Karnataka High Court
Rajani Mallappa Byamagond vs Shabbir Ahmed And Anr on 28 March, 2022
Bench: Ashok S. Kinagi
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
MFA No.200653/2018 (MV)
C/W
MFA NO.200874/2018
In MFA No.200653/2018
Between:
Rajani Mallappa Nyamagond,
Age: 55 years, Occ: Working as an
Attender, R/o: Freedom Fighter Colony,
Toravi Road, Vijayapura-586 101.
... Appellant
(By Sri.Sanganabasava B.Patil, Advocate)
And:
1. Shabbir Ahmed S/o Ladlesab Kothal,
Age: 44 years, Occ: Business,
R/o: Mahal Bagayat, Darga,
Vijayapur-586 101.
2. The Branch Manager,
National Insurance Co. Ltd.,
1st Floor, Heralagi Building,
Behind Siddeshwar Temple,
Vijayapur-586 101.
... Respondents
(Notice to R1 served;
By Sri. Sudarshan M, Advocate for R2)
2
This Miscellaneous First Appeal is filed under Section
173(1) of the M.V. Act, praying to set aside the judgment
and award passed by the court of the II Additional Senior
Civil Judge and MACT-VII, Vijayapur, in MVC No.1646/2014
dated 03.01.2018 by modifying the impugned order and be
pleased to allow the claim petition.
In MFA No.200874/2018
Between:
The Branch Manager,
National Insurance Co. Ltd.,
1st Floor, Heralagi Building,
Behind Siddeshwar Temple,
Vijayapura.
Presently represented by its
Divisional Manager,
National Insurance Co. Ltd.,
Bilgundi Complex,
Opp: Mini Vidhana Soudha,
Gulbarga-585 102.
Through it's authorized signatory.
... Appellant
(By Sri.Sudarshan M, Advocate)
And:
1. Rajani Mallappa Nyamgond,
Aged about 55 years,
Occ: Working as Attender,
R/o Freedom Fighter Colony,
Toravi Road, vijayapur,
Taluk & Dist: Vijayapura-586 103.
2. Shabbir Ahmed S/o Ladlesab Kothal,
Aged about 44 years, Occ: Business,
R/o Mahal Bagayat Darga, vijayapura,
Taluk & Dist: Vijayapura-586 103.
... Respondents
(Notice to R2 dispensed with
By Sri. Sanganabasava B.Patil, Advocate for R1)
3
This Miscellaneous First Appeal is filed under Section
173(1) of the M.V. Act, praying to call for records in MVC
No.1646/2014 on the file of the II Additional Senior Civil
Judge & MACT-VII at Vijayapura. Set aside the judgment
and award dated 03.01.2018 passed in MVC No.1646/2014
by the II Additional Senior Civil Judge & MACT-VII at
Vijayapura, and etc.,
These appeals coming on for orders, this day, the
Court delivered the following:-
JUDGMENT
Since these two appeals arise out of the
judgment and award, they are heard together and
disposed of by this common judgment.
2. These appeals are filed under Section
173(1) of the Motor Vehicles Act (for short 'the Act')
challenging the judgment and award dated
03.01.2018 passed in MVC No.1646 of 2014 by the II
Addl. Senior Civil Judge & Motor Accident Claims
Tribunal-VII, Vijayapura, (for short hereinafter
referred to as 'the Tribunal').
3. Parties are referred to as per their ranking
before the Tribunal. Appellant in MFA
No.200653/2018 is petitioner, respondents are
respondents before the tribunal.
4. Facts giving rise to filing of these appeals
are as under:
4.1. That on 29.04.2014 at about 07.45 a.m.,
near Umadi Super Market Solapur Road, Vijayapur
when petitioner was driving the Honda Activa
Motorcycle bearing registration No.KA-28/X-1738
going towards BLDE Hospital, and it was driven in
slow and cautious manner. When the motorcycle was
near Umadi's Super Market, at that time, a Piaggio
Autorickshaw bearing registration No.KA-28/9642,
came from opposite direction in high speed and in a
rash and negligent manner, the driver being unable to
control it, came on wrong side and dashed to the said
motorcycle, resulting the accident. Petitioner has
sustained injuries in the said accident and spent huge
amount for medical treatment. The petitioner father
filed the petition under Section 166 of the Act seeking
compensation. It was pleaded that prior to the
accident, the petitioner was doing agriculture work
and having irrigated land getting income of Rs.7,500/-
per month. Due to the accidental injuries he sustained
fractural injuries and unable to do any kind of work as
earlier to the accident and he become permanently
disabled and disfiguration. Hence, he is entitled for
compensation from the respondents who are owner
and insurer respectively of the said motorcycle are
liable jointly and severally.
4.2. The respondent No.1 remained exparte and
respondent No.2 filed written statement in which the
averments made in the petition were denied. It is
denied that the alleged accident has taken place due
to the rash and negligent driving of the driver of the
Auto rickshaw bearing registration No.KA-28/9642 and
denied the age, occupation and monthly income of the
petitioner. It is contended that the petitioner has
contributed for the cause of accident and the rider of
the motorcycle was not holding valid and effective
driving licence at the time of accident. Hence, sought
for dismissal of the petition.
4.3. On the basis of the pleadings of the parties,
the Tribunal framed the issues and thereafter
recorded the evidence. In order to prove the case,
the petitioner examined as PW-1 and examined the
doctor as PW.2 and got exhibited documents namely
Ex.P1 to Ex.P14. On behalf of the respondent, one
witness is examined as RW-1 and got marked the
documents as Ex.R1 and Ex.R2. The Tribunal, by the
impugned judgment, inter alia, allowed the claim
petition in part by awarding compensation of
Rs.65,700/- with interest at the rate of 9% p.a. from
the date of petition till realization of entire
compensation and further held that respondent Nos.1
and 2 are jointly and severally liable to pay
compensation and further held that petitioner has
contributed for the cause of accident and saddled
liability to an extent of 50% on the petitioner and
50% jointly on respondent Nos.1 and 2. Being
dissatisfied with the compensation awarded by the
Tribunal, the petitioner filed MFA No.200653/2018
seeking for enhancement of compensation and
respondent-Insurance Company has filed MFA
No.200874/2018 challenging the liability.
5. Heard the learned counsel for petitioner
and learned counsel for respondent-Insurance
Company.
6. Learned counsel for the petitioner submits
that respondent No.1 has not led any evidence to
establish that the petitioner has contributed for the
cause of accident. Further, the charge sheet is filed
against the driver of the offending vehicle and no
charge sheet is filed against rider of the motorcycle.
He further submits that the tribunal without
considering the said aspect has saddled the liability on
the petitioner to an extent of 50%, which is contrary
to the records. He further submits that the petitioner
has suffered permanent disability and the tribunal has
awarded lesser compensation. Hence, prayed to allow
the appeal filed by the petitioner and prays to dismiss
the appeal filed by the respondent-Insurance
Company.
7. Per contra, learned counsel for respondent
No.2-Insurance Company submits that the tribunal
was justified in saddling the liability to an extent of
50% on the petitioner. He further submits that the
compensation awarded by the Tribunal is on the
higher side. He further submits that the tribunal has
awarded interest @ 9% which is on the higher side.
Hence, on these grounds prays to dismiss the appeal
filed by the petitioner and prays to allow the appeal
filed by the Insurance Company.
8. Perused the records and considered the
submissions made by the learned counsel for the
parties.
9. The point that arise for consideration is
with regard to liability and quantum of compensation.
10. It is not in dispute that the petitioner met
with an accident and sustained injuries. In order to
prove the negligence on the part of the driver of the
offending vehicle, the petitioner has produced copy of
charge sheet which is marked as Ex.P6. Ex.P6,
discloses that the accident was occurred due to rash
and negligent driving of the drier of the offending
vehicle.
11. Insofar as quantum of liability is concerned,
it is the case of the respondent No.2 that petitioner
has contributed for the cause of accident. In order to
substantiate the same, respondent No.2 examined its
officer as RW.1 and got marked documents as Exs.R1
and R2. RW.1 has stated in the evidence that the
petitioner has contributed for the cause of accident
and further contended that the rider of the motorcycle
was not possessing valid and effective driving licence
as on the date of the accident.
12. From perusal of the charge sheet, which
discloses that the accident was occurred due to rash
and negligent driving of the driver of the offending
vehicle. The tribunal without considering the said
aspect has recorded a finding that rider of the
motorcycle was not holding valid and effective driving
licence and held that the petitioner has contributed for
the cause of accident. The tribunal has committed an
error in recording a finding that the petitioner has
contributed for cause of accident. The finding recorded
by the tribunal with regard to the liability is contrary
to the records and the said finding is liable to be set
aside. Considering the evidence produced by the
petitioner, because of the negligence on the part of
the driver of the offending vehicle, the accident has
occurred.
13. Insofar as quantum of compensation is
concerned, it is the case of the petitioner that
petitioner was doing agriculture work and earning
Rs.7,500/- per month. In order to substantiate the
claim of the petitioner, the petitioner has not
produced any records to establish the income. In the
absence of income proof, the tribunal has taken the
notional income at Rs.4,500/- per month which is on
the lower side. In the absence of any evidence or
proof of income, 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 2014, the
notional income has to be taken at Rs.7,500/- p.m. as
per chart.
14. The petitioner has examined the doctor as
PW.2, who has deposed that the petitioner has
suffered functional disability of 10% and on examining
the petitioner, he has issued disability certificate and
opined that the petitioner has suffered permanent
disability of 25-30% with regard to left lower limb and
20-25% with regard to left upper limb. As per the
doctors manual, the tribunal has taken the disability
at 10%. Hence, the tribunal was justified in recording
a finding that the petitioner has suffered permanent
disability of 10%, which is just and proper.
15. As on the date of the accident, the
petitioner was aged 51 years, as per the decision of
Hon'ble Apex Court in the case of SARLA VERMA
(SMT) & OTHERS VS. DELHI TRANSPORT
CORPORATION & ANOTHER, reported in (2009) 6
SCC 121, the multiplier applied to the age group of
the petitioner is 11. The compensation under the head
loss of future income on account of permanent
physical disability works to Rs.7,500 x 12 x 11 x 10%
= Rs.99,000/- as against Rs.59,400/- awarded by the
tribunal.
16. Considering the documents produced by
the petitioner, this Court re-assessed the
compensation as under;
Sl.No. Heads By Tribunal By this Court
1. Pain & sufferings Rs.30,000/- Rs.50,000/-
2. Medical expenses Rs.23,000/- Rs.40,000/-
incurred and future
medical expenses,
attendant, conveyance,
nourishing food and
other incidental
charges
3. Loss of income during Rs.9,000/- Rs.22,500/-
laid up period
4. Loss of future income Rs.59,400/- Rs.99,000/-
on account of
permanent disability
5. Loss of amenities, life Rs.10,000/- Rs.25,000/-
comforts and
expectancy of life
Total Rs.1,31,400/- Rs.2,36,500/-
17. Hence, the petitioner is entitled for
enhanced compensation of Rs.1,05,100/-. The tribunal
has awarded interest @ 9% p.a. on the compensation
amount. The same is on the higher side, it is
appropriate to award interest at 6% p.a. on the
compensation amount.
18. In view of the above discussion, I proceed
to pass the following:
ORDER
(a) The appeal filed by the petitioner in MFA
No.200653/2018 and appeal in MFA
No.200874/2018 filed by respondent
No.2-Insurance Company are allowed in
part insofar as interest portion is
concerned
(b) The impugned judgment and award
passed by the Tribunal is modified. The
petitioner are entitled for the total
compensation of Rs.2,36,500/- with
interest @ 6% p.a. from the date of
petition till realization of amount.
(c) The petitioner is entitled to the enhanced
compensation of Rs.1,05,000/- along with
interest at the rate of 6% per annum from
the date of petition till the date of
realization.
(d) The respondent Nos.1 and 2 are jointly
and severally liable to pay compensation
amount within a period of eight weeks
from date of the receipt of certified copy
of this judgment.
The amount in deposit be transmitted to the
tribunal.
Sd/-
JUDGE
msr
