Cholamandalam Ms General Insurance Company Limited Vs Arunakumara

CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED, I^ST FLOOR, V.A KALBURGI NAGAR HUBLI, HEREIN REPRESENTED BY GOLDERN HEIGHT COMPLEX, RAJAJINAGARA, BENGALURU- 560 010, DIVISIONAL MANAGER (L).

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…APPELLANT

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(BY SRI. LINGARAJ H.S.,ADVOCATE)

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Digitally signed by ANNAPURNA G Location: HIGH COURT OF KARNATAKA

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AND:

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ARUNKUMARA,

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NOW AGED ABOUT 27 YEARS, S/O SHIVANANDAIAH, R/O HANUMANAKATTE VILLAGE, HOLALKERE TALUK CHITRADURGA DISTRICT.

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HANUMANTHAPPA, S/O NAGENDRAPPA, MAJOR, R/O VANI VILASAPURA HIRIYUR TALUK,

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NC: 2025:KHC:41251 MFA No. 3428 of 2022 C/W MFA.CROB No. 165 of 2022

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HC-KAR

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CHITRADURGA DISTRICT.

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…RESPONDENTS

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(BY SRI. SHIVAKUMARAPPA T.C.,ADVOCATE FOR R1, VIDE ORDER DATED 27.09.2024, NOTICE TO R2 IS DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.12.2021 PASSED IN MVC NO. 694/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, HOLALKERE, AWARDING COMPENSATION OF RS. 4,30,300/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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IN MFA.CROB NO. 165/2022

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BETWEEN:

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ARUNAKUMARA S/O SHIVANANDAIAH, AGED ABOUT 37 YEARS, AGRICULTURIST, R/O HANUMANAKATTE VILLAGE, HOLALKERE TALUK-577 526, CHITRADURGA DISTRICT.

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...CROSS OBJECTOR

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(BY SRI. SHIVAKUMARAPPA T.C.,ADVOCATE)

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AND:

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HANUMANTHAPPA S/O NAGENDRAPPA, MAJOR, RC OWNER OF LIGHT GOODS VEHICLE, REG NO.KA-16/D-2121 R/O VANI VILASAPURA, HIRIYUR TALUK-577 599 CHITRADURGA DISTRICT.

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THE MANAGER, CHOLAMANDALAM MS GENERAL

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HC-KAR

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INSURANCE CO.LTD., I^ST FLOOR, V.A. KALBURGI NAGAR, HUBLI-580 029.

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...RESPONDENTS

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(BY SRI. LINGARAJ H.S., ADVOCATE FOR R2, VIDE ORDER DATED 27.09.2024, NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA.CROB IS FILED UNDER ORDER XLI RULE 22 OF THE CPC READ WITH SECTION 173(1) OF MOTOR VEHICLE ACT, AGAINST THE JUDGMENT AND AWARD DATED 20.12.2021 PASSED IN MVC NO. 694/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, HOLALKERE, PARTLY ALLOWING THE CALIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL AND MFA CROB., COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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MFA and MFA.CROB arises out judgment and award dated 20.12.2021 passed by the learned Senior Civil Judge, MACT, Holalkere, (for short 'the Tribunal') in MVC.No.694/2020.

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4 - NC: 2025:KHC:41251 MFA No. 3428 of 2022 C/W MFA.CROB No. 165 of 2022

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HC-KAR

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MFA.No.3428/2022 has been filed by the insurer

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and MFA.CROB.No.165/2022 has been filed by the claimant seeking enhancement of compensation.

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Since both appeal and MFA.Crob arises out of the

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common judgment and award, it is taken up together for disposal.

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The parties are referred to as per their ranking

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before the Tribunal.

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It is the contention of the claimant that on 29.01.2020, at about 6.00 p.m the petitioner was riding motor bike bearing registration No.KA-16/EG-0691 and met with an accident near Maruthi Nagar, Holalkere Taluk, due to rash and negligent driving of the driver of the light goods vehicle bearing registration No.KA-16/D-2121; as a result, the claimant sustained fracture of both the bone of left leg along with other injuries. The claimant was aged about 33 years, he was an agriculturist, earning Rs.30,000/- per month. Due to the injuries sustained in the accident, he has

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HC-KAR

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suffered permanent disability. With these reasons, he prayed to award compensation of Rs.30,00,000/-.

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The respondent No.1 was the owner and respondent No.2 was the insurer of the offending motorcycle. Both the respondents have appeared before the Tribunal and filed their respective written statements, denying the averments made in the petition. Respondent No.1 contended that the said vehicle was insured with respondent No.2, in the event the Tribunal awarded the compensation, respondent No.2 is liable to pay the same. Respondent No.2 denied its liability to pay the compensation due to breach of terms and conditions of the policy of insurance. With these reasons, it prayed to dismiss the claim petition.

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From the rival contentions of the parties, the Tribunal framed necessary issues.

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The claimant to prove his case, examined two witnesses as PW-1 and PW-2 and marked 25 documents, as per Exs.P-1 to P-25.

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HC-KAR

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The Tribunal after hearing both parties and

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appreciating the evidence on record, by the impugned

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judgment, awarded the following amount of compensation:

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Particulars	Amount in Rs.
Painand suffering	20,000
Medical expenses	16,846
Attendant charges	6,000
Conveyance charges	5,000
Food, diet and nourishment charges	5,000
Loss of income during laid up period	14,000
Loss of future earning capacity on	3,58,400
account of permanent physical disability
Loss of amenities and enjoyment of life	5,000
Total	4,30,246/-

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10. The Tribunal awarded total sum of Rs.4,30,246/-

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as compensation and directed respondents to deposit the same. The insurer being aggrieved by the said award passed by the Tribunal, preferred MFA No.3428/2022 and the claimant has filed the MFA.Crob. No.165/2022.

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11. Heard the arguments of the learned counsel appearing for the claimant as well as the insurer.

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HC-KAR

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12. T he contention of the learned counsel for the insurer is that PW-1, in his cross-examination, admitted that he had no driving licence to drive a two-wheeler at the time of accident. The Tribunal has not considered this fact while answering issue No.1. One can infer that accident occured due to contributory negligence of the rider of offending vehicle. Hence, it may be held that accident occurred due to contributory negligence of the rider of the motor cycle and driver of the car. He also argued that the compensation awarded is excessive and hence just and reasonable amount of compensation may be granted.

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13. Learned counsel for claimant and respondent in MFA.Crob contends that the Tribunal has not assessed the income of the claimant properly. As per the evidence of PW2, the claimant has suffered 45% of permanent disability to the left lower limb, but the Tribunal has taken 13.33% to the whole body. The Tribunal at least should have taken 1/3 of it i.e. 15%. The learned counsel further contended that the compensation awarded under other heads is on the lower side and requires enhancement. He further contended that

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HC-KAR

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riding a vehicle without a licence does not mean that it was ridden in a rash and negligent manner. It is true that PW-1 admitted that he was riding the vehicle without a valid driving licence. However, a Co-ordinate Bench of this Court, in the judgment and award dated 16.07.2025 in MFA No. 617/2021, held that driving without a licence constitutes an offence and in the absence of supporting material, it cannot be presumed that driver drove the vehicle in negligent manner. With these reasons, prayed to enhance the compensation and dismiss the appeal filed by the insurer.

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14. The fact of the accident and injury sustained by the claimant in the said accident are not in dispute. Undisputedly, the claimant was riding the two wheeler at the time of the accident without holding driving licence and the accident occurred due to collision between two vehicles.

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14(a). In this case, the charge sheet and enclosures do not disclose that claimant was riding the vehicle in a rash and negligent manner. He was not charge sheeted for the same. In his cross-examination,

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HC-KAR

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nothing was brought out to show that due to his negligence accident occurred. I n the absence of such evidence, mere fact that he did not possess a licence cannot be a ground to hold that he contributed to the accident in question.

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15. The Hon'ble Apex Court in the case of Sudhir

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Kumar Rana vs. Surinder Singh and others¹ held that

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"if a person is driving a vehicle without licence, he commits an offence. The same, by itself, may not lead to a finding of negligence as regards the accident."

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16. I n view of the above reasons, the contention of the insurer that the rider of the vehicle contributed to the accident merely because he did not have a valid and effective driving licence at the time, is not tenable.

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17. The Tribunal in the impugned judgment assessed

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the age of the claimant as 33 years at the time of the accident, took his income as Rs.14,000/- per month, applied

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1 (2008) 12 SCC 436

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HC-KAR

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the multiplier of `16' assessed the disability as 13.33% to the whole body and awarded the compensation.

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18. The claimant examined PW-2. In his evidence, he has stated that claimant has suffered permanent disability to an extent of 45.3% to the left lower limb; when it is compared to the whole body, it shall be 1/3^rd . C onsidering the age, occupation and fractures sustained by the claimant, his permanent disability can be assessed as 15% to the whole body. On re-appreciating the evidence available on record, the amount of compensation under some of the heads are on the lower side.

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The claimant contended that he was earning Rs.25,000/- per month, but he was unable to prove the same. Following the notional income chart prepared by the Karnataka State Legal Services Authority, the income of the claimant is taken as Rs.14,500/- per month. Undisputedly multiplier applicable to this case is '16'. On the basis of the same, loss of future earning capacity due to permanent disability is assessed.

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NC: 2025:KHC:41251 MFA No. 3428 of 2022 C/W MFA.CROB No. 165 of 2022

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HC-KAR

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For the aforesaid discussions, the claimant is

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entitled to following amount of compensation :

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Particulars	Amountin Rs.
Pain and suffering	50,000
Medical expenses	16,846
Attendant expenses, special diet and conveyance charges	25,000
Loss of income during laid up period	58,000
(Rs.14,500 x4=58,000/-)
Loss of income due to permanent disability	4,17,600
(Rs. 14,500 x 12 x 16 x 15%)
Loss of amenities and future	50,000
unhappiness
Total	6,17,446
Amount awarded by the Tribunal	4,30,300
Enhancement	1,87,146
Rounded off	1,87,000

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The claimant is also entitled to interest at the rate of

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6% p.a. from the date of petition till the date of realisation.

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Respondent Nos.1 and 2 are jointly and severally

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liable to pay the said amount of compensation.

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In the result, I proceed to pass the following:

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NC: 2025:KHC:41251 MFA No. 3428 of 2022 C/W MFA.CROB No. 165 of 2022

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HC-KAR

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ORDER

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i) MFA.No.3428/2022 is dismissed .

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ii) MFA.CROB.No.165/2022 is allowed in

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part .

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iii) The judgment and award dated 20.12.2021 passed by the Senior Civil Judge and AMACT, Holalkere in MVC No.694/2020 stands modified.

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iv) The claimant is entitled to enhanced compensation of Rs.1,87,000/- with interest at the rate of 6% p.a., from the date of petition till its realization, excluding the delayed period of 130 days.

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v) The respondent No.2-Insurance Company shall deposit the amount within a period of six weeks from the date of award.

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vi) The remaining portion of the award of the Tribunal shall remain unaltered.

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vii) Whatever the amount deposited by the insurer in MFA.No.3428/2022 shall be transmitted to the Tribunal for disbursement.

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