Karnataka High Court
Rahamathulla @ Rahamathi vs Roshan Jameer on 30 July, 2024
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MFA No. 8264 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 8264 OF 2012 (MV)
BETWEEN:
RAHAMATHULLA @ RAHAMATHI
S/O LATE NASEER SAB
AGED ABOUT 26 YEARS
BARBENDING WORK
R/O TANK-BLOCK
J C EXTENSION,HARIHAR
DAVANAGERE DIST - 577 601 ...APPELLANT
(BY SRI. KALEEMULLAH SHARIFF, ADV.)
AND:
1. ROSHAN JAMEER
S/O K H GHOUSE
AGED ABOUT 39 YEARS
R/O 1ST MAIN 3RD CROSS
H S EXTENSION, HARIHAR - 577 601
2. SRI IRFAN
S/O YOUSUF SAB
Digitally signed by AGED ABOUT 34 YEARS
PRAJWAL A
R/O VIDHYANAGAR
Location: HIGH COURT 11TH CROSS C BLOCK
OF KARNATAKA
HARIHAR - 577 601
3. THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE COMAPNY LTD
168/1, NARASARAJA ROAD
DAVANAGERE - 577 001 ...RESPONDENTS
(BY SRI. N SRINIVAS, ADV. FOR R1;
VIDE ORDER DATED 29.05.2024;
NOTICE TO R2 IS HELD SUFFICIENT;
SMT.HARINI SHIVANAND, ADV. FOR R3[VC])
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MFA No. 8264 of 2012
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 9.4.2012 PASSED
IN MVC NO.908/2008 ON THE FILE OF THE SENIOR CIVIL
JUDGE, ADDITIONAL MACT, HARIHAR, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
In this appeal, the petitioner has challenged the
judgment and award dated 09.04.2012 passed in
M.V.C.No.908/2008 by the Senior Civil Judge & Addl.
M.A.C.T., Harihara ('the Tribunal' for short).
2. For the sake of convenience, the rank of the
parties shall be referred to as per their status before
the Tribunal.
3. Brief facts of the case are, on 05.03.2008 at
about 10.30 p.m., while the petitioner was proceeding
near Amaravathi Colony of Harihar, an auto rickshaw
bearing Reg.No.KA-17-8325 hit against him causing
him injuries. After taking treatment at Government
Hospital, S.S.Institute of Medical Sciences & Research
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Centre, Davangere, the petitioner approached the
Tribunal for grant of compensation of Rs.11,30,000/-.
Claim was opposed by the Insurance Company. The
Tribunal after taking the evidence allowed the claim
petition awarding compensation of Rs.95,192/- with
interest @ 6% p.a. directing the owner and the driver
of the auto rickshaw to pay the compensation and
dismissing the claim against the Insurance Company.
Assailing the same and seeking enhancement of
compensation, the petitioner has filed this appeal on
various grounds.
4. Heard the arguments of
Sri.Kaleemullah Shariff, learned counsel for the
petitioner and Sri.N.Srinivas, learned counsel for owner
of the auto rickshaw and Smt.Harini Shivanand,
learned counsel for the Insurance Company.
5. It is the contention of the learned counsel for
the petitioner that the petitioner has suffered fracture
to both Tibia and Fibula of his right leg. The medical
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evidence explains the limb disability of 30%, but the
Tribunal has considered 5% disability to the whole
body. Even the income taken is meager and sought
for enhancement.
5.1. It is further contended that the accident took
place within the limits of Harihara Nagara Sabha;
Nagara Sabha has been grown up, Municipality has
built up bus shelter and near bus shelter, the accident
took place. Hence, there is no fundamental violation of
the permit and the Insurance Company is liable to pay
compensation.
6. Learned counsel for the owner of the auto
rickshaw has contended that the accident took place
within the limits of Harihara Nagara Sabha, extension
has been grown, Municipality has built up the bus
shelter and the auto rickshaw was going out of the
limits is not a reason for the accident. There is no
fundamental violation of the terms and conditions of
the policy and the Insurance Company cannot avoid its
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liability, Tribunal erroneously dismissed the claim
against the Insurance Company and sought a direction
to the Insurance Company to pay compensation.
7. Per contra, learned counsel for the Insurance
Company has contended that by producing cogent
evidence before the Tribunal, it has established that
the place of accident is not within the limits of Harihara
Nagara Sabha. The Permit under Ex.R2 restricts 7 kilo
meter radius from Nagara Sabha limits, thereby the
accident took place outside the city limit and it is in
violation of the permit conditions. The Insurance
Company can avoid its liability and the Tribunal has
rightly considered all the material facts and awarded
the compensation and dismissed the claim against the
Insurance Company and she supported the impugned
judgment.
8. I have given my anxious consideration to the
arguments addressed on behalf of the parties and
perused the records.
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9. The material on record points out that there
was an accident involving the petitioner and the auto
rickshaw in question on 5.3.2008 at about 10.30 p.m.,
near Amaravathi Colony of Harihar. PW-2 is the
treated Doctor, who explains that the petitioner has
suffered fracture of right Tibia and Fibula. The Tribunal
has placed much reliance on the discharge summary
issued by the SS Hospital, Davangere. The Tribunal
assessed the disability of the petitioner at 5%. Having
regard to the nature of injury and the limb disability of
30% spoken to by the medical officer, it is proper to
assess 10% whole body disability instead of 5%.
Accident is of the year 2008. A person with no proof of
income will earn not less than Rs.4,500/- and the
Tribunal has taken Rs.3,900/- at lower side. Hence,
the income has to be taken at Rs.4,500/- per month.
10. The Tribunal has awarded compensation as
follows:
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Sl. No. Particulars Rs.
1 Disability (46800x18x5%) 42,125/-
2 Pain and suffering 25,000/-
3 Discomfort in future life 10,000/-
4 Medical Bills 13,067/-
5 Medical attendant charges 5,000/-
and transportation
Total 95,192/-
11. The petitioner was under hospitalization for
28 days. He was attended by an attendant, spent
money towards transportation and food and
nourishment; medical bills spent at Rs.13,067/- has
been reimbursed by the Tribunal. Loss of amenities
and discomfort at Rs.10,000/- is on the lower side, it
should be Rs.25,000/-. Pain and suffering awarded at
Rs.25,000/- is kept intact. Towards incidental
expenses, the Tribunal has awarded Rs.5,000/-.
Petitioner was inpatient for 28 days, an attendant has
attended him, money needs to be spent towards food
and nourishment. Hence, under these heads, a sum of
Rs.10,000/- is assessed. The petitioner will be laid up
for minimum of three months, loss of income is
assessed at Rs.13,500/- (Rs.4,500/- x 3). As
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discussed above, the petitioner has suffered 10%
whole body disability, his notional income is taken at
Rs.4,500/- and his age at 22 years, the applicable
multiplier is '18'. Then, the loss of future income will
be: Rs.4,500/-x12x18x10%= Rs.97,200/-. There are
no good grounds to assess the compensation on other
heads. Thus, the petitioner is entitled for
compensation thus:
Sl. No. Particulars Rs.
1 Pain and suffering 25,000
2 Medical expenses 13,067
3 Conveyance, Attendant and 10,000
Nourishing food
4 Loss of earning during laid-up 13,500
5 Loss of Amenities and 25,000
discomfort
7 Loss of income due to disability 97,200
TOTAL 1,83,767
Thus, petitioner is entitled for enhancement of
Rs.88,575/-, which is the just compensation to which
the petitioner is entitled, in the facts and
circumstances of the case.
12. As regards liability is concerned, as rightly argued
on behalf of the Insurance Company, the accident
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took place outside the Nagara Sabha limits.
Ex.R2/Permit indicates 7 kilometers radius. The
accident took place just abutting to 7th kilometer in the
extension of Harihara. The extension though not come
within Nagara Sabha, the evidence on record did not
point out that there is fundamental breach of policy for
violation of the permit conditions.In Gohar Mohammed
-vs-U.P.State Road Transport Corporation and others,
the Hon'ble Apex Court confirmed the order of the
Tribunal and also the High Court on the ground that
there is no permit to bus on the date of accident and
claim of the owner of the bus that there is a valid
permit, is doubtful. In the present case, the evidence
does not stand in support of the Insurance Company
that the violation of permit condition is the cause for
the accident. For violation of permit conditions, the
Insurance Company can avoid its liability but it has to
satisfy the award and to recover the same from the
owner of the auto rickshaw under the principle of 'pay
and recovery'. Hence, the order of dismissal of the
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claim against the Insurance Company though proper,
but the Insurance Company has to pay compensation
and recover it from the owner of the auto rickshaw. In
view of the above, appeal merits consideration, in the
result, the following:
ORDER
(i) The appeal is allowed in part;
(ii) The impugned judgment and award is
modified;
(iii) The petitioner would be entitled to total
compensation of Rs.88,575/- with interest
at 6% p.a. from the date of petition till
realisation;
(iv) The Insurance Company is directed to
deposit the entire compensation with
interest @ 6% per annum within eight
weeks from the date of receipt of certified
copy of this judgment and to recover the
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same from the owner of the auto rickshaw
in the same proceedings;
(v) The amount in deposit, if any, shall be
transmitted to the Tribunal.
SD/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
KNM
