Karnataka High Court
The Manager vs H Shivaram on 7 March, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2024:KHC:9675
MFA No. 3189 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO. 3189 OF 2020 (MV-I)
BETWEEN:
THE MANAGER,
ICICI LOMBARD GENERAL INSURANCE COMPANY
LTD.,
MYTHRI ARCADE,
SARASWATHIPURAM, MYSORE,
NOW REPRESENTED BY THE MANAGER,
ICICI LOMBARD GEN INSURANCE CO. LTD.,
9TH FLOOR, THE ESTATE 121,
DICKENSON ROAD, M G ROAD,
BENGALURU - 560 042.
...APPELLANT
(BY SRI. A N KRISHNA SWAMY., ADVOCATE)
AND:
1. H SHIVARAM
S/O LATE HUNCHAIAH,
AGED ABOUT 57 YEARS,
Digitally signed R/O HALEBUDANUR VILLAGE,
by V KRISHNA MANDYA TALUK AND DISTRICT.
Location: High
Court of 2. MULTIMEDIA COMPUTER SYSTEMS PVT. LTD.,
Karnataka NO.736, 7TH MAIN,
MAHALAKSHMI LAYOUT,
BANGALORE.
...RESPONDENTS
(BY SRI. A. K. BHAT., ADVOCATE FOR R1;
R2 SERVED BUT UNREPRESENTED;)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED. 23.08.2019, PASSED IN MVC
NO.1627/2017, ON THE FILE OF THE II-ADDITIONAL SENIOR
CIVIL JUDGE AND MACT, MANDYA, AWARDING
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MFA No. 3189 of 2020
COMPENSATION OF RS.13,12,040/- WITH INTEREST AT THE
RATE OF 6 PERCENT P.A., FROM THE DATE OF PETITION TILL
DATE OF DEPOSIT AND ETC,.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the Insurance Company
challenging the judgment and award dated 23.08.2019 passed
by II Additional Senior Civil Judge and MACT, Mandya (for short
'the tribunal') in MVC.No.1627/2017. This appeal is founded on
the premise of the judgment being arbitrary and exorbitant
compensation and the same to be set aside.
2. Parties to the appeal shall be referred to as per their
status before the Tribunal.
3. Brief facts of the case are as under:
That on 16.07.2017 at about 7.45 am, the claimant was
crossing the divider on the Mysore - Bengaluru Highway road
on his scooter, during that time the Car Indigo LX E-3 bearing
registration No.KA-02-MC-1504 came in a high speed, rash and
negligent manner and dashed against the Scooter of the
claimant. Due to which he fell down, sustained grievous
injuries to his left leg and multiple injuries all over his body.
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Due to the injuries suffered, physical permanent disability
having been caused. Hence, he filed claim petition seeking
compensation against the respondent.
3.1. On service of notice, respondent filed statement of
objection, denied the claim of the claimant including age,
avocation, income and the negligence attributed against the
driver of the offending Car, also pleaded that it was the
negligent act of the claimant himself who had taken by U-Turn
in the busy Highway of Mysore - Bengaluru road leading to the
occurrence of accident and thereby he has himself contributed
to the occurrence of accident and he is entirely responsible for
occurrence of accident. On the basis of this, the Insurance
Company sought for dismissal of the claim petition.
3.2. On the basis of pleadings, the tribunal framed
relevant issues for consideration.
3.3. In order to substantiate the issues and to establish
the case, the claimant got examined himself as PW.1 and
Doctor as PW.2 and got marked documents as Exs.P1 to P25.
On the other hand, respondent produced Ex.R1 - The policy
copy.
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3.4. On the basis of material evidence, both oral and
documentary and on hearing the submissions of learned
counsel for both parties, the tribunal awarded compensation of
Rs.13,12,040/- with interest @ 6% p.a. from the date of
petition till the date of depositing the amount and also held that
the second respondent - Insurance Company is liable to pay
the compensation to the claimant and directed to deposit the
compensation amount with interest within expiry of appeal
period.
3.5. Being aggrieved by the arbitrary judgment and
award and exorbitant compensation awarded by the tribunal,
the Insurance Company is before this Court questioning the
impugned judgment and award.
4. The learned counsel for the Insurance Company
submits that the judgment and award passed by the tribunal is
erroneous, arbitrary and the tribunal has erred in awarding
exorbitant compensation. Hence, he seeks to set aside the
impugned judgment and award passed by the tribunal.
5. Per contra, learned counsel for claimant submits
that the tribunal has rightly awarded just and reasonable
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compensation, which does not call for interference. Hence, he
seeks to dismiss the appeal.
6. Having heard learned counsel for the Insurance
Company and learned counsel for the respondent No.1 -
claimant, perused the impugned judgment and award, the
original records. Exs.P1 to P6 are the police records which
evidences the filing of FIR and charge sheet against the driver
of the offending vehicle and negligence is rightly attributed
against the driver of the offending vehicle by the tribunal on
the basis of these police records entirely. Exs.P8 to P25 are the
medical records, financial statement, income related documents
and bills and prescriptions produced by the claimant to show
his income, injuries sustained, the expenditure met towards the
treatment. The policy being in force is not in dispute as on
date of occurrence of accident for the offending vehicle.
7. On the basis of this material let me analyse the
age, avocation, income and disability for awarding
compensation, age of the claimant is shown to be 54 years as
on the date of occurrence of accident. The appropriate
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multiplier would be '11' which is correctly taken by the tribunal.
Income has taken at Rs.50,000/- p.m. by the tribunal.
8. Doctor has been examined by the claimant as PW.2
who was opined the disability to an extent of 58% to the left
lower limb and 20% to the whole body. Whereas, the tribunal
has assessed the disability at 15% to the whole body as
functional disability. Now the points for consideration before
this Court would be:
"Whether the judgment requires to be set aside or
in the alternative reduced?"
9. For assessment of income, the claimant has
produced Exs.P16 and P17 for two assessment years of 2015-
2016 and 2016-2017. Accident has taken place in the year
during July 2017. As per Ex.P17 the Income Tax returns
acknowledgment, which is annexed along with the statement of
income, the gross total income of the claimant is shown as
Rs.3,51,820/- which is corroborated in the statement of income
under the head profits and gains of business or profession. The
very same Ex.P17 agricultural income as shown as
Rs.2,25,550/-. It is the case of the claimant in his claim
petition and in the evidence that he was a B.E graduate,
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Interior Decorator working as Marketing and Interior Decorator
at Happy Home Private Limited, Bengaluru and was also an
agriculturist earning Rs.50,000/- p.m. On perusal of Ex.P17
the income other than agricultural source is shown as
Rs.3,51,820/- which is filed along with the statement of income
to the Income Tax Department. Therefore, the income taken
Rs.3,51,820/- p.a. the same is divided by 12 would be
Rs.29,318/- p.m. The agricultural income of Rs.2,25,550/- is
an additional income which the claimant was getting as
proclaimed by him that he was also doing agricultural work, but
nowhere it is mentioned that he was contributing to the
agricultural income by himself. Therefore, it is assumed that
this agricultural income of Rs.2,25,550/- would be constant
income irrespective of the other source of income, which is the
income from business as already stated hereinabove.
10. Under the circumstances, though the claimant has
suffered disability to an extent of 15% stated by the tribunal, it
may not affect the agricultural income which otherwise the
claimant was getting by doing his regular business and securing
income of Rs.3,51,820/- p.a. Hence, in view of the said facts
and circumstances of this case, the income has to be taken at
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Rs.29,318/- p.m rather than Rs.50,000/- assessed by the
tribunal, which is highly exorbitant and not commensurate with
the Exs.P16 and P17 produced by the claimant himself. Under
the circumstances, the loss of future income due to permanent
disability would be Rs.5,80,496/- (Rs.29318/- x 12 x 11 x
15%) as against Rs.9,90,000/- awarded by the tribunal.
11. Towards pain and suffering, the tribunal awarded
Rs.30,000/-, same is retained, as the claimant is not in
appeal questioning the award.
12. Towards medical expenses a sum of Rs.2,22,040/-
is awarded on the basis of actual bills produced by the
claimant. Same is retained.
13. Towards food, attendant, nourishment and
incidental expenses tribunal has awarded Rs.40,000/-. Same
is retained
14. Towards physical disability affecting future
amenities in the life of the petitioner, which is awarded as
amenities at Rs.30,000/-, same is retained.
15. Coming to the next aspect of the contributory
negligence canvas by learned counsel for the Insurance
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Company, Exs.P1, P2 and P3 along with the spot sketch drawn
clearly indicates that the Car was travelling from east to west
i.e., from Bengaluru to Mysore, whereas it is the case of the
claimant that he has travelling from west to east and took U-
Turn mid way, where the space was provided for taking the turn
and after having taken a turn he met with an accident by the
on coming Car from east to west. The tribunal has fastened
the entire liability and negligence against the driver of the
offending vehicle Car and totally ignored the police records, the
sketch, Mahazar and the statement of the claimant himself that
he had taken U-Turn on the busy Highway of Bengaluru -
Mysore Road. I am in agreement with the learned counsel for
the Insurance Company that, there is contributory negligence
on the part of the claimant himself by taking a U-Turn without
cautiously noticing the vehicles coming on a highway with high
speed and having ignored the speed of the vehicle and without
taking preventive measures he had crossed the road. The
claimant cannot expect heavy moving vehicles to come to a
sudden halt after sighting the two wheeler which has come
from no where and taken a U-Turn. Hence, this Court is of the
opinion that contributory negligence is on part of the rider of
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the Scooter as well. The next question is what would be the
contributory negligence to be attributed to the rider of the
Scooter. Considering the fact that the road Bengaluru - Mysore
is a Highway and the vehicles are drive in high speed. The
contributory negligence is attributed to the Scooter/claimant
would be 20% and remaining 80% would be attributed to the
offending vehicle Car.
16. In view of the above, total compensation is reduced
to Rs.7,22,029/- as against Rs.13,12,040/- as mentioned in
the table below:
Head Amount in Rs.
Loss of future income Rs.5,80,496-00
Pain and suffering Rs.30,000-00
Loss of Amenities Rs.30,000-00
Food, conveyance and Rs.40,000-00
attendant charges
Medical expenses Rs.2,22,040-00
Total Rs.9,02,536-00
Less Contributory negligence Rs.1,80,507-00
20%
Total Rs.7,22,029-00
17. Accordingly, I pass the following:
ORDER
i) The appeal is allowed-in-part;
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ii) The judgment and award dated 23.08.2019 passed
by II Additional Senior Civil Judge and MACT,
Mandya in MVC.No.1627/2017 is modified;
iii) The claimant would be entitled to reduced
compensation of Rs.7,22,029/- (Rs.9,02,536/- -
20%)as against Rs.13,12,040/-. The claimant
would be entitled to an interest at 6% per annum;
iv) The balanced compensation amount shall be
deposited by the Insurance Company within a
period of four weeks from the date of receipt of a
copy of this order;
v) The entire amount shall be released in favour of the
claimant, upon proper verification.
vi) All other terms and conditions stipulated by the
tribunal shall stand intact.
Sd/-
JUDGE
AM
