Dismissed

The Manager v. Smt. Prathibha M Neelgar

Karnataka HC25 Nov 2024MFA/6828/2023

Case brief

AI extract

What is this about?

Appeal by insurer against motor accident award for death of a motorcyclist who hit a wrongly parked canter lorry on NICE road, Bengaluru, with cross-objection by claimants seeking enhancement. Court confirmed the 50:50 contributory negligence finding and recomputed compensation under settled Supreme Court principles, finding the difference insignificant.

What the court decided

AI extract

The Manager Vs Smt. Prathibha M Neelgar — Insurance | Karnataka HC (2024)

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NC: 2024:KHC:48071-DB MFA No.6828/2023 C/W MFA.CROB No.35/2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25^TH DAY OF NOVEMBER, 2024

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.6828/2023 (MV-D)

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C/W

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MFA CROSS OBJECTION NO.35/2024 (MV-D)

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IN MFA NO.6828/2023

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BETWEEN:

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THE MANAGER CHOLAMANDALAM M.S. GIC LTD. REG. OFF AT DARE HOUSE 2^ND FLOOR, NO.2 NSC BOSE ROAD, CHENNAI STATE OF TAMIL NADU - 600 001

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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NOW REP. BY ITS THE MANAGER CHOLAMANDALAM, M S GIC LTD. AT UNIT NO.4, 9^TH FLOOR, LEVEL-6 GOLDEN HEIGHTS COMPLEX 59^TH C CROSS, INDUSTRIAL SUB HUB RAJAJINAGAR BANGALORE - 560 010 …APPELLANT

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(BY SRI.PRADEEP B, ADVOCATE)

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AND:

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SMT.PRATHIBHA M NEELGAR W/O. LATE MANOJKUMAR NEELGAR ALIAS MANOJ NEELGAR AGED ABOUT 47 YEARS

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MASTER SOHAN NEELGAR S/O. LATE MANOJKUMAR NEELGAR ALIAS MANOJ NEELGAR AGED ABOUT 19 YEARS

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NC: 2024:KHC:48071-DB MFA No.6828/2023 C/W MFA.CROB No.35/2024

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SMT. SARASWATHI NEELGAR W/O. LATE SANGAPPA NEELGAR AGED ABOUT 68 YEARS

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ALL ARE R/AT FLAT GROUND FLOOR B006, ELEGANT EMBASSY GUBBALA MAIN ROAD THURAHALLI SUBRAMANYAPURA BENGALURU - 560 061.

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MR. ANZAR BEGH M. D. S/O. MR. ANWAR BEGH AGED (MAJOR) R/AT NO.179, VAJARAHALLI ROAD JOTHI NAGAR, NELAMANGALA TOWN BENGALURU RURAL DISTRICT. … RESPONDENTS

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(BY SMT.KALPANA P V, ADVOCATE FOR R1 TO R3; NOTICE TO R4 IS DISPENSED WITH V/O DATED:01.07.2024)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 03.12.2022 PASSED IN MVC NO.5860/2017 ON THE FILE OF THE XIX ADDITIONAL JUDGE AND MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU (SCCH-17), AWARDING COMPENSATION OF RS. 63,03,788/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL THE REALIZATION.

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IN MFA.CROB NO.35/2024

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BETWEEN:

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SMT. PRATIBHA M NEELGAR W/O. LATE MANOJ KUMAR NEELGAR @ MANOJ NEELGAR AGED ABOUT 48 YEARS

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MASTER SOHAN NEELGAR S/O. LATE MANOJ KUMAR NEELGAR @ MANOJ NEELGAR AGED ABOUT 20 YEARS

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SMT. SARASWATHI NEELGAR W/O. LATE SANGAPPA NEELGAR AGED ABOUT 69 YEARS

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NC: 2024:KHC:48071-DB MFA No.6828/2023 C/W MFA.CROB No.35/2024

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ALL ARE RESIDING AT FLAT GROUND FLOOR B006, ELEGANT EMBASSY GUBBALALA MAIN ROAD THURAHALLI, SUBRAMANYAPURA BENGALURU - 560 061. … CROSS OBJECTORS

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(BY SMT.KALPANA P V, ADVOCATE)

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AND:

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M/S CHOLAMANDALAM M S GENERAL INS. CO. LTD., REG. OFF AT DARE HOUSE 2^ND FLOOR, NO.2, NSC BOSE ROAD CHENNAI, TAMIL NADU - 600 001.

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HAVING BENGALURU REGIONAL OFFICE, M S GENERAL INS. CO. LTD, AT UNIT NO.4, 9^TH FLOOR, LEVEL 6 GOLDEN HEIGHTS COMPLEX 59^TH C CROSS, INDUSTRIAL SUB HUB RAJAJINAGAR, BENGALURU

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MR. ANZAR BEGH. M.D. S/O. MR.ANWAR BEGH AGED MAJOR R/AT NO.179, VAJARAHALLI ROAD JOTHI NAGAR NELAMANGALA TOWN BENGALURU RURAL DISTRICT. … RESPONDENTS

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(BY SRI.B PRADEEP, ADVOCATE FOR R1; NOTICE TO R2 IS DISPENSED WITH V/O DATED:25.11.2024)

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THIS MISCELLANEOUS FIRST APPEAL CROSS OBJECTION IS FILED UNDER ORDER XLI RULE 22 OF THE CPC READ WITH SECTION 173(1) OF MOTOR VEHICLE ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 03.12.2022 PASSED IN MVC NO.5860/2017 ON THE FILE OF THE XIX ADDITIONAL JUDGE AND MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU (SCCH17), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL AND MISCELLANEOUS FIRST APPEAL CROSS OBJECTION, COMING ON FOR FINAL

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4 - NC: 2024:KHC:48071-DB MFA No.6828/2023 C/W MFA.CROB No.35/2024

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DISPOSAL, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND

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HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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Challenging the judgment and award in MVC

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No.5860/2017, the insurer has preferred MFA No.6828/2023 and claimants have filed Cross-Objection No.35/2024.

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The appellant in MFA No.6828/2023 was respondent No.1, respondent Nos.1 to 3 in the said appeal were claimants and respondent No.4 was respondent No.2 in MVC No.5860/2017. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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Claimant Nos.1 and 2 are the wife and son, claimant No.3 is the mother of deceased Manojkumar Neelgar alias Manoj Neelgar. On 14.08.2017 at 12:45 p.m when Manojkumar was riding his motorcycle bearing registration No.K.A-51-EL-9670 on NICE road near Vittasandra flyover Blue Joice apartments/villa, Bengaluru, he rammed into the canter lorry bearing registration No.K.A-32-C-0249 which was parked

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NC: 2024:KHC:48071-DB MFA No.6828/2023 C/W MFA.CROB No.35/2024

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on the road. One S Peter filed complaint as per Ex.P2 before the Electronic City Traffic Police Station alleging rashness and negligence on the part of Manojkumar as well as driver of canter lorry. Based on the same, FIR - Ex.P1 was registered against both of them. On investigation, chargesheet was filed as per Ex.P7 against both the driver of the lorry and deceased for the offences punishable under Sections 279, 283, 304A IPC and under Sections 134(A&B) and 187 of Indian Motor Vehicles Act, 1988. At the time of accident, respondent Nos.1 and 2 were the insurer and registered owner of the canter lorry respectfully.

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Claimants filed MVC No.5860/2017 against the respondents claiming compensation of Rs.1,80,00,000/contending that the accident and death of Manojkumar occurred due to wrong parking of canter lorry by the driver of the same. They claimed that the deceased was working as Solution Architect at Tech Mahindra Company Limited, Bengaluru, earning Rs.1,48,000/- per month and they were all dependent on his income. Due to the accident, they have lost their bread winner. They further claimed that they have spent

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sum of Rs.6,00,000/- towards medical expenses, transportation

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of dead body and funeral etc.,

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Respondent No.2 - owner of the lorry did not contest the petition. Respondent No.1 - insurer alone contested the petition claiming that the accident occurred due to sole negligence of Manojkumar himself. They further denied the age, occupation, income of the deceased and their liability to pay the compensation.

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In support of the case of claimants, claimant No.1 was examined as PW.1 and representatives of employer of deceased were examined as PWs.2 and 3. On their behalf, Exs.P1 to P26 were marked. On behalf of respondent No.1 its official was examined as RW.1 and Exs.R1 and R2 were marked.

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The Tribunal on hearing the parties and evaluating the evidence held that both the deceased Manojkumar and driver of the lorry contributed negligence in the occurrence of accident at the ratio of 50:50. The Tribunal based on Ex.P15

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the Aadhaar Card of the deceased, considered his age as 44 years. Based on the evidence of PWs.2 and 3, records produced by them and income tax returns of the deceased, the Tribunal

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NC: 2024:KHC:48071-DB MFA No.6828/2023 C/W MFA.CROB No.35/2024

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considered monthly income at Rs.87,430/-, added 25% on the same by way of future prospects, deducted 1/3^rd towards personal expenses of the deceased and applied 14 multiplier awarded compensation of Rs.97,92,160/- on the head of loss of dependency. The Tribunal in all assessed compensation at Rs.1,26,07,576/- as per the table below:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Loss of dependency	97,92,160/-
2.	Loss of future prospects	24,48,040/-
3.	Loss of Consortium	1,20,000/-
4.	Loss of love and affection	25,000/-
5.	Funeral expenses	15,000/-
6.	Transportation of dead body	5,000/-
7.	Medical expenses	2,02,376/-
	Total	1,26,07,576/-

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The Tribunal after deducting 50% towards contributory negligence of the deceased, awarded Rs.63,03,788/- to the claimants with interest of 6% per annum payable by the insurer.

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Sri Pradeep B, learned Counsel for the insurer submits that complaint and other records clearly show that

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deceased himself in broad daylight first hit the barricades placed by the patrolling authority behind the lorry and rammed into the stationary lorry. Therefore, the deceased himself was solely responsible for the accident and finding of the Tribunal is contrary to the evidence on record. So far as compensation awarded, he submits that income considered by the Tribunal is on the higher side and compensation awarded on the other heads is also on the higher side.

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Smt. Kalpana P.V, learned Counsel for the crossobjectors/claimants submits that the evidence on record clearly shows that the accident occurred solely due to wrong parking of the lorry. Therefore, the Tribunal was in error in holding that the deceased also contributed to the accident. She further submits that income considered by the Tribunal and compensation awarded on the other heads is on the lower side.

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On considering the submissions of both sides and on examining the material on record, the questions that arise for determination of this Court are:

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“1. Whether the finding of the Tribunal that the accident occurred due to contributory negligence of the

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NC: 2024:KHC:48071-DB MFA No.6828/2023 C/W MFA.CROB No.35/2024

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deceased Manojkumar and driver of the canter lorry bearing registration No.KA-32-C-0249 at ratio of 50:50 is sustainable?

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Whether compensation awarded by the Tribunal is

just one?”

Analysis:

Reg. Negligence:

Both the parties have not disputed that on 14.08.2017 at 12:45 p.m near Vittasandra flyover Blue Joice apartments/villa, Bengaluru, lorry bearing No.KA-32-C-0249 was parked on the NICE road and behind the said lorry, patrolling staff of NICE road had placed two barricades. It is also not disputed that Manojkumar hit those barricades, then hit the lorry from hind side and suffered grievous injuries. He succumbed to those injuries on 17.08.2017 when he was being treated in the hospital. Neither claimants nor respondents examined any eyewitnesses to the incident.

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Exs.P1 to P7 namely FIR, complaint, spot mahazar, spot sketch, IMV report, PM report and chargesheet, claimants’ own documents, show that one S Peter, patrolling officer of NICE company has filed complaint as per Ex.P2 regarding the accident. In the complaint, he stated canter lorry was parked

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NC: 2024:KHC:48071-DB MFA No.6828/2023 C/W MFA.CROB No.35/2024

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on the road without taking any precautionary measures. Therefore, to avoid any untoward incident, patrolling staff had to place two barricades behind lorry. Spot sketch shows that lorry was parked on the road despite having sufficient space on the left side of the road. Chargesheet records and other materials show that the deceased came on the same way from the hind side, first hit barricades and then rammed into the lorry. That goes to show that the deceased was also riding at high speed and had not taken required degree of care and caution. None of the parties have adduced any evidence, contrary to such records. Therefore, the Tribunal was justified in holding that both deceased and driver of the canter lorry have contributed in equal share in occurrence of the accident and consequent death of Manojkumar. By no stretch of imagination such finding can be called as arbitrary or illegal. Therefore, that finding is confirmed.

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Reg. Quantum:

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Claimants themselves produced Ex.P20 - income tax return of the deceased for the assessment year 2017-18. The same was submitted on 04.01.2017. Annual income declared by the deceased himself was At Rs.11,81,999/-. Out

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NC: 2024:KHC:48071-DB MFA No.6828/2023 C/W MFA.CROB No.35/2024

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of that Rs.1,32,844/- was deducted as income tax. Hence his net annual income was Rs.10,49,155/-. Having regard to the age and employment of the deceased and in view of the judgment of Hon'ble Supreme Court in the case of National Insurance Company Limited vs . Pranay Sethi and Others¹ , 25% has to be super added to the income of the deceased by way of future prospects, which comes to Rs.2,62,288.75 rounded off to Rs.2,62,289 (Rs.10,49,155 x 25/100). Therefore, his annual income comes to Rs.13,11,444/(Rs.10,49,155 +2,62,289). As the deceased had 3 dependants, in view of the judgment of the Hon’ble Supreme Court in the case of Sarla Verma and others vs. Delhi Transport Corporation and another² , 1/3^rd has to be deducted for his personal expenses. Therefore, his contribution to the family comes to Rs.8,74,296/-(Rs.13,11,444 x 2/3). Applicable multiplier is 14. Therefore, loss of dependency is Rs.1,22,40,144/-(8,74,296 x 14).

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As per the judgment of the Hon’ble Supreme Court in Pranay Sethi’ s case referred to supra and Magma General

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1 (2017) 16 SCC 680

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2 (2009) 6 SCC 121

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NC: 2024:KHC:48071-DB MFA No.6828/2023 C/W MFA.CROB No.35/2024

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Insurance Company Limited vs. Nanu Ram & Ors³ , the claimants are entitled to compensation of Rs.40,000/- each with escalation of 10% on the head of loss of consortium. Similarly, they are entitled to compensation of Rs.15,000/- + Rs.15,000/- on the heads of funeral expenses and loss of estate with escalation at 10%. As medical expenses is awarded by the Tribunal based on the evidence produced by the claimants that needs to be maintained. Therefore, the just

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compensation payable is as follows:

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Particulars	Amount (Rs.)
Loss of dependency	1,22,40,144/-
Loss of consortium	1,32,000/-
Medical expenses	2,02,376/-
Loss of estate	16,500/-
Funeral expenses and	16,500/-
transportation of dead body
Total damages	1,26,07,520/-

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On deducting 50% towards negligence of the deceased himself, compensation payable to the claimants comes to Rs.63,03,760/-. Whereas, the Tribunal has awarded Rs.63,03,788/-. Enhancement is hardly of Rs.28/- which is totally insignificant. For the aforesaid facts and circumstances,

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3(2018) 18 SCC 130

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