Partly allowed

Sri a T Suresh v. Sri Mushtaq Azam Khan

Karnataka HC15 Jun 2023MFA/2585/2015

Case brief

AI extract

What is this about?

This miscellaneous first appeal challenged the Motor Accident Claims Tribunal's award in a case involving an accident between a goods vehicle overloaded with passengers and a lorry. The High Court modified the Tribunal's contributory negligence apportionment from 10% on the claimant to 30% on the goods vehicle driver and enhanced the total compensation to Rs. 2,61,830/-.

What did the court decide?

Compensation enhanced to Rs. 2,61,830/- with 70% payable by the insurer and 30% by the goods vehicle driver.

Sri a T Suresh Vs Sri Mushtaq Azam Khan — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:20617 MFA No. 2585 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 2585 OF 2015 (MV-D)

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BETWEEN:

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SRI A. T. SURESH, S/O SRI. OBLAIAH, AGED ABOUT 32 YEARS, R/A: ADALAGERE, NITTUR HOBLI, GUBBI TALUK, TUMKUR DISTRICT-572 102.

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…APPELLANT

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(BY SRI. RAMESH K R.,ADVOCATE)

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AND:

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Digitally signed by PAVITHRA B Location: HIGH COURT OF KARNATAKA

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SRI. MUSHTAQ AZAM KHAN, S/O LATE ABDUL MAJID KHAN, AGED ABOUT 58 YEARS, R/A: NO.5, PATALAMMA TEMPLE STREET, NEAR SOUTH END, BENGALURU-560 004.

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THE ORIENTAL INSURANCE COMPANY LTD, CBO. 11, #21, MISSION ROAD, NEW SUBBAIAH CIRCLE, BENGALURU-560 027.

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…RESPONDENTS (BY SRI. C. R. RAVISHANKAR., ADVOCATE FOR R2)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.02.2015 PASSED IN MVC NO.1315/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE

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NC: 2023:KHC:20617 MFA No. 2585 of 2015

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AND AMACT, GUBBI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed under Section 173(1) of the Motor Vehicles Act 1988 (hereinafter referred to as ‘MV Act’ for brevity) by the appellant–claimant, calling in question the judgment and award dated 02.02.2015, passed in M.V.C.No.1315/2008, on the file of the Senior Civil Judge and Additional Motor Accident Claims Tribunal, Gubbi, (hereinafter referred to as ‘the Tribunal’ for brevity) for seeking enhancement of the compensation.

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Brief facts:

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On 27.05.2008 in between 10.45 and 11.00a.m.,

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the claimant and other villagers were traveling in a Tata mobile (goods vehicle) bearing Reg.No.KA-19-4469, which was moving in a slow speed on the left side of the road from Tumkur to Adalagere near Milk Union Office on NH-206, a lorry

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bearing Reg.No.MKO-9310 which was driven by its driver in a rash and negligent manner came from Gubbi side and dashed

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against the Tata mobile vehicle, on account of which the claimant and other villagers sustained bodily injuries.

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Hence, a claim petition was filed by the appellantclaimant under Section-166 of the M.V. Act, claiming compensation for the injuries suffered in the accident. The Tribunal on appreciating the materials on record, allowed the

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claim petition in part, and awarded a compensation of Rs.1,39,177/-, along with interest at 6% per annum from the date of petition till the date of realisation. The Tribunal held the driver of the Tata Mobile vehicle and the respondent No.2 insurance company, liable to pay the compensation.

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Heard arguments of the learned counsel for the

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appellant-claimant and the learned counsel for respondent No.2 – insurance company and perused the materials on record.

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NC: 2023:KHC:20617 MFA No. 2585 of 2015

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5. The learned counsel for the appellant-claimant

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submitted that the Tribunal has committed error in fastening contributory negligence of 10% on the appellant-claimant and 20% on the driver of the Tata mobile vehicle, whereas the driver of the lorry was completely rash and negligent in driving and caused the accident. The coordinate bench of this Court vide judgment and dated 19.03.2015 passed in MFA No.10536/2012 and connected matters, has held the entire negligence on the part of the driver of the lorry. Hence, requested to hold the entire negligence on the part of the driver of the lorry. Therefore, he prays for modification on the aspect of negligence and also for enhancement of compensation by allowing the appeal.

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On the other hand, learned counsel for the respondent No.2-insurance company submitted that in the present case, the seating capacity of the Tata Mobile (goods vehicle) is only 2+1 and the driver and owner of the said Tata Mobile vehicle has allowed 21 passengers to travel in the said Tata Mobile vehicle. When the Tata Mobile vehicle is a small

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NC: 2023:KHC:20617 MFA No. 2585 of 2015

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vehicle, having seating capacity of 2+1, allowing 21 passengers in the said goods vehicle certainly amounts to contributory negligence on the part of the driver of the Tata Mobile vehicle. Therefore, the Tribunal is correct in making contributory negligence. He further submitted that the quantum of compensation awarded by the Tribunal is correct and justified and hence, prays to dismiss the appeal.

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In the present case, the accident is between the Tata Mobile goods vehicle having seating capacity of 2+1 and the lorry bearing Reg.No.MKO-9310. The Tata Mobile vehicle is not a passenger carrying vehicle but it is a goods carrying vehicle having seating capacity of 2+1 only, wherein 21 passengers have traveled in the said goods vehicle. This shows the greediness of the driver and owner of the Tata Mobile vehicle. It is also not the case of either the claimant or the owner of the Tata Mobile vehicle that there is no proper transport facility in the said place, therefore, 21 passengers have traveled in the Tata Tempo.

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Even if this Court in MFA No.10536/2012 stated supra, has modified the contributory negligence but the fact remains that 21 passengers have traveled in the small vehicle i.e., Tata Mobile vehicle having seating capacity of 2+1 and that too its a goods carrying vehicle, which certainly causes disturbance to the driver of the Tata Mobile vehicle and paving way of contributory negligence on the part of the driver of Tata Mobile vehicle, and it is also not the case that just 3-4 extra passengers have traveled in the said Tata Mobile vehicle. When the Tata Mobile vehicle is a small goods carrying vehicle, allowing 21 passengers in the said vehicle certainly amounts to contributory negligence on the part of its driver.

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The driver of the Tata Mobile vehicle had allowed 21 passengers to travel in the said vehicle including the claimant, hence, there could not be contributory negligence on the part of the appellant-claimant, but the driver and owner of the Tata Mobile vehicle had allowed 21 passengers to travel in the small goods carrying vehicle, therefore, the driver of the Tata Mobile vehicle can be held contributory negligence of 30% for allowing

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21 passengers to travel in the said goods vehicle. Therefore, the contributory negligence fastened on the appellant-claimant is set aside and it is held that the contributory negligence of 30% is fastened on the driver of Tata Mobile vehicle and the remaining 70% contributory negligence is fastened on the driver of the lorry. Accordingly, the judgment is modified to the above extent.

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The compensation awarded by the Tribunal is as

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follows:

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1.	Pain and Suffering	Rs.	30,000/-
2.	Medical Expenditure	Rs.	46,530/-
3.	Attendant Charges and Food and nourishment charges	Rs.	2,000/-
4.	Transportation charges	Rs.	5,000/-
5.	Loss of Amenities	Rs.	60,000/-
	TOTAL	Rs.	1,43,530/-

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It is seen from the medical evidence viz., wound certificate Ex.P-4, it is proved that the appellant-claimant had sustained following injuries:

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“(a) Lacerated wound over Ocipited regular 3X1 cm,

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(b) Swelling on the left eye,

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The claimant had suffered fracture of zygomatic bone and the doctor has stated that the claimant has suffered 15% physical disability to the whole body. Therefore, the compensation awarded towards pain and suffering and medical expenditure is found to be correct and are kept intact. The appellant-claimant was admitted as in-patient for 10 days, therefore, the appellant-claimant is entitled for compensation of Rs.20,000/- towards attendant charges,

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food and nourishment and traveling expenses.

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The doctor had stated that claimant has suffered disability of 15% to the whole body. The claimant has suffered fracture of zygomatic arch. The claimant is claiming that he is a Mason, but has stated in his affidavit as an Agriculturist; both Mason and Agriculturist requires physical strength for which they need to eat nutritious food and if zygomatic bone is fractured then it is difficult for the claimant to take sufficient

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food, which causes weakness of the body, hence to this extent the claimant is entitled for compensation under the head 'loss of future income' due to disability; but for the fracture of zygomatic arch, assessing 15% as physical disability to the whole body is on the higher side, therefore, considering the nature of injury sustained and the avocation of the claimant, it is just and proper to take 10% as functional disability affecting the claimant. The accident is of the year 2008, the notional income is taken as Rs.4,500/- per month. The claimant was aged 27 years, therefore, the appropriate multiplier is 17, hence, the loss of future income due to disability is assessed as :

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Rs.4,500 X 10/100 X 17 X 12 = Rs.91,800/-.

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The quantum of compensation granted on the head of loss of amenities is not disturbed. Further, the appellantclaimant is entitled for compensation of Rs.13,500/- for loss of income during laid up period by considering the notional income at Rs.4,500/- for a period of three months.

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The appellant-claimant is entitled to 70% of compensation from respondent No.2-Insurance Company and 30% from the driver/owner of Tata Mobile vehicle.

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Therefore, in modification of the award of the Tribunal, the appellant-claimant is entitled to the following compensation:

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1.	Pain and Suffering	Rs.	30,000/-
2.	Medical Expenditure	Rs.	46,530/-
3.	Attendant Charges, Food and nourishment charges and Transportationcharges	Rs.	20,000/-
4.	Loss of future income	Rs.	91,800/-
5.	Loss of Amenities	Rs.	60,000/-
6.	Loss of income during laid-up period	Rs.	13,500/-
	TOTAL	Rs.	2,61,830/-

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Therefore, the appellant-claimant is entitled for

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compensation of Rs.2,61,830/- as against Rs.1,43,530/-. The appellant – claimant is entitled for an enhanced compensation of Rs.1,18,300/- (Rs.2,61,830 – Rs.1,43,530) along with interest at 6% per annum from the date of filing of

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NC: 2023:KHC:20617 MFA No. 2585 of 2015

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the petition till realization, in addition to what has been awarded by the Tribunal. The Insurance Company is directed to deposit 70% of total compensation amount and the driver of the Tata Mobile vehicle (Claimant in MVC No.1318/2008) is directed to deposit 30% of the total compensation amount. The respondent No.2-Insurance company and the driver of the Tata Mobile vehicle are directed to deposit the compensation amount within Eight Weeks from the date of receipt of the certified copy of this judgment.

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Accordingly, I pass the following:

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ORDER

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i. The appeal is allowed in part .

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ii. The impugned judgment and award 02.02.2015, passed in M.V.C.No.1315/2008, on the file of the Senior Civil Judge and Additional Motor Accident Claims Tribunal, Gubbi, is modified to the aforesaid extent.

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NC: 2023:KHC:20617 MFA No. 2585 of 2015

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iii. The appellant – claimant is entitled for an enhanced

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compensation of Rs.1,18,300/- (Rs.2,61,830 – Rs.1,43,530) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal.

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iv. The remaining observations and findings made by the Tribunal in the aforesaid impugned judgment and award are kept in tact.

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v. Respondent No.2 – insurance company is directed to pay 70% of the compensation amount to the appellant-claimant.

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vi. The driver of the Tata Mobile vehicle (Claimant in MVC No.1318/2008) is directed to pay 30% of the compensation amount to the appellant-claimant.

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vii. The respondent No.2-Insurance company and the driver of the Tata Mobile vehicle are directed to deposit the compensation amount within Eight Weeks from the date of receipt of the certified copy of this judgment.

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viii. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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ix. Draw award accordingly.

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No order as to costs.

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Sd/JUDGE

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BSR List No.: 1 Sl No.: 5

Sri a T Suresh v. Sri Mushtaq Azam Khan

Case brief

What is this about?

What did the court decide?

Sri a T Suresh v. Sri Mushtaq Azam Khan

Case brief

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What did the court decide?

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