Partly allowed

Aboobacker v. Mohammed Haneef

Karnataka HC5 Jan 2023MFA/705/2013

Case brief

AI extract

What is this about?

This First Appeal challenged the inadequacy of compensation and the insurer's exoneration in a motor accident case. The High Court enhanced total compensation to Rs. 1,86,000 and held the insurance company primarily liable to pay.

What did the court decide?

Total compensation enhanced to Rs. 1,86,000. Liability fastened on Respondent No. 2 (Insurer) to pay first, with liberty to recover from the owner.

Aboobacker Vs Mohammed Haneef — Motor Accident Claims | Karnataka HC (2023)

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MFA No. 705 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF JANUARY, 2023 BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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MISCELLANEOUS FIRST APPEAL NO. 705 OF 2013 (MV-I)

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BETWEEN:

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ABOOBACKER S/O. IDDIMENU BEARY, AGED ABOUT 47 YEARS, R/AT KELAGINA VAGGA, KADABETTU VILLAGE, BANTWAL TALUK, D.K. – 574219

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…APPELLANT (BY SRI. G.RAVISHANKAR SHASTRY, ADVOCATE)

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AND:

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MOHAMMED HANEEF S/O.P.H.AHAMMED, AGED ABOUT 36 YEARS, R/AT MULLAGUDDE HOUSE, BADAGA, KARANDOOR VILLAGE, BELTHANGADY TALUK, D.K. - 574212

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Digitally signed by V KRISHNA Location: HIGH COURT OF KARNATAKA

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IFFCO-TOKIO GENERAL INSURANCE CO.LTD. OFFICE AT: 3^RD FLOOR,LALBAGH TOWER, M.G.ROAD, MANGALORE REPRESENTED BY ITS BRANCH MANAGER - 575001

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…RESPONDENTS

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(BY SRI. B.PRADEEP, ADVOCATE FOR R2; R1 IS SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:11.6.2012 PASSED IN MVC NO.783/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, MEMBER, MACT, MANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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MFA No. 705 of 2013

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JUDGMENT

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This appeal is preferred by the claimant challenging the judgment and award dated 11.06.2012 passed by the Motor Accident Claims Tribunal, Mangalore (for short ‘the Tribunal’) in MVC No.783/2010. This appeal is founded on the premise of inadequacy of compensation.

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Parties to the appeal shall be referred to as per

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their status before the tribunal.

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Brief facts of the case is as under:

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On 09.11.2009 at 2.30pm when the claimant was

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traveling as an inmate in a car bearing Registration No.KA-20 M-6288 from Kabaka towards B.C. Road, On B.C. Road – Puttur Road, near Ramadev Kalyana Mantapa, Melkar Village, Bantwal Taluk, the driver of the car drove the same in a rash and negligent manner, due to which car turtled causing accident and claimant sustained injuries. Immediately he was shifted to Government Hospital, Bantwal and later Fr. Muller Medical College Hospital, Kankanady.

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MFA No. 705 of 2013

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Due to the occurrence of accident, the claimant expended Rs.40,000/- towards medical expenses and incidental expenses. He sustained grievous injuries and became disabled in the accident due to the rash and negligent driving by driver of the car.

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It is stated that prior to occurrence of accident, the claimant was hale and healthy, aged 45 years and working as mason earning Rs.250/- per day. Due to the said accident and injuries suffered, the claimant is not in position to do his work as he was doing prior to the accident and he is unable to get back to work. Hence, he filed a claim petition before the tribunal seeking compensation.

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On service of notice to respondents, respondent No.1 remained absent and was placed exparte. Respondent No.2 – Insurance Company appearing and filed detailed statement of objections inter alia contending that the claim made by the claimant in the claim petition is exorbitant and denied the age, avocation and income including the injuries as alleged in the claim petition. It further pleaded that the driver of the car was not holding valid driving licence at the time of

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MFA No. 705 of 2013

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accident. It is further contended that respondent No.2 cannot be held liable for payment of any compensation unless and until it is proved that the R.C., fitness certificate, permit and driving licence were valid and effective at the time of the alleged accident. Hence on this basis, sought for dismissal of claim petition.

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On the basis of pleadings, the Tribunal framed relevant issues for consideration. In order to substantiate the issues and to establish the case, the claimant got examined himself as PW.1 and also examined other two witnesses on his behalf as PW 2 and 3 and got marked documents as Exs.P1 to P14, whereas respondent No.2 – Insurance Company did not choose to examine any witness but got marked Ex.R1 – copy of the Insurance Policy.

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On the basis of material evidence both oral and documentary, the Tribunal awarded the compensation in a sum of Rs.1,47,800/- with interest at the rate of 6% per annum from the date of petition till its realization and directed the respondent No.1 – Owner of the offending vehicle / Car to pay

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MFA No. 705 of 2013

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the compensation. The Tribunal exonerated the respondent No.2 – Insurance Company.

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Being aggrieved by the meager compensation amount awarded, the claimant is before this Court seeking enhancement of compensation and also to fix the liability to pay the entire compensation on respondent No.2 – Insurance Company.

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It is the vehement contention of learned counsel for claimant that the Tribunal has erred in awarding meager compensation by assessing the income on the lower side and has not taken into consideration the material evidence both oral and documentary thereby causing miscarriage of justice to the claimant. He further contends that the Tribunal has seriously erred in directing the respondent No.1 to pay compensation and absolved the respondent No.2 – Insurance Company. He further contends that even under the other heads the Tribunal has not awarded reasonable compensation commensurate to the injuries sustained by the claimant. On these basis, he seeks to allow the appeal and to enhance the compensation awarded by the Tribunal.

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MFA No. 705 of 2013

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Per contra , learned counsel for the respondent No.2 - Insurance Company objects to the said contentions and sustains the judgment and award passed by the Tribunal. He further contends that the Tribunal has awarded just and reasonable compensation based on the injuries sustained by the claimant. He further contends that that the income assessed by the Tribunal is correct as no material is placed by the claimant in proof of his avocation and in the absence of the same reasonable income is assessed by the Tribunal. On the other heads also the Tribunal has awarded just and reasonable compensation to the claimant. He further contends that the liability is seriously disputed on the ground that inmates of the car as gratuitous passenger and owner of the car has violated the terms and conditions of the Policy. Hence, Insurance Company cannot be fastened with the liability and the Tribunal has rightly absolved and exonerated the Insurance Company of any liability, which requires to be up held and interference by this Court is not warranted under the facts and circumstances of the case.

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Having heard the learned counsel for the claimant and learned counsel for respondent No.2 – Insurance Company,

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MFA No. 705 of 2013

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the points that would arise for consideration before this Court are:

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i) Whether the claimant is entitled for enhancement of compensation?

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ii) Whether liability is to be fastened on the Insurance Company?

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iii) What order ?

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Having perused the entire material evidence both

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oral and documentary and the impugned judgment and award, I am of the opinion that the tribunal has committed an error in awarding meager compensation thereby point Nos.1 to 3 are answered in the affirmative i.e. in favour of the claimant. Therefore, the claimant would be entitled for marginal indulgence of enhancement of compensation.

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It is not in dispute that the accident occurred on 09.11.2009 at 2.30 p.m. The involvement of the vehicle, occurrence of accident, injuries having been sustained by the claimant are all not disputed. It is also not disputed that a case came to be registered in Crime No.230/2009 for the relevant offences of IPC against the driver of car.

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MFA No. 705 of 2013

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In order to substantiate this aspect and to prove the same, the claimant has produced the documents as Exs.P1 to P6, which are the police records wherein the driver of the car has been charged with criminal offence as stated above. Under the circumstances, no contra material has been placed before the tribunal or before this Court to prove the same as invalid or not being genuine. In the absence of such material before the Court and there being no challenge to the charge-sheet by the driver of car, the negligence is rightly attributed against the driver of car by the Tribunal.

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Coming to the aspect of age, avocation and income of claimant, no doubt the claimant has averred that he was working as a mason and earning Rs.250/- per day, but, nothing material has been placed before the Court to substantiate the statement in proof of income. In the absence of any cogent material proof of income, the Tribunal as well as this Court would have to do a guess work to assess the income. In order to arrive at standard guess work, the Legal Services Authority has prescribed notional income chart, which prescribes Rs.5,000/- as income for the year 2009, however,

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MFA No. 705 of 2013

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the Tribunal has taken the income at Rs.4,000/- per month same is enhanced to Rs.5,000/- per month.

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The claimant examined the Doctor as PW3 and one witness as PW2. The Doctor has given disability certificate at Ex.P9 stating that the disability to the extent of 15%, but the Tribunal has assessed the disability at 6% to the whole body, which is not required to be interfered and the same is retained.

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In the present case on hand, the age of the claimant is correctly taken at 45 years and the multiplier adopted at '14', which does not call for any interference. Therefore, towards loss of future earning capacity due to disability the claimant would be entitled to compensation in a sum of Rs.50,400/- (Rs.5,000/- X 12 X 14 X 6%) as against Rs.40,300/- awarded by the Tribunal.

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Towards pain and suffering the Tribunal has awarded Rs.40,000/- ; towards medicine and hospital charges the Tribunal awarded a sum of Rs.16,500/- on the actual bills produced by the claimant and awarded a sum of Rs.24,000/- under the head loss of income during laid-up period. Hence, the same are not interfered and is retained.

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MFA No. 705 of 2013

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Towards loss of amenities and future unhappiness the Tribunal has awarded a sum of Rs.20,000/-, which is on the lower side and requires to be enhanced by another Rs.10,000/and the claimant under this head is entitled to a sum of

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Rs.30,000/- .

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The Tribunal has awarded a sum of Rs.1,000/towards nourishment charges and a sum of Rs.6,000/- towards attendant and conveyance, which are on the lower side. In total, the claimant is entitled to a sum of Rs.25,000/- under both these heads as the claimant was inpatient in the hospital for a period of 25 days.

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In view of the above discussions, claimant is entitled to total compensation of Rs.1,86,000/- as against Rs.1,47,800/as awarded by the Tribunal, morefully mentioned in the table below :-

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SL. NO.	HEAD	AMOUNT
01.	PAIN AND SUFFERING	Rs. 40,000=00
02.	MEDICAL AND HOSPITAL EXPENSES	Rs. 16,500=00
03.	TOWARDS NOURISHMENT, ATTENDANT, CONVEYANCE CHARGES	Rs. 25,000=00
04.	LOSS OF FUTURE EARNINGS	Rs. 50,400=00
05.	LOSS OF INCOME DURING	Rs. 24,000=00

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MFA No. 705 of 2013

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	LAID UP PERIOD
06.	LOSS OF AMENITIES,	Rs. 30,000=00
	FUTURE HAPPINESS
	TOTAL	Rs. 1,85,900=00
	ROUNDED OFF TO	Rs.1,86,000=00

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With regard to aspect of liability, the Tribunal has exonerated the respondent No.2 – Insurance Company and the entire liability is fastened on the respondent No.1 – Owner of the offending vehicle. Admittedly, the claimant was traveling by as an inmate/passenger in a car bearing Registration No.KA-20 M-6288, which was driven by its driver in a rash and negligent manner and which met with an road traffic accident. An FIR in Cr. No.230/2009 came to be registered by the Bantwal Town Police against the driver of the offending vehicle

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– Car, which is followed by filing of charge sheet after investigation. This aspect is very clearly proved by the claimant by producing Ex.P1 to 6, which are Police records. Therefore, the liability would have to be fastened on the respondent No.1 - owner of the offending vehicle for having violated the terms and conditions of the Policy. However, the respondent No.2 – Insurance Company cannot be absolved of the liability to pay the compensation since the offending vehicle was insured with the respondent No.2 – Insurance Company

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MFA No. 705 of 2013

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policy is in force as on the date of occurrence of the accident as admitted by the respondent No.1 – Owner of the offending vehicle. Therefore, primarily the respondent No.2 – Insurance Company will have to pay the compensation awarded by the Tribunal to the claimant and then, recover the same from the respondent No.1 - Owner of the offending vehicle.

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24. 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 judgment and award dated 11.06.2012 passed by the Motor Accident Claims Tribunal, Mangalore in MVC No.783/2010, is modified.;

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iii) The claimant is entitled for total compensation in a sum of Rs.1,86,000/- as against Rs.1,47,800/- as awarded by the Tribunal.;

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iv) Respondent No.2-Insurer having insured vehicle and policy being in subsistence, is liable to pay the compensation amount to the claimant with 6% per annum from the date of petition till its realisation within a period of four

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MFA No. 705 of 2013

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weeks from the date of receipt of certified copy of the judgment and would be at liberty to recover the same from the owner of the offending vehicle.

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v) All other terms and conditions stipulated by the Tribunal stand intact.

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vi) Registry to transmit the records to the concerned Tribunal forthwith.

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Sd/JUDGE

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VK List No.: 1 Sl No.: 73

Aboobacker v. Mohammed Haneef

Case brief

What is this about?

What did the court decide?

Aboobacker v. Mohammed Haneef

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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