Partly allowed

Smt Mahalakshmi Umesh Hegde v. the New India Assurance Co. Ltd.

Karnataka HC14 Oct 2024MFA/6960/2015

Case brief

AI extract

What is this about?

High Court allowed motor accident appeal and dismissed insurer's cross-objection. Court reversed Tribunal's 20% contributory negligence on deceased, fixing 100% liability on bus driver. Compensation enhanced to Rs.79,56,875/- applying Pranay Sethi guidelines.

What did the court decide?

Compensation enhanced to Rs. 79,56,875/- with interest at 6% p.a.; cross-objection by insurer dismissed.

Smt Mahalakshmi Umesh Hegde Vs the New India… — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:41439-DB MFA No.6960/2015 C/w MFA.CROB No.20/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF OCTOBER, 2024

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PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.6960/2015 (MV-D)

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C/W

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MFA CROSS OBJECTION NO.20/2017 (MV-D)

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M.F.A. No.6960/2015:

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BETWEEN:

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SMT. MAHALAKSHMI UMESH HEGDE AGED ABOUT 81 YEARS W/O LATE UMESH P. HEGDE R/AT MELINAKERI POST HEGDE, KUMTA-581 330.

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

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SMT. REKHA N. HEGDE AGED ABOUT 49 YEARS W/O LATE NARAYAN U. HEGDE.

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SMT. AKSHATHA N. HEGDE AGED ABOUT 24 YEARS D/O LATE NARAYAN U. HEGDE.

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A2 & A3 ARE R/AT NO.83, I FLOOR MODEL HOUSE STREET BASAVANAGUDI

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BANGALORE-560 004 …APPELLANTS

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(BY SMT. VASANTHA LAKSHMI H.V. ADVOCATE)

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AND:

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THE NEW INDIA ASSURANCE CO., LTD., NO.601, UNITY BUILDING 11^TH 'A' CROSS, KALINGA RAO ROAD MISSION ROAD BANGALORE-560 027 REP. BY ITS GENERAL MANAGER

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NC: 2024:KHC:41439-DB MFA No.6960/2015 C/w MFA.CROB No.20/2017

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SRI RAVI KUMAR MAJOR S/O LATE NARAYANAPPA SAROVARA STATE TALUK OFFICE ROAD DEVANAHALLI-562 110 KARNATAKA …RESPONDENTS

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(BY SRI C.R.RAVISHANKAR, ADVOCATE FOR R1 NOTICE TO R2 DISPENSED WITH V/O/DTD: 08.10.2015)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 17.07.2015 PASSED BY COURT OF SMALL CAUSES AND MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE (SCCH-09) IN MVC NO.600/2014 REGARDING CONTRIBUTORY NEGLIGENCE AND TO ENHANCE THE COMPENSATION AMOUNT IN THE INTEREST OF JUSTICE AND EQUITY.

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MFA CROB.NO.20/2017:

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BETWEEN:

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THE NEW INDIA ASSURANCE CO., LTD., NO.601, UNITY BUILDING 11^TH 'A' CROSS, KALINGA RAO ROAD MISSION ROAD BANGALORE-560 027.

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REPRESENTED BY MOTOR T.P. CLAIMS HUB NO.2, MAHALAKSHMI CHAMBERS 2ND FLO0R, M G ROAD BANGALORE - 560001 BY ITS DULY CONSTITUTED ATTORNEY

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…CROSS OBJECTOR

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(BY SRI C.R. RAVISHANKAR, ADVOCATE)

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AND:

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SMT. MAHALAKSHMI UMESH HEGDE AGED ABOUT 83 YEARS W/O LATE UMESH P. HEGDE R/AT MELINAKERI POST HEGDE, KUMTA-581 330.

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SMT. REKHA N. HEGDE AGED ABOUT 51 YEARS W/O LATE NARAYAN U HEGDE

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NC: 2024:KHC:41439-DB MFA No.6960/2015 C/w MFA.CROB No.20/2017

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SMT. AKSHATHA N. HEGDE AGED ABOUT 26 YEARS D/O LATE NARAYAN U. HEGDE.

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R2 & R3 ARE R/AT NO.80, I FLOOR MODEL HOUSE STREET BASAVANAGUDI, BANGALORE-560 004.

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SRI RAVI KUMAR MAJOR S/O LATE NARAYANAPPA SAROVARA STATE TALUK OFFICE ROAD DEVANAHALLI-562 110 KARNATAKA ...RESPONDENTS

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(BY SMT. VASANTHA LAKSHMI H.V. ADVOCATE FOR R1 TO R3; NOTICE TO R4 IS DISPENSED WITH V/O/DTD:31.10.2022

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THIS MISCELLANEOUS FIRST APPEAL CROSS OBJECTION IS FILED U/O XLI RULE 22 OF CPC READ WITH SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE OR MODIFY THE JUDGMENT AND AWARD DATED 17.07.2015 PASSED BY THE COURT OF SMALL CAUSES AND MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE (SCCH-09) IN MVC NO.600/2014 REGARDING NEGLIGENCE AND LIABILITY FIXED ON THE CROSS OBJECTOR INSURANCE COMPANY IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS MISCELLANEOUS FIRST APPEAL CONNECTED WITH MFA CROSS OBJECTION COMING ON FOR HEARING, 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

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M.V.C.No.600/2014 passed by the Court of the Small Causes

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and MACT, Bengaluru (SCCH-9), the claimants have preferred

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NC: 2024:KHC:41439-DB MFA No.6960/2015 C/w MFA.CROB No.20/2017

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M.F.A.No.6960/2015 and the Insurer has preferred

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M.F.A.Crob.No.20/2017.

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For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal. Claimant No.1 is the mother, claimant Nos.2 and 3 are the wife and daughter of deceased Narayan U. Hegde.

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On 27.11.2013 at 9:50 a.m. when Narayan U. Hegde was proceeding on his motorcycle bearing No. KA-02EH-7716 near Maharani College Junction Under-Pass, Palace Road, Bengaluru, bus bearing No.KA-43-5202 hit the said motorcycle. In the accident, Narayan U. Hegde suffered grievous injuries and he was shifted to St. Martha's Hospital and on the same day at 1.40 p.m., he succumbed to the injuries. At the relevant time respondent No.2 was the registered owner and respondent No.1 was the insurer of bus bearing No. KA-43-5202.

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Regarding the accident, on the basis of the complaint filed by PW.2, High Grounds Traffic police registered FIR as per Ex.P1 against the driver of the bus. On investigation, the said police filed charge sheet/Ex.P7 against the driver of the bus for the offences punishable under

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NC: 2024:KHC:41439-DB MFA No.6960/2015 C/w MFA.CROB No.20/2017

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Sections 279, 304A of IPC read with Section 134 (a) & (b) read with Section 187 of the Indian Motor Vehicles Act, 1988 (for short ‘MV Act’).

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The claimants filed M.V.C.No.600/2014 before the Tribunal claiming compensation of Rs.1,60,00,000/contending that deceased was their sole bread winner, accident occurred solely due to the actionable negligence on the part of the driver of the bus. They claimed that due to death of Narayan U. Hegde they have suffered damages of Rs.1,60,00,000/-. Respondent Nos.1 and 2 being the insurer and the registered owner of the bus are liable to compensate the damages.

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Respondent No.2 did not contest the petition. Respondent No.1 contested the petition denying the actionable negligence on the part of the driver of the bus, age, occupation, income of the deceased and its liability to pay the compensation. Respondent No.1 contended that the accident occurred solely due to the actionable negligence on the part of the deceased himself.

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In support of their case, the claimants got examined PWs.1 to 3, PW1 amongst them was claimant No.2

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NC: 2024:KHC:41439-DB MFA No.6960/2015 C/w MFA.CROB No.20/2017

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and got marked Exs.P1 to P21. Respondent No.1 got examined RWs.1 to 3 and got marked Exs.R1 to R10.

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The Tribunal on hearing both side and relying on

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Ex.P4 the IMV report and the evidence adduced by respondent No.1 held that deceased and the driver of the bus have contributed 20% and 80% negligence respectively in the occurrence of the accident. Further, the Tribunal relying on Ex.P15/Form No. 16, assessed the annual income of the deceased at Rs.8,25,629/-, deducted Rs.2,400/- towards professional tax and Rs.51,350/- towards income tax and considered his annual income at Rs.7,71,889/-. The Tribunal deducted 1/3^rd from the said income for the personal expenses of the deceased, applied 11 multiplier and assessed

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compensation on the head of loss of dependency at Rs.56,61,000/-. The Tribunal in all awarded compensation of Rs.57,60,000/- on different heads as follows:

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1 Loss of dependency Rs.56,61,000/-

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2 Transportation of dead body and for Rs. 25,000/performance of obsequies ceremonies

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3 Loss of consortium Rs. 25,000/-

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4 Loss of love and affection Rs. 25,000/5 Loss of estate Rs. 24,000/Total Rs.57,60,000/-

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NC: 2024:KHC:41439-DB MFA No.6960/2015 C/w MFA.CROB No.20/2017

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On deducting 20% out of the above compensation, the Tribunal awarded compensation of Rs.46,08,000/- to the claimants with interest at 6% per annum on the same.

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In M.F.A.No.6960/2015 the claimants have challenged the findings of the Tribunal regarding negligence and adequacy of compensation awarded. The Insurer also challenges the same findings in MFA.Crob.No.20/2017.

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Smt. Vasantha Lakshmi H.V., learned Counsel for the claimants relying on Exs.P1 to P7, the FIR, spot mahazar, spot sketch, IMV report, Inquest mahazar, PM report, charge sheet and the evidence of PW.2-the complainant, submits that RW.2-driver of the bus himself submits that all those records show that RW.2 himself was solely responsible for the accident, but the Tribunal has failed to appreciate the evidence judiciously. She further submits that the Tribunal ought to have granted future prospects in addition to the actual income in accordance with the judgment of the Hon’ble Supreme Court in National Insurance Company Ltd., v. Pranay Sethi¹ . She further submits that the consortium awarded is also not in accordance with the judgment of the

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1 (2017) 16 SCC 680

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NC: 2024:KHC:41439-DB MFA No.6960/2015 C/w MFA.CROB No.20/2017

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Hon’ble Supreme Court in Magma General Insurance Company Ltd., v. Nanu Ram² . Thus, she submits that the appeal of the claimants be allowed and cross objection be rejected.

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Sri. C.R.Ravishankar, learned Counsel for the insurer relying on the very same documents submits that the fact of motorcycle coming under the rear wheel of the bus shows that the deceased himself was negligent. Therefore, the Tribunal was in error in fixing 80% negligence to the driver of the bus. He submits that IMV report also substantiates the evidence of RW.2-the driver of the bus. Therefore, Tribunal was not justified in holding that the bus driver was negligent. He questions quantum of compensation also.

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Considering the submissions of both side and examination of the materials on record, the questions that arise for consideration of this Court are:

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(i) Whether the finding of the Tribunal regarding apportionment of negligence between the driver of the bus and the deceased is sustainable?

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2 (2018) 18 SCC 130

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NC: 2024:KHC:41439-DB MFA No.6960/2015 C/w MFA.CROB No.20/2017

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(ii) Whether the quantum of compensation awarded is just one?

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Analysis

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Reg. Negligence:

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Respondent No.1 did not dispute that on

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27.11.2013 at 9.50 a.m. near Maharani College junction, accident took place between bus bearing Registration No.KA43-5202 and motorcycle bearing Registration No.KA-02-EH7716. It is also not disputed that the deceased was rider of the motorcycle and the bus was driven by RW.2 Venkateshappa S/o. Chikkamuniyappa.

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The claimants contended that the accident occurred solely due to actionable negligence on the part of the driver of the bus. The owner of the bus did not contest the matter denying negligence on the part of the driver of the bus. Only respondent No.1/Insurer questions negligence aspect. It is also not disputed that on the complaint of PW.2, High Grounds Traffic Police registered first information report as per Ex.P1 against RW.2 the driver of the bus and on investigation, the charge sheet as per Ex.P7 was filed against him. It is also not disputed that at the time of the accident, PW.2 was working as Constable in Cubbon Park Traffic Police

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10 - NC: 2024:KHC:41439-DB MFA No.6960/2015 C/w MFA.CROB No.20/2017

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Station and he was deployed on duty at the scene of incident as stated in his complaint.

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In the charge sheet it is alleged that the driver of the bus drove the same from Mysore Bank side in high speed rashly and negligently so as to endanger the human life and hit the motorcycle from the hind side. Consequently, the rider fell down and then right rear wheel of the bus ran over the deceased. It is also alleged in the charge sheet that the driver of the bus i.e. RW.2 without attending to the injured, escaped from the scene of offence.

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It is true that charge sheet is not conclusive proof of the incident. However, under Section 114(e) of the Indian Evidence Act, 1872, there is a presumption that officials acts are duly performed. Therefore Ex.P7 has presumptive value. Then burden was on the respondents to rebut the presumption which is available to the claimants under Ex.P7. To rebut the said presumption, respondent No.1/Insurer examined RW.2 the driver of the bus. An attempt was made to contend that since the deceased had come under the right rear wheel of the bus, the bus could not have hit him from

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11 - NC: 2024:KHC:41439-DB MFA No.6960/2015 C/w MFA.CROB No.20/2017

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the hind side and the deceased himself hit the bus and came under the rear wheel of the bus.

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RW.1 the Motor Vehicle’s Inspector and RW.3 Officer of the Insurance Company are not eyewitnesses to the incident. RW.2 in his cross-examination claims that he was driving the bus looking towards its front side. To the suggestion that he cannot see the vehicles which were coming on the hind side of the bus, he stated that he could see from the side mirror. But he admitted that he cannot see the vehicle which were coming exactly behind his vehicle. He says that he had seen two wheeler after the same dashed his bus. He admits that two wheeler touched the road median and the said road median is situated at the distance of two feet after the under bridge. Though he denied the suggestion that he stopped the bus and ran away, if really the rider of two wheeler was rash and negligent and caused death, as man of ordinary prudence, RW.2 should have filed the complaint and attended to the victim. There is nothing to show that the victim was taken to the hospital by RW.2.

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The Tribunal relied on Ex.P4 and the evidence of RW.2 to hold that the victim has contributed 20% negligence

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NC: 2024:KHC:41439-DB MFA No.6960/2015 C/w MFA.CROB No.20/2017

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in occurrence of the accident. Ex.P3 sketch of scene of offence and Ex.P4 the Motor Vehicles’ Inspector Report show that motorbike of the victim was proceeding on the right edge of the road and the bus which was on the left side, went to the extreme right side and bruised the motorcycle. Ex.P3 and Ex.P4 further show that there was road median in the middle of the road and the victim had no chance to move further on the right side. Ex.P3 sketch of the scene of offence and Ex.P4 Motor Vehicles’ Inspector Report show that the bus went in high speed on the right side and badly bruised the motorcycle and consequently the deceased lost balance and came under the rear right wheel of the bus. The Tribunal failed to appreciate the aforesaid evidence judiciously and committed error in imputing 20% negligence to the victim. Moreover RW.2 is not independent witness and he will be interested in seeing that he is exonerated in the criminal case. The Tribunal lost sight of the said fact also. Therefore the finding of the Tribunal regarding negligence on the part of the victim has to be reversed and 100% negligence has to be saddled on the driver of the bus/RW.2.

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NC: 2024:KHC:41439-DB MFA No.6960/2015 C/w MFA.CROB No.20/2017

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Reg. Quantum:

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To prove the income of the deceased, the claimants relied on the evidence of PW.3 and Exs.P13 to P15 the salary slips, bank account extract and copy of Form No.16. The evidence of PW.3 and the claimants show that at the time of the incident deceased was working as Sub Divisional Engineer in Broadband Network Circle, BSNL Bangalore. The same was not disputed. Ex.P13 are the salary slips for the months of September 2013 and October 2013. Salary Slip of October 2013 was the last pay slip of the deceased. As per the said document, gross salary of the deceased was Rs.86,983/-. Out of that Rs.9,800/- and Rs.200/- respectively were deducted towards income tax and professional tax. Deducting the same, his monthly salary comes to Rs.76,983/- (Rs.86,983- Rs.10,000).

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As per the judgment of the Hon'ble Supreme Court in Pranay Sethi’s case referred to supra and having regard to the fact that at the time of the accident, the deceased was aged 52 years and permanently employed, 15% of the income has to be super added by way of future prospects. Therefore his monthly income comes to

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NC: 2024:KHC:41439-DB MFA No.6960/2015 C/w MFA.CROB No.20/2017

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Rs.76,983/- + (11,547.45/- rounded off to) Rs.11,547/=Rs.88,530/-.

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In view of the judgment of the Hon’ble Supreme Court in Sarla Verma v. Delhi Transport Corporation³ , 1/3^rd of the income of the deceased has to be deducted towards personal expenses. Therefore the monthly income of the deceased comes to Rs.88,530/- x 2/3 = Rs.59,020/-. The applicable multiplier for the age of victim is 11. Therefore the compensation payable on the head of loss of dependency comes to Rs.77,90,640/- (Rs.59020/- x 12 x 11).

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As per the judgments of the Hon'ble Supreme Court in Pranay Sethi’s and Magma General Insurance Company Ltd.’s cases, the claimants are entitled to compensation on the head of consortium at Rs.40,000/- each with escalation of 10% which comes to Rs.1,32,000/-.

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As per the judgment of the Hon'ble Supreme Court in Pranay Sethi’s case, the claimants are entitled to compensation of Rs.15,000/- on the head of loss of estate and Rs.15,000/- for transportation of dead body and funeral expenses with escalation at 10%.

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3 (2009) 6 SCC 121

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NC: 2024:KHC:41439-DB MFA No.6960/2015 C/w MFA.CROB No.20/2017

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Soon after the accident, the victim was taken to St.Martha’s Hospital and treated there. Ex.P9 two medical bills relating to his treatment show expenses of Rs.1,235/-. The same has to be paid to the claimants. Therefore, the just compensation payable to the claimants in this case is as follows:

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Sl.	Particulars	Compensation
No.		awarded in Rs.
1.	Loss of dependency	77,90,640/-
2.	Loss of consortium	1,32,000/-
3.	Loss of estate and	33,000/-
	funeral expenses &
	transportation charges
4.	Medical expenses	1,235/-
	Total	79,56,875/-

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Respondent No.1 being the Insurer is liable to indemnify the said damages. Under the aforesaid circumstances, cross objection of the Insurer is liable to be dismissed and the appeal deserves to be allowed in part. Hence, the following:

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ORDER

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M.F.A.Crob.No.20/2017 is hereby dismissed.

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M.F.A.No.6960/2015 is partly allowed.

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NC: 2024:KHC:41439-DB MFA No.6960/2015 C/w MFA.CROB No.20/2017

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The impugned award of the Tribunal is modified as follows:

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(i) The claimants are entitled to compensation of Rs.79,56,875/- with interest thereon at 6% p.a. from the date of petition till the date of realization.

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(ii) Respondent No.1 shall deposit the said compensation before the Tribunal on adjusting the amount already deposited, if any, within four weeks from the date of receipt of copy of this order.

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(iii) The award of the Tribunal with regard to apportionment and investment is maintained.

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(iv) Registry shall transmit the records and the amount in deposit, if any, to the Tribunal forthwith.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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ABK/KSR

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List No.: 1 Sl No.: 44

Smt Mahalakshmi Umesh Hegde v. the New India Assurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

Smt Mahalakshmi Umesh Hegde v. the New India Assurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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