Partly allowed

Cholamandalam Ms General Insurance Co.Ltd., v. Yamanappa Hanamanth Galag

Karnataka HC18 Jun 2024MFA/103653/2019

Case brief

AI extract

What is this about?

This court disposed of two miscellaneous first appeals arising from a motor accident. The insurer and claimant challenged liability and compensation quantum. The court upheld liability but modified the award, correcting income assessment and adding heads for laid-up time and amenities.

What did the court decide?

Compensation enhanced from Rs.3,87,160 to Rs.4,85,920 by modifying heads for future earning, loss of amenities, and loss of earnings during laid-up period.

Cholamandalam Ms General Insurance Co.Ltd., Vs… — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC-D:8106-DB MFA No. 103653 of 2019 C/W MFA No. 104121 of 2019

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 18^TH DAY OF JUNE, 2024

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PRESENT

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THE HON'BLE MR JUSTICE S G PANDIT

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA

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MISCELLANEOUS FIRST APPEAL NO.103653 OF 2019 (MV-I) C/W MISCELLANEOUS FIRST APPEAL NO.104121 OF 2019

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IN MFA NO.103653 OF 2019

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BETWEEN:

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CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD., THROUGH ITS ASSISTANT MANAGER, 1^ST FLOOR, KALABURGI SQUARE, DESAI CORNER, DESHPANDE NAGAR, HUBBALLI-580029, BY ITS AUTHORIZED SIGNATORY.

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…APPELLANT

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(BY SRI R.R. MANE, ADVOCATE)

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AND:

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Digitally signed by VINAYAKA B V Location: HIGH COURT OF KARNATAKA

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YAMANAPPA HANAMANTH GALAG, AGE. ABOUT 26 YEARS, OCC. PORTER IN APMC YARD, BAGALKOT, R/O. DODDASABANNA ONI, NEAR SHIRUR RAILWAY GATE, BAGALKOT, TQ. DIST. BAGALKOT, PIN-587204.

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RAHUSAHEB S/O. GOVINDAPA NAIKAR, AGE.48 YEARS, OCC. OWNER OF THE LIGHT GOODS VEHICLE BEARING NO.KA-29/A-3411, R/O. KALADAGI, TQ. BAGALKOT, PIN-587204. …RESPONDENTS

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(BY SRI ANAND R.KOLLI, ADVOCATE FOR R1; SRI PRAKASH HOSAMANI, ADVOCATE FOR R2)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 17.06.2019 PASSED IN MVC

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NC: 2024:KHC-D:8106-DB MFA No. 103653 of 2019 C/W MFA No. 104121 of 2019

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NO.13/2016 ON THE FILE OF THE MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL NO.III, BAGALKOT, AWARDING COMPENSATION OF RS.3,72,160/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION AND ETC.,

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IN MFA NO.104121 OF 2019 BETWEEN:

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YAMANAPPA HANAMANTH GALAG, AGE. 26 YEARS, OCC. PORTER IN APMC YARD, AT PRESENT NIL, R/O. DODDASABANNA ONI, NEAR SHIRUR RAILWAY GATE, DIST. BAGALKOT, PIN-587101.

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…APPELLANT

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(BY SRI ANAND R.KOLLI, ADVOCATE)

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AND:

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RAHUSAHEB S/O. GOVINDAPA NAIKAR, AGE.48 YEARS, OCC. OWNER OF THE LIGHT GOODS VEHICLE BEARING NO.KA-29/A-3411, R/O. KALADAGI, TQ. BAGALKOT, PIN-587101.

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THE ASSISTANT MANAGER, CHOLAMANDALAM M.S. GENERAL INSURANCE CO. LTD., 1^ST FLOOR, KALABURGI SQUARE, DESAI CORNER, DESHPANDE NAGAR, HUBBALLI-580029.

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…RESPONDENTS

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(BY SRI R.R. MANE, ADVOCATE FOR R2; NOTICE TO R1 SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 17.06.2019 PASSED IN MVC NO.13/2016 ON THE FILE OF THE MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL NO.III, BAGALKOT, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,

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THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR ORDERS, THIS DAY, BASAVARAJA, J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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Though these appeals are listed for orders, with the consent of the learned counsel for the parties, these appeals are taken up for final disposal.

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Both appeals arise out of judgment and award dated 17^th June, 2019 passed in MVC No.13 of 2016 by the Member, Motor Accident Claims Tribunal-III, Bagalkot (for short hereinafter referred to as "the Tribunal").

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For the sake of convenience, the parties in these appeals are referred to with their rank and status before the Tribunal.

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The brief relevant facts leading to these appeals are that on 22^nd April, 2015, the petitioner, after completion of marriage ceremony, was returning along with others in a Maxi cab bearing registration No.KA-28/A-7220 from Ganadinni village of Manvi Taluk to Bagalkot on SH-20. The petitioner was seated in the back seat of the vehicle towards driver side. When the maxi cab reached Gudisankpur village, at that time, Light Goods Vehicle bearing Registration No.KA-29/A-3411 coming from the opposite side being driven by its driver in a

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high speed, rash and negligent manner, dashed towards the right side of the maxi cab and caused the accident. Due to impact of the accident, the petitioner sustained grievous injuries to his right hand. The petitioner also sustained severe crush and degloving injuries over right hand. Immediately after the accident, the petitioner was taken to Dr. Akki Hospital, Ilkal in 108 Ambulance and after preliminary treatment, he was shifted to KLE Hospital, Belgaum. There the petitioner was treated as an inpatient and was operated by various expert doctors with wound debridement and shoulder joint capsule repair and muscle repair with skin grafting by Dr. Rajesh Powar and was discharged on 05^th May, 2015 with and advice to take follow-up treatment and the petitioner was taking the treatment at the said hospital till the date of filing the claim petition. It is further stated as to the physical disability due to the accident and the accident occurred due to the rash and negligent driving of the driver of Light Goods Vehicle and a complaint was lodged against the said driver and police have filed charge sheet against the driver of the offending Light Goods Vehicle. Accordingly, respondent No.1 being the owner and the Respondent No.2 being the Insurer, are liable to pay

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compensation. On all these grounds sought to allow the claim petition.

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In response to service of notice, respondents appeared through their counsel. Respondent No.1 filed his objections contending that he is the owner of the Light goods Vehicle and the insurance policy of the said vehicle was in force as on the date of accident and he was having valid and effective driving licence as on the date of accident and hence prays to fasten the liability on the respondent No.2-Insurer who is the indemnifier of vehicle of respondent No.1.

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Respondent No.2 filed its objections contending that the driver of the Light Goods Vehicle was not having valid and effective driving licence to drive the said vehicle as on the date of accident and hence prays for dismissal of the claim petition with costs.

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Based on the rival pleadings, the Tribunal framed appropriate issues. To prove the case, petitioner got himself examined as PW1 and examined two more witnesses as PWs.2 and 3 and got marked 18 documents as per Exhibits P1 to P18. After closure of the petitioner’s side evidence, respondent No.2-

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Insurer has examined its Assistant Manager as RW1 and got marked two documents as Exhibits R1 and R2. Having heard the arguments on both sides, the Tribunal allowed the claim petition in part and awarded compensation of Rs.3,87,160/with interest at 6% per annum from the date of petition till its realisation. Being aggrieved by the impugned judgment and award of the Tribunal, the Insurance Company has preferred MFA No.103653 of 2019 questioning the liability as well as the quantum of compensation; and the petitioner/claimant has preferred MFA No.104121 of 2019 seeking enhancement of compensation.

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Sri R.R. Mane, learned Counsel appearing on behalf of the appellant-Insurer would submit that the judgment and award passed by the Tribunal is against law, evidence and facts of the case. The Tribunal has not appreciated the defence of the appellant in accordance with documentary evidence. The Tribunal ought to have held that the driver of the Light Goods Vehicle was not having valid and effective driving licence at the time of accident and that in view of the breach of the relevant clause in the policy by the owner of the vehicle, the Insurer is not liable to indemnify the owner in respect of the claim. He

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further submits that the Tribunal ought to have noticed that one Durgappa Timmanna Devadurga who was travelling with the claimant in the maxi cab, has clearly stated in the complaint that the person driving the Light Goods Vehicle told his name as Veerabhadrappa Teggi and accordingly, the First Information Report came to be lodged against Veerabhadrappa Teggi for having caused the accident and that on the basis of his further statement, charge sheet was filed against one Venkappa Appanna Dasar. Since the said Veerabhadrappa Teggi was not having licence for obvious reasons, the charge sheet came to be filed against some other person. Under these circumstances, fastening liability on the appellant is erroneous and illegal is his submission. His further submission is that the Tribunal has erred in law in awarding exorbitant compensation of Rs.3,86,160/- to the claimant in respect of the injuries sustained in the accident. He further submits that and Tribunal ought to have assessed the income of the clamant at Rs.8,000/- per month as per Lok Adalat chart instead of assessing at Rs.9,000/- per month. He also submits that granting of Rs.30,000/- towards future medical expenses, is

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NC: 2024:KHC-D:8106-DB MFA No. 103653 of 2019 C/W MFA No. 104121 of 2019

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also erroneous and exorbitant. On all these grounds sought to dismiss the appeal.

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Having heard both sides and on perusal of appeal

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papers, as also, original records, the following points would arise for our consideration:

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Whether the Insurance Company has made out a ground to interfere with the judgment and award passed by the Tribunal as to the quantum of compensation as well as liability of the Insurance Company?

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Whether the Tribunal is justified in assessing the notional income of the petitioner at Rs.9,000/per month without any acceptable evidence?

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Whether the petitioner is entitled for enhancement of compensation?

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What order or award?

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Our answer for the above points is as under:

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Point No.1; in the negative;

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Point No.2; in the negative;

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Point No.3: partly in the affirmative;

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Point No.4: as per final order.

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Regarding Point No.1:

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We have carefully examined the material placed before this Court. It is the case of the petitioner that on 22^nd April, 2015, the petitioner, after completion of marriage ceremony, was returning along with others in a Maxi cab bearing registration No.KA-28/A-7220 from Ganadinni village of Manvi Taluk to Bagalkot on SH-20.; he was seated in the back seat of the vehicle towards driver side. When the maxi cab reached Gudisankpur village, at that time, the driver of another Light Goods Vehicle bearing Registration No.KA-29/A-3411 coming from the opposite side being driven in a high speed, rash and negligent manner, dashed towards the right side of the maxi cab and caused the accident. Due to impact of the accident, the petitioner sustained grievous injuries on his right hand. The petitioner also sustained severe crush and degloving injuries over right hand. After the accident, the petitioner was taken to Dr. Akki Hospital, Ilkal and after preliminary treatment

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there, he was shifted to KLE Hospital, Belgaum where the petitioner was treated as an inpatient and was operated by various expert doctors with wound debridement and shoulder joint capsule repair and muscle repair with skin grafting. Petitioner has clearly stated that the accident occurred due to rash and negligent driving on the part of the driver of the offending Light Goods Vehicle. To substantiate the case, petitioner got himself examined as PW1 and examined two more witnesses as PWs.2 and 3 and marked 18 documents as per Exhibits P1 to P18. A perusal of these documents, makes it clear that on the basis of the complaint filed by one Durgappa Thimmanna Devadurga, Ilkal police registered a Case in Crime No.64 of 2015 against the driver of the Tata Ace Light Goods Vehicle for commission of offence under Section 279 and 338 read with Section 187 of Indian Penal Code and submitted First Information Report to the Court. Thereafter, Police rushed to the spot and conducted spot panchnama, prepared rough sketch in the presence of pnachas, obtained wound certificate of the injured and obtained motor vehicle inspection report and recorded the statement of witnesses. On thorough investigation, the Investigating Officer submitted charge sheet

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against one Venkappa Appanna Dasar for commission of offence under Section 279 and 338 read with Section 187 of the Indian Penal Code.

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PW1 has clearly deposed as to the accident as stated in the claim petition. During the course of crossexamination of PW1, the respondents have not questioned as to the charge sheet submitted by the investigating officer. Even during the evidence, RW1-Vallabhai, Assistant Manager of Cholamandalam MS General Insurance Company Limited, has clearly admitted as to the charge sheet submitted by the Investigating Officer and they have not questioned the same before the proper forum. Respondent No.1-owner of Light Goods Vehicle has not disputed the accident. Respondent No.2-Insurer has not placed any material to discard the oral evidence and also the documentary evidence placed by the petitioner. Considering the evidence placed before it, the Tribunal has properly appreciated the same in accordance with law and facts and had come to the conclusion that respondent No.2-Insurer is liable to pay compensation. On re-appreciation of evidence on record, we do not find any ground to interfere

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with the finding given by the Tribunal. Accordingly, we answer point No.1 in the negative.

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Regarding Point No.2

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As regards the income of the petitioner is concerned, the Tribunal has held that the petitioner was a daily wage employee and considered the notional income at Rs.9,000/- per month. The same is arrived at in spite of petitioner not placing any documentary evidence. When there is no acceptable legal evidence as to the income, it is just and proper to follow the chart issued by the Karnataka State Legal Services Authority. For the accidents of the year 2015, according to the chart, the notional is to be taken at Rs.8,000/per month. To that extent, there is force in the submission of the learned counsel for the appellant-Insurance Company. Accordingly the notional monthly of the petitioner/claimant is to be taken at Rs.8,000/- to assess the compensation towards loss of future earning and towards loss of earning during laid up period. Hence, we answer point No.2, in the negative.

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Regarding Point No.3:

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As regards quantum of compensation is concerned,

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the Tribunal has awarded the compensation as follows:

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Sl. No.	Head	Amount (in Rs.)
1.	Pain, shock and mental agony	50,000.00
2.	Permanent disablement	2,72,160.00
3.	Medical Expenses	75,000.00
4.	Further medical expenses	30,000.00
5.	Nourishment, diet and attendant	10,000.00
	Total	3,87,160.00

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With regard to loss of future earning is concerned, based on the wound certificate-Exhibit P6 issued by Dr. Akki Hospital, Ilkal, Exhibit P7-wound certificate issued by KLE Hospital, Belgaum and Exhibit P17-Disbility certificate issued by Kanti Nursing Home, Bagalkot, the Tribunal has rightly considered the permanent physical disability of the petitioner to the extent of 14% to the whole body as the Doctor has assessed the disability at 42%. The Tribunal has also rightly assessed the age of the petitioner as 22 years, considering the oral and documentary evidence, which does not call for interference. The Tribunal has applied the appropriate multiplier 18 as per the decision of the Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in (2009)6

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SCC 121 and the same cannot be found fault with. Accordingly, as discussed above, taking the notional monthly income of the petitioner at Rs.8,000/- the loss of future income comes to Rs.2,41,920/- (Rs.8,000/- x 12 x 18 x 14%). Considering the nature of injuries suffered and period of hospitalisation, the Tribunal has awarded Rs.50,000/- towards pain, shock and mental agony and has awarded Rs.75,000/- taking into account the medical bills, which are quite reasonable. The awarding of Rs.30,000/- towards future medical expenses also require no interference. The Tribunal has not awarded any amount towards loss of earning during laid up period and also towards loss of amenities. In our considered opinion, the amount of Rs.10,000/- awarded towards nourishment, diet and attendant charges is also on the lower side. Considering the nature of injury, disability as assessed by the Medical Officer and considering the pain and mental agony and the period of hospitilisation, so also taking note of the suffering to be undergone by the petitioner for his lifetime due to disability, it is just and proper to modify the award as follows:

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NC: 2024:KHC-D:8106-DB MFA No. 103653 of 2019 C/W MFA No. 104121 of 2019

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Sl. No.	Head	Amount (in Rs.)
1.	Pain, shock and mental agony (as awarded by the Tribunal)	50,000.00
2.	Loss of future earning	2,41,920.00
3.	Medical Expenses	75,000.00
4.	Future medical expenses	30,000.00
5.	Nourishment, diet and attendant charges	15,000.00
6.	Loss of earning during laid up period (Rs.8,000 x 3months)	24,000.00
7.	Loss of amenities	50,000.00
	Total	4,85,920.00

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Accordingly, we answer point No.3, partly in the affirmative.

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Regarding Point No.4:

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For the foregoing reasons and discussions, we proceed to pass the following:

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O R D E R

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Appeals are allowed in part;

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Judgment and Award dated 17^th June, 2019 passed in MVC No.13 of 2016 by the Member, Motor Accident Claims Tribunal-III, Bagalkot is modified holding that the petitioner is entitled for compensation of Rs.4,85,920/as against Rs.3,87,160/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till realisation excluding the

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NC: 2024:KHC-D:8106-DB MFA No. 103653 of 2019 C/W MFA No. 104121 of 2019

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amount awarded towards future medical

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expenses;

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Amount in deposit be transmitted to the Tribunal forthwith;

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Draw modified award accordingly;

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Registry to transmit copy of this judgment along with the trial court records to the concerned court, forthwith.

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Sd/JUDGE

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Sd/JUDGE

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LNN List No.: 1 Sl No.: 38

Cholamandalam Ms General Insurance Co.Ltd., v. Yamanappa Hanamanth Galag

Case brief

What is this about?

What did the court decide?

Cholamandalam Ms General Insurance Co.Ltd., v. Yamanappa Hanamanth Galag

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

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