The Reliance General Insurance Co. Ltd. Vs Smt Mayadevi

THE RELIANCE GENERAL INSURANCE CO. LTD., 5TH FLOOR, WEST WING CENTENARY BUILDING M G ROAD, BENGALURU 560001 REP BY ITS MANAGER LEGAL NO. 28, 5TH FLOOR CENTENARY BUILDING EAST WING, M G ROAD BANGALORE 560001 …APPELLANT

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(BY SRI. D VIJAYA KUMAR, ADVOCATE)

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AND:

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SMT MAYADEVI W/O LATE PANNELAL AGED ABOUT 42 YEARS

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KUMARI SANDHYA PAL S/O LATE PANNELAL AGED ABOUT 15 YEARS

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MASTER ABHAY PAL

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S/O LATE PANNELAL AGED ABOUT 13 YEARS

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KUMARI ARCHANA PAL D/O LATE PANNELAL AGED ABOUT 9 YEARS

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SRI VIRENDRA PAL S/O PRASHANTH PAL AGED ABOUT 64 YEARS

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SMT GEETHA W/O VIRENDAR AGED ABOUT 65 YEARS

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SINCE RESPONDENT NOs.2 TO 4 ARE MINORS REP BY THEIR MOTHER / NEXT FRIEND/ GUARDIAN, R1 SMT MAYADEVI

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ALL ARE R/AT DALA DUDRAPUR, DEORIA UTTAR PRADESH 274204

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SRI AMITH KUMAR S/O CHOTARAM LUBARAM CHOYAL MAJOR R/AT NO 98, CHOYAL NIVAS HALASALLI ROAD, VARTHUR, BANGALORE 560087 (EXPARTE)

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…RESPONDENTS

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(BY SRI. P S KAILAS SHANKAR, ADVOCATE FOR C/R1 TO R6 R7 SERVED)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT.03.09.2024 PASSED IN MVC NO.4103/2022 ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSE JUDGE AND ACJM, MEMBER, MACT, BENGALURU, (SCCH-24), AWARDING COMPENSATION OF RS.29,43,280/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT AND ETC.

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IN MFA NO. 7354/2024

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BETWEEN:

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THE RELIANCE GENERAL INSURANCE CO LTD 5TH FLOOR, WEST WING CENTENARY BUILDING M G ROAD, BANGALORE 560001 REP BY ITS MANAGER LEGAL NO 28, 5TH FLOOR, EAST WING CENTENARY BUILDING MG ROAD, BANGALORE 560001

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...APPELLANT

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(BY SRI. D VIJAYA KUMAR, ADVOCATE)

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AND:

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SMT INDU DEVI W/O LATE KAMLESH PAL AGED ABOUT 27 YEARS

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KUMARI PRITI PAL D/O LT KAMALESH PAL AGED ABOUT 8 YEARS

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KUMARI PRIYANKA PAL D/O LATE KAMLESH PAL AGED ABOUT 6 YEARS

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SRI SUBHASH S/O PARASH AGED ABOUT 70 YEARS

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SMT SUDHARI W/O SUBHASH AGED ABOUT 68 YEARS

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SINCE RESPONDENT NOs.2 & 3 ARE MINORS REP BY THEIR MOTHER / NEXT FRIEND/ GUARDIAN, RESPONDENT NO. 1, SMT INDU DEVI ALL ARE R/AT DALA DUDRAPUR, DEORIA

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UTTAR PRADESH - 274204

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SRI AMITH KUMAR S/O CHOTARAM LUBARAM CHOYAL MAJOR R/AT 98, CHOYAL NIVAS HALASALLI ROAD VARTHUR, BANGALORE 560087 (EXPARTE)

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...RESPONDENTS (BY SRI. P S KAILAS SHANKAR, ADVOCATE FOR C/R1 TO R5 R6- SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.09.2024 PASSED IN MVC NO. 4102/2022 ON THE FILE OF THE XXII ADDITIONAL SCJ AND ACJM, MEMBER, MACT, BENGALURU SCCH-24 AWARDING COMPENSATION OF RS.35,99,400/WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL DEPOSIT 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 MR JUSTICE C.M. POONACHA)

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Both the appeals are filed by the insurer challenging the

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common judgment dated 3.9.2024 passed in MVC No.4102/2022 and MVC No.4103/2022 by the XXII Additional SCJ and ACJM, Member, MACT, Bengaluru, SCCH-24¹ .

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1 Hereinafter referred to as the ‘Tribunal’

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For the sake of convenience, the parties herein are referred to as per their ranks before the Tribunal.

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The facts in a nutshell leading to the present appeals are that, on 3.7.2022 one Kamalesh Kumar Pal was riding motor cycle bearing No. KA.01.EG.1468 with one Pannelal as a pillion rider and were traveling from Chikkathirupathi village towards Sarjapur and one Alok L K was riding motor cycle bearing No.KA-03-HP-5230 towards Chikkathirupathi. At that time, the driver of Ertiga Car bearing No.KA-53-ME-6007 came from opposite side at high speed, in a rash and negligent manner and hit the motor cycle bearing No.KA-03-HP-5230 and thereafter, went on the wrong side of the road and hit motor cycle bearing No. KA.01.EG.1468 causing the accident in question, as a result of which, both the rider and pillion rider of motor cycle bearing No. KA.01.EG.1468 sustained grievous injuries and succumbed to the same on the spot. The rider of motor cycle bearing No. No.KA-03-HP-5230 sustained grievous injuries.

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The legal representatives of the rider and pillion

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rider of motor cycle bearing No. KA.01.EG.1468 instituted claim

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proceedings in MVC Nos.4102/2022 and 4103/2022 respectively. The rider of motor cycle bearing No. KA-03-HP5230 instituted MVC No.4104/2022. In the said claim proceedings, the owner and insurer of Ertiga car were arrayed as respondents. All the three claim proceedings were consolidated and tried together. The owner of car did not appear before the Tribunal and remained exparte. The claim proceedings was contested by the insurer of the car.

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The claimant in MVC No.4104/2022 examined himself as PW.1, the claimant No.1 in MVC No.4102/2022 examined herself as PW.2, claimant No.1 in MVC No.4103/2022 examined herself as PW.3 and the doctor was examined as PW.4. Exs.P1 to P20 were marked in evidence. The respondents did not adduce any oral or documentary evidence.

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The Tribunal on hearing the parties by the impugned award held that the driver of the car was negligent in causing the accident in question. The Tribunal partly allowed the claim petitions and awarded compensation of 35,98,400/in MVC No.4102/2022, 29,42,280/- in MVC No.4103/2022 and `5,30,900/- in MVC No.4104/2022, together with interest at

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6% pa., and directed the second respondent – insurer to pay the compensation awarded. Being aggrieved, the insurer preferred MFA No.7354/2024 challenging the judgment and award passed in MVC No.4102/2022 and MFA No.7276/2024 challenging the judgment and award passed in MVC No.4103/2022.

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Learned counsel Sri D.Vijaya Kumar, appearing for the insurer vehemently contends that the finding of the Tribunal on negligence is erroneous and that the Tribunal ought not to have held that the car was responsible for causing the accident in question. It is further contended that the Tribunal did not even consider the aspect of contributory negligence while recording the finding on negligence. It is further contended that the quantum of compensation awarded in the said claim petitions, which have been challenged by the insurer are excessive.

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Per contra, learned Counsel Sri P.S.Kailas Shankar appearing for the claimants, rebutting the contention of the insurer regarding negligence submits that the insurer has satisfied the quantum of compensation awarded in MVC

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No.4104/2022 and has deposited a total sum of 5,86,262/- + 13,318/- = `5,99,580/- on 13.11.2024. In justification of the same, he furnishes a copy of the printout from the e-courts website to demonstrate the same. Further, he contends that the quantum of compensation awarded in both the claim petitions which have been challenged by the insurer are just and proper.

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Responding to the contention of the learned counsel for the claimants regarding the insurer having deposited the compensation awarded in MVC No.4104/2022, learned counsel for the insurer does not dispute the same.

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The contentions of both the learned counsel have

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been considered and the material on record have been perused including the records of the Tribunal. The questions that arise for consideration are:

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i) Whether the insurer can be permitted to challenge the finding on negligence recorded by the Tribunal when the insurer has satisfied the compensation awarded in MVC No.4104/2022?

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ii) Whether the quantum of compensation awarded in MVC Nos.4102/2022 is just and proper?

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iii) Whether the quantum of compensation awarded in MVC Nos.4103/2022 is just and proper?

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Re. Question No.(i):

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Although various grounds have been urged by the learned counsel for the insurer regarding the finding on negligence, having regard to the admitted position that the insurer has satisfied the compensation awarded in MVC No.4104/2022 and the insurer having accepted the finding on negligence recorded in MVC No.4104/2022, it cannot be permitted to challenge the said finding on negligence recorded in the other two claim petitions. It is also relevant to note that the finding on negligence in all the three claim petitions is a common finding. Hence, question No.1 framed for consideration is answered in the negative.

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Re. Question No.(ii):

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Regarding award in MFA No.7354/2024 (MVC No.4102/2022):

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i. The age of the deceased assessed by the Tribunal is 30 years having regard to his date of birth being 18.6.1992 and adopted 17 multiplier. Hence, the same is just and proper.

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ii. The claimants stated that deceased was working as a painter and earning a sum of `25,000/- pm. However, no

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documents have been produced to demonstrate the income. The Tribunal has assessed the notional income of the deceased as `15,500/- pm. Having regard to the nature of avocation, year of the accident, prevailing wage rates during the said period and cost of living, the income assessed by the Tribunal is just and proper.

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iii. Having regard to the number of claimants, the Tribunal has deducted 1/4^th towards personal expenses and added 40% towards future prospects. In view of the judgment of the Hon'ble Supreme Court in the case of Sarala Verma (Smt) And Others vs. Delhi Transport Corporation And Another² and National Insurance Company Limited vs. Pranay Sethi³ , the same is just and proper. Hence, the loss of dependency assessed by Tribunal in a sum of (15,500/- + 40% - ¼ x 12 x17) 33,20,100/- is just and proper.

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iv. The Tribunal has assessed the loss of consortium for five claimants by relying on the judgment of the Hon’ble Supreme Court in the case of Pranay Sethi³ and assessed the same to each claimant at `48,400/- by noticing that more than 6 years have elapsed from the date of the said judgment. It is relevant to note that the judgment of the Hon’ble Supreme

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2 (2009) SCC 121.

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3 AIR 2017 SC 5157

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Court was rendered on 31.10.2017, wherein it was ordered that for every 3 years compensation was required to be enhanced by 10%. As on the date of the claim petition, 6 years had not elapsed. Hence, loss of consortium for each claimant is reassessed as 44,000/- and the total loss of consortium is reassessed as (44,000/-x5) `2,20,000/-.

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v. The Tribunal has also enhanced the compensation towards transportation and funeral expenses and loss of estate by 20%. However, the same is required to be enhanced by 10%. Hence, the compensation under the said heads are reassessed as 16,500/- on each head as against 18,150/awarded by the Tribunal.

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vi. Hence, the compensation awarded is reassessed as under:

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Sl.No.	Heads	Amount awarded by the Tribunal (`)	Amount awarded by this Court (`)
1.	Loss of dependency	33,20,100.00	33,20,100.00
2.	Funeral expenses & transportation	18,150.00	16,500.00
3.	Loss of estate	18,150.00	16,500.00
4.	Loss of spousal consortium, parental consortium and filial consortium	2,42,000.00	2,20,000.00
	Total	35,98,400.00	35,73,100.00

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Re. Question No.(iii):

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Regarding award in MFA No.7276/2024 (MVC No.4103/2022):

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i. The age of the deceased assessed by the Tribunal is 40 years. It is forthcoming that the date of birth of deceased is 1.1.1982 and applied 15 multiplier. Hence, the age of the deceased and the multiplier assessed by the Tribunal are just and proper.

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ii. The deceased was stated to be a painter earning 25,000/- pm. However, no documents were produced to prove the same. The Tribunal has assessed the notional income of the deceased as 15,500/- pm. Having regard to the nature of avocation, year of the accident, prevailing wage rates during the said period and cost of living, the income assessed by the Tribunal is just and proper.

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iii. Having regard to the number of claimants, the Tribunal has deducted 1/4^th towards personal expenses and added 25% towards future prospects. Keeping in mind the judgment of the Hon'ble Supreme Court in the case of Sarala Verma² and Pranay Sethi³ , the same is just and proper.

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Hence, the loss of dependency assessed by Tribunal in a sum of (15,500/- + 25% - ¼ x 12 x15) 26,15,580/- is just and proper.

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iv. The Tribunal has assessed the loss of consortium for six claimants by relying on the judgment of the Hon’ble Supreme Court in the case of Pranay Sethi³ and assessed the loss of consortium to each claimant at 48,400/- by noticing that more than 6 years had elapsed from the date of the said judgment. It is relevant to note that the judgment of the Hon’ble Supreme Court was rendered on 31.10.2017 wherein it was ordered that for every 3 years the compensation was required to be enhanced by 10%. As on the date of the claim petition, 6 years had not elapsed. Hence, loss of consortium for each claimant is reassessed as 44,000/- and the total loss of consortium is reassessed as (44,000/-x6) 2,64,000/-.

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v. The Tribunal has also enhanced the compensation towards transportation and funeral expenses and loss of estate by 20%. However, the same was required to be enhanced by 10%. Hence, the compensation under the said head is

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reassessed as 16,500/- on each head as against 18,150/- on

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each head awarded by the Tribunal.

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vi. Hence, the compensation awarded is reassessed as

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under:

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Sl.No.	Heads	Amount awarded by the Tribunal(`)	Amount awarded by this Court (`)
1.	Loss of dependency	26,15,580.00	26,15,580.00
2.	Funeral expenses and transportation	18,150.00	16,500.00
3.	Loss of estate	18,150.00	16,500.00
4.	Loss of spousal consortium, parental consortium and filial consortium	2,90,400.00	2,64,000.00
	Total	29,42,280.00	29,12,580.00

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In view of the aforementioned, the following:

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ORDER

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i) The Appeals are partly allowed.

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ii) The impugned award in MVC No.4102/2022 is modified as follows:

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a) The claimants are entitled to compensation of 35,73,100/- as against 35,98,400/- awarded by the Tribunal with interest @ 6% interest per annum from the date of petition till its realization.

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iii) The impugned award in MVC No.4103/2022 is modified as follows:

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a) The claimants are entitled to compensation of 29,12,580/- as against 29,42,280/- awarded by the Tribunal with interest at 6% per annum from the date of petition till its realization.

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iv) Respondent No.2 – The Reliance Insurance Company Limited shall deposit the aforesaid compensation with accrued interest before the Tribunal, on adjusting the amount already deposited, if any, within four weeks from the date of receipt of copy of this judgment. The awards of the Tribunal with regard to apportionment of the compensation and investment are maintained.

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v) Amount in deposit, if any, and the Trial Court Records shall be transmitted to the Tribunal forthwith.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(C.M. POONACHA) JUDGE

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ND

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List No.: 1 Sl No.: 38

The Reliance General Insurance Co. Ltd. v. Smt Mayadevi

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The Reliance General Insurance Co. Ltd. v. Smt Mayadevi

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