K P Ramalingu Vs M/S Icici Lambardo General Insurance Co.Ltd.

K P RAMALINGU S/O PANCHALINGU AGED ABOUT 34 YEARS R/AT NO.365/A, 1^ST MAIN ROAD 2^ND CROSS, MANJUNATHNAGAR BENGALURU-560032 PRESENT ADDRESS, NO.63, K R MILL COLONY I KESARE, MYSURU-570003

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(BY SRI. N KUMAR, ADVOCATE)

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AND:

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M/S ICICI LAMBARDO GENERAL INSURANCE CO.LTD., R/BY ITS MANAGER PRESENTLY AT NO.121, 9TH FLOOR THE ESTATE, DICKENSON ROAD BENGALURU-560042

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…APPELLANT

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VENKATESH B V S/O VARADAPPA MAJOR

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NO.6, VENKATESHWARA NILAYA N/R SM TEMPLE,

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HC-KAR

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CHIKKABIDARAKALLU, NAGASANDRA POST BENGALURU-560032

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…RESPONDENTS

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(BY SRI. VINOD PRASAD, ADVOCATE FOR R2)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.11.2017 PASSED IN MVC NO.5674/2013 ON THE FILE OF THE 22ND ADDITIONAL SMALL CAUSES JUDGE & 20TH ACMM & MEMBER, MACT, BENGALURU (SCCH-24), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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IN MFA NO. 1251/2018

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BETWEEN:

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VENKATESH B V S/O VARDAPPA AGED ABOUT 50 YEARS R/AT NO 6, VENKATESHWARA NILAYA, NEAR S M TEMPLE, CHIKKABIDARAKALLU, NAGASANDRA POST, BANGALORE - 560032 OWNER OF THE LORRY NUMBER KA- 06-1687

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...APPELLANT

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(BY SRI. VINOD PRASAD, ADVOCATE)

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AND:

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ICICI LOMBARD INSURANCE LTD NO. 69, SVR COMPLEX, HOSURE ROAD, MADIVALA BANGALORE- 560068 (POLICY NUMBER 3003/A/1-18452879/00/000 VALID FROM 24.06.2013 TO 23.06.2014

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SRI K P RAMALINGU S/O PANCHALINGU AGED ABOUT 33 YEARS R/AT NO 365/A, 1ST MAIN, 2ND CROSS, MANJUNATH NAGAR

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HC-KAR

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BANGALORE - 560032 PRESENT ADDRESS, NO. 63, K R MILL COLONY - 1, KESARE MYSORE - 570003

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...RESPONDENTS

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(BY SRI. B PRADEEP, ADVOCATE FOR R1 SRI. N KUMAR, ADVOCATE FOR R2)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.11.2017 PASSED IN MVC NO.5674/2013 ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSES JUDGE AND XX ACMM AND MEMBER MACT, BENGALURU (SCCH-24), AWARDING COMPENSATION OF RS.4,61,250/- WITH INTEREST AT 8% P.A. (EXCLUDING FUTURE MEDICAL EXPENSES) FROM THE DATE OF PETITION, TILL THE DATE OF REALIZATION AND ETC.

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IN MFA NO. 3238/2018

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BETWEEN:

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ICICI LOMBARD INSURANCE LTD.., REGIONAL OFFICE SVR COMPLEX, NO.69, SVR COMPLEX, HOSUR ROAD, MADIVALA BENGALURU - 68 NOW AT 9TH FLOOR, DICKENSON ROAD, M.G.ROAD, BENGALURU - 560 042 BY ITS MANAGER (LEGAL)

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...APPELLANT

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(BY SRI. PRADEEP B, ADVOCATE)

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AND:

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K.P.RAMALINGU S/O PANCHALINGU, NOW AGED ABOUT 34 YEARS, NO. 365/A, 1ST MAIN ROAD, 2ND CROSS, MANJUNATHANAGAR, BENGALURU - 32 PRESENTLY R/AT NO. 63, K.R.MILL COLONY-1, KESARE, MYSURU - 570 003.

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VENKATESH B V

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HC-KAR

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S/O VARADAPPA R/O NO.6, VENKATESHWARA NILAYA N/R SM TEMPLE, CHIKKABIDARAKALLU NAGASANDRA POST BENGALURU - 560 032.

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...RESPONDENTS

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(BY SRI. N KUMAR, ADVOCATE FOR R1 NOTICE TO R2 IS HELD SUFFICIENT V/O DTD 05.04.2021)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.11.2017 PASSED IN MVC NO.5674/2013 ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSES JUDGE, & XX ACMM, MEMBER, MACT, BENGALURU, (SCCH-24), AWARDING COMPENSATION OF RS.4,61,250/- WITH INTEREST @ 8% P.A. (EXCLUDING FUTURE MEDICAL EXPENSES) FROM THE DATE OF PETITION TILL REALIZATION AND ETC.

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

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CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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All the present appeals are filed under Section 173(1) of the Motor Vehicles Act, 1988¹ challenging the judgment and award dated 16.11.2017 passed in MVC No.5674/2013 by the XXII Additional Small Causes Judge and XX Additional Chief Metropolitan Magistrate & MACT., Bengaluru (SCCH-24)² . Hence, they are taken up together for consideration.

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1 Hereinafter referred as to ‘Act’

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2 Hereinafter referred to as the ‘Tribunal’

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HC-KAR

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The Tribunal by its judgment and award dated 16.11.2017 partly allowed the claim petition and awarded a total compensation of `4,61,250/- together with interest @ 8% per annum.

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For the sake of convenience, the parties herein are referred as per their rank before the Tribunal.

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The relevant factual matrix in a nutshell leading to the present appeals is that, claiming compensation for the injuries sustained in a road traffic accident which occurred on 29.08.2013, the claimant instituted the claim proceedings. It is the case of the claimant that when he was traveling along with his wife and son in a motorcycle, a lorry being driven by its driver in a rash and negligent manner, hit the motorcycle in which the claimant was traveling causing the accident in question. The insurer and owner of the lorry were arrayed as respondent Nos.1 and 2 respectively in the claim proceedings. The insurer filed statement of objections and contested the claim proceedings. The owner of the vehicle was placed exparte before the Tribunal. The claimant examined himself as PW.1 and the Doctor examined as PW.2. The insurer examined

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the Investigating Officer as RW.1, a Doctor as RW.2 and its officer as RW.3. The Tribunal by its judgment and award dated 16.11.2017 partly allowed the claim petition and awarded a total compensation of `4,61,250/- together with interest @ 8% per annum. With regard to the negligence, the Tribunal noticing that the driver of the lorry was intoxicated at the time of the accident held that the owner of the lorry was negligent to the extent of 25% and hence, fastened the liability on the insurer to pay 75% of the compensation awarded and the owner to pay 25%.

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Being aggrieved, the claimant has filed MFA No.6618/2018 seeking for enhancement of compensation. The owner has filed MFA No.1251/2018 challenging the finding of the Tribunal fixing the liability on him to the extent of 25%. The insurer has filed MFA No.3238/2018 to set aside the finding fastening 75% of the compensation.

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Heard the submissions of learned counsel

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Sri N. Kumar for the claimant, learned counsel Sri Vinod Prasad for owner and learned counsel Sri B. Pradeep for the insurer. Perused the records of the Tribunal.

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HC-KAR

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Learned counsel for the insurer assailing the finding on negligence recorded by the Tribunal contends that, having regard to the finding of the Tribunal that the driver of the offending lorry was under the influence of alcohol, the entire liability to pay the compensation awarded ought to have been fastened on the owner of the vehicle. It is further contended that the compensation awarded under various heads is on the higher side as also the disability assessed by the Tribunal and the rate of interest awarded.

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Learned counsel for the owner assailing the finding on negligence of 25% fastened on the owner contends that the only document which indicated that the driver of the lorry was under the influence of alcohol is the certificate issued by the Hospital (Ex.R3) which does not in any manner satisfy the criteria as stipulated under Section 185 (a) of the Act, in the absence of which, the finding on negligence recorded by the Tribunal is erroneous.

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The learned counsel for the claimant supports the contentions putforth by the learned counsel for the owner with regard to the negligence and further contends that the

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HC-KAR

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compensation awarded by the Tribunal under various heads is on the lower side.

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The submissions of the learned counsels have been considered and the material on record, including the records of the Tribunal, have been perused. The questions that arise for consideration in the present appeal are:

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i) Whether the finding of the Tribunal on negligence is erroneous and liable to be interfered with?

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ii) Whether the compensation awarded by the Tribunal is just and proper?

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Re: Question No.1

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The insurer in the statement of objections filed before the Tribunal has specifically contended that the driver of the offending lorry drove the same in an intoxicated condition and that the owner of the vehicle having willfully entrusted the insured vehicle to the driver knowing fully well that the driver is a person habituated to consuming alcohol, the insurer is not liable to pay the compensation awarded. The insurer has examined the investigating officer (RW.1), a doctor (RW2) and its official (RW.3). The charge sheet (Ex.P4) discloses that the driver of the offending lorry has been charge sheeted under

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HC-KAR

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Section 185 of the Act. RW.1 has deposed regarding the same. Ex.R1 and R2 are the copies of the communication dated 29.08.2013 written by the jurisdictional police authorities to the Primary Health Centre, T. Dasarahalli with regard to the examination of the Driver. Ex.R3 is the communication dated 29.08.2013, written by the Sanjeevini Hospital, Bengaluru to the Inspector of Police, Peenya Police Station wherein the Doctor has intimated the Police authorities of having examined the driver and noticed that his ‘ breath smells of alcohol’ .

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At this juncture, it is relevant to notice Section 185(a) of the Act which reads as follows:

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185. Driving by a drunken person or by a person under the influence of drugs. – Whoever, while driving, or attempting to drive, a motor vehicle.-

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(a) has, in his blood, alcohol exceeding 30 mg.per 100 ml. of blood detected in a test by a breath analyzer [or in any other test including a laboratory test,]

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(emphasis supplied)

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Admittedly, in the present case, no test has been

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conducted on the driver so as to ascertain the extent of alcohol detected in his blood.

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Learned counsel for the insurer places reliance on the finding of the Tribunal whereunder, it has been held that having

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regard to the statement made by the driver in the criminal proceedings where he has admitted his guilt, the driver’s admission of having consuming alcohol has been adequately proved. In the present case, it is relevant to notice that the statement made by the driver in the criminal proceedings would not in any manner aid the case of the insurer for the purpose of attributing negligence since, in order to demonstrate that the driver was a ‘drunken person’, the criteria as stipulated under Section 185(a) of the Act would be required to be satisfied with. In the present case, the said criteria not having been satisfied, the question of attributing any negligence to the owner of the vehicle by attributing a finding that the driver was drunk at the time of the accident does not arise. It is also relevant to note that the aspect of the driver having alleged to have been in a ‘drunken state’ is the only factor for the finding of contributory negligence by the Tribunal. Hence, the finding of the Tribunal recording 25% of contributory negligence on the owner of the vehicle is erroneous and liable to be interfered with.

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In view of the discussion made above, it is just and proper that the finding of negligence be held as 100% on the

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HC-KAR

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driver of the lorry and consequently, the insurer is liable to satisfy the entire compensation awarded in the present case. Hence, question No.1 is answered in the affirmative.

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Re: Question No.2:

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16. The claimant was aged 29 years as on the date of the accident and the appropriate multiplier assessed by the Tribunal as ‘17’ is just and proper. It is averred that the claimant was doing lathe work. The address of the employer is also stated in the claim petition and it is averred that the claimant was earning 18,000/- per month. A salary certificate dated 24.12.2013 (Ex.P8) is produced in proof of the same. It is forthcoming from Ex.P8 that the same is the certificate issued by the Proprietor of M.D. Press Tools and Components, wherein it is stated that the claimant was drawing a salary of 17,000/- to 18,000/- per month including over time. The Tribunal did not accept the contention of the claimant with regard to income on the ground that the employer has not been examined to prove Ex.P8 and accordingly assessed the income of the claimant as notional income at `8,000/- per month.

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Although it is the vehement contention of the learned counsel for the claimant that the claimant being a skilled worker and being employed as is forthcoming from Ex.P8 the salary as asserted ought to be assessed, it is relevant to note that the finding of the Tribunal holding that Ex.P8 cannot be relied upon, in the absence of the employer of the claimant or the signatory to Ex.P8 being examined is just and proper. The vehement contention of the learned counsel for the claimant that the claimant being a skilled worker, a higher quantum of income is to be assessed is also not liable to be accepted since apart from Ex.P8, there is no other material produced by the claimant to demonstrate that he is a skilled worker. In view of the aforementioned, the finding of the Tribunal assessing the income of the claimant at `8,000/- is just and proper.

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It is forthcoming from the wound certificate (Ex.P3), discharge summary (Ex.P7) and other medical evidence on record that the claimant has sustained crush injury on the left foot and other injuries. The claimant was treated as an inpatient for a total period of 18 days. The testimony of Doctor (PW.2) discloses that the great toe as well as the 2^nd to 4^th toe

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of the left leg of the claimant has been amputated. PW.2 has further deposed that there is loss of power in the left ankle as also the stability has been affected. PW.2 further deposes that the left forefoot of the claimant is disfigured and skin grafting has been done. That the claimant does not fit into any proper footwear and an amputation stump is to be used to enable him to wear proper footwear. The photographs (Ex.P15) also disclose the condition of the foot of the claimant. The Doctor has deposed that the left lower limb disability of the claimant is about 53% and the whole body disability is 18%. The Tribunal has assessed the disability at 15% to the whole body.

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It is the vehement contention of the learned counsel for the claimant that the disability is required to be assessed at 20% having regard to Sl.No.24 of Schedule I of the Employee’s Compensation Act, 1923. It is forthcoming that the loss of all toes is a schedule injury at Sl.No.24 and the disability assessed towards the same is 20%. Although the material on record would indicate that four toes of the claimant have been amputated and the little toe has not been amputated, having regard to the photographs which indicate the present condition of the left foot, as also since the claimant has sustained crush

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HC-KAR

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injury of the left foot, it is clear that the presence of the little toe also is rendered without any utility and hence, it is just and proper that the disability be re-assessed as 20%.

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In view of the aforementioned, the compensation is reassessed as follows:

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20.1 The quantum of compensation awarded towards medical expenses, food nourishment, conveyance and attendant charges and future medical expenses is just and proper.

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20.2 Having regard to the nature of injuries sustained and the period of treatment, it is just and proper that the compensation towards pain and suffering be reassessed as 60,000/- as against 50,000/- awarded by the Tribunal.

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20.3 Having regard to the nature of injuries sustained as well as period of treatment, the laid up period is assessed as four months and the loss of income during laid up period is reassessed as (8,000 x 4) 32,000/- as against `24,000/awarded by the Tribunal.

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20.4 Having regard to the nature of injuries and the resultant disability, it is just and proper that the compensation towards amenities be awarded in a sum of 35,000/- as against 30,000/- awarded by the Tribunal.

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20.5 The loss of future earning capacity is re-assessed as (8,000 x 12 x 17 x 20%) 3,26,400/- as against `2,44,800/awarded by the Tribunal.

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Hence, Question No.2 is answered in the Negative.

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It is noticed that the Tribunal has awarded interest at 8%

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per annum. However, taking judicial notice of the interest payable towards fixed deposits, it is just and proper to award/reduce interest at the rate of 7% p.a., on the enhanced compensation as re-assessed by this Court.

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In view of the aforementioned, the compensation is re-

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assessed as follows:

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Sl.No	Compensation Head	Amount Awarded by the Tribunal(`)	Amount awarded by this Court (`)
1	Pain and sufferings	50,000.00	60,000.00
2	Medical expenses	37,423.00	37,423.00
3	Food and Nourishment, Conveyance & Attendant Charges	25,000.00	25,000.00

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4	Loss of income during the period of treatment	24,000.00	32,000.00
5	Loss of future earnings	2,44,800.00	3,26,400.00
6	Future Medical expenses and maintenance	50,000.00	50,000.00
7	Loss of amenities of life	30,000.00	35,000.00
	Total	4,61,223.00	5,65,823

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Accordingly, the claimant is entitled to enhanced

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compensation of (5,65,823/- - 4,61,223/-) = `1,04,600/-

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In view of the aforementioned, the following:

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ORDER

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i) All the appeals are partly allowed;

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ii) The judgment and award dated 16.11.2017 passed in MVC No.5674/2013 by the XXII Additional Small Causes Judge and XX Additional Chief Metropolitan Magistrate & MACT., Bengaluru (SCCH-24) is hereby modified to the extent ordered herein. In all other respects, the judgment and award of the Tribunal remains unaltered;

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iii) The appellant-claimant is entitled to enhanced compensation of `1,04,600/- together with interest at 7% per annum from the date of petition till its realization, in addition to the compensation awarded by the Tribunal;

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iv) The insurer (appellant in MFA No.3238/2018/respondent No.1 before the Tribunal) shall liable to pay the compensation awarded together with accrued interest.

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