Allowed

Ajajahmedkhan @ Ijajahmed, S/O Gudinkhan Bhadarvat v. Mrs Kanakambaam

Karnataka HC16 Oct 2019MFA/21105/2010

Case brief

AI extract

What is this about?

The High Court modified a Motor Accident Claims Tribunal award. It held the insurance company liable over the corporation, increased disability to 60%, adjusted notional income, and enhanced compensation for loss of future earnings and amenities.

What did the court decide?

Judgment of Tribunal modified; compensation enhanced to Rs.3,72,300 including future loss of earnings and amenities; liability fastened on Insurance Company; 50% to be fixed deposit.

Ajajahmedkhan @ Ijajahmed, S/O Gudinkhan Bhadarvat… — Motor Accident Claims | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 16^TH DAY OF OCTOBER 2019

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BEFORE

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

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MISCELLANEOUS FIRST APPEAL No.21105 of 2010

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c/w MISCELLANEOUS FIRST APPEAL No.25005 of 2011 (mv)

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IN MFA NO 21105 OF 2010 BETWEEN

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AJAJAHMEDKHAN @ IJAJAHMED, S/O GUDINKHAN BHADARVAT AGE 56 YEARS, OCC:VEGETABLE VENDOR R/O HUBLI, DIST:DHARWAD

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... APPELLANT

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(By Sri. GANAPATI M BHAT, ADVOCATE)

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AND:

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MRS KANAKAMBARAM W/O T.N. GANESHWAN, AGE MAJOR OCC:OWNER OF BUS NO.KA 16/8873, R/O SRI VIJAYALAXMI TRANSPORT I.G.COLONY ADIVAL (PO) HIRIYUR, TAL:CHITRADURGA

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NATIONAL INSURNACE COMPANY BRANCH BELLARY, BY ITS DIVISIONAL OFFICE, SUJATA COMPLEX P.B.ROAD , HUBLI POLICY NO.603604/31/03/6303023 VALID FROM 24/1/2004 TO 23/1/2005

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THE MANAGING DIRECTOR NWKRTC GOKUL ROAD, HUBLI, P.B.ROAD

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... RESPONDENTS

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(By Sri. M.Y. KATAGI, ADV. FOR R2.

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SRI. F.S. DABALI, ADV. FOR R3, R1 SERVED)

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MFA FILED U/S 173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED:27-05-2009 PASSED IN MVC NO.804/2004 ON THE FILE OF THE I-ADDL. CIVIL JUDGE(SR.DN) AND MEMBER, ADDL. MACT, HULBI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 25005 OF 2011 BETWEEN

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THE MANAGING DIRECTOR, N.W.K.R.T.C. GOKUL ROAD, HUBLI NOW BY THE MANAGING DIRECTOR, K.S.R.T.C. CENTRAL OFFICE, K.H. ROAD, BANGALORE 27. REP. BY ITS CHIEF LAW OFFICER

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... APPELLANT

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(By Sri. F S DABALI, ADVOCATE)

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AND:

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AJAJAHMEDKHAN @ IJAJAHMED S/O GUDINKHAN BHADRAVATI AGE: 57 YEARS, OCC: VEGETABLE VENDOR, R/O HUBLI. PERMANENTLY R/AT HOSAMANE, 2ND CROSS, SUBHAS NAGAR, BEHIND JANATA RICE MILL, AT. BHADRAVATHI DIST. SHIMOGA. 577 301

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MRS. KANAKAMBARAM W/O T.N. GANESHWAN, AGE: MAJOR, OCC: OWNER OF BUS NO. KA 16/8873, R/O SRI. VIJAYLAXMI TRANSPORT, I.G. COLONY, ADIVAL (PO), HIRIYUR, TQ. CHITRADURGA 572143

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THE MANAGER, NATIONAL INSURANCE COMPANY,

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BRANCH BELLARY. BY ITS DIVISIONAL OFFICE, SUJATHA COMPLEX, P.B. ROAD, HUBLI, DIST. DHARWAD 580 020

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POLICY NO.603604/31/03/6303023 VALID FROM 24/1/2004 TO 23/1/2005

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... RESPONDENTS

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(By Sri.GANAPATI M BHAT & SRI. MOHANKUMAR M, ADVS. FOR R-1.

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SRI. M.Y. KATAGI, ADV.FOR R3. R2 SERVED)

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THIS MFA FILED U/SEC.173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DTD:27.05.2009 PASSED IN MVC.NO.804/2004 ON THE FILE OF THE I ADDL. CIVIL JUDGE (SR.DN) & MEMBER AMACT, HUBLI, AWARDING COMPENSATION OF RS.3,16,500/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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THESE MFAs COMING ON FOR ORDERS ON I.A. FOR EARLY HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These appeals are filed by the claimants as well as

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corporation challenging the judgment and award dated 27^th May 2009 passed by the I Additional Civil Judge (Senior Division) and Additional Motor Accident Claims Tribunal, Hubli, in MVC No.804 of 2004.

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Brief facts of the case are that on 29.10.2004,

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the claimant was traveling in a KSRTC bus bearing

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registration No.KA.16/8873 from Belgaum to Hiriyur.

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The driver of the said bus drove the same in a rash and negligent manner and lost control over the vehicle and dashed to the stationary truck bearing registration KA 25/C 6111 near to North Traffic Police Station, Hubli on Tarihal road. Due to the accident, the claimant sustained grievous injuries. He was shifted to KIMS hospital, Hubli and took treatment as an inpatient and further he took treatment in the hospital at Shimoga and also at Kasturba Hospital Manipal. After recovering from the injuries, he has filed a claim petition in MVC No.804 of 2004.

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To establish his case, he has examined himself as PW-1 and also examined Dr. Shivanand Dodamani as PW-2 and marked 18 documents. On behalf of the respondents, insurance company has examined one witness and marked one document.

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On appreciation of the oral and documentary evidence on record, the Tribunal has granted

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compensation of Rs.3,16,500/- with interest at 6% per

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annum and fastened the liability on the corporation.

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Being aggrieved by the same, the corporation as well as the claimant are in appeals.

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Learned counsel for the corporation submitted that the offending vehicle bearing registration No.KA.16/8873 was run by the KSRTC on a contract basis under an agreement and the owner of the vehicle had given the vehicle on hire. The said vehicle was insured with the insurance company, who is the second respondent herein. The Hon’ble Apex Court in the case of Uttar Pradesh State Road Transport Corporation v. Kulsum And Others reported in (2011) 8 Supreme Court Cases 142 has held that “ when the vehicle was given on hire by the owner of the vehicle, if the vehicle met with an accident and the vehicle is insured with the insurance company by the original owner, it will be deemed that vehicle was transferred along with insurance policy, the insurer of policy taken out by

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original owner would not be ale to escape its liability to pay compensation. Hence, liability of insurance company is exclusive and absolute.” The Tribunal, contrary to the law settled in the aforesaid case, has wrongly fastened the liability on the corporation. Hence, he sought for allowing the appeal.

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Learned counsel for the claimant contended that at the time of the accident, the claimant was running a scrap selling shop and was earning Rs.6,000/- per month. The Tribunal while calculating the income of the claimant has taken notional income of Rs.3,000/- per month which is on the lower side. Secondly, he has contended that the claimant has examined Dr. Doddamani as PW-2, who in his evidence has specifically stated that the claimant has suffered disability of 60% to the whole body. The Tribunal was not justified in taking only 50% as the whole body disability. Thirdly, he contended that due to the accident, he has suffered grievous injury. The Tribunal has granted only

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Rs.5,000/- under the category of loss of amenities. The same is on the lower side. Hence, he sought for enhancement of compensation.

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Per contra, learned counsel appearing for the

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insurance company contended that the owner of the offending bus has entered into an agreement with the Corporation for plying the bus. The Tribunal, after considering this aspect of the matter, has rightly fastened the liability on the corporation. He further contended that even though the claimant has claimed that he was earning Rs.6,000/- per month but he has not produced any document to establish the same. Further, he has contended that the Tribunal has granted just and proper compensation. Hence, he sought for dismissal of the appeal.

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Heard the learned counsel for the parties.

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Perused the original records.

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It is not in dispute that the bus bearing registration No.KA.16/8873 was insured with second

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respondent insurance company. Owner of the bus entered into an agreement with the corporation to run the bus on the route as per the permit granted. He had given the vehicle on hire. The claimant was traveling in the said bus from Belgaum to Hiriyur. Due to the rash and negligent driving by the driver of the bus, the accident had occurred and due to the accident, the claimant suffered grievous injury. The Hon’ble Apex Court in the case of Uttar Pradesh State Road Tansport Corporation (supra) has held at paragraphs 39 and 40 as follows:

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“39. Thus, looking to the matter form every angle, we are of the considered opinion that the insurance company cannot its liability of payment of compensation to third parties or claimants. Admittedly, owner of the vehicle has not violated any of the terms and conditions of the policy or provisions of the Act. The owner had taken the insurance so as to met such type of liability which may arise on account of use of the vehicle.

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40. Apart from the above, the learned counsel for the insurance company could not point out any legal embargo which may give right to it to deny the

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payment of compensation. Thus, legally or otherwise, liability has to be fastened on the insurance company only.”

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In view of the above, the appeal filed by the Corporation is allowed and the liability is fastened on the insurance company to pay the compensation. The judgment and award dated 27^th May 2009 passed by the I Additional Civil Judge (Senior Division) and Additional Motor Accident Claims Tribunal, Hubli, in MVC No.804 of 2004, is modified to the above extent.

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Due to the accident, the claimant has sustained fracture injuries to shaft of 1/3^rd of both bones of right leg tibia and fibula and other parts of the body. He was taken to KIMS hospital and took treatment as an inpatient. Thereafter, he was shifted to Kasturba hospital Manipal, wherein his right leg was amputated. The claimant has examined Dr. Shivanand Doddamani as PW2. In his deposition, he has categorically stated that the claimant has suffered disability to an extent of 60%. The Tribunal has taken the whole body disability at 50%. In

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view of the categorical deposition of the Doctor and Ex.P6-wound certificate, the Court is of the opinion that the whole body disability has to be considered as 60%.

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Even though the claimant has claimed that he was earning Rs.6,000/- per month, he has not produced any document to establish his case. Under this circumstance, the Tribunal was left with no other option but to assess the income of the claimant notionally. While assessing the notional income, the Tribunal has considered the income of the claimant as Rs.3,000/- per month, which is on the lower side. This Court in catena of decisions, while assessing notional income, has considered the chart prepared by the Lok Adalat. As per the chart, for the accident occurred in the year 2004, the notional income was fixed as Rs.3,500/- per month. Taking into consideration the same, this Court is of the opinion that the notional income of the claimant has to be considered at Rs.3,500/- per month. Accordingly, the

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claimant is entitled to loss of future earning which is reassessed as follows:

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3,500x12x9x60/100=2,26,800/-

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In view of enhancement in monthly income of the claimant, loss of earning during treatment period is enhanced from Rs.9,000/- to Rs.11,000/-.

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Due to the accident, the claimant has suffered fracture injuries of shaft bone of right leg and other parts of the body. PW-2 in his deposition has sated that due to the accident, the claimant has suffered 60% disability to the whole body. He has to suffer discomfort and unhappiness through out his life. Therefore, the Tribunal is not justified in granting only Rs.5,000/- under the category of loss of amenities. This Court, on consideration of the deposition of the doctor and Ex.P-6 wound certificate, loss of amenities is enhanced to Rs.30,000/- from Rs.5,000/- as awarded by the Tribunal.

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Compensation awarded by the Tribunal under other heads are sufficient and are retained.

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16. Accordingly, the appeal filed by the claimant is

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allowed in part. The judgment and award dated 27^th May 2009 passed by the I Additional Civil Judge (Senior Division) and Additional Motor Accident Claims Tribunal, Hubli, in MVC No.804 of 2004, is modified as follows:

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Rs.

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1	Painand suffering	50,000/-
2	Towardsmedicalexpenses	40,000/-
3	Towards attendant charges	4,500/-
4	Towards nursing and nourishment charges	5,000/-
5	Towards conveyance and transportation charges	5,000/-
6	Loss of earning during treatment period	11,000/-
7	Loss of future earnings	2,26,800/-
8	Loss of amenities	30,000/-
	Total	3,72,300/-

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The claimants are entitled to reassessed compensation of Rs.3,72,300/- with interest at 6% per annum. Out of the compensation, 50% shall be deposited in the name of the petitioner in any Nationalized Bank in a fixed deposit for a period of 3 years with liberty to withdraw the interest accrued on fixed deposit. Remaining 50% shall be released to the claimant on due verification.

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The insurance company is directed to deposit the award amount with interest at 6% per annum before the Tribunal within six weeks from the date of receipt of a copy of this copy of this order. The Tribunal is directed to disburse the amount to the claimant after due verification.

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Office is directed to refund the statutory amount deposited by the corporation.

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Sd/JUDGE

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Kmv

Ajajahmedkhan @ Ijajahmed, S/O Gudinkhan Bhadarvat v. Mrs Kanakambaam

Case brief

What is this about?

What did the court decide?

Ajajahmedkhan @ Ijajahmed, S/O Gudinkhan Bhadarvat v. Mrs Kanakambaam

Case brief

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