Allowed

The Divisional Manager v. Sri. D. Chandrashekara Reddy

Karnataka HC17 Nov 2020MFA/2263/2018

Case brief

AI extract

What is this about?

The High Court allowed the claimants' appeal partly and dismissed the insurer's appeal. It re-assessed the deceased's income to Rs. 13,300 and enhanced total compensation to Rs. 15,46,400. The insurer is directed to deposit this amount but is entitled to recover Rs. 3,09,280 from the motorbike's owner and insurer due to composite negligence.

What did the court decide?

Enhanced compensation awarded at Rs. 15,46,400; insurer directed to pay within 90 days; insurer permitted to recover Rs. 3,09,280 from motorbike insurer.

The Divisional Manager Vs Sri. D. Chandrashekara Reddy — Insurance | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH 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.2263 OF 2018(MV-D) C/W

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MFA.NO.5695 OF 2018(MV-D)

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IN MFA.NO.2263 OF 2018

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BETWEEN:

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THE DIVISIONAL MANAGER UNITED INDIA INSURANCE C0. LTD., MMK COMPLEX, P.J.EXTENSION DAVANAGERE-577 002 THROUGH ITS REGIONAL OFFICE UNITED INDIA INSURANCE CO LTD., 6TH FLOOR KRISHI BHAVAN BUILDING HUDSON CIRCLE NRUPATHUNGA ROAD BENGALURU-560 009 REP BY ITS DIVISIONAL MANAGER SRI SURENDRA P GAONKAR

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....APPELLANT

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(BY SRI. LAKSHMINARASAPPA, ADVOCATE FOR SRI. B.C. SEETHARAMA RAO, ADVOCATE)

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AND:

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1 . SRI. D. CHANDRASHEKARA REDDY AGED ABOUT 48 YEARS S/O SRI CHANNABASAVA REDDY

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2 . SMT D MAMATHA AGED ABOUT 43 YEARS W/O D CHANDRASHEKARA REDDY

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3 . MR D LAVA AGED ABOUT 23 YEARS S/O LATE D CHANDRASHEKARA REDDY

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ALL ARE RESIDENTS OF MARUDI HANUMAPURAM NOW: AT CHIKKAGONDANAHALLI THURAVANUR HOBLI CHITRADURGA TALUK & DISTRICT-577 501

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4 . SRI P M MANIKANDAN MAJOR IN AGE S/O V P MUTHUSWAMY R/AT NO.2/394 KARAYANPUDUR PAPPINAICHAM PATTY POST NAMAKKAL TAMILNADU STATE-610 102 (OWNER OF LORRY NO.TN.28/M-1220)

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….RESPONDENTS

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(BY SRI. N.K. SIDDESWARA, ADVOCATE FOR R1 TO R3 NOTICE TO R4 IS SERVED AND UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 01.01.2018 PASSED IN MVC NO.460/2017 ON THE FILE OF

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THE 1^ST ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL MACT-4, CHITRADURGA, AWARDING COMPENSATION OF RS.12,12,800/- WITH INTEREST AT 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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IN MFA.NO.5695 OF 2018

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BETWEEN:

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1 . D CHANDRASHEKARAREDDY S/O CHANNA BASAVAREDDY AGED ABOUT 48 YEARS

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2 . D MAMATHA W/O D CHANDRASHEKARAREDDY AGED ABOUT 43 YEARS

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3 . D LAVA S/O D CHANDRASHEKARAREDDY AGED ABOUT 23 YEARS ALL ARE R/O MARUDI HANUMAPURAM NOW R/O CHIKKAGONDANAHALY TURUVANUR HOBLI CHITRADURGA TALUK AND DISTRICT PIN : 577517

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....APPELLANTS

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(BY SRI. SIDDESWARA .N.K, ADVOCATE)

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AND:

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1 . P M MANIKANDAN S/O V P MUTHUSWAMY MAJOR R C OWNER OF LORRY

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BEARING NO TN - 28/M- 1220 NO 2/394 KARAYANPUDDUR PAPPINAICHAM PATTY (P.O) NAMAKKAL TAMILNADU STATE PIN : 637 002

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2 . UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE MMK COMPLEX P J EXTENSION DAVANAGERE CITY - 577 002 REPRESENTED BY ITS DIVISIONAL MANAGER

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….RESPONDENTS

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(BY SRI. LAKSHMINARASAPPA, ADVOCATE FOR SRI. B.C. SEETHARAMARAO, ADVOCATE FOR R2 NOTICE TO R1 IS SERVED AND UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 01.01.2018 PASSED IN MVC NO.460/2017 ON THE FILE OF THE 1^ST ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL MACT-4, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION

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

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JUDGMENT

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These appeals are directed against the impugned

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common judgment and award dated 1.1.2018 passed in MVC.No.459/2017 & 460/2017 by the I Additional

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Senior Civil Judge and Addl.MACT-IV, Chitradurga. MFA.No.2263/2018 is filed by the Insurance Company questioning the quantum of compensation awarded whereas the claimants have preferred MFA.No.5695/2018 seeking enhancement.

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

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Brief facts of the case are as follows:

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The claimants filed a claim petition by contending that on 2.12.2016 at about 6.30 p.m. one Rakesh was proceeding on a motor bike Regn.No.KA41/V-7888 along with D. Kusha, son of claimants 1 and 2 as a pillion rider. When they reached

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Chikkagondanahally Village gate, NH-13 road,

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Chitradurga Taluk, the driver of the offending lorry bearing Regn.No.TN-28/M-1220 came in a rash and negligent manner from Chitradurga side and over took the vehicle which was going in front of him and dashed against the back side of the motor bike, as a result of which, the rider of the bike namely Rakesh sustained severe injuries and succumbed to the injuries on the spot whereas the pillion rider namely D.Kusha, son of claimants 1 and 2 died on the way to the hospital.

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The claimants have specifically contended in the claim petition that their son D.Kusha was hale and healthy, was 5^th Semester B.Com. student and was also an agriculturist. Claimants further contended that he was earning Rs. 4,00,000/- per annum from agriculture. They were totally dependant on the

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income of the deceased. Hence, filed claim petition claiming compensation of Rs.40 lakhs.

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On receipt of notice, the second respondentInsurance Company contested the proceedings by filing the written statement. The second respondentInsurance Company specifically contended that the accident was due to rash and negligent driving of the rider of the motor bike. The petition is bad for nonjoinder of necessary parties. The driver of the offending lorry did not possess valid and effective driving licence to drive the lorry. The claim petition was also disputed on the ground that the compensation sought is highly exorbitant. On these set of defences, the second respondent-Insurance Company sought for dismissal of the claim petition.

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The Tribunal based on pleadings, framed the following issues:

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"1. Whether the Petitioners prove that Kusha S/o. D. Chandrashekarreddy died due to

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injuries sustained in the road traffic accident occurred on 20.12.2016 at about 6.30 p.m near Chikkagondanahally gate, NH 13 road, Turuvanur Hobli, Chitradurga Taluk, due to rash and negligent driving of lorry bearing Reg.No.TN-28/M-1220 by its driver?

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2. Whether the petitioners are entitled for any compensation? If so, what is the quantum 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 father of the deceased namely D. Chandrashekarareddy as P.W.1 and one of the eye witness as P.W.3 and relied on documentary evidence vide Exs.P9 to 11, 17 to 19. The second respondentInsurance Company by way of rebuttal evidence examined R.W.1 and relied on documentary evidence vide Exs.R1 and 2.

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The Tribunal after assessing oral and

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documentary evidence has answered Issue No.1 in the

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affirmative by holding that deceased also contributed to the accident and accordingly fixed negligence at 20% on the deceased namely Rakesh, rider of the motor bike.

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The Tribunal while determining the

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compensation has assessed the income of the deceased at Rs.8,000/-. Towards future prospects, stated in the claim petition as 40% infact 50% is added and the income is assessed at Rs.12,000/-. By deducting 50% towards personal expenses and applying the multiplier of 18, the Tribunal has awarded a sum of Rs.12,96,000/- towards loss of dependency and further under conventional heads, the Tribunal has awarded Rs.2,20,000/-. Thus, in all a sum of Rs.15,16,000/- is awarded with interest at the rate of 6% per annum from the date of petition till its realisation. Being aggrieved by the same, both the

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Insurance company as well as the claimants have preferred these appeals.

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The counsel appearing for the Insurance Company in MFA.2263/2018 would vehemently argue and contend before this Court that the Tribunal grossly erred in assessing the income of the deceased at Rs.8,000/-. The grievance of the Insurance Company before this Court is that the income assessed at Rs.8,000/- is in absence of proof of income. He would also submit that the Tribunal erred in adding 50% towards future prospects on the notional income. He would also contend that the sum of Rs.2,20,000/- awarded under the conventional heads for the death of a bachelor is also erroneous.

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Per contra, the learned counsel appearing

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for the claimants in MFA.5695/2018 would vehemently argue and contend that the Tribunal erred in fastening

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20% negligence on the rider of the bike. The said finding is contrary to the clinching evidence adduced by the claimants on negligence.

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6. Insofar as quantum is concerned, the

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learned counsel would submit that the Tribunal erred in assessing the income of the deceased notionally at Rs.8,000/- which is in absence of clinching evidence on record that he had income of Rs.4,00,000/- from agricultural work.

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Heard the learned counsel for the claimants

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as well as the Insurance Company. Perused the pleadings and re-assessed the entire evidence on record.

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8. Regarding negligence:

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The claimants to establish the negligence of the

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driver of the offending lorry have relied on FIR as per Ex.P1, complaint as per Ex.P2 and charge sheet as per

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Ex.P7 which were got marked by the claimants in MVC.No.459/2017. However, the claimants have not furnished copy of sketch prepared by the Investigating Officer during the course of investigation. The second respondent-Insurance Company however by way of rebuttal evidence has furnished the sketch as per Ex.R2. We have examined the sketch. It is forthcoming from the sketch that the head on collision between the bike and the offending lorry has taken place on the middle of the road. This sketch is not at all disputed by the claimants. If the ocular evidence of claimants is examined in the context of spot sketch prepared by the Investigating Officer as per Ex.R2, we are of the view that the Tribunal has rightly fastened negligence to the extent of 20% on the rider of the bike namely Rakesh. In that view of the matter, we do not find any illegality in the finding recorded by the Tribunal on Issue No.1. Accordingly, the grounds

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urged by the Insurance Company is not at tenable and the same is negatived.

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9. Regarding quantum:

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Though we do not find any fault with the Tribunal assessing the income of the deceased notionally in absence of proof of income, however, the income assessed by the Tribunal is on the lower side. In the absence of income proof, we would rely on the chart prepared by the Legal services authority and income is assessed notionally at Rs.9,500/- and adding 40% towards future prospects, the income of the deceased is assessed at Rs.9,500x40/100=Rs.13,300/-. Deducting 50%

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towards personal expenses and applying the multiplier of 18, the compensation payable under the head of loss of dependency works out to Rs.13,300x12x18x50/100=14,36,400/-. Under

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conventional heads Rs.1,10,000/- is awarded i.e.

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Rs.40,000/- each towards parental consortium to claimants 1 and 2 and Rs.30,000/- towards loss of estate and funeral expenses. Thus, in all the total compensation re-determined by this Court works out to Rs.15,46,400/-.

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It is not in dispute that the son of claimants 1 and 2 namely D.Kusha was proceeding as a pillion rider on the bike along with the rider of bike namely Rakesh. The Tribunal has attributed 20% negligence on Rakesh. Since the deceased was proceeding as a pillon rider on the bike, we are of the view that 2^nd respondent-Insurance Company is liable to pay the entire compensation determined by this Court in view of composite negligence. Hence, we direct the second respondent-insurance company to pay the compensation of Rs.15,46,400/-. However, the second respondent-Insurance Company is entitled to recover

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Rs.3,09,280/- from the owner and the insurer of the bike bearing Regn.No.KA-41/B-7888.

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Hence, the following:

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ORDER

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i] MFA Nos.5695/2018 filed by the claimants stand allowed in part and the MFA Nos.2263/2018 filed by the insurer stand dismissed.

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ii] The total compensation awarded by the Tribunal in MVC No.460/2017 is modified and enhanced to Rs.15,46,400/- as against Rs.12,12,800/- 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 insurance company shall deposit the re-assessed total compensation

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determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order. However, the second respondent-Insurance

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Company is entitled to recover Rs.3,09,280/- from the owner and the insurer of the bike bearing Regn.No.KA41/B-7888.

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

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v] The modified compensation shall be apportioned and 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

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in deposit with 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

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*alb/-.

The Divisional Manager v. Sri. D. Chandrashekara Reddy

Case brief

What is this about?

What did the court decide?

The Divisional Manager v. Sri. D. Chandrashekara Reddy

Case brief

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What did the court decide?

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