Partly allowed

The New India Assurance Co. Ltd. v. Smt Lalithamma B.S.

Karnataka HC30 Nov 2022MFA/5722/2019

Case brief

AI extract

What is this about?

High Court enhanced compensation awarded to dependents of a pillion rider killed in a motor vehicle accident. Court rejected contributory negligence claim and recalculated loss of dependency and consortium, increasing total compensation significantly.

What did the court decide?

Enhancement of compensation from Rs.12,22,000 to Rs.20,81,200 including loss of dependency, consortium, and estate expenses, with interest.

The New India Assurance Co. Ltd. Vs Smt Lalithamma… — Motor Accident Claims | Karnataka HC (2022)

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MFA No. 5588 of 2019 C/W MFA No. 5722 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF NOVEMBER, 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. 5588 OF 2019 (MV-D)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 5722 OF 2019(MV-D)

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IN MFA NO. 5588 OF 2019

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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. LALITHAMMA B.S. W/O LATE K V SOMASHEKARA, AGED ABOUT 27 YEARS.

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SMT. VENKATALAKSHMAMMA W/O. LATE VENKATARAYAPPA, AGED ABOUT 72 YEARS,

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BOTH ARE R/AT KAMATAPALLI VILLAGE, NAREMADDEPALLI POST, BAGEPALLI TALUK - 561 212 CHIKKABALLAPUR DISTRICT.

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…APPELLANTS

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(BY SRI. ADINARAYANA, ADVOCATE )

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MFA No. 5588 of 2019 C/W MFA No. 5722 of 2019

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AND:

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THE MANAGER, NEW INDIA ASSURANCE CO. LTD., (671902) G. G. ARCADE, 2940/E, 3RD FLOOR, W.O.C. ROAD, OPP. MARUTHI MANDIR, VIJAYANAGAR, BANGALORE - 560 040. (POLICY NO.67190231160300005749) (INSURER OF LORRY BEARING REG NO.AP-21-TA-0637)

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SRI. TAPAL HEBEEB S/O. T IBRAHIM, AGED ABOUT MAJOR, NO.1/46, NEAR NAMIA MASJID ROAD, CHANGALAMARRI MANDALAM, KARNOOL - 518 553, ANDHRA PRADESH. (OWNER OF LORRY BEARING REG NO.AP-21-TA-0637).

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…RESPONDENTS

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(BY SRI.C.R.RAVISHANKAR, ADVOCATE FOR R1; SRI.M.M. ASHOKA, ADVOCATE FOR R2;)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:27.02.2019, PASSED IN MVC NO.1189/2017, ON THE FILE OF THE II ADDITIONAL JUDGE & XXVIII ACMM., COURT OF SMALL CAUSES AND MACT, BENGALURU (SCCH-13), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 5722/2019

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BETWEEN:

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THE NEW INDIA ASSURANCE CO., LTD.,

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MFA No. 5588 of 2019 C/W MFA No. 5722 of 2019

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THIRD PARTY CLAIMS HUB, MAHALAKSHMI CHAMBERS, NO.9, 2ND FLOOR, M.G. ROAD, BANGALORE - 560 001 REPRESENTED BY ITS MANAGER.

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…APPELLANT

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(BY SRI. C.R.RAVISHANKAR., ADVOCATE )

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AND:

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SMT. LALITHAMMA B.S. AGED ABOUT 27 YEARS, W/O LATE K V SOMASHEKAR,

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SMT. VASANTHALAKSHMAMMA AGED ABOUT 72 YEARS, W/O LATE VENKATARAYAPPA, BOTH ARE R/AT. KAMATAPALLI VILLAGE, NAREMADDEPALLI POST, BAGEPALLI TALUK, CHIKKABALLAPUR DISTRICT.

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SRI. TAPAL HEBEEB AGED ABOUT MAJOR, S/O.SRI.T IBRAHIM,R/A.NO.1/46-A-1, NEAR NAMIA MASJID ROAD, CHANGALAMARRI MANDALAM, KARNOOL ,ANDHRA PRADESH.

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…RESPONDENTS

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(BY SRI.ADINARAYAN, ADVOCATE FOR R1 & R2 SERVICE OF NOTICE TO R3 IS HELD SUFFICIENT V/O DTD.10.10.2022;

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:27.02.2019, PASSED IN MVC NO.1189/2017, ON THE FILE OF THE II ADDITIONAL JUDGE &

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MFA No. 5588 of 2019 C/W MFA No. 5722 of 2019

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XXVIII ACMM., COURT OF SMALL CAUSES AND MACT, BENGALURU (SCCH-13), AWARDING COMPENSATION OF RS.12,22,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT OF THE AMOUNT IN THE TRIBUNAL.

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

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JUDGMENT

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Being aggrieved by the judgment and award dated 27-02-2019 passed in MVC No.1189/2017 by the learned II Additional Judge and XXVIII ACMM, Court of Small Causes and MACT, Bengaluru, (SCCH-13), whereby the petition filed by the petitioners came to be partly allowed and awarded compensation of Rs.12,22,000/- together with interest at 6% p.a., petitioners have preferred MFA No.5588/2019 seeking enhancement and Insurance Company

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has preferred MFA No.5722/2019 seeking modification urging various grounds.

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The parties are referred to as per their nomenclature

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before the Tribunal for the sake of convenience.

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The brief facts of the case are as below:

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MFA No. 5588 of 2019 C/W MFA No. 5722 of 2019

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That on 2.2.2017 around 11.45 p.m. when the

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deceased Somashekar was proceeding as a pillion rider on motor cycle bearing Regn.No.KA 40 W 8973 along with one

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Kiran on NH.7, opposite To Sales Tax Office, Adepalli, Bagepalli, the driver of lorry bearing Regn No AP 21 TA 637 was proceeding in front of motor cycle at high speed in a rash and negligent manner and suddenly stopped the vehicle without giving any signal or any indication. The motor cycle which was behind the lorry dashed against it. As a result, the rider of the bike namely Kiran died on the spot and Somashekar sustained bleeding injuries to his face, right eye, right lips and immediately, he was shifted to Govt Hospital, Bagepalli but he did not respond to the treatment and he succumbed to the injuries on the next day.

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It is further contended that, the Police have registered the case against the driver of the offending lorry and filed charge sheet. The petitioners being the wife and mother of the deceased have filed the claim petition under Section 166

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MFA No. 5588 of 2019 C/W MFA No. 5722 of 2019

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of M.V. Act, claiming compensation of Rs.50,00,000/contending that deceased was aged about 36 years on the date of accident and he was working as Supervisor at Foundation for Ecological Security, Rural Society, Pathapalya Branch, Bagepalli and getting salary of Rs.25,000/- p.m., and they were depending on the earnings of the deceased. Due to his untimely death, petitioners are suffering to lead their life and the accident occurred purely due to rash & negligent driving by the driver of offending lorry. Therefore, respondent No.1 & 2 being the insurer and owner of the lorry are liable to pay compensation amount and prayed to allow the petition.

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4. In response to the notice issued by the Tribunal, respondents No.1 & 2 have appeared through their counsels and resisted the case of the petitioners by filing objections by contending that the petitioners have filed this claim petition on imaginary ground and the compensation amount claimed by them is excessive arbitrary and exorbitant.

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MFA No. 5588 of 2019 C/W MFA No. 5722 of 2019

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5. Further, 1st respondent-Insurance Company has admitted issuance of policy in respect of offending vehicle in favour of 2nd respondent, however, it has contended that its liability, if any, is subject to conditions of the policy. Further, it has contended that the driver of the said lorry was not holding valid and effective driving licence and permit as on the date of accident. Respondents have contended that the lorry in question did not involve in the accident nor caused any accident but the petitioners and others in collusion with the Police have got registered a false case to claim compensation. Respondents have denied the manner of accident, age, income and dependency and requested to dismiss the claim petition.

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On the basis of the pleadings and contentions of the

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parties, the Tribunal has framed necessary issues for its consideration.

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Before the Tribunal, 1st petitioner got examined herself as PW1 and marked Exs.P1 to P11. Respondents

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MFA No. 5588 of 2019 C/W MFA No. 5722 of 2019

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have examined one witness as RW1 and got marked Exs. R1

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and 2.

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On hearing both the sides and considering the oral and documentary evidence available on file, the Tribunal

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has allowed the petition in part and awarded a sum of

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Rs.12,22,000/- under different heads as below:

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Loss of dependency	Rs. 11,52,000/-
Loss of consortium	Rs. 40,000/-
Loss of Estate	Rs. 15,000/-
Transportation of dead body and	Rs. 15,000/-
funeral expenses
Total	Rs. 12,22,000/-

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Being aggrieved by the same, both the petitioners

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and Insurance Company have approached this Court in these appeal seeking enhancement of compensation and seeking reduction of compensation respectively.

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The petitioners who are appellants in MFA No.5588/2019 contend that the compensation awarded by

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the Tribunal is inadequate, grossly insufficient as the Tribunal

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MFA No. 5588 of 2019 C/W MFA No. 5722 of 2019

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failed to consider the evidence tendered by the petitioners.

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The deceased Somashekhar was working as a Supervisor in a Society and also he was doing agricultural work and as such,

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his monthly income was more than Rs.25,000/- per month. Ignoring such evidence, the Tribunal has considered the notional income of Rs.9,000/- per month and has failed to adopt the future prospects while arriving at just compensation.

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The respondent-Insurance Company in its appeal in MFA No.5722/2019 contended that the deceased had collided with the lorry from behind and had sustained the head injury before succumbing to the injuries sustained. Therefore, there was negligence on the part of the deceased, which has not been considered by the Tribunal in a proper way. It is alleged that the Tribunal did not apply its mind to the fact that if the deceased had maintained the sufficient distance and had seen the braking lights, the accident would have been avoided. It is also contended that the compensation

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MFA No. 5588 of 2019 C/W MFA No. 5722 of 2019

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awarded by the Tribunal is on the higher side and as such, the contributory negligence as well as the income of the deceased needs to be reconsidered by this Court.

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Tribunal records have been secured and we have heard learned counsel Sri Adinarayan, appearing for the claimants and the learned counsel Sri C.R. Ravishankar, appearing for the Insurance Company, who have taken notice of the appeals respectively. The learned counsel Sri M.M.Ashok, appearing for 2^nd respondent in MFA

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No.5588/2019 is also heard.

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The records reveal that on 2-02-2017 at about 11.45 p.m. while the deceased was riding his motor cycle bearing No.KA.40.8973 on NH 7, he rammed into the back of the lorry, as it stopped abruptly and suddenly in the middle of the road. The accident was investigated by the police and chargesheet was filed against the lorry driver. The said chargesheet clearly indicated that the accident occurred due to the negligence on the part of the lorry driver. At this

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MFA No. 5588 of 2019 C/W MFA No. 5722 of 2019

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juncture, there is nothing on record to show that there was any contributory negligence on the part of the deceased. There is also nothing on records to show that the deceased

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was not wearing a helmet and that he had failed to maintain safe distance from the lorry. If at all, such a situation had existed, it could have been borne out of the chargesheet

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papers. The Insurance company has also not led any evidence, except examining RW1 who is the official of the insurance company. He was not an eye witness to the accident and therefore, his evidence is based on the documentary evidence alone. Though the PM report at Ex.R2 states that there was head injury, there is nothing on record to establish that the accident was on account of the negligence of the deceased himself. On the contrary, there is evidence in the form of chargesheet that the accident occurred due to the negligence on the part of the driver of the lorry bearing No.AP.21.TA 637. The finding of the

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MFA No. 5588 of 2019 C/W MFA No. 5722 of 2019

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Tribunal on this aspect is proper and no interference will be needed in that regard.

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Coming to the quantum of compensation, the

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Tribunal has considered the income of the deceased at Rs.9,000/- per month and adopting the multiplier of 16, for the age of 33 years of the deceased, it awarded a sum of Rs.11,52,000/- towards loss of dependency. It is evident that, it failed to consider the future prospects. There is no

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material on record to show that he was working as Supervisor in Foundation of Ecological Security as claimed by the petitioners. Hence, by adopting the guidelines adopted for settlement of the cases before the Lok Adalaths, the income of the deceased is taken notionally at Rs.11,000/and adding 40% of the same towards future prospects, the effective income is taken at Rs.15,400/- per month. By deducting 1/3rd towards the personal expenses, the loss of dependency is calculated as: Rs.15,400/- x 12 x 16 x 2/3=19,71,200/-.

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MFA No. 5588 of 2019 C/W MFA No. 5722 of 2019

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Petitioners are the wife and mother of the

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deceased and they are entitled for compensation under the head of consortium and filial love and affection. Therefore, in view of the decision in the case of Magma General Insurance Company Limited Vs Nanu Ram @ Chuhru Ram and others¹ a sum of Rs.40,000/- each has to be granted to Petitioners No.1 and 2. The petitioners are also entitled for a sum of Rs.15,000/- each under the head of loss of estate and funeral expenses.

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Thus, the compensation is re-assessed as below:

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Loss of dependency	Rs. 19,71,200/-
Loss of consortium	Rs. 80,000/-
Loss of Estate	Rs. 15,000/-
Transportation of dead body and funeral expenses	Rs. 15,000/-
Total	Rs. 20,81,200/-
Less: awarded by the Tribunal	Rs. 12,22,000/-
Enhancement	Rs. 8,59,200/-

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Thus, in addition to what has been awarded by the

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Tribunal, there shall be an increase of Rs.8,59,200/- together 1 2018 SCC ONLINE SC 1546

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MFA No. 5588 of 2019 C/W MFA No. 5722 of 2019

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

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Hence, we pass the following:

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ORDER

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(i) MFA No.5588/2019 preferred by the claimants/ petitioners is allowed in part.

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(ii) MFA No.5722/2019 preferred by the Insurance Company is dismissed.

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(iii) The impugned judgment and award dated 27.02.2019 passed in MVC No.1189/2017 by the Tribunal is modified by awarding enhanced compensation of Rs.8,59,200/- with interest at 6% p.a. from the date of petition till its deposit.

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

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MFA No. 5588 of 2019 C/W MFA No. 5722 of 2019

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(v) Insurance Company is directed to deposit the

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compensation amount with interest within four weeks from the date of receipt of the copy of this order.

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(vi) The amount in deposit in MFA No.5722/2019 shall

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be transmitted to the concerned Tribunal forthwith.

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Sd/JUDGE

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Sd/JUDGE

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tsn* List No.: 2 Sl No.: 21

The New India Assurance Co. Ltd. v. Smt Lalithamma B.S.

Case brief

What is this about?

What did the court decide?

The New India Assurance Co. Ltd. v. Smt Lalithamma B.S.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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