Karnataka High Court

Ramakanth Yadav vs Reliance General Insurance ... on 10 November, 2021

Bench: H T Prasad

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF NOVEMBER 2021

                       BEFORE

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

               MFA No.2319 OF 2020(MV)
                         C/W
               MFA No. 5124 OF 2021(MV)

IN MFA 2319/2020

BETWEEN:

M/S RELIANCE GENERAL
INSURANCE COMPANY LTD.,
REGIONAL OFFICE, NO.28
5TH FLOOR, EAST WING
CENTENERY BUILDING
M G ROAD, BANGALORE-560001.

                                          ...APPELLANT

(BY SRI.H N KESHAVA PRASHANTH, ADV.)

AND

1.     SRI RAMAKANTH YADAV
       S/O LATE JAYARAM
       NOW AGED ABOUT 36 YEARS
       R/AT NO 1256, 12TH CROSS
       AECS LAYOUT, SINGASANDRA
       BENGALURU-560068.

2.     MANUEL RAJ S
       S/O SHANMUGAM
       57/4, MUNISWAMY REDDY BUILDING
                          2



     GOVT. SCHOOL ROAD
     6TH CROSS, OPP- HANUMAN STORE
     B NARAYANAPURA
     BENGALURU-560016.

3.   SENDIL KUMAR J
     S/O JAYARAMAN
     AGED ABOUT 26 YEARS
     R/AT NO.88, 7TH CROSS
     GANDHINAGAR
     K G HALLI, BENGALURU-560045.

                                        ...RESPONDENTS

(BY SRI. RAGHU R., ADV. FOR
    SRI. H.C. PRAKASHA, ADV. FOR R1:
    SRI. N.S. SHESHADRI, ADV. FOR R2)

      THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 12.12.2019 PASSED
IN MVC NO.3998/2017 ON THE FILE OF THE VII
ADDITIONAL SCJ AND ACMM, MEMBER, MACT-3,
BENGALURU,     AWARDING     COMPENSATION     OF  RS.
3,23,040/- WITH INTEREST AT 9 PERCENT P.A. FROM THE
DATE OF DEPOSIT.

IN MFA 5124/2021
BETWEEN:
RAMAKANTH YADAV
S/O LATE JAYARAM
AGED ABOUT 36 YEARS
R/AT NO 1256, 12TH CROSS
AECS LAYOUT, SINGASANDRA
BENGALURU-560068.

                                          ...APPELLANT
                          3




(BY SRI.RAGHU R., ADV. FOR SRI. PRAKASHA H.C., ADV.)

AND

1.    RELIANCE GENERAL
      INSURANCE COMPANY LTD.,
      NO.28, 5TH FLOOR, EAST WING
      CENTENERY BUILDING
      MAHATMA GANDHI ROAD
      BANGALORE-560001.
      REPRESENTED BY ITS MANAGER.

2.    MANUEL RAJ S
      S/O SHANMUGAM
      MAJOR
      57/4, MUNISWAMY REDDY BUILDING
      GOVERNMENT SCHOOL ROAD
      6TH CROSS, OPP- HANUMAN STORE
      B NARAYANAPURA
      BENGALURU-560016.
                                    ...RESPONDENTS

(BY SRI. KESHAVA PRASHANTH ADV., FOR R1)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 12.12.2019 PASSED
IN MVC NO.3998/2017 ON THE FILE OF THE VII
ADDITIONAL SCJ AND ACMM, MEMBER, MACT-3,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

     THESE MFAS, COMING ON FOR ORDERS, THIS DAY,
THIS COURT, DELIVERED THE FOLLOWING:
                            4



                     JUDGMENT

MFA No.2319/2020 has been filed by the

Insurance Company and MFA No.5124/2021 has been

filed by the claimant under Section 173(1) of the

Motor Vehicles Act, 1988 (hereinafter referred to as

'the Act', for short) being aggrieved by the judgment

dated 12.12.2019 passed by the Motor Accident

Claims Tribunal, Bengaluru in MVC No.3998/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 15.03.2017 at about 06.00

p.m., when the claimant was returning home on his

Honda Activa bearing registration No.KA-02-EQ-5502

on Banasawadi Main Road, near Dodda Banasawadi

Bus Stand, at that time, the driver of Eicher Canter

bearing registration No.KA-53-C-0134 drove it in a

rash and negligent manner and dashed against the

vehicle of the claimant from behind. 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 Nos.1

and 2 have appeared through counsel and filed written

statement in which the averments made in the

petition were denied. During the pendency of the

proceedings, the respondent No.3 got deleted by the

claimant. It was pleaded by the Insurance Company

that the petition itself is false and frivolous in the eye

of law. It was further pleaded that the accident was

due to the rash and negligent riding of the vehicle by

the claimant himself. The driver of the offending

vehicle did not have valid driving licence as on the

date of the accident and there was no valid RC, permit

as such there is breach of policy condition. The liability

is subject to terms and conditions of the policy. The

age, avocation and income of the claimant and the

medical expenses are denied. It was further pleaded

that the quantum of compensation claimed by the

claimant is exorbitant.

It was pleaded by the owner of the offending

vehicle that the accident was not due to the negligent

on the part of the offending vehicle and it was due to

the rash and negligent riding of the vehicle by the

claimant himself. Hence, he sought for dismissal of

the petition.

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. Nagaraj B.N was examined

as PW-2 and got exhibited documents namely Ex.P.1

to Ex.P.25. 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.3. 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.3,23,040/- along with

interest at the rate of 9% p.a. and directed the

Insurance Company to deposit the compensation

amount along with interest and recover the same from

the owner of the offending vehicle. Being aggrieved,

this appeal has been filed.

6. On the other hand, the learned counsel for

the Insurance Company has raised following counter

contentions:

Firstly, as on the date of the accident, the driver

of the offending vehicle was having a driving licence to

drive Light Motor Vehicle Non-Transport (LMV-NT) but

he was driving Transport Vehicle. Since the insured

has violated the policy condition, the Tribunal has

rightly exonerated the Insurance Company from the

liability and has erred in directing the Insurance

Company to pay the compensation to the claimant

with liberty to recover the same from the owner of

the offending vehicle.

Secondly, even though the claimant claims that

he was earning Rs.60,000/- per month, he has not

produced any documents to establish his income. The

notional income of Rs.8,000/- assessed by the

Tribunal is on higher side.

Thirdly, PW-2, the doctor has stated in his

evidence that the claimant has suffered physical

disability of 43% to the right lower limbs and 14% to

whole body. The Tribunal considering the injuries

sustained by the claimant, has rightly assessed the

whole body disability at 14%.

Fourthly, considering the oral and documentary

evidence and the injuries suffered by the claimant, the

overall compensation awarded by the Tribunal under

the other heads are also on higher side.

Lastly, in view of judgment of the Division Bench

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

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 9% interest

which is on the higher side. Hence, he sought for

allowing the appeal filed by the Insurance Company

and dismissing the appeal filed by the claimant.

7. The learned counsel for the claimant has

raised the following contentions:

Firstly, even though as on the date of the

accident, the driver of the offending vehicle was

having a driving licence to drive Light Motor Vehicle

Non-Transport (LMV-NT) but he was driving Transport

Vehicle. Since the insured has violated the policy

condition, the Tribunal has rightly exonerated the

Insurance Company from the liability. But in view of

the in view of 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, the Tribunal

has rightly directed the Insurance Company to pay the

compensation with liberty to recover the same from

the owner of the offending vehicle. There is no error in

the finding given by the Tribunal in this aspect.

Secondly, even though the claimant claims that

he was doing Carpenter work and also agricultural

work and earning Rs.60,000/- per month, but the

Tribunal has taken the notional income as merely as

Rs.8,000/- per month.

Thirdly, PW-2, the doctor has stated in his

evidence that the claimant has suffered physical

disability of 43% to the right lower limbs and 14% to

whole body. But the Tribunal has erred in taking the

whole body disability at only 14%.

Fourthly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 5 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. Heard the learned counsel for the parties

and perused the judgment and award.

9. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

due to rash and negligent driving of the offending

vehicle by its driver.

RE:QUANTUM

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 2017, the notional income has to be taken at

Rs.11,000/- p.m.

As per wound certificate, the claimant has

sustained both tibia and fibula at the lower 1/3rd right

leg fracture of the right leg. PW-2, the doctor has

stated in his evidence that the claimant has suffered

physical disability of 43% to the right lower limbs and

14% to whole body. Therefore, taking into

consideration the deposition of the doctor, PW-2 and

injuries mentioned in the wound certificate, the

Tribunal has rightly assessed the whole body

disability at 14%. The claimant is aged about 33

years at the time of the accident and multiplier

applicable to his age group is '16'. Thus, the claimant

is entitled for compensation of Rs.2,95,680/-

(Rs.11,000*12*16*14%) 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.22,000/- (Rs.11,000*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 5 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 and

nutritious food' from Rs.10,000/- to Rs.40,000/- and

'pain and suffering' from Rs.10,000/- to 30,000/-.

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 10,000 30,000 Medical expenses 80,000 80,000 Attendant charges and 5,000 5,000 Conveyance Loss of income during 3,000 22,000 laid up period Loss of amenities and 10,000 40,000 nutritious food Loss of future income 2,15,040 2,95,680 Total 3,23,040 4,72,680

RE:LIABILITY

The Tribunal after considering the evidence of

the parties and material available on record, has

rightly held that the driver of the offending vehicle

was not having a valid and effective driving licence as

on the date of the accident and has rightly exonerated

the Insurance Company from the liability. But in view

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

the case of SWARAN SINGH (supra) and PAPPU

(supra), the Tribunal has rightly directed the

Insurance Company to pay the compensation to the

claimant with liberty to recover the same from the