Partly allowed

Smt Gangasiddamma v. Suma

Karnataka HC1 Dec 2022MFA/1397/2018

Case brief

AI extract

What is this about?

The High Court disposed of Medical First Appeals against a Motor Vehicles Act award. The court found 15% contributory negligence on the deceased, recalculated loss of dependency citing Supreme Court precedents, and allowed enhancement of compensation by Rs.45,200 with 6% interest.

What did the court decide?

Appeals allowed in part; compensation enhanced by Rs.45,200 with 6% p.a. interest; 15% contributory negligence on deceased fixed; Insurance Company directed to deposit amount.

Smt Gangasiddamma Vs Suma — Insurance | Karnataka HC (2022)

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MFA No. 1397 of 2018

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C/W MFA No. 2479 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF DECEMBER, 2022

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PRESENT

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THE HON'BLE MR. JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR. JUSTICE C M JOSHI

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MISCELLANEOUS FIRST APPEAL NO. 1397 OF 2018 (MV-D)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 2479 OF 2016 (MV-D)

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IN M.F.A.1397/2018

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BETWEEN:

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Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

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SMT. GANGASIDDAMMA AGED ABOUT 50 YEARS, W/O LATE MUDDARANGAIAH,

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GANGAMBIKE K M AGED ABOUT 33 YEARS, D/O LATE MUDDARANGAIAH, W/O SATHEESH K N.

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DINESH K M AGED ABOUT 28 YEARS, S/O LATE MUDDARANGAIAH,

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BASAVARAJU K M AGED ABOUT 77 YEARS, S/O LATE MARISASALAIAH,

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MFA No. 1397 of 2018

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C/W MFA No. 2479 of 2016

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JAYAMMA AGED ABOUT 65 YEARS, W/O BASAVARAJU K M

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ALL ARE RESIDING AT PALASANDRA VILLAGE, KORA HOBLI, TUMKUR - 572 122.

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…APPELLANTS

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(BY SRI. MUSHTAQ AHMED, ADVOCATE)

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AND:

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SUMA AGED ABOUT 46 YEARS, S/O T.S.NAGARAJ, S.R.S.BUILDING, WARD NO.15, OPP. ROAD WAY STATION, NEAR ANJANEYA TEMPLE, SHANTHINAGAR, TUMKUR - 572 130.

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CHOLAMANDALAM MS GENERAL INSURANCE CO LTD., 2ND FLOOR, DARE HOUSE, 2ND NSC BOSE ROAD, CHENNAI - 600 001. REP BY ITS MANAGER.

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…RESPONDENTS

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(BY SRI.B.PRADEEP., ADVOCATE FOR R2; NOTICE TO R1 DISPENSED WITH V/O DTD.14.09.2021)

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THIS MFA FILED IS U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:06.01.2016 PASSED IN MVC NO.535/2013 ON THE FILE OF THE I ADDITIONAL DISTRICT

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MFA No. 1397 of 2018

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C/W MFA No. 2479 of 2016

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AND SESSIONS JUDGE AND MACT., TUMKUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION

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IN M.F.A.2479/2016

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BETWEEN:

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THE DIVISIONAL MANAGER, CHOLAMANDALAM, GIC LTD., 2ND FLOOR, DARE HOUSE, 2 NSC BOSE ROAD, CHENNAI - 01

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NOW REPRESENTED BY ITS LEGAL MANAGER, SR. MANAGER - CLAIMS, CHOLAMANDALAM M.S.GIC LTD, NO.1/2, GOLDEN HEIGHTS, 6TH FLOOR, 59TH C CROSS, 4TH M BLOCK, RAJAJINAGAR BANGALORE - 10.

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(BY SRI. B.PRADEEP,A8DVOCATE)

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AND:

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GANGASIDDAMMA W/O LATE MUDDARANGAIAH, AGED ABOUT 48 YEARS,

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GANGAMBIKE K M D/O. LATE MUDDARANGAIAH, W/O. SATHEESH K N AGED ABOUT 33 YEARS,

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DINESH K M S/O. LATE MUDDARANGAIAH, AGED ABOUT 26 YEARS,

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…APPELLANT

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MFA No. 1397 of 2018

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C/W MFA No. 2479 of 2016

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BASAVARAJU K M S/O LATE MARISASALAIAH, AGED ABOUT 75 YEARS,

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JAYAMMA

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W/O BASAVARAJU K M AGED ABOUT 65 YEARS, ALL ARE R/AT PALASANDRA VILLAGE, KORA HOBLI, TUMKUR - 20

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SUMA S/O T.S.NAGARAJ, S.R.S.BUILDING, NEAR ANJANEYA TEMPLE, WARD NO.15, OPP ROAD WAY STATION, SHANTHINAGAR, TUMKUR - 20

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…RESPONDENTS

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(BY SRI.MUSHTAQ AHMED, ADVOCATE FOR R1 to 5 R6 SERVED AND UNREPRESNTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:06.01.2016 PASSED IN MVC NO.535/2013 ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MACT., TUMKUR, AWARDING COMPENSATION OF RS.9,23,800/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, C.M.JOSHI J., DELIVERED THE FOLLOWING:

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JUDGMENT

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By the consent of learned counsel for both the side, the

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matters are taken up for final disposal, though they are posted

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for Admission.

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MFA No. 1397 of 2018

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C/W MFA No. 2479 of 2016

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Being aggrieved by the judgment and award dated 06.01.2016 passed in MVC No.535/2013 by the learned I- Additional District and Sessions Judge and MACT, Tumkur, whereby the petition filed by the petitioners came to be allowed in part and a sum of Rs.9,23,800/- together with interest at 8% p.a., has been awarded as compensation, the petitioners herein have preferred MFA No.1397/2018 seeking enhancement of compensation and Insurance Company has preferred MFA No.2479/2016 seeking to set aside the same by urging various grounds .

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The parties are referred to as per their

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nomenclature before the Tribunal for the sake of convenience.

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3. The brief facts of the case are as below;

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That on 13.10.2012 at 8.40 p.m. Muddarangaiah was proceeding on his motor bike bearing Regn.No.KA.06.EA.8578 from Tumakuru towards Palasadra on N.H.4 service road infront of tiles Factory, a lorry bearing Regn.No.KA.06.D.5555 was parked on the road without any parking signal and suddenly he took the said lorry in reverse, as a result hit the motor cycle on

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MFA No. 1397 of 2018

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C/W MFA No. 2479 of 2016

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which Muddarangaiah was proceeding. As a result, he fell down and sustained fatal injuries. Immediately, he was shifted to General Hospital, Tumakuru, from there to NIMHANS Bangalore, at NIMHANS he succumbed to the injuries on 19.10.2012.

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It is further case of the petitioners that they are the legal representatives of deceased Muddarangaiah and they have spent money towards medical expenses and incidental charges. It is further contended that deceased Muddarangaiah was very hale and healthy and he was aged about 48 years and earning Rs.40,000/- per month by doing agriculture and areca business and because of the untimely death of Muddarangaiah petitioners have sustained loss. It is also contended that, 1^st respondent is the owner of the lorry and 2^nd respondent is the insurer of the lorry and therefore both of them are jointly and severally liable to pay the compensation and prayed for compensation of Rs.50,00,000/- with interest at 12% P.A. till realization.

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MFA No. 1397 of 2018

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C/W MFA No. 2479 of 2016

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In response to the notice issued by the Tribunal, respondents appeared through their counsel and filed written statements.

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1^st respondent denied the petition averments as false and contended that, the lorry bearing Reg No.KA.06.D.5555 was insured with the 2^nd respondent and the policy was in force on the date of accident and that the driver of the lorry had valid and effective driving licence on the date

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of accident and therefore, she is not liable to pay the compensation and prayed to dismiss the petition.

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2^nd respondent has filed its written statement denying all the petition averments as false and contending that, 1^st respondent has not intimated the accident to the 2^nd respondent and its liability is subject to terms and conditions of the policy. The compensation claimed is highly excessive and the interest sought is exorbitant and prayed to dismiss the petition.

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On the basis of the above pleadings and contentions of the parties, the Tribunal has framed necessary issues for its

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8 - MFA No. 1397 of 2018

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C/W MFA No. 2479 of 2016

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consideration and after hearing the parties and considering the oral evidence of PWs.1 and 2 and RW1 and documentary evidence of Exs.P1 to P11 and Exs. R1 to 3, allowed the petition

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in part and awarded a sum of Rs.9,23,800/- together with interest at 8% p.a. under different heads as below:

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Loss of dependency	Rs.7,48,800/-
Conveyance	Rs. 10,000/-
Funeral expenses	Rs. 25,000/-
Loss of consortium	Rs. 50,000/-
Loss of estate	Rs. 10,000/-
Loss of love and affection	Rs.80,000/-
Total	Rs.9,23,800/-

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Being aggrieved by the same, both the petitioners

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and Insurance Company have approached this Court in MFA No.1397/2018 and MFA No.2470/2016, respectively.

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Respondent No.2- insurance company has appeared in pursuance to the notice issued by this Court in MFA No.1397/2018 and notice to respondent No.1 is dispensed with vide order dated 14-9-2021.

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Tribunal records have been secured and we have heard learned counsel Sri. Mushtaq Ahmed appearing for the

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MFA No. 1397 of 2018

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claimants and the learned counsel Sri. B. Pradeep appearing for the Insurance Company.

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The claimants have contended that that the quantum arrived at by the Tribunal is erroneous. They contend that the income of the deceased has not been assessed properly by the tribunal and compensation claimed by them should have been awarded by the Tribunal.

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Per contra, the insurance company contends that the accident happened on account of the sole negligence on the part of the deceased and as such, the liability could not have been fastened upon the driver of the lorry as there was no such negligence by him.

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The appellant-Insurance Company in MFA No. 2479/2016 contends that the Tribunal has not considered the fact that the lorry was parked by the side of the road and the injured drove the motorcycle from behind and without seeing the lorry dashed to the same on the right side. Though the charge sheet mentions that the lorry was being taken in reverse, that does not obviate the negligence on the part of the

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10 - MFA No. 1397 of 2018

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C/W MFA No. 2479 of 2016

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rider of the motorcycle. Therefore, the learned counsel appearing for the appellant-Insurance Company submits that contributory negligence of the rider of the motorcycle has to be considered by the Court.

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A careful perusal of the records available disclose that the Tribunal has relied on the police papers alone and it was misled by the fact that the charge sheet was laid against the driver of the lorry only. It did not enter into the manner in which the accident happened and as such, it concluded that the police papers disclose the actionable negligence on the part of the driver of the lorry and therefore, fastened the entire liability upon the lorry owner and the Insurance Company of the lorry. It is pertinent to note that the IMV report discloses that there was damage to right side mudguard of the lorry. It shows that though the lorry was being taken in reverse, the rider of the motorcycle did not anticipate that the lorry is coming in reverse, even then he dashed against the lorry and as such, lorry seems to have run over the motorcycle of the rider. If the

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rider of the motorcycle was slow in his approach towards lorry, he could have seen the lorry coming in reverse and would have

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MFA No. 1397 of 2018

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C/W MFA No. 2479 of 2016

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avoided the accident. In that view of the matter, the actionable negligence on the part of the rider of the motorcycle cannot be obviated. Considering these facts, we are of the view that there is also contributory negligence on the part of the rider of the motorcycle i.e. the deceased. If the deceased was slow in his approach towards lorry, the slow moving lorry could have been avoided. Under these circumstances, we hold that the deceased had contributed to the accident to the extent of 15% towards actionable negligence and the lorry driver had contributed 85% towards negligence. The lorry driver should have anticipated that, vehicles are coming from behind as it was a service road by the side of the Highway and therefore, higher negligence has to be attributed to the lorry driver.

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As a consequence, the appeal filed by the Insurance Company has to be allowed in part.

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Coming to the quantum of compensation, the Tribunal has considered the income of the deceased at Rs.4,500/- per month and added 30% towards future prospects and applied the multiplier of 13 and calculated the loss of dependency at Rs.7,48,000/-. It is pertinent to note that in

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12 -

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MFA No. 1397 of 2018

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view of the decision of the Hon’ble Apex Court in the case of National National Insurance Company Limited Vs. Pranay Sethi and others¹ , the future prospects have to be calculated at 25%.

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The guidelines issued by KSLSA concerning the settlement of the cases before the Lok-Adalath are in general consonance with the Minimum Wages Act. As per the guidelines, the notional income for the relevant year i.e. 2012, is Rs.7,000/- per month. Therefore, the effective multiplicand of monthly income would be Rs.7,500/- + Rs.1,750 = Rs.8,750/-.

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The petitioners are the wife, daughter, son, father and mother of the deceased. The daughter of the deceased is married and therefore, the family maintained by the deceased was consisting of four members. Therefore, 1/3^rd has to be deducted towards personal expenses of the deceased and as such, the compensation under the head of loss of dependency is calculated as Rs.8,750/- x 12 x 13 x 2/3^rd = 9,10,000/-. Coming to the compensation under the head of loss of filial love

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1 AIR 2017 SC 5157

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MFA No. 1397 of 2018

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and loss of consortium each to the petitioners are entitled for a sum of Rs.40,000/- in view of the decision of the Hon’ble Apex

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Court in the case of Magma General Insurance Company

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Limited Vs Nanu Ram @ Chuhru Ram and others² and as such, sum of Rs.2,00,000/- is awarded under the said head.

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A sum of Rs.15,000/- each is awarded under the head of loss of estate and funeral expenses.

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It has come in evidence that the deceased died after six days of the accident and he was admitted to the Government Hospital, Tumkur soon after the accident and thereafter was shifted to NIMHANS, Bangalore. The postmortem was conducted at Victoria Hospital, Bangalore. Considering the distance covered and the treatments given in DIMHANS, a sum of Rs.10,000/- has been awarded by the Tribunal and we do not see any reason to interfere with the same and it is undisturbed.

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Thus, the compensation is reassessed as below:

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2 2018 SCC ONLINE SC 1546

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MFA No. 1397 of 2018

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C/W MFA No. 2479 of 2016

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Loss of dependency	Rs.9,10,000/-
Loss of love and affection and	Rs.2,00,000/-
consortium
Funeralexpenses	Rs. 15,000/-
Loss ofestate	Rs. 15,000/-
Conveyance	Rs. 10,000/-
Total	Rs.9,23,800/-
Less: 15% negligence	Rs.1,71,000/- Rs.9,69,000/-
Less: awarded by the Tribunal	Rs.9,23,800/-
Enhancement	Rs. 45,200/-

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Thus, in addition to what has been awarded by the Tribunal, there shall be an increase of Rs.45,200/- together

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with interest at 6% p.a. from the date of petition till its realization.

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Hence, we pass the following:

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ORDER

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(i) M.F.A.No.1397/2018 filed by the claimants and

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M.F.A.No.2479/2016 filed by the Insurance Company are allowed in part.

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(ii) The impugned judgment and award dated 06-012016 passed in MVC No.535/2013 by the Tribunal is modified fixing 15% contributory negligence on the part of the deceased

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MFA No. 1397 of 2018

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C/W MFA No. 2479 of 2016

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and awarding enhanced compensation of Rs.45,200/- with interest at 6% p.a. from the date of petition till its realization.

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(iii) The conditions of apportionment and deposit as ordered by the Tribunal remain unaltered.

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(iv) Insurance Company is directed to deposit the compensation amount with interest within four weeks from the date of receipt of the copy of this order.

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(v) The amount in deposit, if any, in MFA No.2479/2016 shall be transmitted to the jurisdictional Tribunal forthwith.

Sd/JUDGE

Sd/JUDGE

tsn/yan

List No.: 2 Sl No.: 17

Smt Gangasiddamma v. Suma

Case brief

What is this about?

What did the court decide?

Smt Gangasiddamma v. Suma

Case brief

What is this about?

What did the court decide?

What the court decided

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