Partly allowed

Smt Shwetha v. Hanumegowda

Karnataka HC9 Jan 2023MFA/9898/2018

Case brief

AI extract

What is this about?

The Corrigendum Bench enhanced the quantum of compensation payable to claimants in a motor accident case from Rs. 14,81,200 to Rs. 19,31,000 by correcting the multiplier and income parameters. Liability was confirmed as 50:50, though the insurer is directed to pay its share first and recover its portion from the uninsured owner-driver.

What did the court decide?

Compensation enhanced to Rs. 19,31,000/- with 6% interest; New India Insurance to pay 50% and recover balance from owner-driver.

Smt Shwetha Vs Hanumegowda — Motor Accident Claims | Karnataka HC (2023)

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MFA No. 8832 of 2018 C/W MFA No. 9898 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF JANUARY, 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.8832 OF 2018 C/W MISCELLANEOUS FIRST APPEAL NO.9898 OF 2018(MV-D)

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IN M.F.A.No.8832/2018

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BETWEEN:

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THE ORIENTAL INSURANCE COMPANY LIMITED, TP HUB, REGIONAL OFFICE, LEO SHOPPING COMPLEX, NO.44/46, RESIDENCY ROAD CROSS, BENGALURU – 560 025.

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Digitally signed by JAI JYOTHI J Location: HIGH COURT OF KARNATAKA

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NOW REPRESENTED BY MANAGER LEGAL.

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…APPELLANT

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(BY SRI. ASHOK N PATIL., ADVOCATE)

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AND:

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SWETHA, W/O LATE SIDDARAJU, AGED ABOUT 28 YEARS,

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MEGHANA S., D/O LATE SIDDARAJU, AGED ABOUT 9 YEARS,

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KUSHAL DURGA S, S/O LATE SIDDARAJU, AGED ABOUT 02 YEARS,

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MFA No. 8832 of 2018 C/W MFA No. 9898 of 2018

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REVANNA , S/O BORAIAH, AGED ABOUT 61 YEARS,

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VENKATAMMA, W/O REVANNA, AGED ABOUT 58 YEARS,

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ALL ARE R/AT KERE BEEDI, KANAKAPURA TOWN, KANAKAPURA TALUK, RAMANAGARA DISTRICT. RESPONDENT NO.2 AND 3 ARE MINORS AND HENCE REP. THEIR MOTHER AND NATURAL GUARDIAN RESPONDENT NO.1

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HANUMEGOWDA, S/O CHIKKAKEMPEGOWDA, MAJOR, R/AT KOKKAREHOSAHALLI VILLAGE, UYYAMBALLI HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT.

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THE NEW INDIA ASSURANCE CO.LTD., REGIONAL OFFICE, NO.9, 2^ND FLOOR, MAHALAKSHMI CHAMBERS, M.G.ROAD, BENGALURU – 01.

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KRISHNA, S/O THOVASAIAH, R/AT KERE BEEDI, KANAKAPURA TOWN,

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MFA No. 8832 of 2018 C/W MFA No. 9898 of 2018

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KANAKAPURA TALUK, RAMANAGARA DISTRICT.

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…RESPONDENTS

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(BY SMT.NITHYA, ADVOCATE FOR SRI.PRAKASH M.H., ADVOCATE FOR R1 TO R5; R6 TO R8 ARE SERVED; SRI.E.I.SANMATHI, ADVOCATE FOR R7)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.07.2018 PASSED IN MVC NO.392/2016 ON THE FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE & MACT, BENGALURU [SCCH-11], AWARDING COMPENSATION OF RS.14,81,200/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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IN M.F.A.No.9898/2018

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BETWEEN:

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SMT.SHWETHA, W/O LATE SIDDARAJU, AGED ABOUT 29 YEARS,

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MEGHANA S., D/O LATE SIDDARAJU, AGED ABOUT 10 YEARS,

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KUSHAL DURGA S, S/O LATE SIDDARAJU, AGED ABOUT 03 YEARS,

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REVANNA , S/O BORAIAH, AGED ABOUT 62 YEARS,

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MFA No. 8832 of 2018 C/W MFA No. 9898 of 2018

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VENKATAMMA,

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W/O REVANNA, AGED ABOUT 59 YEARS, ALL ARE R/AT KERE BEEDI, KANAKAPURA TOWN, KANAKAPURA TALUK, RAMANAGARA DISTRICT – 562 117.

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APPELLANT NO.2 AND 3 ARE MINORS AND HENCE REP. BY THEIR MOTHER AND NATURAL GUARDIAN APPELLANT NO.1

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…APPELLANTS

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(BY SMT.NITHYA, ADVOCATE FOR SRI.PRAKASH M.H., ADVOCATE)

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AND:

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HANUMEGOWDA, S/O CHIKKAKEMPEGOWDA, MAJOR,

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R/AT KOKKAREHOSAHALLI VILLAGE,

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UYYAMBALLI HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT.

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THE NEW INDIA ASSURANCE CO.LTD., REGIONAL OFFICE, NO.9, 2^ND FLOOR, MAHALAKSHMI CHAMBERS, M.G.ROAD,

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BENGALURU – 560 001. REPRESENTED BY ITS MANAGER.

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KRISHNA,

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S/O THOVASAIAH,

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MFA No. 8832 of 2018 C/W MFA No. 9898 of 2018

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R/AT KERE BEEDI, KANAKAPURA TOWN, KANAKAPURA TALUK, RAMANAGARA DISTRICT – 562 117.

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THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, LEO SHOPPING COMPLEX, NO.44/45, RESIDENCY ROAD, BENGALURU – 560 025. REPRESENTED BY ITS MANAGER.

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…RESPONDENTS

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(BY SRI.E.I.SANMATHI, ADVOCATE FOR R2; SRI.ASHOK N PATIL., ADVOCATE FOR R4; R1 NOTICE HELD SUFFICIENT VIDE ORDER DATED 29.10.2022; R3 – NOTICE SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.07.2018 PASSED IN MVC NO.392/2016 ON THE FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE & MACT, BENGALURU [SCCH-11], 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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JUDGMENT

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MFA No.8832/2018 is filed by the Insurance Company challenging the judgment and award dated 13.07.2018 passed in MVC.No.392/2016 by the MACT,

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MFA No. 8832 of 2018 C/W MFA No. 9898 of 2018

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Bangalore (SCCH-11), quantum of compensation as well as rash and negligent aspect.

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MFA No.989/2018 is filed by the claimants

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challenging the aforesaid judgment and award seeking enhancement of compensation.

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The brief facts of the case are that on 09.05.2015 at about 12.30 p.m., the deceased Siddaraju @ Siddappa was proceeding in a motorcycle bearing No.KA-42-L-8325 as a pillion rider, when he reached near Anjaneya Temple, Kokkarehosahalli Village, Uyyamballi Hobli, Kanakapura Taluk, Ramanagara District, at that time, another motorcycle bearing No.KA-51-Q-6655 came in a rash and negligent manner and dashed against the motorcycle, in which the deceased was proceeding. Due to the impact, the deceased succumbed to the injuries. Therefore, the claimants have filed claim petition under Section 166 of the MV Act seeking compensation.

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MFA No. 8832 of 2018 C/W MFA No. 9898 of 2018

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4. Heard the arguments on both sides and perused

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the records.

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The Tribunal has awarded the compensation

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under various heads as follows:

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Sl.No.	Particulars	Amount (in.Rs.)
1.	Loss of estate	15,000.00
2.	Loss of consortium	40,000.00
3.	Funeral expenses	15,000.00
4.	Loss of dependency	14,11,200.00
	Total	14,81,200.00

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Learned counsel appearing for the appellantInsurance Company in MFA No.8832/2018 submitted that the rider of the motorcycle bearing No.KA-51-Q-6655 does not have driving license. Therefore, he is not expertise in driving the motorcycle. Hence, his contribution to the accident is more in proportion in comparison to the rider of the motorcycle bearing No.KA-42-L-8325. Therefore, it is submitted that the rash and negligent aspect made by the

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MFA No. 8832 of 2018 C/W MFA No. 9898 of 2018

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Tribunal in the ratio of 50:50 is not correct. Hence,

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requested the rider of the motorcycle bearing No.KA-51-Q6655 would be fastened more in proportion.

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Further, it is submitted that the deceased has not worn helmet even though as a pillion rider. Therefore, the deceased has also contributed his negligence. Hence, a contributory negligence be made on the part of the deceased also.

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Further, it is submitted that the deceased was

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36 years old as from Ex.P12-election identity card but the Tribunal has committed an error in taking the deceased age as 35 years old. Therefore, it is submitted that the age of the deceased can be considered as 36 years old. Hence, prays for modification of the quantum of compensation as well the apportionment of rash and negligent aspect as submitted above.

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MFA No. 8832 of 2018 C/W MFA No. 9898 of 2018

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9. On the other hand, learned counsel appearing

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for the appellants/claimants submitted that the rash and negligent aspect made by the Tribunal in the ratio of 50:50 is correct, which needs no interference. Further, submitted that just because the deceased being a pillion rider has not worn helmet that would not be a ground to say that the deceased has contributed negligence. Therefore, it is submitted that the deceased was not rash and negligent. Further, it is submitted that the quantum of compensation awarded by the Tribunal is on the lesser side. Hence, prays for enhancement of the compensation.

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REGARDING RASH AND NEGLIGENT ASPECT:

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In the present case, the deceased was a pillion

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rider in motorcycle bearing No. KA-42-L-8325. There is no head on collision between the two motorcycle bearing No.KA-42-L-8325 and No.KA-51-Q-6655. The Tribunal has

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fastened the liability on both the drivers of the motorcycles at equal proportion in the ratio of 50:50. Just

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MFA No. 8832 of 2018 C/W MFA No. 9898 of 2018

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because the driver of the motorcycle bearing No.KA-51-Q-

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6655 was not having driving license that does not mean that he is solely responsible for the accident. The driver of

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the motorcycle bearing No.KA-42-L-8325 if had driven the motorcycle in conscious and careful manner then the accident would have been avoided. Also, more particularly upon perusing the evidence on record, after investigation by the police, the charge sheet is filed against both the drivers of the motorcycle. Therefore, the Tribunal is correct in holding both the drivers of the motorcycle have equally contributed their rashness and negligence in the ratio of 50:50 to the accident and this finding of the Tribunal need not be interfered. Furthermore, just because the pillion rider has not worn the helmet that would not be a ground to say that he has contributed his negligence. Therefore, what the appreciation made by the Tribunal in this regard is found to be correct, which needs no disturbance.

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MFA No. 8832 of 2018 C/W MFA No. 9898 of 2018

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REGARDING QUANTUM :

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The Tribunal erred in assuming that the

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deceased was 35 years old and accordingly held the multiplier at '16' and Ex.P12 is the election identity card, which shows the date of issuance of this identity card, i.e.,

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as on 01.01.2002 the deceased was 23 years old. The accident was caused on 09.05.2015. Therefore, it is proved that the deceased was 36 years old. When the claimants themselves produced the election identity card,

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in which upon perusing the age of the claimant, it is proved that, as on the date of the accident, the deceased was 36 years old. Hence, the Tribunal has committed an error in holding age at 35 years. Therefore, the age is considered as 36 years. The Tribunal has taken notional income of Rs.7,000/- p.m. but the accident was caused on 09.05.2015. Therefore, the notional income of Rs.9,000/p.m. is to be taken as recognized by the Karnataka State

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Legal Services Authority. There are five dependents. Hence, 1/4th amount is to be deducted towards personal

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MFA No. 8832 of 2018 C/W MFA No. 9898 of 2018

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and living expenses of the deceased. According to the age

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of the deceased as above stated, the appropriate multiplier applicable is '15'. Therefore, the 'loss of dependency' is

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hereby re-assessed and quantified as under:

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Rs.9,000 + Rs.3,600 (40% of Rs.9,000) = Rs.12,600/-

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Rs.12,600 x 3/4 x 12 x 15 = Rs.17,01,000/-

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Accordingly, a sum of Rs.17,01,000/- is awarded under the head 'loss of dependency'.

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The Tribunal has granted a sum of Rs.40,000/-

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towards 'loss of consortium', which is on the lesser side. There are five dependents. Hence, each of the claimant is entitled for Rs.40,000/- under the head 'loss of consortium as per the dictum of Hon'ble Apex Court in the case of

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Magma General Insurance Company Limited v. Nanu

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Ram and Others, reported in 2018 ACJ 2782. Accordingly, a sum of Rs.2,00,000/- is awarded under the head 'loss of consortium'.

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MFA No. 8832 of 2018 C/W MFA No. 9898 of 2018

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The compensation awarded under the heads

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'loss of estate' and 'funeral expenses' are found to be correct, which needs no interference. Hence, they are kept

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in tact.

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Thus, in all, the claimant is entitled for the

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following sums:

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Sl.No.	Particulars	Amount (in.Rs.)
1.	Loss of estate	15,000.00
2.	Loss of consortium	2,00,000.00
3.	Funeral expenses	15,000.00
4.	Loss of dependency	17,01,000.00
	Total	19,31,000.00

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The Tribunal has awarded the compensation of

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Rs.14,81,200/-, but the appellants/claimants are entitled

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to total compensation of Rs.19,31,000/- . Therefore, the

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appellants/claimants are entitled to enhanced compensation of Rs.4,49,800/- (Rs.19,31,000 -

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Rs.14,81,200) with interest at the rate of 6% p.a. from

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MFA No. 8832 of 2018 C/W MFA No. 9898 of 2018

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the date of petition till its realization, in addition to what

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has been awarded by the Tribunal.

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Regarding pay and recovery:

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In the present case, it is proved that the rider of the motor cycle bearing No.KA-51-Q-6655 was not holding driving licence to ride the motor cycle. The Tribunal has given finding in paragraph No.12 that the rider of the motor cycle bearing No.KA-51-Q-6655 was not holding driving licence and also the rider of the motor cycle bearing No.KA-51-Q-6655 is charge sheeted for the offence of non-holding of driving licence as per Section 3 read with Section 181 of MV Act. Therefore, it is proved that the rider of the motor cycle bearing No.KA-51-Q-6655 was not holding driving licence to ride the motor cycle, but the deceased is a third party to motor cycle bearing No.KA-51-Q-6655. Therefore, the New India Assurance Company Limited has established its defence as per Subsection (2) of Section 147 of MV Act. Therefore, as per

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MFA No. 8832 of 2018 C/W MFA No. 9898 of 2018

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Sub-sections 1, 4, 7 of Section 149 of MV Act, respondent

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No.2-New India Assurance Company Limited shall satisfy 50% of compensation amount as determined above to the claimants and then recover it from the owner of the motor cycle bearing No.KA-51-Q-6655 as per the decisions of the Hon’ble Supreme Court in the cases of PAPPU AND

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OTHERS -V- VINOD KUMAR LAMBA AND ANOTHER¹ ; National Insurance Company Limited Vs. Swaran Singh And Others² and as per full bench decision to this court New India Assurance Company Limited Vs. Yellavva And Another³ .

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Accordingly, I proceed to pass the following

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ORDER

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i. MFA.No.8832/2018 filed by the Insurance

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Company is allowed-in-part .

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1 (2018) 3 SCC 208

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2 (2004) 3 SCC 297

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³ 2020 ACJ 2560 (HCK)

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MFA No. 8832 of 2018 C/W MFA No. 9898 of 2018

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ii. MFA.No.9898/2018 filed by the claimants is

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allowed-in-part .

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iii. The impugned judgment and award dated 13.07.2018 passed in MVC.No.392/2016 by the MACT, Bangalore (SCCH-11), is modified to the extent that the appellants/claimants are entitled to enhanced compensation of Rs.4,49,800/- with interest at the rate of 6% p.a., from the date of petition till its realization, in addition to what has been awarded by the Tribunal.

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iv. Respondent No.2-New India Assurance Company Limited shall satisfy 50% of compensation amount as determined above to the claimants and then recover it from the owner of the motor cycle bearing No.KA-51-Q-6655.

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iv. The appellants/claimants are not entitled for interest for the delay period of 34 days in filing the appeal.

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