Reliance General Insurance Co. Ltd. Vs Mr Veeranna v

RELIANCE GENERAL INSURANCE CO LTD TP CLAIMS HUB NO 28, 5TH FLOOR,CENTENARY BUILDING EAST WING, M G ROAD, BENGALURU - 560001 REP BY ITS MANAGER LEGAL … APPELLANT

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(BY SRI. D VIJAYA KUMAR, ADVOCATE)

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AND:

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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MR VEERANNA V S/O V KUMAR SWAMY AGED ABOUT 48 YEARS

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SMT V RENUKA W/O VEERANNA V AGED ABOUT 45 YEARS

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KUMARI V UMA D/O VEERANNA V AGED ABOUT 18 YEARS

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ALL ARE PERMANENTLY R/AT BELLARY ROAD, OPP AJJAIAH TEMPLE CHALLAKERE, CHITRADURGA PIN - 577522

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CURRENT ADDRESS: ALL ARE R/AT NO 06, 1ST FLOOR 8TH MAILE, DASARAHALLI BANGALORE – 560057

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SRI HARISH R S/O RAMASWAMY Y MAJOR R/AT NO.14, KULUME PALYA KANNAIKANA, AGRAHAR ANJANAPURA POST ANJANAPURA BANGALORE – 560062 …RESPONDENTS

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(BY SRI. GURUDEV PRASAD K T, ADVOCATE TO R1 TO R3 R4 SERVED)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT. 02.02.2024 PASSED IN MVC NO.5952/2022 ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSE JUDGE AND ACMM, MEMBER, MACT, BENGALURU, (SCCH-24), AWARDING COMPENSATION OF RS.24,36,980/-WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL REALIZATION OF ENTIRE AMOUNT AND ETC.

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IN MFA NO. 5529/2024

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BETWEEN:

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MR. VEERANNA V S/O V KUMAR SWAMY, AGED ABOUT 48 YEARS,

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SMT V RENUKA W/O VEERANNA V AGED ABOUT 45 YEARS,

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KUMARI V UMA D/O VEERANNA V AGED ABOUT 18 YEARS,

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PERMANENT ADDRESS, BELLARY ROAD, OPP AJJAIAH TEMPLE, CHALLAKERE, CHITRADURGA 577 522.

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CURRENT ADDRESS,

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ALL ARE RESIDING AT, NO. 6, 1ST FLOOR, 8TH MAILE, DASARAHALLI, BENGALURU PIN 560 069. … APPELLANTS

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(BY SRI. GURUDEV PRASAD K T, ADVOCATE)

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AND:

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M/S RELIANCE GENERAL INSURANCE CO LTD BY ITS MANAGER, TP CLAIMS HUB, NO. 28, 5TH FLOOR, CENTENARY BUILDING, EAST WING, M G ROAD, BENGALURU - 560 001.

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HARISH R S/O RAMASWAMY Y, R/AT NO. 14, KULUME PALYA, KANNAIKANA AGRAHARA, ANJANAPURA POST, ANJANAPURA, BENGALURU - 560 062. … RESPONDENTS

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(BY SRI. D VIJAYA KUMAR, ADVOCATE FOR R1 SERVICE OF NOTICE TO R2 IS HELD SUFFICIENT V/O DTD 25.11.2024)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.02.2024 PASSED IN MVC NO. 5952/2022 ON THE FILE OF THE XXII ADDITIONAL SCJ AND ACMM, MEMBER, MACT, BENGALURU SCCH-24, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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

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

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ORAL JUDGMENT

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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Challenging the award in MVC No.5952/2022 passed by

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the XXII Additional Small Causes Judge and MACT, Bengaluru

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(for short the ‘Tribunal’), the insurer has preferred MFA No.3886/2024 and the claimants have preferred MFA No.5529/2024. Appellant Nos.1 to 3 in MFA No.5529/2024 were claimant Nos.1 to 3 and respondent Nos.1 and 2 in the said case were respondent Nos.1 and 2 in MVC No.5952/2022. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Trial Court.

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Claimant Nos.1 and 2 are the parents and claimant No.3 is the younger sister of deceased Vinaykumar. On 28.9.2022 at about 1.30 a.m., when Vinaykumar was proceeding near Sri Gururaghavendra Industries within the limits of Challakere Police Station, he met with an accident and died. Regarding the accident, on the basis of the complaint filed by PW.1/claimant No.1, Challakere Police registered FIR in Crime No.322/2022 against the driver of the car bearing No.KA-05/AF 6037. On investigation, they filed charge sheet against the said driver as per Ex.P13 for the offences punishable under Sections 279, 304A of IPC and 187 of the IMV Act.

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The claimants filed MVC No.5952/2022 before the Tribunal claiming that the accident and consequential death of

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Vinaykumar occurred solely due to the actionable negligence of

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Saibanna, the driver of car bearing No. KA-05/AF 6037. They further contended that the deceased was earning 30,000/p.m., as an electrician and they were all depending on his income. They contended that due to the death of Vinaykumar, they have suffered damages to the tune of 40,00,000/- and the respondents are liable to compensate the same.

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Respondent No.1 filed statement of objections contending that the accident occurred due to the negligence of the deceased himself as he was walking on the road unmindful of the traffic rules. Respondent No.1 further contended that the compensation claimed is exorbitant and sought for dismissal of the petition.

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Respondent No.2/the owner of the car filed statement of objections contending that he has sold the car in favour of Sri Saibanna s/o Devappa on 27.7.2022, therefore, the liability, if any, has to be fastened to the subsequent purchaser and sought for dismissal of the petition against him.

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Before the Tribunal, on behalf of the claimants claimant No.1 was examined as PW.1, eye-witness to the incident was examined as PW.2 and Exs.P1 to P21 were

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marked. Respondent No.2 did not lead any evidence. Respondent No.1 summoned the doctor from Taluka Hospital, Challakere, to produce MLC extract. He was examined as RW.1 and he produced the MLC register. Copy of the said extract was marked as Ex.R1 and MLC register was returned to the witness.

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The Tribunal, on hearing the parties by the impugned judgment and award, held that the accident occurred due to the actionable negligence of the driver of car bearing No. KA-05/AF 6037. The Tribunal, based on the records produced by the claimants, considered age of the deceased as 19 years, notionally assessed his income as 15,500/- p.m., added 40% to the same by way of future prospects, deducted 50% from the same towards personal expenses of the deceased as he was unmarried, applied 18 multiplier and awarded 23,43,600/- on the head of loss of dependency. The Tribunal in all awarded

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compensation of `24,36,980/- on different heads as follows:

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Sl. No.	Particulars	Amount in (`)
1	Transportation and funeral expenses	18,150/-
2	Loss of love and affection	48,400/-
3	Loss of estate	18,150/-
4	Loss of dependency	23,43,600/-
5	Medical expenses	8,680/-
	Total	24,36,980/-

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The Tribunal held that respondent No.1/insurer is

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liable to pay the said compensation with interest at 6% p.a., from the date of petition till its realization.

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The insurer has challenged the said judgment and award in the above case denying the involvement of the vehicle in the accident. The claimants have preferred the appeal challenging the adequacy of the compensation awarded to them.

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Submissions of Sri Vijaya Kumar, learned counsel for the insurer:

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Though the victim was allegedly accompanied by PW.2 at the time of the accident, he did not file the complaint.

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There was no reason for the victim and PW.2 to walk on the road at 1.30 a.m. The victim must have been drunk while walking on the road. In such state, unknown vehicle might have hit him and to take advantage of that incident, the insured vehicle is falsely implicated in the case on the ground

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that, piece of the number plate of the insured vehicle was found at the place of the accident. But the IMV report does not show any damage to the number plate. There was delay in filing the complaint. Even sketch of the scene of accident does

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not state in which direction the vehicle and the deceased were

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proceeding. Though respondent No.2 claimed that he had already sold the vehicle, RC owner’s name is not changed in the registration certificate, therefore, his defence cannot be considered. The compensation computed by the Tribunal is just one.

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Submissions of Sri K.T.Gurudev Prasad, learned counsel for the claimants:

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The insurer in its statement of objections did not raise plea of non-involvement of the vehicle in the accident. For the first time, such plea is being raised before this Court, in this appeal. There is no basis for the allegation that the victim was drunk and walking on the road, and was hit by some other vehicle. Ex.P6 – vehicle seizure mahazar shows that the vehicle was fixed with new number plate and Ex.P4 – spot sketch shows that the number plate of the vehicle had fallen at the spot. On thorough investigation, the charge sheet was filed against the driver of the vehicle. The insurer did not examine the driver of the vehicle. The evidence of RW.1 in no way advances the case of the insurer to deny the involvement of the vehicle. That there are no grounds to set aside the finding of

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the Tribunal regarding negligence. Compensation awarded by

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the Tribunal on the conventional heads, is not in accordance with the judgments of the Hon’ble Supreme Court in the cases

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of National Insurance Company Limited vs. Pranay Sethi¹ and Magma General Insurance Company Ltd. v. Nanu Ram² . Hence, the appeal of the insurer shall be dismissed and claimants appeal be allowed.

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On considering the submissions of both side and on

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examining the material on record, the questions that arise for determination of the Court are:

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i. Whether the finding of the Tribunal that the accident and death of Vinaykumar occurred due to the actionable negligence on the part of the driver of car bearing No.KA-05/AF 6037, suffers from any infirmity?

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ii. Whether the compensation awarded by the Tribunal is just one?

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Analysis

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Reg. question No.(i):

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The claimants contended that on 28.9.2022 at about 1.30 a.m., when Vinaykumar was walking with PW.2 - Sanjay Kumar near Shivaganga Petrol Bunk in Challakere

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1 AIR 2017 SC 5157

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2 2018 (18) SCC 130

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Town, the driver of car bearing No. KA-05/AF 6037 drove the said car in rash and negligent manner, hit Vinaykumar and caused him grievous injuries. They further contended that soon after the accident, Vinaykumar was shifted to the Government Hospital, Challakere, from there to Government Hospital, Chitradurga and then to NIMHANS, Bengaluru, thereafter, to Victoria Hospital, Bengaluru and he died.

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The respondents in their statement of objections did not dispute Vinaykumar being hit by car and succumbing to those injuries in Victoria Hospital on 30.9.2022. As rightly pointed out by the Tribunal, in the statement of objections of respondent No.1/insurer, absolutely there was no whisper about planting of the insured vehicle falsely. For the first time, in the cross-examination of PW.1, respondent No.1 suggested that the insured vehicle was not involved in the accident, which he denied. PW.2 was shown as eye-witness even in the complaint which was filed soon after the accident. In his crossexamination also nothing could be elicited to discredit the involvement of the car bearing No. KA-05/AF 6037 in the accident causing the death of Vinaykumar. After thorough investigation, the charge sheet was filed against the driver of

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the said car. The insurer did not examine the driver of the car

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even to prove the defence of non-involvement of the vehicle.

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Though RW.1 was summoned to produce the MLC Register extract, even in the said extract it is recorded that the victim was brought with history of road traffic accident at 1.30 a.m., on 28.9.2022 at Bellary Road. Non mentioning of the vehicle number in MLC Register would not help, as after investigation, the charge sheet was filed against the driver of the said vehicle. Though the charge sheet is not a conclusive proof of the accident in the alleged manner, it has presumptive value in view of Section 114(e) of the Indian Evidence Act, 1872. The said presumption was not rebutted by the respondents. Therefore, the Tribunal has rightly held that the accident and death of Vinaykumar occurred due to the actionable negligence on the part of the driver of car bearing No. KA-05/AF 6037. Therefore, the contention of Sri D.Vijaya Kumar, learned counsel for the insurer in that regard has no merit.

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So far as the victim himself being negligent or walking on the road in drunken state, first of all no such defence was taken in the statement of objections. The post

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mortem report or the inquest report did not indicate any such consumption of alcohol. Even in the cross-examination of PWs.1 and 2, no such suggestion was made. RW.1 was the doctor summoned by the insurer itself. If at all the victim was drunk, at least in his evidence it could have been elicited. Therefore, not only that the said contention is unacceptable, it can be said that disgraceful aspersions are being made against deceased person, which needs to be deprecated.

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Reg.question No.(2):

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As per Ex.P20 – SSLC Marks Card, the date of birth of victim was 4.5.2003. As on the date of the accident, he was aged 19 years. There was no proof of annual income. Hence, the Tribunal was justified in assessing the notional income at `15,500/- p.m., considering his age, prevailing wage rates and cost of living during the said period. Awarding of future prospects, deduction of amount for the personal expenses of the deceased and multiplier applied by the Tribunal are in accordance with the judgments of the Hon’ble Supreme Court

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in the cases of Sarla Verma (Smt) And Others vs. Delhi Transport Corporation And Another³ and Pranay Sethi,

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3 (2009) 6 SCC 121.

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referred to supra. Therefore, the compensation awarded on the

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head of loss of dependency is just one.

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The compensation awarded on the head of medical expenses was based on the records and that also needs to be maintained. As per the judgments of the Hon’ble Supreme Court in Pranay Sethi and Magma General Insurance

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Company Ltd., referred to supra, claimant Nos.1 and 2 are entitled to compensation of 40,000/- each on the head of consortium with escalation of 10%. Similarly, the compensation payable on the heads of loss of estate and funeral expenses and transportation charges shall be 15,000/+ `15,000/- with escalation of 10%. Therefore, just

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compensation payable is as follows:

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Sl.	Particulars	Amount in
No.		(`)
1	Transportation and funeral expenses	16,500.00
2	Loss of love and affection	88,000.00
3	Loss ofestate	16,500.00
4	Loss of dependency	23,43,600.00
5	Medicalexpenses	8,680.00
	Total	24,73,280.00
	Compensation awarded by the Tribunal	(-)24,36,980.00
	Enhancement	36,300.00

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The enhanced compensation shall carry interest at 6% p.a., payable by respondent No.1/insurer.

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For the aforesaid reasons, the appeal of the insurer

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is liable to be dismissed with costs and the appeal of the claimants deserves to be allowed in part.

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Hence, the following:

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ORDER

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i. MFA No.3886/2024 is dismissed with costs of `10,000/- payable to the claimants;

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ii. MFA No.5529/2024 is allowed in part;

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iii. Claimants are entitled to enhanced compensation of `36,300/- with interest at 6% p.a., from the date of petition till date of realization;

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iv. Respondent No.1 – insurer shall deposit the enhanced compensation along with costs on adjusting the amount already deposited, if any, before the Tribunal within four weeks from the date of receipt of copy of this order;

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v. The order of the Tribunal with regard to apportionment and investment is maintained;

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