Qadeera Begum W/O Moinoddin Patel vs Syed Babar Hussain S/O Syed Issa ...
2022 Latest Caselaw 5074 Kant

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         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 21ST DAY OF MARCH, 2022

                       BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

             MFA No.32345 OF 2013 (MV)
BETWEEN:
QADEERA BEGUM,
W/O MOINODDIN PATEL,
AGED ABOUT 50 YEARS,
OCC: TAILORING AND HOUSEWIFE,
R/O ABDUL FAIZ DARGA, BIDAR.
                                        ... APPELLANT
(BY SRI.SANTOSH BIRADAR, ADVOCATE)
AND:
1.     SYED BABAR HUSSAIN,
       W/O SYED ISSA,
       AGED MAJOR, OCC: BUSINESS,
       R/O NAYA KAMAN, BIDAR-585401.
2.     THE MANAGER,
       ORIENTAL INSURANCE CO., LTD.,
       SHOP NO.3, KAMSHETTY COMPLEX,
       NEAR BUS STAND, BIDAR-585 401.
3.     MOHANLAL,
       S/O LAXMI NARAYAN DAYAMA,
       AGED MAJOR, OCC: BUSINESS,
       R/O H.NO.1-7-33, MAIN ROAD,
       YADGIR-585 202.
4.     THE MANAGER,
       RELIANCE GENERAL INSURANCE CO., LTD.,
       BRANCH ISSUING OFFICE ADDRESS
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     CTR 472-474, VA KALBURGI SQUARE,
     DESAI CROSS, DESHPANDE NAGAR,
     HUBLI.
                                   ... RESPONDENTS

(NOTICE TO R1 & R3 D/W V/O DATED 08.01.2014;
 BY SRI. S.S.ASPALLI, ADVOCATE FOR R2;
    SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R4)


     THIS MISCELLANEOUS FIRST         APPEAL   IS   FILED
UNDER SECTION 173(1) OF THE M.V.ACT PRAYING TO
ALLOW   THE   APPEAL,   AND     MODIFY   THE   IMPUGNED
JUDGMENT AND AWARD DATED 29.06.2013 PASSED BY
THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE & CJM
AND MOTOR ACCIDENT CLAIMS TRIBUNAL, AT BIDAR, IN
MVC NO.05 OF 2011, AND ENHANCE THE COMPENSATION
AS PRAYED FOR.


     THIS APPEAL COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                      JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the petitioner aggrieved

by the judgment and award dated 29.06.2013 passed

in MVC No.5/2011 by the Principal Senior Civil Judge

& CJM and Motor Accident Claims Tribunal, Bidar.

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 16.04.2010, the petitioner

along with her family members proceedings towards

Gulbarga from Bidar, in a Chevrolet Car bearing

registration No.KA-38/4997, on Humnabad to

Gulbarga road, when the petitioner's vehicle reached

Bandukwala Katta within city limits, at that time, one

vehicle bearing registration No.KA-33-M-1733, came

from opposite direction i.e, from Gulbarga side and

both the vehicles driven by its drivers in a high speed,

rash and negligent manner and lost their control over

the vehicles and dashed against each other. As a

result of the aforesaid accident, the petitioner

sustained grievous injuries and was hospitalized and

spent huge money for medical treatment.

4. The petitioner filed a petition under Section

166 of the M.V.Act, seeking compensation on the

account of injuries sustained in the road traffic

accident.

5. The respondents No.1 to 4 appeared before

the Tribunal through their counsels and filed their

written statements.

5.1. Respondent No.1 filed written statement

denying the averments made in the claim petition and

also denied the age, profession, avocation and also

income of the petitioner. Further, contended that the

driver of the 1st respondent vehicle was having valid

and effective driving licence, as on the date of

accident and the vehicle was insured with respondent

No.2 - Insurance Company, as on the date of accident

the insurance policy was in force and prayed to

dismiss the claim petition.

5.2. Respondent No.2 - Insurance Company of

Chevrolet Car bearing registration No.KA-38/4997

filed its written statement denying the averments

made in the claim petition and also denied the age,

avocation, income, medical expenses and manner of

accident. Further, contended that on account of

negligence of both the drivers of the vehicles the

accident occurred. Further, contended that due to

rash and negligent driving of the driver of the vehicle

bearing registration No.KA-33/M-1733, the accident

was caused. Hence, sought for dismissal of the claim

petition.

5.3. Respondent No.3 filed written statement

denying the averments made in the claim petition and

also denied that the driver of the vehicle bearing

registration No.KA-38/M-1733 has driven the vehicle

in a slow and cautious manner, and the said accident

was occurred due to rash and negligent driving of the

driver of the vehicle bearing registration No.KA-38-

4997. Further, contended that the 3rd respondent

vehicle was insured with respondent No.4 - Insurance

Company, as on the date of accident, the insurance

policy was in force. Hence, prayed to dismiss the

claim petition.

5.4. Respondent No.4 - Insurance Company of

vehicle bearing registration No.KA-38/M-1733 filed its

written statement denying the averments made in the

claim petition and also denied the age, avocation,

income, medical expenses and manner of accident.

Further, contended that due to rash and negligent

driving of the driver of Chevrolet Car bearing

registration No.KA-38/4997, the accident was

occurred. Hence, sought for dismissal of the claim

petition.

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

the Claims Tribunal framed the following issues and

additional issues.

1. Whether the petitioner proves that, she had sustained injuries in a motor vehicle accident that was taken place on 16.04.2010 at about 11.30 a.m., near Bandukwala Katta, Gulbarga to Humnabad Road, due to user of car bearing registration No.KA-33/M-1733 being driven by its driver in an actionable negligence?

2. Whether the petitioner is entitled for compensation? If so, from which respondent, to what extent?

3. What order or award?

Additional issue framed on 26.11.2012.

1. Whether the petitioner proves that, she had sustained injuries in the motor vehicle accident that was occurred on 16.04.2010 at 11.30 a.m., near Bandukwala Katta, Gulbarga to Humnabad Road, on

account of the rash and negligent driving of the drivers of both the vehicles bearing registration No.KA- 33/M-1733 and KA-38/4997?

7. The petitioner in order to prove, the claim

petition examined himself as PW-1 and got marked

the documents as Ex.P1 to Ex.P98. On behalf of the

respondents, respondents have not adduced any oral

or documentary evidence. The Tribunal, after

recording the evidence and considering the material

on record, held that the petitioner has proved that

petitioner has sustained injuries in the road traffic

accident, and the accident took place on account of

rash and negligent driving of the drivers of the

offending vehicles. Further, recorded a finding that

the petitioner has suffered disability of 42% to her

limb which corresponds to 19% to whole body.

Further, held that the petitioner is entitled to a

compensation and consequently allowed the claim

petition in part and awarded a compensation of

Rs.1,31,400/- along with interest at the rate of 6%

p.a., and further held that respondents No.2 and 4 are

liable to pay the compensation amount equally to the

petitioner and directed to deposit the entire

compensation amount in terms of this award with

interest at the rate of 6% p.a., from the date of

petition till its realization of amount. Being

dissatisfied with the compensation awarded by the

Tribunal, the petitioner has filed the present appeal

seeking for enhancement of compensation amount.

8. Heard learned counsel for the petitioner

and learned counsel for respondents No.2 to 4.

9. The learned counsel for the petitioner has

contended that petitioner was doing tailoring work

and earning Rs.9,000/- per month. In order to

substantiate, the contention of the petitioner, the

petitioner has not produced any record to prove the

income. In the absence of income of proof, Tribunal

has taken the notional income of the petitioner at

Rs.4,500/- per month, which is on the lower side. He

further submits that, the Tribunal has committed an

error in recording a finding that the petitioner had

suffered permanent disability at 15% to whole body.

He further submits that, the compensation awarded

by the Tribunal under the other heads is on the lower

side. Hence, on these grounds, he prays to allow the

appeal.

10. Per contra, learned counsel for respondents

No.2 and 4 - Insurance Companies supports the

impugned judgment and award passed by the

Tribunal. Further submits that the compensation

awarded by the Tribunal is just and proper and does

not call for any interference. Hence, sought for

dismissal of the appeal.

11. Perused the records and considered the

submissions made by learned counsel for the parties.

12. The point that arise for consideration is with

regard to quantum of compensation.

13. It is not in dispute that, the petitioner met

with an accident and sustained injuries, due to rash

and negligent driving of the offending vehicles by its

drivers. In order to prove that, the accident occurred

due to rash and negligent driving of the drivers of the

offending vehicles, the petitioner has produced copy of

FIR and charge-sheet marked as Ex.P1 and Ex.P3.

Ex.P3 discloses that the accident occurred due to rash

and negligent driving of the drivers of the offending

vehicles.

14. Insofar as quantum of compensation is

concerned, it is the case of the petitioner that the

petitioner was doing tailoring work and earning

Rs.9,000/- per month. In order to substantiate the

contention of petitioner, the petitioner has not

produced any record to prove the income. In the

absence of income of proof, Tribunal has taken the

notional income of the petitioner at Rs.4,500/- per

month, which is on the lower side. The accident is of

the year 2010, as per the guidelines of Karnataka

State Legal Services Authority, the notional income is

to be taken at Rs.5,500/- per month. This Court has

taken the notional income as per the guidelines of

Karnataka State Legal Services Authority, at

Rs.5,500/- per month. In order to prove the disability

the petitioner examined by the Doctor as PW-2 was

opined that petitioner had suffered permanent

disability of 19% to whole body. But, the Tribunal has

taken permanent disability of 15% to the whole body

which is just and proper. The petitioner was aged 48

years as on the date of accident, the multiplier 13 is

applicable to his age group as per Sarla Verma vs.

Delhi Transport Corporation reported in (2009) 6 SCC

121. Taking into consideration, the evidence of PW-2

awarded a compensation under the following heads.

This Court, considering the notional income as per the

guidelines of Karnataka State Legal Services

Authority, and also evidence of PW-2. This Court,

reassessed the compensation under the following

heads.

Compensation awarded in Rs.

Particulars By the Tribunal By this Court Pain and sufferings Rs.10,000/- Rs.25,000/-

Medical Expenses &
                         Rs.16,000/-         Rs.16,000/-
Treatment
Food, nourishment,
conveyance          &     Rs.5,000/-         Rs.10,000/-
attendant charges
Loss    of    income
during the period of
                          Rs.4,000/-         Rs.16,500/-
hospitalization and
rest
Loss of amenities        Rs.10,000/-         Rs.25,000/-
Loss     of    future
                         Rs.86,400/-       Rs.1,28,700/-
earnings
Total                 Rs.1,31,400/-       Rs.2,21,200/-
Enhanced by this Court                     Rs.89,800/-

The petitioner is entitled for total compensation

of Rs.2,21,200/- as against Rs.1,31,400/-. Thus, the

petitioner is entitled for enhanced compensation of

Rs.89,800/-.

15. In view of the above discussion, I proceed

to pass the following:

ORDER

i. The appeal filed by the petitioner is allowed in part.

ii. The judgment and award passed by the Tribunal is modified. The petitioner is entitled to enhanced compensation of Rs.89,800/- with interest at the rate of 6% per annum from the date of petition till the date of realization.

   iii.         The respondents No.2 and 4 - Insurance
                Companies      are        liable   to   pay   the

compensation amount equally to the petitioner.

iv. The respondents No.2 and 4 - Insurance Companies are directed to deposit the entire enhanced compensation amount before the Tribunal within a period of eight weeks from date of the receipt of certified copy of this judgment.

v. Amount in deposit is directed to be transferred to the Tribunal along with TCR.

SD/-

JUDGE

GRD