Partly allowed

Cholamandalam M S General Insurance Company v. Annapoornamma

Karnataka HC17 Nov 2022MFA/2794/2017

Case brief

AI extract

What is this about?

This High Court disposed of four Motor Accident Appeals challenging a Tribunal's award of compensation for two deceased victims of an accident. The Court enhanced the compensation amounts awarded to the claimants by recalculating based on notional income and future prospects, dismissed the insurance company's appeal seeking reduction, and directed the deposit of the increased amounts with interest

What did the court decide?

Compensation enhanced to Rs.14,78,200/- in MAVC 4916/2014 and Rs.18,66,528/- in MAVC 4915/2014, with interest at 6% p.a.; appeals by insurer dismissed.

Cholamandalam M S General Insurance Company Vs… — Medical Negligence | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF NOVEMBER, 2022

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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.4650/2017 (MV-D)

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C/W. M.F.A.NO.2794/2017 (MV-D) M.F.A.NO.2795/2017 (MV-D) M.F.A.NO.4649/2017 (MV-D)

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IN M.F.A.NO.4650/2017:

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BETWEEN:

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1 . SMT. ANNAPOORNAMMA W/O RAJANNA AGED ABOUT 41 YEARS

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2 . RAJANNA S/O LATE SASALAIAH AGED ABOUT 48 YEARS

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3 . CHAITRA D/O RAJANNA AGED ABOUT 23 YEARS

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4 . AKKAMARAMMA W/O SASALAIAH AGED ABOUT 63 YEARS

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ALL ARE R/AT. GEJJAGALAPALYA MARIKUPPE POST, SOLUR HOBLI MAGADI TALUK RAMANAGARA DISTRICT. … APPELLANTS

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(BY SRI H.K.SATHEESH, ADVOCATE FOR M/s.BPDS ASSCIATES)

AND:

1 . BABU

S/O GOVINDASWAMY AGED MAJOR NO.85/2, 1^ST MAIN ROAD 1^ST CROSS, SRINAGAR KALIDASA NAGAR BENGALURU-560 050 (OWNER OF LORRY BEARING NO. KA-05-AD-9965)

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2 . THE MANAGER CHOLAMANDALAM M.S.GEN.INS.CO.LTD., NO.135/5, 2^ND FLOOR 15^TH CROSS, J.P.NAGAR III PHASE BENGALURU-560 078. ... RESPONDENTS

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(BY SRI H.S.LINGARAJ, ADVOCATE FOR R2 [THROUGH VC]; NOTICE TO R1 IS DISPENSED WITH VIDE ORDER DATED 18.06.2018)

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THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.01.2017 PASSED IN MVC NO.4916/2014 ON THE FILE OF THE 21^ST ADDITIONAL SMALL CAUSES JUDGE & 19^TH ACMM, MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.NO.2794/2017:

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BETWEEN:

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CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED BY ITS MANAGER, NO.135/5 II FLOOR, 15^TH CROSS J.P.NAGAR III PHASE BENGALURU. NOW AT UNIT No.04, 9^TH FLOOR

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“GOLDEN HEIGHTS COMPLEX” 59^TH CROSS, 4^TH BLOCK RAJAJINAGAR BENGALURU – 560 010 BY ITS ASSISTANT MANAGER (CLAIMS) … APPELLANT

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(BY SRI H.S.LINGARAJ, ADVOCATE [THROUGH VC])

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AND:

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1 . ANNAPOORNAMMA W/O RAJANNA NOW AGED ABOUT 41 YEARS 2 . RAJANNA S/O LATE SASALAIAH NOW AGED ABOUT 48 YEARS 3 . CHAITRA D/O RAJANNA NOW AGED ABOUT 23 YEARS 4 . AKKAMARAMMA W/O SASALAIAH NOW AGED ABOUT 63 YEARS R/AT GEJJAGALAPALYA MARIKUPPE POST, SOLUR HOBLI MAGADI TALUK, RAMANAGARA DISTRICT. 5 . BABU S/O GOVINDASWAMY AGE: MAJOR NO.85/2, 1^ST MAIN ROAD 1^ST CROSS, SRINAGAR KALIDASANAGAR BENGALURU-560 050. ... RESPONDENTS (BY SRI H.K.SATHEESH, ADVOCATE FOR R1 TO R4; R5 IS SERVED)

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THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.01.2017 PASSED IN MVC NO.4916/2014 ON THE FILE OF THE XXI ADDITIONAL SMALL CAUSES JUDGE & XIX ACMM, MEMBER, MACT, BENGALURU (SCCH-23), AWARDING COMPENSATION OF Rs.9,39,000/- WITH INTEREST @ 6% P.A., FROM THE DATE OF PETITION TILL DEPOSIT IN TRIBUNAL.

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IN M.F.A.NO.2795/2017:

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BETWEEN:

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CHOLAMANDALAM M S GENERAL INSURANCE COMPANY LIMITED BY ITS MANAGER, NO.135/5 II FLOOR, 15^TH CROSS J.P.NAGAR III PHASE, BENGALURU NOW AT UNIT No.04, 9^TH FLOOR “GOLDEN HEIGHTS COMPLEX” 59^TH CROSS, 4^TH BLOCK RAJAJINAGAR, BENGALURU – 560 010 BY ITS ASSISTANT MANAGER (CLAIMS)

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… APPELLANT

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(BY SRI H.S.LINGARAJ, ADVOCATE [THROUGH VC])

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AND:

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1 . GANGAMMA NOW AGED ABOUT 46 YEARS W/O SHIVAKUMAR R/O KALLENTEPLAYA, MAGADI TALUK RAMANAGAR DISTRICT.

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2 . LAKSHMI R @ LAKSHMAMMA NOW AGED ABOUT 23 YEARS W/O LATE UMESH D/O RAMAPPA @ RAMAIAH GUDEMARANAHALLI MAGADI TALUK RAMANAGARA DISTRICT AND ALSO AT KALLENTEPALYA

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MAGADI TALUK RAMANAGAR DISTRICT.

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3 . KAVYA D/O UMESH NOW AGED ABOUT 3 YEARS SINCE MINOR REPRESENTED BY NATURAL MOTHER-GUARDIAN SMT. LAKSHMI R THE 2^ND RESPONDENT HEREIN R/AT. GUDEMARANAHALLI, MAGADI TALUK RAMANAGAR DISTRICT.

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4 . BABU S/O GOVINDASWAMY AGE: MAJOR NO.85/2, 1^ST MAIN ROAD 1^ST CROSS, SRINAGAR KALIDASANAGAR BENGALURU-560 050. ... RESPONDENTS

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(BY SRI H.K.SATHEESH, ADVOCATE FOR R1 TO R2; R4 IS SERVED; R4 IS MINOR REPRESENTED BY R2)

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THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.01.2017 PASSED IN MVC NO.4915/2014 ON THE FILE OF THE XXI ADDITIONAL SMALL CAUSES JUDGE, & XIX ACMM, MEMBER, MACT, BENGALURU, AWARDING COMPENSATION OF Rs.12,77,144/- WITH INTEREST @ 6% P.A., FROM THE DATE OF PETITION TILL DEPOSIT IN TRIBUNAL.

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IN M.F.A.NO.4649/2017:

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BETWEEN:

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1 . GANGAMMA W/O SHIVAKUMAR AGED ABOUT 46 YEARS R/At KALLENTEPALYA

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MAGADI TALUK RAMANAGARA DISTRICT.

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2 . LAKSHMI R @ LAKSHMAMMA AGED ABOUT 23 YEARS W/O UMESH D/O RAMAPPA @ RAMAIAH

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3 . KAVYA D/O UMESH AGED ABOUT 3 YEARS 3^RD PETITIONER IS MINOR REPRESENTED BY NATURAL GUARDIAN-MOTHER APPELLANT NO.2 HEREIN APPELLANT Nos.2 AND 3 ARE R/AT GUDEMARANAHALLI, MAGADI TALUK RAMANAGARA DISTRICT. AND ALSO R/AT KALLENTEPALYA MAGADI TALUK RAMANAGAR DISTRICT. … APPELLANTS

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(BY SRI H.K.SATHEESH, ADVOCATE)

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AND:

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1 . BABU S/O GOVINDASWAMY AGE: MAJOR NO.85/2, 1^ST MAIN ROAD 1^ST CROSS, SRINAGAR KALIDASANAGAR BENGALURU-560 050. (OWNER OF LORRY BEARING NO.KA-05 AD-9965)

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2 . THE MANAGER CHOLAMANDALAM M.S.GEN.INS.CO.LTD., NO.135/5, 2^ND FLOOR 15^TH CROSS, J.P.NAGAR III PHASE

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BENGALURU-560 078. ... RESPONDENTS

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(BY SRI H.S.LINGARAJ, ADVOCATE FOR R2; R1 IS SERVED)

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THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.01.2017 PASSED IN MVC NO.4915/2014 ON THE FILE OF THE XXI ADDITIONAL SMALL CAUSES JUDGE AND XIX ACMM, MEMBER MACT BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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

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Heard the learned counsel appearing for the

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claimants and the learned counsel appearing for the Insurance Company.

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These appeals are filed by the claimants as well as the Insurance Company, challenging the judgment and award dated 31.01.2017, passed in M.V.C.No.4916/2014 c/w. 4915/2014 on the file of the XXI Additional Small Causes Judge and the Motor Accident Claims Tribunal, Bengaluru (SCCH-23)

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(‘the Tribunal’ for short), questioning the liability and the quantum of compensation.

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

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The factual matrix of the case of the claimants before the Tribunal is that they are the legal representatives of the deceased S.G.Umesh and Vinod Kumar. Both of them met with an accident on 12.10.2014 and the accusation made in the claim petitions is that the Lorry was unmindfully parked in the middle of the road without any signal or indicator in the National Highway, where there was no provision to park the vehicle. Due to the negligence on the part of the driver of the Lorry, an accident was occurred.

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The claimants in order to substantiate their case, they have examined three witnesses as P.Ws.1 to 3 and got marked the documents as Exs.P1 to P15. On the other hand, the respondents have examined one official witness of the Insurance

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Company as R.W.1 and got marked the documents as Exs.R1 to R4.

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The Tribunal after considering both oral and documentary evidence placed on record allowed both claim petitions and granted compensation of Rs.9,39,000/- and Rs.12,77,144/- with interest at the rate of 6% p.a. Hence, these four appeals are filed by the claimants as well as the Insurance Company.

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The claimants in MFA No.4650/2017 and in MFA No.4649/2017, have vehemently contended that the Tribunal taken the income of Rs.8,000/- per month in both the claim petitions while assessing the loss of dependency and also would submit that the future prospects has not been considered in both the claim petitions and the compensation awarded on other heads are also very meager. Hence, it requires an interference of this Court.

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Per contra, in the appeals filed by the Insurance

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Company in M.F.A.No.2794/2017 and M.F.A.No.2795/2017, the main contention urged before this Court is that the Tata Ace

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driver, who was proceeding along with the goods came and hit the parked vehicle from behind and the accident was occurred due to negligence on the part of the driver of the Auto and the same has not been considered by the Tribunal and ought to have taken the contributory negligence on the part of the driver. Hence, the Tribunal has committed an error in not considering the contributory negligence.

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The learned counsel also would vehemently contend that the compensation awarded are also on higher side and exorbitant. The Tribunal taken the income of Rs.8,000/- in spite of no documentary evidence is placed before the Court to consider their income as Rs.8,000/-. Hence, it requires an interference with.

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Having heard the respective counsel and on perusal of the material 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 not taking the contributory negligence as contended by the Insurance Company in both the appeals?

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(ii) Whether the Tribunal has committed an error in awarding exorbitant compensation as contended by the Insurance Company in both the appeals?

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(iii) Whether the Tribunal has committed an error in not awarding the just and reasonable compensation in both the claim petitions?

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(iv) 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, the main contention of the claimants is that the Lorry was parked unmindfully in the middle of the road that too in the National Highway where there was no provision to park the vehicle. On the other hand, the learned counsel appearing for the Insurance Company would submit that the Lorry tire was bursted. Hence, the Lorry was parked on the left side of the road. The claimants in order to substantiate their claim, they are relied upon the evidence of PWs.1 to 3. P.W.3 is the eye witness to the accident. On the other hand, the respondents relies upon the evidence of RW.1, who is an official witness. When the Insurance Company took the defense that the negligence was on the part of the deceased, who was driving the

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vehicle Tata Ace ought to have examined the driver of the Lorry explaining under what circumstances made him to park the vehicle and the same has not been done. Apart from that, admittedly, the vehicle was parked in the National Highway, where there was no provision to park the vehicle. No doubt, they relies upon the documents-Exs.P4 to P8, Inquest Mahazar, IMV report, spot sketch, marks card of the deceased and the ration card, respectively, Ex.R2-Spot Mahazar and Ex.R3-Spot Sketch. On perusal of Ex.R3-Spot Sketch, admittedly, the Lorry was parked on the left side of the road. There was a divider, an auto came behind the Lorry and dashed against the Lorry. Ex.P3-Spot Mahazar discloses that there were pipes and angles were loaded in the said Lorry and no sign of parking of the vehicle was shown in the Spot Mahazar, which is marked as Ex.R2. Though the Insurance Company relied upon these documents and when the vehicle was parked in the National Highway without any signal or sign board, an accident was occurred in the night at 3:30 a.m. The driver of the Auto cannot expect the same. In order to explain that they have put sign board, the driver of the Lorry has not been examined. Under the circumstances, I do not find any error committed by the Tribunal

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in not taking the contributory negligence. Even if any sign board

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or any signal is shown, in spite of it he dashed the parked vehicle then there would have been a force in the contention of the learned counsel appearing for the Insurance Company and also there was no any provision to park the vehicle. Even if the vehicle tire was bursted, the driver of the Lorry ought not to have parked the Lorry in the Highway. Hence, I do not find any force in the contention of the learned counsel appearing for the Insurance Company to come to an other conclusion. Hence, no merit in the argument of the learned counsel appearing for the Insurance Company to come to a conclusion that the Tribunal has committed an order in not considering the contributory negligence.

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Point Nos.(ii) and (iii):

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The learned counsel appearing for the Insurance Company in both the appeals in his arguments contended that the compensation awarded is on higher side. On the other hand, the learned counsel appearing for the claimants contended that the same is on lesser side. Having considered the material available on record, it was an accident of the year 2014 and the

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income was taken as Rs.8,000/-. In the absence of any documentary evidence, the Tribunal ought to have taken the notional income of Rs.8,500/- per month. In both the claim petitions, the deceased are aged about 24 years and 22 years, respectively. The Tribunal not considered any future prospects in both the cases and also the compensation not awarded on the other heads.

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In M.V.C.No.4916/2014, the deceased-Vinod Kumar is aged about 24 years and he is bachelor. 50% of the income is to be deducted towards personal and living expenses. The notional income would be Rs.8,500/- per month . If it is added 40%, it comes to Rs.11,900/-, after deducing 50%, it comes to Rs.5,950/-, after applying the relevant multiplier 18, the loss of dependency comes to Rs.12,85,200/- (8500+40%=1190050%=5950x12x18).

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The claimants are the parents, sister and also the grand mother. Totally, there are four dependants. Hence, they are entitled for a sum Rs.40,000/- each on the head of loss of love and affection, in all, it comes Rs.1,60,000/- . Apart from that, Rs.33,000/- for funeral expenses and loss of estate.

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In M.V.C.No.4915/2014, the deceased-S.G.Umesh

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was aged about 22 years. He is married. The claimants are the mother, wife and daughter. There are three dependants. Hence, 1/3^rd has to be deducted. The notional income would be

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Rs.8,500/- per month. If it is added 40%, it comes to Rs.11,900/-, after deducing 1/3^rd , it comes to Rs.7,933/-, after applying the relevant multiplier 18, the loss of dependency comes to Rs.17,13,528/- (8500+40%=119001/3^rd =7933x12x18).

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The claimants are the mother, wife and daughter. Hence, they are entitled Rs.40,000/- each on the head of loss of love and affection, in all, it comes Rs.1,20,000/- . Apart from that, Rs.33,000/- for funeral expenses and loss of estate.

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In view of the re-calculation and re-visiting of the compensation, the very contention of the Insurance Company that the Tribunal awarded compensation on higher side cannot be accepted since no future prospects is added and the income taken is also on lower side.

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M.V.C.No.4916/2014 are entitled for a sum of Rs.14,78,200/- as against Rs.9,39,000/- awarded by the Tribunal.

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In all, the claimants/appellants in M.V.C.No.4915/2014 are entitled for a sum of Rs.18,66,528/- as against Rs.12,77,144/- awarded by the Tribunal.

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Point No.(iv):

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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 appeals filed by the claimants in MFA No.4650/2017 and in MFA No.4649/2017, are allowed-in-part.

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(ii) The impugned judgment and award of the Tribunal 31.01.2017, passed in M.V.C.No.4916/2014 c/w. 4915/2014, is hereby modified.

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(iii) The claimants/appellants in M.V.C.No.4916/2014 are entitled for a sum of Rs.14,78,200/- as against Rs.9,39,000/- with interest at 6% per

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annum from the date of petition till the deposit of the amount.

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(iv) The claimants/appellants in M.V.C.No.4915/2014 are entitled for a sum of Rs.18,66,528/- as against Rs.12,77,144/- with interest at 6% per annum from the date of petition till the deposit of the amount.

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(v) The Insurance Company is directed to deposit the compensation amount with interest within six weeks from today.

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(vi) The appeals filed by the Insurance Company in M.F.A.No.2794/2017 and in M.F.A.No.2795/2017, are dismissed.

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(vii) The amount in deposit, if any, be transmitted to the concerned Tribunal forthwith.

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

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Sd/JUDGE

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cp*

Cholamandalam M S General Insurance Company v. Annapoornamma

Case brief

What is this about?

What did the court decide?

Cholamandalam M S General Insurance Company v. Annapoornamma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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