Partly allowed

The Branch Manager v. Mahamed Sami @ Mahamed Samiulla

Karnataka HC14 Oct 2022MFA/5001/2015

Case brief

AI extract

What is this about?

This Court allowed the appeals in part, enhancing compensation to Rs.4,52,170/- due to incorrect disability assessment and omission of heads like loss of amenities. The Insurance Company was held liable to pay that amount and recover it from the owner, as the driver lacked a valid transport license.

What did the court decide?

The impugned judgment and award were modified to grant enhanced compensation of Rs.4,52,170/- with interest. The Insurance Company is directed to pay the amount and recover it from the insured.

The Branch Manager Vs Mahamed Sami @ Mahamed Samiulla — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14^TH DAY OF OCTOBER, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.No.31/2016 (MV-I)

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CONNECTED WITH

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M.F.A.No.5001/2015 (MV-I)

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IN MFA NO.31/2016

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BETWEEN

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SRI MAHAMED SAMI @ MAHAMED SAMIULLA S/O MAHAMED HUSSEN @ WAJEER SAB AGED ABOUT 33 YEARS R/AT C/O MAHAMED JAVID LASHKAR MOHALLA NEAR GOVERNMENT MIDDLE SCHOOL CHANNAGIRI-577213 DAVANAGERE DISTRICT

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...APPELLANT

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(BY SRI V B SIDDARAMAIAH, ADVOCATE)

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AND

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THE ORIENTAL INSURANCE CO. LTD. NO.23/7, THILUVALLI COMPLEX 1^ST FLOOR, P.B.ROAD NEAR ARUNA TALKIES DAVANAGERE-577001 REP BY ITS BRANCH MANAGER

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SRI MANJAPPA S/O HANUMANTHAPPA AGED ABOUT 26 YEARS

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R/AT C.N.ROAD, HOLEHONNUR BHADRAVATHI TALUK SHIVAMOGGA DISTRICT

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SRI.A.RIYAZ S/O C AMEER SAB AGED ABOUT 48 YEARS R/AT MANDAKKIA BHATTI MAKKA MOHALLA, 2^ND CROSS CHITRADURGA TALUK-577501 CHITRADURGA DISTRICT

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... RESPONDENTS

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(BY SRI K N SRINIVAS, ADVOCATE FOR R1; V/O DT.10.04.2017, NOTICE TO R2 D/W; V/O DT.06.09.2018, NOTICE TO R3 IS HELD SUFFICIENT)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23.12.2014 PASSED IN MVC NO.40/2013 THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, CHANNAGIRI AND ETC.

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IN MFA NO.5001/2015

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BETWEEN

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THE BRANCH MANAGER THE ORIENTAL INSURANCE CO. LTD. NO.23/7, THILUVALLI COMPLEX 1^ST FLOOR, P.B. ROAD, NEAR ARUNA TALKIES DAVANAGERE REP BY ITS DEPUTY MANAGER THE ORIENTAL INSURANCE CO. LTD. REGIONAL OFFICE, 2^ND FLOOR SUMANGALA COMPLEX, LAMINGTON ROAD HUBALLI-580020

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...APPELLANT

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(BY SRI SRINIVASA K N, ADVOCATE)

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AND

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MAHAMED SAMI @ MAHAMED SAMIULL S/O MAHAMED HUSSEN @ WAJEER SAB AGED ABOUT 32 YEARS R/AT C/O MAHAMED JAVID LASHKAR MOHALLA NEAR GOVT. MEDDLE SCHOOL CHANNAGIRI DAVANAGERE DISTRICT-577213

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SRI MANJAPPA S/O HANUMANTHAPPA AGED ABOUT 25 YEARS R/AT NO. C.NO. ROAD, HOLEHONNUR BHADRAVATHI TALUK

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SHIMOGA DISTRICT-577227

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SRI A RIYAZ S/O C AMEER SAB AGED ABOUT 47 YEARS

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OWNER OF BUS BRG. NO.KA-04/A-4342 RA/T MANDAKKI BHATTI MAKKA MOHALLA, 2^ND CROSS CHITRADURGA-577501

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... RESPONDENTS

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(BY SRI V B SIDDARAMAIAH, ADVOCATE FOR R1; V/O DT.13.03.2020, NOTICE TO R2 D/W)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23.12.2014 PASSED IN MVC NO.40/2013 THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, CHANNAGIRI AND ETC.

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THESE M.F.A.S COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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These appeals are filed by the claimant as well as the Insurance Company challenging the judgment and award dated 23.12.2014 passed in M.V.C.No.40/2013 on the file of the Senior Civil Judge and MACT, Channagiri (‘the Tribunal’ for short).

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Heard the learned counsel appearing for the

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respective parties.

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The factual matrix of the case is that the claimant and

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his brother were traveling in a private bus sitting in the seat near the front door of the bus as paid passengers and respondent No.1 drove the said bus in a rash and negligent manner in ziz-zag manner which is endangerous to human life and near mini Vidhana Soudha, suddenly he took turn in reckless. Due to which the claimant was thrown out from his seat through front door of the bus. As a result, the claimant has sustained injuries over his head and other parts of the body and immediately, he was shifted to Governmetn hospital at Channagiri thereafter he was shifted to Meggan hospital, Shivamogga and from there, he was referred to Manjappa hospital, Shivamogga and he took treatment as an inpatient at

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Nanjappa hospital from 28.10.2012 to 06.11.2012. In order to substantiate his claim, he himself examined as PW1 and the doctor as PW2 and got marked the documents at Ex.P1 to P104. The doctor in respect of head injury is concerned, assessed the neurological disability at 60% but the Tribunal taking note of the evidence, comes to the conclusion that the doctor has not stated as to how such a disability can be assessed and in the assessment report it shows that he is not having any mental disability hence, considering Ex.P17, the Tribunal assessed the disability at 10% and the evidence of the doctor has not been considered. On the other hand, two witnesses have been examined on behalf of the respondents as RW1 and RW2 and got marked the documents at Ex.R1 to R9. After considering both the oral and documentary evidence, the Tribunal has awarded an amount of Rs.1,92,570/- with 9% interest per annum.

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The learned counsel appearing for the claimant would submit that the Tribunal has awarded very meager compensation and has not awarded the compensation on the heads of ‘loss of income during the laid up period’ and ‘loss of amenities’. The counsel also submits that the Tribunal has taken

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only 10% disability as against 60% without assigning any reason and the same is very meager hence, it requires interference of this Court.

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Per contra, the learned counsel appearing for the Insurance Company would vehemently contend that the Tribunal has failed to take note of the fact that the driver was not having any licence to drive the bus that is the public carriage vehicle and he should have a separate licence to drive public transport except transport vehicle and in order to substantiate the same, two witnesses have been examined as RW1 and RW2 and their evidences have not been considered in a perspective manner. The specific case of RW1 that the licence was valid from 01.10.2013 hence, the liability ought not to have been fastened on the Insurance Company.

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Having heard the respective counsel for the parties and also on perusal of the documents on record, the points that

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would arise for the consideration of this Court are:

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(i) Whether the Tribunal has committed an error in not awarding just and reasonable compensation?

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(ii) Whether the Tribunal has committed an error in fastening the liability on the Insurance Company?

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(iii) What order?

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Point No.1:

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Having heard the arguments of the learned counsel

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for the parties and also on perusal of the documentary evidence on record it is clear that the claimant had sustained fracture on limb as well as head injury and while considering Issue No.3, the Tribunal has taken note of the nature of the injuries sustained by him and the doctor also examined as PW2 but he is not the treated doctor and Ex.P17 does disclose the fact the injured has suffered 60% of neurological disability as contended by PW2. The Tribunal while considering the evidence of PW2 comes to the conclusion that the doctor has not stated as to how such a disability of 60% can be assessed when the assessment report says that there is no mental disability. Having taken note of the said fact, the Tribunal has taken only 10% disability hence, the Tribunal has not committed any error in not accepting the neurological disability of 60%. However, taking into note of the nature of injury i.e., he has suffered multiple hemorrhage and he

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was an inpatient for a period of 8 days, he was treated conservatively, when such being the case, the Tribunal ought to have considered the multiple hemorrhages. Hence, it is appropriate to take the disability of 20% as against 10% after considering the medical evidence.

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Now coming to the quantum of compensation, the

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Tribunal has awarded only Rs.15,000/- towards pain and suffering and the same would be enhanced to Rs.30,000/- taking note of the nature of the head injury as against Rs.15,000/-. The Tribunal has awarded an amount of Rs.75,570/- towards medical expenses and the same is based on the documentary evidence hence, it does not requires interference. However, the Tribunal has not awarded any compensation on the head of ‘loss of income during laid up period’ and it was the accident of the year 2012 and the notional income would be Rs.7,000/- and the Tribunal has taken only Rs.5,000/-. Having taken note of the nature of the injuries and he was in the hospital for a period of 8 days, it is appropriate to take 3 months loss of income it comes of Rs.7,000/- x 3 = Rs.21,000/-. The Tribunal has also not awarded compensation on the head of ‘loss of amenities’. When

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the doctor evidence discloses the disability at 60% and the same has been reconsidered at 20% and having considering the age of the claimant, he has to lead his rest of his life with the said disability of 20%, hence, it is appropriate to award an amount of Rs.30,000/- towards loss of amenities. The medical records discloses that he was an inpatient for a period of 8 days but the Tribunal has not awarded any compensation on the head of ‘food and nourishment and other incidental expenses’, hence, it is appropriate to award compensation of Rs.10,000/- towards ‘food and nourishment and other incidental expenses’. The Tribunal has awarded the compensation of Rs.1,02,000/- towards future income considering 10% disability and this Court revisited the same and reconsidered at 20% hence, it comes to Rs.2,85,600/(7,000 x 12 x 17 x 20%) and in all the claimant is entitled for an amount of Rs.4,52,170/- as against Rs.1,92,570/-. Hence, Point No.1 is answered as affirmative.

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Point No.2

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The main contention of the Insurance Company is

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that the driver of the bus was not having valid and effective driving licence to drive the bus. No doubt, the Tribunal has

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comes to the conclusion that he was having driving licence and the same was issued in the year 2007 itself and having considered Ex.R2 and also the evidence of RW1 and 2 and also on perusal of documents at Ex.R1 and R2, the DL was issued for motorcycle in 2005 and again for goods transport vehicle was issued on 2005 and transport vehicle MHMV was issued on 28.07.2005 to 27.07.2025 that is the licence to drive a motor vehicle other than transport vehicle and in respect of licence to the transport vehicle from 17.05.2012 to 16.05.2015. Ex.R1-DL also discloses that he is authorized to drive transport vehicle with effect from 01.10.2013 and the same is not considered by the Tribunal and Ex.R2 is with regard to the entries of giving of licence renewal and issuance that is history sheet of conductors and on perusal of the said document it pertains to the same to one Manjappa. On perusal of issuance of licence on 16.05.2007 that is also authorized to drive heavy transport vehicle and not in respect of public transport vehicle as contended by the counsel for the Insurance Company hence, the Tribunal has misread the same and fastened the liability on the Insurance Company considering that the injured/claimant is a passenger of bus in which he was traveled, the Insurance Company cannot be

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penalized and the same has to be recovered from the owner of the offending vehicle since the owner of the bus has entrusted the vehicle to the person who is not having valid licence to drive the public carriage vehicle. Hence, this point is answered as partly affirmative.

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Point No.3

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

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ORDER

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(i) The appeals are allowed in part.

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(ii) The impugned judgment and award of the Tribunal dated 23.12.2014 passed in M.V.C.No.40/2013 is modified granting compensation of Rs.4,52,170/- as against Rs.1,92,570/- with interest at 6% per annum on the enhanced compensation from the date of petition till deposit.

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(iii) The Insurance Company is directed to pay the compensation and recover the same from the insured.

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(iv) The Insurance Company is directed to pay the compensation amount with interest within six weeks from today.

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(v) The amount in deposit, if any, is ordered to be transmitted to the Tribunal forthwith.

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(vi) The Registry is directed to transmit the records to the concerned Tribunal, forthwith, if any.

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Sd/JUDGE

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The Branch Manager v. Mahamed Sami @ Mahamed Samiulla

Case brief

What is this about?

What did the court decide?

The Branch Manager v. Mahamed Sami @ Mahamed Samiulla

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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