Partly allowed

Sri Suryanarayanappa S/O Venkatappa v. Sri Chalapathi S/O Late K M Chowdappa

Karnataka HC1 Aug 2024MFA/2265/2013

Case brief

AI extract

What is this about?

Motor accident claim appeal by injured cyclist and cross-appeal by insurer against award in M.V.C.No.8400/2010. Court enhanced compensation to Rs.2,54,450/- with enhanced amount of Rs.32,250/-, reduced interest to 6% p.a., and directed insurer to pay with recovery rights from owner due to driver's invalid licence.

What did the court decide?

Compensation enhanced by Rs.32,250/-; interest reduced to 6% p.a.; insurer to deposit compensation within eight weeks with liberty to recover from owner.

Sri Suryanarayanappa S/O Venkatappa Vs Sri Chalapathi S/O Late K… — Insurance | Karnataka HC (2024)

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NC: 2024:KHC:30424 MFA No. 2265 of 2013 C/W MFA No. 666 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA

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MFA NO. 2265 OF 2013 C/W MFA NO. 666 OF 2013 (MV-I)

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IN MFA NO. 2265/2013

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BETWEEN:

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SRI SURYANARAYANAPPA AGED ABOUT 38 YEARS S/O VENKATAPPA AGED ABOUT 38 YEARS R/O CHIKKALLASANDRA UTTARAHALLI, BENGALURU - 560 061 …APPELLANT

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(BY SRI.KRISHNA REDDY, ADV.)

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AND:

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Digitally signed by PRAJWAL A Location: HIGH COURT OF KARNATAKA

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SRI CHALAPATHI MAJOR, AGED ABOUT 37 YEARS S/O LATE K M CHOWDAPPA R/AT BETHAMANGALA TOWN BANGARPET TOWN KOLAR DISTRICT - 563 114

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ICICI LOMBARD GENERAL INSURANCE CO LTD DIVISIONAL MANAGER NO 228/15, 19^TH MAIN 22^ND CROSS, RAJALAKSHMI ORCADE BENGALURU 560 011 REP. BY ITS DIVISIONAL MANAGER …RESPONDENTS

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(BY SRI. N.R.RAGHAVENDRA, ADV. FOR R1; SRI. LAKSHMI NARASAPPA, ADV. FOR SRI. A.M.VENKTESH, ADV. FOR R2 SRI. ASHOK N. PATIL, ADV. FOR R2)

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2 - NC: 2024:KHC:30424 MFA No. 2265 of 2013 C/W MFA No. 666 of 2013

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:20.10.2012 PASSED IN MVC NO.8400/2010 ON THE FILE OF THE 10TH ADDITIONAL JUDGE, MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 666/2013

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BETWEEN:

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ICICI LOMBARD GENERAL INSURANCE CO LTD DIVISIONAL MANAGER NO 228/15, 19^TH MAIN 22^ND CROSS, RAJALAKSHMI ORCADE JAYANAGAR, BENGALURU 560 011 REP. BY ITS MANAGER M/S ICICI LOMBARD GENERAL INSURANCE COMPANY LTD. NO.89, SVR COMPLEX HOSUR MAIN ROAD MADIVALA, BANGALORE - 560 068 … APPELLANT

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(BY ASHOK N. PATIL, ADV.)

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AND:

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SRI SURYANARAYANAPPA S/O SRI VENKATAPPA NOW AGED ABOUT 38 YEARS PRESENTLY R/AT CHIKKALLASANDRA UTTARAHALLI, BENGALURU - 560 003

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SRI CHALAPATHI

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S/O LATE K M CHOWDAPPA NOW AGED ABOUT 37 YEARS R/AT BETHAMANGALA TOWN BANGARPET TALUK - 563 114 KOLAR DISTRICT

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…RESPONDENTS

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(BY SRI.N.R.RAGHAVENDRA, ADV. FOR R2; SRI. R. KRISHNA REDDY, ADV. FOR R1 IS DIRECTED ALONG WITH NOTICE FOR R1 VIDE ORDER DATED 1.08.2024)

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3 - NC: 2024:KHC:30424 MFA No. 2265 of 2013 C/W MFA No. 666 of 2013

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.10.2012 PASSED IN MVC NO.8400/2010 ON THE FILE OF MEMBER, MACT, 10^TH ADDITIONAL JUDGE, BANGALORE, AWARDING A COMPENSATION OF RS.2,22,200/- WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL PAYMENT.

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

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CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA

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ORAL JUDGMENT

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In these appeals, both the petitioner as well as the insurance company have challenged the judgment and award dated 20.10.2012 passed by the Member MACT, X Addl. Judge (SCCH-16), Bengaluru, ('the Tribunal' for short) in M.V.C.No.8400/2010.

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For the sake of convenience, the parties shall be referred to as per their status before the Tribunal.

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Brief facts of the case are, on 23.11.2006 at about 09:30 pm, while the petitioner and one Sri.Venkataramappa were riding the cycle on left side of Doddakari V.Kote road, near Kodihalli Gate, the Autorikshaw bearing Regn.No.KA-08-2379 came from opposite direction, dashed against them. Due to which, they sustained injuries. The petitioner was treated at

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4 - NC: 2024:KHC:30424 MFA No. 2265 of 2013 C/W MFA No. 666 of 2013

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General Hospital, Kolar and then at R.L.Jalappa Hospital, Kolar. After taking treatment, the petitioner approached the Tribunal for grant of compensation of Rs.12,00,000/-. Claim was opposed by both the respondents. The Tribunal after the taking evidence and hearing both the parties, by the impugned judgment allowed the claim petition granting compensation of Rs.2,22,200/- with interest at the rate of 8% p.a. directing the owner of the vehicle to pay the compensation and further directed the insurance company to deposit the compensation with liberty to recover the same from the owner. Pleading inadequacy and enhancement, the petitioner has filed MFA.No.2256/2012, whereas challenging fastening of liability, quantum and interest, the insurance company has filed MFA.No.666/2013.

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The Tribunal has awarded the compensation under the following heads:

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5 - NC: 2024:KHC:30424 MFA No. 2265 of 2013 C/W MFA No. 666 of 2013

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Sl. No.	Particulars	Rs.
1	Towards loss of income	Rs.1,17,000/-
2	Towards pain and suffering	Rs. 25,000/-
3	Towards loss of amenities in life	Rs. 25,000/-
4	Towards medical expenses	Rs. 10,200
5	Towards permanent disability	Rs. 05,000/-
6	Towards future medical expense	Rs. 10,000/-
7	Towards laid up period	Rs. 15,000/-
8	Towards attendant, Food and nourishment and Conveyance charges	Rs. 15,000/-
	Total	2,22,200

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Heard the arguments of

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Sri. R.Krishna Reddy, learned counsel appearing for petitioner, Sri N.R.Raghavendra, learned counsel appearing for owner of the Autorikshaw, Sri K.S.Lakshminarayanappa, learned counsel appearing for the insurance company in MFA.No.2265/2013 and Sri Ashok N. Patil, learned counsel appearing for the Insurance Company in MFA.No.666/2013.

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It is the contention of learned counsel for the petitioner that in the accident, the petitioner has suffered 3 major fractures i.e. Avulsion of tibial tuberasity, type-III A fracture of proximal Tibia and Quadriceps injury (Tendon), which confined him for

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6 - NC: 2024:KHC:30424 MFA No. 2265 of 2013 C/W MFA No. 666 of 2013

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treatment for period of two months. Medical evidence is placed through PW.2 that the petitioner has suffered 40% of the disability to the limb and 13% to the whole body. The disability assessed by the Medical officer is not functional disability as the petitioner being an agriculturist, is unable to do the normal work and his functional disability will be more than 50%. The compensation is not adequately assessed and sought for enhancement.

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Learned counsel for the owner of the Autorikshaw has contended that the vehicle was holding valid policy at the time of accident and his liability has to be indemnified by the insurance company.

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Per contra, learned counsels appearing for the insurance company have contended that at the time of accident, the driver of the Autorikshaw did not possess valid driving licence. The insurance company can avoid its liability to pay the compensation on the ground of

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7 - NC: 2024:KHC:30424 MFA No. 2265 of 2013 C/W MFA No. 666 of 2013

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violation of terms and conditions of the policy and as such, the owner is liable to pay the compensation. It is further contended that the compensation assessed is on the higher side and the Tribunal has erroneously taken the notional income as Rs.5,000/-. For the year 2006, it shall not be more than Rs.3,000/- per month. No bank shall offer interest at the rate of 8% p.a., the

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Tribunal has awarded interest on the higher side and sought for exoneration of the insurance company from its liability to pay compensation.

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I have given my anxious consideration to the arguments addressed on both sides and also perused the records.

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The petitioner has produced as many as 21 documents, among them, Exs.P1 to P5 and P8 are the prosecution papers, the oral evidence relied on by the petitioner as well as the insurance company have been perused. Thus, it is clear that on 23.11.2006, at about

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9.30 p.m., there was an accident involving the

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8 - NC: 2024:KHC:30424 MFA No. 2265 of 2013 C/W MFA No. 666 of 2013

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petitioner with Autorikshaw bearing Reg.No.KA-08-

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Wound certificate at Ex.P6 and discharge summary at Ex.P7 point out that the petitioner has suffered following injuries:

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(i) Type-III B Open fracture Later Condyle (Rt) femur;

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(ii) Fracture of Patella (Rt.);

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(iii) Avulsion of Tibial Tuberasity;

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(iv) Type-IIIA fracture of Proximal tibia and

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(v) Quadriceps injury (Tendon)

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Medical records shows that the petitioner was

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under hospitalization from 24.11.2006 to 19.01.2007

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for 57 days and from 23.07.2007 to 06.08.2007 for a

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period of 15 days, in all for 72 days.

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PW.2-Dr.K.Maruthi is an Orthopedic Surgeon,

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who has assessed the displacement of the petitioner to an extent of 40% to the limb and 13% of the whole body. The Tribunal has taken opinion of the doctor and therefore assessment of 13% to the whole body is proper. The accident is of the year 2006. Petitioner

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9 - NC: 2024:KHC:30424 MFA No. 2265 of 2013 C/W MFA No. 666 of 2013

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was aged 36 years, doing agriculture. The Tribunal has taken notional income at Rs.5,000/-, which is on the higher side. Having regard to the RTC produced by the petitioner at Ex.P11, the notional income of the petitioner has to be taken not less than Rs.3,750/- for calculation purpose.

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The petitioner has suffered fracture of right femur, right patella, right tibia and avulsion (Tendon), the compensation assessed by the Tribunal towards pain and suffering, loss of amenities and discomfort and loss of income during laid up is on the lower side. The petitioner was under hospitalization for 72 days and hence the petitioner was kept away from discharging his work not less than 6 months. Hence, the loss of income during laid up would be Rs.22,500/(Rs.3,750/- x 6 months), towards pain and suffering at Rs.50,000/-, towards loss of amenities and discomfort at Rs.50,000/-, towards attendant charges at Rs.9,000/- for 72 days, towards conveyance at

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10 - NC: 2024:KHC:30424 MFA No. 2265 of 2013 C/W MFA No. 666 of 2013

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Rs.5,000/-, towards food and nourishment at

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Rs.10,000/- is assessed. Future medical expenses assessed by the Tribunal at Rs.10,000/- so also medical expenses of Rs.10,200/- are retained as it is.

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Having regards loss of future income is concerned, as discussed above, notional income is fixed at Rs.3,750/-, multiplier applicable is '15' and whole body disability is 13%. Calculation comes to Rs.3,750/-x12x15x13%=87,750/as against

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Rs.1,17,000/- as assessed by the Tribunal. Therefore, the petitioner is entitled for the compensation as under:

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Sl. No.	Particulars	Amount In (Rs.)
1.	Pain and sufferings	50,000/-
2.	Loss of amenities in life	50,000/-
3.	Medical Expenses	10,200/-
4.	Loss of future income	87,750/-
5.	Future medical expenses	10,000/-
6.	Loss of income during laid up period (Rs.3,750/-x6)	22,500/-
7.	Attendant, food and nourishment and conveyance charges	24,000/-
	Total	2,54,450/-
	Less: award of the Tribunal	2,22,200/-
	Enhanced compensation	32,250/-

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11 -

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NC: 2024:KHC:30424 MFA No. 2265 of 2013 C/W MFA No. 666 of 2013

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It is the just compensation which the petitioner is entitled in the facts and circumstances of the case.

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As regarding rate of interest is concerned, the Tribunal has awarded interest at the rate of 8% p.a., which is on the higher side. In view of Division Bench decision of this court in Ms.Joyeeta Bose and Ors. -vsVenkateshan.V. and Ors. in M.F.A.No.5896/2018 c/w M.F.A.Nos.4444/2018 and 4659/2018 (MV) DD 24.08.2020 with reference to Section 149(1) of Motor Vehicles Act, 1988, Rule 253 of Karnataka Motor Vehicles Rules, 1989 and Section 34 of Civil Procedure Code, at Para 52 has laid down principles regarding award of interest, it reads thus:

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"52.Thus, under Section 34 of CPC being squarely applicable to the interest awarded by the tribunal and Section 34 empowering the tribunal to award pendente lite interest and discretion being vested with the Court/Tribunal to award interest from the date of suit or petition is to the maximum extent of 6% p.a. or in other words, not exceeding 6% p.a., the contention raised by the learned Advocates appearing for the Insurance Company deserves to be accepted and accordingly, it is accepted. . . . . . . . . . . ."

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12 - NC: 2024:KHC:30424 MFA No. 2265 of 2013 C/W MFA No. 666 of 2013

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As seen from the catena of decisions, only in

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the cases where special reasons are recorded, higher

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rate of interest is awarded. Here in this case, the Tribunal has not assigned such reasons for awarding higher rate of interest. The interest awarded by the Tribunal at 8% per annum is not comparable to prevailing Bank rate of interest and it is on the higher side.

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As regarding liability is concerned,

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admittedly, the driver of the autorikshaw did not possess valid driving licence. There is policy issued subject to valid driving licence, thereby there is violation of terms and conditions of the policy. Hon’ble Apex Court in Pappu and others Vs. Vinod Kumar Lamba and another¹ while dealing with an accident of this nature and also considering the defence available to the Insurance Company under Section 149 (2) of the M.V. Act, laid down that when the Insurance

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1 2018 ACJ 690

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13 - NC: 2024:KHC:30424 MFA No. 2265 of 2013 C/W MFA No. 666 of 2013

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Company has taken a contention that the driver of the Autorikshaw did not possess valid and effective driving licence, it is for the Insurance Company to prove and establish that the driver of the Autorikshaw did not have a valid driving licence. If the defence is established, the Tribunal is right in absolving the Insurance Company from any liability for just reasons. In view of the position of law as such and dictum of the Hon'ble Apex Court, it is proper to direct the Insurance Company to deposit the compensation with liberty to recover the same from the owner of the autorikshaw in

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the same proceedings. Hence, the appeals deserve consideration, in the result, the following:

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ORDER

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i) The appeals are allowed-in-part ;

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ii) Impugned judgment and award is modified;

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iii) The petitioner would be entitled to enhanced compensation of Rs.32,250/-.

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iv) The owner of the Autorikshaw is liable to pay compensation with 6% interest p.a. excluding compensation awarded on the future medical expenses.

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v) Insurance Company is directed to deposit the total compensation within eight weeks from the date of receipt of certified copy of this judgment with liberty to recover the same from the owner of the Autorikshaw in the same proceedings;

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vi) Amount in deposit, if any, shall be transmitted to the Tribunal along with records forthwith.

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SD/(T.G. SHIVASHANKARE GOWDA) JUDGE

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MKM List No.: 1 Sl No.: 6

Sri Suryanarayanappa S/O Venkatappa v. Sri Chalapathi S/O Late K M Chowdappa

Case brief

What is this about?

What did the court decide?

Sri Suryanarayanappa S/O Venkatappa v. Sri Chalapathi S/O Late K M Chowdappa

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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