Shyamid Sab S/O Nabisab, Vs K. Rasool S/O K.Moddinsa

K. RASOOL S/O K. MODDINSAB, AGE: 30 YEARS, OCC: DRIVER CUM OWNER OF 3 WHEELER PASSENGER AUTO, BEARING NO.KA-37/8057, R/O: H.NO.14, CHIKKAJANTHAKAL, TQ: GANGAVATHI, DIST: KOPPAL.

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THE DIVISIONAL MANAGER, BAJAJ ALLIANZ GEN. INS. CO. LTD., 2^ND FLOOR, SEETHARAM COMPLEX, OPP. KANJU LOTOLITIAN CLUB, BALLARI.

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… RESPONDENTS (BY SRI RAVINDRA R. MANE, ADVOCATE FOR R2; R1 – NOTICE SERVED.)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO ENHANCE THE COMPENSATION AND MODIFY THE JUDGMENT AND

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HC-KAR

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AWARD DATED 16.07.2015, PASSED IN MVC NO.124/2011, ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, AT GANGAVATHI, BY ENHANCING THE COMPENSATION AND ETC.,.

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IN MFA NO. 100402 OF 2016:

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BETWEEN:

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SHYAMID SAB S/O NABISAB, AGE: 30 YEARS, OCC: CLERK, R/O: HOSA AYODHYA, TQ: GANGAVATHI, DIST: KOPPAL.

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… APPELLANT

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(BY SRI M. AMAREGOUDA, ADVOCATE.)

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AND:

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K. RASOOL S/O K. MODDINSA, AGE: 30 YEARS, OCC: DRIVER-CUM-OWNER OF 3 WHEELER PASSENGER AUTO BEARING NO.KA-37/8057, R/O: H.NO.14, CHIKKAJANTHAKAL, TQ: GANGAVATHI, DIST: KOPPAL, PIN CODE-583 231.

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THE DIVISIONAL MANAGER, BAJAJ ALLIANZ GEN. INS. CO. LTD., 2^ND FLOOR, SEETHARAM COMPLEX, OPP. KANJU LOTOLITIAN CLUB, BALLARI.

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… RESPONDENTS

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(BY SRI RAVINDRA R. MANE, ADVOCATE FOR R2; R1 – NOTICE SERVED.)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO ENHANCE THE COMPENSATION AND MODIFY THE JUDGMENT AND AWARD DATED 16.07.2015, PASSED IN M.V.C. NO.113/2011, ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, AT GANGAVATHI, BY ENHANCING THE COMPENSATION, AND ETC.,.

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THESE APPEALS ARE COMING ON FOR ADMISSION THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER:

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

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These appeals are filed by the claimants challenging the judgment and award dated 16.07.2015, passed by the Senior Civil Judge and MACT, Gangavathi, in MVC No.124/2011 and MVC No.113/2011, respectively, seeking enhancement of compensation.

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Heard the arguments addressed by the learned

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counsels appearing for the respective parties and perused

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the trial Court records and the appeal papers.

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In this case occurrence of accident and claimants sustaining injuries in a road traffic accident are not dispute in these cases. The tribunal, while awarding compensation has fastened liability on the owner of the offending auto rickshaw on the reason that the auto rickshaw was having permit to drive within the city of Gangavathi, but the auto driver plied the same beyond the permit area and met with accident. Therefore, the tribunal

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HC-KAR

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has exonerated the insurance company and directed the

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owner of the auto rickshaw to pay compensation.

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It is not disputed that the auto rickshaw was

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having permit to ply within the city of Gangavathi. Mere deviation of the routes is not a fundamental breach so as to exonerate the insurance company and this issue is squarely covered by the judgment of this Court in the case

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of Basavaraj and K.M.Altaf Hussain and another, in MFA No.101342/2017 and connected cases dated 06.06.2025. Therefore, mere deviation of routes is not a fundamental breach to exonerate the insurance company.

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Hence, in view of existence of insurance policy, the insurance company shall pay compensation to the claimants. Hence, in these cases also the insurance company is liable to pay compensation.

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Further, the judgment relied upon by the

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learned counsel for insurance company reported in

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MANU/SC/0794/2018, in the case of Rani and others vs. National Insurance Company Limited and

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HC-KAR

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others, is not applicable to the present case, for the reason that in the said case the offending vehicle did not have permit to operate in the State of Karnataka, but the accident is caused within the State of Karnataka. Therefore, in this regard the fact is different that when a vehicle is having permit in one State, and plied in other State, not having permit to ply in other State, then it is amounting to the offending vehicle is not having permit and it is amounting to vehicle has no permit. Under these facts and circumstances of the case, the Hon’ble Supreme Court exonerated the insurance company and ordered pay and recovery.

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But factual matrix in the present case are that the auto rickshaw was having permit within the Karnataka State; having permit to ply within the city limits of Gangavathi, but just few kilometers away from Gangavathi, the accident is caused. Therefore, this makes difference in factual matrix rendering the judgment relied upon by the learned counsel for insurance company is not

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HC-KAR

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applicable to the present case. Therefore, the insurance

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company is liable to pay compensation.

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In MFA No.100401/2016 (MVC No.124/2011) -

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Regarding Quantum of Compensation:

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In the present case, the claimant-M.Yusuf son of

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M.Mahiboob Sab, has suffered the following injuries:

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“Malunited fracture of right femur and malunited fracture of right clavicle.”

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The Tribunal has awarded compensation under

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various heads as under:

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Sl.	Heads.	Amount in
No.		(Rs.)
1.	Loss of future income.	1,03,680/-
2.	Pain and suffering.	20,000/-
3.	Loss of amenities in life.	5,000/-
4.	Loss of earning during treatment.	8,000/-
5.	Diet, nourishment, attendant’s charges and conveyance.	5,000/-
6.	Medical reimbursement.	4,182/-
	Total	1,45,862/-

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HC-KAR

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Hence, considering the nature of injuries

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sustained, compensation awarded by the Tribunal is lesser side. Therefore, the same is required to be enhanced by modifying the judgment and award.

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The doctor-PW.3 has stated that the claimant has become disabled to the extent of 45% to the particular part and extent of disability is 23% to the whole body. Therefore, considering the evidence of doctor, 15% of functional disability is taken into consideration, as the claimant had suffered grievous injuries i.e., malunited fracture of right femur and malunited fracture of right clavicle.

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Considering the injuries sustained, a

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compensation of Rs.30,000/- towards pain and suffering is awarded. The compensation awarded towards medical reimbursement is as per the actual bills and receipts produced and the compensation towards loss of amenities in life is rightly assessed by the Tribunal. Hence, the same

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are kept intact. Further, the Tribunal has awarded

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HC-KAR

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compensation of Rs.5,000/- towards incidental expenses like food, nourishment, diet, attendant charges and conveyance charges etc., which is on lower side. Hence, the same is enhanced to Rs.10,000/-. Further, a compensation of Rs.12,000/- (Rs.6,000 x 2) towards loss of income during laid up period for 2 months, is awarded.

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The accident is caused in the year 2011. Hence, in the absence of proof of income, notional income is to be taken at Rs.6,000/- for the year 2011, as recognized by the Karnataka State Legal Services Authority. The claimant was aged 24 years old at the time of accident and was working in petrol bunk. Therefore, appropriate applicable multiplier is 18. Hence, loss of future income due to disability is hereby reassessed as Rs.1,94,400/(Rs.6,000x 12 x 18x 15%).

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Thus, the claimant would be entitled for compensation under various heads as under:

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HC-KAR

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Sl.	Heads.	Amount in
No.		(Rs.)
1.	Pain and sufferings.	30,000/-
2.	Loss of amenities.	5,000/-
3.	Attendant, Diet, Nourishment charges and Conveyance etc,.	10,000/-
4.	Medical reimbursement.	4,182/-
5.	Loss of income during laid up period.	12,000/-
6.	Loss of future income due to disability.	1,94,400/-
	Total:	2,55,582/-

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Therefore, the claimant is entitled for total compensation of Rs.2,55,582/- along with interest at the rate of 6% p.a., from the date of filing of the petition till realization, as against Rs.1,45,862/- awarded by the Tribunal.

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In MFA No.100402/2016 (MVC No.113/2011) -

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Regarding Quantum of Compensation:

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In the present case, the claimant-Shyamid Sab son of Nabisab, has suffered the following injuries:

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“Malunited fracture T-12 vertebrae and malunited fracture of lower end of radious.”

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HC-KAR

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The Tribunal has awarded compensation under

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various heads as under:

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Sl.	Heads.	Amount in
No.		(Rs.)
1.	Loss of future income.	69,120/-
2.	Pain and suffering.	10,000/-
3.	Loss of amenities in life.	5,000/-
4.	Loss of earning during treatment.	8,000/-
5.	Diet, nourishment, attendant’s charges and conveyance.	5,000/-
6.	Medical reimbursement	----
	No medical bills are produced.
	Total	97,120/-

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Hence, considering the nature of injuries

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sustained, compensation awarded by the Tribunal is lesser side. Therefore, the same is required to be enhanced by modifying the judgment and award.

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The doctor-PW.3 has stated that the claimant

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has become disabled to the extent of 25% to the particular part and extent of disability is 13% to the whole body. Therefore, considering the evidence of doctor, 12% of functional disability is taken into consideration, as the claimant had suffered grievous injuries i.e., malunited

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HC-KAR

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fracture of T-12 vertebrae and malunited fracture of lower end of radious.

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Considering the injuries sustained, the Tribunal has rightly awarded compensation of Rs.10,000/- towards pain and suffering and Rs.5,000/- towards incidental expenses like food, nourishment, diet, attendant charges and conveyance charges etc., which is kept intact. The Tribunal has awarded Rs.5,000/- towards loss of amenities in life, which is on lower side. Hence, the same is enhanced to Rs.20,000/-. Further, a compensation of Rs.12,000/- (Rs.6,000 x 2) towards loss of income during laid up period for 2 months, is awarded.

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The accident is caused in the year 2011. Hence, in the absence of proof of income, notional income is to be taken at Rs.6,000/- for the year 2011, as recognized by the Karnataka State Legal Services Authority. The claimant was aged 25 years old at the time of accident and was working as Gumasta. Therefore, appropriate applicable multiplier is 18. Hence, loss of future income due to

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HC-KAR

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disability is hereby reassessed as Rs.1,55,520/-

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(Rs.6,000x 12 x 18x 12%).

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Thus, the claimant would be entitled for

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compensation under various heads as under:

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Sl.	Heads.	Amount in
No.		(Rs.)
1.	Pain and sufferings.	10,000/-
2.	Loss of amenities.	20,000/-
3.	Attendant, Diet, Nourishment charges and Conveyance etc,.	5,000/-
4.	Loss of income during laid up period.	12,000/-
5.	Loss of future income due to disability.	1,55,520/-
	Total:	2,02,520/-

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Therefore, the claimant is entitled for total compensation of Rs.2,02,520/- along with interest at the rate of 6% p.a., from the date of filing of the petition till realization, as against Rs.97,120/- awarded by the Tribunal.

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The Insurance Company is directed to deposit the compensation within eight weeks from the date of receipt of a certified copy of this judgment.

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HC-KAR

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In the result, I proceed to pass the following:

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ORDER

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i. MFA Nos.100401/2016 and 100402/2016

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are allowed in part.

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ii. The common judgment and award dated 16.07.2015 passed in MVC Nos.124/2011 and 113/2011 on the file of Senior Civil Judge and MACT, Gangavathi, stand modified.

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iii. The claimant in MFA No.100401/2016 (MVC

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No.124/2011) is entitled for total compensation of Rs.2,55,582/- as against compensation of Rs.1,45,862/- awarded by the Tribunal.

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iv. The claimant in MFA No.100402/2016 (MVC No.113/2011) is entitled for total

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compensation of Rs.2,02,520/- as against

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