The Claim Manager Vs Sri Narayanaswamy

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 28-1-2015 PASSED IN MVC NO.113 OF 2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHANNARAYAPATNA, AWARDING A COMPENSATION OF RS.22,69,320/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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IN MFA CROB.131 OF 2017

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BETWEEN:

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SRI NARAYANASWAMY AGED ABOUT 54 YEARS S/O. DEVEGOWDA.

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SMT. NINGAMMA AGED ABOUT 46 YEARS W/O. NARAYANASWAMY.

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SHILPA AGED ABOUT 30 YEARS D/O. NARAYANASWAMY.

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MFA No.3413 of 2015 C/W MFA CROB.131 of 2017

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SRI HARISH

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AGED ABOUT 28 YEARS S/O. NARAYANASWAMY.

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ALL ARE RESIDING AT A. CHOLENAHALLI VILLAGE KASABA HOBLI CHANNARAYAPATNA TALUK HASSAN DISTRICT-573 116.

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…CROSS OBJECTORS

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(BY SRI K.R. LINGARAJU, ADVOCATE)

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AND:

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SMT. HEMALATHA W/O. KOWSHALYARAMA RESIDING AT DOOR NO.76 ANGARAHALLI VILLAGE HOLENARASIPURA TALUK HASSAN DISTRICT-573 210.

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BAJAJ ALLIANCE GENERAL INSURANCE CO. LTD. LAKSHMI COMPLEX B.M. ROAD, HASSAN-560 010

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…RESPONDENTS

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(BY SRI O. MAHESH, ADVOCATE FOR R-1 TO R-4; VIDE COURT ORDER DATED 29-1-2021, NOTICE TO R-1 IS DISPENSED WITH)

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THIS MFA CROB. IS FILED UNDER ORDER 41 RULE 22 R/W U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28-1-2015 PASSED IN MVC NO.113 OF 2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHANNARAYAPATNA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL AND MFA CROB., HAVING BEEN HEARD AND RESERVED ON 03.09.2025 COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, VENKATESH NAIK T. J., PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MR. JUSTICE VENKATESH NAIK T

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MFA No.3413 of 2015 C/W MFA CROB.131 of 2017

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CAV JUDGMENT

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(PER: HON'BLE MR. JUSTICE VENKATESH NAIK T)

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Heard learned counsel for the Insurance Company and learned counsel for the Cross objectors/claimants.

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As these appeals are arising out of common judgment and award passed by the Tribunal, we are disposing the appeals by this common judgment.

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MFA No.3413 of 2015 is filed by the Insurance Company challenging the judgment and award passed by the learned Senior Civil Judge, Channarayapatna in MVC No.113 of 2011 dated 28.01.2015, whereas, MFA Crob.131 of 2017 is filed by the claimants seeking for enhancement of compensation being aggrieved by the judgment and award passed by the Tribunal, whereby, the Tribunal awarded total compensation of Rs.22,69,320/- with interest at 6% p.a. from the date of petition till the date of realisation.

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For the sake of convenience, the parties are referred to as

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per their rankings in the claim petition before the Tribunal.

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Brief facts of the claimants' case before the Tribunal is as

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under:-

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MFA No.3413 of 2015 C/W MFA CROB.131 of 2017

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On 19.02.2011 at about 5.30 p.m., the deceased by name C.N. Lokesh was proceeding on his Hero Honda splendor motor cycle bearing registration No.KA 13-A-6526 on NH-48, B.M. Road, Near Gowrommanahalli weigh bridge, Channarayapatna Town, at that time, the driver of the lorry bearing registration No.KA 13 A-7112 came in rash and negligent manner and dashed against the deceased, as a result of which, the deceased fell down and sustained grievous injuries. Immediately, he was shifted to Government Hospital, Channarayapatna for treatment and SSM Hospital, Hassan and later, on the way to Mysore, injured Lokesh succumbed to the injuries on 20.02.2011. Hence, the claimants filed a claim petition under Section 166 of M.V. Act. Claimant No.1 is the mother, claimant No.2 is the father, claimant No.3 and 4 are unmarried sister and brother respectively.

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The Tribunal considering the oral and documentary evidence on record, allowed the claim petition in-part. Hence, being aggrieved by the judgment and award, the Insurance company and Cross objectors/claimants are before this Court.

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Sri O. Mahesh, learned counsel appearing for the appellantInsurance company in MFA No.3413/2015 vehemently contended that the insured vehicle has been implicated through police Investigation in favour of the claimants, which was evident from the

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MFA No.3413 of 2015 C/W MFA CROB.131 of 2017

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fact that there was non-compliance of mandatory provisions of Section 134(c) of MV Act either by insured or of Section 158(5) of MV Act, both by insured and concerned Investigating Police Officer and the Insurer was kept in darkness in respect of alleged accident with ulterior motive and with a fear that such concoction would be exposed.

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Secondly, he contended that the Tribunal ought to have seen that the purpose of provisions of Section 134(c) and Section 158(5) of MV Act is to intimate the concerned Insurer. Both the insured and police are required to take necessary steps and necessary action at their end to settle the claim, if any, arising out of the involvement of the insured vehicle at the earliest. This requirement, if established, has not been met in the instant case.

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Thirdly, he contended that the claim petition was not maintainable either in law or on facts and was bad for non-joinder of proper and necessary parties, i.e., the driver and owner of the vehicle were not made as parties to the claim petition.

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Fourthly, he contended that the Tribunal failed to consider the aspect that it was statutory obligation under Rule 235 of Karnataka Motor Vehicles Rules, 1989 to send notices to owner and driver of the vehicle, if the vehicle is involved in the accident.

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Fifthly, he contended that the material available on record clearly establishes that the insured vehicle was implicated with the cooperation of so-called insured-first respondent, who remained exparte after service of notice of the claim in question and the so-called driver of offending vehicle one Prabhakara was not under employment of the insured.

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Lastly, he contended that the Tribunal has granted high and exorbitant compensation on all heads by adding 50% future prospects to the income of the deceased, which is contrary to the ratio laid down in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 Supreme Court Cases 680 . Further, he contended that the deceased died bachelor and the mother of the deceased alone is to be considered as dependant on the income of the deceased and the other family members i.e., father, brother and sister of the deceased are not considered as dependants of the deceased. The Tribunal committed an error in applying the multiplier at '17', based on the age of the deceased instead of applying multiplier at '15', based on the age of the mother, who was stated to be aged 40 years. Hence, he prayed to allow the appeal and dismiss the Cross objection appeal filed by the claimants.

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MFA No.3413 of 2015 C/W MFA CROB.131 of 2017

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Sri. K.R. Lingaraju, learned counsel for the Cross objectors/claimants in MFA.Crob.No.131/2017 contended that soon after the accident, the injured was shifted to Government hospital, Channarayapatna and for further treatment to SSM hospital, Hassan and on the way to Mysore, deceased Lokesh succumbed to the injuries on 20.02.2011. During this period, the claimants incurred a sum of Rs.1,30,000/- towards medical expenses. But the Tribunal awarded a compensation of only Rs.25,000/- towards 'medical expenses'. Hence, he contends that the claimants are entitled for Rs.1,30,000/- towards 'medical expenses'. Further, the Tribunal awarded meager compensation under conventional heads, the same is required to be enhanced. Hence, he prayed to allow the Cross objection appeal.

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Having heard learned counsel for both the parties and on perusal of the appeal papers, the following points would arise for our consideration in this appeal:-

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Whether the appellant-Insurance company proved that the Insured vehicle was implanted for the purpose of compensation, thus, it is not liable to pay compensation to the claimants?

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MFA No.3413 of 2015 C/W MFA CROB.131 of 2017

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"Whether the quantum of compensation awarded

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by the Tribunal is just and reasonable or does it

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call for enhancement or reduction?

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In the instant cases, the Insurance company has disputed the accident, involvement of vehicle and liability to pay compensation. At the very outset, we have to deal with a vital issue whether the alleged offending vehicle was involved in the accident or subsequently implanted to get compensation from the Insurance Company. If this issue is decided in the negative, then the other issues are not at all relevant to be decided.

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In order to prove the contention of the Insurance company, it got examined one Sri. N. Kumar, the CPI as RW-1. He has categorically stated that on 19.02.2011, the driver of lorry bearing registration No.KA-13-A-7112 came in high speed in rash and negligent manner and dashed against one C.N. Lokesh on N.H.48, B.M. Road, near Gowrammanahalli bridge, Channarayapatna Town, while he was proceeding on Hero Honda Splendor motor cycle bearing registration No.KA-13-A-6526. RW-1 was subjected to cross examination and he has denied all the suggestions regarding involvement of offending vehicle and having falsely implicated the insured vehicle. He also denied for having falsely implicated the driver of the offending vehicle for the purpose of compensation.

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MFA No.3413 of 2015 C/W MFA CROB.131 of 2017

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Further, the Insurance company also examined its officer one Sri. Girish Patil as RW-2. He admits that the charge sheet filed by the Investigating Officer against the driver of the offending vehicle and involvement of vehicle has not been challenged before any competent forum. The case of RW-2 was of total denial.

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On the other hand, the evidence of PW-1 and contents of Ex-P1, Exs-P3-P7, Ex-P12, they clearly establishes that as on the date of the accident, the driver of the offending vehicle came in rash and negligent manner and dashed to the motor cycle of the deceased. Hence, he sustained severe injury and on the following day, he succumbed to the injuries. The Hon'ble Apex Court in the case of Ravi v. Badrinarayan and others reported in (2011) 4 SCC 693 , held that, it is not expected that a person would rush to police station after accident rather than the treatment of victim is prime consideration over lodging FIR .

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It is true that, the claim application cannot be dismissed only on the score of delay in lodging the complaint, but, if it is not explained sufficiently, when there is doubt about the involvement of the vehicle and have not come with clean hands, the claim application would definitely fail.

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In the instant cases, the accident occurred on 19.02.2011 and in the complaint, the name of the vehicle is not mentioned and

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MFA No.3413 of 2015 C/W MFA CROB.131 of 2017

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subsequently the vehicle was traced. It is proved by the post mortem report that the deceased Lokesh died on 20.02.2011 and he suffered injuries in the road traffic accident. The Investigation Officer deposed on oath that, the offending vehicle had caused the accident and thus, he seized the vehicle in question. Thus, the Insurance company has failed to prove that, the offending vehicle was implanted for the purpose of compensation. Hence, the Tribunal has rightly opined that the driver of the offending vehicle had caused the accident.

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Sofar as the contentions raised by the learned counsel for the appellant-Insurance company with regard to mandatory provisions of Section 134(c), 158(5) of M.V. Act and Rule 235 of the Karnataka Motor Vehicle Rules, 1989, the concerned authority has to comply those provisions and these provisions itself make it clear that the concerned authority/person has to comply the statutory provisions. Moreover, The Motor Vehicle Act is a beneficial legislation as it aims to enhance road safety and provide compensation to the accident victims and their families. Therefore, non-compliance of the aforesaid provisions could not lead to reject the claim petitions. Hence, there is no merit in the contention of the learned counsel for Insurance company in this regard.

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Insofar as quantum of compensation is concerned, at the time of the accident, the deceased was working as Police constable and the Tribunal assessed the income of the deceased at

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Rs.9,625/- p.m., considering Ex-P10 salary certificate. Contrary to this document, the Insurance company has not placed any document. Thus, the income assessed by the Tribunal at Rs.9,625/- per month, is fair and reasonable one. The deceased was aged 26 years at the time of the accident. The Insurance company has not disputed this aspect. As per the decision of the Hon’ble Apex Court in the case of Smt. Sarla Verma and Others v. Delhi Transport Corporation and another reported in AIR 2009 SC 3104 , the multiplier applicable to the age group of the deceased is ‘17’. The deceased died bachelor leaving behind his father, mother, unmarried sister and brother and therefore, the proper deductions towards personal expenses of the deceased would be 50%. The Tribunal placing reliance on the decision of the Hon’ble Apex Court in the case of National Insurance

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Company Limited v. Pranay Sethi and others , reported in AIR 2017 SC 5157 has rightly considered future prospects at 50%, since the deceased was Government employee and below the age of ’40’ years. Thus, the 'loss of dependency' works out to Rs.14,72,625/-(Rs.9,625 +50% = 14,437.5 - 50%= Rs.7,218.75 x 12 x 17).

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Sofar as conventional heads are concerned, the Tribunal has not awarded any compensation under the head 'loss of

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MFA No.3413 of 2015 C/W MFA CROB.131 of 2017

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consortium'. In view of the principles laid down in the case of National Insurance Company Limited v. Pranay Sethi and

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others reported in AIR 2017 SC 5157, the claimants are entitled for Rs.1,60,000/- (Rs.40,000/- each x 4)under the head 'loss of consortium', Rs.15,000/- each under the head 'loss of estate' and 'funeral expenses'. The Tribunal has awarded Rs.25,000/- towards 'medical expenses', which is fair and reasonable one and no interference is called for in that regard.

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Thus, the claimants are entitled for the following

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compensation:-

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Compensation under different Heads	Amount in Rs.
Loss of dependency	14,72,625/-
Towards loss of consortium	1,60,000/-
Towards loss of estate	15,000/-
Funeral expenses	15,000/-
Medical expenses	25,000/-
TOTAL	16,87,625/-
Compensation awarded by the Tribunal	- 22,69,320/-
REDUCTION	-5,81,695/-

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The claimants are entitled to a compensation of Rs.16,87,625/- as against Rs.22,69,320/- awarded by the tribunal.

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Accordingly, we pass the following:

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ORDER

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MFA No.3413/2015 filed by the Insurance company is allowed-in-part.

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MFA No.3413 of 2015 C/W MFA CROB.131 of 2017

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MFA.Crob.No.131/2017 filed by the Crossobjectors/claimants is allowed-in-part.

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The judgment and award dated 28.01.2015 passed in MVC No.113/2011 on the file of Senior Civil Judge, Channarayapatna is modified to the extent stated hereinabove.

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The claimants are entitled for total compensation of Rs.16,87,625/- with interest at 6% p.a. from the date of filing of the claim petition till the date of its realization as against Rs.22,69,320/- awarded by the Tribunal with reduced compensation of Rs.5,81,695/-.

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The Insurance Company shall deposit the entire compensation with accrued interest at 6% p.a. within a period of six weeks from the date of receipt of copy of the judgment.

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