Partly allowed

Iffco Tokio General Insurance Co. Ltd. v. Sri.Avinash N.B. @ Avinash

Karnataka HC6 Mar 2024MFA/2353/2022

Case brief

AI extract

What is this about?

Cross-appeals by insurer and claimant over compensation for injuries in an auto-TATA ACE collision were decided together. The court raised notional income to Rs.18,000 per month, removed future prospects, adjusted ancillary heads and added medical expenses, yielding total compensation of Rs.14,47,862 at 6% interest.

What did the court decide?

Insurer's appeal dismissed; claimant's appeal allowed in part; award modified to Rs.14,47,862 payable with 6% p.a. interest within four weeks.

Iffco Tokio General Insurance Co. Ltd. Vs… — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC:9475 MFA No. 2353 of 2022 C/W MFA No. 2984 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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MISCELLANEOUS FIRST APPEAL NO. 2353 OF 2022 (MV-I)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 2984 OF 2022 (MV-I) IN MFA NO. 2353/2022

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BETWEEN:

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IFFCO TOKIO GENERAL INSURANCE CO. LTD., CUSTOMER SERVICE CENTER, SHANTHI TOWERS 5TH FLOOR, 3RD MAIN, NO.141, EAST OF NGEF LAYOUT, KASTURI NAGAR, BENGALURU - 84, REPRESENTED BY ITS CHIEF MANAGER CLAIMS-LEGAL.

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…APPELLANT

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(BY SRI. MURALIDHARA N, ADVOCATE)

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Digitally signed by CHAITHRA P Location: High Court of Karnataka

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AND:

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SRI. AVINASH N.B. @ AVINASH, S/O BOREGOWDA, AGED ABOUT 30 YEARS, R/AT NO.147, NARAHALLY VILLAGE, MELUKOTE HOBLI, PANDAVAPURA TALUK, MANDYA DISTRICT - 571 431.

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SRI. BOREGOWDA G.M., S/O MAHALINGU, R/O: GARVALE VILLAGE POST, DUDDA HOBLI, MANDYA TALUK

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NC: 2024:KHC:9475 MFA No. 2353 of 2022 C/W MFA No. 2984 of 2022

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AND DISTRICT - 560 064.

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…RESPONDENTS

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(BY SRI. M.Y. SREENIVASAN, ADVOCATE FOR R1; VIDE ORDER DATED 10.03.2022 NOTICE TO R2 IS DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.11.2021 PASSED IN MVC NO.836/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, PANDAVAPURA, AWARDING COMPENSATION OF RS.14,28,722/- WITH INTEREST AT 6% P.A. FROM THE DATE OF THE PETITION TILL THE DATE OF DEPOSIT OF THE AWARD AMOUNT.

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IN MFA NO. 2984/2022

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BETWEEN:

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AVINASH N.B. @ AVINASH, S/O BOREGOWDA, AGED ABOUT 30 YEARS, R/AT NO.147, NARAHALLY VILLAGE, MELUKOTE HOBLI, PANDAVAPURA TQ MANDYA DISTRICT - 571 439.

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…APPELLANT

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(BY SRI. SREENIVASAN M.Y, ADVOCATE)

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AND:

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BOREGOWDA G.M., S/O MAHALINGU, MAJOR, R/AT GORAVALE VILLAGE AND POST, DUDDA HOBLI, MANDYA TQ AND DIST - 571 422.

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THE BRANCH MANAGER (LEGAL CLAIMS), IFFCO TOKIO GENERAL INS. CO. LTD.,

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3 - NC: 2024:KHC:9475 MFA No. 2353 of 2022 C/W MFA No. 2984 of 2022

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CUSTOMER SERVICE CENTRE, SRI SHANTHI TOWERS, 5TH FLOOR, 3RD MAIN, NO.141, EAST ON NGEF LAYOUT, KASTHURI NAGAR, BENGALURU - 560 084.

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…RESPONDENTS

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(BY SRI. MURALIDHARA N., ADVOCATE FOR R2; VIDE ORDER DATED 06.03.2024, NOTICE TO R1 IS DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.11.2021 PASSED IN MVC NO.836/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, PANDAVAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These appeals are filed challenging the judgment and award dated 26.11.2021 passed by the Senior Civil Judge and JMFC, Pandavapura (for short, 'the tribunal') in MVC.No.836/2020.

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MFA.No.2353/2022 is preferred by the Insurance

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Company seeking to set-aside the judgment and award passed by the tribunal whereas MFA.No.2984/2022 is preferred by the claimant seeking enhancement of

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compensation being dissatisfied with the meager

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compensation awarded by the tribunal.

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Parties to the appeal shall be referred to as per their status before the Tribunal.

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Brief facts of the case are as under:

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That on 30.06.2020 at about 3.15 to 3.20 p.m., the claimant was driving auto bearing registration No.KA-03AC-3832 from Shambhunahalli towards Narahally on Pandavapura-Shambhunahalli road near Jalli Crusher. At that time, the driver of TATA ACE vehicle bearing registration No.KA-11-B-6088 came from the opposite direction with high speed in a rash and negligent manner and dashed against the auto of the claimant. Due to the said impact, the auto was toppled and badly damaged and the claimant suffered grievous injuries to his left leg femur bone. He was immediately shifted to MIMS Hospital, Mandya for treatment. Thereafter, to B.G.S.Apollo Hospital, Mysuru and later to Narayana Multi-specialty Hospital, Mysuru, wherein he took treatment as an

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inpatient for 18 days and underwent surgical procedure by insertion of implants. The claimant spent more than Rs.10,00,000/- towards treatment and medical expenses and Rs.2,00,000/- towards food, attendant, transport and other incidental expenses.

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4.1 It is stated that the claimant was hale and healthy prior to the occurrence of accident. He was owning and running auto on hire and earning an income of Rs.30,000/- per month. Due to the occurrence of accident and injuries suffered, the claimant is unable to do his work normally as he was doing prior to the occurrence of accident. In view of injuries suffered and financial expenditure expended, the claimant filed a claim petition seeking compensation.

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4.2 On service of notice, respondent Nos.1 and 2 appeared through their counsel and filed their respective statement of objections denying the averments made in the claim petition including age, avocation, income and negligence attributed against the driver of the offending

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vehicle i.e., TATA ACE. It is also pleaded that the accident occurred due to the negligence of the claimant and not because of the rashness and negligence of the driver of the TATA ACE vehicle.

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4.3 Respondent No.1-owner of the offending vehicle pleaded that the vehicle is insured with respondent No.2Insurance Company and hence, Insurance Company would have to indemnify, if any liability would be fastened on him, whereas the Insurance Company sought for dismissal of the claim petition on the ground that there was no negligence on the part of the driver of the TATA ACE, so also, liability is to be fastened on the auto rickshaw and also pleaded that the driver of the offending vehicle i.e., TATA ACE did not possess a valid and effective driving licence as on the date of occurrence of accident. Accordingly, sought for dismissal of the claim petition.

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4.4 On the basis of pleadings, the tribunal framed relevant issues for consideration.

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4.5 In order to substantiate the issues and to

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establish the case, the claimant got examined himself as PW.1 and one witness as PW.2 and got marked documents as Exs.P1 to P32 and through Court Commissioner, the Doctor has examined as CW.1 and got marked documents as Exs.C1 to C5. On the other hand, respondents did not adduce their evidence either oral or documentary.

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4.6 On the basis of material evidence, both oral and documentary and on hearing the submissions of learned counsel for both parties, the tribunal awarded compensation of Rs.14,28,722/- with interest @ 6% p.a. and respondent No.2 being the insurer was directed to pay the amount within 30 days from the date of the award.

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4.7 The claimant as well as the Insurance Company

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being dissatisfied and aggrieved by the judgment and award are before this Court challenging the same on several grounds urged in their respective appeals.

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8 - NC: 2024:KHC:9475 MFA No. 2353 of 2022 C/W MFA No. 2984 of 2022

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It is the vehement contention of the learned counsel for claimant that the income assessed by the tribunal is on the lower side and the same requires to be enhanced. He further contends that the tribunal has awarded meagre compensation under other heads, which calls for interference at the hands of this Court. Accordingly, he seeks enhancement of compensation.

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Per contra , learned counsel for Insurance

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Company vehemently contends that awarding of 40% towards future prospects in the present case is unwarranted, arbitrary and the same requires to be set aside. The tribunal has erred in awarding exorbitant compensation. Hence, he seeks to set-aside the judgment and award passed by the tribunal.

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Having heard the learned counsel for claimant and

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learned counsel for Insurance Company, perused the impugned judgment and award, it is seen that the claimant has produced the documents as Exs.P1 to P32 out of which, Exs.P1 to P7 are the Police records, which

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clearly depict filing of FIR and laying of charge sheet against the driver of the offending vehicle i.e., TATA ace and same has not been challenged or controverted. Therefore, the tribunal rightly attributed the negligence against the driver of the offending vehicle. Exs.P8 to P32 are the medical records, the copies of driving licence, aadhar card, Experience Certificate and other documents.

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Now coming to the aspect of age, avocation, income and disability, it is stated that age of the claimant was 28 years as on the date of occurrence of accident and the tribunal has rightly applied the multiplier at ‘17', which does not call for interference. The tribunal taken the income of Rs.15,000/- per month. Considering the fact that the claimant was an auto driver by profession having his own vehicle and earning an income of Rs.30,000/- per month, therefore, he cannot be equated with the notional income chart as the chart is the only standard measure where there is absolutely no income proof produced or substantiating documents to show the proof of income. In

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the present case, the claimant was earning Rs.30,000/per month, but nothing is placed on record to prove the same. The fact also remains that the Court cannot expect the person involved in unorganized sector to produce the proof of income. Hence, the Court will have to do the guess work to arrive at the income based on age, avocation and materials placed on record. In the present case, the claimant has produced the documents at EXs.P29 and P30, which depict the claimant was possessing a valid and effective driving licence to drive an auto rickshaw and registered certification is also enclosed.

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Considering all these aspects, this Court deems it appropriate to take the income of the claimant at Rs.18,000/- per month.

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The tribunal awarded future prospects at 40%. I am in agreement with the learned counsel for the Insurance Company that CW.1 -Doctor has opined the disability to the extent of 49.71% to the whole body, the same is divided by 1/3^rd , which would come to 16.57%

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11 - NC: 2024:KHC:9475 MFA No. 2353 of 2022 C/W MFA No. 2984 of 2022

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and the same cannot be treated as the disability to award future prospects. Hence, agreeing with the arguments putforth by the learned counsel for the Insurance Company, awarding of future prospects by considering the disability is set aside.

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The next question would arise is what is the disability to be assessed, CW.1-Doctor has opined the disability to an extent 49.71% to the whole body, which is divided into three parts, which would come to 16.57% and the same is rounded off to 17%. Hence, the disability would be taken at 17% as against 15%. Therefore, the claimant would be entitled to reduced compensation of Rs.6,24,240/- (Rs.18,000/- x 12 x 17 x 17%) towards loss of future income as against Rs.6,42,600/- awarded by the tribunal.

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The tribunal awarded Rs.40,000/- towards pain, shock and suffering. However, I deem it appropriate to award an additional amount of Rs.10,000/-. In all, the

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12 - NC: 2024:KHC:9475 MFA No. 2353 of 2022 C/W MFA No. 2984 of 2022

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claimant would be entitled to Rs.50,000/- under this head.

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The tribunal awarded Rs.45,000/- towards loss of income during laid up period. Considering the magnitude of injuries, the claimant would require atleast three months period to recuperate and to get back to his normal day to day activities. Therefore, claimant would be entitled to Rs.54,000/- (Rs.18,000/- x 3) under the head loss of income during laid up period.

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The tribunal awarded Rs.40,000/- towards attendant charges, extra diet and conveyance, the same requires to be reduced to Rs.18,000/- as the claimant was inpatient for 18 days.

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Towards medical expenses, Rs.6,01,122/- is awarded by the tribunal on the basis of actual bills produced by the claimant, which does not call for interference and the same is retained.

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During the course of arguments, the learned counsel for claimant has filed an application under Order XLI Rule 27 annexing certain medical records for having taken treatment from 03.02.2022 to 05.02.2022, the total amount comes to Rs.40,493/- and the same shall be rounded off to Rs.40,500/- with consent. Therefore, this Court deems it appropriate to award an additional amount of Rs.40,500/- towards additional medical expenses.

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The tribunal awarded Rs.40,000/- towards loss of amenities, which does not call for interference and the same is retained.

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The tribunal awarded Rs.20,000/- towards future medical expenses, which does not call for interference and the same is retained.

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In view of the above, the claimant would be entitled to a total compensation of Rs.14,47,862/- as against Rs.14,28,722/- as mentioned in the table below:

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Heads	Amount in Rs.
Pain, shock and suffering	50,000-00

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14 - NC: 2024:KHC:9475 MFA No. 2353 of 2022 C/W MFA No. 2984 of 2022

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Loss of income during laid up period	54,000-00
Attendant charges, extra diet and conveyance	18,000-00
Medical expenses	6,01,122-00
Additional medical expenses	40,500-00
Loss of future income	6,24,240-00
Loss of amenities	40,000-00
Future medical expenses	20,000-00
TOTAL	14,47,862-00

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Now coming to the next aspect of contributory negligence fastened as against the claimant, who was the driver of the auto rickshaw, learned counsel for Insurance Company contends that the accident has occurred due to the negligence of the claimant himself. Hence, the entire negligence has to be fastened against him. It is apparently seen that there is no FIR and charge sheet laid against the driver of the auto rickshaw, but the same is laid against the driver of the offending vehicle i.e. TATA ACE and the same has not been questioned by the driver of the offending vehicle i.e. TATA ACE before any forum. When there is no criminal case registered, it cannot be said that there is contributory negligence unless it is proved that the

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driver of the auto rickshaw himself contributed to the occurrence of the accident by placing cogent materials before the Court either oral, documentary or by way of cross examination. Therefore, I do not find any reason to interfere with the finding of the tribunal with regard to fastening the entire liability on the driver of the offending vehicle i.e., TATA ACE.

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Accordingly, I pass the following:

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ORDER

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i) The appeal preferred by the Insurance Company is dismissed;

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ii) The appeal preferred by the claimant is allowed-in-part;

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iii) The judgment and award dated 26.11.2021 passed by Senior Civil Judge and JMFC, Pandavapura in MVC.No.836/2020 is modified;

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iv) The claimant is entitled to a total compensation of Rs.14,47,862/- as against Rs.14,28,722/- awarded by the tribunal;

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v) The enhanced compensation amount shall be paid with interest @ 6% p.a. within a period

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16 -

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of four weeks from the date of receipt of a copy of this judgment;

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vi) The compensation amount shall be released in favour of the appellant-claimant upon proper verification;

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vii) The amount in deposit before this Court, if any, by the Insurance Company shall be transmitted to the jurisdictional tribunal forthwith;

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viii) All other terms and conditions stipulated by the tribunal shall stand intact.

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Sd/JUDGE

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CPN

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CT: BHK

Iffco Tokio General Insurance Co. Ltd. v. Sri.Avinash N.B. @ Avinash

Case brief

What is this about?

What did the court decide?

Iffco Tokio General Insurance Co. Ltd. v. Sri.Avinash N.B. @ Avinash

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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