Dismissed

Smt. Valsala Kurian v. Sri Chandrashekar Naidu P.

Karnataka HC2 Nov 2020MFA/1997/2016

Case brief

AI extract

What is this about?

The High Court dismissed appeals filed by the insurance company and the claimants against a Motor Vehicles Tribunal award in a fatal road accident. The Court upheld the Tribunal's finding of driver negligence and rejected claims for enhanced compensation or correction in the dependency expense deduction.

What did the court decide?

Both the MFA filed by the Insurance Company and the MFA filed by the claimants were dismissed.

Smt. Valsala Kurian Vs Sri Chandrashekar… — Contract and Commercial Disputes | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 02^ND 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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MFA.NO.9239 OF 2015(MV-D) C/W MFA.NO.1997 OF 2016(MV-D)

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IN MFA.NO.9239 OF 2015

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BETWEEN:

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THE DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD., BANGALORE DIVISION - 1 3^RD FLOOR, UNITY BUILDING ANNEXE NO 72, MISSION ROAD P. B. NO. 2701 BANGALORE - 560 027

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BY NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE NO. 144, SUBHARAM COMPLEX M. G. ROAD, BANGALORE - 560 001

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BY IT'S MANAGER

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....APPELLANT

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(BY SRI. O. MAHESH, ADVOCATE)

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AND:

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1 . VALSALA KURIAN AGE 57 YEARS W/O KURIAN GEORGE

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2 . KURIAN GEORGE AGE 60 YEARS S/O LATE K GEORGE

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3 . SUNJAY KURIAN AGE 29 YEARS S/O KURIAN GEORGE

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RESPONDENT NO.1 BY HER HUSBAND KURIAN GEORGE S/O LATE K.GEORGE THROUGH POWER OF ATTORNEY

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ALL ARE RESIDING AT NO 1516, 4^TH 'D' MAIN ROAD MAHALAXMIPURAM BANGALORE - 560 086

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4 . CHANDRASHEKAR NAIDU P NO. 7, KENCHAN REDDY LAYOUT CHANNASANDRA VILLAGE KADUGODI POST NEAR GOVERNMENT SCHOOL BANGALORE - 560 064

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….RESPONDENTS

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(BY SRI. D.N. MAMATHA, ADVOCATE FOR R1 AND R2 V/O DTD:14.12.2018 NOTICE TO R3 AND R4 ARE HELD SUFFICIENT)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:

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10.09.2015 PASSED IN MVC NO.1596/2014 ON THE FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE & XXVII ACMM, MACT, BANGALORE, AWARDING COMPENSATION OF RS.67,01,816/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE REALIZATION.

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IN MFA.NO.1997 OF 2016

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BETWEEN:

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1 . SMT. VALSALA KURIAN W/O KURIAN GEORGE AGED ABOUT 58 YEARS

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2 . SRI.KURIAN GEORGE S/O LATE K.GEORGE AGED ABOUT 61 YEARS

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3 . SRI. SUNJAY KURIAN S/O KURIAN GEORGE AGED ABOUT 30 YEARS

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PETITIONER NO.1 REPRESENTED BY HER HUSBAND KURIAN GEORGE S/O LATE K. GEORGE THROUGH POWER OF ATTORNEY

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ALL ARE R/AT NO.1516, 4^TH 'D' MAIN ROAD MAHALAXIPURAM BANGALORE-560 086

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....APPELLANTS

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(BY SRI. CHETHAN .B AND SMT. D.N. MAMATHA, ADVOCATES)

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AND:

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1 . SRI CHANDRASHEKAR NAIDU P. MAJOR R/O NO.7, KENCHANA REDDY LAYOUT KADIGODI POST NEAR GOVERNMENT SCHOOL BANGALORE-560 067 2 . THE MANAGER NATIONAL INSURANCE CO. LTD., BANGALORE DIVISION-1 3RD FLOOR, UNITY BUILDING ANNEXE NO.72, MISSION ROAD P.B.NO.2701 BANGALORE-560 027

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….RESPONDENTS

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(BY SRI. O. MAHESH, ADVOCATE FOR R2)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 10.09.2015 PASSED IN MVC NO.1596/2014 ON THE FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE & XXVII ACMM, MACT, BANGALORE(SCCH-11), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The claimants as well as the Insurance Company

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have preferred appeals challenging the judgment and award passed in MVC.No.1596/2014. MFA.No.9239/2015 is filed by the Insurance Company challenging the negligence and quantum as well as the compensation determined under the head loss of dependency, whereas the claimants have preferred appeal in MFA.No.1997/2016 seeking enhancement of compensation.

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For the sake of convenience, the parties

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are referred to as per their rank before the Tribunal.

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The facts leading to the case are as under:

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The claimant Nos.1 and 2 filed claim petition by contending that on 21.03.2014 at about 6.30 p.m., their son namely Sunil Kurian was proceeding on his motorbike and when he reached Trinity Church Road,

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the driver of the offending Indica Car bearing Reg.No.KA-53-A-6807 came in a rash and negligent manner, in a high speed, and took a turn towards Richmond Road without observing traffic rules and dashed against the motorbike. On account of the impact, the son of claimant Nos.1 and 2 sustained grievous injuries and was rushed to Hosmat Hospital, where he succumbed to injuries on the same day at about 11.30 a.m. The claimant Nos.1 to 3 stated in the claim petition that deceased was aged about 31 years and was working at Dell International Services India and was drawing a salary of Rs.4,50,000/- p.a. Claimant Nos.1 and 2 being mother and father and claimant No.3 being sibling of the deceased specifically contended that they were dependent on the income of the deceased. It was also stated in the claim petition that claimant No.1 is suffering from parkinson disease for the last 15 years and that she is

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totally bed ridden. On these set of grounds, the claim petition was filed seeking compensation of Rs.80,00,000/-.

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Though notice was served on the respondent No.1/owner, he did not chose to contest the claim petition and was accordingly, placed exparte. The respondent No.2/Insurance Company filed written statement and stoutly denied the entire averments made in the claim petition. A contention was taken in the written statement to the effect that deceased was riding the motorbike without possessing valid and effective driving licence and he alone was guilty of rash and negligent driving and there was no fault on the part of the driver of the offending car. The respondent No.2 seriously disputed the claim made in the claim petition. A specific contention was taken to the effect that the claim made by the claimants is exorbitant, speculative and the same is without any

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basis. It was also contended in the written statement that the respondent No.1/owner has to prove that the driver of the offending vehicle was possessing valid and effective driving licence. On these set of defence, the respondent No.2/Insurance Company sought for dismissal of the claim petition.

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Based on the rival contentions, the Tribunal formulated the following issues:

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"1) Whether petitioners prove that, on 21.3.2014 at about 6.30 a.m., when deceased Sunil was riding his motor cycle slowly and cautiously at Trinity Church Road in South to North direction, at that time, driver of TATA Indica car bearing No.KA-53A-6807 driven the same in rash and negligent manner endangering human life with high speed and dashed to the vehicle of the deceased by which he succumbed to the injuries in the hospital?

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2) Whether petitioners are entitled for the compensation prayed in the claim petition?

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If so, what is quantum of compensation and from whom?

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3) What order or award?"

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The claimants in support of their contention

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examined the claimant No.2 as PW.1 and one independent witness as PW.2. To corroborate ocular evidence, claimants have produced documentary evidence vide Exs.P-1 to P-35. The respondent No.2/Insurance Company has examined two witnesses as RWs.1 and 2 but, however, has not chosen to lead any rebuttal documentary evidence.

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The Tribunal having assessed the oral and documentary evidence, answered issued No.1 in the affirmative by holding that the accident has occurred on account of rash and negligent driving by the driver of the offending car. While determining compensation, the Tribunal has assessed the income of the deceased at Rs.43,256/- and by adding 50%

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towards future prospects and by deducting 50% towards personal expenses, the income of the deceased was assessed at Rs.32,442/- and by applying multiplier of 17, the Tribunal has awarded Rs.66,18,168/- towards loss of dependency. The Tribunal, in all, has awarded total compensation of Rs.67,01,816/-.

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Learned counsel appearing for the Insurance Company in MFA.No.9239/2015 would vehemently argue and contend before this Court that the finding arrived by the Tribunal on issue No.1 is palpably erroneous. He would submit to this Court that by way of rebuttal evidence, the Insurance Company has examined the driver of the offending car as RW.2 and if the ocular evidence of RW.2 coupled with spot mahazar and spot sketch is examined, it would clearly establish that it is the deceased who was riding the bike in a rash and negligent manner and the

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same would indicate that deceased also contributed to

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the accident. Further, he would also submit to this court that the compensation determined under the head of loss of dependency is on the higher side and the same needs interference by this Court.

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Learned counsel appearing for the

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claimants in MFA.No.1997/2016 would vehemently argue and contend before this Court that the Tribunal erred in deducting 50% towards personal expenses.

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He would submit to this court that the deceased is survived by parents and one sibling, who were totally dependent and hence, ought to have deducted 1/3^rd .

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He would also submit to this Court that the compensation determined under the conventional heads is very much on the lower side and the same would warrant interference by this Court. On negligence, he would submit to this Court that the clinching evidence on record would clearly establish

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that it is the driver of the offending vehicle who was responsible for the accident. The ocular evidence of RW.2, who is the driver of the offending vehicle would not displace or outweigh the clinching evidence placed on record by the claimants in regard to negligence.

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Heard learned counsel appearing for the Insurance Company and learned counsel appearing for the claimants. We have perused the pleadings of the parties and have reassessed the entire oral and documentary evidence on record.

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Re: Negligence

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The claimants have placed on record the documents relating to the accident. Ex.P-1 is the FIR, Ex.P-10 is the true copy of charge sheet and Exs.P-4 and P-5 are the hand sketch map and copy of spot panchanama respectively. On perusal of Ex.P-4, which is the hand sketch map, it is forthcoming that

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the driver of the offending vehicle took right turn so as to proceed towards Richmond Road. The spot sketch clearly indicates that the driver of the offending car was reckless and negligent. Had he slowed down and proceeded by taking note of the vehicles coming from the opposite direction, he would have avoided the accident. The clinching evidence on record clearly indicates that on account of sudden right turn taken by the driver of the offending vehicle, accident has occurred. This material aspect is supported by the records placed on record by the claimants. The ocular evidence of the driver who is examined as RW.2 would in no way displace or outweigh the legal evidence placed on record by the claimants. All these aspects are dealt with by the Tribunal and the Tribunal has rightly come to conclusion that it is the driver of the offending car who has caused the accident. The findings recorded by the Tribunal on issue No.1 is

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based on legal evidence and hence, the same does not warrant any interference. Accordingly, we are not inclined to interfere with the findings recorded by the Tribunal on issue No.1.

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Re: Quantum

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The grievance of the claimants before this Court is that the Tribunal erred in deducting 50% towards personal expenses of the deceased. The claimants have made a feeble attempt to make out a case before this Court that the father and sibling of the deceased were equally dependent on the deceased. However, no materials are placed on record and even otherwise, claimant No.3 who is the sibling and aged 28 years cannot claim to be a dependent. Since claimant No.2 has one more son, the question of dependency of claimant No.2 would also not arise in the present case. Deduction of 50% towards personal expenses is perfectly correct and the

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same is in conformity with the ratio laid down by the Hon'ble Apex Court in Sarla Varma and Others vs. Delhi Transport Corporation and Another reported in 2009 ACJ 1298, wherein the Apex Court has held that in the event of death of a bachelor, 50% needs to be deducted. The compensation arrived at by the Tribunal under the head loss of dependency is based on records and same does not suffer from any infirmities. Accordingly, we are of the view that there is no scope for further enhancement.

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Accordingly, both the appeals are dismissed.

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Sd/JUDGE

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Sd/JUDGE

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Smt. Valsala Kurian v. Sri Chandrashekar Naidu P.

Case brief

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Smt. Valsala Kurian v. Sri Chandrashekar Naidu P.

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