Karnataka High Court

The Manager vs Rajeev Almelkar on 20 December, 2021

Bench: H T Prasad

                             1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 20TH DAY OF DECEMBER 2021

                           BEFORE

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

                 MFA No.662 OF 2018(MV)

BETWEEN:

The Manager,
Bharathi Axa GIC Ltd.,
2nd Floor, 203 and 207,
Inland, Avenue Building,
Ballalbagh, Mangaluru,
Legal Manager,
Bharathi AXA GIC Ltd.,
1st floor, Ferns Icon,
Survey No.28,
Doddanekundi,
K.R. Puram Hobli,
Bangalore-560 037.                   ... Appellant

(By Sri. Pradeep B., Advocate)

AND:

1.     Rajeev Almelkar,
       S/o Ashok Almelkar,
       Now aged 45 years,
       R/at Shivasagar Nilaya,
       D.No.5-32/10, Kings Park,
       II Layout, Mary Hill,
       Mangalore.

2.     Abdul Asraf,
       S/o B.K. Mohammed,
                              2



     Now aged about 43 years,
     R/at D.No.1-114,
     Raziya Manzil,
     Kunjathabail,
     Devinagara Kula(H),
     Mangalore, D.K. Dist.              ... Respondents

(By Sri. Guruprasad B.R., Advocate for R1:
Sri. B. Latheef, Advocate for R2)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:29.08.2017 passed
in MVC No.1166/2014 on the file of the          MACT, 3rd
Additional Senior Civil Judge, Mangaluru, D.K., awarding a
compensation of Rs.4,31,096/- with interest at 6% p.a.
from the date of petition till realization.

      This MFA, coming on for admission, this day, this
Court, delivered the following:

                     JUDGMENT

This appeal under Section 173(1) of the Motor

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

for short) has been filed by the Insurance Company

being aggrieved by the judgment dated 29.08.2017

passed by the Motor Accident Claims Tribunal,

Mangaluru, D.K., in MVC No.1166/2014.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 10.04.2014 at about 1.45

p.m., the claimant was proceeding on his motorcycle

bearing registration No.KA-19/EC-2041 fromYeyyadi

side towards Mangaluru. When he reached near Rama

Bhajan Mandir,Yeyyadi, another motorcycle bearing

registration No.KA-19/EE-3597 came from Bondel

side in a rash and negligent manner and dashed to the

claimant. As a result of the aforesaid accident, the

claimant sustained grievous injuries and was

hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that he spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent driving of the offending vehicle by

its driver.

4. On service of notice, the respondent No.2

appeared through counsel and filed written statement

in which the averments made in the petition were

denied. The age, avocation and income of the claimant

and the medical expenses are denied. It was pleaded

that the accident was due to the rash and negligent

riding of the vehicle by the claimant himself. It was

further pleaded that the driver of the offending vehicle

did not have valid driving licence as on the date of the

accident. It was further pleaded that the liability is

subject to terms and conditions of the policy. It was

further pleaded that the quantum of compensation

claimed by the claimant is exorbitant. Hence, he

sought for dismissal of the petition.

The respondent No.1 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 himself was

examined as PW-1 and Dr.Ullasa Shetty as PW-2 and

got exhibited documents namely Ex.P1 to Ex.P13. On

behalf of the respondents, no witness was examined

as RW-1 but got exhibited document namely Ex.R1.

The Claims Tribunal, by the impugned judgment, inter

alia, held that the accident took place on account of

rash and negligent driving of the offending vehicle by

its driver, as a result of which, the claimant sustained

injuries. The Tribunal further held that the claimant is

entitled to a compensation of Rs.4,31,096/- along with

interest at the rate of 6% p.a. and directed the

Insurance Company to deposit the compensation

amount along with interest. Being aggrieved, this

appeal has been filed.

6. The learned counsel for the Insurance

Company has raised the following contentions:

Firstly, at the time of the accident claimant was

working as Assistant Manager Projects in HPL India

Ltd., Mangaluru and even after recovering from the

injury he has continued in service, he has not suffered

any loss of income, the compensation awarded by the

Tribunal under the said head is unsustainable.

Secondly, considering the injuries suffered by

the claimant and considering the age and avocation,

the overall compensation awarded by the Tribunal is

on the higher side. Hence he sought for reduction of

compensation.

7. On the other hand, learned counsel for the

claimant has raised the following contentions:

Firstly, due to the accident the claimant has

suffered grievous injuries, he has examined the doctor

who has assessed 15% whole body disability, he was

taking treatment and he was not in a position to

attend the office for more than three months and

suffered lot of pain during treatment. The

compensation awarded by the Tribunal for 'pain and

sufferings', 'loss of amenities' and other incidental

expenses is on the lower side and the Tribunal has

failed to grant any compensation for 'loss of income

during laid-up period'.

Secondly, due to the accident he has suffered

grievous injuries, he was inpatient for a period of 4

days, the doctor has deposed that the claimant

requires Rs.25,000/- for 'future medical expenses' but

the Tribunal has not granted any compensation under

the said head.

Thirdly, the overall compensation awarded by

the Tribunal is just and reasonable. Hence, he sought

for dismissal of the appeal.

8. Heard the learned counsel for the parties.

Perused the judgment and award and the original

records.

9. It is not in dispute that the claimant

suffered injuries in the accident occurred due to rash

and negligent driving of the offending vehicle by its

driver.

Due to the accident the claimant has suffered

undisplaced fracture of distal 1/3rd of right tibia and

medial melleolous of right ankle. He was inpatient for

4 days. Even after discharge he was taking

treatment as outpatient. PW-2, the doctor has stated

in his evidence that the claimant has suffered

disability of 15%. He was working as a Assistant

Manager Projects in HPL India Ltd., even after

recovering from the injuries he has continued in

service. Therefore, there is no loss of income due to

disability. Hence, the compensation awarded by the

Tribunal under the said head is unsustainable.

Considering the injuries suffered by the claimant

and considering the evidence of the doctor, I am of

the opinion that the claimant is entitled to 'loss of

income during laid-up period' for a period of 2

months, i.e., Rs.75,600/- (Rs.37,800*2).

Due to the accident, the claimant has suffered

grievous injuries, he has suffered lot of pain during

treatment and he has to suffer with the disability and

unhappiness throughout his life. Considering the

same, I am inclined to enhance the compensation

awarded by the Tribunal under the head of 'pain and

sufferings' from Rs.40,000/- to Rs.50,000/- and 'loss

of amenities' from Rs.25,000/- to Rs.50,000/-.

In view of the evidence of the doctor and

considering the injuries suffered by the claimant, I am

of the opinion that the claimant is entitled to

Rs.25,000/- towards 'future medical expenses'.

The compensation awarded by the Tribunal

under other heads is just and reasonable.

10. 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 40,000 50,000 Medical expenses 45,176 45,176 Food, nourishment, 3,400 3,400 conveyance and attendant charges Loss of income during 0 75,600 laid up period Loss of amenities 25,000 50,000

Future medical expenses 0 25,000 Total 4,31,096 2,49,176

The claimant is entitled to a total compensation

of Rs.2,49,176/-.

Since the appellant/Insurance Company is

merged with ICICI Lombard General Insurance

Company, the said Insurance Company is directed to

deposit the compensation amount along with interest

@ 6% p.a. from the date of filing of the claim petition

till the date of realization, within a period of six weeks

from the date of receipt of copy of this judgment.

To the aforesaid extent, the judgment of the

Claims Tribunal is modified.