IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL No.1217/2011 (MV) C/W MISCELLANEOUS FIRST APPEAL No.4262/2011 (MV) IN MFA No.1217/2011:
BETWEEN:
SRI SADHIQ S/O SAYIK FARID AHMED AGED ABOUT 27 YEARS R/AT FARK MOHALL MADHUGIRI ROAD TUMKUR … APPELLANT (BY SRI PRABHUSWAMY N., ADVOCATE FOR SRI V.B.SIDDARAMAIAH, ADVOCATE) AND:
1. THE NEW INDIA ASSURANCE CO. LTD., TUMKUR SHOPPING COMPLEX B.H.ROAD, TUMKUR – 572 101 2. JABIULLA S/O NAZEER SAB AGED ABOUT 42 YEARS R/O TAVAREKERE SIRA TALUK TUMKUR DISTRICT … RESPONDENTS (BY SRI M.NARAYANAPPA, ADVOCATE FOR R1; VIDE ORDER DATED 09.02.2015 NOTICE TO R2 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 03.12.2010 PASSED BY THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM, TUMKUR IN MVC NO.23/2009 AND SEEKS ENHANCEMENT OF COMPENSATION.
IN MFA No.4262/2011:
BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD., B.H.ROAD, TUMKUR – 572 101 REP. BY THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE – XII MAYURA COMPLEX, KIADB MAIN ROAD PEENYA, BANGALORE – 560 058 …APPELLANT (BY SRI M.NARAYANAPPA, ADVOCATE) AND:
1. SRI SADHIQ S/O SAYIK FARID AHMED AGED ABOUT 27 YEARS R/AT FARKMOHALLA MADHUGIRI ROAD TUMKUR – 572 101 2. SRI JABIULLA S/O NAZEER SAB AGED ABOUT 42 YEARS R/AT TAVAREKERE SIRA TALUK TUMKUR DISTRICT – 572 101 … RESPONDENTS (BY SRI PRABHUSWAMY N., ADVOCATE FOR SRI V.B.SIDDARAMAIAH, ADVOCATE FOR R1; R2 SERVED AND UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE JUDGMENT AND AWARD DATED 03.12.2010 PASSED BY THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM, TUMKUR IN MVC NO.23/2009.
THESE MFAs COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Sri V.B.Siddaramaiah, learned Counsel accepts notice for respondent No.1 in MFA No.4262/2011. He is permitted to file power for respondent No.1 in registry within two weeks.
2. These two appeals arise out of judgment and award dated 03.12.2010 passed by the Court of Principal Senior Civil Judge and CJM and MACT, Tumkur in MVC No.23/2009.
3. Appellant in MFA No.1217/2011 was claimant and appellant in MFA No.4262/2011 was respondent No.2 insurer and one Jabiulla shown as respondent No.1 in the claim petition was owner of Auto rickshaw bearing Registration No.KA-06-B-3738.
4. Claimant filed MVC No.23/2009 contending that on 25.12.2007 when he was proceeding on motorcycle, driver of auto rickshaw bearing No.KA-06-B-3738 drove that in a rash and negligent manner and hit his motor cycle near Mudigere gate on Bukkapatna within the limits of Sira Town police station causing accident. He alleged in the claim petition that he suffered grievous injuries and permanent disability and claimed compensation against respondent No.1-owner and respondent No.2- insurer of the offending vehicle.
5. Respondent No.1-Owner of the vehicle did not contest petition. Insurer contested the petition denying the accident, rashness and negligence on the part of auto rickshaw, injuries suffered by the victim etc. It further contended that the driver of the offending vehicle was not holding valid driving license and therefore, it is not liable to pay the compensation. Insurer further contended that accident occurred due to rash and negligent driving of the rider of motor cycle.
6. Parties adduced evidence. Claimant was examined as PW.1, one Shahabudin who is said to have been given some herbal treatment was examined as PW.2 and the doctor who treated him immediately after the accident was examined as PW.3 claimant got marked documents Exs.P1 to P18. On behalf of respondents, officer of the insurer was examined as RW.1 and on their behalf, Exs.R1 to R3 were marked.
7. The Tribunal after hearing the parties, by impugned judgment and award held that the accident occurred due to rash and negligent driving of auto rickshaw bearing No.KA-06-B-3738 belonging to respondent No.1, insured by respondent No.2. Tribunal held that in the accident, claimant suffered compound fracture of left femur and suffered 10% disability. The Tribunal computed the income of claimant at Rs.3,000/- per month applied 18 multiplier and based on the medical bills etc. awarded compensation as follows:
8. Claimant challenge to the award is on ground of inadequacy of compensation. Whereas insurer challenges the award on the ground that accident occurred as per charge sheet Ex.R2 due to rash and negligent driving of two auto rickshaws and rider of motor cycle, therefore, insurer is liable to pay only 1/3rd of the total compensation.
9. It is no doubt true that in FIR and mahazar of scene of offence- Exs.P1 and P2, there is no mention of presence of auto rickshaw bearing No.KA-06-B-3738 or allegations against the same. However, the charge sheet was filed against the driver of auto rickshaw bearing No.KA-06-B-3738 and KA-06-9778. RW.1-insurer’s own witness in his deposition states that they have not challenged the charge sheet and their liability is to pay 1/3rd of compensation. He further deposed that rider of the motor cycle was not charge sheeted.
10. However, there is nothing to show that rider of the vehicle contributed for the accident. Therefore, though RW.1 states that its liability is only 1/3rd, liability it has to be apportioned at 50% between two auto rickshaws.
11. Having regard to the observations made above, liability of insurer and owner i.e. respondent Nos.1 and 2 in claim petition is 50%. Vehicle was insured with respondent No.2 and it did not prove any breach of policy condition. Therefore, respondent No.2 is liable to pay the said compensation.
12. The evidence of PW.3 doctor who treated the claimant shows that the victim had suffered fracture of femur and he underwent surgery. PW.3-doctor who treated the victim refers to Exs.P3 to P18 to show that claimant underwent surgery. Doctor has spoken disability of the victim at 20% to the whole body, but no disability certificate was issued. Under such circumstances, the Tribunal was justified in assessing disability to the whole body at 10%.
13. However, the Tribunal held that in absence of actual proof of income, income of the victim has to be taken at Rs.3,000/- per month. Claimant was aged 35 years and at the time of accident was hale and healthy. Under these circumstances, income assessed at Rs.3,000/- per month is on lower side and it should have been Rs.3,500/- per month.
14. Similarly, compensation awarded under the heads pain and suffering, amenities, loss of earning during laid up period, conveyance, nourishment are on lower side.
15. Having regard to the nature of the injuries, period and nature of treatment, the following is just and proper compensation payable to the claimant under the different heads:
16. Out of the aforesaid compensation, respondent No.2 is liable to pay 50% of the compensation. For the aforesaid reasons, both the appeals are allowed in part. The impugned judgment and award dated 03.12.2010 in MVC No.23/2009 passed by the Court of Principal Senior Civil Judge and CJM, Tumkur is modified as follows:
Claimant is entitled to compensation of Rs.91,081/- rounded of to Rs.91,100/- with interest thereon at 6% per annum payable by respondent No.2 from the date of petition till its deposit. Respondent No.2 shall deposit the aforesaid amount within two months from the date of receipt of copy of this order. Rest of the award regarding investment in fixed deposit is maintained.
Statutory deposit if any made in the appeals shall be disbursed to the claimant. Insurer is entitled for adjustment of the said amount while paying the award amount.
KSR Sd/- JUDGE