Karnataka High Court

Nelufar @ Neelopar Banu vs The Manager on 25 May, 2022

Bench: H T Prasad

                        1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 25TH DAY OF MAY 2022

                      BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

          MFA No.8463 OF 2018(MV)
                   C/W
          MFA No.8464 OF 2018(MV)

IN MFA No.8463 OF 2018
BETWEEN

NELUFAR @ NEELOPAR BANU
W/O FAROOQ PASHA
@ MOHAMMED FAROOQ PASHA @ PAROK PASHA,
R/AT NO.5, 8TH B MAIN,
NEW GURUPPANPALYA,
BTM 1ST STAGE,
BANGALORE-29
                                   ...APPELLANT
(BY SRI SHRIPAD V SHASTRI, ADVOCATE)

AND

1 . THE MANAGER
    THE NEW INDIA INSURANCE CO.LTD.,
    NO.22B, UNITY BUILDING ANNEXE,
    MISSION ROAD, LALBAGH ROAD,
    BENGALURU-27

2 . MR ARUNAVA ROY
    S/O NISITH ROY,
                         2




      NO.1410, 2ND FLOOR, 25TH A MAIN,
      HSR LAYOUT, SECTOR-2
      BANGALORE-560102
                                   ...RESPONDENTS
(BY SRI A.R.LAKSHMI NARAYANA, ADVOCATE FOR R1;
NOTICE TO R2 IS SERVED BUT UNREPRESENTED)

     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED
18/01/2018, PASSED IN MVC NO.750/2017, ON THE
FILE OF THE XXI ADDITIONAL SMALL CAUSES JUDGE
& XIX ACMM., MEMBER, MACT, BENGALURU (SCCH-
23), PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION

MFA No.8464 OF 2018(MV)

BETWEEN

SHEEBA FAROOQ @ SHEEBA
D/O FAROOQ PASHA @
MOHAMMED FAROOQ PASHA
AGED ABOUT 20 YEARS
R/AT NO 5, 8TH B MAIN
NEW GURUPPANPALYA,
BTM I STAGE
BANGALORE - 29
                                   ...APPELLANT
(BY SRI SHRIPAD V SHASTRI, ADVOCATE)

AND

1 . THE MANAGER
    THE NEW INDIA INSURANCE CO.LTD.,
                          3




    NO.22B, UNITY BUILDING ANNEXE,
    MISSION ROAD, LALBAGH ROAD,
    BENGALURU-27

2 . MR. ARUNAVA ROY
    S/O NISITH ROY,
    NO.1410, 2ND FLOOR, 25TH A MAIN,
    HSR LAYOUT, SECTOR-2
    BANGALORE-560102
                                  ...RESPONDENTS
(BY SRI A.R.LAKSHMI NARAYANA, ADVOCATE FOR R1;
NOTICE TO R2 IS SERVED BUT UNREPRESENTED)

     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST   THE   JUDGMENT     AND   AWARD    DATED
18/01/2018, PASSED IN MVC NO.750/2017, ON THE
FILE OF THE XXI ADDITIONAL SMALL CAUSES JUDGE
& XIX ACMM., MEMBER, MACT, BENGALURU (SCCH-
23), PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION


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

                    JUDGMENT

These appeals under Section 173(1) of Motor

Vehicles Act, 1988 (hereinafter referred to as 'the

Act') have been filed by the claimants being aggrieved

by the judgment and decree dated 18.1.2018 passed

by MACT, Bengaluru in MVC Nos.750/2017 and

751/2017 respectively.

2. Facts giving rise to the filing of the appeals

briefly stated are that on 8.10.2016, the claimants

were proceeding on motorcycle bearing registration

No.KA-51-V-4547 on 5th Main, Guruppanapalya

Bannerghatta Main Road, Bangalore, at that time,

another motorcycle bearing registration No.KA-01-HL-

0686 being ridden by its rider at a high speed and in a

rash and negligent manner, dashed to the vehicle of

the claimants. As a result of the aforesaid accident,

the claimants sustained grievous injuries and were

hospitalized.

3. The claimants filed separate petitions under

Section 166 of the Act seeking compensation. It was

pleaded that they spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent driving of the offending vehicle by

its rider.

4. On service of notice, the respondent No.1

appeared through counsel and filed written statement

in which the averments made in the petition were

denied. It was pleaded that the petitions itself are

false and frivolous in the eye of law. The rider of the

motorcycle bearing No.KA-51-V-4547 did not have

valid driving licence as on the date of the accident and

was riding with two pillion riders. The age, avocation

and income of the claimants and the medical expenses

are denied. It was further pleaded that the quantum

of compensation claimed by the claimants is

exorbitant. Hence, he sought for dismissal of the

petitions.

The respondent No.2 did not appear before the

Tribunal inspite of service of notice and was placed

ex-parte.

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

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants themselves

were examined as PWs-1 and 2 and Dr.Krishna Prasad

was examined as PW-3 and got exhibited documents

namely Ex.P1 to Ex.P22. On behalf of the

respondents, two witnesses were examined as RWs-1

and 2 and got exhibited documents namely Ex.R1 to

Ex.R3. The Claims Tribunal, by the impugned

judgment, inter alia, held that the accident took place

on account of rash and negligent riding of the

offending vehicle by its rider, as a result of which, the

claimants sustained injuries. The Tribunal further held

that the claimant in MVC 750/2017 is entitled to a

compensation of Rs.102,317/- and claimant in MVC

751/2017 is entitled for compensation of Rs.12,000/-

along with interest at the rate of 6% p.a. and directed

the owner of the offending vehicle to deposit the

compensation amount along with interest. Being

aggrieved, these appeals have been filed.

6. The learned counsel for the claimants has

raised the following contentions:

Regarding liability: The Tribunal is not justified in

fastening the liability on the owner of the offending

vehicle on the ground that the rider of the offending

vehicle was not having valid licence as on the date of

accident. Even if the driver of the offending vehicle

was not possessing valid driving licence as on the date

of accident, in view of the law laid down by the

Hon'ble Supreme Court in the case of PAPPU AND

ORS. V. VINOD KUMAR LAMBA AND ANR. [AIR 2018

SC 592] and in view of Full Bench decision of this

Court in the case of 'NEW INDIA ASSURANCE CO.

LTD. BIJAPUR vs. YALLAVVA AND ANOTHER' ILR 2020

Kar.2239, since the offending vehicle was covered

with valid insurance policy and since third party risk is

involved, the Insurance Company is directed to

deposit the compensation amount with liberty to

recover the same from the owner of the offending

vehicle.

Regarding quantum of compensation:

IN MVC 750/2017

Firstly, even though the claimant claims that she

was aged 50 years and was a housewife and earning

an income of Rs.12,000/- per month, but the Tribunal

has taken the notional income as merely as

Rs.8,000/- per month.

Secondly, the claimant has sustained Type III B

open fracture left distal metaphysic with 15 cm CLW

with traumatic amputation left III toe at Mpx level and

other injuries. PW-3, the doctor has stated in his

evidence that the claimant has suffered disability of

20% to whole body. But the Tribunal has erred in

taking the whole body disability at only 5%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. She was treated as

inpatient for a period of 7 days. Even after discharge

from the hospital, she was not in a position to

discharge her regular work. She has suffered lot of

pain during treatment. The Tribunal has failed to grant

any compensation under the head of 'loss of

amenities' and 'loss of income during laid-up period'.

Further, the compensation granted by the Tribunal

under the head of 'pain and sufferings' and other

heads are on the lower side. Hence, he sought for

enhancement of compensation.

IN MVC 751/2017

The claimant has sustained closed fracture of 1st

Metatarsal left foot with left heel pad avulsion and

other injuries. Considering the nature of injuries, the

overall compensation of Rs.12,000/- awarded by the

Tribunal is on the lower side. Hence, he sought for

enhancement of compensation.

7. On the other hand, the learned counsel for

the Insurance Company has raised following counter

contentions:

Regarding liability: It is not in dispute that the

rider of the offending vehicle was not having valid

driving licence as on the date of the accident and the

insured has violated the terms and conditions of the

policy. Hence, the Tribunal has rightly exonerated the

Insurance Company from liability and fastened the

liability on the owner of the offending vehicle.

Regarding quantum of compensation:

IN MVC 750/2017

Firstly, even though the claimant claims that she

was earning Rs.12,000/- per month, she has not

produced any documents to establish her income.

Therefore, the Tribunal has rightly assessed the

income of the claimant notionally.

Secondly, the claimant has sustained amputation

of toe. PW-3, the doctor has stated in his evidence

that the claimant has suffered disability of 20% to

whole body. The fractures are reunited. The Tribunal

considering the injuries sustained by the claimant, has

rightly assessed the whole body disability at 5%.

Thirdly, considering the injuries sustained by the

claimant and considering the age and avocation of the

claimant, the overall compensation awarded by the

Tribunal is just and reasonable compensation. Hence,

he sought for dismissal of the appeal.

IN MVC 751/2017

The injuries sustained by the claimant are minor

in nature. The Tribunal considering the same has

rightly awarded just and reasonable compensation.

Hence, he sought for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that the claimants have

sustained injuries in the road traffic accident occurred

due to rash and negligent riding of the offending

vehicle by its rider.

RE: LIABILITY

10. The Tribunal after considering the materials

available on record has rightly given a finding that the

rider of the offending vehicle was not having valid

driving licence as on the date of the accident and

fastened the liability on the owner of the offending

vehicle. However, in view of the law laid down by the

Hon'ble Supreme Court in the case of PAPPU AND

ORS. V. VINOD KUMAR LAMBA AND ANR. [AIR 2018

SC 592] and in view of Full Bench decision of this

Court in the case of 'NEW INDIA ASSURANCE CO.

LTD. BIJAPUR vs. YALLAVVA AND ANOTHER' ILR 2020

Kar.2239, since the offending vehicle was covered

with valid insurance policy and since third party risk is

involved, the Insurance Company is directed to

deposit the compensation amount with liberty to

recover the same from the owner of the offending

vehicle. Hence, the finding of the Tribunal in so far as

liability is concerned, the same is modified.

RE: QUANTUM OF COMPENSATION

IN MVC 750/2017

11. The claimant claims that she was earning

Rs.12,000/- per month. She has not produced any

documents to prove her income. 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 2016, the notional income has to be

taken at Rs.9,500/- p.m.

As per wound certificate, the claimant has

sustained Type III B open fracture left distal

metaphysic with 15 cm CLW with traumatic

amputation left III toe at Mpx level and other injuries.

PW-3, the doctor has stated in his evidence that the

claimant has suffered disability of 20% to whole body.

Therefore, taking into consideration the deposition of

the doctor, PW-3 and injuries mentioned in the

wound certificate, the Tribunal has rightly taken the

whole body disability at 5%. The claimant is aged

about 50 years at the time of the accident and

multiplier applicable to her age group is '13'. Thus,

the claimant is entitled for compensation of

Rs.74,100/- (Rs.9,500*12*13*5%) on account of 'loss

of future income'.

The nature of injuries suggests that the claimant

must have been under rest and treatment for a period

of 1 month. Therefore, the claimant is entitled for

compensation of Rs.9,500/- (Rs.9,500*1 month)

under the head 'loss of income during laid up period'.

The claimant was treated as inpatient for more

than 7 days in the hospital and thereafter, has

received further treatment. Due to the accident, the

claimant has suffered grievous injuries and also

undergone surgery. She has suffered lot of pain

during treatment and she has to suffer with the

disability stated by the doctor throughout her life.

Considering the same, I am inclined to award a sum of

Rs.20,000/- under the head of 'loss of amenities'.

Considering the nature of injuries, the

compensation awarded by the Tribunal under other

heads is just and reasonable.

Thus, the claimant is entitled to the following

compensation:

As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 30,000 30,000 Medical expenses 4,917 4,917 Food, nourishment, 5,000 5,000 conveyance and attendant charges Loss of income during 0 9,500 laid up period Loss of amenities 0 20,000 Loss of future income 62,400 74,100 Total 102,317 143,517

IN MVC 751/2017

12. The injuries sustained by the claimant are

minor in nature. The Tribunal considering the wound

certificate and evidence available on record has rightly

awarded just and reasonable compensation of

Rs.12,000/-.

13. In the result, both the appeals are allowed

in part. The judgment of the Claims Tribunal is

modified.

The claimant in MVC 750/2017 is entitled to a

total compensation of Rs.143,517/- as against

Rs.102,317/- awarded by the Tribunal.