Karnataka High Court

Mr. Girijesh.R vs Icici Lombard General on 6 June, 2022

Bench: H T Prasad

                             1



   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 6TH DAY OF JUNE 2022

                          BEFORE

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

               MFA No.7730 OF 2018 (MV)

BETWEEN:

Mr.Girijesh.R,
S/o Rudramadappa,
Aged about 36 years,
Residing at: Kadukembathahalli,
Balalau Post, Denkanikote Taluk,
Krishnagiri District - 635 105.
                                             ... Appellant
(By Sri.Girimallaiah., Advocate)

AND:

1. ICICI Lombard General
   Insurance Company Ltd.,
   No.121, The Estate,
   9th Floor, Dickenson Road,
   M.G.Road, Bengaluru - 560 042.

2. Sri.Mahesh.k,
   S/o Kariyaiah,
   Major, (age not known
   to the Appellant)
   Krishna Layout,
   Mukundappa Koli Farm,
   Begur Road, Holimavu,
   Bangalore -560 078.
                                          ... Respondents
(By Sri.H.N.Keshava prashanth, Advocate for R1;
  Notice to R2 is held sufficient)
                              2



      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 08.08.2018 passed
in MVC No.5629/2017 on the file of the XXI Additional
Small Causes Judge & 19th ACMM, Member, MACT,
Bengaluru (SCCH-23), partly allowing the claim petition for
compensation and seeking enhancement of compensation.

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

                     JUDGMENT

This appeal under Section 173(1) of Motor

Vehicles Act, 1988 (hereinafter referred to as 'the

Act') has been filed by the claimant being aggrieved

by the judgment and decree dated 08.08.2018 passed

by MACT, Bengaluru (SCCH-23) in MVC

No.5629/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 11.06.2017 at about 8.00

a.m. near Annapoorneshwari Choultry, Bolare Village,

Uttarahalli Hobli, Bengaluru South Taluk, the rider of

the two wheeler bearing registration No.KA-51/EB-

3265 rode the same at a high speed and in a rash and

negligent manner dashed to the claimant who was

standing on the side of the road. 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 appeared through counsel and filed separate

written statements 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 petition itself is false

and frivolous in the eye of law. It was further pleaded

that the accident was due to the negligence of the

claimant himself.

It was further pleaded by respondent No.1 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, they 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, Dr.Prakashappa H. was examined

as PW-2 and another witness as PW-3 and got

exhibited documents namely Ex.P1 to Ex.P14. On

behalf of the respondents, two witnesses were

examined as RW-1 and RW-2 and got exhibited

documents namely Ex.R1 to Ex.R4. The Claims

Tribunal, by the impugned 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 claimant sustained injuries. The

Tribunal further held that the claimant is entitled to a

compensation of Rs.2,35,289/- along with interest at

the rate of 6% p.a. and directed since the rider of the

offending vehicle had no valid driving licence, 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 claimant has

raised the following contentions:

Firstly, even though the claimant claims that he

was agricultural coolie and earning Rs.12,000/- per

month, but the Tribunal has taken the notional income

as only Rs.9,000/- per month.

Secondly, the claimant has examined the doctor

as PW-2, who, in his evidence has stated that the

claimant has suffered physical permanent disability of

19% to the whole body, but the Tribunal has erred in

taking the whole body disability at only 6%.

Thirdly, due to the accident the claimant has

suffered grievous injuries, he was inpatient for a

period of 38 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 and he has to suffer the disability and

unhappiness throughout his life. Considering the

same, the Tribunal has not awarded any

compensation under the heads of 'loss of amenities'

and 'loss of income during laid-up period'.

Fourthly, the Tribunal has held that the driver of

the offending vehicle was not having valid and

effective driving licence at the time of the accident

and exonerated the Insurance Company from

payment of compensation. But in view of the law laid

down by the Hon'ble Apex Court in the case of

'PAPPU AND OTHERS vs. VINOD KUMAR LAMBA

AND ANOTHER' AIR 2018 SC 592 and a Full Bench

judgment of this Court in 'NEW INDIA ASSURANCE

CO. LTD. BIJAPUR vs. YALLAVVA AND ANOTHER'

ILR 2020 Kar.2239, the insurance company has to

pay the compensation amount with liberty to recover

the same from the owner of the offending vehicle, the

insured. Hence, he sought for enhancement of

compensation.

7. 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.12,000/- 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, PW-2, the doctor has stated in his

evidence that the claimant has suffered disability of

19% to whole body, but he failed to assess the limb

disability. The Tribunal, considering the injuries

sustained by the claimant, has rightly assessed the

whole body disability at 6%.

Thirdly, considering the injuries sustained by the

claimant and considering the age and avocation of the

claimant, the overall compensation awarded by the

Tribunal is just and reasonable compensation.

Fourthly, it is not in dispute that as on the date

of the accident the rider of the motorcycle was not

having valid and effective driving licence. Since the

insured has violated the policy conditions, Insurance

Company is not liable to pay the compensation. The

Tribunal has rightly exonerated the Insurance

Company from payment of compensation Hence, he

sought for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. 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 claims that he was earning

Rs.12,000/- per month. He has not produced any

documents to prove 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 anterior cruciate big injury,

medial collateral ligament and partial tear of the

posterior cruciate ligament injury. PW-2, the doctor

has stated in his evidence that the claimant has

suffered permanent physical disability of 19% to

whole body. Therefore, taking into consideration the

deposition of the doctor, PW-2 and injuries mentioned

in the wound certificate, the whole body disability can

be assessed at 10%. The claimant was aged about

38 years at the time of the accident and multiplier

applicable to his age group is '15'. Thus, the claimant

is entitled for compensation of Rs.1,98,000/-

(Rs.11,000*12*15*10%) on account of 'loss of future

income'.

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. He was

treated as inpatient for more than 38 days in the

hospital and thereafter, has received further

treatment. He has suffered lot of pain during

treatment and he has to suffer with the disability and

unhappiness throughout his life. Considering the

same, in addition to the compensation awarded by the

Tribunal the claimant is entitled to additional

compensation under the heads 'loss of amenities' at

Rs.40,000/- and 'loss of income during laid-up period'

for a period of 5 months, i.e., Rs.55,000

(Rs.11,000*5).

Considering the nature of injuries, 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 40,000 Medical expenses 88,089 88,089 Food, nourishment, 10,000 10,000 conveyance and attendant charges Loss of income during 0 55,000 laid up period

Loss of amenities 0 40,000 Loss of future income 97,200 1,98,000 Total 2,35,289 4,31,089

11. In the result, the appeal is allowed in part.

The judgment of the Claims Tribunal is modified.

The claimant is entitled to a total compensation

of Rs.4,31,089/- as against Rs.2,35,289/- awarded by

the Tribunal.

Re.liability:

12. The Tribunal has rightly held that the driver

of the offending vehicle was not having valid and

effective driving licence and rightly exonerated the

Insurance Company from payment of compensation

However, in view of the law laid down by the Hon'ble