Karnataka High Court
Bajaj Allainz General Insurance ... vs Somaling Gireppa Patil on 15 September, 2022
Bench: H.P.Sandesh
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MFA No. 24419 of 2011
C/W MFA No. 22777 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 15TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 24419 OF 2011
(MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 22777 OF 2012
IN MFA No.24419/2011
BETWEEN:
1. SRI. MAHANTESH S/O SHEKAR CHALAWADI
AGE: 26 YEARS, OCC: PVT SERVICE (NOW-NIL), R/O SAI
NAGAR, BAILHONGAL, DIST. BELGAUM
...APPELLANT
(BY SRI. HANAMANT R LATUR.,ADVOCATE)
AND:
1. THE MANAGING DIRECTOR,
M/S VIJAYANAND ROAD LINES /LOGISTICS LTD.,
ADMINISTRATIVE OFFICE, BANGALORE ROAD, VARUR,
TQ. HUBLI, DIST. DHARWAD
2. THE MANAGER (LEGAL),
ICICI LOMBARD GENERAL INSURANCE, UNITED INDIA
Digitally
signed by
INSURANCE CO. LTD., ABOVE BELLARY and COMPANY, II
John John Doe
Date:
Doe 2022.09.19
12:19:10
+0530
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MFA No. 24419 of 2011
C/W MFA No. 22777 of 2012
FLOOR, GOKUL ROAD, HUBLI, DIST. DHARWAD
3. SHRI. SHEKAR S/O BASAVANNEPPA CHALAWADI
AGE: 45 YEARS, OCC: GOVT. SERVANT, SAI NAGAR,
BAILHONGAL, DIST. BELGAUM
4. THE MANAGER (LEGAL),
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.MADIWALE
ARCADE, IST FLOOR, CLUB ROAD, BELGAUM
...RESPONDENTS
(BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE FOR R1,
SRI.S.K.KAYAKAMATH, ADVOCATE FOR R2,
SRI.R.R.MANE, ADVOCATE FOR R4,
NOTICE TO R3 IS DISPENSED WITH)
THIS MFA IS FILED U/SEC.173(1)OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DTD:22-07-2011 PASSED IN
MVC.NO.1103/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MEMBER, ADDL. MACT, BAILHONGAL, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA No.22777/2012
BETWEEN
BAJAJ ALLAINZ GENERAL INSURANCE CO. LTD.,
MADIWALE ARCADE IST FLOOR,HASMI MANZIL CLUB ROAD,
BELGAUM.REP. BY BAJAJ ALLAINZ GEN. INSURANCE CO.LTD, 4TH
FLOOR,V.A.KALBURGI MANSION,OPP.MUNICIPAL CORP. LAMINGTON
RAOD, HUBLI, REP. BY ITS AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI. RAVINDRA R MANE, ADVOCATE)
AND
1. SHRI.SOMALING GIREPPA PATIL,
AGE: 24 YEARS, OCC: MASON,R/O: BAILHONGAL,
DIST: BELGAUM.
2. THE MANAGING DIRECTOR,
M/S VIJAYANAND ROADLINES,
ENKAY COMPLEX, KESHWAPUR HUBLI.
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MFA No. 24419 of 2011
C/W MFA No. 22777 of 2012
(OWNER OF THE ASHOK
LEYLAND TRUCK NO.KA-25/A-2360)
3. ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
ZENITH HOUSE, KESHAVRAO KHADE MARG,
MAHALAXMI, MUMBAI-400 034.
(INSURER OF VEHICLE NO.KA-25/A-2360)
4. SHRI.SHEKHAR BASAVANNEPPA CHALAVADI,
AGE: MAJOR, OCC: GOVT. SERVICE,
R/O: SAI NAGAR, SAIBABA TEMPLE,
BAILHONGAL, DIST: BELGAUM.(OWNER OF
MOTORCYCLENO.KA-22/TRE-1296)
...RESPONDENTS
(BY SRI. K ANANDKUMAR, ADVOCATE FOR R1,
SRI.HANUMANTHAREDDY SAHUKAR, ADVOCATE FOR R2,
SRI.S.K.KAYAKAMATH, ADVOCATE FOR R3,
NOTICE TO R4 SERVED)
THIS MFA IS FILED U/SEC.173(1) OF MV ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DTD:13-03-2012 PASSED IN
MVC.NO.2612/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MEMBER, ADDL. MACT, BAILHONGAL, AWARDING THE
COMPENSATION OF RS.2,74,850/- WITH INTEREST AT THE RATE OF
6% P.A., SHALL BE DEPOSITED WITHIN SIX MONTHS FROM THE
DATE OF THE ORDER.
THESE APPEALS COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard learned counsel appearing in both the appeals.
2. Factual matrix of the case of the claimants
before the Tribunal is that both the claimants were
proceeding in a motorcycle and truck came and dashed
MFA No. 24419 of 2011
C/W MFA No. 22777 of 2012
against both of them and as a result both have sustained
injuries and immediately they were shifted to hospital,
wherein they took treatment and they spent huge amount
for their treatment and hence sought for compensation
before the Tribunal.
3. Learned counsel for claimant in MFA
No.24419/2011 contend that the Tribunal has committed
an error in taking contributory negligence of 50% and also
contended that disability taken only 10% in spite of had
sustained fracture of tibia and fibula that is also
comminuted compound fracture and P.W.2-doctor says
that there was mal union of both tibia and fibula and
hence, disability taken by the Tribunal is on lesser side.
There was shortening in the leg i.e. 1 c.m. and apart from
that injured was in the hospital for more than three
months and compensation awarded on other heads is also
meager. The Tribunal has taken income of Rs.4,000/- p.m.
but he claimed that he was earning Rs.6,000/- p.m. and
hence, sought for enhancement of compensation.
MFA No. 24419 of 2011
C/W MFA No. 22777 of 2012
4. Per contra, learned counsel for respondent-
Insurance Company contends that the accident has taken
place in 2009 and doctor who is examined before the
Tribunal is not a treated doctor and disability assessed at
45% is on higher side. Counsel also contends that the
compensation awarded on other heads is exorbitant. He
also submits that P.W.1 in the cross-examination admitted
that he has seen the truck which was coming and also
given evidence that simultaneously two vehicles can pass
on the said road. Noting the said fact the Tribunal has
rightly assessed contributory negligence to the extent of
50%.
5. Counsel appearing for the other claimant i.e.
another inured submits that 50% contributory negligence
is taken erroneously and nothing is elicited in the cross-
examination of P.W.1 that he was negligent in driving the
vehicle.
MFA No. 24419 of 2011
C/W MFA No. 22777 of 2012
6. Counsel appearing for insured of the truck
would contend that the vehicle was insured with
respondent No.2 i.e. Insurance Company and if there is
any liability, the same should be fastened on Insurance
Company only.
7. Counsel appearing for appellant in MFA
No.22777/2012 contends that contributory negligence
taken by the Tribunal is erroneous and in the absence of
any admission and any material on record, the Tribunal
ought not to have taken contributory negligence in respect
of rider of motorcycle.
8. In view of the rival contentions of the parties,
the following points would arise for consideration:
i. Whether the Tribunal has erred in taking 50%
each contributory negligence in respect of two
vehicles and whether it requires interference?
ii. Whether Tribunal has erred in not awarding just
and reasonable compensation?
iii. What order?
MFA No. 24419 of 2011
C/W MFA No. 22777 of 2012
9. Regarding Point No.1: Having heard the
learned counsel for the parties and on perusal of the
material on record, it is the contention of the claimants as
well as Insurance Company of motorcycle that Tribunal
has committed an error in taking contributory negligence.
Having gone through the evidence of P.W.1 he was
subjected to cross-examination. Except eliciting answer
that two vehicles can pass in the said place of accident
and also no other vehicles were moving at the time of
accident and also he saw the truck which was coming,
nothing is elicited and Tribunal has erred in holding that
there is contributory negligence on the part of the rider of
the motorcycle.
10. Having considered the cross-examination of
P.W.1, nothing is elicited with regard to negligence on the
part of the rider of motorcycle. The very approach of the
Tribunal is erroneous. Counsel for respondent No.2
contends that IMV report clearly disclose that there is
damages to both vehicle and the same cannot be a ground
MFA No. 24419 of 2011
C/W MFA No. 22777 of 2012
to comes to a conclusion that there is contributory
negligence and in usual course when the vehicle that too
when a truck hits the motorcycle, damages will cause to
the motorcycle more and hence, mere damages in respect
of motorcycle also cannot be a ground to hold that there is
contributory negligence. Hence, point No.1 is answered in
affirmative.
11. Regarding point No.2: The injured claimant
who is the appellant before the Court contends that
disability taken at 10% is on lesser side and in spite of
doctor has deposed that 45% to particular limb and there
are mal union of fracture of tibia and fibula. Having
considered evidence of P.W.2, doctor who is examined is
not a treated doctor. However, material disclose that he
has suffered fracture of tibia and fibula and he was
inpatient for a longer period i.e. almost for 2 months and
60 days. Having taken note of the same, I do not find any
error committed by the Tribunal in awarding Rs.80,000/-
towards pain and suffering.
MFA No. 24419 of 2011
C/W MFA No. 22777 of 2012
12. The Tribunal has awarded Rs.1,43,900/-
towards medical expenses and the same is based on
documentary evidence. Towards nourishment and other
incidental expenses and conveyance charges, the Tribunal
awarded Rs.20,000/-. Considering the period of treatment,
it is appropriate to enhance the same by Rs.20,000/-. In
all, he is entitled for Rs.40,000/- on the said head.
Towards loss of income during treatment period the
Tribunal has taken income of Rs.4,000/-. Considering that
the claimant was inpatient for more than two months, it is
appropriate to take six months for uniting of fracture and
for rest. Having taken the income of Rs.5,000/- since the
accident is of the year 2009, it comes to Rs.30,000/-
(Rs.5,000 x 6) as against Rs.48,000/-.
13. Towards loss of future income is concerned, the
Tribunal has erred in taking disability at 10%. Even
considering 1/3rd of the assessed disability it comes to
15%. In view of evidence of doctor, who is not a treated
doctor, the Court has to take note of comminuted
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MFA No. 24419 of 2011
C/W MFA No. 22777 of 2012
compound fracture of tibia and fibula. Apart from that
there is mal union. When such being the case, the Tribunal
ought to have considered disability on higher side. Hence,
this Court adds 3% and in all the disability would be 18%
in respect of lower limb. Multiplier would be 18 considering
the age of the claimant as 25 years. Having considered the
income of Rs.5,000/-, the loss of future earnings would be
as under:
Rs.5,000 x 12 x 18 x 18% = Rs.1,94,400/-.
14. Towards loss of amenities, the Tribunal has
awarded Rs.60,000/-, which is just and reasonable. In
all, the claimant is entitled for Rs.5,48,300/-.
15. Regarding point No.3: In view of the
discussions made above, I pass the following:
ORDER
Appeals are allowed.
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MFA No. 24419 of 2011
C/W MFA No. 22777 of 2012
In modification of the impugned judgment and award
passed by the Tribunal, the claimant in MFA
No.24419/2011 is entitled for a sum of Rs.5,48,300/- as
against Rs.2,19,150/- awarded by the Tribunal.
Enhanced compensation shall carry interest at 6%
p.a. from the date of petition till realization.
Liability is fastened on the Insurance Company-
respondent No.2 in MFA No.24419/2011, who is
respondent No.3 in MFA No.22777/2012 to pay the entire
compensation and contributory negligence of 50% is set
aside.
Compensation amount shall be payable within six
weeks from the date of this order.
Amount in deposit, if any, in MFA No.22777/2012 is
ordered to be refunded to the Insurance Company on
proper identification.
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MFA No. 24419 of 2011
C/W MFA No. 22777 of 2012
Amount in deposit, if any, in MFA No.22777/2012 is
ordered to be refunded to the Insurance Company on
proper identification.
The registry is directed to transmit the trial court
records forthwith.
sd
JUDGE
SH
