Partly allowed

Dore S/O Ganesh, v. Abdul Wahid S/O Abdul Majid

Karnataka HC14 Aug 2023MFA/20715/2012

Case brief

AI extract

What is this about?

Three miscellaneous first appeals filed under Section 173(1) of the Motor Vehicle Act, 1988, filed by claimants challenging a Motor Accident Claims Tribunal award. The High Court set aside the tribunal's exonerating judgment regarding the insurance company due to the driver's invalid license, directing payment first by the insurer and recovery from the owner. The compensation quantum was enhanced

What did the court decide?

Appeals allowed in part. Common judgment modified. Enhanced compensation awarded: Rs.2,03,375, Rs.48,080, and Rs.87,000 respectively with interest at 6% p.a. Insurer to pay first.

Dore S/O Ganesh, Vs Abdul Wahid S/O Abdul Majid — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC-D:8913 MFA No. 20713 of 2012 C/W MFA No. 20714 of 2012 MFA No. 20715 of 2012

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 14^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.20713/2012(MV-I) C/W MISCELLANEOUS FIRST APPEAL NO.20714/2012 MISCELLANEOUS FIRST APPEAL NO.20715/2012

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IN MFA.NO.20713/2012:

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BETWEEN:

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SURENDRA S/O. THIRUNEELAKANTA, AGE: 37 YEARS, OCC: CIVIL ENGINEER, R/O: NEAR INCOME TAX OFFICE, FORT, BELLARY.

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…APPELLANT

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(BY SRI MANJUNATHA G. PATIL, ADVOCATE)

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AND:

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Digitally signed by BHARATHI H M

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ABDUL WAHID S/O. ABDUL MAJID, OWNER OF LORRY, NO.MH-32/B-3009, R/O: BADNEER, NEW TOWN 7POST, AMARVATHI (DIST) MH, PIN: 444 701.

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THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY, LTD. OPP: RADHIKA THEATRE, D.O. BELLARY.

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…RESPONDENTS (BY SMT ARUNA R. DESHPANDE, ADVOCATE FOR R2; APPEAL AGAINST R1 IS STAND DISMISSED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, PRAYING TO CALL FOR THE LOWER COURT RECORDS IN MVC NO.392/2011 DATED 01.12.2011 ON

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NC: 2023:KHC-D:8913 MFA No. 20713 of 2012 C/W MFA No. 20714 of 2012 MFA No. 20715 of 2012

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THE FILE OF FAST TRACK COURT – IIND CUM MOTOR VEHICLE ACCIDENT CLAIMS TRIBUNAL – X AT BELLARY.

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IN MFA.NO.20714/2012:

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BETWEEN:

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MOHAMMED BASHA S/O. BUDENSAB, AGE: 43 YEARS, OCC: EX-ROD BENDER, R/O: GADANG STREET, C.B(COWL BAZAR), BELLARY.

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…APPELLANT

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(BY SRI MANJUNATHA G. PATIL, ADVOCATE)

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AND:

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ABDUL WAHID S/O. ABDUL MAJID, OWNER OF LORRY, NO.MH-32/B-3009, R/O: BADNEER, NEW TOWN 7POST, AMARVATHI (DIST) MH, PIN: 444 701.

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THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY, LTD. OPP: RADHIKA THEATRE, D.O. BELLARY.

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…RESPONDENTS (BY SMT ARUNA DESHPANDE, ADVOCATE FOR R2; NOTICE TO R1 IS HELD SUFFICIENT)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, PRAYING TO CALL FOR THE LOWER COURT RECORDS IN MVC NO.393/2011 DATED 01.12.2011 ON THE FILE OF FAST TRACK COURT – IIND CUM MOTOR VEHICLE ACCIDENT CLAIMS TRIBUNAL – X AT BELLARY.

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IN MFA.NO.20715/2012:

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BETWEEN:

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DORE S/O. GANESH, AGE: 41 YEARS, OCC: MASON CUM ROD BENDER, R/O: DOOR NO.14,

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M.C.H. QUARTER’S, PRESENTLY, AT SIDDARTHA NAGAR, BELLARY.

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…APPELLANT

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(BY SRI MANJUNATHA G. PATIL, ADVOCATE)

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AND:

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ABDUL WAHID S/O. ABDUL MAJID, OWNER OF THE LORRY, NO.MH-32/B-3009, R/O: BADNEER, NEW TOWN 7POST, AMARVATHI (DIST) MH, PIN: 444 701.

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THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY, LTD., OPP: RADHIKA THEATRE, D.O.BELLARY.

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…RESPONDENTS

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(BY SMT ARUNA R. DESHPANDE, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR

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VEHICLE ACT, 1988, PRAYING TO CALL FOR THE LOWER COURT RECORDS IN MVC NO.395/2011 DATED 01.12.2011 ON THE FILE OF FAST TRACK COURT – IIND CUM MOTOR VEHICLE ACCIDENT CLAIMS TRIBUNAL – X AT BELLARY.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These appeals are filed under Section 173(1) of the Motor Vehicles Act, 1988 (for short, hereinafter referred to as ‘the M.V.Act’).

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MFA No.20713/2012, MFA No.20714/2012 and MFA No.20715/2012 are filed by the claimants challenging the common judgment and award dated 01.12.2011 passed in M.V.C. Nos.392/2011, 393/2011 and 395/2011 respectively by the Motor Accident Claims Tribunal-X, Bellary, (For short, hereinafter called as ‘Tribunal) seeking enhancement of compensation.

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Brief facts of the case are that on 03.03.2009 at about 10.30 a.m. the appellant and other were proceeding to Sandur to attend the work in a Tata Indica Car bearing registration No.KA-34/M-5663 near Veniveerapura corss, at the same time lorry bearing registration No.MA-32/B3009 came in rash and negligent manner and dashed to the car and caused accident due to which appellant and others have sustained injuries.

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Heard the arguments and perused the records.

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In the present case, the accident was occurred on

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03.03.2009. The accident is between Truck and Car. The claimants are occupants in the Indica Car. Issue No.1 is answered by the Tribunal that the driver of the lorry has caused accident and he is solely responsible for the accident. Ex.R.1 is driving license. As per Ex.R.1-extract of driving license, the driver of the lorry was holding driving license to drive LMV (non-transport). The accident was caused on 03.03.2008. As per Ex.R.1-license there is no endorsement either to drive heavy goods vehicle or heavy passenger vehicle, but only mentioned as transport vehicle. Transport vehicle may be light motor vehicle or heavy goods vehicle or heavy passenger vehicle. In the present case, the offending vehicle is truck, which is heavy goods vehicle. But there is no mentioning in Ex.R.1 to drive heavy transport vehicle either truck or bus. Today, the learned counsel for the appellant/claimant submitted zerox copy of the driving license card in which it is

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mentioned the driver was having badge for driving the bus. Even it is considered for driving bus of transport vehicle which is expired on 11.02.2003. Therefore, as on the date of the accident, the driver of the lorry was not holding valid and affective driving license to drive the heavy goods vehicle. In the present case, the Truck involved is heavy goods vehicle. Therefore, it is proved that driver did not possess driving license to drive heavy goods vehicle. Therefore, insurance company has successfully established its defence in rebutting the liability.

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Regarding pay and recovery:

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In the present case, the Tribunal has observed

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that driver of Lorry bearing registration No.MH-32/B-3009 had not possessed driving licence at the time of the accident. Therefore, the Tribunal is correct in exonerating the Insurance Company from paying compensation to the claimants. However, as per Sub-section (2) of Section 149 of Motor Vehicle Act, when the Insurance Company

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established the fact that driver was not holding driving license, then as per Sub-sections (1), (5), (7) of Section 149 of Motor Vehicle Act, the Insurance Company as if the judgment debtor shall satisfy the claim in respect of third parties at the first instance and then recover the same from owner of the offending Lorry bearing registration No.MH-32/B-3009. Accordingly, order of pay and recovery is made as per the principle of law laid down by the Hon’ble Supreme Court in the cases of Pappu and Others

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vs. Vinod Kumar Lamba and Another¹ ; National Insurance Company Limited vs. Swaran Singh and Others² and also as per the full bench decision of this Court in the case of New India Assurance Company Limited vs. Yellavva and Another³ . Thus, an order of pay and recovery is made. To this extent, the judgment and award passed by the Tribunal is modified.

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REGARDING QUANTUM OF COMPENSATION:

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1 (2018) 3 SCC 208

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2 (2004) 3 SCC 297

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3 2020 ACJ 2560

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In MFA No.20713/2012

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From the medical evidence on record, it is

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proved that the claimant has suffered following injuries:

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i) Cervical vertebra fracture of base of body of C-2 with annular tear at C-2 & C-3.

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ii) Fracture of C-4 verbena seen with implants situ.

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iii) Fracture of shoulder clavicle and injury to neck and forehead.

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The Tribunal has awarded compensation under

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various heads as follows:

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1.	Pain and Suffering	Rs.40,000/-
2.	Medical expenses	Rs.90,000/-
3.	Nourishment	Rs.3,000/-
4.	Attendant charges	Rs.3,000/-
5.	Loss of earning	Rs.15,000/-
6.	Loss of future amenities	Rs.5,000/-
7.	Loss of future earning	Rs.2,70,000/-
8.	Future medical expenses	Rs.15,000/-
	Total	Rs.4,41,000/-

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The Tribunal has awarded compensation at Rs.40,000/- under the head injuries ‘pain and suffering’ is found to be correct.

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Further the Tribunal has awarded compensation at Rs.90,000/- under the head ‘ medical expenses’ as per the actual medical bills and receipts produced by the claimant the same is kept intact.

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The Tribunal has awarded compensation under the head loss of amenities is found on lesser side. Therefore, compensation of Rs.30,000/- is awarded under the head of amenities .

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Further compensation of Rs.10,000/- is awarded under the head of ‘ attendant charges’ like food, nourishment etc.,

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The doctor stated that the claimant has suffered 50% of physical disability. The claimant is civil engineer and the nature of work requires roaming in the field and inspection of civil engineer works. Therefore, the fracture of Cervical Vertebra certainly causes effective future loss

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of income and also effective future prospects in life. Assessment of functional disability and physical disability are not based on mathematical formula. The functional disability is to be assessed considering the age, nature of injury and disability occurred, the nature of work of the claimant and then how much said disability is affecting the nature of work of the claimant is to be assessed. Therefore, it is always not mathematical formula to be considered. Hence, considering the fact that the claimant had suffered fracture of C-4 verbena and civil engineer by profession, it is just and proper to consider the functional disability at 25% towards whole body. The accident was caused on 03.03.2009. The Tribunal has held the income of the claimant has as Rs.7,500/- per month. The claimant is Diploma in Civil Engineer holder, therefore, quite naturally the claimant must have been earning minimum of Rs.7,500/- per month and that is confirmed herein. The claimant is aged 40 years. The claimant has sustained significant injuries and disability as above discussed.

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Therefore, certain income is added according to the age of the claimant towards loss of future prospects in life as per the judgment of the division bench of this Court in the case of New India Assurance Company vs. Abdul S/o Mehaboob Tahasildar⁴ and the judgment of Hon’ble Supreme Court in the case of Sidram vs. Divisional Manager, United India Insurance Company Limited and anothe r⁵ .

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According to the age of the claimant 25% of income is added towards loss of future prospects in life and the appropriate multiplier applicable as per the judgment of the Hon’ble Supreme Court, in the case of Smt.Sarla Verma & Others vs. Delhi Transport Corpn and Another⁶ is ‘15’. Therefore, the compensation under the head ‘Loss of future income due to disability’ is reassessed and quantified as follows:

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4 MFA.No.103807/2016 C/w MFA Nos.103835/2016 & 103807/2018 dated 27.05.2022

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5 2022 ACJ 2611

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6 AIR 2009 SCC 3104

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Rs.7,500/- + Rs.1,875/- (25% of Rs.7,500/-) x 25/100 x 15 x 12 =Rs.4,21,875/-

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Further, compensation at Rs.22,500/- (Rs.7,500 x 3 months) is awarded under the head ‘ loss of income during medical treatment and laid up period ’ for 3 months.

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The Tribunal has awarded compensation under

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the head of ‘future medical expenses’ is found to be lesser side. The same is enhance at Rs.30,000/- .

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Hence, the claimant is entitled for a total

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enhanced compensation, under various heads as follows:

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1.	Pain and Suffering	Rs.40,000/-
2.	Towards Medical expenses	Rs.90,000/-
3.	Loss of amenities	Rs.30,000/-
4.	Attendant charges	Rs.10,000/-
4.	^{Loss of future income due to} disability	Rs.4,21,875/-
5.	Loss of income during medical treatment and laid up period	Rs.22,500/-
6.	Future medical expenses	Rs.30,000/-
	Total	Rs.6,44,375/-

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Therefore, the claimant is awarded a total compensation of Rs.6,44,375/as against the

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compensation awarded by the Tribunal at Rs.4,41,000/-. Hence, the claimant is entitled for enhanced compensation of Rs.2,03,375/- (Rs.6,44,375 - Rs.2,03,375) rounded off to Rs.2,03,500/- along with interest at 6% per annum from the date of filing of the petition till realization.

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In MFA No.20714/2012

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In the present case, the claimant had suffered

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the following injuries:-

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Fracture of C-4 verteena right side of the neck.

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Fracture of right clavicle bone

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Injury over the lower lip and other three lacerated wound.

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The Tribunal has awarded compensation under

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the following heads:

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Sl.	Particulars	Amount(Rs.)
No.
1	Pain and suffering	30,000-00
2	Medical expenses	3,000-00
3	Nourishment	3,000-00
4	Attendant charges	3,000-00
5	Loss of earning	7,200-00

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6	Loss of future amenities	5,000-00
7	Loss of future earning	90,720-00
8	Future medical expenses	10,000-00
	Total	1,51,920-00

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The compensation awarded under the head pain and suffering, medical expenses and future medical expenses are as per Tribunal and the same is kept intact.

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Since claimant is a bar bender by profession,

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the Tribunal has taken his income at Rs.3500/- per month, which is not correct. The accident is occurred during the year 2009. The income required to be taken is Rs.5,000/per month as per Karnataka State Legal Services Authority. The Tribunal has correctly held the percentage of disability at 15%. The claimant was aged 42 years. The appropriate multiplier is 14. Therefore, loss of future income is reassessed and quantified as:

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Rs.5,000/- X 15% X 14 X 12 = Rs.1,26,000/-

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Further, compensation of Rs.15,000/- (Rs.5,000 X 3) is awarded towards income during the laid up period.

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Towards loss of amenities = Rs.25,000/- is

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awarded.

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Future Medical expenses kept in tact.

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Towards food and nourishment Rs.6,000/- is

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awarded.

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Hence, the claimant is entitled for a total

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compensation under the various heads as follows:

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Sl.	Particulars	Amount(Rs.)
No.
1	Pain and suffering	30,000-00
2	Towards Medical expenses	3,000-00
3	Loss of amenities	25,000-00
4	Food, nourishment and attendant charges	6,000-00
5	Loss of future income due to disability	1,26,000-00
6	Future medical expenses	10,000-00
	Total	2,00,000-00

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27. Therefore the claimant in MFA No.20714/2012

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is entitled for compensation of Rs.2,00,000/- as against

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the compensation awarded by the Tribunal.

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Hence, the claimant is entitled for enhanced

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compensation of Rs.48,080/- (Rs.2,00,000 - Rs.1,51,920)

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along with interest at 6% per annum from the date of

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petition till realization of entire amount.

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In MFA No.20715/2012

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In the present case, the claimant had suffered

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the following injuries:-

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Fracture of greater tuberocity of right humorous

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Injuries over the forehead, right elbow, right shoulder, right knee and other part of the body.

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The Tribunal has awarded compensation under

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the following heads:

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Sl. No.	Particulars	Amount(Rs.)
1	Pain and suffering	30,000-00
2	Medical expenses	3,000-00
3	Nourishment	3,000-00
4	Attendant charges	3,000-00
5	Loss of earning	7,200-00
6	Loss of future amenities	5,000-00
7	Loss of future earning	64,800-00
	Total	1,16,000-00

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The compensation awarded under the heads

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pain and suffering, medical expenses are found to be

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correct. Hence, the same are kept intact.

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Since claimant is a Mason cum bar bender by profession, the Tribunal has taken his income at Rs.3600/per month, which is not correct. The accident is occurred during the year 2009. The income required to be taken is Rs.5,000/- per month as per Karnataka State Legal Services Authority. The Tribunal has correctly held functional disability at 10%. The claimant was aged 40 years. The appropriate multiplier is 15. Therefore, loss of future income is reassessed and quantified as:

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Rs.5000/- X 10% X 15 X 12 = Rs.90,000/-

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Further, compensation of Rs.15,000/- (Rs.5,000 X 3) is awarded towards income during the laid up period.

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Towards loss of amenities= Rs.30,000/- is

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awarded.

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Towards Future Medical expenses awarded compensation of Rs.15,000/-.

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Towards incidental expenses Rs.20,000/- is

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awarded.

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Hence, the claimant is entitled for a total

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compensation under the various heads as follows:

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Sl.	Particulars	Amount(Rs.)
No.
1	Pain and suffering	30,000-00
2	Medical expenses	3,000-00
3	Towards incidental charges	20,000-00
4	Loss of earning during laid up period	15,000-00
5	Loss of amenities	30,000-00
6	Loss of future earning	90,000-00
7	Towards future medical expenses	15,000-00
	Total	2, 03,000-00

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Therefore the claimant in MFA No.20715/2012 is entitled for compensation of Rs.2,03,000/- as against the compensation awarded by the Tribunal.

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Hence, the claimant is entitled for enhanced compensation of Rs.87,000/- (Rs.2,03,000 - Rs.1,16,000) along with interest at 6% per annum from the date of petition till realization of entire amount.

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Hence, I pass the following:

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ORDER

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i) The appeals filed by the claimants

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are allowed in part.

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ii) The common judgment and award dated 01.12.2011 passed in M.V.C. Nos.392/2011, 393/2011 and 395/2011 respectively by the Motor Accident Claims Tribunal-X, Bellary, stands modified to the aforesaid extent.

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iii) The claimants are entitled for additional compensation of Rs.2,03,375/-, 48,080/- and 87,000/- respectively along with interest at 6% p.a. from the date of filing of the petition till realization.

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vi) The Insurance company shall pay the compensation to the claimants at first instance

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and then recover the same from owner of the

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truck bearing No.MH-32/B-3009 as per Law.

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v) No order as to costs.

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vi) Draw award accordingly.