Muneer Vs the Branch Manager

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.10.2017 PASSED IN MVC NO.821/2015 ON THE FILE OF THE 5TH ADDITIONAL DISTRICT & SESSIONS JUDGE, ADDITIONAL MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 4452/2018

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BETWEEN:

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YUSUF S/O PHAKRU KUNJI, AGED ABOUT 29 YEARS, R/O PERLA VILLAGE, KASARAGODU TALUK, KERALA,

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PRESENTLY ADDRESS: KRISHNEGOWDA S/O SHIVALINGEGOWDA, R/O HOUSE NO.312, CHANNAPATNA VILLAGE, KASABA HOBLI, HASSAN TALUK & DISTRICT - 573 201.

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...APPELLANT

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(BY SRI. GIRISH B BALADARE, ADVOCATE)

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HC-KAR

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AND:

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THE BRANCH MANAGER, UNITED INDIA INSURANCE CO. LTD., 2ND FLOOR, SUBASH CHOWK, B.M. ROAD, HASSAN CITY HASSAN - 573 201.

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K.K. MOHAN S/O KRISHNEGOWDA, MAJOR, R/O BELAGODI VILLAGE, BELURU POST, MUDIGERE TALUK CHIKKAMAGALURU DISTRICT - 577 101.

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...RESPONDENTS

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(BY SRI. K.N. SRINIVASA, ADVOCATE FOR R1; SRI. H.T. JAGADEESH, ADVOCATE FOR R2)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.10.2017 PASSED IN MVC NO.820/2015 ON THE FILE OF THE 5TH ADDITIONAL DISTRICT AND SESSIONS JUDGE, ADDITIONAL MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 2403/2019

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BETWEEN:

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ABDUL AZEEZ S/O ABUBKHAR, AGED ABOUT 46 YEARS, R/O MANGALAPADI VILLAGE, KASARAGODU TALUK, KERALA STATE

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HC-KAR

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PRESENT ADDRESS:

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S/O SHIVALINGEGOWDA, HOUSE NO.312, CHANNAPATNA VILLAGE, KASABA HOBLI, HASSAN - 573 201.

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...APPELLANT

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(BY SRI. GIRISH B BALADARE, ADVOCATE)

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AND:

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THE BRANCH MANAGER

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UNITED INDIA INSURANCE CO LTD., 2ND FLOOR, SUBASH CHOWK, B M ROAD, HASSAN CITY HASSAN - 573 201.

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K.K. MOHAN

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S/O KRISHNEGOWDA, MAJOR, R/O BELAGODI VILLAGE, BELURU POST, MUDIGERE TALUK, CHIKKAMAGALURU DISTRICT - 577 101.

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...RESPONDENTS

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(BY SRI. RAVISHANKAR A, ADVOCATE FOR R1; SRI. H.T. JAGADISH, ADVOCATE FOR R2)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19/10/2017, PASSED IN MVC NO.822/2015, ON THE FILE OF THE 5TH ADDITIONAL DISTRICT & SESSIONS JUDGE AND ADDITIONAL MACT, HASSAN, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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All the three appeals are filed under Section 173(1) of the Motor Vehicles Act, 1988¹ calling in question the common judgment dated 19.10.2017 passed in MVC.Nos.820, 821 and 822 of 2015 by the 5^th Additional District & Sessions Court and Additional Motor Vehicle Accident Claims Tribunal, Hassan² . Hence, all the appeals are taken up together.

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2. For the sake of convenience, the parties herein

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are referred as per their rank before the Tribunal.

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The brief facts leading to the present appeals

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are that that on 03.02.2015, when the claimants were traveling in a car, a lorry came and hit the car of the

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1 Hereinafter referred as to ‘Act’

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2 Hereinafter referred as to ‘Tribunal’

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HC-KAR

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claimants, causing the accident in question. Claiming compensation for the injuries sustained in the said accident, MVC No.820/2015 and MVC No.821/2015 were filed before the Tribunal by the respective claimants. Claiming compensation to the damages caused to the car, MVC No.822/2015 has been filed by the owner of the car. The owner and Insurer of the lorry were arrayed as respondents No.1 and 2 respectively before the Tribunal.

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The Tribunal by judgment dated 19.10.2017

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has partly allowed MVC Nos.820 and 821 of 2015 and awarded a compensation of 2,93,000/- and 55,000/respectively in the claim petitions together with interest at the rate of 9% per annum from the date of petition till the date of realization. However, MVC No.822/2015 has was dismissed.

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HC-KAR

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Being aggrieved, the following appeals are filed:

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SL.NO.	MFA NO.	MVC NO.	CLAIMANT
01	4452/2018	820/2015	Yusuf (injuries)
02	5069/2018	821/2015	Muneer (injuries)
03	2403/2019	822/2015	Abdul Azeez (vehicle damages)

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The learned counsel Sri. Girish B. Baladhare appearing for the claimants contends that the Tribunal erred in dismissing MVC No.822/2015 on the sole ground that the claimant has not proved that he was the owner of the vehicle. He further contended that along with MFA No.2403/2019, I.A.No.3/2019 has been filed under Order 41 Rule 27 of the Code of Civil Procedure seeking leave of the Court to produce the additional documents and a true copy of the RC book of the car which discloses that the claimant is the owner of the car have been produced. It is contended that the photographs (Ex.P33) clearly demonstrate that the car has been expensively damaged. That the Tribunal ought not to have dismissed the claim

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HC-KAR

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petition and ought to have awarded reasonable compensation. In support of MFA No.5069/2018 and MFA 4452/2018, it is contended that the compensation awarded by the Tribunal towards injuries sustained by the respective claimants is on the lower side and seeks for enhancement of quantum of compensation.

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It is further contended on behalf of the appellant that the Tribunal erred in recording a finding that there was no permit as on the date of the accident and fastening the liability on the owner of the vehicle. It is contended that having regard to the judgment of the Hon'ble Supreme Court in the case of Rani and others vs. National Insurance Company Limited³ , the Tribunal ought to have directed the Insurer to pay the compensation awarded with liberty to recover the same from the owner of the vehicle.

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3 (2018) 8 SCC 492

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HC-KAR

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Learned counsel Sri. Jagadeesh H.T. appearing

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for the owner of the vehicle supports the contentions of the learned counsel for the claimants with regard to liability and submits that the liability to pay the compensation awarded ought to be fastened on the Insurer of the vehicle.

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The learned counsel Sri. K.N. Srinivas appearing

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for the Insurer submits that the dismissal of the claim petition in MVC No.822/2015 filed for the damages caused to the car is just and proper since the claimant has not proved the damage to the vehicle. It is further contended that the quantum of compensation awarded in the other claim petitions is also just and proper.

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The submissions of the learned counsel has been considered and the material on record has been perused including the records of the Tribunal. The questions that arise for consideration are:

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HC-KAR

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(i) Whether the finding of the Tribunal on liability whereunder the Tribunal fastening the liability on the owner of the vehicle is just and proper?

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(ii) Whether I.A.No.3/2019 filed in MFA No.2403/2019 is required to be allowed?

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(iii) Whether the Tribunal was justified in dismissing MVC No.822/2015?

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(iv) Whether the quantum of compensation awarded in MVC Nos.820 and 821 of 2015 is just and proper?

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Regarding question No.(i)

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The Tribunal, considering aspects of liability has

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noticed that the permit of the insured lorry was valid from 26.09.2009 to 25.09.2014 whereas the accident took place on 03.02.2015. Hence, it is clear that as on the date of the accident, the permit of the insured lorry had expired.

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Having regard to the judgment of the Hon'ble Apex Court in the case of Amrit Paul Singh A Anr. vs.

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HC-KAR

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TATA AIG General Insurance⁴ , the Insurer is liable to pay the compensation awarded with liberty to recover the same from the owner of the vehicle. Hence, the finding of the Tribunal fastening the liability on the owner of the vehicle and exonerating the Insurer to pay the compensation is erroneous and liable to be interfered with. Accordingly, question No.(i) is answered 'partly in the affirmative' .

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Regarding question No.(ii):

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The Tribunal dismissed MVC No.822/2015, inter alia, on the ground that the claimant has not proved that he is the owner of the vehicle. In this context, it is pertinent to note that the claimant has preferred to file MFA No.2403/2019 challenging the dismissal of MVC No.822/2015 and in the said appeal, I.A.No.3/2019 is filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908⁵ to permit the appellant to produce the true copy of

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4 (2018) 7 SCC 558

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5 Hereinafter referred to as 'CPC'

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HC-KAR

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the RC book of the car. It is the deposed in the affidavit filed in support of the application that the documents produced along with the application could not produced before the Tribunal and that the same is required for the adjudication of the appeal.

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It is forthcoming that a true copy of the certificate of registration of the car owned by the appellant/claimant has been produced along with the application. The said document being necessary to adjudicate the questions that arise for consideration in this appeal, I.A.No.3/2019 is allowed and the documents produced, along with the said application, is taken on record. Accordingly, question No.(ii) is answered 'in the affirmative' .

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HC-KAR

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Regarding question No.(iii):

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The Tribunal while considering the claim made in MVC no.822/2015 for vehicle damage, noticed that the claimant has produced an estimate of `5,01,197/(Ex.P32). However, the Tribunal has noticed that the same is only an estimate and the actual bill has not been produced by the claimant for having incurred the necessary expenditure for having repaired the vehicle. It is further pertinent to note that the claimant has not examined the concerned person who carried out the repair works. However, it is relevant to note that the accident having been admitted and the damages to the car forthcoming from the photographs (Ex.P33), as also taking into consideration the fact that the claimant has produced an extract of certificate of registration along with I.A.No.3/2019 which has been taken on record, it is just and proper that the claim petition in MVC No.822/2015 be partly allowed and it is ordered that the claimants are

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HC-KAR

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entitled to a compensation of `20,000/-. Accordingly,

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question No.(iii) is answered 'partly in the affirmative'.

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Regarding question No.(iv) :

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IN MFA No.4452/2018 (MVC No.820/2015):

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It is forthcoming from the records that the claimant was aged about 26 years as on date of the accident i.e., as on 03.02.2015. Hence, multiplier of 17 is just and proper. It is averred that he was working as a Sales Executive in a clock shop and earning 25,600/-. He has produced salary certificate (Ex.P19) to demonstrate his income. However, no witnesses have been examined to prove Ex.P19. The Tribunal has assessed the notional income of the claimant as 6,000/-. Having regard to the date of the accident, the notional income of the claimant is re-assessed as `9,000/- per month. It is forthcoming from the Wound Certificate (Ex.P9), the Discharge Summary (Ex.P18) as also the testimony of the doctor (Ex.P4)

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HC-KAR

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discloses that the claimant has sustained fracture of right patella, fracture of the index finger right phalanx, tenderness of the pelvis and tenderness of the spine. The claimant underwent a surgery and took treatment for the injuries as an inpatient for two days. PW4 has assessed the total disability as regard the right lower limb as 30% and the disability to the fracture of the zygoma as 9%. The Tribunal considering the same has re-assessed the whole body disability as 13% which is just and proper.

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Hence, the compensation is re-assessed as follows:

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i. Keeping in mind the nature of injuries sustained

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and the period of treatment, the compensation awarded towards pain and suffering is re-assessed as 40,000/-, as against 20,000/- awarded by the Tribunal;

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ii. The compensation awarded towards medical expenses and loss of amenities are just and proper;

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HC-KAR

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iii. Having regard to the nature of injuries

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sustained and the period of treatment, the compensation towards food, nutrition and attendant charges is reassessed in a sum of 20,000/- as against 2,000/-

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awarded by the Tribunal towards 'attendant charges';

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iv. The laid up period is re-assessed as two months and the compensation of 18,000/- (9000x2 months) is awarded towards the same;

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v. Loss of future earning capacity is re-assessed as (9,000x12x17x13%) 2,38,680/as against `1,59,000/- awarded by the Tribunal;

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In view of the aforementioned, the

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compensation re-assessed is as follows:

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HC-KAR

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Sl.No	Compensation Head	Amount Awarded by the Tribunal (`)	Amount awarded by this Court (`)
1	Loss of future earning	1,59,000-00	2,38,680-00
2	Medical Expenses	82,000-00	82,000-00
3	Loss of income during laid up period	-	18,000-00
4	Attendant charges	2,000-00	20,000-00
5	Pain and suffering	20,000-00	40,000-00
6	Loss of amenities	30,000-00	30,000-00
	Total	2,93,000-00	4,28,680-00

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Accordingly, the claimant in MVC No.820/2015 is entitled to enhanced compensation of (4,28,680/- - 2,93,000/-) 1,35,680/- rounded off as 1,36,000/-

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IN MFA NO.5069/2018 (MVC NO.821/2015)

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It is forthcoming that the claimant was aged 27 years as on the date of the accident. He was stated to be

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an agriculturist and also doing business and earning `40,000/- per month. The Wound Certificate (Ex.P24) and Discharge Summary (Ex.P27) discloses that the claimant

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HC-KAR

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has sustained mild head injury and degloving injury of scalp and that the claimant was treated as an inpatient for two days wherein the injuries were treated conservatively by suturing and dressing. The claimant has not examined any doctor.

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The Tribunal considering the same, has

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awarded the medical expenses of `40,000/- as per the actual medical bills produced, which is just and proper.

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The compensation awarded towards pain and

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suffering is re-assessed as 25,000/- as against 15,000/awarded by the Tribunal.

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Having regard to the nature of injuries, it is

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clear that the claimant has not been able to work for some time. Accordingly, the laid up period is construed as one

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HC-KAR

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month. Therefore, a sum of `9,000/- is awarded under the

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head loss of income during laid up period.

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Hence, the compensation is re-assessed as

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follows:

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Sl.No	Compensation Head	Amount Awarded by the Tribunal (`)	Amount awarded by this Court (`)
1	Pain and suffering	15,000-00	25,000-00
2	Medical Bills	40,000-00	40,000-00
3	Towards loss of income during laid up period	-	9,000-00
	Total	55,000-00	74,000-00

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Accordingly, the claimant in MVC No.821/2015

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is entitled to enhanced compensation of (`74,000/- -

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55,000/-) 19,000/-.

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In view of the aforementioned discussion,

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question No.(iii) is answered 'in the negative'

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HC-KAR

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It is noticed that the Tribunal has awarded

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interest at 9% pa. However, taking judicial notice of the interest payable towards fixed deposits, it is just and proper to award interest at the rate of 7% p.a., on the compensation as re-assessed by this Court.

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Hence, the following:

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ORDER

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(i) The above appeals are partly allowed.

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(ii) The judgment and award passed in MVC

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No.820/2015, by the 5^th Additional District and Sessions Judge and Additional MACT, Hassan is modified to the extent holding that the claimant is entitled to a further compensation of `1,36,000/- together with interest at the rate of 7% per annum from the date of petition till the date of payment in addition to the compensation awarded by the Tribunal;

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HC-KAR

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(ii) The judgment and award passed in MVC No.821/2015, by the 5^th Additional District and Sessions Judge and Additional MACT, Hassan is modified to the extent holding that the claimant is entitled to a further compensation of `19,000/- together with interest at the rate of 7% per annum from the date of petition till the date of payment in addition to the compensation awarded by the Tribunal;

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(iii) The judgment and award passed in MVC No.822/2015, by the 5^th Additional District and Sessions Judge and Additional MACT, Hassan, dismissing the claim petition is set-aside and the said MVC No.822/2015 is partly allowed by holding that the claimant is entitled to a sum of `20,000/- together with interest at 7% per annum from the date of petition till its realization;

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(iv) The Insurer (second respondent before the Tribunal) shall be liable to pay the compensation awarded in all the aforementioned claim petitions together with

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HC-KAR

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enhancement made by this Court with liberty to recover

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the same from the owner of the vehicle (respondent No.1 before the Tribunal);

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(v) Insurer shall deposit the compensation amount

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together with accrued interest within a period of six weeks. Upon deposit, the entire compensation amount together with accrued interest be disbursed to the claimants;

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(vi) Records of the Tribunal be transmitted to the Tribunal forthwith.

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(vii) Modified awards to be drawn accordingly.

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No costs.

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SNC List No.: 1 Sl No.: 32 CT: BHK

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Sd/(C.M. POONACHA) JUDGE

Muneer v. the Branch Manager

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Muneer v. the Branch Manager

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