Partly allowed

Nisar Ahamad Mehaboobsab Burbure v. Riyaz Ahamed S/O Moulasab Naregal

Karnataka HC11 Oct 2019MFA/24822/2013

Case brief

AI extract

What is this about?

This single-judge appellate court allowed the appeal partly, modifying the Motor Accidents Claim Tribunal award by enhancing the claimant's notional income. The court directed the insurance company to pay the enhanced compensation of Rs. 2,71,925/-, allowing recovery from the vehicle owner, while denying interest for a specific delayed period.

What did the court decide?

Modification of tribunal award to Rs. 2,71,925/-; direction to insurance company to deposit amount with liberty to recover from vehicle owner; denial of interest.

Nisar Ahamad Mehaboobsab Burbure Vs Riyaz… — Contract and Commercial Disputes | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 11^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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MFA NO 24822 OF 2013 (MV)

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BETWEEN

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NISAR AHAMAD MEHABOOBSAB BURBURE, AGE: 21 YEARS, OCC: MESTRI IN HITACH, NOW NIL, R/O: NEAR JOD MARUTI TEMPLE, GADAG.

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... APPELLANT (BY SRI.HARISH S MAIGUR, ADV.)

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AND

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RIYAZ AHAMED S/O MOULASAB NAREGAL, AGE: MAJOR, OCC: OWNER OF AUTO RICKSHAW, R/O: ZAKIR HUSSAIN COLONY, MULAGUND NAKA, GADAG.

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THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO.LTD., L.E.A.COMPLEX, DHARWAD. ... RESPONDENTS (BY SRI. R R MANE, ADV. FOR RESPONDENT.NO.2 NOTICE TO R.NO.1 HELD SUFFICIENT)

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THIS MFA FILED U/SEC.173(1) OF MV ACT, AGAINST JUDGMENT AND AWARD DTD:12.09.2012, PASSED IN MVC.NO.259/2010 ON THE FILE OF THE DISTRICT JUDGE AND MACT GADAG, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the claimant challenging the judgment and award dated 12.09.2012 passed by the MACT Gadag in MVC.No.259/2010, whereby the tribunal has granted compensation of Rs.2,42,325/- with interest at 6% p.a.

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Brief facts of the case are that claimant-Nisar Ahamad M Burbure was working as Mestri in Hitachi Company. On 19.03.2010 at about 18-15 hours on Gadag-Naregal road, near Kanaginahal cross, the claimant was returning from Narayanpura towards Gadag in an auto rickshaw bearing registration No.KA-26/7430, the driver of the said auto rickshaw was driving the vehicle in a high speed and rash and negligent manner, when the said vehicle came near the spot of accident, the driver, due to over speed, lost control over the vehicle and the said vehicle topple down towards the road side ditch and caused the accident. Due to the impact of the accident, the claimant has sustained fracture of right leg and caused injuries on other parts of the body.

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Immediately after the accident, he was admitted to Government Hospital, Gadag and later, he was shifted to KIMS Hospital, Hubballi. After recovering from the injuries, the claimant has filed a claim petition before the MACT, Gadag in MVC.No.259/2010 seeking compensation.

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To establish his case, the claimant examined himself as PW-1 and examined Dr.G.S.Palled as PW.2 and got marked 92 documents as Exs.P-1 to 92. On behalf of the respondents, the insurance company has examined 3 witnesses as R.Ws.1 to 3 and got marked 7 documents as Exs.R.1 to 7. On appreciation of the oral and documentary evidence on record, the tribunal granted compensation of Rs.2,42,325/- with interest at 6% per annum and fastened the liability on owner of the vehicle. Being aggrieved by the same, the claimant has filed this appeal.

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Sri. Harish S Maigur, learned counsel appearing for the appellant contended that Hon’ble Apex Court in the case of Rani and others V. National

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Insurance Co. Ltd and others, reported in AIR 2017 Supreme Court 3668 has held that even for violation of policy conditions, the insurance company has to pay compensation awarded by the tribunal and it has to be recovered from the owner of the vehicle. He has secondly contended that at the time of the accident, the claimant was earning Rs.8,000/- per month, but the tribunal is not justified in taking monthly income of the claimant only Rs.4,500/- per month, which is on lower side. Hence, sought for allowing the appeal.

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Per contra Sri. R.R.Mane, learned counsel

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appearing for the insurance company contended that it is an admitted fact that the vehicle was issued with permit to run within the limits of Gadag-Betageri Municipal Corporation, but the accident occurred beyond the limits of Gadag-Betageri Municipal Corporation. Therefore, there is a violation of policy condition. Hence, the tribunal

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has rightly fastened the liability on the owner of the vehicle. Secondly, learned counsel contended that even though the claimant has claimed that he was earning

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Rs.8,000/- per month, but he has not produced any document to show the same. Therefore, the tribunal has rightly taken the notional income of the claimant as Rs.4,500/- per month. Hence, sought for dismissal of the appeal.

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Heard the learned counsel appearing for the parties and perused the entire material on record.

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It is not in dispute that the claimant has

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suffered injuries due to the accident occurred on 19.03.2010, due to rash and negligent driving of the driver of the auto rickshaw bearing registration No. KA-26/7430. It is also not in dispute that the permit is issued to the vendor of the auto rickshaw to ply the vehicle within the limits of Gadag-Betageri Municipal Corporation, but accident occurred beyond the limits of Gadag-Betageri Muncipal limits and which is contrary to the permit issued by the Road Transport Authority. Under the similar circumstance, the Hon’ble Apex Court in the

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case of Rani and others Supra has held that the

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insurance company has to pay compensation to the respective claimants as determined by the tribunal, with liberty to recover the same from the owner of the offending vehicle. In view of the above, the insurance company is directed to pay the compensation awarded by the tribunal with liberty to recover the same from the owner of the offending vehicle.

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In respect of second contention is concerned, even though the claimant claimed that he was earning Rs.8,000/- per month, but he has not produced any document to establish the same. Under this circumstance, the tribunal has no other option, but to assess the income of the claimant notionally. While assessing the notional income, the tribunal has taken income of the claimant, Rs.4,500/- per month, which is lower on the side. This court in catena of decisions while calculating the notional income has considered the chart prepared by the Lok Adalath. As per the chart, accident for the year 2010, the notional income has been fixed as 5,500/- per month. Accordingly, the notional income of

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the claimant has to be taken as Rs.5,500/- per month and therefore, loss of future earnings has been calculated as 5,500x12x18x10/100=1,18,800/-. In view of enhancing the income of the claimant, the loss of income during the treatment period has to be enhanced from Rs.13,500/- to Rs.16,500/-.

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Accordingly, the appeal is allowed in part. The judgment and award passed by the tribunal is modified as under:

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1	pain and suffering	Rs.80,000/-
2	Loss of income during treatment period	Rs.16,500/-
3	Medical expenses	Rs.14,625/-
4	Future loss of earning	Rs.1,18,800/-
5	Loss of amenities	Rs.30,000/-
6	Conveyance, nourishment and diet	Rs.12,000/-
	Total	Rs.2,71,925/-

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Therefore, the claimant is entitled for total compensation of Rs.2,71,925/-. This court vide order dated 27.11.2017 has allowed the application for

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condonation of delay subject to condition that the claimant not entitled for the interest, for the delayed period i.e. for 367 days. Accordingly, the claimant is not entitled for the interest for delayed period of 367 days.

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The insurance company is directed to deposit

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the entire compensation amount within a period of six weeks from the date of receipt of copy of this order, with liberty to recover the same from the owner of offending vehicle.

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Apportionment and disbursement of the

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compensation amount shall be made in terms of the judgment and award of the Tribunal.

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The amount in deposit shall be transmitted to the concerned tribunal forthwith.

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Vb/- JUDGE

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Sd/-

Nisar Ahamad Mehaboobsab Burbure v. Riyaz Ahamed S/O Moulasab Naregal

Case brief

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Nisar Ahamad Mehaboobsab Burbure v. Riyaz Ahamed S/O Moulasab Naregal

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