Partly allowed

Sri.Rama Devadiga v. Sri.Sharavana Kumar

Karnataka HC23 Nov 2020MFA/9113/2017

Case brief

AI extract

What is this about?

High Court disposed of five Motor Accident Claim appeals arising from the same accident. It enhanced compensation from Rs.34,73,900 to Rs.60,40,000 for death and injury but dismissed other appeals regarding injury and vehicle damage due to lack of ownership proof.

What did the court decide?

Compensation enhanced to Rs.60,40,000; vehicle damage compensation of Rs.27,000 set aside.

Sri.Rama Devadiga Vs Sri.Sharavana Kumar — 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.5388/2017 c/w

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M.F.A.No.5331/2017, M.F.A.No.5389/2017, M.F.A.No.5390/2017 & M.F.A.No.9113/2017 (MV)

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IN M.F.A.No.5388/2017:

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BETWEEN :

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THE BRANCH MANAGER ROYAL SUNDARAM ALLIANZ INSURANCE COMPANY LIMITED SHANKAR MUTT ROAD, SHIVAMOGGA BY ROYAL SUNDARAM GENERAL INSURANCE CO. LTD., SUBRAMANIAM BUILDING II FLOOR, NO.1, CLUB HOUSE ROAD ANNASALAI, CHENNAI-600002 BY ITS MANAGER

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...APPELLANT

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(BY SRI O.MAHESH, ADV.)

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AND :

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1 . SUSHEELA C. DEVADIGA W/O LATE CHANDRASHEKAR DEVADIGA AGED ABOUT 36 YEARS

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2 . VINAYA DEVADIGA S/O LATE CHANDRASHEKAR DEVADIGA AGED ABOUT 15 YEARS, MINOR

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3 . SHARADA D/O LATE CHANDRASHEKAR DEVADIGA AGED ABOUT 11 YEARS, MINOR

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RESPONDENT No.2 & 3 ARE MINORS REP BY GUARDIAN MOTHER SUSHEELA C. DEVDIGA-R-1

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ALL ARE R/AT NEAR VISHALAKSHI TEMPLE NAGOORU, KIRIMANJESHWARA KUNDAPURA TALUK-576201

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4 . SMT.RUKKU W/O LATE NAGA DEVADIGA AGED ABOUT 72 YEARS R/O HUTTINA MANE, NEAR KESHAVA BOBBARAYA TEMPLE, MARAVANTHE, KUNDAPURA TALUK-576201

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5 . SHARAVANA KUMAR S/O OMKAR DAS, AGED ABOUT 41 YEARS R/AT RAVIVARMA STREET NEAR VARMA SAWMIL, SEEGE HATTI SHIVAMOGGA DISTRICT-577201 …RESPONDENTS

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(BY SRI NAGARAJA HEGDE, ADV. FOR R-1; R-2 & R-3 ARE MINORS, REP. BY R-1;

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NOTICE TO R-4 & R-5 ARE 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 08.03.2017 PASSED IN MVC No.681/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL MACT, KUNDAPURA, AWARDING COMPENSATIONN OF Rs.34,73,900/WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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IN M.F.A.No.5331/2017:

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BETWEEN :

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1 . SMT.SUSHEELA C. DEVADIGA

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W/O LATE CHANDRASHEKAR DEVADIGA AGED ABOUT 36 YEARS

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2 . MINOR VIJAYA DEVADIGA S/O LATE CHANDRASHEKAR DEVADIGA AGED ABOUT 15 YEARS

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3 . MINOR SHARADA D/O LATE CHANDRASHEKAR DEVADIGA AGED ABOUT 11 YEARS APPELLANT No.1 TO 3 ARE R/AT NEAR VISHALAKSHI TEMPLE NAGOORU, KIRIMANJESHWARA KUNDAPURA TALUK UDUPI DISTRICT-576201.

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4 . SMT.RUKKU W/O LATE NAGA DEVADIGA AGED ABOUT 72 YEARS, R/O HUTTINA MANE NEAR KESHAVA BOBBARYA TEMPLE MARAVANTHE, KUNDAPURA TALUK UDUPI DISTRICT-576201 ...APPELLANTS

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(BY SRI NAGARAJA HEGDE, ADV.)

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AND :

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1 . SRI SHARAVANA KUMAR S/O OMKAR DAS AGED ABOUT 41 YEARS, R/O RAVIVARMA STREET, NEAR VARMA SWAMI, SEEGE HATTI SHIVAMOGGA DISTRICT-577201

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2 . THE NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, UDUPI-576101 REP BY ITS DIVISIONAL MANAGER …RESPONDENTS

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(BY SRI A.N.KRISHNASWAMY, ADV. FOR R-2; VIDE COURT ORDER DATED 23.11.2020 NOTICE TO R-2 IS DISPENSED WITH.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 08.03.2017 PASSED IN MVC No.681/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL MACT, KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.No.5389/2017:

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BETWEEN :

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(BY SRI O.MAHESH, ADV.)

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AND :

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RAMA DEVADIGA S/O L.SUBBA DEVADIGA, AGED ABOUT 62 YEARS, R/O HUTTINA MANE, MARAVANTHE VILLAGE, KUNDAPURA TALUK-576104

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2 . SHARAVANA KUMAR S/O OMKAR DAS AGED ABOUT 41 YEARS R/AT RAVIVARMA STREET NEAR VARMA SAWMIL, SEEGE HATTI SHIVAMOGGA DISTRICT-577201 …RESPONDENTS

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(BY SRI NAGARAJA HEGDE, ADV. FOR R-1; SRI B.S.PRASAD, ADV. FOR R-2.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 08.03.2017 PASSED IN MVC No.680/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL MACT, KUNDAPURA, AWARDING COMPENSATIONN OF Rs.3,23,190/WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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IN M.F.A.No.5390/2017:

BETWEEN :

...APPELLANT

(BY SRI O.MAHESH, ADV.)

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AND:

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SUSHEELA C. DEVADIGA W/O LATE CHANDRASHEKAR DEVADIGA AGED ABOUT 36 YEARS, R/AT NEAR VISHALAKSHI TEMPLE NAGOOR, KIRIMANJESHWARA, KUNDAPURA TALUK-576104.

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2 . SHARAVANA KUMAR S/O OMKAR DAS, AGED ABOUT 41 YEARS R/AT RAVIVARMA STREET NEAR VARMA SAWMIL, SEEGE HATTI SHIVAMOGGA DISTRICT-577201 …RESPONDENTS

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(BY SRI NAGARAJA HEGDE, ADV. FOR R-1; SRI B.S.PRASAD, ADV. FOR R-2.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 08.03.2017 PASSED IN MVC No.924/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL MACT, KUNDAPURA, AWARDING COMPENSATIONN OF Rs.27,000/WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT OF COMPENSATION AMOUNT IN THE TRIBUNAL.

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IN M.F.A.No.9113/2017:

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BETWEEN :

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SRI RAMA DEVADIGA S/O L.SUBBA DEVADIGA AGED ABOUT 62 YEARS, REP BY HIS NEXT FRIEND & GUARDIAN WIFE SMT.GIRIJA DEVADIGA AGED ABOUT 55 YEARS R/AT R/O HUTTINA MANE, MARAVANTHE VILLAGE, KUNDAPURA TALUK UDUPI DISTRICT-576201. ...APPELLANT

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(BY SRI NAGARAJA HEGDE, ADV.)

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AND :

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1 . SRI SHARAVANA KUMAR S/O OMKAR DAS AGED ABOUT 41 YEARS, R/O RAVIVARMA STREET, NEAR VARMA SWAMIL, SEEGE HATTI SHIVAMOGGA DISTRICT-577201.

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2 . ROYAL SUNDARAM ALLIANZA INSURANCE CO. LTD., BRANCH OFFICE, SHANKAR MUTT ROAD,

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SHIVAMOGGA-577201 REP. BY ITS BRANCH MANAGER. …RESPONDENTS

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(BY SRI O.MAHESH, ADV. FOR R-2; NOTICE TO R-1 IS DISPENSED WITH.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 08.03.2017 PASSED IN MVC No.680/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL MACT, KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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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 claimants instituted petitions under Section 166 of the Motor Vehicles Act, 1988 ['Act' for short] claiming compensation. MVC No.680/15 was filed by Sri. Rama Devadiga for the injuries sustained by him, MVC No.681/2015 has been filed by the legal heirs of deceased Chandrashekhar Devadiga for his

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death and MVC No.924/2015 has been filed by the claimants claiming compensation for the damages sustained to the motor cycle bearing Reg.No.KA-20-W8111 in the motor vehicle accident which occurred on 5.7.2015.

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It was averred in the claim petition MVC No.

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681/15 that the deceased was aged about 47 years and working at Dubai since 2004 in various hotels and in the year 2011, he was appointed in a 3 star hotel and getting the salary of AED 3150 and used to contribute major amount for the maintenance and welfare of the family through bank accounts.

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In MVC No.680/2015 the claimants averred

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that the injured was aged about 60 years and working at Behryn, Bar and Restaurant Hotel by name “VILSAR’ and earning Rs.50,000/-

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5. In MVC No.924/15 the claimants averred

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that the motor cycle bearing Reg. No.KA-20-W-8111 was extensively damaged in the accident in question and accordingly sought for compensation, for the damages and the inconvenience caused to the claimants.

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The common ground urged in all the petitions was that on 5.7.2015 at about 4.00 p.m. while the deceased Chandrashekhar Devadiga was riding his motor cycle bearing Reg.No.KA-20-W-8111 along with the pillion rider from Bantwadi towards Mullikatte side, near Government Primary School, Hosadu village, Kundapura, a car bearing Reg.No.KA-14-P-0228 (offending vehicle) driven by its driver in a rash and negligent manner, collided against the motor cycle. Due to the said impact, the pillion rider–claimant in MVC No.680/15 sustained grievous injuries. The rider of the motor cycle also sustained grievous injuries and he was shifted to KMC Hospital, Manipal. During the course of

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treatment, he succumbed to the injuries on the same day.

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The claimants contended that the accident took place due to the rash and negligent driving of the driver of Car bearing Reg.No.KA-14-P-0228 in all the cases. Smt.Susheela C. Devadiga is the owner and the offending vehicle having been duly insured with the insurer-Royal Sundaram Allianz Insurance Company Limited, they are liable to pay the same.

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On service of summons, the insurer appeared through its counsel and contested the claim petitions filing the written statement. Petition averments were denied. However, issuance of the policy in respect of the offending vehicle and the liability was admitted subject to the terms and conditions of the policy. It was further contended that the driver of the offending vehicle had no valid and effective Driving Licence as on the date of the alleged accident. The insurer has denied damages sustained to the vehicle.

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On the basis of the pleadings, the Tribunal

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framed the issues and partly allowed MVC Nos.680/15, 681/15 and 924/15 holding that the claimants are entitled to compensation with 6% interest per annum

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from the date of petition till the date of deposit as under:

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MVC No. COMPENSATION AMOUNT

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680/15 Rs.3,23,190/681/15 Rs.34,73,900/924/15 Rs.27,000/-

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Being aggrieved, the appeals are filed by the insurer in all the three cases whereas the claimants have preferred appeals in MVC Nos.680 and 681 of 2015, the details of which are as under:

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MFA No.5388/17 is filed by insurer against MVC No.681/15

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MFA No.5331/17 is filed by the claimants against MVC No.681/15

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MFA No.5389/17 is filed by the

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insurer against MVC No.680/15

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MFA No.5390/17 is filed by the insurer against MVC No.924/15

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MFA No.9113-17 is filed by the claimants against MVC No.680/15

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10. In MFA No.5388/2017 and

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M.F.A.No.5331/2017 learned counsel for the insurer argued that the Tribunal has failed to appreciate the material evidence regarding the manner of alleged accident. He alleged, eye witness PW-3 Mr.Yajnesh was only a brought up witness whose name did not figure in the charge sheet except as a mahazar witness. PW-1 who was examined in C.C.No.3027/15 on the file of the

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JMFC, Kundapura had not supported the prosecution case. The complaint at Ex.P1 lodged by PW1 was admittedly an hearsay one and panchanama Ex.P2 was highly hypothetical. Learned counsel submitted that the quantum of compensation awarded is excessive. The

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income of the deceased determined at Rs.22,000/- per month unilaterally in the absence of cogent and conclusive material evidence and further adding 30% towards future prospects is perverse and arbitrary. The entire approach of the Tribunal is unjust.

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Learned counsel for the claimants argued

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that the quantum of compensation awarded under the different heads is abysmally low. The deceased was earning about Rs.72,000/- per month as per Exs.P8 to 11. The Tribunal grossly erred in determining the monthly income of the deceased at Rs.21,450/including the future prospects which is highly disproportionate and inadequate. The compensation awarded under the different heads is also on the lower side. Accordingly, sought for enhancement of compensation.

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The arguments of the learned counsel for the insurer that the accident in question occurred solely

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due to the negligence of the deceased is without any basis. It is trite law that pleadings are the foundation and the same has to be supported by the corroborative evidence. As could be seen from the records, the insurer has not tendered any evidence in support of the defence taken in the written statement. Negligence has to be necessarily proved by leading cogent and corroborative evidence. In the absence of rebuttal evidence by the insurer, the insurer is estopped from arguing that the negligence of the deceased is the cause of accident. Hence, we reject the said arguments advanced by the learned counsel for the insurer.

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The records would disclose that the deceased

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was working at Dubai in a 3 star hotel as a senior bar man and getting salary in the currency of Dubai i.e., AED 3150. The bank statements produced at Exs.P9 to 11 would indicate that the deceased was regularly remitting the amount to the bank account of the

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claimant No.1 towards maintenance of the family. Accordingly, we determine the monthly income of the deceased at Rs.40,000/- and adding 25% towards future prospects, applying the multiplier of 13, deducting 1/4^th towards the personal and living expenses, total loss of dependency would work out to Rs.58,50,000/- (Rs.40000 + 10000 x 12 x 13 x ¾).

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In terms of the ruling of the Hon'ble Apex

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Court in National Insurance Company Limited Vs. Pranay Sethi and others ((2017)16 SCC 680) and New India Assurance Company Limited V/s. Somwati and Others [Civil Appeal No.3093 of 2020 and Connected matters, D.D. on September 7, 2020] , the claimants are entitled to compensation under the conventional heads at Rs.1,90,000/- i.e., Rs.40,000/towards spousal consortium, Rs.1,20,000/- towards parental consortium (Rs.40,000/- to each child), Rs.15,000/- towards loss of estate and Rs.15,000/-

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towards funeral expenses. Thus, in all the claimants

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would be entitled to compensation of Rs.60,40,000/-.

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In MFA No.5389/17 and MFA No.9113/17

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arising out of MVC No.680/15, the Tribunal has awarded total compensation of Rs.3,23,190/- under different heads after profuse analysis of the evidence on record. Though the learned counsel for the claimant vehemently argued that the injured was working in gulf country, his income could be determined at Rs.50,000/per month and loss of future earning requires to be awarded, we are not inclined to countenance the said submission in the absence of supporting documents. Moreover, the injured has not entered the witness box. PW-2 , the wife of the injured has deposed about the permanent disability sans any disability certificate. No doctor was examined to assess the disability suffered by the injured. Hence, we do not find any ground to interfere with the quantum of compensation of

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Rs.3,23,190/- awarded by the Tribunal. Accordingly, we

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confirm the same.

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In MFA No.5390/17 the Tribunal has

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awarded Rs.27,000/- towards the damage to the vehicle. Learned counsel for the insurer argued that the Tribunal grossly erred in awarding global compensation of Rs.27,000/- in the absence of proof of ownership of the said vehicle. Exs.P12 to 16 did not prove ownership claimed, by producing R.C. Book and Tax paid receipt. It was further submitted that the claimant in MVC No.924/15 has undertaken before this court to produce the documents to show the ownership of the vehicle in question but the same has not been produced till date. Accordingly, he seeks for allowing the appeal by setting aside the judgment and award passed by the Tribunal in awarding damages to the vehicle.

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We find considerable force in the arguments

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of the learned counsel for the insurer. It is apparent

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from the records that the learned counsel for the respondents- claimants had undertaken to produce the documents to establish the ownership of the vehicle in question as recorded by this court on 25.7.2018. However, the same has not been complied with, till date. In the absence of proof of ownership of the vehicle in question, no damages could be awarded. Learned counsel for the claimants has also failed to substantiate the claim on this point. Accordingly, we allow the appeal filed by the insurer setting aside the judgment and award passed by the Tribunal wherein the compensation of Rs.27,000/- with interest @ 6% per annum was ordered.

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Hence, the following:

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ORDER

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i] In MFA Nos.5388/2017 c/w 5331/17 arising out of MVC No.681/2015 :

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The appeal filed by the insurer in MFA No.5388/2017 is dismissed. The appeal filed by the claimants in MFA No.5331/2017 is partly allowed. Total compensation awarded by the Tribunal is modified and enhanced to Rs.60,40,000/- (Rupees Sixty Lakhs Forty Thousand only) as against Rs.34,73,900/with interest at the rate of 6% per annum from the date of the claim petition till its realization.

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ii] In MFA Nos.5389/2017 c/w 9113/2017 arising out of MVC No.680/2015:

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Both the appeals stand dismissed confirming the total compensation of Rs.3,23,190/- (Rupees Three Lakhs Twenty Three Thousand One Hundred and Ninety only) awarded by the Tribunal with interest at the rate of 6% per annum from the date of the claim petition till its realization.

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The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement in both the MVC cases remains intact.

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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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The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.

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

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iii] MFA No.5390/2017 is allowed. Judgment and award passed by the Tribunal in MVC No.924/15 dated 8.3.2017 is set aside. Amount in deposit shall be refunded to the insurer forthwith.

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Draw modified award accordingly.

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All pending I.As, stand disposed of.

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Sd/JUDGE

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Sd/JUDGE

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Dvr:

Sri.Rama Devadiga v. Sri.Sharavana Kumar

Case brief

What is this about?

What did the court decide?

Sri.Rama Devadiga v. Sri.Sharavana Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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