Syed Shoib U/G Of Syed Dastagir vs Nizam Khan S/O Yasin Khan And Ors
2022 Latest Caselaw 5523 Kant

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         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.200607/2014 (MV)
                       C/w
     MFA NO.200606/2014, MFA NO.200608/2014


IN MFA NO.200607/2014

BETWEEN:

SYED SHOIB U/G OF SYED DASTAGIR,
S/O SYED YASIN,
AGE: 45 YEARS, OCC: BUSINESS,
R/O H.NO.10/3/133/38,
ABDUL FAIZ DARGA @ FAIZAPUR,
TQ. & DIST. BIDAR
                                      ... APPELLANT

(BY SRI. LIYAQAT FAREED USTAD, ADVOCATE)
AND:
1.     NIZAM KHAN S/O YASIN KHAN,
       AGE: 53 YEARS, OCC: DRIVER,
       R/O H.NO.11-2-277/3 HABEEB NAGAR,
       NEAR NEKKI MAJID,
       HYDRABAD-500013, AP.

2.     M/S NAGARNIPANDUSHA
       REP. BY SHRI. KRISHNA 15-8-350/3,
       BEGUM BAZAR, HYDRABAD-500 013 AP.
                         2




3.   THE ORIENTAL INSURANCE CO. LTD.,
     DO 1 HYDRABAD PO BOX 11,302,
     III FLOOR OASIS PLAZA,
     TILAK ROAD, ABID, HYDRABAD
     THROUGH ITS
     DIVISIONAL MANAGER ORIENTAL
     INSURANCE CO. LTD.,
     STATION BAZAR ROAD,
     GULBARGA-585 104.
                                  ... RESPONDENTS
(NOTICE TO R1 SERVED;
 V/O DTD. 31.01.2018
 NOTICE TO R2 IS DISPENSED WITH;
 BY SRI. SUDARSHAN M, ADVOCATE FOR R3)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE M.V. ACT AGAINST THE
JUDGMENT AND AWARD DATED 17.01.2014 PASSED IN
MVC.NO.106/2011 ON THE FILE ADDL. SENIOR CIVIL
JUDGE AND MACT II AT BIDAR, PARTLY ALLOWING THE
CLAIM PETITION AND AWARDING COMPENSATION OF
Rs.34,800/- WITH INTEREST AT 6% P.A.


IN MFA NO.200606/2014

BETWEEN:

ASHMA BEGUM W/O SYED WAHEED @
WAHEED PASHA,
AGE: 28 YEARS, OCC: TAILOR,
R/O H.NO.10/3/133/38,
ABDUL FAIZ DARGA @ FAIZAPUR,
TQ. & DIST. BIDAR
                                    ... APPELLANT

(BY SRI. LIYAQAT FAREED USTAD, ADVOCATE)
                           3




AND:
1.     NIZAM KHAN S/O YASIN KHAN,
       AGE: 53 YEARS, OCC: DRIVER,
       R/O H.NO.11-2-277/3 HABEEB NAGAR,
       NEAR NEKKI MAJID,
       HYDRABAD-500013, A.P.

2.     M/S NAGARNIPANDUSHA
       REP. BY SHRI. KRISHNA 15-8-350/3,
       BEGUM BAZAR, HYDRABAD-500 013, A.P.

3.     THE ORIENTAL INSURANCE CO. LTD.,
       DO 1 HYDRABAD PO BOX 11,302,
       III FLOOR OASIS PLAZA,
       TILAK ROAD, ABID, HYDRABAD
       THROUGH ITS DIVISIONAL MANAGER
       ORIENTAL INSURANCE CO. LTD.,
       STATION BAZAR ROAD,
       GULBARGA-585 104.
                                    ... RESPONDENTS

(NOTICE TO R1 & R2 IS HELD SUFFICIENT;
 BY SRI. SUDARSHAN M, ADVOCATE FOR R3)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE M.V. ACT AGAINST THE
JUDGMENT AND AWARD DATED 17.01.2014 PASSED IN
MVC.NO.108/2011 ON THE FILE ADDL. SENIOR CIVIL
JUDGE AND MACT II AT BIDAR, PARTLY ALLOWING THE
CLAIM PETITION AND SEEKING ENHANCEMENT OF
COMPENSATION.

IN MFA NO.200608/2014

BETWEEN:

SYED WAHEED @ WAHEED PASHA
S/O SYED MAQBOOL SAB,
                           4




AGE: 38 YEARS, OCC: BUSINESS,
R/O H.NO.10/3/133/38,
ABDUL FAIZ DARGA @ FAIZAPUR,
TQ. & DIST. BIDAR.
                                      ... APPELLANT

(BY SRI. LIYAQAT FAREED USTAD, ADVOCATE)
AND:
1.     NIZAM KHAN S/O YASIN KHAN,
       AGE: 53 YEARS, OCC: DRIVER,
       R/O H.NO.11-2-277/3 HABEEB NAGAR,
       NEAR NEKKI MAJID,
       HYDRABAD-500013, A.P.

2.     M/S NAGARNIPANDUSHA
       REP. BY SHRI. KRISHNA 15-8-350/3,
       BEGUM BAZAR, HYDRABAD-500 013, A.P.

3.     THE ORIENTAL INSURANCE CO. LTD.,
       DO 1 HYDRABAD PO BOX 11,302,
       III FLOOR OASIS PLAZA,
       TILAK ROAD, ABID, HYDRABAD
       THROUGH ITS DIVISIONAL MANAGER,
       ORIENTAL INSURANCE CO. LTD.,
       STATION BAZAR ROAD,
       GULBARGA-585 104.
                                    ... RESPONDENTS
(NOTICE TO R1 SERVED;
 V/O DTD. 02.04.2018 NOTICE TO R2 IS
 DISPENSED WITH;
 BY SRI. SUDARSHAN M, ADVOCATE FOR R3)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE M.V. ACT PRAYING TO
MODIFY THE JUDGMENT AND AWARD DATED 17.01.2014
PASSED BY THE COURT OF ADDL. SENIOR CIVIL JUDGE &
ADDL. MACT-II AT BIDAR PARTLY ALLOWING THE CLAIM
                              5




PETITION   AND         SEEKING      ENHANCEMENT         OF
COMPENSATION.

     THESE APPEALS COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-


                       JUDGMENT

All these appeals are filed by the petitioners under

Section 173(1) of the Motor Vehicles Act (for short 'the

Act') aggrieved by the judgment and award dated

17.01.2014 passed by the Court of the Additional Senior

Civil Judge and CJM, and Additional Motor Accident

Claims Tribunal, Bidar (for short hereinafter referred to

as 'the Tribunal') in MVC Nos.106,2011, 107/2011 and

108/2011.

2. For the sake of convenience, parties are

referred to as per their ranking before the Claims

Tribunal. Appellants are the petitioners and

respondents are the respondents before the Tribunal.

3. Facts giving rise to filing of this appeals are

as under:

On 05.04.2011 when the petitioners along with

other relatives went to attend a function of the family

members in a car bearing Reg.No.AP-09/A-2502, while

the said car was proceeding on Hyderabad High way

near West Manipally of Medak District, the driver of the

said car driven the same in a rash and negligent manner

and dashed to a bridge located by the side of the road,

due to which, the vehicle fell down and the petitioners

sustained injuries and spent huge amount for medical

treatment. Hence, the petitioners filed claim petitions

under Section 166 of the Act seeking compensation on

account of the injuries sustained in the road traffic

accident.

4. Respondent No.1 - driver of the offending

vehicle has filed the common written statement denying

the averments made in the claim petition. He further

denied that the driver was possessing the valid and

effective driving license as on the date of the accident

and denied the age, occupation, income and injuries

sustained by the petitioners. It is contended that the

petitioners are not entitled for the compensation and

prayed to dismiss the appeal.

5. Respondent No.2 - Insurance Company has

filed the common written statement and denied the

contents of the claim petition and also denied the

existence of the policy of the insurer. It has further

contended that the petitioners were travelling in a

private car as passengers. Therefore, the owner of the

vehicle has violated the terms and conditions of the

policy, if any and prayed to dismiss the petitions.

6. The Tribunal on the basis of the pleadings of

the parties framed the following issues:

In MVC.No.106/2011

i. Whether the petitioner proves that the accident occurred due to rash and negligent driving of Car bearing its

Reg.No.AP 09/A 2502 on Hyderabad High way by its driver?

ii. Whether petitioner proves that he suffered injuries in the accident? iii. Whether petitioner is entitled to the compensation? If so, how much and from whom?

iv. Whether R-3 proves that policy is act policy and does not cover the inmates of Car due to violation of policy conditions and does not liable to pay compensation?

v.         What order or Award?


      In MVC.No.108/2011

i. Whether the petitioner proves that she had gone to Hyderabad by Car bearing No.AP 09/A 2502 belonging to the colleagues. At 8.30 pm, on Hyderabad high way the driver drove the car in high speed in rash and negligent

manner dashed to the bridge thereby claimant has suffered grievous injuries?

ii. Whether petitioner proves that she was earning Rs.6,000/- per month from tailoring?

iii. Whether petitioner is entitled to the compensation? If so, how much and from whom?

iv. Whether the respondent No.3 proves that policy is act policy and does not cover occupants and due to violation of policy conditions, the Insurance Company is not liable to pay compensation?

vi.    What order or Award?


In MVC.No.107/2011


i.     Whether the claimant proves that he

had gone to Hyderabad by Car bearing No.AP 09/A 2502 belonging to the colleagues. At 8.30 pm, on Hyderabad high way the driver drove the car in

high speed in rash and negligent manner dashed to the bridge thereby claimant has suffered grievous injuries?

v. Whether the claimant proves that she was earning Rs.20,000/- per month from cloth business?

vi. Whether the claimant is entitled to the compensation? If so, how much and from whom?

vii. Whether the respondent No.3 proves that the policy is act policy and does not cover occupants and due to violation of policy conditions, the Insurance Company is not liable to pay compensation?

     vi.    What order or Award?



     7.     The    petitioners      examined        themselves       as

PW.1 and got marked the documents as Exs.P-1 to P-8

in MVC.No.106/2011, Exs.P-1 to P-14 in

MVC.No.108/2011 and Exs.P-1 to P-17 in

MVC.No.107/2011. The official of the respondent was

examined as RW.1 and got marked the insurance copy

as Ex.R-1.

8. The Tribunal, after recording the evidence

and considering the material on record held that the

petitioners are entitled for the compensation and

awarded compensation of Rs.34,800/- in

MVC.No.106/2011, Rs.87,400/- in MVC.No.107/2011

and Rs.54,200/- in MVC.No.108/2011 along with

interest at the rate of 6% per annum from the date of

petition till the date of deposit. Further, respondent

Nos.1 and 2 are jointly and severally liable to pay the

compensation and accordingly, dismissed the appeal

against respondent No.3.

9. The petitioners being dissatisfied with the

compensation awarded by the Tribunal, the petitioners

have filed these appeals seeking for enhancement of the

compensation.

10. Heard the learned counsel for the petitioners

and also the learned counsel for respondent No.3.

11. The learned counsel for the petitioners

submits that the compensation awarded by the Tribunal

is on the lower side. Hence, he seeks for enhancement

of the compensation. Hence, on these grounds, he

prayed to allow the appeals.

12. Per contra, the learned counsel for the

respondents submits that though the vehicle was

insured with the respondent as per Ex.R-1, it is an Act

policy. The petitioners were travelling in a private car

and the policy is not covered. Thus, there is violation of

the policy conditions. The petitioners were travelling as

a passengers. The policy was not covered for a private

car and there is violation of policy condition. Hence, he

submits that the Tribunal was justified in fastening the

liability on respondent Nos.1 and 2. Hence, on these

grounds, he prayed to dismiss the appeals.

13. Heard and perused the records and

considered the submissions made by the learned counsel

for the parties. The point that arises for consideration is

with regard to quantum of compensation.

14. It is not in dispute that the petitioners met

with an accident. In order to prove that the accident

was occurred due to rash and negligent driving by the

driver of the offending vehicle. The petitioners have

produced the copy of the charge sheet marked as Ex.P2.

Ex.P2 discloses that the accident was occurred due to

rash and negligent driving by the driver of the offending

vehicle. In order to prove the disability of the

petitioners, they have produced the disability certificate

marked as Ex.P7 in MVC.No.106/2011 and Ex.P17 in

MVC.No.107/2011 and Ex.P14 in MVC.No.108/2011. In

order to prove the contents of the disability certificate,

the petitioners have not examined the doctor who has

issued the disability certificate. Mere marking of all the

documents does not dispense its proof. The Tribunal was

justified in recording the finding that the petitioners

have not suffered the permanent disability. However,

the Tribunal has awarded the compensation. Considering

the nature of injuries suffered by the petitioners and the

disability certificate issued by the Doctor, the petitioners

have not suffered any permanent disability. Thus, the

petitioners are entitled for the global compensation of

Rs.70,000/- in MFA.No.200607/2014, Rs.80,000/- in

MFA.No.200606/2014 and Rs.1,00,000/- in

MFA.No.200608/2014.

15. In view of the above discussion, I proceed to

pass the following:

ORDER

i. The appeals are allowed in part.

ii. The impugned judgment and award passed by the Tribunal is modified. The petitioners are entitled for global compensation of Rs.70,000/- in MFA.No.200607/2014, Rs.80,000/- in MFA.No.200606/2014 and Rs.1,00,000/- in MFA.No.200608/2014 along with interest at the rate of 6% per annum from the date of petitions till the date of realization.

iii. Respondent Nos.1 and 2 are jointly and severally liable to pay the enhanced compensation amount.

iv. Respondent Nos.1 and 2 are directed to deposit the enhanced compensation amount within a period of eight weeks from date of the receipt of certified copy of this judgment.

Sd/-

JUDGE ssb