The Branch Manager Vs Smt B R Leelavathi

THROUGH ITS REGIONAL OFFICE, NATIONAL INSURANCE CO.LTD., NO.144, SUBHARAM COMPLEX, M.G.ROAD, BENGALURU 560001. REP. BY ITS ASST. MANAGER SRI G SHIVAKUMAR.

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Digitally signed by VANAMALA N

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Location: High Court of Karnataka

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…APPELLANT

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(BY SRI. ANUP SEETHARAM RAO., ADVOCATE)

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AND:

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SMT B R LEELAVATHI AGED ABOUT 61 YEARS, W/O SRI R.MALLIKARJUNA, RESIDENT OF KURUVANGI VILLAGE AND POST, CHIKKAMAGALURU TALUK.

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SRI. R MALLIKARJUNA AGED ABOUT 68YEARS, S/O LATE RUDREGOWDA,

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BOTH ARE RESIDENTS OF KURUVANGI VILLAGE AND POST, CHIKKAMAGALURU TALUK.

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SRI. K V MADHU AGED ABOUT 35 YEARS, S/O SRI VISHWANATHA, AGRICULTURIST, NO.46, VEERENDRA HEGDE ROAD, ARAVINDANAGAR, CHIKKAMAGLURU, (RIDER OF MOTOR CYCLE NO.KA 18/X-0681)

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SRI. HEMANTHA K M MAJOR IN AGE, S/O SRI MARIRANGA SHETTY, RESIDIGN AT NO.88, KURUVANGI VILLAGE AND POST, CHIKKAMAGALURU TALUK (OWNER OF MOTOR CYCLE NO. KA 18/X-0681)

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SMT. H C RAJESHWARI AGED ABOUT 35 YEARS, W/O LATE CHANDRASHEKAR, RESIDENT OF HALLADA HALLI, DEVANUR POST, SAKHARAYAPATNA HOBLI, KADUR TALUK CHIKMAGALURU DISTRICT.

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…RESPONDENTS

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(BY SRI.K.G. SHANTHARAJA., ADVOCATE FOR R1 & R2; SRI. H.K. AMARANATHA, ADVOCATE FOR R3 & R4; SRI. K.S. GANESH, ADVOCATE FOR R5)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.01.2020 PASSED IN MVC NO.474/2017 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND MACT, CHIKKAMAGALURU, AWARDING COMPENSATION OF RS.24,02,849/- WITH INTEREST AT 8 PERCENT P.A. FROM THE DATE OF PETITION TIL THE DATE OF PAYMENT.

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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 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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This appeal is by the Insurer of the motorcycle bearing registration No.KA-18/X-0681, and the Insurer is aggrieved by the Judgment and Award dated 17.01.2020 in MVC No.474/2017 on the file of

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the II Additional Senior Civil Judge and MACT, Chikkamagaluru [for short, ' the Tribunal' ]. The Tribunal, allowing the first and the second

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respondents' claim petitions under Section 166 of the Motor Vehicles Act, 1988 [for short, 'the MV Act' ], has allowed the petition awarding these respondents and the fifth respondent compensation in a sum of Rs.24,02,849/- along with interest at 8% per annum apportioning the compensation in the ratio of 40:10:50 amongst these claimants. The Tribunal has granted compensation as aforesaid under the

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following heads:

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Sl. No.	Heads of compensation	Amount [In Rs.]
1.	Loss of estate	18,00,000
2.	Love and affection	.50,000
3.	Transportation Charges	5,000
4.	Cremation and obsequies	25,000
5.	Medical bills	5,22,849
	TOTAL	Rs.24,02,849

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The first and the second respondents [ the

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claimants, and are referred to accordingly ] have presented a claim petition contending that the deceased, Sri K M Chandrashekar, married to the fifth respondent, has died because of the injuries suffered in a road accident on 11.11.2016 when he

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was on the pillion of the third respondent who was riding the motorcycle owned by the fourth respondent. The claimants have asserted that the deceased was working both as an agricultural labour and a farmer and earning more than Rs.25,000/- per month.

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The Insurer has filed a Statement of Objections, admitting that the motorcycle was covered under a valid and effective Policy, but taking general contentions such as that the third respondent did not hold a valid driving licence. The Tribunal has framed Issues for consideration, and these Issues relate to whether the claimants prove that the deceased died in a road accident because of the negligent and rash driving by the third respondent and the compensation to which they would be entitled.

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The first claimant [ the first respondent]

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has examined herself as PW1, and the fifth

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respondent has examined herself as RW1. The first respondent in her chief examination has essentially reiterated the contents of the claim petition, and in the cross- examination on behalf of the Insurer, she has admitted that the deceased was hospitalized for more than a month but has denied the suggestion that the deceased was riding the motorcycle himself and the accident was because he was rash and negligent. The fifth respondent has deposed in consonance with the evidence rendered by the first respondent.

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The Insurer examined its Senior Branch Manager, Chikkamagaluru as RW.2, and this witness has stated that the deceased was riding the motorcycle and has caused the accident and that this is showed by the records of Nanjappa Hospital, Shivamogga. The witness has also stated that the Police have registered First Information and completed investigation. The police have filed charge

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sheet against the third respondent to help the claimants and the fourth respondents to sustain their claim in the present proceedings.

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The claimants have marked the Police

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records as also Discharge Summaries issued by M/s. Holy Cross Hospital, Chikkamagaluru and Maax Super Speciality Hospital, Shivamogga. These documents are apart from the Medical Bills and a letter issued by the Chikkamagaluru District Plumbers Union. The Insurer through its witnesses has marked MLC Register Extracts from M/s Nanjappa Hospital, M/s. Maax Super Speciality Hospital, Shivamogga and M/s. Malle Gowda District Hospital, Chikkamagaluru. Crucially, the Insurer has also marked the copy as a certified copy of the Judgment dated 14.03.2019 in CC No. 1385/2017.

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The Tribunal considering these material

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has answered the Issue whether the claimants prove that the deceased died in a road accident because of

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the third respondent’s negligent and rash driving in the affirmative holding that the claimants have established the accident is because the third respondent was negligent in driving the motorcycle. The Tribunal has computed loss of dependency based on the deceased’s age after deducting one third of his income towards personal expenses. The Tribunal relying upon Exhibit-P8 - a Certificate issued by the Chikkamagaluru District Plumber Union - has taken the income of the deceased at Rs.15,000/- per month. However, the Tribunal has not provided for any addition towards future prospects.

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Sri Anup Seetharama Rao, the learned counsel for the appellant, submits that this Court must interfere with the Tribunal's finding that the claimants have established that the third respondent was riding the motorcycle and he was negligent contending that the Issue placed burden on the Claimants and they have not examined an eye

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witness; that the first claimant [PW – 1] admittedly is not a witness to the accident and her account of how the accident has occurred cannot be of any value. The learned counsel argues that unless the claimants discharged this burden, the Tribunal could not have found in their favour.

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Sri K G Shantharaja, the learned counsel for the claimants, is heard in the light of this canvass, and on perusal of the findings in CC No. 1385/2017. It is seen from this Judgment that Sri K C Vedamurthy and Sri Naveen Kumar, who have been cited as eyewitnesses to the accident in the investigation, have been examined as PW1 and PW3, and these witnesses are categorical that they were traveling about 200 to 300 meters behind the deceased, that they saw the third respondent and the deceased fall from the motorcycle and they have also stated that when they enquired with the third

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respondent and the deceased, they stated that the vehicle skid and fell.

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Undoubtedly, the claimants have not let in evidence except their own testimony, but they can definitely take advantage of the documents that the Insurer has placed on record - the evidence which is

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referred to by the learned Magistrate. The prosecution’s case establishes that the third respondent was driving the motorcycle with the deceased on the pillion. This Court, therefore, does not find any reason for interference with the Tribunal's finding of the issue on this ground.

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Sri Anup Seetharam Rao next contends that this Court must hold against the claimants and the fourth respondent because, though in the Register with M/s. Nanjappa Hospital, Shivamogga, the history of the accident [ at the time of admitting the deceased ] is mentioned as a road accident because of

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skid and fall from the bike, in the records of M/s Maax Super Speciality Hospital, Shivamogga, it is mentioned that the deceased died in a collision with another vehicle. The learned counsel argues that this dichotomy in the description of the accident must be fatal.

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However, Sri Anup Seetharam Rao does not dispute that the second history as mentioned in the records of M/s Maax Super Speciality Hospital, Shivamogga is as is related by a friend who had shifted the deceased for further treatment and that the deceased was unconscious. If at the first instance, when the deceased was shifted to M/s. Nanjappa Hospital, Shivamogga and the accident is related as being because of the skid and fall from a motorcycle, merely because a friend, who has shifted the deceased under exigent circumstances, had made another statement, this Court is not persuaded to opine that it should be fatal to the claim petition

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especially when the Police have completed their investigation stating that the third respondent was riding the motorcycle and the witnesses who have given their statement have also stated so in the Court proceedings. As such, this Court opines that there is no reason to interfere with the Tribunal's finding even on the second ground.

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Sri Anup Seetharam Rao next argues that this Court must interfere with the quantum of compensation because the Tribunal could not have relied upon Exhibit-P8, a Certificate issued by the Chikkamagaluru District Plumbers Association because the author of the Certificate has not been marked. Sri K G Shantharaja cannot dispute that the probative value of this Certificate remains unestablished with the author not being examined. There is no evidence other than this evidence and the self-serving testimony of the second respondent that her son was working both as an Agricultural Laborer

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and as a Plumber cannot be accepted without corroboration. The reliance on Exhibit-R8 is wholly erroneous and there must be interference.

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The claimants and the fourth respondent have thus failed to establish actual income, and in that event, it is settled that the scheduled Award for Settlement in Lok Adalat must be adopted. As per the schedule, in the case of claims arising out of accidents in the year 2016, Rs.9,500/- is taken as monthly income. Thus, it is appropriate to take such income and there must be addition towards future prospects. The addition towards future prospects with the deceased being aged 38 years, must be 40% and the loss of dependency after applying the appropriate multiplier of '15' would be thus:

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The Computation of Loss of Dependency will be :

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Computation of Loss of Dependency [in Rs.]
Annual Income for Loss of Dependency [Rs.9,500x 12] 1,14,000
Addition towards future Prospectsat40% 45,600

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Annual Income with Future prospects	1,59,600
Deduction at 1/3^rdtowards personalexpenses	53,200
Annual Income after deduction towards personalexpenses	1,06,400
Loss of dependency with multiplierof '15'	15,96,000

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The Tribunal has awarded Rs.50,000/towards love and affection which is essentially for loss of consortium and with three claimants [the two claimants and the fifth respondents], the compensation towards loss of consortium should be in a sum of Rs.1,20,000/- with further sum of Rs.30,000/- towards funeral expenses and cost of transportation . These amounts must be in addition to sum of Rs.5,22,849/- towards medical bills . The compensation when so computed after examining the appellant's case that the Tribunal has erred in taking the income of the deceased at Rs.15,000/- per month would be as follows:

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	By the Tribunal [in Rs.]	By this Court [in Rs.]
Loss of estate/
dependency	18,00,000	15,96,000
Loss of consortium/love and affection	50,000	1,20,000
Transportation charges	5,000	30000
Cremation and obsequies	25,000	,
Medicalbills	5,22,849	5,22,849
	24,02,849	22,68,849

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At this stage, Sri Anup Seetharam Rao argues that it is settled that only in exceptional and rare circumstances, the interest must be over 6%, but the Tribunal recording no reason that would justify a higher rate of interest has granted 8% per annum. This contention is also considered, and this Court must reduce the interest to 6% as special circumstances indeed are not forthcoming to justify a higher rate of interest. In the light of the afore, the following:

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ORDER

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[a] The appeal is allowed in part.

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[b] The impugned Judgment and Award dated 17.01.2020 in MVC No.474/2017 on the file of the II Additional Senior Civil Judge and MACT, Chikkamagaluru is modified awarding to the first, second and fifth respondents compensation of Rs.22,68,849/- along with interest rate of 6% per annum.

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[c] The appellant-Insurer is directed to deposit [subject to the amount already in deposit with the Tribunal in terms of the interim orders of this Court], the amount payable in terms of this Order within eight [8] weeks from the date of receipt of a certified copy. It is needless to observe that all other terms of the Tribunal's Award remain unaltered.

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