Sri. Ataulla vs Kareemulla Shariff

Mr. B. Manohar, J.—The appellant being not satisfied with the quantum of compensation and also fastening liability on the owner of the offending vehicle has filed this appeal challenging the judgment and award dated 30-12-2010 made in MVC No. 376/2008 passed by the Additional District Judge (Fast Track Court) Chitradurga (hereinafter referred to as "the trial Court" for short).

The appellant filed a claim petition contending that on 22-06-2007 at about 7.30 a.m., while he was proceeding in a car bearing Registration No. KA-16/M-1743 from Chitradurga to Bangalore as a passenger, when the car reached Kallambella on NH-4, driver of the car drove the same in a rash and negligent manner and dashed against the on-going lorry bearing Registration No. KA-02/C-8971. Due to the said impact, the claimant who was a passenger in the said car sustained grievous injuries all over the body. Immediately after the accident, the claimant was shifted to District Hospital at Tumkur, thereafter he was shifted to City Central Hospital at Davanagere, wherein he had taken treatment as inpatient for a period of 15 days. Thereafter, he had taken follow-up treatment for a period of 72 days. He has spent more than Rs. 50,000/- towards medical expenditure. During the treatment period, he had to apply leave for his job. He was working as an Assistant in Karnataka Food and Civil Supplies Department. In view of the permanent disability he has suffered, he cannot do the work as efficiently as he was doing prior to the accident. Hence sought for compensation of Rs. 4,00,000/-.

Though the owner of the vehicle was served with notice, he remained unrepresented. The second respondent-insurance company filed written statement denying the entire averments made in the claim petition and also contended that the first respondent had violated the conditions of the permit. He should not have allowed the claimant to travel in his car as a passenger in a private car and that the car is being used for hire and reward. Hence, the insurance company is not liable to compensate the claimant and sought for dismissal of the claim petition.

On the basis of pleadings of the parties, the Trial Court framed necessary issues.

The claimant in order to prove his case got himself examined as P.W.1 and got marked the documents as Ex.P1 to P.W.10. On behalf of the respondent-insurance company, one of the officials was examined as R.W.1 and the insurance policy was marked as Ex.R1.

The Trial Court, after appreciating the oral and documentary evidence let in by the parties and taking into consideration IMV report, spot panchanama, copy of the complaint and charge sheet held that the accident occurred due to the rash and negligent driving of the offending car. The police have registered a case against the driver of the offending car. Hence, the claimant is entitled for compensation. With regard to quantum of compensation is concerned, in the road traffic accident the claimant has sustained comminuted fracture of left femur. The doctor who treated the claimant has not been examined to assess the disability and even after the accident, he continued in the same job. Taking into consideration the injuries sustained and suffering undergone by the claimant, the Trial Court has awarded a sum of Rs. 30,000/- towards pain and agony; Rs. 80,000/- towards medical expenditure; Rs. 2,000/- towards food and nourishment; Rs. 31,865/- towards loss of income during the laid up period. In all, the Trial Court has awarded a sum of Rs. 1,43,865/- with interest at the rate of 6% p.a.

With regard to liability is concerned, though the offending car was registered as a private car, as on the date of accident, it was found that the car was being used for hire and reward in violation of policy conditions. For using the private car for hire and reward, higher premium has to be paid, whereas lesser premium has been paid since the car was registered as a private car. In view of violation of conditions of the policy, the insurance company is not liable to compensate the claimant and the liability was fastened on the owner of the vehicle to compensate the claimant. Being aggrieved by the quantum of compensation awarded by the Trial Court as also fastening the liability on the owner of the car, the claimant has filed this appeal.

I have carefully considered the arguments addressed by the learned counsel for the parties. Perused the judgment and award, oral and documentary evidence adduced by the parties and other relevant records.

Sri.Harish N.R., learned counsel appearing on behalf of the Sri. B.M. Siddappa, learned counsel appearing for the appellant contended that the judgment and award passed by the Trial Court is contrary to law. As on the date of accident, along with the claimant, the owner of the car and his wife were also traveling; he is the close relative of the owner of the car and there is no bar for the close relative of the owner to use the car for their personal purpose. The only prohibition is that the car should not be used for hire and reward. Further, in the complaint lodged by the cleaner of the lorry, he has clearly mentioned that the claimant and other inmates were traveling in the said car. Hence there is no violation of conditions of the permit and sought for allowing the appeal fastening the liability on the insurance company to compensate the claimant. With regard to quantum of compensation is concerned, though the claimant has not examined the doctor who treated him, the Trial Court ought to have awarded reasonable compensation, since the Motor Vehicles Act is a Social piece of legislation. Hence sought for allowing the appeal.

On the other hand, Sri. R. Rajagopalan, learned counsel appearing for the second respondent argued in support of the judgment and award passed by the Trial Court and contended that in the claim petition, it was clearly mentioned that the claimant was traveling in the said car from Chitradurga to Bangalore as a passenger. Nowhere in the claim petition, he has mentioned that he was traveling along with the owner of the car. In the evidence also, he has not stated that the owner of the car was traveling along with him in the offending car. In order to get compensation from the insurance company, the claimant has falsely contended that the owner of the car was traveling along with him. Further, the quantum of compensation awarded by the Trial Court is in accordance with law and sought for dismissal of the appeal.

I have carefully considered the arguments addressed by the learned counsel for the parties. Perused the judgment and award, oral and documentary evidence adduced by the parties and other relevant records.

Occurrence of the accident and injuries sustained by the claimant is not in dispute. However, the insurance company disputed its liability contending that the offending car is a private car which cannot be used for hire and reward violating the conditions of permit. The defense taken by the claimant is that the FIR was prepared based on the complaint lodged by the cleaner of the lorry, wherein the cleaner has mentioned that three persons were traveling in the car, whether those persons were owner of the vehicle or whether they have sustained any injuries is not forthcoming. If the owner of the car was traveling in the said car, nothing prevented him to appear before the Court and state that as on the date of accident, they were traveling in the car and they sustained injuries in the accident. But, no material has been placed before the court in that regard. However, the documents produced by the insurance company clearly disclose that the private car was being used for hire and reward violating the conditions of the policy. Hence, the insurance company is not liable to compensate the claimant. There is no infirmity or irregularity in the judgment and award passed by the Trial Court, fastening the liability on the owner of the vehicle.

With regard to quantum of compensation is concerned, the claimant has sustained comminuted fracture of left femur. Though the claimant claims that he has sustained fracture of public bone, no material has been placed to substantiate the same. The wound certificate-Ex.P4 clearly disclose that except fracture of left femur, the claimant has not sustained any other injury. He has undergone surgery for the fracture of femur, internal fixation has been made. A sum of Rs. 30,000/- awarded towards pain and suffering is on the lower side. The claimant was inpatient for a period of 15 days and thereafter he had taken follow-up treatment for 72 days. Taking into consideration the injuries sustained arid suffering undergone, he is entitled to another sum of Rs. 30,000/- towards pain and suffering in addition to what has been awarded by the Trial Court. Further, the claimant is a permanent resident of Chitradurga. He had taken follow-up treatment in the City Central Hospital at Davanagere and he was inpatient there for a period of 15 days. He has spent considerable amount towards transportation and food and nourishment. Hence, it would meet the ends of justice if another sum of Rs. 20,000/- is awarded towards those heads. In all, the claimant is entitled to enhanced compensation of Rs. 50,000/- in addition to Rs. 1,43,885/- awarded by the Trial Court with interest at the rate of 6% p.a. Accordingly, I proceed to pass the following:

ORDER

The appeal is allowed in part. The judgment and award dated 30-12-2010 made in MVC No. 376/2008 passed by the Additional District Judge (Fast Track Court), Chitradurga is hereby modified and the claimant is entitled to enhanced compensation of Rs. 50,000/- in addition to Rs. 1,43,885/- awarded by the Tribunal with interest at the rate of 6% p.a. The appeal is dismissed insofar as challenging the liability is concerned. The owner of the offending car is liable to compensate the claimant.