petitioner in order to prove

his case, examined himself as P.W.1 and in order to

prove the disability, examined the doctor as P.W.2

and got exhibited documents namely Ex.P1 to Ex.P12.

the Insurance Company examined its officer as RW.1

and got marked documents at Ex.R1 to R3. The

respondent No.3 also examined the RTO as RW.2. The

Tribunal, after recording the evidence of the parties,

by the impugned judgment, has recorded a finding

that the petitioner has proved that on 20.06.2009 at

about 7.30 p.m., in front of Basaveshwar Hospital,

Gulbarga when he was selling fruits in his vehicle, at

that time, a vehicle bearing registration No.KA-

32/A672 came from Sedam side driven by the first

respondent in a high speed, in zig-zag manner rash

and negligently, came in a wrong side and dashed to

the petitioner and the petitioner sustained injuries. It

has also recorded a finding that third respondent has

failed to prove that as on the date of accident the

driver of the offending vehicle did not possess a valid

and effective driving licence as such, the owner of the

vehicle violated the terms of the insurance policy and

recorded that the respondent No.3 failed to prove that

the petitioner has not at all sustained accidental

injuries and consequently held that the petitioner is

entitled for compensation and consequently allowed

the claim petition in part and awarded compensation

of Rs.59,025/- with interest at the rate of 6% per

annum and further held that the respondent Nos.2

and 3 are jointly and severally liable to pay

compensation. The petitioner, being dissatisfied with

the compensation awarded by the Tribunal, has filed

this appeal.

5. The learned counsel for the petitioner

submits that the petitioner has sustained injuries in

the road traffic accident. In order to establish that the

petitioner has suffered permanent disability examined

the doctor as P.W.2. He further submits that P.W.2

has opined that the petitioner has sustained 16%

disability to the whole body whereas the Tribunal has

taken the permanent disability at 5% which is on the

lower side. He submits that the compensation

awarded by the Tribunal is on the lower side. Hence,

on these grounds, he prays to allow the appeal.

6. Per contra, learned counsel for respondent

No.3, Insurance Company supports the impugned

judgment and award passed by the Tribunal. She

further submits that the compensation awarded by the

Tribunal is just and proper. Hence, sought for

dismissal of the appeal.

7. Heard the learned counsel for the parties

and perused the records.

8. The points that arise for consideration is

with regard to quantum of compensation and liability.

9. It is not in dispute that the petitioner met

with an accident on 20.06.2009 and sustained injuries in

the road traffic accident. In order to prove that the

accident has occurred due to rash and negligent driving

of the driver of the offending vehicle, the petitioner has

produced copy of FIR, charge sheet marked as Exs.P1

and P2. Ex.P2 discloses that the accident occurred due

to rash and negligent driving of the driver of the

offending vehicle. The Tribunal was justified in recording

a finding that the accident occurred due to rash and

negligent driving of the driver of the offending vehicle.

10. Insofar as quantum of compensation is

concerned, the petitioner has stated that he was selling

fruits and earning Rs.6,000/- per month from vending

fruits. In order to support his contention, the petitioner

has not produced any evidence with regard to his

income. The Tribunal has taken the notional income at

Rs.4,000/- per month. In the absence of income proof,

the Tribunal ought to have considered the notional

income of the petitioner at Rs.5,000/- per month.

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 2009, the notional income has to be taken at

Rs.5,000/- p.m. The petitioner was aged about 55 years

at the time of the accident and multiplier applicable to

his age group is '11'. The petitioner in order to prove

disability examined the doctor who has deposed that the

petitioner has sustained injuries and suffered disability

at 16.5%. P.W.2 is the treated doctor. The Tribunal has

assessed the permanent disability at 5% which is on the

lower side. This Court considering the evidence of P.W.2,

and also the wound certificate at Ex.P.3 and disability

certificate at Ex.P.10 comes to the conclusion that there

is permanent disability at 10% which is just and proper.

As observed above, the notional income of the petitioner

is taken at Rs.5,000/- and permanent disability at 10%.

Thus, the petitioner is entitled for compensation of

Rs.66,000/- (Rs.5,000/- x 12 x 11 x 10%) on account of

'loss of future income'.

11. Considering the nature of injuries sustained

by the petitioner and also the evidence of P.W.2, this

Court reassess the compensation awarded under the

following heads:

Particulars Compensation Compensation awarded by awarded by the Tribunal this Court Pain shock and Rs.15,000/- Rs.40,000/-

      suffering
      Loss of               Rs.10,000/-      Rs.25,000/-
      amenities of
      life
      Loss of income         Rs.2,000/-      Rs.15,000/-
      during the laid
      up period
      Attendant's            Rs.4,125/-      Rs.10,000/-
      charges, extra
      nourishment
      and
      conveyance
      Medical                Rs.1,500/-       Rs.1,500/-
      expenses
      Loss of future        Rs.26,400/-      Rs.66,000/-
      income
      Total:               Rs.59,025/-    Rs.1,57,500/-





     Thus,     the    petitioner     is    entitled    to    a    total

compensation of Rs.1,57,500/- as against Rs.59,025/-

12. In view of the above discussion, I proceed

to pass the following:

ORDER

The appeal is allowed in part.

The judgment and award passed by the Tribunal in MVC No.1247/2009 dated 03.01.2012, is modified. The petitioner is entitled to an enhanced compensation of Rs.98,475/- along with interest at the rate of 6% p.a. from the date of filing of the claim petition till the date of realization.

             Respondent            No.3,        Insurance
     Company         is   directed    to     deposit        the
     enhanced        compensation         amount       along

with interest, within a period of eight weeks from the date of receipt of copy of this judgment.

The Tribunal is directed to release the enhanced compensation amount in favour of the petitioner.

Sd/-

JUDGE

VNR