Karnataka High Court
Sri Ashok Rathod vs Icici Lombard General Insurance Co Ltd on 30 July, 2024
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NC: 2024:KHC:30112
MFA No. 1507 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 1507 OF 2013 (MV)
BETWEEN:
SRI ASHOK RATHOD
S/O GANGUPANNU RATHOD
AGED ABOUT 46 YEARS
MINCHNALA L T
NAGATHANA HOBLI
BIJAPUR TQ & DIST
PETITIONER PRESENTLY R/AT
C/O RAMESH JADHAV
#83, RANGANATHBADAVANE
HAROHALLI, KANAKAPURA TALUK
RAMANAGARA DISTRICT ... APPELLANT
(BY SRI. M R RAVIRAJ, ADV.)
AND:
1. ICICI LOMBARD GENERAL
INSURANCE CO LTD., BY ITS
MANAGER, CORNICHE
NO.62/1, 2ND FLOOR
Digitally signed by
PRAJWAL A RICHAMOND ROAD
BANGALORE-25
Location: HIGH COURT
OF KARNATAKA
2. MR SHIVARAJU M
MAJOR, S/O CHIKKAMADAIAH
HONNALAGANA DODDI
MEDAMARANAHALLI POST
HAROHALLI HOBLI
KANAKAPURA TALUK
RAMANAGARA DISTRICT ...RESPONDENTS
(BY SRI. B. PRADEEP, ADV. FOR R1;
R2 SERVED)
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MFA No. 1507 of 2013
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 26.11.2012
PASSED IN MVC NO.5813/2011 ON THE FILE OF THE XIX
ADDITIONAL SMALL CAUSE JUDGE, & XLI ACMM, MACT,
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
In this appeal, the petitioner has challenged the
judgment and award dated 26.11.2012 passed in
M.V.C.No.5813/2011 by the Motor Accident Claims
Tribunal, Bangalore (SCCH-17) ('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 25.06.2011 at
about 4.30 p.m., the petitioner was walking on the left
side of the road at Leo Metal Craft Pvt.Ltd. Industrial
Area, Harohalli Hobli, Kanakapura Taluk, a motor cycle
bearing No.KA-42/K-168 hit on his back causing him
injuries. He has suffered fracture of both bones of left
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leg. He was treated at NIMHAHS and KIMS, Bangalore.
After taking treatment, he has approached the Tribunal
for grant of compensation of Rs.10 lakhs. Claim was
opposed by the Insurance Company. After taking the
evidence and hearing both sides, the Tribunal by the
impugned judgment awarded compensation of
Rs.1,27,000/- with interest @ 8% per annum, fastened
the liability against the owner of the vehicle and
dismissed the claim petition against the Insurance
Company. Pleading inadequacy, seeking enhancement of
compensation and challenging dismissal of the claim
petition against the Insurance Company, the petitioner
has filed this appeal on various grounds.
4. Heard the arguments of Sri.M.R.Raviraj, learned
counsel for petitioner and Sri.B.Pradeep, learned counsel
for the Insurance Company.
5. It is the contention of the learned counsel for the
petitioner that medical evidence through PW-2 points out
that petitioner has suffered 32% of limb disability and
16% of whole body disability. The Tribunal has not
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considered the loss of future income of the petitioner.
The petitioner was coolie in a factory, he was not a
permanent employee and he was removed from service
post-accident. Hence, he is entitled to claim
compensation for the loss of future income.
Compensation is inadequately awarded and sought for
enhancement.
5.1. It is further contended that the rider of the
motor cycle though did not possess driving licence, the
Division Bench of this Court in M.F.A.No.201982/2019
c/w M.F.A.No. 201685/2019 (Priyanka @ Pramila -
vs- Sanwar Khan and others) implemented the
principle of 'pay and recovery' and he sought that the
same be applied to this case also.
6. Per contra, learned counsel for the Insurance
Company has contended that, petitioner was an
employee in a factory, he was drawing salary, after
treatment became normal, assumed to his duties, not
suffered any financial loss on account of injury. The
Tribunal has rightly not considered loss of future income.
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The compensation awarded is proportionate to the
injuries suffered, disability is not affecting the earning of
the petitioner and compensation awarded is proper. It is
further contended that the rider of the motor cycle did
not possess valid driving licence. Hence, the Tribunal
has rightly fastened the liability against the owner and he
has supported the impugned judgment.
7. I have given my anxious consideration to the
arguments addressed on behalf of both parties and
perused the records.
8. The material on record points out that there was
an accident on 25.06.2011 at 4.30 p.m. involving the
petitioner and the motor cycle bearing registration
No.KA-42/K-168 for which the second respondent is the
owner. Admittedly, there is no valid driving licence held
by the rider of the motor cycle at the time of accident.
In case of no driving licence, the law is clear that the
Insurance Company can avoid its liability for violation of
terms and conditions of the policy. But the Division
Bench of this Court referring to the judgment of the
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Hon'ble Apex Court in Pappu and Others -vs- Vinod
Kumar Lamba and Another 1 laid down that the
concept of 'pay and recovery' is applicable to the cases
where the rider of the motor cycle has no driving licence.
The facts of the said judgment and the facts of the
present case are identical and therefore, the concept of
'pay and recovery' has to be applied to this case.
9. As regards quantum of compensation is
concerned, the Tribunal has awarded as follows:
Sl. No. Particulars Rs.
1 Pain and suffering 75,000
2 Medical expenses 13,000
3 Future Medical expenses 10,000
4 Loss of earning 12,000
5 Conveyance, attendant and 7,000
Nourishing food
6 Discomfort, loss of amenities in 10,000
life and future unhappiness
Total 1,27,000
10. Petitioner has suffered bicondylar fracture of
tibia and fibula of his left leg. PW-2/Dr.Ramesh has
assessed the disability at 16% to the whole body.
Petitioner was under hospitalization for 40 days, spent
AIR 2018 SC 592
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substantial money towards treatment, suffered loss of
income during laid-up period and he requires future
treatment as he has to undergo surgery for removal of
implants.
11. On perusal of the impugned judgment, it is
pertinent to note that the Tribunal has come to the
conclusion that the petitioner is a salaried person.
However, the evidence points out that he is a coolie
working in factory, but that is not suffice to say that he
has a permanent job and the injuries are not affecting his
earning capacity. Though the doctor has given disability
on the higher side, the disability has to be taken at 10%.
The accident is of the year 2011. Though the petitioner
claims that he was earning Rs.9,000/- per month, he has
not produced any evidence. Hence, he has to be treated
as a person with no proof of income and notional income
has to be taken at Rs.6,500/-.
12. Having regard to the nature of injuries and the
material on record, the petitioner has to be compensated
with Rs.60,000/- towards pain and suffering; medical
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expenses Rs.13,000/-; loss of amenities and discomfort
Rs.30,000/-; future medical expenses Rs.10,000/-; loss
of income during laid-up period of four months @
Rs.6,500/- = Rs.26,000/-; attendant charges for 40 days
at Rs.9,000/-; food and nourishment Rs.5,000/-;
travelling expenses Rs.2,000/-.
13. As noted supra, the petitioner was aged 45
years, applicable multiplier is '14'. Hence, the loss of
future income will be: Rs.6,500/-x12x14x10%=
Rs.1,09,200/-. There is no evidence to assess
compensation on other heads. Thus, the petitioner is
entitled for compensation thus:.
Sl. No. Particulars Rs.
1 Pain and suffering 60,000
2 Medical expenses 13,000
3 Conveyance, Attendant and 16,000
Nourishing food
4 Loss of earning during laid-up 26,000
5 Future Medical expenses 10,000
6 Loss of Amenities and 30,000
discomfort
7 Loss of income due to disability 1,09,200
TOTAL 2,64,200
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14. In a case of this nature, the Insurance
Company has to pay the compensation and to recover
the same from the owner of the vehicle. Applying the
said principle, the Insurance Company is liable to deposit
the compensation and recover the same from the owner.
In view of the above discussion, the appeal merits
consideration, in the result, the following:
ORDER
(i) The appeal is allowed in part;
(ii) The impugned judgment and award is
modified;
(iii) The petitioner would be entitled to total
compensation of Rs.2,64,200/- with interest
at 6% p.a. from the date of petition till
realisation;
(iv) The Insurance Company is directed to
deposit the entire compensation with
interest @ 6% per annum excluding interest
on future medical expenses and to recover
the same from the owner of the motor cycle
in the same proceedings.
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(v) The Insurance Company shall deposit the
entire compensation amount along with
accrued interest within eight weeks from
the date of receipt of certified copy of this
judgment.
SD/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
KNM
