Karnataka High Court
Icici Lombard General vs Durgavva W/O Maruti Halli on 23 September, 2022
Bench: H.P.Sandesh
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MFA No. 101702 of 2016
C/W MFA CROB. No.100162 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.101702 OF 2016
(MV)
C/W
MFA CROB NO.100162 OF 2016
IN MFA NO.101702/2016
BETWEEN:
ICICI LOMBARD GENERAL INSURANCE CO., LTD.,
2ND FLOOR, BELLAD AND COMPANY,
GOKUL ROAD, HUBBALLI,
REPRESENTED BY ITS MANAGER LEGAL
...APPELLANT
(BY SRI. R.R.MANE, ADVOCATE FOR APPELLANT)
AND:
1. DURGAVVA W/O. MARUTI HALLI,
AGE ABOUT 42 YEARS, OCC: LABOUR,
R/O. CHILKAMUKHI, TQ. AND DIST. KOPPAL.
2. NANNA HUSSAIN S/O. ABBAS ALI,
AGE 39 YEARS, OCC: DRIVER OF
Digitally
signed by J
MAMATHA
LORRY NO.KA-35/1165,
J Location:
Dharwad
R/O. KANAKAGIRI BAGANAN GALLI,
MAMATHA Date:
2022.09.27 TQ. GANGAVATHI, DIST. KOPPAL.
16:33:53
+0530
3. SRI. KANAKAPPA S/O. NARAYANAPPA LINEDARI,
AGE 30 YEARS, OCC: OWNER OF LORRY
NO.KA-35/1165,
R/O. SUBHASA NAGAR, GUDIHALA ROAD,
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MFA No. 101702 of 2016
C/W MFA CROB. No.100162 of 2016
KANAKAGIRI, TQ. GANGAVATHI,
DIST. KOPPAL.
4. SRI. S. ALAM S/O. ABDUL RASHEED,
AGE MAJOR, OCC: PREVIOUS OWNER OF
LORRY NO.KA-35/1165,
R/O. CHALWADI KERI, HOSPET.
...RESPONDENTS
(SRI. GURURAJ R. TURAMARI, ADVOCATE FOR R1;
NOTICE TO R2 AND R4 IS DISPENSED WITH;
NOTICE TO R3 SERVED)
THIS MFA IS FILED U/SEC. 173(1) OF M.V.ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED 04.04.2016 PASSED
IN MVC NO.82/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MEMBER, ADDL. MACT, KOPPAL AWARDING COMPENSATION OF
RS.6,42,317/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE
DATE OF PETITION TILL ITS REALIZATION.
IN MFA CROB. 100162/2016
BETWEEN:
DURGAVVA W/O. MARUTHI HALLI,
AGE 38 YEARS, OCC: LABOUR,
R/O. CHILKAMUKHI, TQ. AND DIST. KOPPAL
...CROSS OBJECTOR
(BY SRI. DEEPAK MAGANUR, ADVOCATE)
AND:
1. NANNA HUSSAIN S/O. ABBAS ALI,
AGE 35 YEARS, OCC: DRIVER OF LORRY
NO.KA 35/1165, R/O. KANAKAGIRI BAGANAN GALLI,
TQ. GANGAVATHI, DIST. KOPPAL - 583227.
2. SRI. KANAKAPPA S/O. NARAYANAPPA LINEDARI,
AGE 26 YEARS, OCC: OWNER OF LORRY
NO.KA35/1165, R/O. SUBHASA NAGAR,
KANAKAGIRI, TQ. GANGAVATHI,
DIST. KOPPAL-583227.
MFA No. 101702 of 2016
C/W MFA CROB. No.100162 of 2016
3. ICICI LOMBARD GENERAL INSURANCE CO., LTD.,
GOKUL ROAD, HUBBALLI - 580020
(POLICY NO.55737326)
4. SRI. S. ALAM S/O. ABDUL RASHEED,
CHALWADI KERI, HOSPET 583273.
...RESPONDENTS
(SRI. R.R.MANE, ADVOCATE FOR R3;
NOTICE TO R1, R2 AND R4 DISPENSED WITH)
THIS MFA CROB. IS FILED UNDER ORDER 41 RULE 22 OF CPC,
AGAINST THE JUDGMENT AND AWARD DATED 04.04.2016 PASSED
IN MVC NO.82/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MEMBER, ADDL. MACT, KOPPAL, PARTLY ALLOWING THE CLAIM
PETITION FOR THE COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THESE APPEAL AND CROSS OBJECTION COMING ON FOR
ORDERS THROUGH PHYSICAL HEARING/VIDEO CONFERENCING
HEARING THIS DAY, THE COURT PASSED THE FOLLOWING:
COMMON JUDGMENT
Heard the learned counsel for the appellant and the
learned counsel for the respondents.
2. The MFA No.101702/2016 is filed by the
Insurance company challenging the liability and MFA Crob
No.100162/2016 is filed by the claimant seeking
enhancement of the compensation against the Judgment
and award dated 04.04.2016 in MVC No.82/2013 on the
file of the Senior Civil Judge and Addl. MACT, Koppal.
MFA No. 101702 of 2016
C/W MFA CROB. No.100162 of 2016
3. The factual matrix of the case of the claimant is
that, on 31.10.2009 at about 3.00 p.m. she, her husband
and her relatives were waiting for conveyance to go to the
Tawargera to perform the Bandenawaz Urus with all their
food grains, utensils and other peripherals. At that time,
the offending vehicle came there and as per the
instructions of the driver all of them boarded the vehicle
along with their goods in the carrier. Since the petitioner
was 7 months pregnant the petitioner sat in the cabin of
the vehicle. When the vehicle was proceeding near K.E.B,
office situated in Kankagiri, the driver was driving the
vehicle in a rash and negligent manner. Because of the
rash and negligent driving of the vehicle, the door of the
cabin got opened. As a result, the claimant fell down and
left side rear wheel passed on her limbs, spinal card, etc.,
The claimant also sustained abdominal injuries. The
claimant fractured multiple fractures on the left lower
limb. Immediately, the claimant was admitted to
Government Hospital, at Koppal. Thereafter the claimant
was admitted to SDM Hospital at Dharwad for a period of
MFA No. 101702 of 2016
C/W MFA CROB. No.100162 of 2016
three months. The left lower limb was amputated apart
from other surgeries and she has suffered 100% disability
and claimed the compensation.
4. The Insurance company appeared the contested
the matter by filing the objection statement and it is
contended that, the liability is subject to the terms and
conditions of the policy and the liability is also subject to
the valid and effective driving licence and also it is
contended that, the vehicle involved in the accident is a
goods carrying vehicle and the petitioner traveling in the
vehicle is a unauthorized passenger and hence, the
Insurance company is not liable to pay any compensation.
The claimant in order to substantiate her case, she herself
examined as P.W.1 and also examined other two
witnesses and got marked Ex.P.1 to P.13 and on the other
hand, the respondent examined two witnesses i.e. R.W.1
and R.W.2 and got marked Ex.R.1 to Ex.R.6.
MFA No. 101702 of 2016
C/W MFA CROB. No.100162 of 2016
5. The tribunal after considering both oral and
documentary evidence allowed the claim petition granting
compensation of Rs.6,42,370/- and hence, the present
appeal is filed by the Insurance company contending that,
the liability fastened on the Insurance company is
erroneous. It is contended that, the vehicle is goods
vehicle and the claimant has travelled as unauthorized
passenger and the documents of criminal court records
clearly discloses that they were waiting for boarding the
vehicle and they have boarded the vehicle and an accident
was occurred and hence, it is clear that, mere having the
luggage with them cannot be termed as goods as defined
under the Act under Section 2(13) of the M.V.Act and the
Office of the Insurance company is also examined as
R.W.1. The trial Court has committed an error in
considering the document at Ex.P.6, P.11 and P.12 and
even in spite of the same is considered, it shows that
petitioner was travelling in the vehicle as owner of the
goods, and that in the cross-examination of P.W.1 and 2,
nowhere it is suggested to them that the claimant was
MFA No. 101702 of 2016
C/W MFA CROB. No.100162 of 2016
travelling in the said vehicle as gratuitous passenger,
ignoring that it was suggested to P.W.1 that he had
stopped the lorry by showing hand and they were
travelling and in spite of all these materials were there,
the tribunal has committed an error. It was also contended
that in the mini lorry they were carrying 10-15 persons as
against the seating capacity of only 3 including the driver
and hence, the tribunal ought not to have fastened the
liability on the Insurance company. The counsel also in
support of his arguments, he relied upon the Judgment of
this Court in the case of The United India Insurance
Company Ltd., Vs. Smt. Lalithabai and others,
reported in ILR 2007 Kar. 1585, wherein this Court
taken note of Section 2(13), with regard to the definition
of goods meaning of carrying one or two bags of grains in
a goods vehicle will amount to carrying of the goods and
held that, the very mention of bag will not automatically
lead to the conclusion that they are the goods and further
held that, the very mention of the word goods does not
include luggage or personal effects or personal luggage of
MFA No. 101702 of 2016
C/W MFA CROB. No.100162 of 2016
the passengers travelling in the vehicle is indicative of the
fact that small quantities of food grains carried in one or
two bags as personal luggage or personal effects will not
bring them within the meaning or expression of goods.
The counsel referring this Judgment would vehemently
contend that, carrying of one or two bags along with them
does not amounts to goods and hence, the liability
fastened on the Insurance company is erroneous. The
counsel also appearing for the appellant would submits
that, witness RTO is also examined as R.W.2 and in his
evidence, he says that, no permit and FC is available in
the office in respect of KA-35/1165 and also it is evident
that on 03.11.2009 the vehicle was migrated from Hospet
office and the previous documents will be there in the
Hospet office and also he has produced the RC extract and
the same is marked as Ex.R.6. The owner has to produce
the document of registration and in order to drive the
vehicle, LMV goods badge driving licence is necessary and
hence, the counsel would submits that, with regard to the
violation of policy conditions, already examined R.W.2.
MFA No. 101702 of 2016
C/W MFA CROB. No.100162 of 2016
6. Per contra, learned counsel appearing for the
respondents would vehemently contend that, R.W.1 has
been examined before the trial Court and in the cross-
examination he categorically admitted that the police
records reveals that the statement was given that they
were carrying goods and when there is a clear admission
on the part of the R.W.1 that the persons have given the
statement before the police that, they were proceeding
along with goods and keeping the same in the backside of
the lorry and documents at Ex.P.11 and P.12 have also
confronted and got marked through the R.W.1 and now
cannot contend that, they were not carrying any goods.
The other contention that carrying of bag not amounts to
carrying of goods cannot be accepted and it is emerging in
the evidence that, they were carrying five bags of food
grains and hence, the said contention of the Insurance
company cannot be accepted. The counsel also would
submits that, it is the case of amputation above the knee
and compensation awarded is very meager and
compensation awarded under the other heads is also very
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MFA No. 101702 of 2016
C/W MFA CROB. No.100162 of 2016
meager and the disability is taken only to the extent of
50% when the amputation was above the knee and apart
from that, future prospectus has not been taken while
calculating the future loss of income.
7. Having heard the respective counsel and also
on perusal of the material available on record, the points
that would arise for consideration of this Court are:
(i) Whether the tribunal has committed
an error in fastening the liability on the
Insurance company ?
(ii) Whether the tribunal has committed
an error in not awarding just and reasonable
compensation ?
(iii) What order?
8. Answer to Point No.1 : The main contention
of the Insurance company is that, the injured was
travelling as unauthorized passenger in the vehicle and the
counsel also brought to the notice of this Court the
statement made by the husband of the injured. The very
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MFA No. 101702 of 2016
C/W MFA CROB. No.100162 of 2016
claimant herself stated before the police wherein she has
stated that when they were waiting near the bus stop
offending vehicle came and all of them have boarded along
with their relatives and she being a pregnant, she was
sitting by the side of the driver in the cabin and driven the
vehicle in a rash and negligent manner and nothing is
stated in her statement. However, the trial Court has
committed an error in relying upon the statement of other
witnesses i.e. Ex.P.6, P.11 and P.12. The counsel also
would submits that, in the cross-examination of P.W.1, it
is elicited that, they were proceeding along with their
luggage and in her chief evidence itself says that vehicle
was proceeding to Kanakgiri and they have enquired with
the driver for hire purpose and he agreed for hire purpose
and hence, all of them have put the luggage i.e. rice bag,
food grains and also other materials and her husband was
also there in the said vehicle and accident was occurred
due to the negligence on the part of the driver of the
vehicle. In the cross-examination, it is elicited that, she
has given the complaint in the police station and it is also
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MFA No. 101702 of 2016
C/W MFA CROB. No.100162 of 2016
suggested that, it is a goods vehicle and the same is also
admitted. When the question was put to the witness what
she was carrying and she says that she was carrying the
rice and also the food grains and also the Jaggery. When
the witness given the evidence that when she was carrying
rice, food grains and jaggery and the same is not denied in
the cross examination that she was not carrying the same
along with her. The counsel would contend that, in the
cross examination a suggestion was made that they have
shown hands and boarded the lorry to go to another
village and that itself is a cross-examination that she was
proceeding as unauthorized passenger in the vehicle. The
claimants also examined one witness as P.W.2 and P.W.2
also proceeding in the said vehicle. It is suggested that,
they were travelled in the goods vehicle as a passenger
and hence, the insurance company is not liable to pay
compensation. The other witness is P.W.3. The P.W.3 also
cross-examined and in the cross-examination it was
elicited that it is a goods carrying vehicle and it is
suggested that they were not having any rice bags in the
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MFA No. 101702 of 2016
C/W MFA CROB. No.100162 of 2016
said vehicle and the same is denied. R.W.1 who has been
examined before the trial Court says that, without the
permit the vehicle was plying and the petitioner and others
were travelling in the vehicle as unauthorized passenger.
In the cross-examination he admits that, when the
suggestion was made that the persons who were
proceeding in the vehicle have given the statement before
the police that they were carrying the goods in the vehicle,
and hence, the Ex.P.11 and 12 are also got marked. The
other witness is P.W.2 who is the RTO. In his evidence, he
says that, the vehicle was migrated vehicle and prior to
03.11.2009 the other documents will be with the Hospet
office. But in the cross-examination he admits that, this
vehicle was earlier registered at Hospet RTO office and
also the vehicle was migrated on 03.11.2009 and the
vehicle is a light goods vehicle and the badge is required
for passenger carrying vehicle. The document is
confronted that on 31.10.2009 RTO office issued the
permit and the same is valid and the same was marked as
Ex P.13.
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MFA No. 101702 of 2016
C/W MFA CROB. No.100162 of 2016
9. Having head the respective counsel and also on
perusal of the material available on record, no doubt in the
statement given by the P.W.1 she has not stated anything
about she was proceeding along with the goods in terms of
Ex.P.2, but the other witnesses have given the statement
before the police in terms of Ex.P.6, P.11 and P.12 that
they were carrying luggage along with them and police
have also investigated the matter and filed the charge-
sheet wherein the charge-sheet is filed under Sections 279
and 338 of IPC and Section 187 of M.V.Act and the R.W.1
in the cross examination he categorically admits that, in
the statement of witnesses in terms of Ex.P.6, P.11 and
P.12 it is mentioned that, they were proceeding along with
the goods and the counsel appearing for the appellant
would vehemently contend by referring the Judgment
supra, the personal luggage will not be a goods, but it is
categorically stated that they were carrying the rice bag,
grains bag and also the Jaggery bag along with them and
they were proceeding to Urus. When such evidence is
given before the Court the very contention of the counsel
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MFA No. 101702 of 2016
C/W MFA CROB. No.100162 of 2016
appearing for the appellant that, it does not amounts to a
goods cannot be accepted and also the Court has to take
note of the injured is a illiterate and she has put thumb
impression while recording her evidence before the Court
and the claimant is not literate to differentiate the luggage
or bags and when the bags are there in the vehicle itself
as per the statement of witnesses in terms Ex.P.6, P.11
and P.12, the very contention of the Insurance company
cannot be accepted. With regard to the other contention
that permit and other contention is concerned R.W.2 who
has been examined, he admits that there was a permit as
on the date of the accident i.e. on 31.10.2009 and the
counsel appearing for the appellant would vehemently
contend that, that is with the earlier owner and not with
the present owner and the very contention that there was
no permit as on the date of the accident, cannot be
accepted and R.W.2 also categorically admits that, the
vehicle was registered at Hospet office prior to 03.11.2009
and the other documents are available with Hospet office
and even though that answer is elicited from the mouth of
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MFA No. 101702 of 2016
C/W MFA CROB. No.100162 of 2016
R.W.2, no effort is made by the respondent to prove the
said contention and when such being the circumstances
when the same has not been proved by either securing the
documents from the Hospet office, or by examining any
other official from the concerned office, the very
contention that it is clear violation of the policy conditions
cannot be accepted and hence, having considered the
material available on record, I do not find any force in the
contention of the appellant counsel that the tribunal has
committed an error in fastening the liability on the
Insurance company. The counsel appearing for the
appellant would also contend that, there was no driving
licence and notice was also issued to respondent owner to
produce the same and except producing of the documents
at Ex.R.1 to R.4 and out of that Ex.R.2 is notice issued to
the owner to provide driving licence, R.C., F.C., permit and
Insurance policy and also another document at Ex.R.3 and
in order to prove the fact that the same was served on the
owner, no material is placed before the Court and by
merely producing the copy of the letter addressed to the
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MFA No. 101702 of 2016
C/W MFA CROB. No.100162 of 2016
owner in terms of Ex.R.2 and Ex.R.3 and the same cannot
be a proof for having served the notice and unless notice
is served on the respondent the very contention that, it
has been proved that he was not having driving licence
cannot be accepted and hence, the other contention that
he was not having any driving licence has not been proved
by the respondent. Under the circumstances I do not find
any force in the contention that the tribunal has
committed an error in fastening the liability on the
Insurance company.
10. Answer to Point No.2 : The claimant in the
appeal has contended that the compensation awarded is
very meager and on perusal of the compensation assessed
by the tribunal, the compensation awarded in a case of
amputation above the knee, the pain and suffering an
amount of Rs.10,000/- is awarded and the claimant was in
the hospital for a period of 2 months 20 days and the
discharge summary which is marked as Ex.P.10 which
discloses that, she was inpatient from 01.11.2009 to
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MFA No. 101702 of 2016
C/W MFA CROB. No.100162 of 2016
20.01.2010 for a period of 02 months 20 days and also
the left leg was amputated above the knee. No doubt, the
claimant has not examined the Doctor, but discharge
summary discloses that she was subjected to surgery and
in terms of discharge summary itself it is mentioned that,
her left leg is amputated on 01.11.2009 and having taken
note of the leg was amputated above the knee, the trial
Court has committed an error in awarding an amount of
Rs.10,000/- under the head of pain and sufferings, that
too when the claimant was inpatient for a period of almost
80 days and hence, it is appropriate to award
compensation of Rs.1,00,000/- under the head of pain
and sufferings. The trial Court has also awarded
compensation of Rs.50,566/- under the head of medical
expenses and the same is also based on the documentary
evidence and hence, it does not require any interference.
For loss of amenities, nutrition, died and attendant
charges, the tribunal has awarded an amount of
Rs.16,200/-. As I have already pointed out that, the
claimant was inpatient for a period of 80 days, and
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MFA No. 101702 of 2016
C/W MFA CROB. No.100162 of 2016
considering the year of the accident i.e. 2009, it is
appropriate to award an amount of Rs.60,000/- as
against Rs.16,200/- including food and nourishment. The
tribunal has awarded an amount of Rs.15,471/- under the
head of loss of income during laid up period. Considering
the income of Rs.200/- for 81 days i.e. for the period of
hospitalization and only calculated the loss of income for
the period of hospitalization and the tribunal has not
considered the loss of income for uniting the injury which
was amputated and hence, it is appropriate to take the
loss of income for a period of six months since the
claimant was in the hospital for a period of almost 80
days. Having considered the income for the year 2009, the
notional income would be Rs.5000/-, but the tribunal has
taken income of Rs.5,730/- and the same is little higher
side and in the absence of any documentary proof, ought
to have taken the notional income of Rs.5,000/-. If it is
taken Rs.5,000/- it comes to Rs.30,000/- for period of
six months. Now this court has to reassess the loss of
future income and the document at Ex.P.10 clearly
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C/W MFA CROB. No.100162 of 2016
discloses that, her left leg was amputated above the knee
and the disability taken by the tribunal is only 50% and
when the same is above the knee, the tribunal ought to
have considered the disability at little higher side and
though it claimed that she has suffered 100% disability in
view of the amputation and she was a coolie, the Court
has to take note of the amputation above the knee, it is
appropriate to consider the disability to the extent of 70%
as held against 50% and taking into note of 70% disability
the injured has to suffer her rest of life with the disability
of 70%, it is appropriate to add the future prospectus and
in view of the Judgment of Sanjay Kumar case and
Sayyad Sadiq case, it is a fit case to add future
prospectus and when she is aged about 35 years, the
relevant multiplier is '16' and having added 50% of future
prospectus i.e. Rs.5,000/- + Rs.2,500/- = Rs.7,500/-
X12X16=Rs.10,08,000/-. The tribunal has not awarded
any compensation under the head of loss of amenities and
when the claimant is aged about 35 years and she has to
lead her rest of life with the disability of 70%, and hence,
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C/W MFA CROB. No.100162 of 2016
it is appropriate to award an amount of Rs.1,00,000/-
under the head of loss of amenities and enjoyment of life.
The amputation is done above the knee and when such
being the case, she has to lead her rest of life and though
not stated anything about the artificial limb, she has to
change the same periodically throughout her life and
hence, it is appropriate to award compensation of
Rs.2,00,000/- under the head of artificial limb. In all the
claimant is entitle for compensation of Rs.15,48,566/-.
11. Answer to Point No.3 : In view of the
discussions made above, I pass the following:
ORDER
The appeal filed by the Insurance company is
dismissed and the appeal filed by the claimant is allowed,
granting compensation of Rs.15,48,566/- with 6% interest
as against Rs.6,42,317/- awarded by the tribunal.
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C/W MFA CROB. No.100162 of 2016
The Insurance company is directed to pay the
remaining compensation within six weeks.
The amount in deposit is ordered to transmit the
same to the concerned tribunal, forthwith.
Registry is directed to send back the TCR if any, to
the concerned tribunal, forthwith.
Sd/-
JUDGE
SVH
