The New India Assurance Co. Ltd., Vs Smt. Rajalakshmi. N

THE NEW INDIA ASSURANCE CO. LTD., THIRD PARTY CLAIMS HUB, MAHALAKSHMI CHAMBERS, NO.9, 2^ND FLOOR, M.G. ROAD, BANGALORE-560 001, REPRESENTED BY ITS MANAGER

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…APPELLANT

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(BY SRI. RAVISHANKAR C.R., ADVOCATE)

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AND:

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Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

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SMT. RAJALAKSHMI. N AGED ABOUT 53 YEARS, W/O. LATE MAHENDRA BABU. J,

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SRI. YOGESH. M AGED ABOUT 27 YEARS, S/O. LATE MAHENDRA BABU. J, BOTH ARE RESIDING AT NO.23, 3^RD CROSS, GANGA ROAD, SRI MANJUNATHA LAYOUT, MUNNEKOLALA, MARATHAHALLI COLONY, BANGALORE-560 037

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THE MANAGING DIRECTOR V.R.L. LOGISTICS LTD.,

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NC: 2025:KHC:9338 MFA No. 6132 of 2019 C/W MFA.CROB No. 113 of 2020

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NEAR R.V. ENGINEERING COLLEGE, MYSORE ROAD,

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BANGALORE-39

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…RESPONDENTS (BY SRI.GOPAL KRISHNA N., ADVOCATE FOR R1 & R2 SRI.ARAVIND M. NEGLUR, ADVOCATE FOR R3)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:31.01.2019 PASSED IN MVC NO.3523/2017 ON THE FILE OF THE VII ADDITIONAL SMALL CAUSES JUDGE & XXXII ACMM, MEMBER, MACT-3, BENGALURU, AWARDING COMPENSATION OF RS.35,60,350/- WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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IN MFA.CROB NO. 113/2020

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BETWEEN:

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SMT. RAJALAKSHMI N., W/O. LATE MAHENDRA BABU. J, NOW AGED ABOUT 45 YEARS

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SRI. YOGESH M., S/O. LATE MAHENDRA BABU AGED ABOUT 28 YEARS BOTH ARE R/AT NO.23, 3^RD CROSS, GANGA ROAD, SRI MANJUNATHA LAYOUT, MUNNEKOLALA, MARATHAHALLI COLONY,

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BANGALORE-560 037

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...CROSS OBJECTORS

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(BY SRI. GOPAL KRISHNA N., ADVOCATE)

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AND:

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THE NEW INDIA ASSURANCE COMPANY LTD., TP HUB, NO.9/2, MAHALAKSHMI CHAMBERS, M.G. ROAD, BANGALORE-560 001, REPRESENTED BY ITS MANAGER

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THE M.D., VRL LOGISTICS LTD., NEAR R.V. ENGINEERING COLLEGE, MYSORE ROAD, BANGALORE -560 009

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...RESPONDENTS

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NC: 2025:KHC:9338 MFA No. 6132 of 2019 C/W MFA.CROB No. 113 of 2020

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(BY SRI.C.R.RAVISHANKAR, ADVOCATE FOR R1 V/O/D 20.06.2022, NOTICE TO R2 DISPENSED WITH)

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THIS MFA CROB IN MFA NO.6132/2019 FILED UNDER ORDER 41 RULE 22 R/W SECTION 173 OF MOTOR VEHICLE ACT AGAINST THE JUDGMENT AND AWARD DATED 31.01.2019 PASSED IN MVC.NO.3523/2017 ON THE FILE OF THE VII ADDITIONAL SCJ AND XXXII ACMM, MEMBER, MACT-3, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEAL AND MFA CROB, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL JUDGMENT

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The present appeal is filed aggrieved by the award passed in M.V.C.No.3523/2017 dated 31.01.2019 by the VII Addl. SCJ & XXXII ACMM and Member Motor Accident Claims Tribunal, Court of Small Causes, Bangalore, both the Insurance Company and the claimant are before this court. The Insurance company appeal is MFA.No.6132/2019 and the claimant has filed the cross objection MFACROB No.113/2020.

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The claim petition is filed seeking compensation of an amount of Rs.80,00,000/- for the death of the deceased in the accident. The claimants are the wife and the son. It is their case that on 28.11.2016 at about 8.00 p.m., the deceased was travelling as an inmate of the car and when they reach near

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Kolahalu Village, Chitradurga District, the driver of the offending lorry drove the vehicle in high speed, in a rash and negligent manner, without taking due care and indication, suddenly stopped and applied brake on the middle of the NH-4 road, due to which accident occurred and front portion of the car was completely damaged, due to tremendous impact deceased sustained severe injuries and succumbed to the injuries.

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It is the case of the Insurance Company that there is no negligence on the part of the driver of the lorry in fact it is the negligence on the part of the driver of the car who has failed to maintain the distance. In support of their case the Insurance Company has examined the driver of the vehicle as R.W-1 who has stated that he has been driving on the left side of the road and as the lorry was carrying new cars, he was driving slowly and there is no negligence on his part.

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The Court considering the evidence on record and particularly the charge sheet filed against the driver of the lorry had held that the accident had taken place because of the rash and negligent driving of the driver of the lorry. When

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5 - NC: 2025:KHC:9338 MFA No. 6132 of 2019 C/W MFA.CROB No. 113 of 2020

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it comes to the compensation, the trial Court had considered the salary at Rs.47,750/- and taken the future prospects at 10% considering the only wife as dependant and deducted 50% and granted an amount of Rs.34,66,650/- towards loss of dependency, towards loss of estate an amount of Rs.15,000/-, towards loss of consortium an amount of Rs.40,000/-, towards funeral expenses an amount of Rs.15,000/- and towards medical bills an amount of Rs.23,700/- is granted, as per the table given below:

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Sl.	Heads		Compensation
No.			Awarded
1	Loss of dependency	Rs.	34,66,650/-
2	Loss of estate	Rs.	15,000/-
3	Loss of consortium	Rs.	40,000/-
4	Funeral & obsequies expenses	Rs.	15,000/-
5	Medical bills	Rs.	23,700/-
	TOTAL	Rs.	35,60,350/-

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Learned counsel appearing for the Insurance Company submits that the court had failed to consider the negligence on the part of the driver of the car. It is submitted that they have examined the driver of the lorry to show that there is no negligence on the part of the driver of the lorry and there is

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contributory negligence on the part of the driver of the car and the claimants have not examined the driver or any other witness in their support, still the court has fastened the negligence on the driver of the lorry without any basis. Further he submits that the trial court had granted interest at 8% whereas it ought to have been at 6%. Further he submits that the court ought not to have held that there is negligence on the part of the driver of the lorry.

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Learned counsel appearing for the claimant who has filed the cross objection submits that the court ought to have considered the future prospects at 15% as he is having a permanent job. Further the court had deducted 50% of the amount taking consideration only wife is the dependent. He submits that the son is 24 years old, it is a consistent case of the claimants that the son is dependent upon the deceased and nothing has been suggested nor it was a case of the Insurance Company that the son is not dependent. In that case when there is no evidence, the court ought to have deducted 1/3^rd instead of 50%. Further even on the other conventional heads the amounts that were granted by the court are not reasonable and needs to be enhanced. He

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submits that as far as the negligence is considered, the court had rightly held that the driver of the lorry is negligent and on that aspect the order passed the trial court is a well considered one.

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Having heard the counsels on the either side, perused the entire material on record. As far as the income of the claimant is concerned there is no dispute and when it comes to the future prospects, as per the table it is 15%. In case of a permanent employee court had considered only 10% and that has to be taken as 15% and coming to the dependency, as rightly argued by the learned counsel for the claimant though the son is 24 years old there is nothing on record to show that he is not the dependent and the Insurance Company has never taken a ground nor it has denied the dependency. In that case 1/3^rd has to be deducted towards personal expenses. In that case Rs.47,750/- + 15% future prospects would come to Rs.7,162/- (Rs.47,750/- + Rs.7,162/-) i.e., Rs.54,912/- x 12 is Rs.6,58,950/-. Out of that the 1/3^rd would be Rs.2,19,650/- (Rs.6,58,950/- - Rs.2,19,650/-= Rs.4,39,300/-)

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then it comes to Rs.4,39,300/-. Multiplier for the age of 53 is 11, then the loss of dependency would come to

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Rs.48,32,300/-. Towards consortium for 2 persons Rs.44,000 x 2 = Rs.88,000/-, towards funeral expenses an amount of Rs.36,000/- and the trial court had granted medical bills at Rs.23,700/- basing on the evidence on record.

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In the light of the law laid down by the Hon'ble Supreme Court in the case of V.MEKALA Vs. M. MALATHI AND ANOTHER¹ , the claimant is entitled for an amount of

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Rs.10,000/- towards Legal Expenses . Altogether, the claimant is entitled for an amount Rs.49,90,000/-.

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The claimant is therefore, entitled to the compensation

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under the following heads:

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Sl. No.	Heads	Co A	mpensation warded by Tribunal	Compensation Awarded by this Court
1	Loss of dependency	Rs.	34,66,650/-	48,32,300/-
2	Loss of estate	Rs.	15,000/-	15,000/-
3	Loss of consortium	Rs.	40,000/-	88,000/-
4	Funeral & obsequies expenses	Rs.	15,000/-	36,000/-

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1 (2014) 11 SCC 178

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NC: 2025:KHC:9338 MFA No. 6132 of 2019 C/W MFA.CROB No. 113 of 2020

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5	Medical bills	Rs.	23,700/-	23,700/-
6	Legal Expenses	Rs.	00/-	10,000/-
	TOTAL	Rs.	35,60,350/-	50,05,000/-
	Enhancement	Rs.	14,44,65	0/-

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Coming to the aspect of a negligence, when an application is filed under section 166 of the Motor Vehicles Act seeking compensation the burden lies on the claimant to show that there is negligence on the part of the driver of the offending vehicle. It is his case that the driver of the lorry has applied the sudden break because of that the accident has occurred. The Insurance Company has examined the driver of the lorry whereas the claimant has not examined anyone. The trial court considering the charge sheet that is filed against driver of the vehicle has fastened the negligence on the driver of the offending lorry. Considering the fact that accident happened on the highway and as there is no specific evidence and particularly considering the charge sheet that is filed. In the facts and circumstances, this court is inclined to fix the contributory negligence @ 10% and admittedly the deceased is the owner of the car in which he is travelling.

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NC: 2025:KHC:9338 MFA No. 6132 of 2019 C/W MFA.CROB No. 113 of 2020

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Under these circumstances the total compensation granted by this Court is Rs.50,05,000/- at 10% of it would come to Rs.45,04,500/- (Rs.50,05,000/- - Rs.5,00,500/-=Rs.45,04,500/-) The Insurance company is liable to pay an amount of Rs.45,04,500/- to the claimant.

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i) Accordingly, the appeal filed by the Insurance Company MFA.No.6132/2019 is partly allowed by reducing the interest from 8% to 6% and the Cross-Objection filed by claimant MFA.CROB.No.113/2020 is partly allowed by enhancing the compensation from an amount of Rs.35,60,350/- to Rs.45,04,500/-.

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ii) The enhanced amount shall carry interest @ 6% per annum from the date of petition, till the date of realization.

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iii) Respondent-Insurance Company shall deposit the said compensation amount with accrued interest before the tribunal within a period of 8 (Eight) weeks.

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iv) The amount is deposit by the Insurance company shall be forthwith transmitted to the court below.

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NC: 2025:KHC:9338 MFA No. 6132 of 2019 C/W MFA.CROB No. 113 of 2020

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v)The registry is directed to return the Trial Court Record to the Tribunal along with the certified copy of the order passed by this court forthwith without any delay.

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vi) No Costs.

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Pending miscellaneous petitions, if any, shall stand closed.

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SD/(LALITHA KANNEGANTI) JUDGE

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TS

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List No.: 1 Sl No.: 39

The New India Assurance Co. Ltd., v. Smt. Rajalakshmi. N

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The New India Assurance Co. Ltd., v. Smt. Rajalakshmi. N

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