The Branch Manager Oriental Insurance Co. Ltd. Vs Narasamma

ORIENTAL INSURANCE CO. LTD., NO.70/5, SUVARNA TOWERS, 1^ST FLOOR, NEAR VIJAYANAGAR, BDA COMPLEX, GOVINDARAJNAGAR, VIJAYANAGAR, BANGALORE-560040. BY ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE NO.144, NO.44/45, LEO SHOPPING COMPLEX, RESIDENCY CROSS ROAD, BANGALORE-560025, BY ITS MANAGER.

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Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA

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(BY SRI. O. MAHESH., ADVOCATE)

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AND:

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NARASAMMA W/O LATE GANGADHARA, AGED ABOUT 29 YEARS

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…APPELLANT

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NARASIMA MURTHY S/O LATE GANGADHARA, AGED ABOUT 11 YEARS

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HC-KAR

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DARSHAN

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S/O LATE GANGADHARA, AGED ABOUT 09 YEARS

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RESPONDENT NOS.2 & 3 ARE MINORS, REP. BY THEIR MOTHER & NATURAL GUARDIAN OF RESPONDENT NO.1.

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HONNAPPA S/O GANDANARASAIAH, AGED ABOUT 59 YEARS,

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MAGADAMMA @ MOOGAMMA W/O HONNAPPA, AGED ABOUT 49 YEARS.

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RESPONDENT NOS.1 TO 5 ARE RESIDING AT KARALAMANGALA VILLAGE, MADABAL HOBLI, MAGADI TALUK RAMANAGARA DISTRICT-571511

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KUMAR .C MAJOR, S/O CHENNAPPA, SHANBHOGANAHALLI, KOOTAGAL HOBLI, RAMANAGARAM DISTRICT-571511.

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…RESPONDENTS (BY SRI. B.N. GOPALAKRISHNA ., ADVOCATE FOR R1 TO R5, V/O DATED 31.10.2017, SERVICE OF NOTICE TO R6 IS H/S)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.12.2013 PASSED IN MVC NO.296/2013 ON THE FILE OF THE 8TH ADDITIONAL SMALL CAUSES JUDGE, 33RD ACMM, MEMBER, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.12,27,500/- WITH

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HC-KAR

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INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL REALIZATION OF SAME FROM RESPONDENTS.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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The present appeal is filed by the insurer calling in question the judgment and award dated 19.12.2013 passed in MVC No.296/2013 by the VIII Addl. SCJ & XXXIII ACMM, Member-MACT, Bengaluru¹ . The Tribunal has partly allowed the claim petition and awarded a total compensation of

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Rs.12,27,500/- together with interest at 6% per annum.

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For the sake of convenience, the parties herein are

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referred as per their rank before the Tribunal.

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Heard submissions of learned counsel Sri.O.Mahesh

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for the insurer/appellant and Sri.B.N.Gopalakrishna, learned counsel for the respondent Nos.1 to 5/claimants.

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It is the contention put forth by the learned counsel

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for the insurer that two pillion riders having been carried on the

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1 Hereinafter referred as to 'Tribunal'

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moped is contrary to Section 128 of the Motor Vehicle Act, 1988² , and the same would also contribute to the negligence of the rider of the vehicle. It is further submitted that although the grounds have been raised with regard to quantum of compensation, the same is not being pressed due to the passage of time.

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Per contra learned counsel for the claimants placing reliance on the judgment of the Hon'ble Supreme Court, in the case of MOHAMMED SIDDIQUE AND ANOTHER V/S NATIONAL INSURANCE CO. LTD. AND OTHERS³ , contends that mere carriage of two pillion riders in the motor cycle would not amount to a finding of negligence on the rider of the motor cycle. It is further contended that the Tribunal having recorded a finding that the driver of the canter was negligent in causing the accident in question, the mere fact that two pillion riders were riding on the TVS motor cycle would not be a ground to interfere with the finding of the Tribunal on negligence. Learned counsel for the claimants further contends that the quantum of

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2 Hereinafter referred as to "Act"

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3 "2020 ACJ 751"

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HC-KAR

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compensation awarded is on the lower side and seeks for enhancement of the same.

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Responding to the contention of the learned counsel for the claimants, it is submitted on behalf of the insurer that the claimants not have filed any cross appeal or an independent appeal seeking enhancement of quantum of compensation that in an appeal filed by the Insurer, it is not open for the quantum of compensation to be re-assessed.

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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 that arise for consideration are:

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i) Whether the finding of the Tribunal on negligence is erroneous and liable to be interfered?

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ii) Whether it is permissible for the claimant to seek for enhancement of compensation in an appeal filed by the insurer, without filing any cross objection or an independent appeal in that behalf?

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iii) Whether the quantum of compensation is liable to be

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enhanced?

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Re:question No.(i):

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It is the case of the claimants that the deceased

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was riding his TVS motor cycle along with his friend and at that time a canter vehicle came from the opposite side and hit the motor cycle, which the deceased was riding. The insurer who entered appearance before the Tribunal had taken a specific contention that there were two pillion riders who were riding on the motor cycle along with the rider of the motor cycle. It is forthcoming from the record that the rider of the motor cycle was traveling along with two pillion riders. The charge sheet has been filed against the driver of the canter. The Tribunal, while considering the contention put forth on behalf of the insurer regarding the negligence, has noticed that the investigating officer has found that the driver of the offending canter was driving from the wrong side i.e., the right side of the direction in which he was traveling and hit the TVS motor cycle, which was going on its left side, that is the correct side. Hence,

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the Tribunal recorded a finding that merely because the deceased was going along with the two pillion riders, it does

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not mean that he lost his control and caused the accident. Hence, the Tribunal held that the deceased did not contribute in causing the accident in any manner.

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Although it is the vehement contention of the learned counsel for the appellant that carrying of two pillion riders is contrary to Section 128 of the Act, it is pertinent to note here that the Hon’ble Supreme Court in the case of Mohammed Siddiq³ , while considering a similar fact situation has held that violation of Section 128 of the Act, may amount to violation of law, but the said violation itself cannot lead to a finding of contributory negligence, unless it is established that the very act of riding along with two others contributed to causing the accident. In the present case, the Tribunal having recorded a finding that the rider of the motor cycle along with the two pillion riders did not contribute in causing the accident and that the accident occurred only due to the rash and negligent driving of the driver of the insured vehicle, the finding of the negligence record by the Tribunal is just and proper and is liable to be interfered with the present appeal. Hence, question No.(i) framed for consideration is answered in the Negative.

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HC-KAR

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Re-question No.(ii):

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This Court in the case of M/S TATA AIG GENERAL INSURANCE COMPANY LTD V. SRI. B.M.SATISH⁴ , while considering an appeal filed by the insurer wherein a submission was made by the claimants for enhancement of compensation, considering the question as to whether in an appeal filed by the insurer, the claimants, without filing a cross objection or an independent appeal can seek for enhancement of compensation and whether the same is liable to be granted, this Court considering various judgments of the Hon’ble Supreme Court as well as this Court has held that it is open to the claimant to seek for enhancement of compensation in an appeal filed by the insurer and considering the same, compensation is liable to be enhanced. Hence, question No.(ii) framed for consideration is answered in the Affirmative.

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4 (MFA No.7857/2017 C/w MFA No.2072/2018)

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Disposed of on 08.07.2025 in the Bengaluru Bench.

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Re:question No.(iii):

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The deceased was aged 30 years as on the date of the accident i.e., 12.09.2012. The deceased was stated to be an agriculturist cum tractor driver, earning Rs.10,000/- p.m. However no documents have been produced to demonstrate his income. The Tribunal has assessed the income of the deceased at Rs.5,000/- per month. However, having regard to the date of the accident, the notional income of the deceased is reassessed as Rs.7,000/- per month.

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The Tribunal has taken 50% towards future prospects and deducted 1/4^th towards personal expenses, since they are five claimants. However, having regard to the judgment of the Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LTD V/S PRANAY SETHI AND ORS⁵ , 40% is required to be taken towards future prospects. The deduction of 1/4^th by the Tribunal is just and proper. Hence, the loss of dependency is re-assessed as (Rs.7000+40%+1/4^th X12X14) = 12,34,800/-

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5 “(2017)16 SCC 680”

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HC-KAR

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The claimants are the wife, children and parents of the deceased. Hence the claimants being five in number are entitled to loss of consortium in terms of the judgment of the Hon’ble Supreme Court in the case of MAGMA GENERAL

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INSURANCE COMPANY V/S NANU RAM ALIAS CHUBRU

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RAM AND ORS⁶ , at `40,000/- each together with escalation at 20%. Hence, loss of consortium is re-assessed as (48,000 X 5)

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= 2,40,000/- as against 40,000/- awarded by the Tribunal.

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The compensation towards funeral expenses and loss of estate is to be awarded at 15,000/- each together with escalation at 20%. Hence, compensation of 18,000/- each is required to be awarded for the same.

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In view of the compensation awarded on conventional heads, the compensation awarded by the Tribunal towards funeral expenses, love and affection, loss of consortium and loss of estate awarded by the Tribunal stand suitably modified/set aside.

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6 “(2018)18 SCC 130”

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HC-KAR

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In view of the aforementioned, the compensation

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re-assessed is as follows:

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Sl.No	Compensation Head	Amount Awarded by the Tribunal (`)	Amount awarded by this Court (`)
1	Loss of dependency	11,47,500.00	12,34,800.00
2	Loss of consortium	20,000.00	2,40,000.00
3	Loss of estate	25,000.00	18,000.00
4	Loss of filial love	25,000.00	00
5	Transportation of dead body, funeral & obsequies expenses	10,000.00	00
6.	Funeral expenses and loss of estate	00	18,000.00
	TOTAL	12,27,500.000	15,10,800.00

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Accordingly, the claimants are entitled to enhanced

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compensation of (15,10,800/- - 12,27,500/-) = `2,83,300/-.

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Taking judicial notice of the rate of interest awarded

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towards fixed deposits, interest on the enhanced compensation is awarded at 7% per annum.

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In view of the aforementioned, the following:

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ORDER

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i) The appeal is disposed of;

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ii) The judgment and award dated 19.12.2013 passed in MVC.No.296/2013 by the VIII Addl. SCJ & XXXIII ACMM, Member-MACT, Bengaluru, is modified to the extent ordered herein. In all other respects, the judgment and award of the Tribunal remains unaltered;

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iii) The claimants are entitled to an enhanced compensation of `2,83,300/- together with interest at 7% per annum from the date of the petition till its realization in addition to the compensation awarded by the Tribunal;

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iv) The insurer(appellant) shall deposit the said compensation together with accrued interest within a period of six weeks;

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v) Upon such deposit, the entire enhanced compensation together with interest accrued thereupon is to be disbursed to the claimants in terms of the judgment and award of the Tribunal;

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