Sri M D Nissar Ahmed v. Cholamandalam General Ins. Co. Ltd.

Karnataka HC10 Oct 2022MFA/8496/2012

Case brief

AI extract

What is this about?

The High Court allowed this appeal partly. Setting aside the Lower Tribunal's finding on contributory negligence, it held only the driver was negligent. The Court increased the disability percentage from 5% to 20% and enhanced the total compensation from Rs.1,09,200/- to Rs.2,97,800/-.

What did the court decide?

Judgment of Claims Tribunal modified; total compensation enhanced to Rs.2,97,800/- and awarded to the appellant.

Sri M D Nissar Ahmed Vs Cholamandalam General Ins. Co. Ltd. — Insurance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU 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.8496 OF 2012(MV)

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BETWEEN:

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SRI M D NISSAR AHMED S/O LATE ABDUL SAB AGED ABOUT 41 YEARS R/O HORAPETE-577501 CHITRADURGA. ...APPELLANT

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(BY SRI.V B SIDDARAMAIAH, ADV.)

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AND

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1 . CHOLAMANDALAM GENERAL INS. CO. LTD. DIVISIONAL OFFICE NO.9/1 ULSOOR ROAD, BANGALORE-01 REP BY ITS DIVISIONAL MANAGER.

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2 . SMT. R.RAHAMMAT UNNISSA W/O LATE ABDUL RAHEEM SAB MAJOR

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R/O PP. BASAVESHWARA TALKIES, CHALLAKERE TALUK CHITRADURGA DISTRICT. …RESPONDENTS

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(BY SRI.B.PRADEEP, ADV. FOR R1: NOTICE TO R2 SEVED BUN UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:01.08.2012 PASSED IN MVC NO.571/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, & CJM, ADDITIONAL MACT, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA COMING ON FOR HEARING, 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 1.8.2012 passed by the MACT, Chitradurga in MVC 571/2011.

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Facts giving rise to the filing of the appeal briefly stated are that on 7.7.2011 when the claimant was proceeding in a bus bearing No.KA-16-B-1368 from Nayakanahatti to Challakere and sitting in the back seat opposite to the door, at that time, the driver of the said bus drove the same at a high speed and in

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a rash and negligent manner. As a result, the

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claimant fell down from the bus and 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 driving of the offending vehicle by its driver.

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On service of notice, the respondents appeared through counsel and filed written statements in which the averments made in the petition were denied.

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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 and Dr.Ambrish was examined as

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PW-2 and got exhibited documents namely Ex.P1 to Ex.P22. On behalf of the respondents, one witness was examined as RW-1 and got exhibited documents namely Ex.R1. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of contributory negligence on the part of claimant and driver of the bus to the extent of 50% each. The Tribunal further held that the claimant is entitled to a compensation of Rs.109,200/- along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit the 50% of the said 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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Re: Negligence

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The accident occurred due to rash and negligent driving of the bus by its driver. When the claimant

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was standing in the bus, the driver of the bus drove the same at a high speed and in a rash and negligent manner and due to the impact, the claimant fell down and sustained injuries. The Tribunal has erred in giving a finding that the claimant was standing on the footboard of the bus and the said finding is not based on materials available on record and it is also not the case of the respondent that the claimant was standing on the footboard. Further, the Tribunal has erred in holding that the claimant has contributed to the accident to the extent of 50%.

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Re: Quantum of compensation

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Firstly, even though the claimant claims that he was doing mason work and earning Rs.8,000/- per month, but the Tribunal has taken the notional income as merely as Rs.4,000/- per month.

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Secondly, the claimant has examined the doctor as PW-2. The doctor in his evidence has stated that

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the claimant has suffered disability of 39% to left lower limb and 21% to right lower limb. But the Tribunal has taken the whole body disability at 5%, 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 20 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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On the other hand, the learned counsel for

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the Insurance Company has raised following counter contentions:

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Re: Negligence

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It is very clear from Ex.P-1, complaint wherein the claimant himself has stated that he was standing near the back door of the bus and he fell down and sustained injuries. Therefore, it is clear that he was standing on the footboard of the bus. He has violated the provisions of Section 123(2) of the MV Act. The Tribunal has rightly held that the claimant has also contributed to the accident to the extent of 50%. There is no error in the said finding of the Tribunal.

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Re: Quantum of compensation:

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Firstly, even though the claimant claims that he was earning Rs.8,000/- 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, the injuries sustained by the claimant are minor in nature. The Tribunal considering the

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injuries sustained by the claimant and evidence of the doctor, has rightly assessed the whole body disability at 5%.

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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 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 and records of the Tribunal.

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NEGLIGENCE

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It is the specific case of the claimant that on 7.7.2011 when he was proceeding in a bus bearing No.KA-16-B-1368 from Nayakanahatti to Challakere and sitting in the back seat opposite to the door, at

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that time, the driver of the said bus drove the same at a high speed and in a rash and negligent manner, As a result, the claimant fell down from the bus and sustained grievous injuries and was hospitalized. After recovering from the injuries, he filed the claim petition seeking compensation. Even as per Ex.P-1, complaint, it is not his case that he was standing on the footboard of the bus. Even it is not the case of the respondent that the claimant was standing on the footboard. The respondent has not examined the driver or the conductor of the bus to prove that the claimant was traveling on the footboard of the bus. Contrary to the materials available on record, the Tribunal has given a finding that the claimant was traveling on the footboard of the bus and held that he has contributed to the accident to the extent of 50%.

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Considering the oral evidences of the parties and materials available on record such as complaint, FIR,

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charge sheet, spot mahazar, seizure mahazar and wound certificate, I am of the considered opinion that the driver of the bus alone is negligent in causing the accident.

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QUANTUM OF COMPENSATION

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The claimant claims that he was earning Rs.8,000/- 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 assessed. As per the guidelines issued by the Karnataka State Legal Services Authority, for the accident taken place in the year 2011, the notional income has to be taken at Rs.6,500/- p.m.

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As per wound certificate, the claimant has sustained fracture of both ankles. The doctor in his evidence has stated that the claimant has suffered disability of 39% to left lower limb and 21% to right lower limb. Therefore, taking into consideration the

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deposition of the doctor and injuries mentioned in the wound certificate, the whole body disability is taken at 20%. The claimant is aged about 46 years at the time

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of the accident and multiplier applicable to his age

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group is ‘13’. Thus, the claimant is entitled for compensation of Rs.202,800/-

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(Rs.6,5001213*20%) on account of 'loss of future income'.

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Having regard to the nature of injuries, the claimant is entitled for compensation of Rs.15,000/under the head ‘loss of income during laid up period’ as against Rs.8,000/- awarded by the Tribunal.

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The claimant was treated as inpatient for more

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than 20 days in the hospital and thereafter, has received further treatment. Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. He has suffered lot of pain during treatment and he has to suffer with the disability

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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.20,000/-.

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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	25,000
Medical expenses	25,000	25,000
Food, nourishment, conveyance and attendant charges	10,000	10,000
Loss of income during	8,000	15,000
laid up period
Loss of amenities	10,000	20,000
Loss of future income	31,200	202,800
Total	109,200	297,800

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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 claimant is entitled to a total compensation of Rs.297,800/-.

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The Insurance Company is directed to deposit the entire compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition till the 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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Sri M D Nissar Ahmed v. Cholamandalam General Ins. Co. Ltd.

Case brief

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What did the court decide?

Sri M D Nissar Ahmed v. Cholamandalam General Ins. Co. Ltd.

Case brief

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