Karnataka High Court
Sri Ashok Rathod vs Icici Lombard General Insurance Co Ltd on 30 July, 2024
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NC: 2024:KHC:30112
MFA No. 1507 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 1507 OF 2013 (MV)
BETWEEN:
SRI ASHOK RATHOD
S/O GANGUPANNU RATHOD
AGED ABOUT 46 YEARS
MINCHNALA L T
NAGATHANA HOBLI
BIJAPUR TQ & DIST
PETITIONER PRESENTLY R/AT
C/O RAMESH JADHAV
#83, RANGANATHBADAVANE
HAROHALLI, KANAKAPURA TALUK
RAMANAGARA DISTRICT ... APPELLANT
(BY SRI. M R RAVIRAJ, ADV.)
AND:
1. ICICI LOMBARD GENERAL
INSURANCE CO LTD., BY ITS
MANAGER, CORNICHE
NO.62/1, 2ND FLOOR
Digitally signed by
PRAJWAL A RICHAMOND ROAD
BANGALORE-25
Location: HIGH COURT
OF KARNATAKA
2. MR SHIVARAJU M
MAJOR, S/O CHIKKAMADAIAH
HONNALAGANA DODDI
MEDAMARANAHALLI POST
HAROHALLI HOBLI
KANAKAPURA TALUK
RAMANAGARA DISTRICT ...RESPONDENTS
(BY SRI. B. PRADEEP, ADV. FOR R1;
R2 SERVED)
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NC: 2024:KHC:30112
MFA No. 1507 of 2013
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 26.11.2012
PASSED IN MVC NO.5813/2011 ON THE FILE OF THE XIX
ADDITIONAL SMALL CAUSE JUDGE, & XLI ACMM, MACT,
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
In this appeal, the petitioner has challenged the judgment and award dated 26.11.2012 passed in M.V.C.No.5813/2011 by the Motor Accident Claims Tribunal, Bangalore (SCCH-17) ('the Tribunal' for short).
2. For the sake of convenience, the rank of the parties shall be referred to as per their status before the Tribunal.
3. Brief facts of the case are, on 25.06.2011 at about 4.30 p.m., the petitioner was walking on the left side of the road at Leo Metal Craft Pvt.Ltd. Industrial Area, Harohalli Hobli, Kanakapura Taluk, a motor cycle bearing No.KA-42/K-168 hit on his back causing him injuries. He has suffered fracture of both bones of left -3- NC: 2024:KHC:30112 MFA No. 1507 of 2013 leg. He was treated at NIMHAHS and KIMS, Bangalore. After taking treatment, he has approached the Tribunal for grant of compensation of Rs.10 lakhs. Claim was opposed by the Insurance Company. After taking the evidence and hearing both sides, the Tribunal by the impugned judgment awarded compensation of Rs.1,27,000/- with interest @ 8% per annum, fastened the liability against the owner of the vehicle and dismissed the claim petition against the Insurance Company. Pleading inadequacy, seeking enhancement of compensation and challenging dismissal of the claim petition against the Insurance Company, the petitioner has filed this appeal on various grounds.
4. Heard the arguments of Sri.M.R.Raviraj, learned counsel for petitioner and Sri.B.Pradeep, learned counsel for the Insurance Company.
5. It is the contention of the learned counsel for the petitioner that medical evidence through PW-2 points out that petitioner has suffered 32% of limb disability and 16% of whole body disability. The Tribunal has not -4- NC: 2024:KHC:30112 MFA No. 1507 of 2013 considered the loss of future income of the petitioner. The petitioner was coolie in a factory, he was not a permanent employee and he was removed from service post-accident. Hence, he is entitled to claim compensation for the loss of future income. Compensation is inadequately awarded and sought for enhancement.
5.1. It is further contended that the rider of the motor cycle though did not possess driving licence, the Division Bench of this Court in M.F.A.No.201982/2019 c/w M.F.A.No. 201685/2019 (Priyanka @ Pramila - vs- Sanwar Khan and others) implemented the principle of 'pay and recovery' and he sought that the same be applied to this case also.
6. Per contra, learned counsel for the Insurance Company has contended that, petitioner was an employee in a factory, he was drawing salary, after treatment became normal, assumed to his duties, not suffered any financial loss on account of injury. The Tribunal has rightly not considered loss of future income. -5-
NC: 2024:KHC:30112 MFA No. 1507 of 2013 The compensation awarded is proportionate to the injuries suffered, disability is not affecting the earning of the petitioner and compensation awarded is proper. It is further contended that the rider of the motor cycle did not possess valid driving licence. Hence, the Tribunal has rightly fastened the liability against the owner and he has supported the impugned judgment.
7. I have given my anxious consideration to the arguments addressed on behalf of both parties and perused the records.
8. The material on record points out that there was an accident on 25.06.2011 at 4.30 p.m. involving the petitioner and the motor cycle bearing registration No.KA-42/K-168 for which the second respondent is the owner. Admittedly, there is no valid driving licence held by the rider of the motor cycle at the time of accident. In case of no driving licence, the law is clear that the Insurance Company can avoid its liability for violation of terms and conditions of the policy. But the Division Bench of this Court referring to the judgment of the -6- NC: 2024:KHC:30112 MFA No. 1507 of 2013 Hon'ble Apex Court in Pappu and Others -vs- Vinod Kumar Lamba and Another 1 laid down that the concept of 'pay and recovery' is applicable to the cases where the rider of the motor cycle has no driving licence. The facts of the said judgment and the facts of the present case are identical and therefore, the concept of 'pay and recovery' has to be applied to this case.
9. As regards quantum of compensation is concerned, the Tribunal has awarded as follows:
Sl. No. Particulars Rs.
1 Pain and suffering 75,000
2 Medical expenses 13,000
3 Future Medical expenses 10,000
4 Loss of earning 12,000
5 Conveyance, attendant and 7,000
Nourishing food
6 Discomfort, loss of amenities in 10,000
life and future unhappiness
Total 1,27,000
10. Petitioner has suffered bicondylar fracture of tibia and fibula of his left leg. PW-2/Dr.Ramesh has assessed the disability at 16% to the whole body. Petitioner was under hospitalization for 40 days, spent 1 AIR 2018 SC 592 -7- NC: 2024:KHC:30112 MFA No. 1507 of 2013 substantial money towards treatment, suffered loss of income during laid-up period and he requires future treatment as he has to undergo surgery for removal of implants.
11. On perusal of the impugned judgment, it is pertinent to note that the Tribunal has come to the conclusion that the petitioner is a salaried person. However, the evidence points out that he is a coolie working in factory, but that is not suffice to say that he has a permanent job and the injuries are not affecting his earning capacity. Though the doctor has given disability on the higher side, the disability has to be taken at 10%. The accident is of the year 2011. Though the petitioner claims that he was earning Rs.9,000/- per month, he has not produced any evidence. Hence, he has to be treated as a person with no proof of income and notional income has to be taken at Rs.6,500/-.
12. Having regard to the nature of injuries and the material on record, the petitioner has to be compensated with Rs.60,000/- towards pain and suffering; medical -8- NC: 2024:KHC:30112 MFA No. 1507 of 2013 expenses Rs.13,000/-; loss of amenities and discomfort Rs.30,000/-; future medical expenses Rs.10,000/-; loss of income during laid-up period of four months @ Rs.6,500/- = Rs.26,000/-; attendant charges for 40 days at Rs.9,000/-; food and nourishment Rs.5,000/-; travelling expenses Rs.2,000/-.
13. As noted supra, the petitioner was aged 45 years, applicable multiplier is '14'. Hence, the loss of future income will be: Rs.6,500/-x12x14x10%= Rs.1,09,200/-. There is no evidence to assess compensation on other heads. Thus, the petitioner is entitled for compensation thus:.
Sl. No. Particulars Rs.
1 Pain and suffering 60,000
2 Medical expenses 13,000
3 Conveyance, Attendant and 16,000
Nourishing food
4 Loss of earning during laid-up 26,000
5 Future Medical expenses 10,000
6 Loss of Amenities and 30,000
discomfort
7 Loss of income due to disability 1,09,200
TOTAL 2,64,200
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NC: 2024:KHC:30112
MFA No. 1507 of 2013
14. In a case of this nature, the Insurance Company has to pay the compensation and to recover the same from the owner of the vehicle. Applying the said principle, the Insurance Company is liable to deposit the compensation and recover the same from the owner. In view of the above discussion, the appeal merits consideration, in the result, the following:
ORDER
(i) The appeal is allowed in part;
(ii) The impugned judgment and award is modified;
(iii) The petitioner would be entitled to total compensation of Rs.2,64,200/- with interest at 6% p.a. from the date of petition till realisation;
(iv) The Insurance Company is directed to deposit the entire compensation with interest @ 6% per annum excluding interest on future medical expenses and to recover the same from the owner of the motor cycle in the same proceedings.
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NC: 2024:KHC:30112 MFA No. 1507 of 2013
(v) The Insurance Company shall deposit the entire compensation amount along with accrued interest within eight weeks from the date of receipt of certified copy of this judgment.
SD/-
(T.G. SHIVASHANKARE GOWDA) JUDGE KNM List No.: 1 Sl No.: 36