Partly allowed

Smt Shivamma v. Icici Lombard General Insurance Co. Ltd.

Karnataka HC15 Jun 2021MFA/1334/2015

Case brief

AI extract

What is this about?

In this appeal against a Motor Accident compensation award, the High Court reduced the deceased's negligence from 50% to 20% and recalculated compensation based on corrected age and income, enhancing the award to Rs.5,09,680/-.

What did the court decide?

The Judgment and Award is modified granting enhanced compensation of Rs.5,09,680/- against the Tribunal's award of Rs.2,22,060/- with 6% interest from the date of petition. The Insurance Company is di

Smt Shivamma Vs Icici Lombard General Insurance Co… — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF JUNE, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.1334/2015 (MV)

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BETWEEN:

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1 . SMT. SHIVAMMA W/O LATE CHANNABASAVAIAH @ CHANNABASAPPA, AGED ABOUT 57 YEARS,

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2 . SMT. SHARADHAMMA D/O LATE CHANNABASAVAIAH @ CHANNABASAPPA, AGED ABOUT 39 YEARS,

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3 . SRI RANGANATH C., S/O LATE CHANNABASAVAIAH @ CHANNABASAPPA, AGED ABOUT 31 YEARS,

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4 . SRI PURUSHOTHAMA S/O LATE CHANNABASAVAIAH @ CHANNABASAPPA, AGED ABOUT 24 YEARS,

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APPELLANT NOS.1, 3 AND 4 ARE R/AT NO.18, BHUVANESHWARINAGAR PATIL SAW MILL, MALLASANDRA, BENGALURU-560 057.

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APPELLANT NO.2 IS RESIDING AT NO.74, 2^ND CROSS NEAR SLN SCHOOL BEHIND ASHOKNAGAR,

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WIDIA FACTORY BENGALURU-560 057.

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… APPELLANTS

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(BY SRI P.SHIVAKUMAR, ADVOCATE)

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AND:

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1 . ICICI LOMBARD GENERAL INSURANCE CO. LTD., NO.89, 2^ND FLOOR, SVR COMPLEX, MADIWALA, HOSUR ROAD, BENGALURU-560 068

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2 . SRI. MAHESH S., S/O SHIVAKUMAR, NO.6561, POOJA STORES, HOSUR MAIN ROAD, MADIWALA, BENGALURU-560 068

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3 . SRI RAVI S/O JAWARAIAH, NO.553, 25^TH CROSS, BAGALAKUNTE, NAGASANDRA POST, HESARGHATTA MAIN ROAD, BENGALURU-560 073

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… RESPONDENTS

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(BY SRI H.N.KESHAVA RPASHANTH, ADVOCATE FOR R1; SRI H.C.RAMASWAMY, ADVOCATE FOR R2 AND R3)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23.09.2014 PASSED IN MVC.NO.2596/2013 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE AND XXXIV ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS M.F.A. COMING ON FOR ADMISSION THROUGH ‘VIDEO CONFERENCE’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Though this matter is listed for admission today, with the consent of both the learned counsel it is taken up for final disposal.

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This appeal is filed by the appellants/claimants challenging the Judgment and Award dated 23.09.2014 passed in M.V.C.No.2596/2013 on the file of IX Additional Small Causes and Additional MACT, Bengaluru (SCCH-7) (‘the Tribunal’ for short), questioning the quantum of compensation awarded by the Tribunal.

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The parties are referred to as per their original ranking before the Tribunal to avoid the confusion and for the convenience of the Court.

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The factual matrix of the case is that on 02.03.2013 at about 10:30 a.m, when the deceased was standing to cross Bengaluru-Tumakuru road, at that time, a Chevrolet Car bearing registration No.KA-01-AA-9150 driven by its driver came from Bengaluru side with high speed, in a rash and negligent manner

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and dashed against the deceased. As a result, he has sustained grievous injuries and succumbed to the same.

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The claimants before the Tribunal have contended

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that the deceased was earning Rs.30,000/- per month and they lost the earning member of the family. He was aged about 63 years and a retired FDC and also a Civil Contractor.

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The claimants in order to substantiate their claim, they have examined one witness as P.W.1 and also examined two witnesses as P.Ws.2 and 3 and got marked the documents as Exs.P1 to P31. On the other hand, the respondents have examined one witness as RW.1 and got marked the documents as Exs.R1 to R2.

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The Tribunal, after considering both oral and documentary evidence available on record, allowed the claim petition of the petitioners in part granting compensation of Rs.2,22,060/- with 6% interest per annum from the date of petition till the date of payment. The Tribunal also comes to the conclusion that the deceased also contributed 50% negligence in the accident and the Insurance Company is liable to pay only

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50% of the amount. Hence, the present appeal is filed by the claimants before this Court.

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The learned counsel for the appellants would vehemently contend that the Tribunal has committed an error in apportioning the negligence to the extent of 50%. The learned counsel in support of his arguments, he contend that in the similar circumstances the Division Bench of this Court in MFA No.3004/2019 c/w. 5589/2019 D.D. 09.01.2020 , had taken the negligence to the extent of 20%. The learned counsel also vehemently contend that the Tribunal has committed an error in taking the monthly income of Rs.4,000/- and also committed an error in coming to the conclusion that the age of the deceased was 77 years. Hence, it requires an interference of this Court.

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Per contra, learned counsel appearing for the first respondent/Insurance Company would vehemently contend that the witnesses, who have been examined before the Tribunal have given the different age of the deceased i.e., 72, 73, 75 and 77 years. The Tribunal after thorough examination, considered the hospital records, which show 77 years. Hence, the Tribunal

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has not committed any error and it does not require any interference by this Court

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In reply to the arguments of learned counsel

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appearing for the first respondent/Insurance Company, the learned counsel for the appellants would brought to the notice of this Court that, the post-mortem report discloses the age of the deceased as 63 years and also brought to the notice of this Court that as per Ex.P11, the age of the wife was 57 years as on the date of the accident and the age of the other children relying upon their Voter’s ID and submits that the Court has to considered the age as mentioned in the post-mortem report.

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Having heard the arguments of the respective counsel and on perusal of the grounds urged in the appeal and the materials available on record, the points that would arise for consideration of this Court are:

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(i) Whether the Tribunal has committed an error in taking 50% negligence on the part of the deceased?

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(ii) Whether the Tribunal has committed an error in not awarding the just and reasonable

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compensation and whether it requires an interference of this Court?

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(iii) What order?

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Point No.(i):

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Having heard the respective counsel and on perusal of the material available on record, it is not in dispute that the deceased was crossing the road where there was no zebra crossing or pedestrian cross to cross the said road. Though the claimants contend that the deceased was standing near the busstand, the material particularly, Ex.P6-sketch discloses that, while crossing the road an accident was taken place. However, the Tribunal has committed an error in taking the negligence on the part of the deceased to the extent of 50% and the place of accident depicted in the sketch – Ex.P6.

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This Court also earlier in certain circumstances when

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the injured/deceased was crossing the road in the absence of any zebra cross, taken 20% negligence. Having considered the evidence available on record, particularly Ex.P6, it is appropriate to take the negligence 20% instead of 50%. The Tribunal has committed an error in taking the negligence to the extent of

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50% in respect of the deceased. Hence, I answered point No.(i) as ‘partly affirmative’.

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Point No.(ii) & (iii):

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With regard to the quantum of compensation is concerned, the first claimant is the wife of the deceased and her age mentioned as 56 years in the claim petition. On perusal of Ex.P11, her date of birth is mentioned as 54 years. She is below the age of 60 years. No doubt, the claimants have also not placed any material before the Tribunal with regard to the age of the deceased. Having taken note of the medical records while admitting the injured, the age was mentioned as 77 years and during the course of the evidence also they have given the different age. In the absence of documentary proof with regard to the age, the Court has to take note of the age mentioned in the post-mortem report. In the post-mortem report, the age is mentioned as 63 years. Hence, the Tribunal has committed an error in taking the age of the deceased as 77 years and applying the multiplier 5. Having taken note of the age mentioned in the post-mortem report as 63 years, the relevant multiplier applicable is 7.

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Having considered the material on record, the Tribunal has taken the monthly income as Rs.4,000/-, which is not correct. The accident was of the year 2013. In the absence of documentary proof, the Tribunal ought to have taken the monthly income as Rs.8,000/-. Out of Rs.8,000/- 1/3^rd is to be deducted towards ‘personal expenses’, then, it comes to Rs.5,333/- and by applying the relevant multiplier ‘7’, it comes to Rs.4,47,972/- and the same is rounded off to Rs.4,48,000/(5333x12x7) towards ‘loss of dependency’.

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The claimants are entitled for an amount of Rs.70,000/- under ‘other conventional heads’ in view of the judgment of the Apex Court in the case of NATIONAL

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INSURANCE COMPANY LIMITED v. PRANAY SETHI AND

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OTHERS reported in (2017) 16 SCC 680 .

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The Tribunal has awarded Rs.1,19,100/- towards ‘Medical expenses’ incurred by the claimants. It is not in dispute subsequent to the treatment the deceased passed away. Hence, the Tribunal has rightly taken the medical expenses of Rs.1,19,100/-, which is just and reasonable. It does not call for any interference by this Court.

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Out of the total compensation of Rs.6,37,100/-, 20%

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has to be deducted towards negligence on the part of the deceased, then, the total compensation comes to Rs.5,09,680/(20% of 6,37,100=1,27,420).

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In all, the appellants/claimants are entitled for an enhanced compensation of Rs.5,09,680/as against Rs.2,22,060/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till the date of payment.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) The Judgment and Award dated 23.09.2014 passed in M.V.C.No.2596/2013 on the file of IX Additional Small Causes and Additional MACT, Bengaluru (SCCH-7) is modified granting compensation of Rs.5,09,680/- as against Rs.2,22,060/awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till the date of payment.

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(iii) The respondent No.1/Insurance Company is directed to deposit the enhanced compensation amount within six weeks from today.

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(iv) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

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Sd/JUDGE

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cp*

Smt Shivamma v. Icici Lombard General Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

Smt Shivamma v. Icici Lombard General Insurance Co. Ltd.

Case brief

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What did the court decide?

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