IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.NO.5063/2012 C/W M.F.A.NO.2680/2012(MV) IN M.F.A.NO.5063/2012 BETWEEN:
M/S. ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED NO.89, 2ND FLOOR S.V.R. COMPLEX HOSUR MAIN ROAD MADIWALA BENGALURU-560 068.
REPRESENTED BY ITS MANAGER – LEGAL.
ALSO AT:
THE MANAGER ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED PRESTIGE CORNICHE NO.62/1, 2ND FLOOR RICHMOND ROAD BENGALURU-26. … APPELLANT (BY SRI. A.M. VENKATESH, ADVOCATE) AND:
1. MR. VIJAY KUMAR S/O. C. NAGARAJU AGED ABOUT 22 YEARS R/O. KUDLU VILLAGE CHANNAKESHAVANAGAR MAIN ROAD KENCHAPPA LAYOUT BENGALURU-560 068.
2. MR. A. WILLIAM S/O. AASIRVATHAN R/AT NO.93, PADISON PURAM LANE CHENNAI TAMIL NADU-600 012.
3. MR. A. MUTHUSELVAM S/O. ARMUGAM R/AT NO.4/202 MADHUHALLI DHARMAPURI TAMIL NADU. ... RESPONDENTS (BY SRI. R. CHANDRASHEKAR, ADVOCATE FOR R1; R2 SERVED;
VIDE ORDER DATED 14.09.2015, SERVICE OF NOTICE HELD SUFFICIENT IN RESPECT OF R3) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.12.2011 PASSED IN MVC.NO.6929/2009 ON THE FILE OF THE JUDGE, MEMBER, MACT, BENGALURU, AWARDING A COMPENSATION OF RS.1,65,450/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
IN M.F.A.NO.2680/2012 BETWEEN:
SRI. VIJAY KUMAR S/O. C. NAGARAJU AGED ABOUT 25 YEARS R/AT KUDLU VILLAGE CHANNAKESHAVANAGAR MAIN ROAD KENCHAPPA LAYOUT BENGALURU-560 068. … APPELLANT (BY SRI. PRADEEP NAIK K, ADVOCATE) AND:
1. THE MANAGER ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED PRESTIGE CORNICHE NO.62/1, 2ND FLOOR RICHMOND ROAD BENGALURU-26.
2. SRI. A. WILLIAM S/O. AASIRVATHAN AGED MAJOR R/AT NO.93, PADISON PURAM LANE CHENNAI TAMIL NADU-600 012.
3. SRI. A. MUTHUSELVAM S/O. ARMUGAM AGED MAJOR R/AT NO.4/202 NADUHALLY DHARMAPURI TAMIL NADU. ... RESPONDENTS (BY SRI. H.N. KESHAVA PRASHANTH, ADVOCATE FOR R1 NOTICE TO R2 AND R3 IS DISPENSED WITH) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.12.2011 PASSED IN MVC.NO.6929/2009 ON THE FILE OF JUDGE AND MEMBER - MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE M.F.As. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T These two appeals are filed by the insurance company and the claimant respectively questioning the liability and also the quantum of compensation awarded in M.V.C.No.6929 of 2009 dated 05.12.2011 on the file of MACT, Bengaluru.
2. In M.F.A.No.5063 of 2012, the insurance company in the appeal would contend that the driver of the offending canter was not having driving license to drive the MGV and there was also negligence on the part of the claimant without keeping the distance as per regulation 23 of the Motor Vehicles Act, he was proceeding and hence, the insurance company is not liable to pay the compensation and the tribunal has to consider contributory negligence on the part of the claimant also.
3. In M.F.A.No.2680 of 2012, the claimant in the appeal would contend that the compensation awarded by the tribunal is very meager and the tribunal has only taken the income as Rs.3,500/- per month whereas the accident has taken place in the year 2009. The tribunal also did not consider the evidence of the Doctor, who assessed the disability and has erroneously taken the disability at 10%, even though the Doctor has assessed the disability at 35% and no future medical expenses was awarded inspite of the Doctor stating that the claimant is in need of one more surgery. It is also his contention that the compensation awarded by the tribunal at Rs.50,000/- towards incidental expenses is very meager and it requires interference of this Court.
4. Having heard the arguments of learned counsel appearing for the insurance company and also the learned counsel appearing for the claimant and keeping in view the contentions urged by learned counsel for both the parties, the points that arise for consideration of this Court are:
1. Whether the tribunal has committed an error in fastening the liability on the insurance company to pay the compensation, even though the driver of the offending canter was not having the driving license to drive the MGV vehicle and whether it requires interference of this Court?
2. Whether the tribunal has committed an error in not considering the contributory negligence against the claimant since, the claimant did not keep the distance between two vehicle and whether it requires interference of this Court?
3. Whether the tribunal has committed an error in not awarding just and reasonable compensation and whether it requires interference of this Court?
4. What order?
Point Nos.1 and 2:
5. The main contention of the learned counsel for the insurance company in the appeal is that, firstly the driver of the canter was not having driving license to drive the MGV vehicle and secondly, there was negligence on the part of the claimant since he did not maintain the distance between two vehicles. With regard to the first contention of the insurance company is concerned, it is not the case of the insurance company that the driver of the canter was not having the driving license and the only contention was that he was not having driving license to drive MGV vehicle and the said contention cannot be accepted in view of the recent judgments of the Hon’ble Apex Court in Pappu’s case and Shamanna’s case and the insurance company has to pay the amount and recover the same from the insured and hence, point No.1 is answered accordingly.
6. The second contention of the insurance company with regard to the fact that the claimant did not maintain the distance between two vehicles, the counsel appearing for the claimant has brought to the notice of this Court the answers elicited from the mouth of P.W.1 in the cross-examination. In the cross-examination of P.W.1, when the question was put to the claimant that he himself dashed against the canter, the same was denied. P.W.1, in his evidence states that the canter was going in front of him and the driver of the canter suddenly applied the brake and hence, he was unable to control his two wheeler and he dashed against the canter. He also categorically states that there was a distance of 10 ft. between his vehicle and canter. It is suggested that the driver of the canter did not apply brake suddenly since, it was running on the main road and the same was denied. It is to be noted that when the suggestion was made to P.W.1 that the driver of the canter did not stop the vehicle suddenly, the right person to speak with regard to whether he applied the brake suddenly is the driver of the canter and he is not examined before the Court below. When such being the case, the Court cannot presume that the claimant was not maintaining the distance. However, it is the specific case of the claimant that there was distance of 10 ft. between his vehicle and canter.
7. The main contention of the claimant is that the driver of the canter suddenly applied the brake and as a result, the accident has occurred. There must be cogent evidence before the Court to substantiate the contention of the insurance company and in order to arrive at contributory negligence as contended by the insurance company, there is no cogent evidence except the suggestion made to P.W.1. Hence, I do not find any force in the contention of the insurance company to arrive at a conclusion that there was contributory negligence. Hence, I answer point No.2 as ‘negative’.
Point No.3:
8. With regard to quantum of compensation is concerned, on perusal of the record, the same discloses that the claimant has suffered the fracture of femur and to substantiate the same, he has examined the Doctor as P.W.2. P.W.2 in his evidence has deposed that the claimant was subjected to surgery for fracture of right femur. On examination, he found limping on the right side and squatting with difficulty. Shortening of right leg by ¾” with wasting of thigh muscles by 1” right hip flexion was restricted by 20-25 degrees and rotation by 10 – 15 degrees. Right knee flexion was restricted by 10 -15 degrees with early degenerative changes in the joint. The x-ray also showed mild malunion of the right femur with implant insitu. It is also his evidence that the claimant needs one more surgery to remove implants which costs Rs.15,000/- and he has assessed the disability at 11.5% to the whole body.
9. In the cross-examination of P.W.2, he states that he has relied upon Alimco Manual and also on his clinical examination assessed the disability. It is suggested that he assessed the disability on the higher side and the same was denied. He admits, after removal of implant, the movements will improve. After the removal of implant, the disability would reduce and it may come down to 8.50% to whole body.
10. Having considered the evidence of P.W.1 and also the evidence of the Doctor and also taking note of the fact that there is malunion of the right femur, the tribunal while reducing the disability to 10%, no reason was assigned. The Doctor has assessed the disability at 35% to the lower limb and 11.5% to the whole body and when there was malunion, the tribunal ought not to have reduced the same to 10% and ought to have taken the same at 1/3rd which comes to 12%. The tribunal has committed an error in not appreciating the fact that when there was malunion of the right femur and implant was in situ, no doubt in the cross-examination, it is elicited that it may reduce to 8.50%, the same would be subject to result of future surgery and the tribunal ought to have considered the disability at 12% instead of 10%.
11. With regard to the income of the claimant is concerned, the tribunal has taken the income as Rs.3,500/- per month and the same is very meager, since the accident is of the year 2009. In the absence of documentary proof with regard to avocation and income, the tribunal ought to have taken the notional income. Hence, it is appropriate to take the same as Rs.5,000/- per month instead of Rs.3,500/- per month. Having considered the age and relevant multiplier and taking his income at Rs.5,000/- per month, on the head of loss of future income, a sum of Rs.1,29,600/- is awarded (5,000/- x 12 x 18 x 12/100).
12. Towards pain, injuries and suffering, the tribunal has awarded a sum of Rs.30,000/-. Taking into note the accident is of the year 2009 and also there is only one fracture, I am of the view that it does not require any modification. During laid up period also, the tribunal has taken the income at Rs.3,500/- per month for a period of 3 months which comes to Rs.10,500/-. When the claimant has suffered fracture and it requires minimum three months for uniting the fracture and he may require another one month rest, the tribunal ought to have taken the income as Rs.5,000/- per month for a period of 4 months, it comes to Rs.20,000/- as against Rs.10,500/-. The tribunal has not awarded any compensation on the head of future medical expenses. The doctor states that the is in need of one more surgery and it requires Rs.15,000/-. Taking into consideration the fact that the accident is of the year 2009, an amount of Rs.15,000/- is just and reasonable for removal of implant. Hence, the same is awarded towards future medical expenses.
13. The claimant was inpatient for a period of 9 days in the hospital. However, the tribunal has awarded a sum of Rs.5,000/- on the head incidental charges and the same is enhanced to Rs.10,000/- as against Rs.5,000/-. Towards loss of amenities in future life, a sum of Rs.15,000/- is awarded by the tribunal. Taking into consideration the fact that the claimant has sustained fracture of femur and he has to lead his rest of life with disability of 12%, a sum of Rs.30,000/- is awarded as against Rs.15,000/-.
14. In view of the discussions made above, I pass the following:
ORDER (i) The appeal filed by the insurance company in M.F.A. No.5063 of 2012 is partly allowed. The insurance company is directed to pay the compensation and recover the same from the insured.
(ii) The appeal filed by the claimant in M.F.A.No.2680 of 2012 is also partly allowed enhancing the compensation as Rs.2,63,950/- as against Rs.1,65,450/- with interest at 8% per annum from the date of petition till the date of deposit.
(iii) The amount in deposit is ordered to be transmitted to the tribunal, forthwith.
(iv) Registry is directed to send the lower Courts records to the Court below, forthwith.
(v) The respondents are directed to pay the compensation amount with interest within 8 weeks from today.
(vi) The order of the tribunal in respect of apportionment and depositing the compensation amount in fixed deposit shall remain unaltered.
Sd/- JUDGE ST