Karnataka High Court
Mastan vs Moula Hussain on 31 July, 2024
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MFA No. 3285 of 2014
C/W MFA No. 3286 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 3285 OF 2014 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 3286 OF 2014(MV-I)
IN MFA NO.3285/2014
BETWEEN:
RIYAZ,
S/O DADAPEER,
AGED ABOUT 32 YEARS,
R/O 3RD MAIN, 4TH CROSS,
KTJ NAGAR,
DAVANGERE - 577 001.
APPELLANT
(BY SRI. HANUMANTHAPPA A.,ADVOCATE)
Digitally signed AND:
by BHARATHI
S
Location: HIGH 1. MOULA HUSSAIN,
COURT OF S/O NASISAB,
KARNATAKA
AGED ABOUT 26 YEARS,
R/O BEHIND POST OFFICE,
HIREJANTAKAL GANGAVATHI POST,
KOPPAL DISTRICT - 583 227.
2. BASAVARAJ.H.S,
S/O VEERABHADRIAHSWAMAY,
R/O #2/11/154,
MARUTESHWARA NILAYA,
KANAKAGIRI ROAD,
GANAGVATHI POST,
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MFA No. 3285 of 2014
C/W MFA No. 3286 of 2014
KOPPAL DISTRICT - 583 227.
3. THE MANAGER,
NATIONAL INSURANCE CO.,LTD,
KOPPAL BRANCH,
REP THROUGH ITS,
DIVISIONAL MANAGER,
DIVISIONAL OFFICE,
NATIONAL INSURANCE CO,LTD,
MELGIRI PLAZA,
DENTAL COLLEGE ROAD,
MCC B BLOCK,
DAVANGERE - 577 001.
RESPONDENTS
(BY SRI. R1-MOULA HUSSAIN S. D, ADVOCATE)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED13.02.2014 PASSED IN MVC
NO.1118/2012 ON THE FILE OF THE I ADDITIONAL SENIOR
CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL-V,
DAVANAGERE, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO.3286/2014
BETWEEN:
MASTAN,
S/O SYED SAB.,
AGED ABOUT 28 YEARS,
R/O 2ND MAIN, 5TH CROSS,
KTJ NAGAR,
DAVANAGERE - 577 001.
APPELLANT
(BY SRI. HANUMANTHAPPA A, ADVOCATE)
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MFA No. 3285 of 2014
C/W MFA No. 3286 of 2014
AND:
1. MOULA HUSSAIN,
S/O NASISAB,
AGED ABOUT 26 YEARS,
R/O BEHIND POST OFFICE,
HIREJANTAKAL GANGAVATHI POST,
KOPPAL DISTRICT - 583 227.
2. BASAVARAJ.H.S,
S/O VEERABHADRIAHSWAMAY,
R/O #2/11/154,
MARUTESHWARA NILAYA,
KANAKAGIRI ROAD,
GANAGVATHI POST,
KOPPAL DISTRICT - 583 227.
3. THE MANAGER,
NATIONAL INSURANCE CO., LTD,
KOPPAL BRANCH,
REP THROUGH ITS,
DIVISIONAL MANAGER,
DIVISIONAL OFFICE,
NATIONAL INSURANCE CO, LTD,
MELGIRI PLAZA,
DENTAL COLLEGE ROAD,
MCC B BLOCK,
DAVANGERE - 577 001.
RESPONDENTS
(BY SRI. B A RAMAKRISHNA, ADVOCATE FOR R3;
R1 SERVED;
V/O DATED 10.07.2019 NOTICE TO R2 IS DISPENSED
WITH )
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED13.02.2014 PASSED IN MVC
NO.1119/2012 ON THE FILE OF THE I ADDITIONAL SENIOR
CIVIL JUDGE AND MACT-V, DAVANAGERE, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
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MFA No. 3285 of 2014
C/W MFA No. 3286 of 2014
THESE APPEALS, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE C.M. POONACHA
ORAL JUDGMENT
MFA No.3285/2014 is filed by the claimant
challenging the judgment and award passed in MVC No.
1118/2012. MFA No. 3286/2014 is filed by the claimant
challenging the judgment and award passed in MVC
No.1119/2012.
2. Both the appeals are filed challenging the
judgment and award dated 13.02.2014 passed by the I
Additional Senior Civil Judge & MACT-V at Davangere1.
3. For the sake of convenience, the parties herein
are referred as per their rank before the Tribunal.
4. Both the claim petitions arise out of the same
accident and both the claim petitions were decided by the
Hereinafter referred to as the 'Tribunal'
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Tribunal by a common judgment. Hence, both appeals are
taken up together for consideration.
5. Heard the submissions of learned counsel Sri.
V. Mahesha, for the appellants and learned counsel Sri. B.
A. Ramakrishna, for the respondent No.3-Insurance
Company.
6. The relevant facts necessary for consideration
of the present appeal are that, on 03.06.2012, the
claimants in the claim petition were proceeding on Motor
Cycle bearing registration No.KA-17/V-3651 towards Ittigi
Village from the Southern side towards Northern side with
the claimant in MVC No.1118/2012 being the rider of the
said Motor Cycle and the claimant in MVC No.1119/2012
the pillion driver.
7. It is the case of the claimants that a car bearing
registration No.KA-37/M-5927 was coming in the opposite
direction from Ittigi Village that is from Northern side
towards Southern side and when they reached a curved
portion of the road, there was a head on collusion, causing
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the accident in question. The Tribunal by judgment and
award dated 13.02.2014 allowed the claim petition and
recorded a finding of contributory negligence holding that
the rider of the Motor Cycle was negligent to the extent of
40% and driver of the car was negligent to the extent of
60% in causing the accident in question. Further, the
Tribunal held that the claimant in MVC No.1118/2012 was
entitled to a total Compensation of `2,73,000/- and
accordingly directed the respondents to pay 60% of the
said compensation i.e., a sum of `1,63,800/-. In MVC
No.1119/2012, the Tribunal held that the claimant was
entitled to total compensation of `1,68,000/- and directed
the respondents to pay 60% of the said compensation i.e.,
sum of `1,00,800/- along with interest 6% p.a. Being
aggrieved, the present appeals are filed by the claimants
challenging the finding of the Tribunal on contributory
negligence as well as seeking for enhancement of
compensation.
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8. While considering the manner of occurrence of
the accident, the Tribunal noticing the Spot Mahazar
(Ex.P-3) and the Sketch (Ex.R-1) has noticed that the
accident occurred in the middle of the road and there was
sufficient space available to the Motor Cycle and the car on
their respective left sides and hence, recorded a finding
that the rider of the motor cycle is negligent to the extent
of 40% and driver of the car is negligent to the extent of
60%.
9. It is forthcoming that the police authorities
upon investigation, have filed charge sheet solely against
the driver of the car. Further, to prove the manner of
occurrence of the accident, the claimants in the claim
petitions have examined themselves as PW-1 and PW-2.
They have deposed in their testimony regarding the
manner of the occurrence of the accident, that they were
proceeding slowly and cautiously on the left side of the
road, when the car was driven in a rash and negligent
manner. Although the said witnesses have been cross
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examined regarding the manner of occurrence of the
accident, there is nothing detrimental in their cross
examination to dilute their testimony adduced in the
examination in chief. The respondents have not examined
the driver of the car.
10. Having regard to the aforementioned, keeping
in mind the manner of the occurrence as deposed by PW-1
and PW-2, as also having regard to the fact that the
charge sheet has been filed against the driver of the car
and upon re-appreciation of the Spot Mahazar (Ex.P-3)
and Spot Sketch (Ex.R-1), it is just and proper that the
finding of contributory negligence recorded by the Tribunal
be interfered with and it is required to be held that the
driver of the car and rider of the Motor Cycle have
contributed the accident in question in the ratio of 75:25.
11. With regard to the quantum of compensation in
MVC No.1118/2012, it is noticed that the claimant is aged
30 years and he has stated that he is working as salesman
and earning income of `7,500/- per month. However, the
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Tribunal has taken the same as `5,000/- per month. In
view of the fact that the claimant has not produced any
documents to prove his income and keeping in mind the
chart that is followed by the KSLSA2 stipulating the
notional income for the purpose of settlement of cases and
having regard to the year of the accident being 2012, the
income of the claimant is re-assessed at `7,000/- p.m.
12. It is forthcoming from the Wound Certificate
(Ex.P-5), Treatment Summary (Ex.P-7) and the evidence
of the Doctor (PW-3) that the claimant has sustained
compression fracture of L4 vertebra as well as
comminuted fracture of shaft of right ulna (wrist). The
claimant was treated conservatively as an impatient for a
period of 12 days and the Doctor has assessed the
disability which has been assessed by the Tribunal at 15%.
The disability assessed by the Tribunal is just and proper.
13. Keeping in mind the aforementioned the
quantum of compensation is re-assessed as follows:
Karnataka State Legal Services Authority.
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(i). The Tribunal has awarded a sum of `55,000/-
towards 'pain and suffering'. However the having regard to
the fact that the claimant has sustained two fractures, i.e.,
fracture of ulna and fracture of left vertebra, the said
compensation is reassessed as `70,000/-;
(ii). The Tribunal has awarded a sum of `10,000/
towards 'loss of amenities and discomfort in life'. Keeping
in mind, the nature of injuries sustained and the period of
treatment, same is re-assessed at `15,000/-;
(iii). The Tribunal has awarded a sum of `45,000/-
towards 'Medical expenses, attendant charges & other
incidental charges'. Having regard to the fact that the
medical bills have been produced for a sum of `39,000/-,
the medical expenses is re-assessed at `40,000/- and
further, a sum of `15,000/- is awarded towards 'food,
nutrition and attendant charges;
(iv). The laid up period is taken as two months and
the loss of 'income towards treatment and laid up period'
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is reassessed at `14,000/- (7,000/- x 2) as against
`10,000/- assessed by the Tribunal;
(v). The loss of future earning capacity is re-
assessed as [7,000/- x 12 x 17 x 15%] = `2,14,200/- as
against `1,53,000/- awarded by the Tribunal.
14. In view of the same the compensation is
reassessed as follows:
Sl. Heads Amount Amount
awarded by the awarded by this
No. Tribunal ` Court `
1. Loss of future 1,53,000.00 2,14,200.00
earnings
2. Pain and suffering 55,000.00 70,000.00
3. Loss of amenities and 10,000.00 15,000.00
discomfort in life
4. Medical expenses, 45,000.00 40,000.00
attendant charges &
other incidental
charges
5 Loss of income during 10,000.00 14,000.00
treatment and rest
period
6 Compensation towards 6,000.00 -
simple injuries
7 Food, nourishment & - 15,000.00
transport charges
Total 2,73,000.00 3,68,200.00
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15. Hence, the claimant is entitled for a total
compensation of `3,68,200/-. Out of total compensation
assessed, the claimant is entitled to 75% i.e. `2,76,150/-
rounded off to `2,76,500/- together with interest at 6%
p.a. The Tribunal already having awarded a sum of
`1,63,800/-, the Respondent No. 2- insurer is liable to pay
a further sum of (2,76,500- 1,63,800)= `1,12,700/-
together with interest at 6% p.a.
16. With regard to the quantum of compensation in
MVC No.1119/2012, it is forthcoming that the claimant
was aged 27 years and he has deposed that he was
working as an auto driver and has produced the driving
licence (Ex.P-28) and that he is earning a sum of
`10,000/-. However, the Tribunal has assessed the
income at `5,000/- per month. Having regard to the fact
that the claimant has produced his driving licence (Ex.P-
28) and keeping in mind that the notional income in terms
of the chart that is being followed for settlement of cases
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by KSLSA2, it is just and proper that income of the
claimant is re-assessed at `8,000/- p.a.
17. The claimant was aged 27 years and the
Tribunal has taken the appropriate multiplier as '17' which
is just and proper.
18. It is forthcoming from wound certificate (Ex.P-
17), Treatment summary (Ex.P-18) and Testimony of the
Doctor (PW-3) that the claimant has sustained
compression fracture of L1 vertebra. That the claimant
was treated as an impatient for a period of 12 days. The
disability at 10% is just and proper.
19. Hence, the compensation is re-assessed as
follows;
(i). Keeping in mind the nature of injuries
sustained, the compensation of towards 'pain and
suffering' is re-assessed as `40,000/- as against the
`30,000/- awarded by the Tribunal;
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(ii). The compensation towards 'loss of amenities
and discomfort in life' is re-assessed as `15,000/- as
against `10,000/- awarded by the Tribunal;
(iii). The Tribunal has awarded a sum of `16,000/-
towards 'medical expenses, attended charges & other
incidental charges'. Having regard to the fact that the
claimant has produced medical bills at a sum of `12,000/-,
medical expenses is re-assessed as `15,000/- and a
further sum of `10,000/- is awarded towards 'attendant
charges, food and nutrition and other incidental expenses';
(iv). The period of treatment is taken as 2 months
and the loss of income for the said period is re-assessed at
`16,000/- (8,000/- x 2) as against `10,000/- assessed by
the Tribunal;
(v). The 'loss of future income' is reassessed at
[8,000/- x 12 x 17 x 10%] = `1,63,200/- as against
`1,02,000/- assessed by the Tribunal.
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20. Accordingly, the total compensation under
various heads is re-assessed as follows:
Sl. Heads Amount Amount
awarded by the awarded by this
No. Tribunal ` Court `
1. Loss of future 1,02,000.00 1,63,200.00
earnings
2. Pain and suffering 30,000.00 40,000.00
3. Loss of amenities and 10,000.00 15,000.00
discomfort in life
4. Medical expenses, 16,000.00 15,000.00
attendant charges &
other incidental
charges
5 Loss of income during 10,000.00 16,000.00
treatment and rest
period
6 Food, nutrition & other - 10,000.00
incidental charges
Total 1,68,000.00 2,59,200.00
21. Hence, the claimant is entitled a total
compensation of `2,59,200/-, rounded off to `2,59,500/-.
Out of the total compensation, the claimant is entitled to
75% of compensation i.e. `1,94,625/- together with
interest at 6% p.a. The Tribunal already having awarded a
sum of `1,00,800/-, the Respondent No.2- Insurer is liable
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to pay a further sum of (`1,94,625-1,00,800)= `93,825/-
rounded of to `94,000/- together with interest at 6% p.a.
22. In view of the aforementioned, the following:
ORDER
i) The appeals are allowed in part;
ii) The judgment and award dated 13.02.2014
passed in MVC No.1118/2012 and in MVC No.1119/2012
passed by the I Additional Senior Civil Judge & MACT-V
at Davangere is modified by holding that the
respondents are liable to pay to the claimant in MFA
No.3285/2014 a further sum of `1,12,700/- and in MFA
No.3286/2014 a further sum of `94,000/- with interest
at 6% per annum from the date of petition till its
realization, in addition to the compensation awarded by
the Tribunal.
iii) In all other respects, the judgment and award of
the Tribunal remains unaltered;
vi) The Registry to draw the modified award
accordingly.
Sd/-
(C.M. POONACHA)
JUDGE
