Smt Padma Vs Monika

KUM ASHWINI Y V C/O SIDDARAJU K S AGED ABOUT 37 YEARS R/AT NO.317, KADUKOTHANAHALLI CHIKKARASINAKERE HOBLI, MADDUR TALUK MANDYA DISTRICT – 571 422 …APPELLANTS

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(BY SRI JAGADEESH H T, ADVOCATE)

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AND:

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MONIKA

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W/O C A GANESH MAJOR R/AT NO 94, EWS, 7^TH CROSS 3^RD STAGE, GOKULAM V.V.MOHALLA, MYSORE – 570 002

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THE LEGAL MANAGER

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CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD. UNIT NO 4, 9^TH FLOOR LEVEL-6, GOLDEN HEIGHTS COMPLEX 59^TH CROSS, RAJAJINAGAR

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BENGALURU – 560 010 …RESPONDENTS

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(BY SRI B.PRADEEP, ADVOCATE FOR R2; NOTICE TO R1 DISPENSED WITH V/ORDER DATED 06.01.2025)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 20.01.2023 PASSED IN MVC NO.948/2020 ON THE FILE OF THE III ADDITIONAL JUDGE AND MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU SCCH-18, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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MFA No.3997/2023:

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BETWEEN:

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THE MANAGER CHOLAMANDALAM MS GIC LTD., UNIT NO.4, 9^TH FLOOR LEVEL-6, GOLDEN HEIGHTS COMPLEX 59^TH CROSS, RAJAJINAGAR BENGALURU – 560 010 …APPELLANT (BY SRI B.PRADEEP, ADVOCATE)

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AND:

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SMT.PADMA W/O LATE VENKATARAMU AGED ABOUT 51 YEARS R/AT YAMADURU VILLAGE RAGIBOMMANAHALLI, MALAVALLI TALUK MANDYA DISTRICT – 571 430

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SRI PRAVEEN KUMAR Y V S/O LATE VENKATARAMU AGED ABOUT 31 YEARS R/AT YAMADURU VILLAGE RAGIBOMMANAHALLI, MALAVALLI TALUK MANDYA DISTRICT – 571 430

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KUM ASHWINI Y V C/O SIDDARAJU K S AGED ABOUT 36 YEARS R/AT NO.317, KADUKOTHANAHALLI CHIKKARASINAKERE HOBLI MADDUR TALUK MANDYA DISTRICT – 571 422

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MONIKA W/O C A GANESH NO.94, EWS, 7^TH CROSS 3^RD STAGE, GOKULAM V V MOHALLA, MYSORE – 570 002 …RESPONDENTS

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(BY SRI JAGADEESH H T, ADVOCATE FOR C/R1 TO R3; R4 SERVED)

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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 20.01.2023 PASSED IN MVC NO.948/2020 ON THE FILE OF THE III ADDITIONAL JUDGE AND MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU, SCCH-18 AWARDING COMPENSATION OF RS.71,14,100/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR FINAL DISPOSAL, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND HON'BLE MR JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE C.M.POONACHA)

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In both the appeals, the judgment and award dated 20.01.2023 passed in M.V.C.No.948/2020 by III Additional Judge, Court of Small Causes, MACT, Bengaluru (SCCH-18) is under challenge. Hence said appeals are taken up together for consideration.

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The parties will be referred to henceforth according to their ranks before the Tribunal for the purpose of convenience.

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In the claim petition, the claimants contended that on 25.01.2020 at 8.00 p.m. when the deceased Y.V.Prashanth was crossing Bannur main road, near Vidyavikas College, Mysore, rider of motorcycle bearing Registration No.KA-09-HX7006 came in a high speed in rash and negligent manner and hit the deceased, causing the accident in question, as a result of which deceased sustained grievous injuries and died in the hospital on 27.01.2020.

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Mother, brother and sister of the deceased filed the claim petition claiming compensation arraying the owner and insurer of the motorcycle as respondent Nos.1 and 2 respectively. Respondent No.1 entered appearance through his Counsel, but no statement of objections have been filed. Respondent No.2/insurer has filed statement of objections and contested the claim petition. Insurer denied that the accident occurred due to actionable negligence on the part of the rider

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of the motorcycle. It is contended that rider of motorcycle was not having valid and effective driving licence as on the date of

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the accident and that the accident occurred due to the sole negligence of the deceased in crossing the road without observing the movement of the vehicles.

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In support of the case of the claimants, claimant No.1 examined herself as PW.1, the representative of the employer of the deceased has been examined as PW.2. Exs.P1 to P28 were marked in evidence. Representative of insurer has been examined as RW.1, Inspector of Police was examined as RW.2. Exs.R1 to R3 have been marked in evidence.

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The Tribunal recorded a finding that the rider of motorcycle was solely negligent in causing the accident in question and partly allowed the claim petition by awarding compensation of Rs.71,14,100/- with interest at 6% per annum. The Tribunal directed the insurer to pay compensation awarded to the claimants with liberty to recover the same from the owner of the vehicle.

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Being aggrieved, insurer has preferred

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M.F.A.No.3997/2023 and the claimants have preferred

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M.F.A.No.1299/2024.

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Learned Counsel for the insurer Sri B.Pradeep, assailing the impugned judgment contended that rider of

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motorcycle was the son of respondent No.1/owner and having knowledge of the fact that he did not possess a driving licence, entrusted the vehicle to him. Hence, insurer is not liable to pay the compensation awarded. It is further contended that the deceased was also negligent in causing the accident in question and contributed to the same.

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Per contra, learned Counsel for the claimants Sri Jagadeesh H.T., contended that the findings of the Tribunal on negligence and liability is just and proper and seeks for enhancement of the compensation.

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The submissions of both the learned counsels have been considered and the material on record including the records of the Tribunal have been perused. The questions framed for consideration are:

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(i) Whether the Tribunal was justified in fastening the liability on the insurer to pay the compensation and recover the same from the owner of the vehicle?

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(ii) Whether the Tribunal was justified in holding that the rider of the motorcycle was solely negligent in causing the accident in question?

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(iii) Whether the compensation awarded is just and proper?

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Analysis

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Reg. Question No.1:

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Admittedly, rider of the motorcycle did not have driving licence at the time of the accident. The Tribunal considering such aspect of the matter and noticing the fact that policy of insurance was valid and subsisting as on the date of the accident and further noticing the judgments of the Hon’ble Supreme Court in Pappu v. Vinod Kumar Lamba¹ as well as National Insurance Company Ltd. v. Swaran Singh² and several other judgments, has directed the insurer to pay the compensation awarded and recover the same from the owner of the vehicle.

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Although learned Counsel for the insurer seeks to

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rely on certain judgments of this Court for the purpose of contending that insurer is not liable to pay the compensation awarded, having regard to the dictum of law laid down by the Hon’ble Supreme Court in Swaran Singh’s case and Pappu’s case so also in the case of Shamanna v. Oriental Insurance

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Co. Ltd.³ , the Insurer has failed in demonstrating that the finding of the Tribunal is erroneous. The same does not

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1 (2018) 3 SCC 208

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2 (2004) 3 SCC 297

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3 (2018) 9 SCC 650

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call for interference. Hence, question framed is answered in the

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affirmative.

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Reg. Question No.2:

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It is forthcoming from the sketch/Ex.P4 that the rider of motorcycle while proceeding on the road had moved towards his right side, thereby going over to the wrong side of the road, where the impact had occurred causing the accident. It is clear from Ex.P4 that the rider of the motorcycle has moved to the extreme right side which has caused the accident. Insurer has also not adduced any independent evidence or examined any eyewitness to put forth its case that the deceased has also contributed in causing the accident. The Tribunal on detailed appreciation of the oral and documentary evidence on record noticed the fact that charge sheet (Ex.P8) has been filed against the rider of the motorcycle. Hence, the Tribunal was justified in recording the finding that the rider of the motorcycle was solely responsible in causing the accident in question. Hence, question framed is answered in the affirmative.

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Reg. Question No.3:

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Deceased was a Software Engineer. He was said to be employed in Infosys and earning Rs.70,000/- per month.

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Representative of the employer has been examined as PW.2 and he has deposed that the deceased was working at Infosys from 27.01.2015 and drawing monthly salary of Rs.54,946/-. The pay slips (five numbers) of the deceased were marked as Ex.P26. The Tribunal considering the said aspect of the matter has noticed that the gross income of the deceased was Rs.54,946/-. Professional tax of Rs.200/- and income tax of Rs.2,490/- was to be deducted. Hence, income of the deceased was assessed at Rs.52,256/-. Deceased being bachelor, 50% of his income was deducted towards personal expenses. Having regard to the judgment of the Hon’ble Supreme Court in National Insurance Company Ltd., v. Pranay Sethi⁴ , 40% was added to his income by way of future prospects. Hence, annual income of the deceased was assessed at (Rs.52,256/- x 12) Rs.6,27,072/-. 40% of the same comes to Rs.2,50,828/-. Therefore total annual income would be Rs.8,77,900/-. (Rs.6,27,072/- + 2,50,828/-).

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In view of the judgment of the Hon’ble Supreme Court in Sarla Verma v. Delhi Transport Corporation⁵ , 50% of his income has to be deducted in case of bachelor. Therefore

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4 (2017) 16 SCC 680

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5 (2009) 6 SCC 121

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50% of Rs.8,77,900/- comes to Rs.4,38,950/-. Having regard

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to the fact that the deceased was aged 31 years as per aadhar card/Ex.P17, the Tribunal applied appropriate multiplier 16. Hence, loss of dependency was assessed at Rs.4,38,950/- x 16 = Rs.70,23,200/-.

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The Tribunal has awarded a sum of Rs.40,000/with escalation at 10% towards loss of consortium and Rs.15,000/- + Rs.15,000/- with escalation at 10% towards funeral expenses and transportation of dead body and loss of estate respectively. The Tribunal has awarded a sum of Rs.3,900/- towards medical expenses. The Tribunal has also awarded a sum of Rs.10,000/- towards transportation of dead body. Hence, the Tribunal assessed the compensation as follows:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Towards loss of dependency	70,23,200/-
2.	Towards loss of consortium	44,000/-
3.	Towards loss of estate	16,500/-
4.	Towards funeral & obsequies ceremony expenses	16,500/-
5.	Towards transportation of dead body	10,000/-
6.	Towards medical expenses	3,900/-
	Total	71,14,100/-

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It is forthcoming that the compensation assessed by the Tribunal is just and appropriate. Although the Tribunal has awarded a sum of Rs.10,000/- towards transportation of dead body, it is relevant to note that the accident occurred on 25.01.2020 and the deceased died two days later in the hospital after taking treatment in two different hospitals. Hence, considering the fact that the deceased had been shifted to two different hospitals, expenses towards transportation is required to be construed as part of medical expenses.

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Hence, insurer has not made out any ground to interfere with the quantum of compensation awarded by the Tribunal. Question No.3 is answered accordingly. In view of the aforesaid reasons, the appeals are liable to be dismissed.

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