Ram Mohan Vs Nagendra K C

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.11.2015 PASSED IN MVC NO.284/2008 ON THE FILE OF THE SENIOR CIVIL JUDE, MACT, MADDUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 2151/2016

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BETWEEN:

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THE CLAIM MANAGER TATA A.I.G.GENERAL INSURANCE COMPANY LIMITED, NO.69, JP AND DEVI,

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HC-KAR

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JAMBUKESWARA ARCADE, MILLERS ROAD, BANGALORE-560032. BY ITS CLAIMS MANAGER.

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...APPELLANT

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(BY SRI. O MAHESH.,ADVOCATE)

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AND:

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RAM MOHAN AGED 60 YEARS, S/O.NANAJAPPA,

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SMT K NAGAMANI AGED 56 YEARS, W/O.RAMMOHAN,

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R/O.NO.12/4/940, DARSHANAGARA, ANANTHAPUR, ANDHRA PRADESH.

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NAGENDRA K C MAJOR, S/O.C.CHANNALINGAIAH, NO.99, SWARNASANDRA, SUGAR TOWN POST, MANDYA CITY-571403.

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D SURESH BABU MAJOR, NO.860, 1^ST MAIN ROAD, KENGERI SATELLITE TOWN, 560064.

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...RESPONDENTS

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(BY SRI. O. MAHESH., ADVOCATE FRO R2; R1 & R3 ARE SERVED & UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.11.15

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HC-KAR

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PASSED IN MVC NO.284/08 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, MADDUR, AWARDING COMPENSATION OF RS.6,06,072/- WITH INTEREST @ 6% P.A THEREON FROM THE DATE OF PETITION TILL REALIZATION.

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THESE APPEALS, COMING ON FOR FINAL

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HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE B M SHYAM PRASAD and HON'BLE MR JUSTICE G BASAVARAJA

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE B M SHYAM PRASAD)

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These appeals are by the Claimants and the concerned Insurer in MVC No.284/2008 on the file of the Senior Civil Judge and MACT, Maddur [for short, 'the Tribunal' ]. The claimant's appeal is in MFA No.3632/2016 and the Insurer's appeal is in MFA No.2151/2016. The Tribunal, by the Judgment and Award dated 25.11.2015, has allowed the Claimants’ petition under Section 166 of the Motor Vehicles Act, 1988 [for short, 'the MV Act' ] granting a total sum of Rs.6,06,072/- under the following heads along with

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HC-KAR

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interest at 6% per annum stipulating that the Claimants will not be entitled to interest between 14.12.2012 and 23.04.2015 - the period during which the claimant's appeal in MFA No.11891/2012 as against the Tribunal's earlier judgment was pending consideration.

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Loss of Dependency	Rs.5,76,072/-
Loss of Estate	Rs. 10,000/-
Loss of Love and Affection	Rs. 10,000/-
Transportation, Funeral	Rs. 10,000/-
and Obsequies ceremony
Total	Rs.6,06,072/-

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This Court must record that the dismissal

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of the claimants' petition vide the Tribunal’s earlier judgment dated 26.11.2011 is set-aside, and the petition is restored by this Court in MFA No.11891/2012¹ . The Tribunal’s impugned judgment and decree impugned in these appeals is after this remand. The parties, for reasons of convenience, are

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1 This Court has disposed of this appeal on 23.04.2015.

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HC-KAR

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referred to respectively as ‘ the Claimants’ , ‘ the Owner of the Car’ , ‘the Driver of the Car’ and ‘ the Insurer’ .

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The claimants’ case is stated briefly as follows. The Claimants’ son, Mr. Rajesh Kumar [a student], was studying for Graduation in Aeronautical Engineering with M/s Siddhartha Institute of Aeronautical Engineering and Information Technology, Bengaluru. He had travelled to Mysuru and was returning to Bengaluru on 30.05.2008. He boarded a KSRTC bus at Mysuru, and when this bus had stopped at the KSRTC Bus Stand, Maddur, he had crossed over to purchase fruits. It is alleged that when he was on the left-hand side of the road waiting to cross the road, the driver of a Tata Indica car bearing registration number KA-05/MA-4467 came in a rash and negligent manner hit him causing fatal injuries. Mr. Rajesh Kumar has ultimately succumbed to such injuries in this accident.

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HC-KAR

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The Insurer has filed its Statement of Objections inter alia contending that the Driver of the Car was driving at a reasonable speed and carefully and he was neither rash nor negligent. The Insurer further pleaded that it reliably learnt that the accident had occurred solely because the deceased was negligent as he attempted to cross the road without looking out for vehicles. The Tribunal, based on these essential pleadings on the accident, has framed Issue No.1 which required the Claimants to establish that the accident was because the Driver of the Car was rash and negligent. The claimants have examined one amongst them [ the father ] as PW.1 and Mr. Thimmegowda and Mr. Venkatesha as PW.2 and PW.3. The Insurer has examined one of its officers as RW.1.

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The Tribunal by its earlier Judgment and

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Award dated 26.11.2011 has dismissed the claim petition, but this Court in the Claimants’ appeal in

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HC-KAR

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MFA No.11891/2012² has interfered with the aforesaid judgment and restored the claim petition for fresh consideration on certain stipulations. After the proceedings are restored, the Claimants have examined Mr. Shivakumar and Mr. N.C.Nagaraju as PW.4 and PW.5. The Claimants have also examined the Investigating Officer and the Doctor, who has entered the Medico Legal Register Extract, as CWs.1 and 2. The Insurer has examined none other than RW.1.

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6. The Tribunal has concluded that the

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Claimants have established the Driver of the Car was negligent relying upon the evidence of PW.2 to PW.4 and observing that witnesses have spoken about the Car hitting the deceased. The Tribunal has also referred to the directions issued by the Director General of Police, Bengaluru for further investigation after this Court’s order in MFA No.11891/2012 and

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2 This appeal is disposed of by the order dated 23.04.2015

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the further investigation report filed by PW.5 [Mr.

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N.C. Nagaraju]. The Tribunal, on the question of compensation, has computed the compensation towards loss of dependency taking the deceased’s notional income in a sum of Rs.4,000/- per month and capitalizing the same applying the multiplier of '18' after deducting 1/3^rd thereof towards his personal expenses

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Mr. O. Mahesh, the learned counsel for the Insurer, submits that this Court must interfere with the Tribunal's finding that the Driver of the Car was negligent because of the following circumstances.

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[a] The deceased immediately after the accident is

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taken to General Hospital, Maddur, and there the history of the accident is recorded as hit by a KSRTC bus and not by the Car.

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[b] Mr. Venkatesha is examined as PW.3 in the

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present case. He has deposed that he witnessed the Car being driven rashly and

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negligently and hitting the deceased, but in his evidence in the criminal proceedings, he has denied knowledge of the details of the vehicle that caused the accident.

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[c] The Car is repeatedly cited as the vehicle causing accidents, and this is brought out by the Judgment of the MACT, Mandya in MVC No.186/2009 connected with MVC No.184/2009. The third parties have filed these claim petitions mentioning the Car as the vehicle that caused the accident, but the concerned Tribunal has dismissed the claim petition in MVC No.186/2009 opining that those claimants have failed to establish the involvement of the Car.

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Mr. O. Mahesh argues that these are formidable circumstances, and that this Court must, considering the afore, conclude that the Tribunal is not justified in holding that the Car had caused the accident.

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Mrs. Bhushani Kumar, the learned counsel

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for the Claimants, emphasizes the following. After this Court's judgment dated 23.04.2015 in M.F.A.No.11891/2012, the Director General of Police has directed a further investigation. The Officer, who conducted the further investigation, Mr. N.C. Nagaraju [PW.5], has spoken about the further investigation in terms of Ex.P.5. It could be seen from this further investigation report that the officer has examined multiple witnesses during the period up to October - September 2011, including Mr. Venkatesha and the Doctor - Dr. Santhosh Kumar [CW -2].

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Mrs. Bhushani Kumar argues that Dr. Santhosh Kumar [CW.2] is categorical that he has not entered the Medico-Legal Register; that in this register there is reference to KSRTC bus , but he has only recorded the place of accident in mentioning the KSRTC . Mr. Venkatesha [ PW.3] has once again

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reiterated that he saw the Car hitting the deceased and that he has explained that he did not know the car number but two others who went behind the car gave him the number.

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On the question of quantum of

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compensation, Mrs. Bhushani Kumar submits that this Court must take a higher notional income and that it cannot be taken at Rs.4,000/- per month because the deceased was not an unlettered person who would be only employed in physical labour. The learned counsel submits that the deceased was studying to graduate in Aeronautical Engineering and that if the deceased had only completed his education, he would have earned a much higher income than the income taken by the Tribunal.

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In Rejoinder, Mr.O.Mahesh argues that merely because it is shown that the deceased was pursuing engineering is no reason to take a higher income than the notional income as there would

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HC-KAR

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always be vagaries of life and it cannot be said with any certainty that the deceased would have completed his education and earned any sum which would justify a higher compensation towards loss of dependency.

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In the light of the rival questions, the appeals must be disposed of considering the following questions:

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[A] Whether this Court can opine that the Tribunal's finding that the Driver of the Car was negligent is perverse or irregular justifying an interference.

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[B] Whether the claimants have made out a case for enhancement in the compensation under the head loss of dependency taking the income of the deceased at a sum higher than Rs.4,000/- per month.

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The Insurer relies upon the entry in the Medico-Legal Register to buttress its case that the Car was not involved in the accident and that a

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HC-KAR

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KSRTC Bus hit the deceased. This Court must observe that the entry in the Medico-Legal Register by the Doctor does not read that the accident was because of a KSRTC bus, and though the Register refers to KSRTC, something more is recorded which is completely illegible. As such, the probative value of this entry must be examined in the light of the statement made by the Doctor [PW.4] in the course of further investigation and in his evidence in the present proceedings.

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The Doctor is categorical in the further investigation that he has not entered in the Register that the accident is because of the KSRTC bus. In the evidence in the present proceedings as CW.2, the Doctor has admitted that the entry in the MedicoLegal Register [Ex.R.3] is in his hand while reiterating that he has not recorded that the accident is because of a KSRTC bus. This evidence, and the Insurer's own

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defense in the Statement of Objection³ , undermines the grievance based on the entries made in the Medico-Legal Register.

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In the above-said circumstances, this Court opines that the first question cannot be answered in favour of the Insurer's account on the first ground urged based on the Medico-Legal register. Further, the Insurer cannot also succeed on the other grounds. Mr. Venkatesha [PW.3] is categorical in his evidence before the Tribunal in the year 2010 and in his statement before the police in further investigation [ as per Ex.P.16 ] that he saw the Car being rashly driven and causing the accident while stating that he did not know the vehicle number and the number was given to him by those

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3 The Insurer, without denying the accident, has asserted that the Driver of the Car was driving at a reasonable speed and was carefully and there was no rashness or negligence.

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who went behind the car because the driver did not

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stop the Car after hitting the deceased.

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Mr. Venkatesha in his evidence in the criminal proceedings, which is recorded in the year 2015, has stated that the accident was brought about by a Tata Indica Car but as of that day [ the date of his re-evidence ] he cannot identify the driver or remember the vehicle number. This witness is consistent in the time proximate to the accident about the involvement of the Car and he is also consistent in his evidence 4-5 five years later in giving a general description of the Car.

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When his evidence is read in context, it

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cannot be discarded only because in the year 2015 he states that he cannot remember the vehicle number.

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This Court opines that when overwhelming evidence is brought on record in the present proceedings [ including the outcome in a further investigation ], the

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Insurer cannot take advantage of a finding by another Tribunal in another set of petitions. Therefore, this Court opines that the first question must be answered in favour of the claimants without interfering with the Tribunal’s finding on the Driver of the Car being responsible for the accident.

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The claimants, given their son’s age at the time of his death, they cannot project with any definiteness the income he would have earned upon completing his education, and what he would have earned will remain in the realm of speculation as is argued by Mr. O. Mahesh. However, the Claimants have placed on record the material which justifies an inference that they have spent Rs.5,00,000/- for their son’s education. Admittedly, the claimants’ son [ the deceased ] was studying to graduate in aeronautical engineering. As per the schedule evolved for settlement in the case of claims arising out of the accident in the year 2008, the notional income is

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taken at Rs.4,500/- and in the present case the Tribunal has taken the deceased’s income at Rs.4,000/-.

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The notional income at Rs.4,500/- is taken

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when there is no proof of actual income but the earning ability of the concerned is brought down. The deceased was pursuing his education in Engineering in the year 2008, and in the absence of definite information this Court cannot justifiably infer that this youngster would not have completed his Engineering. If indeed he had completed Engineering, his earning would have been much higher than Rs.4,000/- and given the vagaries of life as also the possibilities, this Court is of the view, and to award just and reasonable compensation, it would be fair to take a sum of Rs.12,000/- as the income for calculating loss of dependency, a component of just and reasonable compensation that the claimants would entitled to.

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There must be an addition towards future prospects at 40%. The deduction towards personal expenses cannot be at 1/3^rd of the income and it should be 1/2^nd . With these parameters, if loss of dependency is calculated applying multiplier ' 18' , the claimants will be entitled for a sum of Rs.18,14,400/as against a sum of Rs.5,76,072/- awarded by the Tribunal. The Computation of Loss of Dependency will

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be :

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*Computation of Loss of Dep*	*endency*
Annual Income for Loss of Dependency	Rs.1,44,000/-
Addition towards future Prospects at40%	Rs.57,600/-
Annual Income with Future prospects	Rs.2,01,600/-
Deduction at 1/2^ndtowards personalexpenses	Rs.1,00,800/-
Annual Income after deduction towards personalexpenses	Rs.1,00,800/-
Loss of dependency with multiplierof '18'	Rs.18,14,400/-

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The claimants, who are the parents of the deceased, will also be entitled for loss of consortium in a sum of Rs.40,000/- per person apart from Rs.30,000/- towards conventional expenditure. The second question is answered accordingly. The Claimants are entitled to Rs.19,24,400/- with the enhancement in a sum of Rs.13,18,300/-. The computation is brought out by this comparative table:

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	By theTribunal	By this Court
Loss of	Rs.5,76,072/-	Rs.18,14,400/
Dependency
Loss of Estate Loss of Love and Affection	Rs. 10,000/- Rs. 10,000/-	Rs. 80,000/-
Transportation, Funeral and	Rs. 10,000/-	Rs. 30,000/-
Obsequies ceremony
*Total*	*Rs.6,06,072/-*	_Rs.19,24,400/- _
*Enhancement*	*13,18,300/- [as r*	*ounded off]*

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In view of the afore, the following:

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HC-KAR

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ORDER

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[A] The Insurer's appeal in MFA No.2151/2016 and the Claimants' appeal in MFA No.3632/2016 are disposed of granting to the Claimants a total sum of Rs.19,24,000/with enhancement in a sum of Rs.13,18,300/- with interest at 6% per annum from the date of the Claim petition to the date of deposit.

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[B] The Insurer is called upon to deposit this amount with the Tribunal within eight [8] weeks from the date of receipt of a certified copy of this order.

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[C] The amount in deposit in the Insurer’s Appeal in MFA No.2151/2016 shall be transmitted to the Tribunal along with interest expeditiously.

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SD/(B M SHYAM PRASAD) JUDGE

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SD/(G BASAVARAJA) JUDGE

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SA ct:sr

Ram Mohan v. Nagendra K C

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Ram Mohan v. Nagendra K C

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