Karnataka High Court

Sri Sagar H P vs Icici Lombard General on 19 January, 2021

Author: S R.Krishna Kumar

                             1



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 19TH DAY OF JANUARY, 2021

                          BEFORE

      THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

                   M.F.A.NO.3071 OF 2018
                            C/W
      M.F.A.Nos. 1947/2018, 1949/2018, 3072/2018( MV-I)
IN M.F.A.NO. 3071/2018
BETWEEN
SRI SAGAR H P
S/O LATE H L PUTTARAJ,
AGED ABOUT 33 YEARS,
R/AT NO.258, AASHIRVAD NILAYA,
BASAVESHWARA COLONY,
NEAR RAILWAY STATION, BIDADI,
RAMANAGARA DISTRICT-562109
                                               ...APPELLANT
(BY SRI. K.P. BHUVAN, ADVOCATE)

AND

1.      ICICI LOMBARD GENERAL
       INSURANCE CO LIMITED,
       NO.121, THE ESTATE,
       9TH FLOOR, DICKENSON ROAD,
       M.G.ROAD, BANGALORE-560042

2.    SRI BASAVAIAH
      S/O LATE BYREGOWDA,
      AGED ABOUT 57 YEARS,
      R/AT ATTIGUPPE VILLAGE AND POST,
      MARALAWADI HOBLI, KANAKAPURA TALUK,
      RAMANAGARA DISTRICT-562 112.
                                          ...RESPONDENTS
(BY SRI. B.C. SHIVANNEGOWDA, ADVOCATE FOR R-1)
                              2



      THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 24.11.2017 PASSED
IN MVC NO. 4272/2016 ON THE FILE OF THE XXI ACMM & XXIII ASCJ,
MACT, COURT OF SMALL CAUSES, BENGALURU(SCCH-25),
AWARDING COMPENSATION OF RS, 14,33,900/- WITH INTERST @
8% P.A. FROM THE DATE OF PETITION TILL REALIZZATION AND
ETC.

IN M.F.A.NO. 1947/2018
BETWEEN

SRI VENKATESHAIAH
S/O RANGASWAMY,
R/AT NO.806,"B" KOTE HAROHALLI,
NEAR SRIKRISHNASWAMY TEMPLE,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT-562 112

PRESENT ADDRESS:
NO.24,2ND CROSS,SHAADANAGARA,
CHUNHAGHATTA MAIN ROAD,
BENGALURU-560 062
                                                 ...APPELLANT
(BY SRI. GIRIMALLAIAH, ADVOCATE)

AND:

1.     ICICI LOMBARD GENERAL INSURANCE CO LTD
       NO.121,THE ESTATE,9TH FLOOR,
       DICKENSON ROAD,M.G.ROAD,
       BENGALURU-560 032

2.    MR.SAGAR H.P
      S/O LATE H.L PUTTARAJ,
      MAJOR, (AGE NOW KNOWN TO THE APPELLANT)
      NO.258,AASHIRVAD NILAYA
      BASAVESHWARA COLONY,
      NEAR RAILWAY STATION,
      BIDADI,RAMANAGARA DISTRICT-562 109.
                                          ...RESPONDENTS
(BY SRI. B.C. SHIVANNEGOWDA, ADVOCATE FOR R-1
    SRI. K.P. BHUVAN, ADVOCATE FOR R-2)
                               3



      THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 24.11.2017 PASSED
IN MVC NO. 4271/2016 ON THE FILE OF THE 21ST ACMM, 23RD
ADDITIONAL SMALL CAUSE JUDGE, BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCMENT OF COMPENSATION AND ETC.


IN M.F.A.NO. 1949/2018
BETWEEN

SRI BASAVAIAH
S/O LATE BYREGOWDA
AGED ABOUT 57 YEARS
RESIDING AT: ATTIKUPPE VILLAGE & POST
MARALAWADI HOBLI, KANAKAPURA TALUK
RAMANAGARA DISTRICT.
                                                 ...APPELLANT
(BY SRI. GIRIMALLAIAH, ADVOCATE)

AND:

1.     ICICI LOMBARD GENERAL INSURANCE CO LTD
       NO.121,THE ESTATE,9TH FLOOR,
       DICKENSON ROAD,M.G.ROAD,
       BENGALURU-560 032

2.    MR.SAGAR H.P
      S/O LATE H.L PUTTARAJ,
      MAJOR, (AGE NOW KNOWN TO THE APPELLANT)
      NO.258,AASHIRVAD NILAYA
      BASAVESHWARA COLONY, NEAR RAILWAY STATION,
      BIDADI,RAMANAGARA DISTRICT-562 109.
                                          ...RESPONDENTS
(BY SRI. B.C. SHIVANNEGOWDA, ADVOCATE FOR R-1
    SRI. K.P. BHUVAN, ADVOCATE FOR R-2)

      THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 24.11.2017 PASSED
IN MVC NO. 4272/2016 ON THE FILE OF THE XXI A.C.M.M., AND XXIII
ADDITIONAL SMALL CAUSES JDUGE, MACT, BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
                              4




IN M.F.A.NO. 3072/2018
BETWEEN
SRI SAGAR H P
S/O LATE H L PUTTARAJ,
AGED ABOUT 33 YEARS,
R/AT NO.258, AASHIRVAD NILAYA,
BASAVESHWARA COLONY,
NEAR RAILWAY STATION, BIDADI,
RAMANAGARA DISTRICT-562109
                                                 ...APPELLANT
(BY SRI. K.P. BHUVAN, ADVOCATE)

AND

1.     ICICI LOMBARD GENERAL
      INSURANCE CO LIMITED,
      NO.121, THE ESTATE,
      9TH FLOOR, DICKENSON ROAD,
      M.G.ROAD, BANGALORE-560042

2.    SRI BASAVAIAH
      S/O LATE BYREGOWDA,
      AGED ABOUT 57 YEARS,
      R/AT ATTIGUPPE VILLAGE AND POST,
      MARALAWADI HOBLI, KANAKAPURA TALUK,
      RAMANAGARA DISTRICT-562 112.
                                          ...RESPONDENTS
(BY SRI. B.C. SHIVANNEGOWDA, ADVOCATE FOR R-1)

      THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 24.11.2017 PASSED
IN MVC NO. 4271/2016 ON THE FILE OF THE XXI ACMM & XXIII ASCJ,
MACT, COURT OF SMALL CAUSES, BENGALURU(SCCH-25),
AWARDING COMPENSATION OF RS, 2,29,550/- WITH INTEREST @
8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

     THESE APPEALS COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                5



                          JUDGMENT

These appeals arise out of the impugned judgment and

award dated 24.11.2017 passed in M.V.C.Nos.4271/2016 and

4272/2016, whereby the tribunal allowed respective claim

petitions filed by the claimants and awarded compensation in

their favour towards injury sustained by them in a road traffic

accident that occurred on 23.05.2016.

2. Before the Tribunal, one Venkateshaiah was the

claimant in M.V.C.No.4271/2016 in which the Tribunal

awarded a sum of Rs.2,29,550/- in favour of the claimant

together with interest at 8% p.a. from the date of petition till

realisation. In the said petition, owner of the offending vehicle

Sagar H.P., was arrayed as respondent No.2 while the

Insurance Company was arrayed as respondent No.1.

3. In M.V.C. No.4272/2016 filed by the claimant

Basavaiah against the same respondents, the Tribunal

awarded a compensation in a sum of Rs.14,33,900/- in favour

of the claimant together with interest at 8% p.a. from the date

of petition till realisation.

4. In both the claim petitions, the Tribunal absolved

the Insurance company of its liability to pay compensation and

fastened the entire liability upon the owner - Sagar H.P., on

the ground that the owner of the offending vehicle did not

possess a valid and effective driving licence as on the date of

the accident.

5. The details of appeals preferred by the claimants

and the owner challenging the judgment and decree are as

follows:

            MFA                   MVC               Appeal
                                                  preferred by
 MFA No.3071/2018           MVC No.4272/2016     Owner - Sagar
                                                     H.P
 MFA No.1947/2018           MVC No.4271/2016       Claimant -
                                                 Venkateshaiah
 MFA No.3072/2018           MVC No.4271/2016     Owner - Sagar
                                                     H.P
 MFA No.1949/2018           MVC No.4272/2016       Claimant -
                                                   Basavaiah

6. Pursuant to an application filed by the owner in

I.A.No.2/2018 before this Court for permission to produce the

extract of driving licence to indicate that the driver of the

vehicle possessed a valid and effective driving licence, this

Court passed an order on I.A.No.2/2018 on 13.12.2019, which

reads as under:

"ORDER ON I.A.NO.2/2018

These batches of appeals arise out of two claim petitions in MVC No.4271/2016 and MVC No.4272/2016.

MVC No.4271/2016 was filed by one Venkateshaiah seeking compensation in respect of the injuries sustained by him in the road accident occurred on 23.05.2016. MVC No.4272/2016 was filed by one Basavaiah seeking compensation in respect of the injuries sustained by him in respect of the very same road accident.

The common impugned judgment and award passed by MACT, Bengaluru (for short 'Tribunal'). The Tribunal awarded a sum of Rs.2,29,550/- together with interest at 8% per annum in MVC No.4271/2016 and a sum of Rs.14,33,900/- together with interest at 8% per annum in MVC No.4272/2016.

By the impugned judgment and award, the Tribunal directed Sri.Sagar H.P - the owner of the offending vehicle to pay compensation and thereby, exhausted the Insurance Company fastening the liability to pay the compensation.

MFA No.1947/2018 is filed by one Venkateshaiah - the claimant in MVC No.4271/2016 seeking enhancement of compensation. Similarly, MFA No.1949/2018 is filed by one Basavaiah - the claimant in MVC No.4272/2016 seeking enhancement of compensation.

Aggrieved by the judgment and award fastening the liability upon him, the owner has preferred MFA No.3071/2018 and 3072/2018. The Tribunal while exhausted the Insurance Company of its liability and coming to the conclusion that the owner of the offending vehicle was liable to pay compensation and recorded the specific finding at para No.13 to the effect that the driving license produced by the owner would clearly establish that he did not possess valid and effective driving license as on the date of the accident.

Along with MFA No.3071/2018, the owner has filed an application No.2/2018 along with copy of the extract which would indicate that the driver of the vehicle possessed a valid and effective driving license. However, the validity and correctness of the said document produced here by the owner

is seriously disputed by the learned counsel for the Insurance Company.

Under these circumstances, a perusal of the additional document sought to be produced in I.A.No.2/2018 coupled with the findings of the Tribunal that the owner did not possess a valid and effective driving license as on the date of the accident, the said document now sought to be produced is extremely relevant and material for the purpose of adjudication of the issues in controversy involved between the parties in these appeals. Accordingly, I.A.No.2/2018 is hereby allowed. The said document is taken on record.

After allowing the I.A.No.2/2018 and receiving the said additional evidence on record, in view of the fact that the genuineness and validity of the said document is seriously disputed by the respondent - Insurance Company, it is just and proper to adopt the course contemplated under Order 41 Rule 28 Civil Procedure Code, which extracted as hereunder.

"28. MODE OF TAKING ADDITIONAL EVIDENCE.

Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court."

I am, therefore, of the opinion that in order to give an opportunity to both sides regarding the proof and validity of the documents, now sought to be produced, it is necessary to direct the Tribunal to take such evidence in relation to the additional evidence now permitted to be produced. While doing so, the Tribunal is also directed to permit all the parties involved to adduce such other oral and documentary evidence in support of their respective claims and send back the evidence within a time framed to be fixed by this Court. In view of the aforesaid discussions, I pass the following:

ORDER I.A No.2/2018 filed by the appellant in MFA No.3071/2018 and MFA No.3072/2018 are hereby allowed.

The Tribunal is directed to take additional evidence on record and permit all the parties involved in the case to adduce such further oral and documentary evidence including the cross- examination of the witnesses. The Tribunal to receive the evidence oral and documentary evidence so recorded and return the file within a period of three months from 10.01.2020 on which date parties undertake to appear before the Tribunal without further notice from the Court.

Registry is directed to transmit the LCR as well as application No.2/2018 filed along with documents to the Tribunal forthwith.

The date of appearance to the parties is fixed on 10.01.2020.

Re-list these matters on 16.04.2020."

7. Pursuant to the said order, the TCR were sent to

the Tribunal along with relevant documents for the purpose of

recording evidence on the said additional documents.

Accordingly, the Tribunal recorded the evidence of RW-3,

I.M.Khan, RTO, Ramanagar and Ex.R-4 was marked as his

evidence. The said witness-RW-3 was cross-examined by all

the parties. Pursuant thereto the Original evidence of RW-3

and document, Ex-R4 was returned and placed before this

Court.

8. A perusal of the said evidence of witness-RW-3-

I.M.Khan coupled with the driving licence at Ex.R4, clearly

indicates that the driver of the offending vehicle possessed the

licence to drive a LMV i.e., light motor vehicle as on the date of

the accident which occurred on 23.05.2016. Though the said

driver did not possess an endorsement which endeavor him to

drive a transport vehicle, in view of the decision of the Apex

Court in the case of 'Mukund Dewangan Vs. Oriental

Insurance Co. Ltd.', AIR 2017 SC 3668, I am of the

considered opinion that the Insurance Company would be

liable to pay compensation in favour of the claimant.

Accordingly, the judgment and award exonerating the

insurance company of its liability to pay compensation and

fastening the entire liability on the owner is hereby set aside.

9. Insofar the quantum of compensation is

concerned, it is necessary to take up both the appeals

separately.

MVC No.4271/2016:

10. A perusal of the impugned judgment and award

will indicate that the Tribunal has come to the conclusion that

the physical disability incurred by the claimant to the entire

body was 8% as against the evidence of Doctor and other

material on record which indicate that it is about 22%. Under

these circumstances, I am of the considered opinion that the

physical disability to the entire body is to be taken as 14%.

Keeping in mind the Lok Adalath guidelines which stipulate

that the notional income of the claimant is to be taken as

Rs.9,500/- since the accident occurred in the year 2016, the

compensation payable towards loss of future income is as

under:

Rs.9,500 x 12 x 11 x 14/100 = Rs.1,75,560/-

Thus, the compensation payable under this head is

1,75,560/- as against Rs.84,480/- awarded by the Tribunal.

Consequently, the claimant would also be entitled to additional

sum of Rs.12,500/- towards loss of income during treatment

period as against Rs.16,000/- awarded by the Tribunal. Thus,

the claimant would be entitled to compensation of

Rs.3,33,089/- together with interest at 6% p.a. from the date of

claim petition till realisation. The details are as follows:

                                    Awarded      Awarded by
                                    by      the this     Court
                                    Tribunal (in (in Rs.)
                                    Rs.)
1.    Pain and Suffering                 60,000        60,000
2.    Medical Expenses                   34,029        34,029
3.    Loss of income during laid up      16,000        28,500
      period
4.    Loss of future income              84,480      1,75,560
5.    Loss of future amenities and       15,000        15,000
      happiness
6.    Attendant, conveyance, food        20,000        20,000
      and nourishment charges
                    Total              2,29,509      3,33,089


MVC No.4272/2016

11. The material on record indicates that the claimant

suffered a fracture of right lower limb pursuant to which the

same was amputated. In this regard, the Tribunal having

noticed the evidence of the Doctor to the effect that disability

to the right lower limb as 75%, came to the conclusion that

disability to the entire body for ascertaining disability as only

37.5%. This recording by the Tribunal is contrary to the case

of 'Syed Sadiq Etc Vs. Divisional Manager, United India

Ins. Co.', 2014 ACJ 627, wherein it is held as under:

"5. It is evident from the material and legal evidence produced on record that the appellant/ claimant in this appeal had sustained injuries to lower end of right femur and his right leg was amputated. Further, he had sustained injury over his left upper arm. The injuries sustained by him and the treatment taken by him are evident from the wound certificate Ex. P-6, discharge cards Ex.P-7&8, disability certificate Ex. P-12, X-ray films Ex.P-218 and was further supported by oral evidence of the appellant/claimant and the doctor examined as PW-1 and PW-4 respectively. PW-4 Dr. Rajesh had stated in his evidence that the appellant/claimant had suffered disability of 24% to upper limb and 85% to lower limb. The Tribunal, however, had considered the disability of the appellant/claimant caused to whole body at 30%. The High Court however, taking into consideration the amputation of the right leg of the appellant/claimant, determined the disability at 65% without assigning any proper reason for coming to this conclusion. Therefore, we intend to assign our reasons to hold that the High Court has erred in concluding the disability at 65%.

6. This Court in the case of Mohan Soni v. Ram Avtar Tomar & Ors.[1], has elaborately discussed upon the factors which determine the loss of income of the claimant more objectively. The relevant paragraph reads as under:

"11. In a more recent decision in Raj Kumar v. Ajay Kumar and another, (2011) 1 SCC 343, this Court considered in great detail the correlation between the physical disability suffered in an accident and the loss of earning capacity resulting from it. In paragraphs 10, 11 and 13 of the judgment in Raj Kumar, this Court made the following observations:

10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the

percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.

11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after

assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency).

We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Company Ltd. (2010) 10 SCC 254 and Yadava Kumar v.

National Insurance Company Ltd.

(2010) 10 SCC 341).

13. Ascertainment of the effect of the permanent disability on the actual

earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he

continues to earn or can continue to earn his livelihood."

7. Further, the appellant claims that he was working as a vegetable vendor. It is true that a vegetable vendor might not require mobility to the extent that he sells vegetables at one place. However, the occupation of vegetable vending is not confined to selling vegetables from a particular location. It rather involves procuring vegetables from the whole- sale market or the farmers and then selling it off in the retail market. This often involves selling vegetables in the cart which requires 100% mobility. But even by conservative approach, if we presume that the vegetable vending by the appellant/claimant involved selling vegetables from one place, the claimant would require assistance with his mobility in bringing vegetables to the market place which otherwise would be extremely difficult for him with an amputated leg. We are required to be sensitive while dealing with manual labour cases where loss of limb is often equivalent to loss of livelihood. Yet, considering that the appellant/claimant is still capable to fend for his

livelihood once he is brought in the market place, we determine the disability at 85% to determine the loss of income."

12. In view of the decision of the Apex Court stated

supra, I am of the opinion that the physical disability incurred

by the claimant on account of amputation of the right lower

limb is to be taken as 75% and consequently, loss of earning

capacity due to physical disability is to be taken as 75%

instead of 37.5%. Taking notional income as Rs.9,500/- per

month since the accident occurred in the year 2016, the

compensation payable towards loss of future income is as

under:

Rs.9,500 x 12 x 11 x 75/100 = Rs.9,40,500/-

The claimant would also be entitled to a sum of

Rs.28,500/- towards loss of income during laid up period. The

compensation awarded under other heads remain unaltered.

Thus the claimant would be entitled to a total sum of

Rs.20,06,902/- as against Rs.14,73,900/- awarded by the

Tribunal. The said compensation will carry interest at 6% p.a.

from the date of the claim petition till realisation. The details

are as follows:

                                   Awarded      Awarded by
                                   by       the this    Court
                                   Tribunal (in (in Rs.)
                                   Rs.)
1.    Pain and Suffering                80,000         80,000
2.    Medical Expenses                8,42,847       8,42,847
3.    Loss of future income           3,96,000       9,40,500
4.    Loss of future amenities and      20,000         20,000
      happiness
5.    Attendant, conveyance, food       20,000         20,000
      and nourishment charges
6.    Cost of artificial Limb           75,000         75,000
7.    Loss of income during laid up                 -        28,500
      period
                    Total                 14,33,847        20,06,847

13. In the result, I pass the following:

ORDER

i) All four appeals are partly allowed.

ii) The impugned judgment and award is

modified.

iii) The owner/appellant in MFA No.3071/2018

and 3072/2018 is hereby

exonerated/absolved of its liability to pay

compensation and that the Insurance

Company is liable to pay compensation in

favour of the respective claimants

iv) In MVC No.4271/2016, the claimant is