Karnataka High Court

Meena Dubay M vs Icici Lombard General Ins. Co. ... on 5 January, 2021

Author: H T Prasad

                        1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 5TH DAY OF JANUARY 2021

                     PRESENT

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

           MFA NO.10473 OF 2012(MV)
                     C/W
            MFA NO.5077/2012(MV)

IN MFA 10473/2012
BETWEEN:

MEENA DUBAY M.,
W/O GNANADEV DUBAY M
AGED ABOUT 58 YEARS
R/AT NO.32, RAGHAVA NILAYA
G.M.COTTAGES, DODDABIDRAKALLU
NAGASANDRA POST
BANGALORE-73.
                                    .... APPELLANT
(BY SRI.SHRIPAD V SHASTRI, ADV.)

AND

1.    ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
      PRESTIGE CORNICHE
      62/1, 2ND FLOOR
      RICHMOND ROAD
      BANGALORE-25.
      BY ITS MANAGER.

2.    ANBUSHAM
      S/O D.S. SHANM MAJOR
                        2




     R/AT NO.58, RAVI KIRLOSKAR LAYOUT
     NAGASANDRA POST
     BANGALORE-73.
                                 ...RESPONDENTS
(BY SRI.LAKSHMINARASAPPA, ADV. FOR
SRI.A.M.VENKATESH, ADV. FOR R1:
NOTICE TO R2 IS DISPENSED WITH)

    THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:26.09.2011 PASSED IN MVC NO.6132/2010
ON THE FILE OF THE CHIEF JUDGE, COURT OF SMALL
CAUSES, PRINCIPAL MACT, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

IN MFA 5077/2012
BETWEEN

M/S ICICI LOMBARD GENERAL
INSURANCE CO. LTD.,
PRESTIGE CORNICHE
BANGALORE-25.
BY ITS MANAGER.
POLICY ISSUED BY ITS BRANCH OFFICE
AT ZENITH HOUSE
KESHAV RAO KHADE MARG
MAHALAXMI, MUMBAI-400 034.

                                   ... APPELLANT
(BY SRI. LAKSHMINARASAPPA, ADV. FOR
SRI. A.M.VENKATESH, ADV.)

AND

1.    SMT.MEENA DUBAY M.,
                         3




     W/O GNANADEV DUBAY M
     AGED ABOUT 56 YEARS
     R/AT NO.32, RAGHAVA NILAYA
     G.M.COTTAGES, DODDABIDRAKALLU
     NAGASANDRA POST
     BANGALORE-560 073.

2.   SRI. ANBUSHAM
     S/O D.S.SHAM
     MAJOR
     R/AT NO.58, RAVI KIRLOSKAR LAYOUT
     NAGASANDRA POST
     BANGALORE-560 073.
                                  ...RESPONDENTS
(BY SRI. SRIPAD V SHASTRI, ADV. FOR R1:
NOTICE TO R2 IS DISPENSED WITH)

     THE MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 26.09.2011 PASSED IN MVC NO.6132/2010
ON THE FILE OF THE CHIEF JUDGE COURT OF SMALL
CAUSES   AND    PRINCIPAL  MACT,  BANGALORE,
AWARDING A COMPENSATION OF RS.92,302/- WITH
INTEREST @ 6% FROM THE DATE OF PETITION TILL
REALIZATION.

    THESE MFAs COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE, THIS DAY, H.T.
NARENDRA    PRASAD   J., DELIVERED  THE
FOLLOWING:

                     JUDGMENT

MFA.No.10473/2012 is filed by the claimant

whereas MFA.No.5077/2012 is filed by the Insurance

Company under Section 173(1) of the Motor Vehicles

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

short) being aggrieved by the judgment dated

26.09.2011 passed by the Motor Accident Claims

Tribunal.

2. Facts giving rise to the filing of the appeals

briefly stated are that on 27.06.2010, the claimant

was proceeding in a car bearing registration No.KA-

04/P-2938 being driven by her daughter, when they

reached near ABB Junction, Nelagadaranahalli Road,

at about 5.45 p.m., at that time, a car bearing

registration No.KA-04/MC-3689, being driven by its

driver, at a high speed and in a rash and negligent

manner in north-south direction, dashed against the

car of 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 on the ground that she was working as

teacher in Jindal Public School and getting a salary of

Rs.14,200/- per month. It was pleaded that she also

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.1-

Insurance Company appeared through its counsel and

filed written statement in which the averments made

in the petition were denied. It was pleaded that the

petition itself is false and frivolous in the eye of law.

It was further pleaded that the accident was due to

rash and negligent driving of the vehicle of the

claimant. The age, avocation and income of the

claimant and the medical expenses are denied. It was

further pleaded that the driver of the offending vehicle

was not holding valid and effective driving licence as

on the date of accident. 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.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 herself was

examined as PW-1 and Dr.S.Praveen as PW-2 and got

exhibited 11 documents namely Ex.P1 to Ex.P11. On

the other hand, the respondent neither examined any

witness nor got marked any documents on their

behalf. 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.92,302/- 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, these appeals have been filed.

6. The learned counsel for the claimant has

raised the following contentions.

Firstly, at the time of accident the claimant was

working as teacher in Jindal Public School and getting

a salary of Rs.14,200/- per month. The Tribunal is

not justified in taking monthly income of the claimant

as only Rs.3,000/-.

Secondly, due to the accident, claimant has

suffered three grievous injuries, she has taken

treatment as inpatient for a period of 6 days and she

has suffered lot of pain during the treatment. She has

examined the doctor, who has deposed that the

claimant sustained whole body disability of 8%. She

has to suffer with the disability throughout her life.

The compensation awarded by the Tribunal under the

heads of 'pain & sufferings' and 'loss of amenities' are

on the lower side.

Thirdly, compensation awarded by the Tribunal

under the heads of 'attendant charges' and

'conveyance expenses' are on the lower side. Hence,

he sought for allowing the appeal filed by the claimant

in MFA.No.10473/2012 and dismissing the appeal filed

by the Insurance Company in MFA.No.5077/2012.

7. On the other hand, learned counsel for the

Insurance Company has raised the following counter

contentions.

Firstly, even though the claimant has claimed

that she was working as teacher in Jindal Public

School and getting salary of Rs.14,200/-, but she has

not produced any documents to show that she was

working as teacher in the said school. The monthly

income assessed by the Tribunal as Rs.3,000/- is on

the higher side.

Secondly, even though the doctor has assessed

disability of 8%, there is no loss of income due to

disability. The Tribunal has rightly not granted any

compensation under the head of 'loss of income due

to disability'.

Thirdly, the claimant was inpatient only for a

period of 6 days, the injuries suffered by her are

minor in nature. The compensation awarded by the

Tribunal under the heads of 'pain & sufferings' and

'loss of amenities' are on the higher side. Hence, he

sought for allowing the appeal filed by the Insurance

Company in MFA.No.5077/2012 and dismissing the

appeal filed by the claimant in MFA.No.10473/2012.

8. Heard the learned counsel for the parties.

Perused the judgment and award of the claims

Tribunal and original records.

9. It is not in dispute that the claimant

suffered injuries in a road traffic accident occurred on

27.06.2010 due to rash and negligent driving of the

offending vehicle by its driver. Due to the accident,

the claimant has suffered the following injuries.

1. Contusion over the right side of the neck 3 cm x 2 cm,

2. Contusion over the right and left side of chest 5 cm x 4 cm,

3. Contusion of the right knee joint 3 cm x 4 cm.

X ray showed fracture of IV, V, VI and VII right

side and III and IV left side ribs.

The claimant has examined Dr.S.Praveen as

PW.2, who issued wound certificate, has deposed that

the claimant has suffered whole body disability of 8%

and she was inpatient for a period of 6 days. Even

though the claimant has claimed that she was working

as teacher and getting salary of Rs.14,200/-, but she

has not produced any documents to establish the

same. Under this circumstance, 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 2010, the

notional income has to be taken at Rs.5,500/- per

month. Accordingly, monthly income of the claimant

is considered as Rs.5,500/-.

The Tribunal considering the evidence of the

parties and materials available on record has rightly

held that there is no loss of income due to disability.

Considering the evidence of the doctor and

evidence of the parties, the claimant is entitled for

compensation of Rs.16,500/- (Rs.5,500*3 months)

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

Due to the accident, the claimant has suffered

the above said injuries. She has examined

Dr.S.Praveen as PW.2, who has deposed that the

claimant has suffered whole body disability of 8%, she

has to suffer with the disability and unhappiness

throughout her life. Therefore, the compensation

awarded under the head of 'loss of amenities has to

be enhanced from Rs.15,000/- to Rs.40,000/-. The

claimant was inpatient for a period of 6 days.

Therefore, the compensation awarded under the

heads of 'attendant charges' and 'conveyance' have to

be enhanced from Rs.6,000/- to Rs.10,000/- and

Rs.2,000/- to Rs.10,000/- respectively.

The compensation awarded by the Tribunal

under other heads are 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 40,000 Medical expenses 23,302 23,302 Attendant charges 6,000 10,000 Loss of income during 6,000 16,500 laid up period Conveyance 2,000 10,000 Loss of 15,000 40,000 amenities/inconvenience Total 92,302 1,39,802

The claimant is entitled to a total compensation

of Rs.1,39,802/-.

The Insurance Company is directed to deposit

the compensation amount along with interest within a

period of four weeks from the date of receipt of copy

of this judgment.

Needless to state that the aforesaid amount of

compensation shall carry interest at the rate of 6%

p.a. from the date of petition till payment is made.

To the aforesaid extent, the judgment of the

Claims Tribunal is modified.

The amount in deposit before this Court is