Karnataka High Court
M/S Bharti Axa General Insurance vs Vamshi Krishna on 6 August, 2024
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MFA No.10924 of 2013
C/W MFA No.4393 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO.10924 OF 2013 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.4393 OF 2012 (MV-I)
IN M.F.A. NO.10924/2013
BETWEEN:
VAMSHI KRISHNA
AGED ABOUT 22 YEARS
S/O JAYACHANDRA
KBD QUARTERS
KASABA HOBLI
NELAMANGALA TALUK
BANGALORE (R) DISTRICT.
...APPELLANT
Digitally signed by (BY SRI. CHANDRASHEKHAR R, ADV.,)
PRAJWAL A
Location: HIGH COURT
OF KARNATAKA AND:
1. BHARTI AXA GENERAL INSURANCE CO. LTD.,
PRIDE QUADRA, NO.30
2ND FLOOR, HEBBAL ROAD
BANGALORE-560034
REP. BY ITS MANAGER.
2. SHIVANNA, MAJOR
S/O RANGANNA
R/AT. NO.66, GOVENAHALLI
NELAMANGALA RURUAL
BANGALORE-562123.
...RESPONDENTS
(V/O DTD:08.01.2024 SRI. ASHOK N. PATIL, ADV., FOR R1
V/O DTD: 26.02.2018 NOTICE TO R2 IS D/W)
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MFA No.10924 of 2013
C/W MFA No.4393 of 2012
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:27.01.2012 PASSED IN MVC
NO.8041/2010 ON THE FILE OF THE XVI ADDITIONAL JUDGE, MACT,
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A. NO.4393/2012
BETWEEN:
M/S. BHARTI AXA GENERAL INSURANCE
COMPANY LTD,
PRIDE QUADRA, NO.30
2ND FLOOR, HEBBAL ROAD
BANGALORE-560034.
...APPELLANT
(BY SRI. ASHOK N. PATIL, ADV.,)
AND:
1 . VAMSHI KRISHNA
S/O JAYACHANDRA
AGED ABOUT 21 YEARS
KBD QUARTERS, KASABA HOBLI
NELAMANGALA TALUK
BANGALORE (R) DIST.
2 . SHIVANNA
S/O RANGANNA
NO.66, GOVENAHALLI
NELAMANGALA RURAL
BANGALORE-562123.
...RESPONDENTS
(BY SMT. PRIYANKA G.M. ADV., FOR
SRI. K. ABHINAV ANAND, ADV., FOR R2
R1 SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:27.1.2012 PASSED IN MVC
NO.8041/2010 ON THE FILE OF 16TH ADDITIONAL JUDGE, MACT,
BANGALORE, AWARDING A COMPENSATION OF RS.2,74,360/- WITH
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MFA No.10924 of 2013
C/W MFA No.4393 of 2012
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE
PAYMENT.
THESE APPEALS, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
In these two appeals, both the petitioner and the
Insurance Company have challenged the judgment and
award dated 27.01.2012 passed in M.V.C.No.8041/2010 by
the XVI Additional Small Causes Judge, Motor Vehicle
Accident Claims Tribunal, Bengaluru (SCCH-14) ('the
Tribunal' for short).
2. For the sake of convenience, the rank of the
parties shall be referred to as per their status before the
Tribunal.
3. Brief facts of the case are, on 27.10.2010 at about
9.15 a.m., while the petitioner was traveling in a auto
rickshaw bearing Regn. No.KA-52-4603 at Rayannagar main
road, Nelamangala town, the auto rickshaw was turned
turtle, due to which the petitioner sustained injuries and was
treated at J.P.Hospital, Nelamangala and BGS Global
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Hospital, Bangalore. Claiming that he is a Diploma student,
aged 19 years, doing part time job, the petitioner has
approached the Tribunal seeking grant of compensation for
Rs.15,00,000/-. Claim was opposed by the Insurance
Company. After taking the evidence and hearing both
parties, the Tribunal allowed the claim petition directing the
respondents to pay a compensation of Rs.2,74,360/- with
interest at 6% per annum. Pleading inadequacy and seeking
enhancement, the petitioner has filed MFA.No.10924/2013.
Challenging the fastening of liability, the Insurance Company
has filed MFA.No.4393/2012 on various grounds.
4. Heard the arguments of Sri.Chandrashekhar R.,
learned counsel for the petitioner and Sri.Ashok N. Patil,
learned counsel for respondent - Insurance Company and
Sri.K.Abhinav Anand, learned counsel for the owner of the
Auto Rickshaw.
5. It is the contention of the learned counsel for the
petitioner that the petitioner has suffered compression
fracture of disc and fracture of L1 lumbar. He was under
hospitalization for more than 12 days. He was laid up for six
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months. Medical evidence has been placed before the
Tribunal explaining 20% whole body disability, but the
Tribunal taken 14% of disability, notional income of
Rs.1,500/- and awarded the lesser compensation. Hence,
sought for enhancement.
6. Per contra, learned counsel for the Insurance
Company has contended that the petitioner is the student,
he has no avocation, the Tribunal has considered the nature
of injuries, post treatment, the petitioner become normal
and compensation awarded is just and reasonable. On the
date of the accident the driver of the auto rickshaw did not
have a valid driving license, policy was issued subject to the
valid driving license. There is a breach of terms and
conditions of the policy and the Tribunal did not consider this
aspect. Hence, sought for exoneration of the Insurance
Company from its liability to pay the compensation.
7. Learned counsel for the owner of the auto rickshaw
contended that the driver of the auto rickshaw was holding a
valid driving license to drive the light motor vehicle. An auto
rickshaw is a light motor vehicle and driving license held is
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sufficient to drive the auto rickshaw and thereby the Tribunal
has rightly fastened the liability against the Insurance
Company to indemnify its liability. To buttress his arguments
he has relied upon the judgment of MUKUND DEWANGAN
vs. ORIENTAL INSURANCE COMPANY LTD., reported in
(2016) 4 SCC 298.
7.1 It is further contended that the present Bharti Axa
General Insurance Company is merged with ICICI Lombard
General Insurance Company and liability of the previous
Insurance Company has to be borne by the present
Insurance Company.
8. I have given my anxious consideration to the
arguments addressed on behalf of both parties and perused
the materials on record.
9. The material on record goes to point out that there
was an accident on 27.10.2010 at 9:15 a.m. wherein the
petitioner was the passenger of the auto rickshaw bearing
Regn. No.KA-52-4603, at Rayannagar main road,
Nelamangala. Medical evidence points out that the petitioner
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has suffered compression fracture of disc and fracture of L1
spine. Discharge summary shows that the petitioner was
under hospitalization for 12 days. The driver of the auto
rickshaw has been prosecuted for the actionable negligence.
Hence, it is suffice to hold that the petitioner, being the
victim of the accident, entitled to claim compensation.
10. In a case of this nature, assessment of
compensation shall not be a bonanza for the petitioner nor it
is a peanut but it must be just compensation. PW.3 - Dr.
Ramesh, Orthopedic Surgeon, whose evidence confirms the
fact that the petitioner has sustained two fractures,
hospitalized for 12 days. Though the doctor suggested 20%
of whole body disability, Tribunal took it as 14% and notional
income at Rs.1,500/- per moth. As the petitioner is a
Diploma student, aged 19 years, he has better prospects to
earn more. A person with no proof of income will earn not
less than Rs.5,500/- in the year 2010. Hence, notional
income of the petitioner is to be taken at Rs.5,500/-. The
medical evidence though suggests 20% of whole body
disability, the facts and circumstances of the case clearly
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points out that the petitioner might have sustained disability
which may affecting 15% of his body. Hence, 15% is
assessed as disability on which the petitioner is entitled to
claim loss of future income.
11. The petitioner is entitled towards pain and
sufferings at Rs.50,000/-, loss of amenities and discomfort at
Rs.40,000/-, attendant charges at Rs.3,000/-, food and
nourishment at Rs.5,000/-, travel expenses at Rs.2,000/-.
The petitioner was laid up for four months, hence loss of
income for four moths laid up period is Rs.22,000/- (5,500 x
4). As referred supra, the disability is 15%, nominal income
of the petitioner is Rs.5,500/- and for age of 19 the
applicable multiplier is 18, then loss of future income will be
Rs.1,78,200/-.
5500 x 12 x 18 x 15% = 1,78,200/-.
12. Medical bills constitutes Rs.1,94,000/-. The father
of the petitioner is covered by ESI Insurance and the entire
money paid towards treatment has been reimbursed to him.
But it is the contention of learned counsel for the petitioner
that inspite of reimbursement, the petitioner is entitled to
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claim the said amount as compensation. The said submission
is not persuasive when the petitioner has been paid with the
ESI reimbursement of medical expenses, he cannot be given
double dhamaka and compensation cannot be a bonanza for
the petitioner. Hence, the medical expenses of Rs.1,94,000/-
spent by the petitioner cannot be awarded again as
compensation.
13. The petitioner is entitled for compensation under
the following heads:
Particulars Amount
1. Pain and Sufferings Rs. 50,000/-
2. Loss of amenities and Rs. 40,000/-
discomfort
3. Loss of income during laid Rs. 22,000/-
up period
4. Loss of future income Rs. 1,78,200/-
5. Attendant charges Rs. 3,000/-
6. Food & nourishment Rs. 5,000/-
7. Travel expenses Rs. 2,000/-
Total Rs. 3,00,200/-
Tribunal's award Rs. 2,74,360/-
Enhanced compensation Rs. 25,840/-
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Thereby, there is enhancement of Rs.25,840/- rounded
off to Rs.26,000/-. It is the just compensation that the
petitioner is entitled to facts and circumstances of the case.
14. Regarding the liability is concerned, the auto
driver was holding driving license to drive light motor vehicle
on the date of accident. The contention of the Insurance
Company is that there is no endorsement in the driving
license to drive the auto rickshaw. Admittedly, auto rickshaw
is light motor vehicle. Petitioner is holding driving license to
drive light motor vehicle. Principles laid down in Mukund
Dewangan's case supra is aptly applicable to the case in
hand. Insurance Company cannot avoid its liability. The
Tribunal has rightly fastened liability against the Insurance
Company. Hence, both the respondents are liable to pay the
compensation and Insurance Company is liable to indemnify
the insured. It is undisputed that the Respondent - Insurance
Company since merged with ICICI Lombard General
Insurance Company, it has to bear the liability of the
respondent -Insurance Company.
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15. In view of the above, appeal filed by the
petitioner deserves merit consideration and appeal filed by
the Insurance Company devoid of merits, in result, the
following:
ORDER
(i) MFA.No.10924/2013 filed by the petitioner is
allowed in part;
(ii) MFA.No. 4393/2012 filed by the Insurance
Company is dismissed.
(iii) The petitioner would be entitled to enhanced
compensation of Rs.26,000/- with interest at
6% p.a. from the date of petition till
realisation;
(iv) The ICICI Lombard General Insurance Company
is directed to deposit the entire compensation
with interest @ 6% per annum.
(v) The ICICI Lombard General Insurance Company
shall deposit the compensation amount along
with accrued interest within eight weeks from
the date of receipt of certified copy of this
judgment.
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(vi) The amount in deposit shall be transmitted to
the Tribunal.
SD/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
ABK
