The Branch Manager Vs Smt. Manjula

THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LIMITED, V.V.ROAD, MANDYA CITY, NOW REP. BY ITS REGIONAL OFFICE, NO.144, SHUBHARAM COMPLEX, M.G.ROAD, BENGALURU – 560 001, REP. BY ITS AUTHORIZED SIGNATORY.

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…APPELLANT

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(BY SRI. LAKSHMI NARASAPPA, ADVOCATE FOR SRI. A M VENKATESH, ADVOCATE)

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Digitally signed by MADHUSHREE H Location: High Court of Karnataka

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AND:

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SMT. MANJULA (DEAF AND DUMB) W/O LATE PRAKASH K.N., AGED ABOUT 33 YEARS,

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PUNITH GOWDA K P S/O LATE PRAKASH K N, AGED ABOUT 17 YEARS, MINOR REP. BY NEXT FRIEND GUARDIAN MOTHER SMT. MANJULA, R/AT KALENAHALLI VILLAGE, KOTHATHI HOBLI, MANDYA TALUK – 571 478.

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HC-KAR

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NAVEEN KUMAR

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S/O BOMMARASEGOWDA, MAJOR, R/AT NO.348, YELIYUR VILLAGE, KOTHATHI HOBLI, MANDYA TALUK – 571 478, (OWNER OF THE TIPPER LORRY BEARING REG.NO.KA-11/B-2821)

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…RESPONDENTS

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(BY SRI. RAJA L, ADVOCATE FOR R1; R2 IS MINOR, REPRESENTED BY R1; R3 IS SERVED AND UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 03.09.2021 PASSED IN MVC NO.1676/2018 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE & CJM, MANDYA BY ALLOWING THE ABOVE APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN MFA NO.3226/2022:

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BETWEEN:

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SMT. MANJULA (DEAF AND DUMB) W/O LATE PRAKASH K.N AGED ABOUT 34 YEARS

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PUNITH GOWDA K P S/O LATE PRAKASH J N AGED ABOTU 17 YEARS 4 MONTHS MINOR REP. BY NEXT FRIEND GUARDIAN MOTHER SMT. MANJULA OF FIRST APPELLANT R/AT KALENAHALLI VILLAGE KOTHATHI HOBLI, MANDYA CITY MANDYA TALUK AND DISTRICT – 571 401

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...APPELLANTS

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HC-KAR

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(BY SRI. RAJA L, ADVOCATE)

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AND:

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SRI. NAVEEN KUMAR S/O BOMMARASEGOWDA MAJOR, R/O NO.348, YELIYUR VILLAGE KOTHATHI HOBLI, MANDYA CITY

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MANDYA TALUK AND DISTRICT – 571 401

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THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LTD V.V. ROAD, MANDYA CITY MANDYA TALUK AND DISTRICT – 571 401

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...RESPONDENTS

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(BY SRI. LAKSHMI NARASAPPA, ADVOCATE FOR SRI. A.M.VENKATESH, ADVOCATE FOR R2; R1 SERVED AND UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 03.09.2021 PASSED IN MVC NO.1676/2018 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANDYA AND ALLOW THE APPEAL AND GRANT THE ENHANCEMENT OF THE COMPENSATION AS CLAIMED IN CLAIM PETITION FILED BY THE APPELLANTS, IN THE INTEREST OF JUSTICE.

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

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CORAM: HON'BLE MR. JUSTICE T.M.NADAF

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HC-KAR

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ORAL JUDGMENT

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These two appeals are filed against the judgment and award dated 03.09.2021 in MVC No.1676/2018 passed by the Court of the Addl. Senior Civil Judge and CJM, Mandya.

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MFA No.1928/2022 is by the Insurance Company calling in question the liability, on the point of fixing of contributory negligence and the quantum of compensation.

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MFA.No.3226/2022 is by the claimant seeking for enhancement of compensation and fastening of contributory negligence at the rate of 20% on the deceased.

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Heard Sri.Lakshminarasappa K.S., learned counsel appearing for the appellant - Insurance Company in MFA No.1928/2022 and respondent in MFA No.3226/2022 and Sri. Raja.L, learned counsel appearing for respondent No.1 in MFA No.1928/2022 and appellant in MFA No.3226/2022.

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HC-KAR

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Brief outline of facts in the filing of these

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appeals as per the appellant - Insurance Company are as follows:

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On 26.04.2018, the husband of respondent No.1 and

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father of respondent No.2 by name Prakash K.N., was riding a motor cycle bearing Reg.No.KA-11-R-1758 from Mandya towards his village on the left side of Mysore – Bengaluru road, at that point of time a truck bearing Reg.No.KA-11-B-2821 which was proceeding on the left side of the road by observing all the traffic rules had taken the vehicle on the left side, the rider of the motor cycle without observing the safe distance in terms of Rule-23 of the Central Motor Vehicles Rules, 1989, came in contact with the hind portion of the tipper lorry and as a consequences sustained injuries and succumbed to the injuries on the spot. There is no negligence on the part of the driver of the tipper lorry. The Tribunal despite the

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police records wherein the charge-sheet has been filed against the deceased has fastened the liability at the rate

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HC-KAR

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of 80% on the tipper lorry and 20% on the rider of the motor cycle, though the motor cycle hit the hind portion of the tipper lorry and admittedly it was not a head on collusion.

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So also the Tribunal has awarded exorbitant compensation, on the basis of the salary certificate which is produced at Exhibit-P.16 for Rs.10,400/-, however, neither the author nor the employer of the said Institution is examined, in order to prove that the deceased was paid Rs.10,400/- as salary per month. The employer of the Institution was not examined which has resulted in awarding exorbitant compensation, on this the learned counsel seeks to allow the appeal and set-aside the impugned judgment or in the alternative modify the same

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by suitably reducing the contributory negligence on the driver of the tipper, as well as reducing the compensation. To buttress his arguments Sri.Lakshminarasappa relied on the judgment of the Hon’ble Apex Court in the case of

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HC-KAR

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NISHANT SINGH AND OTHERS vs. ORIENTAL

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INSURANCE LIMITED¹ .

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Per contra Sri.Raja.L, learned counsel for the respondent in appeal filed by the Insurance Company and appellant in the connected appeal submits that, the income claimed is Rs.15,000/-, however, in the salary certificate produced at Exhibit-P16 shows that the claimant was paid a sum of Rs.10,400/- per month as a driver in PES College of Engineering, Mandya. In view of the same, the Tribunal has considered the same, however, he contends that since the deceased was a salaried employee and getting a stable salary, in view of the salary certificate issued by the said institution, as per the judgment laid down by the Hon’ble Apex Court he is entitled for adding 50% towards ‘Future Prospectus’ instead of 40% taken by the Tribunal.

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So far as the contributory negligence at 20%

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fastened on the deceased is uncalled for, as the appellant 1 2018 (6) SCC 765

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HC-KAR

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Insurance Company has not discharged its burden to

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prove that the appellant was rash and negligent in riding the motor cycle. As could be seen from the police records, the offence under Section-279 of Motor Vehicles Act (for the short 'the MV Act') is registered against the driver of the tipper lorry, whereas, the police while filing the charge-sheet invoked Section-146 and 181 of Motor Vehicles Act, 1988 , these two are the penal provisions of M.V. Act are charges for not having a driving license and for driving the vehicle without insurance. The said charges ipso facto will not prove the rash and negligent driving of the rider of the motor cycle.

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To buttress his argument, he relies on the judgment of the Hon’ble Apex Court in SUDEER KUMAR RANA VS. SUDEER SINGH AND OTHERS, PUT CITATION² dated 06.05.2008, in Appeal (Civil) No.3321/2008 wherein, the Hon’ble Apex Court has held

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that even if a person drives a vehicle without a license, he

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2 2008 (12) SCC 436

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HC-KAR

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commits an offence, but the same by itself may not lead to a finding of negligence as regards the accident. In view of the same, he submits that the entire police records are against the Driver of the tipper lorry. In these circumstances, the Tribunal only on the ground that the offences under Sections-146 and 181 of the Motor Vehicles Act, 1988 are registered against the deceased and an abated charge-sheet is filed, without discussing the rashness and negligence on the part of the deceased, saddled 20% contributory negligence on the deceased is unsustainable in law and requires to be set-aside and sought to allow the appeal filed by the claimants and enhance the compensation and dismiss the appeal filed by the Insurance Company calling in question the liability, as well as compensation awarded.

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Having heard the learned counsel for the parties, perused the entire appeal papers and trial Court record. The points for consideration that would arise for my consideration are as under:

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HC-KAR

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i. Whether the Tribunal is justified in fastening 20% contributory negligence on the deceased and 80% on the Insurance Company?

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ii. Whether the Tribunal is justified in not considering the case of the appellant – claimant in Appeal No.3226/2022 for considering the future prospectus at the rate of 50%, instead of 40%. In view of the law laid down by the Hon’ble Apex Court in the case of NATIONAL INSURANCE CO. LTD. vs. PRANAY SETHI³ ?

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My answer to the above points are both in negative for the following reasons:

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The date of accident, involvement of vehicle, death of rider of the motor cycle by name of Sri.Prakash is not in dispute. The only dispute is in respect of negligence and liability as contended by the appellant and the percentage of future prospectus as contended by the learned counsel for the claimants.

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3 2017 SC 5157

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HC-KAR

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Having gone through the entire record, what is emerging is, the entire police records clearly points out the rash and negligent driving on the part of the driver of the tipper. A perusal of the complaint clearly shows that the tipper which was moving ahead of the motor cycle, abruptly without giving any signal or without observing any traffic rules had taken the lorry on the left side and abruptly applied breaks, which made the rider of the motor cycle collide with the hind portion of the vehicle resulting in instantaneous death.

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Even on a perusal of the charge-sheet material clearly shows that the charges levied against the deceased rider are under Section-146 and 181 of the Motor Vehicles Act, 1988 which has nothing to do with the rash and negligent driving or riding. In view of the documentary evidence, coupled with oral evidence to hold that the rider was negligent while riding his motorcycle, only on the basis of the charges made against him under Sections-146

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HC-KAR

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and 181 of the Motor Vehicles Act, 1988 , the Tribunal fell

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in error holding that the deceased/rider of the motor cycle contributed at the rate of 20% to the accident. In these circumstances, the judgment relied on by the learned counsel for the appellant – Insurance Company is not helpful to the case. Whereas, in the said judgment the Hon’ble Apex Court has clearly stated that there is nothing on record to show contributory negligence on the part of the driver of the tipper, as there is no document to that effect to show that the driver going ahead abruptly applied break, which made the driver of the said Maruti Car collide with the hind portion of the truck. In those circumstances,

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the Hon’ble Apex Court relying on Rule 23 of Central Motor Vehicles Rules, 1989, has come to the conclusion that there is no contributory negligence on the part of the driver of the truck. The facts in the present case are different from the facts of the case before Hon’ble Apex Court. In the case on hand, there are clear records to show that the driver of the tipper lorry moving ahead the

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HC-KAR

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motor cycle, without giving any signal and observing any traffic rules, suddenly took the tipper on the left side and abruptly stopped the vehicle, which made the motor cycle, following the said lorry even with the safe distance to collide on the hind side, resulting in the death of rider of the motor cycle. In view of the same, the finding of the Tribunal that the rider of the motor cycle had contributed at the rate of 20% to the extent is misplaced and accordingly, the same is set aside.

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So far as the quantum is concerned, though the learned counsel for the appellant – Insurance Company has contended that the salary certificate produced without the examination of the author or the employer of the institution cannot be considered, however, he has not raised any grounds on the said aspect of the matter in the appeal. In view of any valid ground raised against the said salary certificate, the contention of the learned counsel for the appellant cannot be countenanced. Since the salary certificate has been accepted by the tribunal, in view of

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HC-KAR

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law laid down by the Hon’ble Apex Court in the case of

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NATIONAL INSURANCE CO. LTD VS PRANAY SETHI⁴ ,

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it being a stable employment though in a private institution, the future prospectus to be added is at the rate

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of 50%, instead of 40% as has been taken by the

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Tribunal. In view of the same the 2^nd point for consideration is also answered against the appellant – Insurance Company and in favour of the claimants. In view of the foregoing findings, the amount of compensation towards ‘loss of dependency’ requires to be re-determined which would be as under:

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Rs.10,400 + 50% = Rs.15,600/-

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Rs.15,600 x 12 x 15 x 2/3 = Rs.18,72,000/-

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In view of the law laid down by the Hon’ble Apex

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Court in the case of MAGMA GENERAL INSURANCE CO. LIMITED V. NANU RAM & OTHERS⁵ and in the case of

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4 2017 (16) SCC 680

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5 2018 (8) SCC 130

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HC-KAR

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NATIONAL INSURANCE CO. LTD. VS. PRANAY SETHI⁶ ,

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the claimants are entitled for a sum of Rs.80,000/(Rs.40,000 x 2) under the head ‘ Loss Of Consortium’.

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Further, a compensation of Rs.15,000/- and Rs.15,000/- is awarded under the head ‘Funeral And Transportation’ and ‘Loss Of Estate’ respectively.

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Further, in view of the judgment of the Hon’ble Apex Court in the case of RASMITA BISWAL & OTHERS VS. DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED AND ANOTHER⁷ , there shall be an enhancement of 10% on the conventional heads for every three years. Taking into consideration the same, the compensation awarded towards ‘loss of consortium’, being Rs.80,000/- (Rs.40,000 x 2), the escalation at 10%+10% works out to Rs.16,000/-. Accordingly, the appellants / claimants are entitled for a sum of Rs.96,000/-

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6 (2017) 16 SCC 680

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7 2022 (2) SCC 767

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HC-KAR

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(Rs.40,000 x 2 + 20%) towards ‘Loss Of

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Consortium’ including Loss Of Love And Affection’, along with 10% + 10% escalation towards ‘Loss Of Estate’ And ‘Funeral And Transportation’ . Therefore, Rs.36,000/- (Rs.15,000 + 15,000 + 20%) is awarded.

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Thus, in all the appellants/claimants are entitled

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for enhanced compensation as follows:

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Loss Dependency	:	Rs.	18,72,000/-
Loss of consortium	:	Rs.	96,000/-
Loss of Estate and funeral expenses and transportation body	:	Rs.	36,000/-
TOTAL	:	Rs.	20,04,000/-

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On redetermination the appellants are entitled

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for total compensation of Rs.20,04,000/- as against Rs.14,85,808/- awarded by the Tribunal. The enhanced compensation works out to be Rs.5,18,192/(Rs.20,04,000 – Rs.14,85,808/-) . The enhanced

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HC-KAR

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amount shall carry with the interest at the rate of 6% per

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annum from the date of petition till realization.

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For the foregoing reasons, this Court proceeds to pass the following:

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ORDER

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i) MFA No.1928/2022 by the Insurance Company calling in question the liability and quantum is dismissed;

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ii) MFA.No.3226/2022 by the Appellant/claimant is allowed in part;

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iii) The judgment and award dated 26.04.2018 in MVC No.1676/2018 passed by the Court of the Addl. Senior Civil Judge and CJM, Mandya is modified;

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iv) The appellants – claimants are entitled for re-determined compensation of

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Rs.20,04,000/- along with the interest at the rate of 6% per annum from the date of petition till realization.

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v) The amount in deposit in MFA.no.1928/2022 be transmitted to the concerned tribunal for disbursement.

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HC-KAR

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vi) The balance entire re-determined compensation amount along with interest at the rate of 6% per annum shall be deposited by the respondent – Insurance Company within a period of six weeks from the date of receipt of copy of this order.

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vii) Apportionment and disbursement of the compensation amount is as per the order of tribunal.

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viii) In the facts and circumstances, no order as to cost.

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Sd/(T.M.NADAF) JUDGE

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TIN

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List No.: 1 Sl No.: 11

The Branch Manager v. Smt. Manjula

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The Branch Manager v. Smt. Manjula

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