Partly allowed

Mohammed Anwar Sab v. Vishwanatha B

Karnataka HC19 Aug 2024MFA/3652/2020

Case brief

AI extract

What is this about?

This appeal was filed by a claimant against the judgment of the Claims Tribunal in a motor vehicle accident matter. The High Court allowed the appeal in part, holding the insurer liable based on the Mukund Dewangan judgment. The court enhanced the compensation from Rs.226,710 to Rs.335,830, increasing amounts for disability, medical expenses, and loss of amenities, and directed the insurer to depo

What did the court decide?

The appeal allowed in part. Total compensation enhanced to Rs.335,830/- payable by the Insurance Company with interest.

Mohammed Anwar Sab Vs Vishwanatha B — Motor Accident Claims | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:33072 MFA No. 3652 of 2020

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 19^TH DAY OF AUGUST, 2024

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO. 3652 OF 2020 (MV)

¶7

BETWEEN:

¶8

MOHAMMED ANWAR SAB S/O RAHAF SAB AGED ABOUT 55 YEARS R/AT HIRIYUR TOWN, HIRIYUR TALUK CHITRADURGA DISTRICT-577599

¶9

…APPELLANT

¶10

(BY SRI. RANGEGOWDA N R.,ADVOCATE)

¶11

AND:

¶12

VISHWANATHA B S/O BASAVARAJAPPA AGED MAJOR R/O MADDAKKANAHALLY VILLAGE SIRA TALUK, TUMKUR DISTRICT 572137.

¶13

Digitally signed by HEMALATHA A Location: HIGH COURT OF KARNATAKA

¶14

THE AUTHORIZED SIGNATROY SHRIRAM GENERAL INSURANCE CO. LTD E-8, EPIP RIICO, INDUSTRIAL AREA SITAPUR JAIPUR, RAJASTHAN 302022

¶15

…RESPONDENTS

¶16

(BY SRI.A.N.KRISHNA SWAMY., ADVOCATE FOR R2: NOTICE TO R1 SERVED & UNREPRESENTED)

¶17

THIS MFA FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED:20.06.2020 PASSED IN MVC NO.1134/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, ADDITIONAL MACT, HIRIYUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶18

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD

¶19

2 - NC: 2024:KHC:33072 MFA No. 3652 of 2020

¶20

ORAL JUDGMENT

¶21

This appeal under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) has been filed by the claimant challenging by the judgment dated 20.06.2020 passed by MACT, Hirijyur in MVC No.1134/2015.

¶22

Facts giving rise to the filing of the appeal briefly stated are that on 22.02.2015 when the claimant was proceeding on motorcycle bearing registration No.KA16-X2803 near H.P.Petrol Bunk of J.G.Hally on NH4, at that time, tractor bearing registration No.KA-17-TB-2475 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.

¶23

The claimant filed a petition under Section 166 of the Act, seeking compensation. It was pleaded that he spent significant amount towards medical expenses, conveyance

¶24

3 - NC: 2024:KHC:33072 MFA No. 3652 of 2020

¶25

charges and other related costs. It was further pleaded that the accident occurred solely on account of rash and negligent driving of the offending vehicle by its driver.

¶26

Upon service of notice, the respondent No.2 appeared through counsel and filed written statement denying the averments made in the claim petition. The respondent No.1, despite service of notice, did not appear before the Tribunal and was placed ex-parte.

¶27

On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter, recorded the evidence. The claimant, in order to prove the case, examined himself as PW-1, and Dr.Shivanna Reddy was examined as PW-2, and got exhibited documents namely Ex.P1 to Ex.P22. On behalf of the respondents, two witnesses were examined as RWs-1 and 2 and got exhibited documents namely Ex.R1 to Ex.R3. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent

¶28

4 - NC: 2024:KHC:33072 MFA No. 3652 of 2020

¶29

driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.226,710/- along with interest at the rate of 6% p.a. and directed the owner of the offending vehicle to deposit the compensation amount along with interest. Being aggrieved, the present appeal has been filed.

¶30

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

¶31

LIABILITY:

¶32

As on the date of accident, the driver of the tractor was having driving licence to drive LMV (Non-transport), but he was driving the transport vehicle. As per the decision of the Apex Court in the case of MUKUND

¶33

DEWANGAN vs. ORIENTAL INSURANCE COMPANY

¶34

LIMITED reported in (2017) 14 SCC 663, a person holding driving licence to drive LMV (Non-Transport) can also drive transport vehicle, the unladen weight of which

¶35

5 - NC: 2024:KHC:33072 MFA No. 3652 of 2020

¶36

does not exceed 7500 kgs. The unladen weight of the vehicle involved in the accident is less than 7500 kgs. Therefore, the insurer of tractor is liable to pay compensation. The Tribunal is not justified in fastening the liability on the owner of the tractor.

¶37

QUANTUM OF COMPENSATION

¶38

a) Firstly, the claimant asserts that he was earning Rs.10,000/- per month by doing business. However, the Tribunal has erred in taking the income as merely as Rs.8,000/- per month.

¶39

b) Secondly, the claimant has examined the doctor as PW-2. The Tribunal undervalued the claimant's whole-body disability at 7%, contradicting the evidence of the doctor that the claimant suffered 34% disability to whole body.

¶40

c) Lastly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 10 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.

¶41

6 - NC: 2024:KHC:33072 MFA No. 3652 of 2020

¶42

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.

¶43

With the above contentions, the learned counsel sought to allow the appeal.

¶44

On the other hand, the learned counsel for the Insurance Company has raised the following countercontentions:

¶45

LIABILITY:

¶46

It is not in dispute that as on the date of accident, the driver of the tractor was having driving licence to drive LMV (Non-transport) but he was driving the transport vehicle. Since the insured has violated the policy conditions, the Tribunal has rightly exonerated the Insurance Company from liability and fastened the liability on the owner of the tractor.

¶47

7 - NC: 2024:KHC:33072 MFA No. 3652 of 2020

¶48

QUANTUM OF COMPENSATION

¶49

a) Firstly, the assertion of claimant that he was earning Rs.10,000/- per month, remains unsubstantiated due to lack of documentary evidence. In the absence of proof of income, the Tribunal has assessed the income of the claimant notionally.

¶50

b) Secondly, the Tribunal considering the injuries sustained by the claimant and evidence of the doctor, has rightly assessed the whole body disability at 7%.

¶51

c) Thirdly, considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are just and reasonable and it does not warrant interference.

¶52

With the above contentions, the learned counsel sought to dismiss the appeal.

¶53

Heard the learned counsel for the parties and perused the judgment and award of the Tribunal.

¶54

8 - NC: 2024:KHC:33072 MFA No. 3652 of 2020

¶55

LIABILITY:

¶56

It is not in dispute that as on the date of accident, the driver of the tractor was having driving licence to drive LMV (Non-transport), but he was driving transport vehicle.

¶57

The Apex Court in the case of MUKUND DEWANGAN (supra), has held that a person holding driving licence to drive LMV (Non-transport) can also drive transport vehicle, wherein the unladen weight of said vehicle does not exceed 7500 kgs.

¶58

In the case on hand, the unladen weight of the vehicle involved in the accident is less than 7500 kgs. Therefore, in view of the above said decision of the Apex Court, I am of the opinion that the driver of the tractor was having valid driving licence as on the date of the accident. Since, the tractor was covered with valid insurance policy as on the date of accident, the Insurance Company is liable to pay compensation to the claimant, as determined by the Tribunal.

¶59

9 - NC: 2024:KHC:33072 MFA No. 3652 of 2020

¶60

QUAUNTUM OF COMPENSATION:

¶61

The claimant claims that he was earning Rs.10,000/-

¶62

per month. But he has not produced any documents to substantiate his claim. Therefore, in the absence of proof of income, notional income has to be assessed. According to the guidelines issued by the Karnataka State Legal Services Authority, for accidents occurred in the year 2015, notional income shall be taken at Rs.9,000/- p.m.

¶63

As per wound certificate, the claimant has sustained comminuted fracture of right clavicle at the junction of lateral 1/3^rd and middle 1/3^rd , 2^nd , 3^rd , 4^th , 5^th , 6^th ribs of right side and 4^th rib of the left side are fractured. The doctor in his evidence has stated that the claimant has suffered disability of 34% to whole body. Therefore, taking into consideration the deposition of the doctor and injuries mentioned in the wound certificate, the whole body disability can be safely taken at 12%. The claimant is aged about 50 years at the time of the accident and multiplier applicable to his age group is ‘13’. Thus, the claimant is

¶64

10 - NC: 2024:KHC:33072 MFA No. 3652 of 2020

¶65

entitled for compensation of Rs.168,480/- (Rs.90001213*12%) on account of 'loss of future income'.

¶66

The nature of injuries indicates that the claimant must have been under rest and treatment for a period of 3 months. Consequently, the claimant is entitled for compensation of Rs.27,000/- (Rs.9000*3 months) under the head ‘loss of income during laid up period’.

¶67

The claimant was hospitalized as an inpatient for more than 10 days in the hospital and subsequently received further treatment. Therefore, I am inclined to enhance the compensation awarded under the head of ‘food, nourishment, conveyance and attendant charges’ from Rs.13,000/- to Rs.18,000/- .

¶68

Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. Considering the prolonged pain during treatment as well as the

¶69

11 - NC: 2024:KHC:33072 MFA No. 3652 of 2020

¶70

permanent disability certified by the doctor, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'pain and sufferings' from Rs.35,000/to Rs.40,000/- and under the head of 'loss of amenities' from Rs.15,000/- to Rs.30,000/- .

¶71

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

¶72

Thus, the claimant is entitled to the following compensation:

¶73

Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	35,000	40,000
Medical expenses	52,350	52,350
Food, nourishment, conveyance and attendant charges	13,000	18,000
Loss of income during laid up period	24,000	27,000

¶74

12 - NC: 2024:KHC:33072 MFA No. 3652 of 2020

¶75

Loss of amenities	15,000	30,000
Loss of future income	87,360	168,480
Total	226,710	335,830

¶76

In the result, the following order is passed:

¶77

ORDER

¶78

a) The appeal is allowed in part .

¶79

b) The judgment of the Claims Tribunal is modified. c) The claimant is entitled to a total compensation of Rs.335,830/-.

¶80

d) 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

¶81

judgment.

¶82

Sd/(H.T. NARENDRA PRASAD) JUDGE

¶83

List No.: 1 Sl No.: 24

¶84

Mohammed Anwar Sab v. Vishwanatha B

Case brief

What is this about?

What did the court decide?

Mohammed Anwar Sab v. Vishwanatha B

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ramanjinappa Vs Thippanna B

Smt. Meenakshi @ Meenamma Vs Haleshappa P K

Subramanya Vs Suresh Shamrao Chougule

Sri. Sunil Kumar Vs Abhisheka K. P.

Miss. Neethi Sridharan Vs Future Generali India Insurance Company Limited

Smt. Kethna T Vs Sri Santosh Kumar M