Karnataka High Court

Nithin vs M/S Icici Lombard General ... on 10 November, 2022

Bench: H.P.Sandesh

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 10TH DAY OF NOVEMBER, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 M.F.A.NO.7047/2014 (MV-I)
                           C/W.
                 M.F.A.NO.574/2015 (MV-I)

IN M.F.A.NO.7047/2014:

BETWEEN:

NITHIN
S/O GAVIRANGAPPA,
AGED ABOUT 23 YEARS,
DRIVER, R/O. CHICKJAJUR VILLAGE,
HOLALKERE TQ,
CHITRADURGA DISTRICT.                        ... APPELLANT

       (BY SRI SPOORTHY HEGDE NAGARAJA, ADVOCATE)

AND:

1.     M/s. ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
       BY ITS REGIONAL MANAGER,
       S.V.R.COMPLEX, 2ND FLOOR,
       HOSUR MAIN ROAD, MADIVALA,
       BENGALURU-560 058.

2.     Mr. SAMBHAJI BAJIRANG YADAV
       MAJOR, DURGALWADI POST,
       TARGAON, TALKOREGAON,
       KOREGAON, SATARA-415 601,
       OWNER OF THE LORRY BEARING
       REG NO.M.H.11-AL-1573.            ... RESPONDENTS
                              2



     (BY SRI H.N.KESHAVA PRASHANTH, ADVOCATE FOR R1
                      [THROUGH VC];
               VIDE ORDER DATED 27.01.2015,
              NOTICE TO R2 IS DISPENSED WITH)

     THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 02.09.2014
PASSED IN MVC NO.55/2012 ON THE FILE OF THE SENIOR CIVIL
JUDGE, ADDITIONAL MACT, HOLALKERE, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

IN M.F.A.NO.574/2015:

BETWEEN:

THE REGIONAL MANAGER
M/s. ICICI LOMBARD GENERAL
INSRUANCE COMPANY LTD.,
#89, S.V.R. COMPLEX, 2ND FLOOR,
HOSUR MAIN ROAD, MADIVALA,
BENGALURU-560 068.                            ... APPELLANT

(BY SRI H.N.KESHAVA PRASHANTH, ADVOCATE [THROUGH VC])

AND:

1.     NITHIN S/O GAVIRANGAPPA,
       AGED ABOUT 23 YEARS,
       DRIVER, R/O. CHICKJAJUR VILLAGE,
       HOLALKERE TALUK-577 526.

2.     SAMBHAJI BAJIRANG YADAV
       MAJOR, DURGALWADI POST,
       TARAGAON, TAL KOREGAON,
       KOREGAON, SATARA-415 601.          ... RESPONDENTS

  (BY SRI SPOORTHY HEGDE NAGARAJA, ADVOCATE FOR R1;
              VIDE ORDER DATED 27.02.2015,
            NOTICE TO R2 IS DISPENSED WITH)
                                    3



     THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 02.09.2014
PASSED IN MVC NO.55/2012 ON THE FILE OF THE SENIOR CIVIL
JUDGE & A.MACT, HOLALKERE, AWARDING COMPENSATION OF
RS.75,000/- WITH INTEREST @ 6% P.A., FROM THE DATE OF
PETITION TILL THE DATE OF DEPOSIT.

     THESE APPEALS COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

Heard the learned counsel appearing for the claimant and

the learned counsel appearing for the Insurance Company.

2. These two appeals are filed by the claimant as well

as the Insurance Company, respectively, challenging the

judgment and award dated 02.09.2014, passed in

M.V.C.No.55/2012 on the file of the Senior Civil Judge and

Additional Motor Accident Claims Tribunal, Holalkere ('the

Tribunal' for short), questioning the quantum of compensation

and the liability.

3. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

4. The factual matrix of the case of the claimant before

the Tribunal is that the claimant was doing the repair work of the

Lorry. The driver of the Lorry, who drove the vehicle in a rash

and negligent manner and dashed against him, as a result, he

has sustained the crush injury to his left leg. Immediately, he

was taken to the hospital and he was an inpatient for a period of

58 days. The Doctor also assessed the disability of 28%. The

Tribunal has not awarded any compensation on the heads of

attendant and traveling charges, loss of income during laid-up

period and loss of amenities. The Tribunal only awarded an

amount of Rs.7,000/- for pain and suffering, an amount of

Rs.43,858/- for medical expenses, an amount of Rs.9,000/- for

food and nourishment and an amount of Rs.10,000/- for future

loss of income due to disability. In all, the Tribunal awarded an

amount of Rs.69,858/-, the same is rounded off to Rs.75,000/-.

Hence, the learned counsel appearing for the claimant would

vehemently contend that the Tribunal has not considered the

matter in a right perspective and the compensation awarded on

all other heads are very meager and not awarded any

compensation on the heads of attendant and traveling charges,

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

Hence, it requires an interference of this Court.

5. The learned counsel appearing for the Insurance

Company would submit that the driver was not having a valid

driving license, in spite of that the Tribunal has committed an

error in fastening the liability on the Insurance Company.

Admittedly, the vehicle involved in the accident is a Lorry having

unladden weight of 11500 kgs., Hence, the Tribunal ought not to

have fastened the liability on the Insurance Company.

6. Having heard the respective counsel and on perusal

of the material available on record, admittedly, the injured is a

third party. Hence, the Tribunal ought to have only directed the

Insurance Company to deposit the amount and recovered the

same from the insured; the same has not been done. Hence, it

requires an interference of this Court.

7. With regard to the quantum of compensation is

concerned, the claimant has sustained the crush injury to the left

leg. He was an inpatient twice for a period of 58 days. Having

taken note of the crush injury, the Wound Certificate - Ex.P5

and the discharge card - Ex.P122, which reveals that the injured

was admitted to the hospital on 26.02.2011 and discharged on

18.04.2011. He was an inpatient for a period of almost 50 days

at the first instance. Again he was admitted to the hospital on

03.02.2012 and discharged on 10.02.2012 for a period of 9

days. In total, he was an inpatient for a period of 59 days.

When such being the case, the Tribunal has committed an error

in awarding compensation of Rs.7,000/- on the head of pain and

suffering. Hence, it is appropriate to award compensation of

Rs.50,000/- on the head of pain and suffering.

8. The Tribunal awarded an amount of Rs.43,858/-

towards medical expenses based on the documentary evidence.

Hence, I do not find any error committed by the Tribunal in

awarding compensation under this head.

9. However, the Tribunal committed an error in not

awarding compensation on the head of attendant and traveling

charges and only awarded Rs.9,000/- on the head of food and

nourishment. When he was an inpatient for a period of 58 days

and it is an accident of the year 2011, the Tribunal ought to

have awarded the compensation on the heads viz., Food,

Nourishment, Attendant and Traveling Charges. Hence, it is

appropriate to award compensation of Rs.40,000/- on the head

of Food, Nourishment, Attendant and Traveling Charges.

10. The Tribunal not awarded compensation on the head

of 'loss of income during laid-up period'. In the year 2011, the

notional income would be Rs.6,500/- per month. When he was

an inpatient for a period of two months and the nature of injury

is a crush injury, the Tribunal ought to have taken the loss of

income for a period of 5 months, then, it comes to Rs.32,500/-

(6500x5).

11. The Tribunal only awarded an amount of Rs.10,000/-

on the head of 'Loss of future income due to disability' and not

assessed the disability and also not calculated the quantum of

compensation on the head of 'Loss of future income due to

disability'. Hence, it requires an interference of this Court.

12. Having considered the nature of injuries and the

Doctor also assessed the disability of 28% to the particular limb

and the nature of injury is also a crush injury and also

considering the prolonged treatment of two months, it is

appropriate to take the disability of 10% to the whole body.

Having considered the notional income of Rs.6,500/- per month,

the relevant multiplier is 18 since he is aged about 21 years, it

comes to Rs.1,40,400/- (6500x12x18x10/100).

13. The Tribunal also not awarded any compensation on

the head of 'loss of amenities'. Having considered the age of the

claimant and he has to lead rest of his life with the disability of

10% to the whole body, it is appropriate to award an amount of

Rs.30,000/- on the head of 'loss of amenities'.

14. In all, the claimant/appellant is entitled for a sum of

Rs.3,36,758/- as against Rs.75,000/- awarded by the Tribunal.

15. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeals are allowed-in-part.

(ii) The impugned judgment and award of the Tribunal dated 02.09.2014, passed in M.V.C.No.55/2012, is hereby modified granting compensation of Rs.3,36,758/- as against Rs.75,000/- awarded by the Tribunal with

interest at 6% per annum from the date of petition till the date of deposit.