The Regional Manager Vs Venkatamma

THE REGIONAL MANAGER NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE AT NO.144, SHUBARAM COMPLEX, 2^ND FLOOR, M.G. ROAD, BANGALORE-560 001. BY ITS MANAGER.

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…APPELLANT

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(BY SRI. O MAHESH, ADVOCATE)

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AND:

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VENKATAMMA

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Digitally signed by ANNAPURNA G Location: HIGH COURT OF KARNATAKA

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AGE 93 YEARS, W/O LATE MUNISHAMIREDDY

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SMT. SUKANYAMMA.K @ VARALAKSHMAMMA, AGED ABOUT 45 YEARS, W/O LATE SHIVANANDAREDDY,

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VAMSHI.S. AGED 19 YEARS, S/O LATE SHIVANANDAREDDY,

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GAYATHRAMMA AGE 38 YEARS, W/O LATE SHIVANANDAREDDY,

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SAHANA.S. MAJOR D/O LATE SHIVANANDAREDDY (AMENDED CAUSE TITLE AS PER THE COURT ORDER DATED 19.07.2024)

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KUMARI.CHALANA .S AGED ABOUT 9 YEARS D/O LATE SHIVANANDAREDDY

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RESPONDENT NO.6 IS MINOR BY M/G RESPONDENT NO.4

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ALL ARE RESIDING AT PALYA (VILLAGE) CHALDIGANAHALI POST, SRINIVASAPURA TALUK, KOLAR DISTRICT-563 103.

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G.R. YOGEESHA AGE 38 YEARS, S/O RAJASHEKHARAPPA, RESIDING AT NO.2, SY.NO,.31/1, TEMPLE ROAD, SOMASANDRA PALYA, BANGALORE-560 102.

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…RESPONDENTS

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(BY SRI. D.N. SAHADEVA REDDY, ADVOCATE FOR R2 TO R6;

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R6 IS MINOR REPRESENTED BY R2,

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VIDE ORDER DATED 05.03.2018, NOTICE TO R7 IS DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:31.10.2015 PASSED IN MVC NO.4093/2013 ON THE FILE OF THE IX ADDL.SMALL CAUSES JUDGE AND XXXIV ACMM COURT OF SMALL CAUSES, MEMBER, ADDL MACT-07, AND MOTOR ACCIDENT CLAIMS TRIBUNAL, BENGALURU.

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

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CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This appeal is filed by the insurer-respondent No.2 against the judgment and award dated 31.10.2015 passed by the IX Additional Small Causes and Additional MACT, Bengaluru (SCCH-7), in MVC.No.4093/2013 (for short 'the Tribunal').

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The parties are referred to as per their ranking before the Tribunal.

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The brief facts of the case are that on 23.11.2012, at around 5:00 p.m., the deceased, M. Shivanandareddy, was riding his motorcycle bearing registration No. KA-02-EC-6769 towards his native village, Palya, from Kolar, while observing all the traffic rules. When he reached near Hosahalli Gate on the Kolar–Srinivaspur Road, an Indigo car bearing

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registration No. KA-51-A-6950 came from the opposite direction in a rash and negligent manner and collided with the motorcycle. As a result, the deceased was thrown a distance of about 10 to 15 meters from the spot of accident. He sustained grievous injuries, and succumbed to those injuries on the spot.

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The deceased was aged about 49 years at the time of the accident. He was hale and healthy, he worked as an agriculturist, and was earning Rs.50,000/- per month. The claimants are his mother, wives, and children. They were dependent on his income. With these reasons, they prayed to award compensation of Rs.50 lakhs.

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Respondent No. 1 is the owner, and

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Respondent No. 2 is the insurer of the offending vehicle. Both respondents appeared before the Tribunal; however, Respondent No. 1 did not file

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objections. Respondent No. 2 filed objections denying

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the contentions of the claimants. It also denied its liability to pay compensation on the ground that the terms and conditions of the insurance policy had been violated. With these grounds, it prayed for dismissal of the claim petition.

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6. From the rival contentions of the parties,

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the Tribunal framed necessary issues.

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The claimants to prove their case

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examined two witnesses as PWs-1 and 2 and

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produced documents marked as Exhibits P1 to P11. Respondent No. 2 examined one witness as RW-1 and produced Exhibits R1 and R2. After hearing both parties and appreciating the evidence on record, the Tribunal held that the accident occurred due to the

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rash and negligent driving of the car by its driver. The Tribunal assessed the age of the deceased as 49 years and his monthly income as Rs. 8,000. It added

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30% of the income towards future prospects, applied

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a multiplier of ‘13’, and deducted 1/4th towards personal expenses. In total, the Tribunal awarded compensation of Rs. 14,06,800/- by the impugned

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judgment and award, the same is challenged by the insurer in the present appeal.

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Heard, learned counsel for the insurer as

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well as learned counsel for claimants.

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Learned counsel for the insurer submits the following contentions:

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The identify of the vehicle is not proved. According to the FIR it was red in color and in the Mahazar it is mentioned as snuff color. Therefore it was an hit and run case. Present vehicle was falsely implicated just to claim compensation.

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Therefore, the very identity of the offending vehicle is doubtful. Further, it is contended that the rider of the motorcycle went to the wrong side of the

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road, i.e., to the extreme eastern side, which is indicated as, the spot of the accident. This suggests that the accident occurred due to the negligence of the motorcycle rider. The Tribunal has taken the deceased’s income as Rs. 8,000/- per month, without any supporting evidence. Admittedly, he was an agriculturist, yet the Tribunal added 30% towards ‘future prospects’ and deducted only 1/4th towards personal expenses. Claimant Nos. 2 and 4 are his wives, and the second wife is not entitled to compensation. Therefore, it is prayed that the compensation under the head ‘loss of dependency’ be recalculated. On these grounds, the learned counsel for the appellant prayed to allow the appeal.

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Learned counsel for the claimants contended

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that the contentions regarding Exhibits P4 and P5 are incorrect. The accident occurred at a curve in the road. The investigating officer has wrongly shown the accident spot on the eastern side, on the contrary, he

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was traveling on the western side, which was the correct lane. Therefore, mere location shown in the sketch cannot conclusively prove the rider's negligence. The Tribunal rightly considered the circumstances and held that the accident occurred due to the negligent driving of the car’s driver.

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The learned counsel for the claimant further contends that the deceased was maintaining his family, and considering the number of dependents, the Tribunal rightly took the income as Rs. 8,000/per month and added 30% towards future prospects. The compensation awarded by the Tribunal is just and reasonable. Additionally, the Tribunal has not awarded compensation under the head ‘loss of consortium’ as per the law laid down in the case of Pranay Sethi . Hence, the findings of the Tribunal do not call for any interference by this Court, and it is prayed that the appeal be dismissed.

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Upon carefully examining the materials on record, the documents produced by the appellant reveal that the accident occurred on the eastern side of the road, motorcycle rider was on the wrong side.

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Exs.P4 and P5 were submitted by the claimants themselves, and therefore, they cannot now challenge these documents. If they believe that there was any error in those documents, they would have approached the appropriate forum for redress. Thus, on the face of Exhibits P4 and P5, it prima facie appears that the deceased contributed to the accident.

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For the sake of discussion, it must be noted that the driver of the car was not examined in court. There is no evidence from the car driver stating that the motorcycle rider suddenly came onto the wrong side. If the driver of the car had proper control over the vehicle, he could have avoided the accident, but it appears he failed to exercise such care. Hence,

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the major contribution to the accident is attributable

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to the driver of the car. Considering the facts, circumstances, and the evidence of PW-2, the rider of the motorcycle is held to have contributed 25% to the accident, while the driver of the car is also assigned 75% contributory negligence. Therefore, Respondent Nos. 1 and 2 are liable to pay 75% of the compensation.

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The contentions of the insures that the said

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car was falsely implicated on the basis of inconsistency in the colour mentioned in the documents cannot be a ground to suspect the same or deny the compensation.

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The learned counsel for the appellant fairly

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submits that the dispute relates only to the

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compensation awarded under the head ‘loss of dependency.’ The Tribunal has not provided a detailed discussion regarding the assessment of the notional

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income. It assessed the deceased’s income at Rs.300/- per day, calculating a notional income of Rs.8,000/- per month. However, as per the chart prepared by the Karnataka State Legal Services Authority, the appropriate notional income should be Rs.7,000/- per month. Since the deceased did not have a permanent source of income but was supporting his family, 25% of his income is added towards future prospects. There are six dependents. As per the decision of the Hon’ble Supreme Court in Sarla Verma vs. DTC , 1/5th of the income is to be deducted towards personal expenses. The applicable multiplier, considering the age of deceased as 49 years, as per the post-mortem report, is ‘13’. Thus, the claimants are entitled to compensation under the head ‘loss of dependency’ calculated as follows:

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Rs. 1,05,000 x 13 x 4/5 = Rs. 10,92,000/-

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Thus, the claimants are entitled to the

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following compensation:

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Compensation under different Heads	Amount in (Rs.)
Loss of dependency	10,92,000
Funeral expenses	25,000
Loss of estate	30,000
Loss of consortium	1,00,000
Loss of love and affection	30,000
Transportation of dead body	5,000
Total	Rs.12,82,000/-
25% self contributory negligence of deceased.	Rs.9,61,500/-

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Since the deceased contributed 25% of the

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negligence for causing the accident, he is entitled for 75% of the compensation i.e., Rs.9,61,500/- as against Rs.14,06,800/- awarded by the Tribunal.

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The claimants are entitled to interest on the awarded amount at the rate of 6% per annum from the date of the petition till the date of realization. Respondent Nos. 1 and 2 are jointly and severally liable to pay the said amount.

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Accordingly, I proceed to pass the

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following:

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ORDER

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i. The appeal is allowed .

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ii. The judgment and award dated 31.10.2015 passed by the IX Additional Small Causes and Additional MACT, Bengaluru (SCCH-7) in MVC.No.4093/2013 is modified.

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iii. The claimants are entitled to the compensation of Rs.9,61,500/- with interest @ 6% per annum from the date of the petition till its realization as against Rs.14,06,800/- awarded by the Tribunal.

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