Karnataka High Court
Sharath Kumar N M vs Mohammed Rasheed Jamal on 2 September, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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MFA No. 8615 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 8615 OF 2018
BETWEEN:
SHARATH KUMAR N M
S/O MANJUSHETTY
AGED ABOUT 22 YEARS
R/AT # 48, 2ND CROSS
KADABAGERE, MAGADI ROAD
BANGALORE ALSO R/AT SUBHASH NAGAR
GUBBI, TUMKUR DISTRICT-572216
...APPELLANT
(BY SRI. R SHASHIDHARA .,ADVOCATE)
AND:
1. MOHAMMED RASHEED JAMAL
S/O MOHAMMED RAZAR
MAJOR, R/O # 23/2, 2ND CROSS
VINAYAKA NAGAR OLD GUDDADAHALLI
BANGALORE-560026.
Digitally signed by 2. THE LEGAL MANAGER
HEMALATHA A HDFC ERGO GENERAL INSURANCE CO LTD.,
Location: HIGH # 25/1, 2ND FLOOR, BUILDING NO.2
COURT OF
KARNATAKA SHANKARANAYANA BUILDING, NO.1
M.G.ROAD, BANGALORE-560001
...RESPONDENTS
(BY SRI.PRADEEP.B., ADVOCATE FOR R2:
NOTICE TO R1 IS HELD SUFFICIENT V/O DATED: 02.09.2024)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 02/12/2017,
PASSED IN MVC NO.1883/2016, ON THE FILE OF THE CHIEF
JUDGE, COURT OF SMALL CAUSES AND MEMBER, PRINCIPAL
MACT, BENGALURU (SCCH-1), PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
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MFA No. 8615 of 2018
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
ORAL JUDGMENT
1. This appeal under Section 173(1) of Motor Vehicles
Act, 1988 (hereinafter referred to as 'the Act') has been
filed by the claimant challenging by the judgment dated
02.012.2017 passed by MACT, Bengaluru in MVC
No.1883/2016.
2. Facts giving rise to the filing of the appeal briefly
stated are that on 16.02.2016 when the claimant was
standing near Thippagondanahalli Magadi Road bus stop,
at that time, motorcycle bearing registration No.KA-51-Y-
8589 being ridden by its rider at a high speed and in a
rash and negligent manner, dashed to the claimant. As a
result of the aforesaid accident, the claimant sustained
grievous injuries and was hospitalized.
3. The claimant filed a petition under Section 166 of the
Act, seeking compensation. It was pleaded that he spent
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significant amount towards medical expenses, conveyance
charges and other related costs. It was further pleaded
that the accident occurred solely on account of rash and
negligent riding of the offending vehicle by its rider.
4. Upon service of notice, the respondents appeared
through counsel and filed written statements denying the
averments made in the claim petition.
5. On the basis of the pleadings of the parties, the
Claims Tribunal framed the issues and thereafter, recorded
the evidence. The claimant, in order to prove the case,
examined himself as PW-1, and Dr.Arjun S Prakash was
examined as PW-2, and got exhibited documents namely
Ex.P1 to Ex.P9. On behalf of the respondents, four
witnesses were examined as RWs-1 to 4 and got exhibited
documents namely Ex.R1 to Ex.R13. 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,
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the claimant sustained injuries. The Tribunal further held
that the claimant is entitled to a compensation of
Rs.789,000/- along with interest at the rate of 9% p.a.
and directed the owner of the offending vehicle to deposit
the compensation amount along with interest. Being
aggrieved, the present appeal has been filed.
6. The learned counsel for the claimant has raised the
following contentions:
a) Firstly, the claimant asserts that he was earning
Rs.15,000/- per month by working as tailor. However, the
Tribunal has erred in taking the income as merely as
Rs.8,000/- per month.
b) Secondly, the claimant has examined the doctor as
PW-2. The Tribunal undervalued the claimant's whole-body
disability at 12%, contradicting the evidence of the doctor
that the claimant suffered 50% disability to particular limb
and 16.62% to whole body.
c) Lastly, due to the accident, the claimant has
sustained grievous injuries. He was treated as inpatient for
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a period of 19 days. Even after discharge from the
hospital, he was not in a position to discharge his regular
work. He has suffered lot of pain during treatment.
Considering the same, the compensation awarded by the
Tribunal under the heads of 'loss of amenities', 'pain and
sufferings' and other incidental expenses are on the lower
side.
d) LIABILITY: Even though the Tribunal has fastened
the liability on the insured-owner of the offending vehicle
on the ground that the rider of the offending vehicle was
not having valid and effective driving licence as on the
date of accident, however, in view of 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 the case of NATIONAL INSURANCE CO.
LTD. VS. SWARAN SINGH [(2004) 3 SCC 297] 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], even
if the driver of the offending vehicle was not possessing
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valid driving licence as on the date of accident, the
Insurance Company is liable to pay compensation to the
claimant at the first instance, with liberty to recover the
same from the owner of the offending vehicle.
With the above contentions, the learned counsel
sought to allow the appeal.
7. On the other hand, the learned counsel for the
Insurance Company has raised the following counter-
contentions:
a) Firstly, the assertion of claimant that he was earning
Rs.20,000/- per month, remains unsubstantiated due to
lack of documentary evidence. In the absence of proof of
income, the Tribunal has assessed the income of the
claimant notionally.
b) Secondly, the Tribunal considering the injuries
sustained by the claimant and evidence of the doctor, has
rightly assessed the whole body disability at 12%.
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c) Thirdly, considering the injuries sustained by the
claimant and considering the age and avocation of the
claimant, the compensation awarded by the Tribunal under
the heads of 'loss of amenities', 'pain and sufferings' and
other incidental expenses are just and reasonable and it
does not warrant interference.
d) Lastly, in light of the Division Bench decision of this
Court in the case of Ms.Joyeeta Bose and others -v-
Venkateshan.V and others (MFA 5896/2018 and
connected matters disposed of on 24.8.2020), the
rate of interest awarded by the Tribunal at 9% p.a. on the
compensation amount appears excessive.
e) 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, which amounts to violation of the
terms and conditions of the policy. Hence, the Tribunal has
rightly exonerated the Insurance Company from liability
and fastened liability on the owner of the offending
vehicle.
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With the above contentions, the learned counsel
sought to dismiss the appeal.
8. Heard the learned counsel for the parties and
perused the judgment and award of the Tribunal.
9. It is not in dispute that the claimant has sustained
injuries in the road traffic accident occurred on 16.02.2016
due to rash and negligent riding of the offending vehicle
by its rider.
QUANTUM OF COMPENSATION:
10. The claimant claims that he was earning Rs.20,000/-
per month. But he has not produced any documents to
substantiate his claim. Therefore, in the absence of proof
of income, notional income has to be assessed. According
to the guidelines issued by the Karnataka State Legal
Services Authority, for accidents occurred in the year
2016, notional income shall be taken at Rs.9,500/- p.m.
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11. As per wound certificate, the claimant has sustained
fracture of shaft of femur left, fracture of 5/6th ribs right,
hemoperitoneum right. The doctor in his evidence has
stated that the claimant has suffered disability of 50% to
particular limb and 16.62% to whole body. Therefore,
taking into consideration the deposition of the doctor and
injuries mentioned in the wound certificate, the whole
body disability has to be taken at 16.62%. The claimant is
aged about 20 years at the time of the accident and
multiplier applicable to his age group is '18.'. Thus, the
claimant is entitled for compensation of Rs.3,41,042/-
(Rs.9,500*12*18*16.62%) on account of 'loss of future
income'.
12. The nature of injuries indicates that the claimant
must have been under rest and treatment for a period of 6
months. Consequently, the claimant is entitled for
compensation of Rs.57,000/- (Rs.9,500*6 months) under
the head 'loss of income during laid up period'.
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13. Considering the nature of injuries, the compensation
awarded by the Tribunal under other heads is just and
reasonable.
14. Thus, the claimant is entitled to the following
compensation:
As awarded As awarded
by the by this
Compensation under
Tribunal Court
different Heads
(Rs.) (Rs.)
Pain and sufferings 60,000 60,000
Medical expenses 388,000 388,000
Food, nourishment, 20,000 20,000
conveyance and
attendant charges
Loss of income during 48,000 57,000
laid up period
Loss of amenities 40,000 40,000
Loss of future income 208,000 341,042
Future medical expenses 25,000 25,000
Total 789,000 931,042
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LIABILITY:
15. 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 has fastened the liability on
the insured to pay compensation to the claimant.
However, in respect of claim of the claimants is concerned,
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], the Insurance
Company is liable to pay compensation to the claimants at
the first instance, with liberty to the Insurance Company
to recover the same from the owner of the offending
vehicle.
16. In the result, the following order is passed:
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ORDER
a) The appeal is allowed in part.
b) The judgment of the Claims Tribunal is modified.
c) The claimant is entitled to a total compensation of
Rs.931,042/-.
d) Following the judgment of the Division Bench of this
Court in the case of 'MS.JOYEETA BOSE' (supra), the
enhanced compensation shall carry interest at 6%
p.a.
e) The Insurance Company is directed to deposit the
compensation amount along with interest
from the date of filing of the claim petition till the
date of realization, within a period of six weeks from
the date of receipt of copy of this judgment.
However, interest shall not be applicable to the
compensation awarded under the head of 'future
medical expenses'.
f) In view of the order dated 02.09.2024 passed by this
Court, the claimant is not entitled to interest on the
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enhanced compensation for the delayed period of
209 days in filing the appeal.
g) After deposit, the Insurance Company is at liberty to
recover the compensation amount from the owner of
the offending vehicle.
Sd/-
(H.T. NARENDRA PRASAD)
JUDGE
DM
