Partly allowed

Mohammed Ali Afthab v. Abdul Azeem

Karnataka HC10 Oct 2022MFA/6759/2019

Case brief

AI extract

What is this about?

In this motor vehicle accident claim appeal, the High Court allowed the revision in part. While upholding the assessed notional income and disability percentage, the court enhanced the compensation for loss of amenities and pain and sufferings, increasing the total award from Rs.5,74,256 to Rs.6,71,256. The insurance company was directed to deposit the enhanced amount with interest.

What did the court decide?

Total compensation enhanced to Rs.6,71,256; quantum of loss of amenities enhanced to Rs.35,000; quantum of pain and sufferings enhanced to Rs.40,000.

Mohammed Ali Afthab Vs Abdul Azeem — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF OCTOBER 2022

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BEFORE

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

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MFA No.6759 OF 2019(MV)

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BETWEEN

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MOHAMMED ALI AFTHAB S/O KHAIRULLA SAHEB AGED ABOUT 28 YEARS R/AT SEABIRD ROAD BAITHAKUR, KARWAR TALUK UTTARA KANNADA DISTRICT.

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...APPELLANT

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(BY SRI.GANESHA R., ADV.)

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AND

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1 . ABDUL AZEEM S/O LATE B.IBRAHIM AGE: MAJOR R/AT H.NO.2-156 NEAR PAULTRY FARM UDDINAHITHLU POST KODAVOOR VILLAGE, UDUPI.

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2 . THE DIVISIONAL MANAGER ORIENTAL INSURANCE CO. LTD, DIVISIONAL OFFICE VISHNU PRAKASH, II AND III FLOOR COURT ROAD, UDUPI TALUK UDUPI DISTRICT 576101.

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…RESPONDENTS

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(BY SRI.LAKSHMI NARASAPPA, ADV. FOR SRI. A.M. VENKATESH, ADV. FOR R2: NOTICE TO R1 IS SERVED BUT UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.02.2019 PASSED IN MVC NO. 873/2015 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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This appeal under Section 173(1) of Motor

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Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) has been filed by the claimant being aggrieved by the judgment dated 19.02.2019 passed by the Motor Accident Claims Tribunal, Udupi in MVC No.873/2015.

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Facts giving rise to the filing of the appeal

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briefly stated are that on 22.03.2015 at about 03.00 a.m., the claimant was a pillion rider in a motorcycle

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bearing Registration No.KA-20-EF-5033 proceeding from Udupi side towards Malpe side. The rider of the said motorcycle rode the same in a rash and negligent manner with high speed and when they reached the place near Amba Saloon of Malpe, suddenly a dog was crossed the road, hence, the rider of the motorcycle lost his control and skidded. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.

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The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent riding of the offending vehicle by its rider.

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On service of notice, the respondent Nos.1

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and 2 being the owner and the insurer have appeared through counsel and only respondent No.2 has filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. The age, avocation and income of the claimant and the medical expenses are denied. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition.

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On the basis of the pleadings of the parties,

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the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1, Dr.Vinodh Kumar was examined as PW-2 and Dr.Samir Prahalraj was examined as PW3 and got exhibited documents namely Ex.P1 to Ex.P24. On behalf of the respondents, no witness was

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examined but got exhibited a document namely Ex.R1. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent riding of the offending vehicle by its rider, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.5,74,256/- along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, the present appeal has been filed.

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The learned counsel for the claimant has raised the following contentions:

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Firstly, even though the claimant claims that he was working as a Mechanic at Sushma Auto Works at Udupi and earning Rs.17,000/- per month, but the Tribunal has taken the notional income as merely as Rs.8,000/- per month.

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Secondly, due to the accident, the claimant suffered head injury. He has examined the doctors as PW-2 and PW-3. PW-3 in his evidence has stated that the claimant has suffered 27.1% of cognitive disability and PW-2 in his evidence has stated that the claimant has suffered 30% disability. But the Tribunal has taken the whole body disability at 25%, which is on the lower side.

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Thirdly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 17 days. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain during treatment. Considering the same, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are on the lower side. Hence, he sought for allowing the appeal.

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7. On the other hand, the learned counsel for

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the Insurance Company has raised following counter contentions:

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Firstly, even though the claimant claims that he was earning Rs.17,000/- per month, he has not produced any documents to establish his income. Therefore, the Tribunal has rightly assessed the income of the claimant notionally.

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Secondly, even though the claimant has suffered head injuries but he has not undergone any surgery. The injuries suffered by the claimant are minor in nature. PW-2 is not a treated doctor. The Tribunal considering the injuries sustained by the claimant, has rightly assessed the whole body disability at 25%.

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Thirdly, considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the overall compensation awarded by the Tribunal is just and reasonable and it does not call for

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interference. Hence, he sought for dismissal of the appeal.

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Heard the learned counsel for the parties

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and perused the judgment and award of the Tribunal.

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It is not in dispute that the claimant has

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sustained injuries in the road traffic accident occurred

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due to rash and negligent riding of the offending vehicle by its rider.

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The claimant claims that he was earning Rs.17,000/- per month. He has not produced any documents to prove his income. Therefore, in the absence of proof of income, notional income has to be

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assessed. As per the guidelines issued by the Karnataka State Legal Services Authority, for the accident taken place in the year 2015, the notional income has to be taken at Rs.9,000/- p.m.

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As per wound certificate, the claimant has

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sustained reddish abrasion of 3cm X 2cm on the left side of forehead, left sided black eye present with CT scan showing right temporal lobe contusion, right basal ganglia contusion, diffuse axonal injury, left sided hemiparesis etc. PW-2, the doctor in his evidence has stated that the claimant has suffered disability 30% of disability. Therefore, taking into consideration the deposition of the doctor and injuries mentioned in the Wound Certificate, the Tribunal has rightly taken the whole body disability at 25%. The claimant is aged about 24 years at the time of the accident and multiplier applicable to his age group is ‘18’. Thus, the claimant is entitled for compensation of Rs.4,86,000/- (Rs.9,0001218*25%) on account of

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'loss of future income'.

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The nature of injuries suggests that the claimant must have been under rest and treatment for a period

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of 03 months. Therefore, the claimant is entitled for compensation of Rs.27,000/- (Rs.9,000 * 03 months) under the head ‘loss of income during laid up period’.

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Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. He was treated as inpatient for more than 17 days in the hospital. He has suffered lot of pain during treatment and he has to suffer with the disability stated by the doctor throughout his life. Considering the same, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'loss of amenities' from Rs.10,000/- to Rs.35,000/- and under the head of 'pain and sufferings' from Rs.25,000/- to Rs.40,000/-.

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Considering the nature of injuries, the compensation awarded by the Tribunal under other heads is just and reasonable.

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Thus, the claimant is entitled to the

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following compensation:

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	25,000	40,000
Medical expenses	76,756	76,756
Food, nourishment, conveyance and attendant charges	6,500	6,500
Loss of income during	24,000	27,000
laid up period
Loss of amenities	10,000	35,000
Loss of future income	4,32,000	4,86,000
Total	5,74,256	6,71,256

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In the result, the appeal is allowed in part . The judgment of the Claims Tribunal is modified.

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The claimants are entitled to a total compensation of Rs.6,71,256/- as against Rs.5,74,256/- awarded by the Tribunal.

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The Insurance Company is directed to deposit the compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition till the

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date of realization, within a period of six weeks from the date of receipt of copy of this judgment.

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Sd/JUDGE

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HA/-

Mohammed Ali Afthab v. Abdul Azeem

Case brief

What is this about?

What did the court decide?

Mohammed Ali Afthab v. Abdul Azeem

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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