Karnataka High Court
Sirajuddin vs Mohd. Nabi Sab And Anr on 24 July, 2024
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MFA No. 200797 of 2021
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO. 200797 OF 2021 (MV-I)
BETWEEN:
SRI. SIRAJUDDIN
S/O SAMAD MIYAN,
AGE: 43 YEARS,
OCC: PROPRIETOR OF WOK SHOP
NOW NIL, R/O CHITGUPPA
TQ. HUMNABAD, DIST: BIDAR.
...APPELLANT
(BY SRI. NAGARAJ PATIL, ADVOCATE)
AND:
Digitally signed
by
BASALINGAPPA 1. MOHD. NABI SAB
SHIVARAJ
DHUTTARGAON S/O MOHD. TAJUDDIN
Location: HIGH AGE: MAJOR,
COURT OF
KARNATAKA OCC: OWNER OF GOODS LORRY
BEARING NO.KA.39/6134,
R/O DHARAGIRI STREET,
BASAVAKALYAN, DIST: BIDAR.
2. THE GENERAL MANAGER
SHRIRAM GENERAL INSURANCE CO.LTD
E-8-EBIT, RIICO, SITAPUR,
JAIPUR RAJESTAHAN - 302 022.
...RESPONDENTS
(BY SRI. SUDARSHAN M, ADVOCATE FOR R2;
NOTICE TO R1 IS SERVED)
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MFA No. 200797 of 2021
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
SET ASIDE THE JUDGMNT AND AWARD DATED 08.02.2021
PASSED IN MVC NO.151/2014 ON THE FILE OF SENIOR CIVIL
JUDGE AND MACT, HUMNABAD. AND ALLOW THIS APPEAL BY
ENHANCING THE COMPENSATION AMOUNT OF RS.37,35,000/-
ONLY AS CLAIMED BY THE APPELLANT BEFORE THIS HON'BLE
COURT. ORDER FOR COSTS OF THIS APPEAL.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
HON'BLE MR. JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE RAJESH RAI K)
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/appellant being
aggrieved by the judgment and award dated 08.02.2021
passed in M.V.C.No.151/2014 by the Court of Motor
Vehicle Accident Claims Tribunal, Humnabad, (hereinafter
referred to as 'the Tribunal', for short), wherein the
Tribunal rejected the claim petition filed by the petitioner
for grant of compensation under Section 166 of Motor
Vehicles Act.
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2. For the sake of convenience, parties are
referred to as per their ranking before the Tribunal.
3. The facts giving rise to the filing of the appeal
briefly stated are that:
On 01.02.2013, the petitioner was proceeding to
Chitguppa via Mannaekhelli on the motorcycle bearing
Registration No.KA-39/K-3607, while he was on Kheni
Ranjol to Mannaekhelli Road at about 3:45 p.m., when he
was proceeding in normal speed on the left side of the
road near Kuchaknalli village, the driver of the lorry
bearing No.KA-39/6134 came from the opposite direction
in a high speed. The lorry driver thereby lost control over
the lorry and dashed to the motorcycle of the petitioner.
In the said accident, the petitioner sustained grievous
injuries. After causing such accident, the lorry driver fled
away from the spot along with the lorry. Subsequently, the
petitioner was hospitalized and had taken treatment for
the injuries sustained by him. Based on his complaint, the
jurisdictional Police registered the case in Crime
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No.16/2013. After investigation the charge sheet was
submitted against him by the Police. Hence, he filed claim
petition before the Tribunal claming compensation for the
injuries sustained to him in the accident.
4. After service of notice, respondent No.1 has not
appeared before the Tribunal, hence placed ex-parte.
Respondent No.2/Insurance Company appeared before the
Tribunal and filed statement of objections by denying the
entire contentions made in the claim petition.
5. The Tribunal on the basis of the pleadings of
the parties framed the issues. In order to prove the claim
petition before the Tribunal, the petitioner himself
examined as PW.1 and examined 1 witness as PW.2 and
got marked 124 documents as Exs.P1 to P124. On
rebuttal, Insurance Company examined its official as RW.1
and got marked 1 document as Ex.R1.
6. After assessment of oral and documentary
evidence, the Tribunal rejected the claim petition filed by
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the petitioner. The challenge to the same is lis before this
Court.
7. We have heard the learned counsel Sri Nagaraj
Patil for appellant and learned counsel Sri Sudarshan M.,
for respondent No.2/Insurance Company.
8. It is the primary contention of the learned
counsel for the petitioner that the Tribunal totally erred
while dismissing the claim petition filed by the petitioner
on the ground that, while lodging the complaint, the
complainant/injured has failed to mention the number of
the offending vehicle. He would further contend that, in
the complaint, the description of the said vehicle was
mentioned by the complainant and the same is lodged
immediately on the date of accident. Nevertheless, the
respondent-Police seized the offending vehicle after two
days i.e., on 04.02.2013. In such circumstance, there is
no reason to disbelieve the version of complaint about the
accident caused by the offending vehicle to the motorcycle
of the petitioner. He would also emphasize the spot
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mahazar drawn by the Police on 02.02.2013 as per Ex.P3,
which clearly depicts that the accident was caused due to
rash and negligent driving of the driver of the offending
vehicle i.e., Truck. The driver of the lorry was also
admitted his crime by pleading guilty before the
Magistrate. In such circumstance, the proof of accident
caused by the offending vehicle is proved beyond
reasonable doubt. In such circumstance, the Tribunal
grossly erred by rejecting the claim petition. He would
further contend that, the petitioner was hale and healthy
at the time of accident. Due to accident, the petitioner
caused permanent disability of 35% as deposed by the
Doctor who examined as PW.2. Accordingly, he prays to
award maximum compensation by allowing the appeal.
9. Per contra, learned counsel for respondent
No.2/Insurance Company would vehemently contend that
the Tribunal after perusal of the entire evidence on record
rightly rejected the claim petition in a well reasoned
judgment which does not call for any interference. He
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would contend that, on perusal of complaint lodged by the
injured, there is no mention whatsoever in respect of
vehicle involved in the accident. Subsequently, in order to
file the claim petition, the vehicle falsely implanted and
the charge sheet was laid with the collusion of Police. In
such circumstance, The Tribunal justified in its order by
rejecting the claim petition. Accordingly, he prays to
dismiss the appeal.
10. Having heard the learned counsel for the parties
so also having perused the records made available before
us, the points that would arise for our consideration are:
1. "Whether the Tribunal is justified in
rejecting the claim petition filed by the
petitioner.
2. Whether the claimant/petitioner is entitled
for the compensation as claimed in the
claim petition?."
11. Point No.1: As could be seen from records,
Ex.P1-FIR/complaint lodged by the complainant i.e.,
injured, he stated that the accident was caused on
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01.02.2013, when he was proceeding to Chitguppa via
Mannaekhelli on the motorcycle bearing Registration
No.KA-39/K-3607, when he reached to Mannaekhelli Road
at about 3:45 p.m., the driver of the offending
vehicle/Lorry bearing Registration No.KA-39/6134 came
from the opposite direction in a high speed. The lorry
driver thereby lost control over the lorry and dashed to the
motorcycle of the petitioner. The said complaint was
lodged on the date of accident itself. Though the number
of the offending vehicle was not mentioned in the
complaint, in the same time the description of the vehicle
was mentioned by the complainant i.e., the accident was
caused by the lorry. Nevertheless, after two days, the
jurisdictional Police traced the offending vehicle and
conducted the further investigation. Later, the driver of
the truck also pleaded guilty before the jurisdictional
Magistrate. In such circumstance, the Hon'ble Apex Court
in the case of Kusum Lata v. Satbir reported in (2011)
3 SCC 646 held in Paragraph Nos.4 and 5 are as under:-
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"4. The main reason why both the Tribunal
and the High Court reached their respective
findings that Vehicle No. HR 34 8010 was
not involved in the accident are primarily
because of the fact that in the FIR which
was lodged by one Ashok Kumar, brother of
the victim, neither the number of the vehicle
nor the name of the driver was mentioned.
5. Admittedly, the facts were that the
brother of the deceased, Ashok Kumar while
walking on the road heard some noise and
then saw that a white-coloured tempo had
hit his brother and sped away. Immediately,
he found that his brother, being seriously
injured, was in an urgent need of medical
aid and he took him to the hospital. Under
such circumstances it may be natural for
him not to note the number of the offending
vehicle. That may be perfectly consistent
with normal human conduct. Therefore, that
by itself cannot justify the findings reached
by the Tribunal and which have been
affirmed by the High Court."
12. On applying the findings of the Hon'ble Apex
Court in the above case to the facts and circumstance of
this case, we are of the considered view that, not noting
down the number of the offending vehicle is not a ground
to disbelieve the entire claim of the claimants and to
dismiss the claim petition. In view of the above discussion,
we answer point No.1 in the negative.
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13. Point No.2: The accident is caused in the year
2013 and the petitioner by occupation started his own
workshop by repairing the industrial machinery and
vehicles. Though the petitioner produced the salary
certificate, he has failed to examine the author of the
same. In such circumstance, the same cannot be relied for
consideration of his income. Hence, it is just and proper to
assess the income of the petitioner as per the chart issued
by the Karnataka State Legal Services Authority i.e.,
Rs.7,000/-. In order to prove the disability caused in the
accident, the claimant examined Doctor as PW.2 and the
Disability Certificate issued by him as per Exs.P47 to P48
apart from the Wound Certificate-ExP5 and Discharge
Cards-Exs.P44 and 45. The Doctor has assessed the
permanent disability at 35% to the whole body as per
Ex.P47. Hence, on conjoint reading of Exs.P47 and 48 and
the evidence of PW.2 so also Wound Certificate, we assess
the permanent disability to the extent of 15% to the whole
body. Since the accident is of the year 2013, the
appropriate multiplier would be '16' to the age of
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petitioner. Thus, the petitioner is entitled for the
compensation on the head 'loss of future income' as under
i.e., Rs.2,01,600/- (Rs.7,000 x 12 x 16 x 15%). The
petitioner produced the medical bills to the tune of
Rs.12,27,027/- and as such, he is entitled for the said
amount. Hence, on overall assessment of the evidence,
the petitioner is entitled for compensation under different
heads:
Particulars Compensation
awarded in Rs.
Pain and suffering 50,000/-
Medical expenses incurred 12,27,027/-
medical.
Attendant and nourishment
25,000/-
charges etc.,
Conveyance charges 25,000/-
Loss of income during laid up
35,000/-
period
Loss of future income on
2,01,600/-
account of permanent disability
Loss of amenities, life comforts
30,000/-
and expectancy of life
Total Rs.15,93,627/-
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14. Thus, the petitioner is entitled for total
compensation of Rs.15,93,627/-.
15. In view of the above discussion, we answer
point No.2 in partly affirmative and proceed to pass the
following:
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and award
passed by the Tribunal is set-aside.
iii. The claim petition filed by the
petitioner is allowed in part.
iv. The petitioner is entitled for total
compensation of Rs.15,93,627/-
along with interest at the rate of 6%
per annum from the date of petition
till realization.
v. The respondent No.2-Insurance
Company is directed to deposit the
compensation amount before the
Tribunal within a period of eight
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weeks from the date of receipt of
certified copy of this judgment.
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
HKV
CT;BN
