Karnataka High Court
The Divisional Manager vs Rajkumar And Anr on 7 January, 2025
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MFA No. 201244 of 2018
C/W MFA.CROB No. 200067 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISCL. FIRST APPEAL NO.201244 OF 2018 (MV-I)
C/W
MFA CROSS OBJ NO. 200067 OF 2018
IN MFA NO.201244/2018:
BETWEEN:
THE DIVISIONAL MANAGER,
ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
NEAR TIMMAPURI CIRCLE, STATION ROAD,
KALABURAGI,
REP. BY LEGAL MANAGER.
...APPELLANT
(BY SRI. SUBHASH MALLAPUR, ADVOCATE)
AND:
1. RAJKUMAR S/O KALYANI @ KALLAPPA KANAKE,
AGE: 37 YEARS, OCC: MASON & AGRI.,
Digitally signed R/O: SALGAR V.K., TQ: ALAND,
by LUCYGRACE DIST: KALABURAGI-585102.
Location: HIGH
COURT OF 2. RAJKUMAR S/O NAMA RATHOD,
KARNATAKA AGE: MAJOR OCC: OWNER OF VEHICLE
NO.KA-32/EJ-0031,
R/O: MADAKI,
TQ: ALAND, DIST: KALABURAGI-585102.
...RESPONDENTS
(BY SRI. BABU H METAGUDDA FOR R1
SRI. ANANTH S. JAHAGIRDAR FOR R2)
THIS MFA IS FILED UNDER SECTION 173 (1) OF MV ACT,
PRAYING TO ALLOW THE ABOVE APPEAL BY SETTING ASIDE
THE JUDGMENT AND AWARD DATED 09.03.2018, IN
MVC.NO.866/2016 PASSED BY THE III ADDL. SENIOR CIVIL
JUDGE AND MACT, KALABURAGI.
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MFA No. 201244 of 2018
C/W MFA.CROB No. 200067 of 2018
IN MFA CROSS OBJECTION NO.200067/2018:
BETWEEN:
RAJKUMAR S/O KALYANI @ KALLAPPA KANAKE,
AGE: 37 YEARS, OCC:MASON AND AGRICULTURE,
R/O: SALGAR V.K., TQ: ALAND,
DIST: KALABURAGI.
...CROSS OBJECTOR
(BY SRI. BABU H. METAGUDDA, ADVOCATE)
AND:
1. RAJKUMAR S/O NAMA RATHOD,
AGE: MAJOR, OCC: OWNER OF VEHICLE
NO.KA-32/EJ-0031,
R/O: MADAKI,
TQ: ALAND, DIST: KALABURAGI-585101.
2. THE DIVISIONAL MANAGER,
ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
NEAR TIMMAPURI CIRCLE, STATION ROAD,
KALABURAGI-585101.
...RESPONDENTS
(BY SRI. ANANTH S. JAHAGIRDAR FOR R1
SRI. SUBHASH MALLAPUR FOR R2)
THIS MFA CROB. IS FILED UNDER ORDER 41 RULE 22 OF
CPC, PRAYING TO A) CALL FOR RECORDS IN MVC NO.866/2016
ON THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE AND
MACT, KALABURAGI, B) ALLOW THIS CROSS OBJECTION AND
MODIFY THE JUDGMENT AND AWARD DATED 09.03.2018
PASSED IN MVC NO.866/2016 BY THE III ADDL. SENIOR CIVIL
JUDGE AND MACT, KALABURAGI AND ENHANCING THE
COMPENSATION FROM RS.2,55,600/- WITH 6% INTEREST TO
RS.14,99,000/- WITH 12% INTEREST AND ETC.,
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MFA No. 201244 of 2018
C/W MFA.CROB No. 200067 of 2018
CORAM: HON'BLE MR. JUSTICE C M JOSHI
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE C M JOSHI)
Being aggrieved by the judgment and award in
MVC.No.866/2016 passed by the learned III Addl. Senior
Civil Judge and MACT, Kalaburagi dated 09.03.2018, the
claimant as well as the insurance company are before this
Court in these appeals.
02. The parties would be referred as per their ranks
before the Tribunal.
03. The factual matrix of the case are that
12.02.2016 at 07.30 p.m. when the claimant was
proceeding towards his house, near V. K. Salagar Tanda,
the rider of the offending motorcycle bearing Reg.No.KA-
32-EJ-0031 rode the same in a rash and negligent manner
and collided with the claimant, resulting in grievous
injuries. When he was admitted to the Hospital, it was
diagnosed that he had sustained the injuries like cut
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C/W MFA.CROB No. 200067 of 2018
lacerated wound on the parietal region and hemorrhage on
the head. Therefore, he was referred to further
investigation. Further, it was found that the claimant had
sustained parietal fracture of the parietal bone. The
claimant contended that he was inpatient from 13.02.2016
to 19.02.2016 and he was working as an agriculturist,
aged about 35 years and due to accidental injuries he is
unable to do his regular activities as before.
04. On issuance of notice, the respondents No.1
and 2 who are the owner and insurer of the vehicle
appeared and filed the written statement.
05. The respondent No.1 owner of the vehicle
contended that the compensation claimed by the claimant
is highly exorbitant, imaginary and untenable. There was
no such negligence on the part of the rider of the
offending vehicle. He further contended that he was
having a valid driving license and therefore, compensation
has to be fastened upon the respondent No.2.
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C/W MFA.CROB No. 200067 of 2018
06. The respondent No.2 - insurance company
contended that the rider of the motorcycle was not having
a valid and effective driving license. Therefore, it is not
liable to pay any compensation to the claimant.
07. On the basis of the above contentions the
appropriate issues were framed by the Tribunal. The
claimant was examined as PW.1 and the doctor who
assessed the disability was examined as PW.2 and Ex.P.1
to 14 were marked. The official of the respondent No.2 -
insurance company examined as RW.1 and owner of the
vehicle examined as RW.2 and Ex.R.1 to 9 were marked.
08. After hearing both sides, the Tribunal came to
the conclusion that the respondent No.1 was not having a
valid and effective driving license at the time of accident.
Therefore, by relying on the several judgment, it came to
conclusion that the insurance company is liable to pay the
compensation, but it is at liberty to recover the same
from the respondent No.1 - owner.
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C/W MFA.CROB No. 200067 of 2018
09. After assessing the evidence on record, the
Tribunal granted the compensation of Rs.2,55,600/- under
the following heads:-
Sl. Heads Compensation
No. Awarded
1. Towards pain and suffering Rs.30,000/-
2. Towards medical expenses Rs.26,300/-
3. Towards future income Rs.1,61,280/-
4. Towards attendant's charges, Rs.7,000/-
food and conveyance
5. Towards loss of amenities and Rs.10,000/-
nutrition food
Towards loss of income during
6. Rs.21,000/-
the period of treatment
Total Rs.2,55,580/-
Rounded off Rs.2,55,600/-
10. The learned counsel appearing for the claimant
submits that the compensation awarded by the Tribunal is
on the lower side. Though, the claimant had sustained
hearing impairment, which has resulted in functional
disability of 41%, the Tribunal has assessed the disability
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at 12%. Further, he submits that the notional income
adopted by the Tribunal is on the lower side. The
compensation under the head of loss of amenities in life
has not been awarded to the claimant. He fairly submits
that the principles laid down by the Hon'ble Supreme
Court in the case of Pappu Deo Yadav vs. Naresh
Kumar and others1, is applicable, since, the respondent
No.1 has appeared and contested the matter by filing his
written statement.
11. Per contra, the learned counsel appearing for
the insurance company submits that the C.T. Scan report
shows that there was no such facture on the parietal bone
and even then the PW.2 has assessed the disability at
41% which cannot be sustained. Secondly he submits that
the compensation awarded by the Tribunal is sufficient.
There is no need for enhancement of the same.
AIR 2020 SC 4424
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C/W MFA.CROB No. 200067 of 2018
12. The learned counsel appearing for the
respondent No.1 owner of the vehicle has also reiterated
the ratio laid down by the Hon'ble Supreme Court in the
case of Pappu.
13. In view of the fact that the respondent No.1
had appeared before the Tribunal and had contested the
matter by filing his written statement, the principles laid
down in the case of Pappu, squarely applicable to the case
on hand. It is pertinent to note that the respondent No.1,
who was also rider of the vehicle had no valid and
effective driving license as on the date of accident.
Therefore, the conclusion of the Tribunal that the
insurance company is liable to pay the compensation to
the claimant and it is at liberty to recover the same from
the owner of the vehicle need not be interfered with. As a
consequence the appeal filed by the insurance company
challenging the pay and recovery order is not sustainable
in law.
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C/W MFA.CROB No. 200067 of 2018
14. Sofar as the quantum of the compensation is
concerned, the Ex.P.6 and 9 which are the wound
certificate and the medical certificate issued by
Basaveshwar Teaching and General, Hospital, Gulbarga,
where the claimant was treated at the first instance would
clearly show that he had sustained fracture of the right
parietal bone. Ex.P.9 is the dated 02.03.2016. Ex.P.11 -
C.T. Scan report, which is relied by the learned counsel
appearing for the insurance company would show that
there was no such fracture of skull vault and base, as
obviously this report is dated 03.07.2017. It is pertinent to
note that the Ex.P.11 pertains to a C.T. Scan which was
done at the instance of the PW.2, so that he could give an
opinion about the disability. Therefore, when Ex.P.11 is
dated 03.07.2017 and on the basis of which Ex.P.10
disability certificate issued is obviously subsequent to
several months after the accident, by which time the
fracture might have healed. Therefore, the contention of
the learned counsel for the insurance company that there
was no such fracture of the skull cannot be accepted.
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C/W MFA.CROB No. 200067 of 2018
15. Coming to the assessment of the compensation
it is evident that the claimant was aged about 35 years,
working as an agriculturist and according to PW.2 he has
suffered hearing impairment and thereby there is 41%
disability. It is settled principle of law that the while
assessing the disability, which would translate in terms of
the economic impairment, it is the functional disability
which has to be considered by the Tribunal. The physical
disability is nothing to do with the assessment of the
compensation. The Tribunal has to make an exercise of
finding out the functional disability, based on the physical
disability assessed by the medical officer.
16. The Hon'ble Supreme Court in the case of Raj
Kumar vs. Ajay Kumar and another2, and several other
decisions has made it clear that the assessment of the
functional disability is an exercise which has to be under
taken by the Tribunal. The medical officers, obviously
being unable to assess about the avocation of the injured,
(2011) 1 SCC 343
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cannot give an opinion about the functional disability of
the injured. Therefore, when we examine the case on
hand, the Tribunal has assessed the functional disability at
12%, even though the physical disability on account of
hearing impairment is 41%. Therefore, this Court does not
find any reason to interfere with such finding of the
Tribunal.
17. The Tribunal has assessed the loss of future
income by taking the notional income at Rs.7,000/- per
month. The guidelines issued by the KSLSA for the
purpose of settlement the disputes before the Lok-Adalath,
prescribed a notional income of Rs.8,750/- for the year
2016. In umpteen number of judgment this Court has held
that the guidelines issued by the KSLSA are in general
conformity with the wages fixed under the Minimum
Wages Act. Therefore, they can be adopted for the
purpose of assessing the compensation. Hence, the
compensation under the head of loss of future income is
calculated as Rs.8,750/- x 12 x 16 x 12% =
Rs.2,01,600/- by adopting a multiplier of 16 for the age
of 35 years.
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C/W MFA.CROB No. 200067 of 2018
18. Consequently, the loss of income during the
laid up period is also enhanced to Rs.26,250/-.
19. The compensation under the head of pain and
suffering deserves to be enhanced to Rs.40,000/-.
20. Further the Tribunal has not awarded any
compensation under the head of loss of amenities in life.
Therefore, when the claimant had suffered hearing
impairment, it would be proper to award a sum of
Rs.30,000/- under the head of loss of amenities in
life.
21. The compensation awarded by the Tribunal
under remaining heads do not require any indulgence by
this Court.
22. Therefore, the claimant is entitled for total
enhancement compensation of Rs.3,31,150/- under the
following heads :-
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C/W MFA.CROB No. 200067 of 2018
Sl. Heads Compensation Awarded
No. by this Court
1. Loss of future income Rs.2,01,600/-
2. Loss of income during Rs.26,250/-
the laid up period
3. Pain and suffering Rs.40,000/-
4. Loss of amenities in Rs.30,000/-
life
5. Towards medical Rs.26,300/-
expenses
6. Towards attendant's Rs.7,000/-
charges, food and
conveyance
Total Rs.3,31,150/-
Less: awarded by Rs.2,55,600/-
Tribunal
Total enhancement Rs.75,550/-
23. In view of the above discussion, the
MFA.No.201244/2018 filed by the insurance company is
liable to be dismissed. The MFA.Crob.No.200067/2018
deserved to be allowed in part. Hence, the following;
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C/W MFA.CROB No. 200067 of 2018
ORDER
I. MFA.No.201244/2018 is dismissed.
II. MFA.Crob.No.200067/2018 is allowed in part.
III. The impugned judgment and award passed by the
Tribunal is modified by awarding a sum of
Rs.75,550/- in addition to what has been awarded by
the Tribunal together with interest at the rate of 6%
p.a. from the date of petition till its deposit before
the Tribunal.
IV. The insurance company shall pay the compensation
amount to the claimant, with liberty to recover the
same from the owner of the vehicle.
V. The rest of the terms and conditions ordered by the
Tribunal regarding apportionment and deposit
remain unaltered.
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C/W MFA.CROB No. 200067 of 2018
VI. The amount in deposit before this Court is ordered to
be transmitted to the Tribunal.
Sd/-
(C M JOSHI)
JUDGE
KJJ
CT: AK
