Karnataka High Court

Icici Lombard General Insurance Co. Ltd vs Santosh And Anr on 8 January, 2025

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                                                    MFA No. 201639 of 2017
                                                C/W MFA No. 201998 of 2017



                             IN THE HIGH COURT OF KARNATAKA,

                                     KALABURAGI BENCH

                          DATED THIS THE 8TH DAY OF JANUARY, 2025

                                           BEFORE
                             THE HON'BLE MR. JUSTICE C M JOSHI
                        MISCL. FIRST APPEAL NO.201639 OF 2017 (MV-I)
                                            C/W
                           MISCL. FIRST APPEAL NO.201998 OF 2017

                   IN MFA NO.201639/2017 :

                   BETWEEN:

                   SANTOSH S/O MAHADEV @ MAHADEVAPPA,
                   AGE: 30 YEARS, OCC: DRIVER & AGRI., NOW NIL,
                   R/O: IVANI, TQ: CHITTAPUR,
                   NOW RESIDING AT H.NO.29, CIB COLONY,
                   KALABURAGI-585105.

                                                                  ...APPELLANT
                   (BY SRI. KRUPA SAGAR PATIL, ADVOCATE)
                   AND:
Digitally signed
by LUCYGRACE
                   1.   PAVANKUMAR S/O MARUTI,
Location: HIGH
COURT OF                AGE: 33 YEARS, OCC: OWNER OF VEHICLE,
KARNATAKA
                        R/O: H.NO.3/209, MALGHAN,
                        TQ. CHITTAPUR,
                        DIST. KALABURAGI-585211.
                   2.   ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
                        THROUGH ITS MANAGER,
                        1ST FLOOR, KOTHARI COMPLEX,
                        OPP. SBH BANK, NEAR SVP CHOWK,
                        S.B. TEMPLE ROAD, KALABURAGI-585102.
                                                            ...RESPONDENTS

                   (BY SRI. SUBHASH MALLAPUR, ADV. FOR R2;
                   V/O DTD. 10.08.2023, NOTICE TO R1 IS DISPENSED WITH)
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                                 MFA No. 201639 of 2017
                             C/W MFA No. 201998 of 2017



       THIS MFA IS FILED UNDER SECTION 173 (1) OF THE

MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT

AND AWARD DATED 04.08.2017, PASSED BY THE PRL. SENIOR

CIVIL JUDGE AND MACT, KALABURAGI, IN FILE BEARING

MVC.NO.686/2015 AND ALLOW THE CLAIM PETITION AS

PRAYED FOR.



IN MFA NO.201998/2017:
BETWEEN:
ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
THROUGH ITS MANAGER,
1ST FLOOR, KOTHARI COMPLEX,
OPP. SBH BANK, NEAR SVP CHOWK,
S.B. TEMPLE ROAD, KALABURAGI,
REP. MANAGER LEGAL.
                                            ...APPELLANT
(BY SRI. SUBHASH MALLAPUR, ADVOCATE)
AND:

1.   SANTOSH S/O MAHADEV @ MAHADEVAPPA,
     AGE: 29 YEARS, OCC: DRIVER & AGRI., (NOW NIL),
     R/O: IVANI, TQ. CHITTAPUR,
     DIST: KALABURAGI,
     NOW AT H.NO.29, C I B COLONY,
     KALABURAGI-585102.
2.   PAVANKUMAR S/O MARUTHI,
     AGE: 32 YEARS, OCC: OWNER OF VEHICLE,
     R/O: H.NO.3/209, MALGHAN,
     TQ: CHITTAPUR,
     DIST. KALABURAGI-585102.
                                           ...RESPONDENTS

(BY SRI. KRUPA SAGAR PATIL, ADV. FOR R1,
V/O DTD. 13.09.2023, NOTICE TO R2 IS DISPENSED WITH)
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                                    MFA No. 201639 of 2017
                                C/W MFA No. 201998 of 2017



      THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ALLOW THE ABOVE
APPEAL AND CONSEQUENTLY BE PLEASED TO SET ASIDE THE
JUDGMENT AND AWARD DATED 04.08.2017 PASSED BY THE
PRL. SENIOR CIVIL JUDGE AND MACT, KALABURAGI IN
MVC.NO.686/2015 AND ETC.,

      THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:      HON'BLE MR. JUSTICE C M JOSHI


                        ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE C M JOSHI)

MFA.No.201639/2017 is filed by the claimant and

MFA.No.201998/2017 is filed by the insurance company,

both being aggrieved by the judgment and award in

MVC.No.686/2015 passed by the learned Prl. Senior Civil

Judge and MACT, Kalaburagi dated 04.08.2017, whereby

the Tribunal has awarded the compensation of

Rs.7,19,314/-.

02. The parties would be referred to as per their

ranks before the Tribunal for sake of convenience.

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03. The factual matrix of the case are that on

10.03.2015 at about 08.00 p.m. while the claimant and his

brother were going on a motorcycle bearing Reg.No.KA-

32-V-2029, the rider who was the brother of the claimant

received a phone call, therefore, he parked the motorcycle

by the side of the road, while he was talking on the phone,

the offending motorcycle bearing Reg.No.KA-32-EC-8881

came from behind and dashed against the vehicle, which

was parked. In the said accident, the claimant who was

standing by the side of his motorcycle sustained injuries

and lost a consciousness. Immediately, he was shifted to

the Kamareddy Hospital, Kalaburagi, wherein he took

treatment as inpatient for 32 days. On the next day of the

accident, a case was registered by Chittapur Police Station

in Crime No.16/2015 on the basis of complaint filed by the

brother of the claimant.

04. The claimant contended that he was aged 27

years at the time of accident, earning Rs.10,000/- per

month by doing agriculture and working as a driver, but

due to the injuries he is disabled and as such adequate

compensation may be awarded to him.

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05. The respondent No.1 the owner of the offending

vehicle did not appear despite service of notice.

06. On issuance of notice respondent No.2 who is

the insurer of the vehicle appeared and filed its objections.

The insurance company contended that there is delay in

filing the complaint and the damages sustained to the

vehicles, do not inspire confidence that the offending

vehicle was also involved in the accident. Inter-alia it was

also contended that the compensation claimed is highly

exorbitant, imaginary and untenable. Age, occupation and

income of the claimant is also suspicious.

07. On the basis of the above contentions, the

Tribunal framed the appropriate issues. The claimant was

examined as PW.1 and two medical officers who assessed

the disability were examined as PW.2 and 3. Ex.P.1 to 15

were marked in the evidence. The respondents have not

adduced any evidence.

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08. After hearing on both the sides, the Tribunal

awarded the compensation under different heads as

below:-

  Sl.                 Heads                Compensation
  No.                                        Awarded
  1.     Towards pain and suffering       Rs.10,000/-
  2.     Towards loss of amenities and    Rs.10,000/-
         enjoyment in life
  3.     Towards loss of future income    Rs.3,30,480/-
  4.     Towards medical expenses         Rs.2,35,334/-
  5.     Towards attendant's charges,     Rs.16,500/-
         food, nourishment and
         conveyance expenses.
         Towards loss of income during
  6.                                      Rs.27,000/-
         period of treatment
         Total                            Rs.7,19,314/-

09. While coming to the conclusion the Tribunal

held that the disability of the claimant is to the extent of

18% and income was Rs.9,000/- per month and he being

27 years, the appropriate multiplier would be 17.

10. Now, the learned counsel appearing for the

appellant in MFA.No.201639/2017 would contend that the

appellant/claimant had sustained hearing impairment in

both the ears due to the head injuries and therefore, he

being a driver, the functional disability has not been

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properly assessed by the Tribunal. It is contended that the

claimant having suffered the hearing impairment, he is

unable to drive efficiently as earlier since he cannot hear

the sounds of other vehicles. He further contends that the

compensation awarded by the Tribunal under the head of

loss of amenities in life is also abysmally low and seeks

reassessment of the compensation.

11. The learned counsel appearing for the insurance

company who is appellant in MFA.No.201998/2017

submits that the nature of damages to the vehicles and

the investigation papers would create doubt about the

involvement of the vehicle. He points out that there is

delay in filing the complaint. Therefore, fastening the

liability on the insurance company is erroneous. He further

points out that the Tribunal has assessed the income of

the claimant on the higher side and the same needs to be

reassessed.

12. In the light of the above submissions, the point

that arise for consideration is that whether the vehicle

insured by respondent No.2 which is owned by respondent

No.1, has caused the accident.

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13. It is relevant to note that in the FIR clearly

mentioned the number and name of the rider of the

offending motorcycle. Of course there is a delay of 01 day,

but such delay is sufficiently explained in the complaint

itself. The said complaint i.e., Ex.P.1 would show that the

claimant was unconscious and therefore, the concerned

police have taken the complaint from the brother of the

claimant and registered the case. Therefore, the delay

cannot be a ground to conclude that the accident is

doubtful.

14. The perusal of the investigation papers would

show that vehicle was seized on the next day of the

examination of the same by the Motor Vehicle Inspector.

This cannot be a ground to doubt the involvement of the

vehicle itself. The FIR was registered on the next day of

the accident and therefore, if there is any lacuna in the

investigation, that cannot be a ground to say that the

vehicle was not involved. Therefore, the submission of the

learned counsel for the appellant-Insurance Company on

this aspect cannot be sustained.

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15. The second aspect to be considered is, whether

the compensation awarded is proper and correct?

16. Evidently, the driving licence produced by the

claimant at Ex.P14 would show that the claimant was a

tractor driver and therefore, hearing impairment has a

direct impact on his efficiency to drive the vehicle. It is

also relevant to note that the Tribunal has considered the

testimony of PWs.2 and 3, who have stated with the

support of the disability certificates that there is hearing

impairment in the left ear to the extent of 35% and in the

right ear to the extent of 45%. Apart from that, the

claimant had also sustained fracture of 3rd shaft of right

clavicle. Though the fracture of the clavicle cannot

contribute to the disability, hearing impairment definitely

contributes to the disability. The claimant being the driver,

it can safely be said that the disability would be 25%. In

that view of the matter the opinion of the Tribunal that

there is 18% disability appears to be on the lower side.

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17. The claimant has not produced any material to

show that he was earning Rs.10,000/- p.m. Therefore, the

Tribunal had to take the notional income. It has taken the

income at Rs.9,000/- p.m. The guidelines issued by the

Karnataka State Legal Services Authority in respect of the

settlement of the claims arising out of the motor vehicle

accidents before the Lok Adalath prescribe the notional

income for the year 2015 at Rs.8,000/- p.m. In umpteen

number of cases, this Court has held that the said

guidelines issued by the KSLSA are in general conformity

with the wages fixed under the Minimum Wages Act.

Therefore, the notional income of the claimant has to be

considered at Rs.8,000/- per month.

18. The Tribunal has considered the multiplier of 17

based on the age of the injured as 30 years. Therefore,

the said multiplier appears to be correct and there is no

dispute in respect of the multiplier.

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19. Therefore, the loss of future earnings of the

claimant is calculated as: Rs.8,000 x 12 x 17 x 25% =

Rs.4,08,000/-.

20. Considering the nature of injuries, particularly,

the head injury suffered by the claimant, it can safely be

said that he could not resume to work at least for a period

of six months. Therefore, the loss of income during laid up

period is assessed at Rs.48,000/-.

21. The Tribunal has awarded a sum of Rs.10,000/-

under the head of loss of amenities in life, which appears

to be on the lower side and therefore a sum of

Rs.30,000/- is awarded under this head.

22. The compensation awarded by the Tribunal

under the remaining heads does not call for any

interference by this Court. Hence, the claimant is entitled

for the modified compensation under different heads as

below:

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Pain and suffering                      Rs.1,00,000/-

Food and nourishment, conveyance Rs.16,500/-

and attendant charges

Medical expenses Rs.2,35,334/-

Loss of income during the laid up Rs.48,000/-

period

Loss of future earnings Rs.4,08,000/-

Loss of amenities in life Rs.30,000/-

Total                                   Rs.8,37,834/-

Less: awarded by Tribunal               Rs.7,19,314/-

Enhancement                             Rs.1,18,520/-

23. Thus, the petitioner is entitled for enhanced

compensation of Rs.1,18,520/- with interest and

therefore, the appeal filed by the Insurance Company in

MFA No.201998/2017 deserves to be dismissed and the

appeal filed by the claimant in MFA No.201639/2017

deserves to be allowed in part. Hence, the following:

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ORDER

(i) MFA No.201998/2017 is dismissed.

(ii) MFA No.201639/2017 is allowed in part.

(iii) The impugned judgment and award passed by

the Tribunal is modified.

(iv) The appellant in MFA No.201639/2017/claimant

is entitled to a sum of Rs.1,18,520/- in

addition to the compensation awarded by the

Tribunal together with interest at 6% p.a. from

the date of petition till its realization.