Partly allowed

The Manager v. Varalakshmi W/O Late Bazarappa @ Munna

Karnataka HC1 Aug 2023MFA/100304/2014

Case brief

AI extract

What is this about?

The High Court allowed the second appeal by the Insurance Company but modified the impugned order from MACT Bellary. The Court set aside the subsequent award by MACT Hospet to avoid double claims. Negligence was apportioned at 70% to the lorry driver and 30% to the deceased, resulting in enhanced total compensation of Rs. 6,79,600/-.

What did the court decide?

Judgment and award dated 03.07.2013 passed in MVC No.1219/2011 set aside; impugned judgment in MVC No.1253/2010 modified; total compensation awarded to claimants is Rs. 6,79,600/- carrying interest at

The Manager Vs Varalakshmi W/O Late Bazarappa @ Munna — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC-D:8042 MFA No. 25052 of 2011 C/W MFA No.100304 of 2014, MFA.CROB No.100064 of 2021

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 1^ST DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.25052/2011(MV) C/W

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MISCELLANEOUS FIRST APPEAL NO.100304/2014 MFA CROSS OBJ NO.100064/2021

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IN MFA NO.25052/2011:

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BETWEEN:

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SHRIRAM GEN. INS. CO. LTD., E-8, EPIP, RIICO, SITAPUR, JAIPUR, RAJASTAN – 302 022, REPRESENTED BY ITS AUTHORISED SIGNATORY.

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…APPELLANT

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(BY SRI NAGARAJ C. KOLLOORI, ADVOCATE)

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AND:

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Digitally signed by SUJATA SUBHASH PAMMAR

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SMT. VARAMAHALAKSHMI W/O H. BAJARAPPA @ MUNNA, AGE: 25 YEARS, OCC: HOUSEWIFE.

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OBALAPPA S/O. MASTHANAPPA, AGE: 56 YEARS, OCC: COOLIE,

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ANJANAMMA W/O. OBALAPPA, AGE: 49 YEARS, OCC: COOLIE.

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VENKATESH S/O. H. BAJARAPPA @ MUNNA, AGE: 6 YEARS, OCC:COOLIE.

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NARASHIMHA S/O H. BAJARAPPA @ MUNNA AGE: 6 YEARS, OCC: DRIVER HOUSEWIFE.

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NC: 2023:KHC-D:8042 MFA No. 25052 of 2011 C/W MFA No.100304 of 2014, MFA.CROB No.100064 of 2021

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SRI. B. VANNURSWAMY S/O. B.VADRAPPA, AGE: MAJOR, OCC: DRVER, R/O: PULACHARLA VILLAGE, KANEKAL MANDAL, DIST: ANANTHPURA, ANDRA PRADESH.

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SRI T. PRADEEP S/O. T. THIMMAPPA, AGE: MAJOR, OCC: BUSINESS, R/O: C/O: G. SANJAPPA, H.NO. 151, 3RD CROSS, VIDYANAGAR, BELLARY.

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…RESPONDENTS

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(BY SRI HANUMANTHREDDY SAHUKAR, ADVOCATE FOR R1 TO R5; NOTICE TO R6 IS DISPENSED WITH; R7 IS SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) MOTOR VEHICLE ACT, 1988, PRAYING TO CALL FOR RECORDS AND TO SET ASIDE THE JUDGMENT AND AWARD DATED 11^TH JULY 2011 PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL –XI, BELLARY IN MVC NO.1253/2010 ON THE FOLLOWING FACTS AND AMONG OTHER GROUNDS AND TO PASS SUCH OTHER ORDER OR ORDERS AS THIS HON’BLE COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCE OF THE CASE INCLUDING THE COSTS IN THE INTEREST OF JUSTICE AND EQUITY.

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IN MFA NO.100304/2014:

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BETWEEN:

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THE MANAGER, SHRIRAM GENERAL INSURANCE COMPANY LTD., E/8, EPIP, CHITTAPUR, JAIPUR, RAJASTHAN STATE, BRANCH OFFICE: #/5, 3^RD FLOOR, MONARCH CHAMBER, INFANTRY ROAD, SHIVAJINAGAR, BANGALORE. BY ITS AUTHORIZED SIGNATORY.

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…APPELLANT

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(BY SRI NAGARAJ C. KOLLOORI, ADVOCATE)

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NC: 2023:KHC-D:8042 MFA No. 25052 of 2011 C/W MFA No.100304 of 2014, MFA.CROB No.100064 of 2021

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AND:

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SMT. VARALAKSHMI, W/O. LATE. H. BAZARAPPA @ MUNNA, AGE: 28 YEARS, HINDU, OCC: HOUSEWIFE.

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VENKATESH S/O. LATE. H. BAZARAPPA @ MUNNA, AGE: 7 YEARS.

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NARASHIMHA S/O LATE. BAZARAPPA @ MUNNA AGE: 5 YEARS.

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ALL R/O. PANDAVAPUR COLONY, SIRASANAKALLU, HOSPET, DIST: BELLARY.

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HONUUR SWAMY S/O. HONNURAPPA, AGE:40 YEARS, OCC:DRIVER, R/O: BOMMANAHAL VILLAGE, TQ: KANEKAL, DIST: ANANTHAPUR, A.P. STATE.

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T. PRADEEP S/O. T. THIMMAPPA, AGE:43 YEARS, OCC:OWNER, R/O: C/O: G. SANJAPPA, H.NO. 151, 3RD CROSS, VIDYANAGAR, BELLARY.

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RESPONDENT NO.2 AND 3 ARE BEING MINORS REPRESENTED BY RESPONDENT NO.1 SMT. VARALAKSHMI W/O. LATE BAZARAPPA @ MUNNA AS MINOR GUARDIAN

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…RESPONDENTS (BY SRI HANUMANTHREDDY SAHUKAR, ADVOCATE FOR R1 TO R3; R2 AND R3 ARE MINORS REPRESENTED BY R1; NOTICE TO R4 IS DISPENSED WITH; R5 IS SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) MOTOR VEHICLE ACT, 1988, PRAYING TO CALL FOR RECORDS AND TO SET ASIDE THE JUDGMENT AND AWARD DATED 03.07.2013 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC PRESIDING OFFICER, MOTOR ACCIDENT CLAIM TRIBUNAL-IV

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NC: 2023:KHC-D:8042 MFA No. 25052 of 2011 C/W MFA No.100304 of 2014, MFA.CROB No.100064 of 2021

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HOSPET IN MVC NO.1219/2011 AND PASS SUCH OTHER ORDERS AS THIS HON’BLE COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCE OF THE CASE IN THE INTEREST OF JUSTICE AND EQUITY.

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IN MFA.CROB.NO.100064/2021:

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BETWEEN:

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SMT. VARALAKSHMI, W/O. LATE. H. BAJARAPPA @ MUNNA, AGE: 35 YEARS, OCC: HOME MAKER.

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SRI VENKATESH S/O. LATE. H. BAJARAPPA @ MUNNA, AGE: 16 YEARS, OCC: STUDENT.

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SRI NARASHIMHA S/O. LATE. BAJARAPPA, AGE: 12 YEARS, OCC: STUDENT.

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THE CROSS APPELLANTS NO.2 AND 3 ARE MINOR REPRESENTED BY THEIR MOTHER NATURAL GUARDIAN CROSS APPELLANT NO.1 SMT.VARALAKSHMI W/O. LATE H.BAJARAPPA @ MUNNA, AGE:35 YEARS, OCC: HOME MAKER, ALL ARE R/O: SRINIVASNAKALLI VILLAGE, TQ; HOSAPETE, DIST: BALLARI – 583 201.

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…CROSS OBJECTORS

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(BY SRI HANUMANTHREDDY SAHUKAR, ADVOCATE)

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AND:

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SRI B. VANNURSWAMY S/O. B.VANDRAPPA, AGE.MAJOR, OCC: DRIVER OF LORRY BEARING KA-34/9092, R/O. PULACHARLA VILLAGE KANEKAL MANDAL, DIST: ANANTAPUR, ANDHRA PRADESH – 605 201.

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SRI T. PRADEEP S/O. T. THIMMAPPA, AGE:MAJOR, OCC:OWNER OF THE LORRY KA-34/9092, R/O: C/O: G. SANJAPPA, H.NO. 151,

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3^RD CROSS, VIDYA NAGAR, BELLARY – 583 101.

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THE MANAGER, SHRIRAM GENERAL INSURANCE CO. LTD., E-8, EPIP, RICCO INDUSTRIAL AREA, SEETHAPURA JAIPUR, RAJASTHAN-302 022.

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SRI OBALAPPA S/O. MASTHANAPPA, AGE:66 YEARS, OCC: COOLIE, R/O: SRINIVASNAKALLI VILLAGE, TQ: HSAPETE, DIST: BALLARI – 583 201.

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SMT. ANJINAMMA W/O. OBALAPPA, AGE: 59 YEARS, OCC: COOLIE, R/O: SRINIVASNAKALLI VILLAGE, TQ: HOSAPETE, DIST: BALLARI – 583 201.

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…RESPONDENTS

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(BY SRI NAGARJ C. KALLORI, ADVOCATE FOR R3; NOTICE TO R1, R2 , R4 AND R5 ARE DISPENSED WITH)

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THIS MFA CROB IS FILED UNDER ORDER 41 RULE 22 OF C.P. CODE, 1908, PRAYING TO THE JUDGMENT AND AWARD DATED 11.07.2011 IN MVC NO.1253/2010 PASSED BY THE LEARNED MOTOR ACCIDENT CLAIMS TRIBUNAL –XI AT BALLARI, MAY KINDLY BE MODIFY AND ENHANCE THE COMPENSATION AND ALLOW THE CLAIM PETITION BY ALLOWING THE ABOVE CROSS APPEALS AS PRAYED FOR WITH COST, IN THE INTEREST OF JUSTICE AND EQUITY.

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

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NC: 2023:KHC-D:8042 MFA No. 25052 of 2011 C/W MFA No.100304 of 2014, MFA.CROB No.100064 of 2021

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JUDGMENT

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MFA No.25052/2011 is filed by the Insurance

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Company challenging the judgment and award dated 11.07.2011 passed by the MACT-XI Bellary in MVC No.1253/2010.

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MFA No.100304/2014 is filed by the Insurance Company challenging the Judgment and award dated 03.07.2013 passed by MACT-IV Hospet in MVC No.1219/2011.

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MFA Crob. No.100064/2021 is filed in MFA No.25052/2011 by the claimants seeking enhancement of compensation.

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4. Brief facts of the case are that:

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On 17/04/2010 deceased H.Bajarappa @ Munna

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along with his worker by name Lakshmanna after completion of their work at JVSL, Torangallu was proceeding on Bajaj Platina motorcycle bearing No.KA34/S-3296 towards Hospet. At that time the deceased

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H.Bajarappa @ Munna was riding the said motorcycle. At about 9.00 p.m. when they reached near Banuvalli on NH-

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63, near Sai Baba Temple cross, a lorry came from opposite side and by seeing the said lorry, deceased lost control over his motorcycle and dashed to the parked lorry bearing No.KA-34/9092 which was parked without giving any indicators and signal. It is contended by the claimants that the accident occurred due to the negligence of 6^th respondent who parked the said lorry. As a result, the deceased sustained severe head injury and bleeding and while shifting to the Hospital he succumbed to the injuries.

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Heard the learned counsel for the parties and perused the records.

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Learned counsel for the appellant/Insurance company in both the cases submits that MFA No.25052/2011 and MFA No.100304/2014 are arising out of the same accident and between the same parties. The claim petition filed before MACT, Bellary is under Section 166 of Motor Vehicle Act, 1989 which was disposed on

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11.07.2011. After disposal of the claim petition by MACT,

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Bellary, claimants filed one more claim petition under Section 163-A of Motor Vehicles Act, 1989 which was disposed on 03.07.2013 by MACT, Hospet which was instituted for the very same accident claiming compensation. Therefore, there were two claim petitions before two different MACT’s one at Bellary and another at Hospet, but invoking provisions of Sections 166 and 163-A of Motor Vehicles Act, 1989 respectively.

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Learned counsel for the appellant/Insurance

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company further submitted that the claimants have played fraud before the Tribunal by filing two different claim petitions before two MACT’s by invoking two different provisions of law as stated above. Therefore, he prays to set aside both the judgment and award passed by the MACT’s and submits that claimants are not entitled for enhancement of compensation in the cross-objection filed by them. Therefore, submitted that the fraud vitiated everything.

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The second claim petition filed under Section 163-A of Motor Vehicles Act was filed on 10.11.2011 after disposal of the claim petition filed before the MACT, Bellary on 11.07.2011. Therefore, he submitted that fraud has been played by making double claims by which Insurance company has become a sufferer. Therefore, requested to allow the appeals filed by the insurance company and dismiss the cross-objection filed by the claimants.

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On the other hand, the learned counsel for the claimants/cross-objectors submits that even though two claim petitions are filed, the claimants are innocent people as they are widow, two minor children and age-old parents of the deceased. Because of wrong advice made to the claimants, another claim petition might have been filed under Section 163-A of M.V. Act and fairly conceded that the claim petition disposed of on 11.07.2011 by MACT, Bellary, may be retained and prays to set aside the judgment and award passed in MVC No.1219/2011 passed by the MACT, Hospet.

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Further, he submitted that the claimants are entitled for enhanced compensation. Therefore, prays to allow the cross-objection.

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As contended in the claim petition, on 17.04.2010 after completion of work at JVSL, Toranagallu, the deceased was proceeding on motorcycle bearing No.KA34/S-3296 towards Hospet and at 9.00 p.m., when the deceased reached near Banuvalli on NH-63 near Saibaba temple cross, a lorry came from opposite direction and seeing the lorry, deceased lost control over his motorcycle and dashed to the stationed lorry from behind and due to the said accident, deceased died on the spot.

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The widow, two minor children and father and mother of the deceased have preferred claim petition in MVC No.1253/2010 before the MACT, Bellary invoking the provisions under Section 166 of MV Act and MACT Bellary has disposed of the appeal on 11.07.2011 by granting compensation holding that the owner and insurer of the lorry are liable to pay compensation.

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Later on, after disposal of MVC No.1253/2010 on

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11.07.2011 by MACT, Bellary, the widow and minor children have once again filed another claim petition in MVC No.1219/2011 before MACT, Hospet. After delivering of the judgment by MACT, Bellary, under Section 166 of MV Act, petition under Section 163-A of MV Act is filed by the legal representatives of deceased before MACT, Hospet. The MACT, Hospet by entertaining the petition filed under Section 163-A has allowed the claim petition and granted the compensation.

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There are two claim petitions as discussed above by the same parties in respect of the very same accident one after another. Therefore, either of the judgment and award passed by two different Tribunals are liable to be set aside. Therefore, the judgment and award passed subsequent to claim petition in MVC No.1219/2011 is liable to be set aside for the reasons that the same is filed after disposal of MVC No.1253/2010 on 11.07.2011.

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The claim petition filed at MACT, Hospet is on 10.11.2011. Therefore, the judgment and award passed in MVC No.1219/2011 on the file of MACT, Hospet, is liable to be set aside by retaining the judgment and award passed in MVC No.1253/2010 before the MACT, Bellary, for the reason that the claimants are widow, minor children and parents of the deceased.

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If both these judgments and award are set aside then virtually the claimants are put into loss without getting any compensation. The claimants are minor children aged 5 years and 3 months respectively and wife is aged 24 years old at the time of filing the claim petition for the first time at MACT, Bellary. Therefore, this Court finds that it is not proper to set aside the judgment and award passed in both the cases. Therefore, this Court is of the considered opinion that the judgment and award passed in MVC No.1219/2011 is to be set aside.

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Therefore, the judgment and award passed in MVC No.1219/2011 dated 03.07.2013 passed by MACT, Hospet, is hereby set aside.

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In the judgment and award passed in MVC No.1253/2010, The Tribunal has fastened the entire rashness and negligence on the driver of the lorry. Upon perusal of the complaint, FIR, spot sketch, spot mahazar and charge sheet, even though the entire allegation in the complaint is made against the driver of the lorry, but it is found that the lorry was stationed at the left side of the road and charge sheet is filed against the driver of lorry as well as on the deceased.

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The learned counsel for the Insurance Company submitted that the lorry was stationed at the left side of the road. Therefore, the deceased was completely rash and negligent in driving the motorcycle and causing the accident. But, upon perusing the spot sketch and spot mahazar, it is found that the road is National Highway-63 from Torangallu-Hospet and lorry was stationed on the left

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side of the road. If really the driver of the lorry was intending to station or park his lorry, he could have stationed at extreme left side of the road as there was a mud road as per the sketch. But, he had parked the lorry on the left side of the tar road on NH-63. There is no evidence that lorry was stationed by giving indicator or signal or by putting stones around the lorry so as to draw attention of other vehicles. Therefore, this halting of the lorry on National Highway also shows negligent attitude on the part of the driver of the lorry.

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Admittedly, road is National Highway and even for a moment, if the driver of the vehicle was intending to station the lorry, he ought to have parked the lorry at extreme edge of the road. But, in the present case, the said procedure has not been followed by the driver of the lorry. Therefore, to that extent, the driver of the lorry is found to be negligent in stationing the lorry on the National Highway.

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At the same time, the deceased was supposed to drive the motorcycle cautiously, but he drove the same with speed and hit the hind portion of the stationed lorry. Hence, both drivers of the lorry and motorcycle have contributed their rash and negligence for the accident as discussed above. Therefore, the rash and negligence is to be attributed between the driver of the lorry and deceased at 70% and 30% respectively.

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Therefore, it is held that the driver of the lorry has contributed 70% of negligence towards accident by stationing the lorry on National Highway and deceased has contributed 30% of negligence towards accident. Just because in the charge sheet, deceased and driver of the lorry both were made as accused, it cannot be held that both have equally contributed rash and negligence for the accident. It is not the duty of the investigating officer to assess the degree of negligence on the part of two drivers. Therefore, in this type of proceedings, the apportionment of rash and negligence on the part of the deceased and

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the driver of the lorry is appreciated on preponderance of probabilities.

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In the present case, the Tribunal by holding the notional income of the deceased at Rs.4,500/- and by deducting 1/4^th of amount towards personal expenses has awarded compensation towards loss of dependency. On perusal of the records, the compensation awarded by the Tribunal under other heads appears to be meager and needs to be interfered with in order to give just and fair compensation to the claimants. According to the accepted parameters as per the guidelines issued by the Hon’ble Supreme Court, the same has to be re-assessed and quantified.

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The accident was occurred on 17.04.2010. In the absence of proof relating to income, as per the chart prepared by the Karnataka State Legal Services Authority, the notional income for the accidental claim of the year 2010 would be Rs.5,500/- per month.

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According to the judgment of Hon’ble Supreme Court in the case of National Insurance Co. Ltd., Vs. Pranay

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Sethi¹ , for the age group of deceased i.e., the deceased being 30 years old, 40% of the income is to be added towards loss of future prospects in life and a ppropriate multiplier would be 17. There are five claimants who are widow, two minor children, father and mother of the deceased. Hence, 1/4^th amount is deducted towards personal and living expenses of the deceased. Hence, the compensation towards loss of dependency including loss of future prospects in life is reassessed and quantified as under:

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Rs.5,500+Rs.2,200=Rs.7,700x3/4X17X12= Rs.11,78,100/-

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Accordingly, compensation of Rs.11,78,100/- is awarded under the loss of dependency.

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The Tribunal has not correctly followed the parameters while awarding compensation on the other

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1 (2017) 16 SCC 680

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heads i.e. loss of love and affection and consortium. Therefore, as per the Judgment of Hon’ble Supreme Court

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in the case of Magma General Insurance Company Limited Vs Nanu Ram and others² legal representatives are entitled for compensation towards loss of love and affection and loss of consortium at Rs.40,000/- each. Accordingly, compensation of Rs.2,00,000/- (Rs.40,000/X5) is awarded towards loss love and affection and loss of consortium is awarded.

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27. Further, compensation of Rs.15,000/- is awarded

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towards transportation and funeral expenses of the deceased. Further, compensation of Rs.15,000/- is reassessed under the head loss of estate.

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Thus, in all, the claimants are entitled for total compensation as above discussed.

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Sl.No.	Particulars	Amount(Rs.)
1.	Loss of dependency	11,78,100-00
2.	Loss of love and affectionand consortium	2,00,000-00
3.	Towards transportation of dead body and funeral expenses	15,000-00

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2 2018 ACJ 2782

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4.	Towards loss of estate	15,000-00
	Total	14,08,100-00

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Therefore, the claimants are entitled for total compensation of Rs .14,08,100/- as against Rs.7,28,500/awarded by the Tribunal.

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Since the deceased has contributed 30% of his rash and negligence in causing the accident as held above, the claimants are entitled for total compensation of Rs.6,79,600/- (Rs.14,08,100 – Rs.7,28,500).

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31. Accordingly, the following :

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ORDER

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i) MFA No.25052/2011 filed by the Insurance Company is dismissed .

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ii) MFA No.100304/2014 filed by the Insurance Company is allowed. Judgment and award dated 03.07.2013 passed in MVC No.1219/2011 is set aside.

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iii) The cross-objection filed by the claimants is allowed in part .

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iv) The impugned judgment and award dated 11.07.2011, passed in MVC No.1253/2010 by the Motor Accident Tribunal No.XI, Bellary is modified to the above extent.

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v) The cross-objectors are entitled for total compensation of Rs.6,79,600/- as against the compensation awarded by the Tribunal.

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vi) The compensation amount shall carry interest at 6 % p.a. from the date of petition till realization excluding the interest for the delayed period of 2526 days in preferring the cross objection.

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vii) The Insurance Company is directed to deposit/pay the compensation amount within six weeks from the date of receipt of certified copy of this order.

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