Partly allowed

Meera v. Mohammed Zahirulla

Karnataka HC7 Dec 2021MFA/95/2015

Case brief

AI extract

What is this about?

The High Court enhanced compensation awarded in a motor accident case due to grievous injuries including pelvic fracture. It modified the quantum for pain and suffering, disability, and incidental expenses, and clarified the right of the claimant to recover the entire amount from the insurer of the victim's vehicle despite apportioned liability.

What did the court decide?

Appeal allowed; compensation enhanced to Rs. 1,92,095/- with interest; judgment and award modified.

Meera Vs Mohammed Zahirulla — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

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DATED THIS THE 7^TH DAY OF DECEMBER, 2021

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BEFORE

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THE HON'BLE MR.JUSTICE P.N. DESAI

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MISCELLANEOUS FIRST APPEAL NO.95 OF 2015 (MV)

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BETWEEN

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MEERA W/O. SURESHA AGE 31 YEARS, HOUSE WIFE R/O. 1^ST CROSS, SIDDARAMAPPA EXTENSION, HOLALKERE TOWN-577 526.

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... APPELLANT

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(BY SRI. SHASHIDHARA, ADVOCATE)

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AND

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MOHAMMED ZAHIRULLA S/O. ADAM ALI, AGE 29 YEARS OWNER OF VEHICLE BEARING NO.KA-16/B-816, 2^ND CROSS SIDDARAMAPPA EXTENSION, HOLALKERE TOWN-577 526.

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THE DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD., OPP: BAPUJI AUDITORIUM MCC B-BLOCK, DAVANAGERE - 577 001.

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SHARABAIAH S/O. SIDDANAGOWDA, AGED ABOUT 37 YEARS OWNER OF LORRY BEARING NO.KA-34-A-4182, R/O. GOGGARAHATTY, HONNALI ROAD, BELLARY TOWN-583 101.

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... RESPONDENTS

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(BY SRI. B.A. RAMAKRISHNA, ADV. FOR R2, R1 SERVED, R3 NOTICE DISPENSED WITH)

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THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 02.07.2014 PASSED IN MVC NO.162/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE & MACT, HOLALKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA COMING ON FOR ADMISSION THROUGH PHYSICAL HEARING/VIDEO CONFERENCING, THIS DAY THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Heard the learned counsel for the appellant and also the learned counsel for the respondents. With the consent of both the parties, at the stage of admission itself, this matter is taken up for final disposal.

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This appeal arises out of the judgment and award dated 02.07.2014, passed by the Senior Civil Judge, MACT, Holalkere in MVC No.162/2013, wherein the Tribunal has awarded a compensation of Rs.90,000/- with interest at 8% per annum from the date of petition till the date of realization. The appellant has filed this appeal seeking enhancement of compensation.

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The brief facts of the case is that on

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24.02.2012 at about 5.30 a.m., the petitioner was traveling in Maxicab bearing registration No.KA-16-B816 from Holalkere to Bengaluru. When the said said vehicle came in front of the Snesidri gate in Hiriyur Taluk, the driver of the said Maxicab drove the vehicle in a rash and negligent manner and dashed the lorry bearing registration No.KA-34-A-4182, which was standing at the place of the accident, due to the impact, the petitioner/claimant sustained injury. She was immediately shifted to the Government Hospital, Hiriyur and then to Kasturba Medical Hospital, Manipal.

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Respondent No.1 is the owner of the vehicle

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Maxicab. But they have not filed any written statement. Respondent No.2 is the insurer of the vehicle appeared and denied the incident. It is contended that the liability is subject to terms and conditions of the policy.

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The petitioner got examined herself as PW1

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and got examined one witness as PW2 and produced

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documents marked as Exs.P1 to P59, which consist of FIR, wound certificate, police report, disability certificate, medical bills. Respondents have not examined the witness. On the other hand, insurance Company Policy copy i.e., R2 was produced and marked as Ex.R1. After hearing the arguments, the Tribunal passed the impugned judgment and award, which is under challenge.

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Learned counsel for the appellant Sri. Shashidhara , argued that the Tribunal has erred in appreciating the evidence on record. Though the claimant was in-patient for 12 days. Only a sum of Rs.20,000/- was awarded towards 'pain and suffering'. No amount is awarded for 'loss of amenities'. Towards nourishment and other charges, only a sum of Rs.1,800/- is awarded. No amount is awarded under the head 'loss of income during laid up period'. Though the doctor has stated that 16% disability to the limb, the Tribunal has awarded only a sum of Rs.8,000/- towards

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'disability', without disclosing or stating how Rs.8,000/is arrived.

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The Tribunal has apportioned the negligence of 70:30 on both the vehicles. The Tribunal ought to have directed the liability joint and several. In this regard, he relied on the decision of the Hon'ble Supreme Court in the case of KHENYEI VS. NEW INDIA ASSURANCE COMPANY LIMITED reported in (2015) 9 SCC 273 . In view of his submission, the learned counsel argued that the compensation be re-determined and enhanced.

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The learned counsel for respondent No.2 -

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Insurer Sri B.A.Ramakrishna, supported the judgment and contended that the Tribunal has rightly appreciated the evidence and in view of the medical evidence, has properly assessed the compensation and needs no interference.

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I have perused the impugned judgment and

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also the records of the trial court. Though the injury certificate initially shows that simple injuries as per Ex.P6, but subsequently there was a tenderness and pain. She was admitted to Kasturba Hospital and on examination of x-ray that was produced, it shows that there is a pelvic fracture: superior and inferior pubic rami fracture of left hemipelvis - grievous. The said Ex.P8

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treatment certificate shows she has taken the treatment as an in-patient from 26.02.2012 to 06.03.2012. She underwent postural reduction of fracture and brace application, discharged with advice of bed rest. Readmitted from 16.04.2012 to 18.04.2012 for mobilization and gait training and after three months the fracture union was noted. Therefore, looking into the nature of injury and period she was treated as an inpatient and the treatment she has taken, the amount awarded under the head 'pain and suffering' appears to be on the lower side. Hence, the same is enhanced to Rs.40,000/- instead of Rs.30,000/-. The Tribunal after considering the medical bills, has awarded a sum of

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Rs.25,695/-. The claimant suffered a fracture and has admittedly the petitioner has to travel from Holalkere to Manipal, she required proper diet. The Tribunal has awarded only a sum of Rs.1,800/- towards diet, nourishing and other incidental charges, which is on very lower side. Considering the nature of treatment the laid up period, the same is enhanced to Rs.10,000/instead of Rs.1,800/-. Regarding the disability, the Tribunal has not stated anything as to how it is arrived at Rs.8,000/-, though the doctor in his evidence has stated about the treatment and there is a disability to an extent of 16% below legs portion. He has also stated about the inconvenience, hardship that the petitioner will suffer and she would have difficulty in normal walking, activities of daily living, climbing stairs. She would be unable to sit on ground, perform heavy manual labour. Looking into the nature of the work and injury sustained, it is just and proper to take the disability at 5% to the whole body. The age of the petitioner was 30 years as on the date of the accident. Therefore, the appropriate multiplier that is applicable to her age group

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is 17. It is stated that the petitioner was a house wife and shown that her monthly income was Rs.8,000/- per month. Even according to the notional income to be taken whether there is no proof of income in the LokAdalath chart which is usually considered that awarding compensation in MVC cases in Lok-Adalath for the year 2012, a sum of Rs.7,000/- is taken as notional income. Therefore, the same is taken as the notional income of the petitioner. Then, the loss of income due to disability would be Rs.71,500/- (7,000x12x17x5%).

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Looking into the nature of fracture and after the treatment, the petitioner has to suffer the inconvenience and unhappiness through out her life. Therefore, a sum of Rs.10,000/- is awarded under the head 'Loss of amenities'.

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It is seen that no separate compensation is awarded by the tribunal under the head 'loss of income during laid up period' and hence a sum of Rs.10,000/- is awarded under the said head and a sum of Rs.5,000/- is

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awarded under the head 'attendant charges'. In all the petitioner is entitled for a total compensation of Rs.1,92,095/-. The break-up is as under :

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PARTICULARS	AMOUNT AWARDED BY THE TRIBUNAL	AMOUNT AWARDED BY COURT
Loss of earning due to disability	8,000-00	71,400-00
Pain and suffering	30,000-00	40,000-00
Medicalexpenses	25,695-00	25,695-00
Food and nourishment expenses	1,800-00	10,000-00
Loss ofamenities	-	10,000-00
Loss of income	-	10,000-00
during laid up period
Attendant charges	-	5,000-00
Conveyance and hire charges	20,000-00	20,000-00
TOTAL	85,495-00 (rounded off to Rs.90,000/-)	1,92,095-00

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As far as the apportionment portion is concerned, though the Tribunal has determined the liability on respondents No.2 and 3 at 70:30, it is settled principles of law that the claimant can recover the amount from any of the vehicle which involved in the

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accident when there is a composite negligence, determination of the accident between the parties. The liability is only for the parties, since both of them have been impleaded. Therefore, in the operative portion though at para 15 held that respondents No.1 and 3 are liable to pay the compensation joint and severally at the ratio of 70:30, however, since the claimant was traveling in the vehicle belonging to respondent No.1, which is insured with respondent No.2, since the liability is joint and several, the claimant can recover the entire amount from respondent No.2 and if respondent No.2 paid the entire amount, it can recover to an extent of 30% of liability from respondent No.3 in the execution proceedings by filing execution proceedings in accordance with law.

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In all, the appellant is entitled for an enhanced compensation of Rs.1,92,095/- with interest at 6% per annum from the date of petition till the date of realization. Accordingly, I pass the following :

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ORDER

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Appeal is allowed in part.

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The judgment and award dated 02.07.2014, passed

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by the Senior Civil Judge, MACT, Holalkere in MVC No.162/2013, is modified.

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The appellant is entitled for an enhanced compensation of Rs.1,92,095/- with interest at 6% per annum from the date of petition till the date of realization.

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The other order regarding deposit made by the Tribunal stands unaltered. The respondent No.2 shall make good of compensation amount enhanced, within six weeks from the date of the receipt of the certified copy of order.

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Cost made easy.

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If respondent No.2 pays the entire amount, it can recover 30% of liability amount from respondent No.3 by directly filing Execution Petition as held in the case of

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ORIENTAL INSURANCE COMPANY LTD., vs.

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NANJAPPA AND OTHERS reported in (2004) 13 SCC

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224.

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Sd/JUDGE

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Snc

Meera v. Mohammed Zahirulla

Case brief

What is this about?

What did the court decide?

Meera v. Mohammed Zahirulla

Case brief

What is this about?

What did the court decide?

What the court decided

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