Karnataka High Court

Mr Chandrappa D vs Future General India on 13 December, 2021

Bench: H T Prasad

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 13TH DAY OF DECEMBER 2021

                     BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

            MFA No.9468 OF 2017(MV)
                     C/W
            MFA No.9469 OF 2017(MV)

IN MFA 9468/2017

BETWEEN:

MR VENKATESH D
S/O DODDALINGAIAH
AGED ABOUT 31 YEARS
R/O ANGARAPALY
HOSUR POST
BIDADI HOBLI
RAMANAGAR TQ & DIST-562 159.
                                     ...APPELLANT
(BY SRI. GIRIMALLAIAH, ADV.)

AND

1.    FUTURE GENERAL INDIA
      INSURANCE COMOPANY LTD.,
      R/O NO.18/1,(OLD 125/A)
      3RD FLOOR,ASHOKA PILLER ROAD
      1ST BLOCK,JAYANAGAR
      BENGALURU-560 011.
                         2



2.   MR ASHWATH K
     S/O KALLAIAH
     MAJOR
     R/O NO.27,ARALALASANDRA VILLAGE
     HOSUR POST
     BIDADI HOBLI
     RAMANAGARA TQ & DIST-562 159.
                                ...RESPONDENTS

(BY SRI.B.PRADEEP. ADV. FOR R1:
    SRI. THIMMEGOWDA, K.H., ADV. FOR R2)

    THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST     THE     JUDGMENT      AND    AWARD
DATED:01.07.2017 PASSED IN MVC NO.1019/2016
ON THE FILE OF XIII ADDITIIONAL JUDGE & MEMBER
MACT COURT OF SMALL CAUSES, BENGALURU.
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

IN MFA 9469/2017

BETWEEN:

MR CHANDRAPPA D
S/O DODDALINGAIAH
AGED ABOUT 22 YEARS
R/O ANGARAPALY
HOSUR POST, BIDADI HOBLI
RAMANAGAR TQ & DIST-562 159.
                                   ...APPELLANT
(BY SRI. GIRIMALLAIAH, ADV.)
                            3



AND

1.    FUTURE GENERAL INDIA
      INSURANCE COMOPANY LTD.,
      R/O NO.18/1,(OLD 125/A)
      3RD FLOOR, ASHOKA PILLER ROAD
      1ST BLOCK, JAYANAGAR
      BENGALURU-560 011.

2.    MR ASHWATH K
      S/O KALLAIAH
      MAJOR
      R/O NO.27,ARALALASANDRA VILLAGE
      HOSUR POST, BIDADI HOBLI
      RAMANAGARA TQ & DIST-562 159.
                                       ...RESPONDENTS
(BY SRI.B.PRADEEP. ADV. FOR R1:
    SRI. THIMMEGOWDA, K.H., ADV. FOR R2)

    THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST     THE     JUDGMENT      AND    AWARD
DATED:01.07.2017 PASSED IN MVC NO.1020/2016
ON THE FILE OF XIII ADDITIIONAL JUDGE & MEMBER
MACT COURT OF SMALL CAUSES, BENGALURU.
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

     THESE MFAs COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

These appeals under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) have been filed by the claimants being

aggrieved by the judgment dated 01.07.2017 passed

by the Motor Accident Claims Tribunal, Bengaluru in

MVC Nos.1019/2016 and 1020/2016.

2. Facts giving rise to the filing of the appeals

briefly stated are that on 13.09.2015 at about 03.00

P.M., the claimant in MVC No.1019/2016, who is the

rider and the clamant in MVC No.1020/2016, who is

the pillion rider of the motorcycle bearing registration

No.KA-42/U-2507 were proceeding on the left side of

Aralalasandra, Kanchugaranahalli, Near Over Tank,

Bidadi Hobli, Ramanagara District, at that time, the

rider of the motorcycle bearing registration No.KA-

42/H-6794 rode the same in a rash and negligent

manner came from opposite direction and dashed to

the claimants' motorcycle. As a result of the aforesaid

accident, the claimants sustained grievous injuries and

were hospitalized.

3. The claimants filed separate petitions under

Section 166 of the Act seeking compensation. It was

pleaded that they spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent riding of the offending vehicle by

its rider.

4. On service of notice, the respondent No.1

appeared through counsel and filed written statement

in which the averments made in the petitions were

denied. It was pleaded that the petitions themselves

are false and frivolous in the eye of law. It was further

pleaded that Insurance Company has not issued any

policy in respect of the offending vehicle. The driver of

the offending vehicle did not have valid driving licence

as on the date of the accident. The age, avocation and

income of the claimants and the medical expenses are

denied. It was further pleaded that the quantum of

compensation claimed by the claimants is exorbitant.

Hence, he sought for dismissal of the petitions.

The respondent No.2 did not appear before the

Tribunal inspite of service of notice and was placed

ex-parte.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant in MVC

No.1019/2016 was examined as PW-1, The claimant

in MVC No.1020/2016 was examined as PW-2 and

Dr.Rajendra was examined as PW-3 and got exhibited

documents namely Ex.P.1 to Ex.P.22. On behalf of

the respondents, two witnesses were examined as

RW-1 and RW-2 and got exhibited documents namely

Ex.R.1 to Ex.R.6. The Claims Tribunal, by the

impugned common judgment, inter alia, held that the

accident took place on account of rash and negligent

riding of the offending vehicle by its rider, as a result

of which, the claimants sustained injuries. The

Tribunal further held that the claimant in MVC

No.1019/2016 is entitled to a compensation of

Rs.1,65,000/- and the claimant in MVC No.1020/2016

is entitled to a compensation of Rs.1,67,000/-along

with interest at the rate of 8% p.a. and directed the

owner of the offending vehicle to deposit the

compensation amount along with interest. Being

aggrieved, this appeal has been filed.

6. The learned counsel for the claimants in

both the appeals has raised the following contention

regarding liability:

The learned counsel for the claimants has

contended that the Tribunal has given a clear finding

that the driver of the offending vehicle was not

holding a valid and effective driving licence. Since the

insured has violated the policy condition but the

offending vehicle was covered with valid insurance

policy, in respect of third party is concerned, the

Insurance Company is liable to pay the compensation

with liberty to recover the same from the owner of the

offending vehicle. To that effect, she has relied upon

the judgment of the Hon'ble Apex Court in the case of

PAPPU AND ORS. V. VINOD KUMAR LAMBA AND ANR.

reported in AIR 2018 SC 592 and NATIONAL

INSURANCE CO. LTD. VS. SWARAN SINGH reported

in (2004) 3 SCC 297. Hence, he sought for allowing

the appeal.

7. On the other hand, the learned counsel

appearing for the Insurance Company has raised the

following contention regarding liability:

It is not in dispute that as on the date of the

accident, the rider of the offending vehicle was not

holding a valid and effective driving licence. The

Insurance Company is discharged its initial burden by

proving that the rider of the offending vehicle was not

having valid and effective driving licence, since the

insured has violated the policy condition, the

Insurance Company is not liable to pay the

compensation. Therefore, the Tribunal has rightly

exonerated the Insurance Company from the liability.

This finding of the Tribunal is not challenged either the

owner or rider of the offending vehicle. Therefore, the

Insurance Company is not liable to pay the

compensation.

RE:QUANTUM

IN MFA NO.9468/2017 (MVC NO.1019/2016)

The learned counsel for the claimants has raised

the following contentions:

Firstly, even though the claimant claims that he

was working as a Helper and earning Rs.10,000/- per

month, but the Tribunal has taken the notional income

as merely as Rs.7,000/- per month.

Secondly, PW-3, the doctor has stated in his

evidence that the claimant has suffered disability of

15% to whole body. But the Tribunal has erred in

taking the whole body disability at only 6%. He

further stated in his evidence that the claimant has to

undergone surgery for removal of implants which

requires Rs.30,000/-. But the compensation of

Rs.10,000/- towards 'future medical expenses'

awarded by the Tribunal is on lower side.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 17 days. Even after discharge

from the hospital, he was not in a position to

discharge his regular work. He has suffered lot of pain

during treatment. Considering the same, the

compensation granted by the Tribunal under the

heads of 'loss of amenities', 'pain and suffering' and

other heads are on the lower side. Hence, he sought

for enhancement of compensation.

8. On the other hand, the learned counsel for

the Insurance Company has raised following counter

contentions:

Firstly, even though the claimant claims that he

was earning Rs.10,000/- per month, he has not

produced any documents to establish his income.

Therefore, the Tribunal has rightly assessed the

income of the claimant notionally.

Secondly, even though PW-3, the doctor has

stated in his evidence that the claimant has suffered

disability of 15% to whole body, the injuries sustained

by the claimant is only related to the face and it will

not affect to his avocation. The Tribunal considering

the age, avocation and the injuries sustained by the

claimant, has rightly assessed the whole body

disability at 6%.

Thirdly, in view of judgment of the Division

Bench of this Court in the case of MS.JOYEETA BOSE

AND OTHERS vs. VENKATESHAN.V AND OTHERS

(MFA 5896/2018 and connected matters disposed of

on 24.8.2020), the claimants are entitled for 6%

interest but the Tribunal has granted 8% interest

which is on the higher side.

Lastly, considering the oral and documentary

evidence, the Tribunal has granted just and

reasonable compensation and it does not call for

interference. Hence, he sought for dismissal of the

appeal.

9. Heard the learned counsel for the parties

and perused the judgment and awards and original

records.

10. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

due to rash and negligent riding of the offending

vehicle by its rider.

The claimant has not produced any documents

with regard to his income. Therefore, the notional

income has to be assessed as per the guidelines

issued by the Karnataka State Legal Services

Authority. Since the accident has taken place in the

year 2015, the notional income has to be taken at

Rs.9,000/- p.m.

As per wound certificate, the claimant has

sustained left ZMC fracture and nasal bone fracture.

PW-3, the doctor has stated in his evidence that the

claimant has suffered disability of 15% to whole body.

Therefore, taking into consideration the deposition of

the doctor, PW-3 and injuries suffered by the claimant

and the effect of the said injuries to his avocation,

I am of the opinion that the whole body disability can

be assessed 10%. The claimant is aged about 30

years at the time of the accident and multiplier

applicable to his age group is '17'. Thus, the claimant

is entitled for compensation of Rs.1,83,600/-

(Rs.9,000*12*17*10%) on account of 'loss of future

income'.

The nature of injuries suggests that the claimant

must have been under rest and treatment for a period

of 2 months. Therefore, the claimant is entitled for

compensation of Rs.18,000/- (Rs.9,000*2 months)

under the head 'loss of income during laid up period'.

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. He was

treated as inpatient for more than 17 days in the

hospital. He has suffered lot of pain during treatment

and he has to suffer with the disability stated by the

doctor throughout his life. Considering the same, I am

inclined to enhance the compensation awarded by the

Tribunal under the head of 'loss of amenities' from

Rs.10,000/- to Rs.20,000/- and 'pain and suffering'

from Rs.20,000/- to Rs.30,000/-.

The compensation awarded by the Tribunal

under other heads is just and reasonable.

11. Thus, the claimant is entitled to the

following compensation:

As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 20,000 30,000 Medical expenses 6,500 6,500 Food, nourishment, 18,500 18,500 conveyance and attendant charges Loss of income during 14,000 18,000 laid up period Loss of amenities 10,000 20,000 Loss of future income 86,000 1,83,600 Future medical expenses 10,000 10,000 Total 1,65,000 2,86,600

RE: QUANTUM

IN MFA NO.9469/2017 (MVC NO.1020/2016)

12. The learned counsel for the claimant has

raised the following contentions:

Firstly, even though the claimant claims that he

was working as a Helper and earning Rs.9,000/- per

month, but the Tribunal has taken the notional income

as merely as Rs.7,000/- per month.

Secondly, PW-3, the doctor has stated in his

evidence that the claimant has suffered disability of

18% to whole body. But the Tribunal has erred in

taking the whole body disability at only 6%. He

further stated in his evidence that the claimant has to

undergone surgery for removal of implants which

requires Rs.30,000/-. But the compensation of

Rs.10,000/- towards 'future medical expenses'

awarded by the Tribunal is on lower side.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 17 days. Even after discharge

from the hospital, he was not in a position to

discharge his regular work. He has suffered lot of pain

during treatment. Considering the same, the

compensation granted by the Tribunal under the

heads of 'loss of amenities', 'pain and suffering' and

other heads are on the lower side. Hence, he sought

for enhancement of compensation.

13. On the other hand, the learned counsel for

the Insurance Company has raised following counter

contentions:

Firstly, even though the claimant claims that he

was earning Rs.9,000/- per month, he has not

produced any documents to establish his income.

Therefore, the Tribunal has rightly assessed the

income of the claimant notionally.

Secondly, even though PW-3, the doctor has

stated in his evidence that the claimant has suffered

disability of 18% to whole body, the injuries sustained

by the claimant is only related to the face and it will

not affect to his avocation. The Tribunal considering

the age, avocation and the injuries sustained by the

claimant, has rightly assessed the whole body

disability at 6%.

Thirdly, in view of judgment of the Division

Bench of this Court in the case of MS.JOYEETA BOSE

AND OTHERS vs. VENKATESHAN.V AND OTHERS

(MFA 5896/2018 and connected matters disposed of

on 24.8.2020), the claimants are entitled for 6%

interest but the Tribunal has granted 8% interest

which is on the higher side.

Lastly, considering the oral and documentary

evidence, the Tribunal has granted just and

reasonable compensation and it does not call for

interference. Hence, he sought for dismissal of the

appeal.

14. Heard the learned counsel for the parties

and perused the judgment and award and original

records.

15. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

due to rash and negligent riding of the offending

vehicle by its rider.

The claimant has not produced any documents

with regard to his income. Therefore, the notional

income has to be assessed as per the guidelines

issued by the Karnataka State Legal Services

Authority. Since the accident has taken place in the

year 2015, the notional income has to be taken at

Rs.9,000/- p.m.

As per wound certificate, the claimant has

sustained fracture left Zygomatico-Maxillary complex

and left Zygomatic arch. PW-3, the doctor has stated

in his evidence that the claimant has suffered

disability of 18% to whole body. Therefore, taking into

consideration the deposition of the doctor, PW-3 and

injuries suffered by the claimant and the effect of the

said injuries to his avocation, I am of the opinion that

the whole body disability can be assessed 10%. The

claimant is aged about 21 years at the time of the

accident and multiplier applicable to his age group is

'18'. Thus, the claimant is entitled for compensation

of Rs.1,94,400/- (Rs.9,000*12*18*10%) on account

of 'loss of future income'.

The nature of injuries suggests that the claimant

must have been under rest and treatment for a period

of 2 months. Therefore, the claimant is entitled for

compensation of Rs.18,000/- (Rs.9,000*2 months)

under the head 'loss of income during laid up period'.

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. He was

treated as inpatient for more than 17 days in the

hospital. He has suffered lot of pain during treatment

and he has to suffer with the disability stated by the

doctor throughout his life. Considering the same, I am

inclined to enhance the compensation awarded by the

Tribunal under the head of 'loss of amenities' from

Rs.10,000/- to Rs.20,000/- and 'pain and suffering'

from Rs.20,000/- to Rs.30,000/-.

The compensation awarded by the Tribunal

under other heads is just and reasonable.

16. Thus, the claimant is entitled to the

following compensation:

As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 20,000 30,000 Medical expenses 3,500 3,500 Food, nourishment, 18,500 18,500 conveyance and attendant charges Loss of income during 14,000 18,000 laid up period Loss of amenities 10,000 20,000 Loss of future income 91,000 194,400 Future medical expenses 10,000 10,000 Total 1,67,000 2,94,400

RE:LIABILITY

The Tribunal after considering the evidence of

the parties has given a clear finding that that the

rider of the offending vehicle was not holding a valid

and effective driving licence and exonerated the

Insurance Company from the liability and directed the

owner of the offending vehicle to pay the

compensation to the claimant. This finding of the

Tribunal is not challenged either the owner or rider of

the offending vehicle. Therefore, the Tribunal is

justified in exonerating the Insurance Company from

the liability. However, in view of the judgment of the