G. Gurubasappa @ Gurubasappa Vs Mr. Vijayakumar

MR. VIJAYAKUMAR S/O ASHOK KUMAR AGED ABOUT 23 YEARS RC OWNER CUM RIDER OF BAJAJ PULSAR MOTOR CYCLE BEARING REG NO. KA-06-EW-8565, C/O G.RAJANNA, GANGADHARA NILAYA,

¶22

2 - NC: 2025:KHC:1826-DB MFA No. 3121/2020 C/W MFA No. 5574/2019

¶23

NEW EXTENSION, HEGGERE, TUMKUR TQ AND DIST.

¶24

THE MANAGER NATIONAL INSURANCE CO. LTD BRANCH OFFICE JAGALUR MAHALINGAPPA TOWER B.D.ROAD, NEAR NANJUNDESHWARA PETROL BUNK, CHITRADURGA.

¶25

…RESPONDENTS

¶26

(BY SRI. L. SREEKANTA RAO, ADVOCATE FOR R2 NOTICE TO R1 IS DISPENSED WITH V/O DTD 14.9.2023)

¶27

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 07.11.2018 PASSED IN MVC NO.889/2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

¶28

IN MFA NO. 5574/2019

¶29

BETWEEN:

¶30

THE BRANCH MANAGER NATIONAL INSURANCE CO. LTD., BRANCH OFFICE JAGALUR MAHALINGAPPA TOWERS B.D.ROAD, NEAR NANJUNDESHWARA PETROL BUNK, CHITRADURGA NOW REPRESENTED BY ITS ASSISTANT MANAGER C.K.PARIMALA, REGIONAL OFFICE NATIONAL INSURANCE COMPANY LIMITED SHUBARAM COMPLEX, M.G.ROAD, BANGALORE-560 001.

¶31

...APPELLANT

¶32

(BY SRI. L SREEKANTA RAO, ADVOCATE)

¶33

AND:

¶34

C.GURUBASAPPA @ GURUBASAPPA S/O NOT KNOWN, AGED ABOUT 54 YEARS

¶35

3 - NC: 2025:KHC:1826-DB MFA No. 3121/2020 C/W MFA No. 5574/2019

¶36

AGRICULTURIST,

¶37

ANUSUYAMMA W/O G.GURUBASAPPA @ GURUBASAPPA, AGED ABOUT 47 YEARS HOUSE HOLD WORK, BOTH ARE R/AT KOTEBAYALA, TUMBARAGUDDI, KUDLIGI TALUK, BELLARY DISTRICT, NOW R/O KYADIGERE VILLAGE, CHITRADURGA TALUK AND DISTRICT.

¶38

VIJAYAKUMAR S/O ASHOK KUMAR, AGED ABOUT 25 YEARS RC OWNER-CUM RIDER OF BAJAJ PULSAR MOTOR CYCLE BEARING REG NO.KA-06-EW 8565 C/O G.RAJANNA GANGADHARA NILAYA, NEW EXTENSION, HEGGERE, TUMKUR TALUK AND DISTRICT.

¶39

...RESPONDENTS

¶40

(BY SRI. R SHASHIDHARA, ADVOCATE FOR R1 & R2 NOTICE TO R3 IS HELD SUFFICIENT V/O DTD 25.5.2023)

¶41

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 07.11.2018 PASSED IN MVC NO.889/2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, CHITRADURGA, AWARDING COMPENSATION OF RS.16,66,200/-WITH INTEREST AT 9% P.A. FROM THE DATE OF FILING THE PETITION TILL THE REALIZATION AND ETC.

¶42

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

¶43

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

¶44

4 - NC: 2025:KHC:1826-DB MFA No. 3121/2020 C/W MFA No. 5574/2019

¶45

ORAL JUDGMENT

¶46

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

¶47

MFA No.5574/2019 is filed by the insurer and MFA No.3121/2020 is filed by the claimants. In both the appeals, the judgment and award dated 7.11.2018 passed in MVC No.889/2017 on the file of Principal Senior Civil Judge and CJM, Chitradurga¹ , is under challenge. Hence, both the appeals are taken up together for consideration.

¶48

The parties will be referred to as per their ranks before the Tribunal for the sake of convenience.

¶49

It is the case of the claimants that on 14.1.2017 when one Basavaraja² was riding as a pillion rider on a motor cycle bearing No.KA-06/EW-8565 and the owner of the motor cycle was riding the same and when they reached Ashokanagar, Tumakuru, the rider of the motor cycle while attempting to overtake a car hit against another motor cycle bearing No.KA-06-EW-5688 causing the accident in question wherein, the deceased sustained grievous injuries and was shifted to hospital for treatment, consequent to which, on

¶50

1 Hereinafter referred to as the ‘Tribunal’

¶51

2 Hereinafter referred to as ‘deceased’

¶52

5 - NC: 2025:KHC:1826-DB MFA No. 3121/2020 C/W MFA No. 5574/2019

¶53

16.1.2017 the deceased succumbed to the injuries sustained in the accident. The parents of the deceased instituted claim proceedings arraying the owner-cum-rider and the insurer of the motor cycle on which the deceased was traveling as a pillion rider as respondents to the claim proceedings.

¶54

The respondents entered appearance before the Tribunal and contested the same by filing statement of objections.

¶55

Claimant No.1 examined himself as PW.1, the employer of the deceased as PW.2 and the complainant as PW.3. Exs.P1 to P27 have been marked in evidence. The respondents did not adduce any evidence. However, the policy of insurance was marked as Ex.R1. The Tribunal by its judgment and award partly allowed the claim petition and awarded a compensation of `16,66,200/- together with interest at 9% p.a., and held that respondent Nos.1 and 2 are jointly and severally liable to pay the compensation. Respondent No.2 – insurer was directed to pay the compensation awarded.

¶56

Challenging the award of the Tribunal, the insurer

¶57

has filed MFA No.5574/2019 on the ground that the deceased

¶58

6 - NC: 2025:KHC:1826-DB MFA No. 3121/2020 C/W MFA No. 5574/2019

¶59

himself was riding the motor cycle and hence, contended that the compensation awarded is excessive. The claimants have filed the appeal seeking for enhancement of compensation.

¶60

In MFA No.3121/2020 claimants have questioned the adequacy of compensation awarded. It is the contention of Sri Sreekanta Rao, learned counsel for the insurer that the deceased was riding the motor cycle at the time of the accident. However, deliberately in the claim petition it is stated that the deceased was riding in the motor cycle as a pillion rider. Hence, it is contended that the Tribunal has not adequately appreciated the oral and documentary evidence available on record. It is further contended that the police have falsely implicated respondent No.1 in the accident. It is further contended that the Tribunal ought not to have awarded 50% towards future prospects and that the interest awarded at 9% is excessive.

¶61

Per contra, it is contended by Sri R. Shashidhara, learned counsel for the claimants that the insurer has not taken a contention regarding the deceased riding the motor cycle in the statement of objections filed before the Tribunal nor has

¶62

7 - NC: 2025:KHC:1826-DB MFA No. 3121/2020 C/W MFA No. 5574/2019

¶63

the insurer adduced any evidence. It is further contended that the said contention is put forth by the insurer for the first time in the present appeal. It is further contended that the assessment of income by the Tribunal is erroneous and that a higher compensation ought to have been awarded by the Tribunal.

¶64

The submissions of both the learned counsels have

¶65

been considered and the material on record including the records of the Tribunal have been perused. The questions that arise for consideration are:

¶66

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

¶67

ii. Whether the quantum of compensation awarded by the Tribunal is just and proper?

¶68

Re. Question No.(i):

¶69

It is forthcoming that in the statement of objections filed by the insurer before the Tribunal it is contended that the accident occurred due to rash and negligent driving of the rider of the motor cycle bearing No.KA-06-EW-5688, who hit the motor cycle on which the deceased was traveling. It is relevant to note that the insurer has not made any averment in the

¶70

8 - NC: 2025:KHC:1826-DB MFA No. 3121/2020 C/W MFA No. 5574/2019

¶71

statement of objections filed before the Tribunal regarding the contention put forth in the present appeal that the deceased was riding the motor cycle at the time of the accident. The insurer has also not adduced any evidence before the Tribunal. It is further relevant to note that the complainant has been examined as PW.3 and the insurer in the cross-examination of PW.3 has also not put any question that the deceased was riding the motor cycle.

¶72

The Tribunal, after appreciating the oral and documentary evidence available on record and noticing the testimony of PW.3 as also the police documents produced as Exs.P1 to P8 has recorded a finding that the rider of the motor cycle on which the deceased was traveling was responsible for causing the accident in question.

¶73

It is clear and forthcoming from the aforementioned

¶74

that the insurer has for the first time in the present appeal raised the contention that the deceased was riding the motor cycle. Hence, the said contention is untenable and liable to be rejected. The insurer has not made out any ground to interfere with the finding recorded by the Tribunal regarding the

¶75

9 - NC: 2025:KHC:1826-DB MFA No. 3121/2020 C/W MFA No. 5574/2019

¶76

negligence. Hence, question No.(i) framed for consideration is answered in the negative.

¶77

Re. Question No.(ii):

¶78

With regard to the quantum of compensation, it is forthcoming that the deceased was aged 22 years as on the date of the accident and he was working as a Trainee – Associate at Tokari Rika Minda India Private Ltd. The employer of the deceased has been examined as PW.2. The pay slips of the deceased have been marked as Exs.P8 to 10, Ex.P22 and P23. The Employees’ State Insurance Corporation – e-Pehchan Card has been marked as Ex.P11. The certificate issued by the employer has been marked as Ex.P21, which demonstrates that the deceased was working as a Trainee in Production Assembly Department from 14.6.2016 till 13.1.2017. It is forthcoming that the pay slip of the deceased for the month of November 2016 (Ex.P22) discloses his income as 10,075/- and for the month of December 2016 (Ex.P23) discloses the income as 10,100/-. The Tribunal has noticed the said documents and assessed the monthly income as `10,100/- pm., which is just and proper.

¶79

10 - NC: 2025:KHC:1826-DB MFA No. 3121/2020 C/W MFA No. 5574/2019

¶80

To the said monthly income the Tribunal has added 50% towards future prospectus, which is unsustainable. Having regard to the judgment of the Hon’ble Supreme Court in

¶81

the case of National Insurance Company Limited V. Pranay Sethi and others³ , 40% of the income is required to be added towards future prospects and since the deceased is a bachelor, 50% is to be deducted towards his personal expenses in terms of the judgment of the Hon’ble Supreme Court in the case of Sarala Verma (Smt) And Others V/S Delhi Transport Corporation And Another⁴ . Hence, the monthly

¶82

income for the purpose of calculation of loss of dependency is assessed as (10,100/- + 4,040/-(40%) =14,140/- – 7,070/(50%) 7,070/-.

¶83

Having regard to the age of the deceased, the Tribunal has rightly applied the multiplier of 18. Hence, the loss of dependency is reassessed as (`7,070/x12x18)=15,27,120/-.

¶84

Having regard to the judgment of the Hon’ble Supreme Court in the case of Magma General Insurance

¶85

3 (2017) 16 SCC 680

¶86

4 (2009) SCC 121.

¶87

11 - NC: 2025:KHC:1826-DB MFA No. 3121/2020 C/W MFA No. 5574/2019

¶88

Company Limited vs. Nanu Ram Alias Chuhru Ram and

¶89

others⁵ , the claimants are entitled to loss of consortium of (44,000/-x2) 88,000/-. The funeral expenses and loss of estate is required to be awarded in a sum of `16,500/- each.

¶90

The Tribunal has awarded interest on the compensation at 9% pa., which is excessive. Having regard to the totality of the circumstances, it is just and proper that interest at 6% pa., is awarded.

¶91

Accordingly, the total compensation under various

¶92

heads is re-assessed as follows:

¶93

Sl.No.	Heads	Amount awarded by the Tribunal (`)	Amount awarded by this Court (`)
1.	Loss of dependency	1636200.00	1527120.00
2.	Funeral expenses	15000.00	16500.00
3.	Loss of estate	15000.00	16500.00
4.	Loss of consortium	0.00	88000.00
	Total	16,66,200.00	16,48,120.00

¶94

Hence, the claimants are entitled for a total compensation of 16,48,120/- as against 16,66,200/- awarded

¶95

5 (2018) 18 SCC 130

¶96

12 - NC: 2025:KHC:1826-DB MFA No. 3121/2020 C/W MFA No. 5574/2019

¶97

by the Tribunal along with interest at 6% p.a. Accordingly, question No.(ii) is answered in the negative.

¶98

In the result, the following:

¶99

ORDER

¶100

i) The appeals are allowed in part.

¶101

ii) The impugned award in MVC No.889/2017 on the file of Principal Senior Civil Judge and MACT, Chiltradurga is modified as follows:

¶102

a) The claimants who are the appellants in MFA No.3121/2020 entitled to compensation of Rs.16,48,120/- with interest thereon at 6% p.a. from the date of petition till its realization.

¶103

b) The Insurer who is the appellant in MFA No.5574/2019 shall deposit the said amount before the Tribunal on adjusting the amount, already deposited, if any within four weeks from the date of receipt of copy of this order.

¶104

c) Award of the Tribunal with regard to apportionment and investment is maintained.

¶105

NC: 2025:KHC:1826-DB MFA No. 3121/2020 C/W MFA No. 5574/2019

¶106