Partly allowed

Nagaraju T.R. v. M/S. Cholamandalam M S General Insurance Co. Ltd.

Karnataka HC23 Nov 2020MFA/1909/2017

Case brief

AI extract

What is this about?

The High Court clubbed two appeals under Section 173 of the Motor Vehicles Act. It upheld the finding of liability on the insurer but reassessed the compensation quantum, following Pranay Sethi, fixing the total at Rs.17,73,200 with 6% interest, partly allowing the insurer's appeal and dismissing the claimants' appeal.

What did the court decide?

Compensation fixed at Rs. 17,73,200 with interest at 6% p.a.; insurer ordered to deposit within 90 days.

Nagaraju T.R. Vs M/S. Cholamandalam M S General… — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF NOVEMBER, 2020

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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M.F.A.No.1909/2017 c/w M.F.A.No.453/2017 (MV)

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IN M.F.A.No.1909/2017:

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BETWEEN :

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1 . NAGARAJU T.R., S/O LATE B.RANGAPPA AGED ABOUT 45 YEARS

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2 . SMT.CHOWDAMMA W/O NAGARAJU T.R., AGED ABOUT 42 YEARS

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3 . LAKSHMI RANGANATHA T.N., S/O NAGARAJU T.R., AGED ABOUT 19 YEARS

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ALL ARE R/AT NO.5/5, BIYANNA SHAMANNA LAYOUT, 6^TH CROSS, GOTTIGERE, BENGALURU-560 083 AS PER AADHAR CARD ALL ARE R/AT NO.119, THIPPANAHALLI, BADAOBANAHALLI, BADAVANAHALLI, MAHDUGIRI TALUK TUMKUR DISTRICT-572132 ...APPELLANTS

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(BY SRI K.S.ANANDA, ADV.)

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AND :

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1 . M/s CHOLAMANDALAM M.S.GENERAL INSURANCE CO. LTD., REP. BY ITS MANAGER, UNIT NO.4, 9^TH FLOOR (LEVEL 06) GOLDEN HEIGHTS COMPELX, 59^TH C CROSS, INDUSTRIAL SUB-URB, RAJAJINAGAR, BENGALURU-560 010

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2 . SMT.SUVARCHALA TAMBABATGHULA W/O RAMANJANEYULU, MAJOR R/AT NO.45-11-8, TAMBABATGHULA VARI STREET, PADAVALAREVU GUNADALA, VIJAYAWADA, URBAN KRISHNA DISTRICT ANDRA PRADESH-520 001 …RESPONDENTS

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(BY SRI B.PRADEEP, ADV. FOR R-1; NOTICE TO R-2 IS SERVED & UNREPRESENTED.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 26.11.2016 PASSED IN MVC No.3424/2015 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, COURT OF SMALL CAUSES, BANGALORE (SCCH-18), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.No.453/2017: BETWEEN :

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Sr. MANAGER-CLAIMS CHOLAMANDALAM M.S. GIC LTD., No.1/2, GOLDEN HEIGHTS, 6^TH FLOOR, 59^TH C CROSS, 4^TH M BLOCK, RAJAJINAGAR, BANGALORE-10 ...APPELLANT

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(BY SRI B.PRADEEP, ADV.)

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AND :

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1 . NAGARAJU T.R., S/O LATE B.RANGAPPA, AGED ABOUT 44 YEARS

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2 . CHOWDAMMA W/O NAGARAJU T.R., AGED ABOUT 41 YEARS

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3 . LAKSHMI RANGANATHA T.N., S/O NAGARAJU T.R., AGED ABOUT 18 YEARS

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ALL ARE R/AT NO.5/5, BIYANNA SHAMANNA LAYOUT, 6^TH CROSS, GOTTIGERE, BANGALORE-560083 AS PER AADHAR CARD ALL ARE R/AT NO.119, THIPPANAHALLI, BADAOBANAHALLI, BADAVANAHALLI, MADHUGIRI TALUK, TUMKUR DISTRICT-572101

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4 . SUVARCHALA TAMBABATGHULA W/O RAMANANEYULU, D.NO.45-11-8, THAMABABATGHULA VARI STREET, PADAVALAREVU, GUNDALA VIJAYAWADA URBAN, KRISHNA DISTRICT, ANDRA PRADESH-520001 …RESPONDENTS

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(BY SRI K.S.ANANDA, ADV. FOR R-1 TO R-3; NOTICE TO R-4 IS SERVED & UNREPRESENTED.)

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Rs.19,02,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

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THESE APPEALS COMING ON FOR HEARING, THIS DAY, S. SUJATHA, J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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Since common and akin issues are involved as the

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matters arise out of the same accident, the matters are clubbed, heard together and disposed of by this common judgment.

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The insurer as well the claimants are in appeal challenging the judgment and award dated 26.11.2016 passed in MVC No.3424/2015 by the III Additional Senior Civil Judge and Motor Accident Claims Tribunal, Bengaluru (SCCH-18) (‘Tribunal’ for short).

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The claimants being the legal representatives of Harish T.N. instituted petition under Section 166 of Motor Vehicles Act, 1988 (‘Act’ for short) claiming

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compensation for the death of Sri. Harish T.N. in the motor vehicle accident that occurred on 08.08.2015.

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It was averred in the claim petition that on

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08.08.2015 at about 10.45 p.m., the deceased – Harish T.N. while riding his motorcycle bearing registration No.KA-51-EN-714 from Meenakshi Temple side towards Gottigere, when he reached near Purva Panorama Apartment, B.G. Road, Kalenagara, the driver of the lorry bearing registration No.AP-04-V-658 (offending vehicle) collided to the motorcycle having driven the vehicle in a rash and negligent manner. Due to the said impact, Harish fell down on the road along with the motorcycle, then the right side wheel of the said lorry had ran over on Harish, due to which he sustained grievous injuries and died on the spot.

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It was contended that the deceased was aged

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about 21 years, working in Pizza Hut and at Courier office and earning Rs.19,000/- per month. He was also

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prosecuting II Year B.E. Course. Due to the untimely death of the deceased, the claimants – parents and the sibling of the deceased have suffered mental agony and shock with loss of the bread earner on whom they were dependants.

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In response to the notice issued by the

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Tribunal, the insurer of the offending vehicle appeared through its counsel and filed written statement denying the petition averments. The owner of offending vehicle remained absent and was placed ex-parte.

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The main defence set up by the insurer was

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that the accident occurred solely due to the rash and negligent riding of the rider of the motorcycle i.e., deceased; the driver of the offending vehicle and the deceased were not having valid and effective driving licence to drive the vehicles; however, the issuance of policy to the offending vehicle and the liability if any

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was admitted subject to the terms and conditions of the

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policy.

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On the basis of the pleadings, the issues were framed and answered allowing the claim petition in part awarding total compensation of Rs.19,02,000/with interest at the rate of 9% per annum from the date of petition till the date of deposit.

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Being aggrieved, the insurer has preferred MFA No.453/2017 contending that the Tribunal failed to appreciate the evidence of RW2, driver of the offending vehicle who indeed had clearly stated that the deceased has dashed his motorcycle against the hind portion of the offending vehicle (lorry) while overtaking. Fixing the entire negligence on the part of the driver of the offending vehicle – lorry is arbitrary and contrary to the material evidence on record besides challenging the quantum of compensation as excessive.

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The claimants have preferred MFA

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No.1909/2017 contending that the compensation

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awarded by the Tribunal is inadequate and the same cannot be construed as just compensation in the facts and circumstances of the case and the same requires to be enhanced substantially.

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Learned counsel appearing for both the

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parties reiterating the grounds urged in the appeal memorandums argued in the support their case.

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Having heard the learned counsel appearing

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for the parties and perusing the original records, we have analyzed the factum of negligence in the light of the spot sketch Ex.P3, spot panchanama Ex.P2. These documents would suggest that both the vehicles were moving in the same direction towards Gottigere. It is the contention of the insurer that the deceased while overtaking the lorry, fell down after touching the lorry which was moving ahead and to establish the same, the

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driver of the lorry, RW2 has been examined. It is discernable from the complaint that the lorry driver had escaped from the spot of the accident immediately after the accident. The testimony of RW2 is nothing but ipse dixit statement, more particularly when the criminal case was pending for adjudication before the jurisdictional Court. PW2 is an eye-witness to the incident who has stated that he was walking in front of Purva Panorama Apartment Gate, near the spot of the accident on 08.08.2015 at about 10.45 p.m. and has seen the driver of the offending vehicle driving the vehicle in a rash and negligent manner and hit to the back portion of the motorcycle due to which the rider fell down along with the motorcycle, then the wheel of the lorry ran over on the rider of the motorcycle and he died on the spot. Though the learned counsel for insurer has cross-examined the said witness at length, nothing positive is elicited to disbelieve his statement. Further the police records support the version of PW.2. Indeed if

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the statement of RW.2 to be believed, a question would arise why he had not filed any complaint immediately after the accident alleging rash and negligent riding of the deceased for the cause of the accident resulting in his death. RW2 had absconded immediately after the accident. The conduct of the RW2 does not inspire confidence to believe his version.

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Accordingly, we are of the considered view that the impugned judgment and order does not suffer from any infirmity or irregularity answering the issue No.2 namely, whether the petitioners prove that the accident has mainly occurred due to the rash and negligent driving of the driver of said vehicle in the affirmative. We confirm the same.

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As regards the quantum of compensation,

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we deem it appropriate to reassess the same having regard to the age of the deceased as 21 years, his income assessed at Rs.11,000/- per month and adding

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40% of the income towards future prospects. Though the determination of the monthly income of Rs.11,000/would not call for interference, 40% of the same requires to be added towards future prospects in terms of the judgment of the Hon’ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others ((2017)16 SCC 680). Accordingly, by adding 40% of the income towards future prospects, the monthly income would be Rs.15,400/- to determine the loss of dependency. Applying the multiplier of ‘18’ and deducting 50% towards personal and living expenses of the deceased, the loss of dependency would work out to Rs.16,63,200/- (15400 x 12 x 18 x ½).

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In terms of the dictum of the Hon'ble Apex Court in Pranay Sethi, supra and New India Assurance Company Limited vs Somwati and Others reported in 2020 SCC ONLINE SC 720, and others ((2017)16 SCC 680) , the claimants would be entitled to

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compensation of Rs.80,000/- towards loss of filial consortium (Rs.40,000/- to each parent), Rs.15,000/towards loss of estate and Rs.15,000/- towards funeral expenses.

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For the reasons aforesaid, the total

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compensation awarded by the Tribunal is re-assessed as under:

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Sl.No.	Particulars	Amount [in Rs.]
1.	Loss ofdependency	16,63,200/-
2.	Loss of Filial Consortium (Rs.40,000/- to each parent)	80,000/-
3.	Loss of Estate	15,000/-
4.	Towards Funeral expenses	15,000/-
	Total	17,73,200/-

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Having regard to the rate of interest of the

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nationalized banks and the interest awarded at 6% p.a. consistently in catena of judgments by this court, we

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deem it proper to award the rate of interest at 6% p.a. from the date of petition till its realization. Thus, the

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claimants shall be entitled to total compensation of Rs.17,73,200/- with interest at the rate of 6% per annum from the date of the claim petition till the date of realization.

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18. Hence, the following

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ORDER

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i) The appeal filed by the insurer in MFA No.453/2017 is allowed in part. The appeal filed by the claimants in MFA No.1909/2017 is dismissed.

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ii) The total compensation awarded by the Tribunal is modified and reduced to Rs.17,73,200/- (Rupees Seventeen Lakhs Seventy Three Thousand Two Hundred only) as against Rs.19,02,000/- with interest at the rate of 6% per annum from the date of the claim petition till its realization.

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iii) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact.

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iv) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.

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v) The modified compensation amount shall be disbursed in terms of the order of the Tribunal.

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vi) Draw modified award accordingly.

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vii) The Registry shall transfer the amount in deposit along with the original records to the jurisdictional Tribunal forthwith.

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viii) All pending I.As. stand disposed of.

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Sd/JUDGE

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Sd/JUDGE