Karnataka High Court
M/S Icici Lombard Company Ltd vs Ms. Harshitha. B on 2 January, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 5505 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.5505 OF 2017 (MV-I)
BETWEEN:
M/S ICICI LOMBARD COMPANY LTD.,
NO.62/1, 2ND FLOOR,
PRESTIGE CHONICHE, RICHMOND ROAD,
BANGALORE - 25,
NOW REP BY ITS LEGAL MANAGER,
M/S ICICI LOMBARD GIC LTD.,
REGIONAL OFFICE, THE STATE,
9TH FLOOR DICKENSON ROAD,
M.G.ROAD, BANGALORE - 42
...APPELLANT
(BY SRI B.C.SHIVANNE GOWDA, ADVOCATE)
AND:
Digitally signed by
RAMYA D 1. MS. HARSHITHA. B,
Location: HIGH COURT
OF KARNATAKA D/O BALARAM,
AGED ABOUT 23 YEARS,
R/AT NO.25, 3RD MAIN, 3RD CROSS,
KHADI LAYOUT,
VIVEKANANDA NAGAR,
KATHRIGUPPE,
BSK 2ND STAGE,
BANGALORE - 85.
2. SOHIT SAHANI
S/O. JHAGRU SAHANI,
MAJOR, R/AT NO.800, 2ND FLOOR,
PADMASHREE ENTERPRISES,
-2-
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MFA No. 5505 of 2017
TRIVENI ROAD,
YASHWANTHAPURA,
BANGALORE - 22.
...RESPONDENTS
(BY SRI. D.S. SRIDHAR, ADVOCATE FOR R1;
R2 - NOTICE SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 23.02.2017 PASSED IN MVC
NO.1851/2015 ON THE FILE OF THE II ADDITIONAL SMALL
CAUSES JUDGE AND XXVIII ACMM, BENGALURU (SCCH-13),
AWARDING COMPENSATION OF RS.5,87,100/- WITH INTEREST
AT 6% P.A.(EXCEPT THE AMOUNT AWARDED TOWARDS
FUTURE MEDICAL EXPENSES) FROM THE DATE OF PETITION
TILL THE DATE OF DEPOSIT IN COURT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is filed by the appellant-
Insurance Company challenging the judgment and award
dated 23.02.2017 passed in MVC.No.1851/2015 by the
Motor Accident Claims Tribunal and II Addl. Small Causes
Judge & XXVIII ACMM, Bengaluru, questioning the
quantum of compensation as well as by taking the
contention that the claimant has contributed her
negligence towards the accident.
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2. The factum of accident and injuries sustained
by the claimant in the accident are not disputed. Whether
the claimant has contributed her negligence towards the
accident and the claimant is entitled for compensation
towards loss of future income due to disability is
permissible are the questions to be considered.
3. Heard the arguments from both sides and
perused the records.
4. The learned counsel for the appellant-Insurance
Company submitted that from Ex.R.1 - MLC extract, it is
proved that it is the case of self fall from bike while the
claimant was riding the motor cycle. Hence, the Insurance
Company is not liable to indemnify the owner and to pay
compensation. Further it is also submitted that even if the
claimant is held to be pillion rider, but there were three
persons riding on the motor cycle and the motor cycle
skidded and thus, the claimant knowing fully well that
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there were three persons riding on the motor cycle invited
the risk for herself amounting to contributory negligence.
Therefore, prays for modification of the judgment and
award on these two grounds.
5. On the other hand, learned counsel for the
claimant submitted that the claimant was a pillion rider
and hence, the claim petition is maintainable. Hence,
justified the judgment and award passed by the Tribunal.
Further submitted that, just because, there were three
pillion riders on the motor cycle is not a ground to say that
the claimant has also contributed negligence towards the
accident. Therefore, prays to dismiss the appeal filed by
the Insurance Company.
6. Admittedly, there were three persons riding on
the motor cycle. Ex.R.1 to Ex.R.3 are the MLC extract of
the hospital, in which, the claimants have been admitted
for treatment, wherein it is revealed that all three injured
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persons had sustained injury due to self fall from bike
while travelling on the bike near Wonderla gate. In Ex.P.1-
FIR, it is stated that one Krishnakumar was riding the
motor cycle and the claimant was a pillion rider. There is
no evidence on behalf of the Insurance Company to show
that the claimant was riding on the motor cycle. Ex.R1 to
Ex.R3 are the MLC extract. It is proved that the motor
cycle was skidded. Thus, all three persons sustained
injuries. Therefore, it is written as self fall from the motor
cycle. Hence, on all its preponderance of probability, it is
proved that the claimant was a pillion rider on the motor
cycle. One Somashekara was riding the motor cycle as per
FIR, complaint and charge sheet. But he has not sustained
injuries. Hence, it is proved that one Somashekara was
riding the motor cycle and there are other three persons
as pillion riders.
7. Admittedly, from the police records, it is
revealed that there were four persons riding on the motor
cycle. The claimant is one of the pillion rider. Hence, the
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claimant knowing fully well that there were four persons
riding on the motor cycle, hence invited risk for herself
while travelling on the motor cycle being pillion rider.
Therefore, the claimant has also contributed her
negligence towards the accident in the manner discussed
above. Therefore, it is amounting to 20% of contributory
negligence towards the accident. Therefore, whatever
amount of compensation is determined by this Court, the
claimant is entitled to only 80% of that determined
compensation amount.
8. The Tribunal has awarded compensation under
various heads as follows:
1 Pain and sufferings Rs. 80,000/-
2 Loss of earnings during Rs.
40,000/-
laid up period
3 Medical expenses Rs. 2,18,229/-
4 Loss of future earnings Rs. 1,72,800/-
5 Loss of amenities Rs. 50,000/-
6 Conveyance, Rs.
nourishment, food and 6,000/-
attendant charges
7 Future medical expenses Rs. 20,000/-
Total Rs. 5,87,029/-
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9. The Tribunal has granted compensation of
Rs.1,72,800/- towards loss of future income due to
disability. The claimant was working as a Customer
Relation Officer at Hinduja Global Solutions Limited and
she is continuing in the same job even after the accident.
There is no evidence that the claimant was terminated
from service due to disability. When this being the fact
revealed from the evidence, no compensation can be
granted towards loss of future earning due to disability
because the claimant continued in the same job with the
same salary. Therefore, the claimant is not entitled for
compensation towards loss of future earning due to
disability, but the claimant is entitled for compensation
towards loss of amenities. Accordingly, compensation
amount of Rs.50,000/- is awarded under the head loss of
amenities. On all other conventional heads, compensation
amount granted is found to be just and proper. The
claimant has not preferred any appeal, therefore, insofar
as quantum of compensation towards loss of future
earning due to disability is set aside. Insofar as other
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conventional heads is concerned, the amount of
compensation granted by the Tribunal is kept in tact.
10. Therefore, the appellant/claimant is entitled for
compensation as under:
1 Pain and sufferings Rs. 80,000/-
2 Loss of earnings during Rs.
40,000/-
laid up period
3 Medical expenses Rs. 2,18,229/-
4 Loss of amenities Rs. 50,000/-
5 Conveyance, Rs.
nourishment, food and 6,000/-
attendant charges
6 Future medical expenses Rs. 20,000/-
Total Rs. 4,14,229/-
11. The claimant has contributed 20% of negligence
towards the accident. Hence, the claimant is entitled to
only 80% of above determined compensation. Thus, the
claimant is entitled to total compensation of
Rs.3,31,383/- (80% of Rs.4,14,229/-) as against the
compensation amount awarded by the Tribunal along with
interest at the rate of 6% p.a., from the date of petition till
realization.
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12. Accordingly, I proceed to pass the following
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and award dated
23.02.2017 passed in MVC.No.1851/2015 by the
Motor Accident Claims Tribunal, Bengaluru and II
Addl. Small Causes Judge & XXVIII ACMM,
Bengaluru, is modified.
iii. The claimant is entitled to total compensation of
Rs.3,31,383/- (80% of Rs.4,14,229/-) as
against the compensation amount awarded by the
Tribunal along with interest at the rate of 6% p.a.,
from the date of petition till realization.
iv. No order as to costs.
v. Amount in deposit made by the Insurance
Company shall be transmitted to the Tribunal.
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vi. Registry is directed to transmit the TCR along with
copy of this order to the Tribunal.
Sd/-
JUDGE
PB
