MR ASIF KHAN @ ASIF v. SRI VEERABRAHMA CHARI
Court: High Court of Karnataka
Bench: HANCHATE SANJEEVKUMAR
Judgment date:
Case summary
High Court of Karnataka judgment dated 2024-12-18. MR ASIF KHAN @ ASIF v. SRI VEERABRAHMA CHARI. Read the judgment and case details on LawSphereX.
Judgment text
- 1 - MFA No. 8227 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU TH DATED THIS THE 18 DAY OF DECEMBER, 2024 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 8227 OF 2015 (MV-I) BETWEEN: MR. ASIF KHAN @ ASIF, S/O. ILLIYAZ KHAN, AGE: 25 YEARS, OCC: MACHANIC, R/O NO. 649, FATHIMA MANZIL, SAREPALYA, THANISANDRA, BENGALURU - 560 077. …APPELLANT (BY SRI. SURESH M. LATUR, ADVOCATE) AND: 1. SRI. VEERABRAHMA CHARI, S/O. SRI. VENKATA SWAMY, TH 6 WARD, BEHIND VENKATSHWARA TALKIES, BAGEPALLI, CHIKKABALLAPURA DISTRICT – 562 101. Digitally signed by RAMYA D 2. THE REGIONAL MANAGER Location: HIGH COURT OF UNITED INDIA INSURANCE CO. LTD. , KARNATAKA TH TH 5 AND 6 FLOOR, KRISHI BHAVAN, NRUPATHUNGA ROAD, HUDSON CIRCLE, BENGALURU- 560 001. 3. BEGUM JAN ST NO. 1064, 1 CROSS, PADARAYANAPURA, BENGALURU – 560 070. 4. THE REGIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD. , - 2 - MFA No.
8227 of 2015 TH TH 5 AND 6 FLOOR, KRISHI BHAVAN, NRUPATHUNGA ROAD, HUDSON CIRCLE, BENGALURU – 560 001. …RESPONDENTS (BY SRI. M. U. POONACHA ADVOCATE FOR R2 & R4; R1 SERVED; V/O DATED 05. 04. 2019 NOTICE TO R3 IS DISPENSED WITH) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30. 05. 2015 PASSED IN MVC NO. 177/2013 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSE JUDGE, COURT OF SMALL CAUSES & MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT Though matter is listed for Admission by the consent of learned Advocates appearing for both parties it is taken up for final disposal. 2. The appeal is filed by the claimant seeking enhancement of compensation awarded by the judgment and award dated 30. 05. 2015 passed by XIII Addl. Small - 3 - MFA No.
8227 of 2015 Cause Judge & Member, MACT, Bengaluru, in MVC No. 177/2013. 3. The rank of parties are referred to as per their ranks before the Tribunal. 4. The claimant was proceeding in canter lorry bearing registration No. KA-18-5731 on 05. 11. 2010 at 5. 30 p. m. when the vehicle reached Chendur cross, NH-07, Gudibanda Taluk, Chikkaballapur, at that time the Tata Sumo bearing registration No. KA-40-M-800 came from opposite direction with high speed in rash and negligent manner and dashed against the canter lorry, resulting in claimant sustaining grievous injuries. Hence, claimant filed a claim petition under Section 166 of Motor Vehicles Act, 1988 (for short ‘the Act’). 5. The Tribunal by granting compensation of Rs. 5,55,000/- has fastened liability on the respondent No. 1 – owner of the Tata Sumo vehicle on the reason that - 4 - MFA No. 8227 of 2015 driver of the Tata Sumo was not having driving licence as on the date of accident. 6.
From the medical evidence on record it is proved that the claimant has suffered following injuries: 1. Bilateral Le Fort fracture of Maxilla with fracture of left ramus of the Mandible. 2. Fracture with Hemosinus of both Maxillary Sinuses and Ethomoidal sinuses with right sphenoidal Haemosinus. 3. Fracture of left Zygomatic bone. 4. Fracture of the left tibia. 7. The Tribunal has granted compensation under various heads as follows: Sl. Amount in Particulars No. Rs. 1 Pain and sufferings 75,000/- 2 Loss of income during laid up period, diet, nourishment and etc. 40,000/- 3 Attendant charges, conveyance, other incidental charges and etc. 40,000/- 4 Medical expenditure 1,50,000/- 5 Loss of future income (7,500 x 12 x 8/100 x 18) 1,29,600/- 6 For ugly scars 20,000/- 7 For loss of marital prospectus 20,000/- - 5 - MFA No. 8227 of 2015 8 Loss of amenities and comfort 40,000/- 9 Permanent physical impairment 40,000/- Total 5,54,600/- Rounded off to 5,55,000/- 8.
Upon considering the quantum of compensation awarded under each head there is a repetition of amount of compensation awarded. Therefore, except under the head ‘loss of future income due to disability’, the compensation under other heads is found to be just and proper. 9. The Tribunal has not held the correct parameters while assessing the quantum of compensation under the head ‘loss of income due to disability’. Therefore, under this head only there is a need to make modification in the judgment and award passed by the Tribunal. 10. The doctor has stated that the claimant has suffered 27. 6% disability towards left lower limb and 14% towards whole body, but the Tribunal has taken only 8% as functional disability. Therefore, the Tribunal has - 6 - MFA No. 8227 of 2015 committed an error in taking percentage of functional disability of the claimant.
The claimant has suffered multiple fractures and as such, it is just and proper to take 15% as functional disability suffered by the claimant. 11. The claimant was working as mechanic in a garage and stated that he was earning monthly income of Rs. 10,000/-. PW. 6-employer has stated that he was paying salary of Rs. 10,500/- p. m. Ex. P. 9 is the salary certificate issued by PW. 6 stating that he was paying salary of Rs. 10,500/- p. m. The Tribunal has taken only Rs. 7,500/- pm. The claimant is a mechanic by profession. Therefore, monthly income of Rs. 10,500/- is to be taken into consideration by considering the evidence of PW. 6 and Ex. P. 9-salary certificate issued by the employer. As the claimant was aged 22 years, the appropriate multiplier applicable is “18”. Therefore, compensation under the head loss of income due to disability is re-assessed and quantified as follows: Rs. 10,500/- x 15% x 18 x 12=Rs. 3,40,200/- - 7 - MFA No. 8227 of 2015 Accordingly, compensation of Rs.
3,40,200/- is awarded under the head loss of income due to disability. 12. The compensation granted on other heads is found to be just and proper, which needs no interference by this Court. 13. Thus, in all, the appellant/claimant is entitled to total compensation as under: Pain and Sufferings Rs. 75,000/- Kept in tact Loss of income during Kept in tact laid up period, Diet, Rs. 40,000/- Nourishment and etc. Attendant Charges, Kept in tact Conveyance, other Incidental Charges Rs. 40,000/-and etc. Medical Expenditure Rs. 1,50,000/- Kept in tact Loss of Future Income due to Rs. 3,40,200/-disability For Ugly Scars Rs. 20,000/- Kept in tact For loss of Martial Kept in tact Rs. 20,000/- Prospectus Loss of Amenities Kept in tact Rs. 40,000/-and Comfort Permanent Physical Kept in tact Rs. 40,000/- Impairment Total Rs. 7,65,200/- - 8 - MFA No. 8227 of 2015 14. The Tribunal has granted interest at the rate of 8% p. a. , and the same is reduced to 6% p. a.
The Tribunal has awarded compensation of Rs. 5,55,000/-, but the appellant/claimant is entitled to total compensation of Rs. 7,65,200/-. Hence, the appellant/claimant is entitled to enhanced compensation of Rs. 2,10,200/- (Rs. 7,65,200/- - Rs. 5,55,000/-). Therefore, the appellant/claimant is entitled to enhanced compensation of Rs. 2,10,200/-along with interest at the rate of 6% per annum from the date of petition till the date of deposit, in addition to what has been awarded by the Tribunal. REGARDING LIABILITY: 15. Ex. P. 2 is the charge sheet, which proves that the driver of Tata Sumo was not holding driving licence. The petitioner is third party to the Tata Sumo. Therefore, it is proved that the driver of Tata Sumo was not holding driving licence. Hence, respondent No. 2-Insurance Company who has issued insurance to the Tata Sumo is liable to be exonerated from paying compensation. - 9 - MFA No.
8227 of 2015 However, the claimant is third party to the Tata Sumo, hence, an order of pay and recovery is to be made. Hence, as per Sub-section (2) of Section 149 of Motor Vehicle Act, when the Insurance Company established the fact that the driver was not holding driving licence, then as per Sub-sections (1), (4), (7) of Section 149 of Motor Vehicle Act, the Insurance Company as if the judgment debtor shall satisfy the claim in respect of third party and then recover the same from the owner of Tata Sumo. Accordingly, an order of pay and recovery is made as per the principle of law laid down by the Hon’ble Supreme Court in the cases of PAPPU AND OTHERS Vs. VINOD KUMAR LAMBA 1 AND ANOTHER ; NATIONAL INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND 2 OTHERS and also as per the full bench decision of this Court in the case of NEW INDIA ASSURANCE 1 (2018) 3 SCC 208 (2004) 3 SCC 297 - 10 - MFA No. 8227 of 2015 3 COMPANY LIMITED VS. YELLAVVA AND ANOTHER .
Accordingly, an order of pay and recovery is made. 16. Liberty is reserved to the Insurance Company to file execution petition against the owner of Tata Sumo and may seek for attachment of movable and immovable property of the owner of Tata Sumo for recovery of amount. To this extent, the judgment and award passed by the Tribunal is modified. Accordingly, I proceed to pass the following ORDER i. The appeal is allowed-in-part. ii. The impugned judgment and award dated 30. 05. 2015 in MVC. No. 177/2013 passed by XIII Addl. Small Cause Judge & Member, MACT, Bengaluru, is hereby modified. iii. The appellant/claimant is entitled to enhanced compensation of Rs. 2,10,200/- 2020 ACJ 2560 - 11 - MFA No. 8227 of 2015 along with interest at the rate of 6% p. a. , from the date of petition till its realization, in addition to what has been awarded by the Tribunal. iv. No order as to costs. v. Draw award accordingly. vi.
The Insurance Company as if the judgment debtor shall satisfy the claim in respect of third party and then recover the same from the owner of Tata Sumo. vii. Liberty is reserved to the Insurance Company to file execution petition against the owner of Tata Sumo and may seek for attachment of movable and immovable property of the owner of Tata Sumo for recovery of amount. viii. The appellant/claimant is not entitled for interest for the delay period of 53 days in filing the appeal. - 12 - MFA No. 8227 of 2015 ix. Registry is directed to transmit the TCR along with copy of this order to the Tribunal forthwith. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE DR: Para 1 to 10 PB: Para 11 to 15 List No. : 1 Sl No. : 17
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