Partly allowed

Prasantha v. Foud Fazal Mohammed Habibi

Karnataka HC3 Jun 2021MFA/7180/2012

Case brief

AI extract

What is this about?

This High Court allowed an appeal partly, holding the Tribunal erred in imputing contributory negligence. The court increased compensation by recalculating loss of future income based on a 16% upper limb disability instead of the tribunal's 5% global assessment.

What did the court decide?

Additional compensation of Rs.1,42,560/- awarded; total compensation fixed at Rs.3,04,610/-.

Prasantha Vs Foud Fazal Mohammed Habibi — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF JUNE 2021

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BEFORE

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THE HON’BLE MRS.JUSTICE M.G.UMA

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M.F.A.No.7180 OF 2012 (MV)

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BETWEEN:

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PRASANTHA, S/O LATE KESHAVA KHARVI, AGED ABOUT 25 YEARS, R/O DODDAHITHLU, BUNDER, GANGOLI VILLAGE & POST, KUNDAPURA TALUK

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… APPELLANT

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(BY.SRI H.PAVANA CHANDRA SHETTY, ADV)

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AND:

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FOUD FAZAL MOHAMMED HABIBI, AGED ABOUT 43 YEARS, S/O FAZAL REHAMAN MOHAMMED HABIBI, R/O BAITHULA ASMA, MAIN ROAD, MAL GANGOLI, GANGOLI VILLAGE AND POST, KUNDAPURA TALUK

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THE NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE, PUSHPA BUILDING, MAIN ROAD, KUNDAPURA, REP: BY ITS MANAGER

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… RESPONDENTS

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(BY SRI S.V.HEGDE MULKHAND, ADVOCATE FOR R2 VIDE ORDER DATED 20.07.2015, R1-NOTICE D/W)

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THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:23.08.2011 PASSED IN MVC No.430/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MACT, KUNDAPURA, PARTLY

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ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR FURTHER ARGUMENTS THIS DAY, THROUGH VIDEO CONFERENCE THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellant-claimant aggrieved by the Judgment dated 23.08.2011 passed in MVC No.430 of 2009 by the learned Senior Civil Judge and Additional MACT at Kundapura (for short, ‘the Tribunal’), allowing the claim petition in part and awarding 60% of the compensation i.e. Rs.97,230/- with interest at 6% per annum in favour of the claimant holding that he has contributed to the accident to an extent of 40%, has preferred this appeal, seeking enhancement of compensation.

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Brief facts of the case are that, the appellant filed the claim petition before the Tribunal seeking compensation contending that he is a fish trader and doing marketing business and earning Rs.8,000/- per month. On 09.02.2009 at about 10.00 a.m., the claimant was proceeding in his motorcycle bearing registration No.KA-20-L-8185 from Gangoli towards Trasi and at that time, the rider of the Honda

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Activa bearing registration No.KA-20-V-3224 drove the same in a rash and negligent manner and dashed to the motorcycle ridden by the appellant and caused the accident. As a result of the same, the appellant sustained grievous injuries and immediately he was shifted to Chinmayi Hospital, Kundapura. Due to the accident, he had sustained fracture of forearm radius right and abrasion measuring 3/2 cm on the right hand. He was hospitalized on 09.02.2009 and was discharged on 14.02.2009. The implant was fixed in the right hand and the same was removed by surgery. It is stated that the accident was due to rash and negligent riding of the Honda Activa scooter and therefore, the appellant sought for compensation.

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Respondent No.1 remained ex-parte before the Tribunal and respondent No.2 being the insurer contested the matter denying the contention taken by the appellant that the accident was due to rash and negligent riding of the scooter. The claimant examined himself as PW1, examined the doctor who treated him as PW2 and got marked Exs.P1 to P42 in support of his contention. Respondent No.2 has not led any

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oral evidence, but got marked the copy of the driving license and Insurance policy in support of its contention. The Tribunal after taking into consideration all these materials on record, came to conclusion that the claimant has contributed to an extent of 40% in causing the accident, therefore, he is entitled only for 60% of compensation, by foregoing remaining 40%. Further, it is held that respondent Nos.1 and 2 are jointly and severally liable to pay compensation of Rs.97,230/- to the claimant from the date of petition till the date of realization. Hence, the claimant is before this Court.

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Heard the learned counsel for the appellant and the learned counsel for respondent No.2. Perused the materials including the Trial Court records.

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Learned counsel for the appellant submitted that, even though the claimant is a fisher man and had suffered 16% disability as stated by PW2, the Tribunal has considered the disability at only 5% to the whole body. He further submitted that the notional income of the petitioner that was taken into consideration by the Tribunal at Rs.6,000/- per month is on lower side and the compensation awarded

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towards future amenities and pain and suffering is also on the lower side. He further submitted that on perusal of Ex.P3 – the spot mahazar and Ex.P4 – the spot sketch, the accident in question had occurred on the extreme left side of the road and the claimant was proceeding on the proper side leading from Gangoli to Trasi, which shows that the rider of the offending vehicle had came in wrong side of the road and dashed to the motorcycle ridden by the appellant. Under such circumstances, the finding of the Tribunal that the claimant has contributed to an extent of 40% in causing the accident is erroneous and without any basis. Accordingly, he prays for allowing the appeal by enhancing the compensation and also to interfere with the finding recorded by the Tribunal with regard to contributory negligence.

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Per contra , learned counsel for respondent No.2

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resisting the submission of the learned counsel for the appellant contended that, the Tribunal has considered the oral and documentary evidence placed before it and has properly formed an opinion that the claimant has contributed to an extent of 40% in causing the accident and the said

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finding do not call for any interference. He also submitted that the Tribunal has properly appreciated the evidence of PWs.1 and 2 in light of the medical records and has taken the disability at 5% to the whole body. Similarly, the Tribunal has awarded reasonable compensation under all heads and the same do not call for any interference. Hence, he prays for dismissal of the appeal.

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In light of the rival contentions urged by the learned counsel for both the parties, the points that would arise for my consideration are as under:

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“1) Whether the Tribunal erred in recording the finding that the appellant-claimant was negligent and has contributed to an extent of 40% in causing the accident and the same is liable to be interfered with?

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2) Whether the appellant-claimant is entitled for enhancement of compensation?”

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My answer to point No.1 is in ‘Affirmative’ and point No.2 in ‘Partly Affirmative’ for the following reasons:

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Point No.1: Regarding the finding given by the Tribunal that the claimant has contributed to an extent of

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40% in causing the accident, it has not assigned any specific reason. I have considered the spot mahazar which is marked as Ex.P.3 and spot sketch which is Ex.P.4. Both these documents show that the accident in question had occurred on the extreme western side of the road and the claimant was proceeding on his proper side, leading from Gangoli to Trasi. The rider of offending vehicle had came to the wrong side of the road and dashed to the motorcycle ridden by the appellant. As per these documents, the road was measuring 12 feet in width having kacha roads on both sides and the motorcycle ridden by the claimant was just about 5 feet away from the western edge of the road, whereas, the Honda Activa ridden by respondent No.1 from Trasi towards Gangoli has proceeded towards the wrong side and dashed to the motorcycle. Even the evidence of PW1 discloses that the rider of the Honda Activa was riding his vehicle in a rash and negligent manner came to the wrong side of the road and caused the accident. There is absolutely no contra evidence to hold that the claimant had also contributed to the accident. Therefore, I am of the opinion that the finding given by the Tribunal that the claimant has contributed upto 40% in

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causing the accident cannot be accepted. Hence, I answer point No.1 in ‘Affirmative’.

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Point No.2: The contention of the claimant that

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the monthly notional income taken by the Tribunal is on the lower side cannot be accepted as the accident is of the year 2009 and the Tribunal has assessed the monthly income at Rs.6,000/- per month which is just and proper. It is the contention of the claimant that the compensation awarded by the Tribunal under the heads future amenities and pain and suffering are not just and reasonable. It is also his contention that even though the doctor has opined that the disability is at 16%, the Tribunal has assessed the same at 5%.

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On perusal of the medical records, it is seen that the claimant has sustained fracture of right radius which was grievous in nature and he was admitted to hospital on 09.02.2009 and was discharged on 14.02.2009. He was again operated on 24.03.2009 to remove the implant. The Tribunal has awarded Rs.10,000/- towards ‘Loss of amenities’ and Rs.20,000/- towards pain and suffering. No reasons are

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assigned to enhance the compensation towards loss of amenities.

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To prove the contention of disability, the claimant examined PW2 -the doctor who treated him. This witness has stated that the claimant has suffered partial physical disability upto 16% to the right upper limb. Learned counsel for the appellant relied on the decision in Ramachandrappa vs. The Manager, Royal Sundaram Alliance Insurance Company Limited¹ to contend that the disability could not be reduced to 1/3^rd while assessing the same to the whole body and disability as assessed by the doctor who was treating the injured is to be taken into consideration.

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Learned counsel for respondent No.2 submitted that in the present case, the claimant is not doing any physical work and since he is doing trading business, the disability could not be assessed at 16% and the Tribunal was right in assessing the same at 1/3^rd i.e., 5% to the whole body.

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1 AIR 2011 SC 2951

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I have perused Ex.P5 - the wound certificate, which discloses that the claimant had sustained fracture of forearm radius right and immediately he was shifted to hospital and was treated with implant. Subsequently, the implant was removed. The only complaint of the claimant as stated by the doctor is that, he was having persistent pain with difficulty in rotating the forearm.

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PW2 - the doctor admitted during crossexamination that he has not mentioned anything with regard to the restriction in movement of forearm. As per Ex.P.40, there is reference to wasting of forearm muscles and restriction of wrist movement by 30%. It is also stated that hook grasp of the right hand is reduced. Considering these facts, I am of the opinion that the disability as assessed by PW2 – doctor at 16% is just and proper as the restricted movement of right forearm will definitely affect the work of the claimant either as a fisher man or coolie or as trader in fish. Hence, the loss of future income would be (6000 x 12 x 16/100 x 18 = Rs.2,07,360/-). The Tribunal awarded compensation of Rs.64,800/- towards loss of future income.

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Hence, the claimant is entitled to an additional compensation of Rs.1,42,560/- under the head loss of future income. Hence, I answer point No.2 in ‘Partly Affirmative’.

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Thus, the claimant is entitled to an additional compensation of Rs.1,42,560/- under the head loss of future income. Thus, the claimant is entitled for total compensation of Rs.3,04,610/- (i.e., 1,62,050+1,42,560) to be paid by the insurer.

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In view of the discussions made above, I proceed to pass the following:

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ORDER

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The appeal is allowed in part.

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The judgment and award dated 23.08.2011 passed in MVC No.430 of 2009 by the learned Senior Civil Judge and Additional MACT at Kundapura, is modified as under:

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In addition to the total compensation awarded by the Tribunal at Rs.1,62,050/-, the claimant is entitled to an additional compensation of Rs.1,42,560/-. Thus, the claimant is entitled for total compensation of Rs.3,04,610/- (Rupees Three Lakh Four Thousand Six Hundred and Ten only).

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The respondent-Insurance Company is directed to

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deposit the entire compensation amount with interest, as ordered by the Tribunal within a period of four weeks from the date of receipt of this order.

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Rest of the award passed by the Tribunal remain undisturbed.

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The amount, if any, deposited before this Court shall be transmitted to the Tribunal, forthwith.

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Sd/JUDGE

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nms

Prasantha v. Foud Fazal Mohammed Habibi

Case brief

What is this about?

What did the court decide?

Prasantha v. Foud Fazal Mohammed Habibi

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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