The New India Assurance Company Ltd. Vs Muddamma

THIS MFA IS FILED UNDER SECTION .173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED:11.07.2019 PASSED IN MVC NO.7737/2017 ON THE FILE OF THE XV ADDITIONAL SMALL CAUSES JUDGE AND XXIII ACMM, MEMBER, MACT, BENGALURU (SCCH-19), AWARDING COMPENSATION OF RS.17,42,000/- WITH INTEREST AT 9 PERCENT P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

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IN MFA.CROB NO. 105/2024

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BETWEEN:

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MUDDAMMA W/O LATE. RAMESH AGED ABOUT 39 YEARS,

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KUM. MAMATHA, D/O LATE. RAMESH, AGED ABOUT 16 YEARS,

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SRI. SATHISH, S/O LATE. RAMESH, AGED ABOUT 11 YEARS,

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SINCE APPELLANTS NO.2 & 3 ARE MINORS, REPRESENTED BY THIER MOTHER SMT. MUDDAMMA, AS A NATURAL GUARDIAN

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SRI. NARAYANAPPA, S/O LATE. NAGAPPA, AGED ABOUT 72 YEARS,

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SRI. NARASAMMA, W/O NARAYANAPPA, SINCE DEAD ON 07.02.2021 LRS ALREADY RECORDED ALL ARE RESIDING AT: BADIMARALUR, BYCHAPURA, GOWRIBIDANUR TALUK, CHIKKABALLAPURA - 561 208.

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...CROSS OBJECTORS

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(BY SRI. NAIK KRISHNA VENKATRAMAN., ADVOCATE)

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AND:

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CHANDRAMOHAN REDDY, S/O LATE. LAKSHMINARAYANA REDDY.K. MAJOR, BEHIND VENKATESHWARA TEMPLE, MAHALAKSHMI NAGAR, BATAWADI, TUMKUR - 572 103.

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(OWNER OF LORRY BEARING REG. NO.KA-06-D-6558). 2. THE MANAGER, NEW INDIA ASSURANCE CO. LTD., MAHALAKSHMI COMPLEX, M.G. ROAD, OPP. METRO RAILWAY STATION, BENGALURU - 560 027.

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(POLICY NO. 67210491170100000254 VALID FROM 09/08/2017 TO 08/08/2018) ...RESPONDENTS

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(BY SRI. GOVINDARAJAN R., ADVOCATE VIDE ORDER DATED 23.03.2026 ACCEPTS NOTICE TO R2)

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THIS MFA.CROB FILED UNDER ORDER XLI RULE 22 OF THE CPC READ WITH SECTION 173(1) OF MOTOR VEHICLE ACT, AGAINST THE JUDGMENT AND AWARD DATED:11.07.2019 PASSED IN MVC NO.7737/2017 ON THE FILE OF THE XV ADDITIONAL SMALL CAUSES JUDGE AND XXIII A.C.M.M, MEMBER, M.A.C.T., MAYO HALL UNIT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS ARE COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MR. JUSTICE T.M.NADAF

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE T.M.NADAF)

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The appeal MFA No.2163/2020 by the Insurer and MFA Crob.105/2024 by the Claimants are filed challenging the Judgment and Award dated 11.07.2019 in MVC No.7737/2017 passed by the XV Addl. Small Causes Judge & XXIII Addl. Chief Metropolitan Magistrate, Member, Motor Accident Claims Tribunal, Mayo Hall Unit, Bengaluru (SCCH-19)¹ .

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Under the impugned award, the Tribunal awarded a sum of Rs.17,42,000/- with interest @ 9% per annum from the date of petition till its realization and fastened the liability on the Insurer to satisfy the award.

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The Insurer in the appeal is on liability and the Claimants are on enhancement.

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1 The Tribunal, for short

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The parties are referred to as per their ranking

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before the Tribunal.

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The brief facts leading to filing of the present appeals are as under:

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In an accident occurred 12.09.2017 at about 8:00 pm, the deceased was proceeding on his motorcycle bearing Reg. No.KA-40/EQ-0976 on D Palya road towards Bommasandra, when reached KEB Office, at that time a Lorry bearing Reg. No.KA-06/D-6558 driven by its driver in a rash and negligent manner endangering human life and hit against the motorcycle causing grievous injuries resulting in death of Ramesh on the spot. The Claimants filed Claim Petition contending that the deceased was aged about 35 years, working as Mason and was earning Rs.50,000/- per month and in view of untimely death, the entire family is under financial hardship and lost love and affection and future support of the deceased.

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In response to the notice, both the Insured and

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the Insurer of the Lorry bearing Reg.No.KA-06/D-6558 appeared before the Tribunal and filed statement of objections.

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The Insured – respondent No.1 denied the entire accident however admitted that he is the owner of the Lorry insured with respondent No.2 – Insurer and the Insurance policy was valid as on the date of the accident and in the event of any liability, Insurer has to indemnify Insured - respondent No.1.

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Whereas, respondent No.2 – Insurer apart from denying the claim petition averments with respect to age, income, occupation of the deceased and expenses towards funeral & obsequies ceremonies, stated that the liability is strictly in terms of the conditions of the policy which was in existence and valid as on the date of accident. It is further contended that the accident occurred due to the sole negligence on the part of the deceased rider of the

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motorcycle. Further stated that, the driver of the Lorry did

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not possess valid and effective driving license as on the date of accident. With this sought to dismiss the claim petition.

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The Tribunal after completion of pleadings, in all

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framed three issues. Issue Nos.1 and 2 are with respect to negligence and entitlement of compensation. The Tribunal has answered Issue No.1 in the affirmative and Issue No.2 partly in the affirmative and proceeded to award Rs.17,42,000/- with 9% interest considering the income of the deceased at Rs.7,500/- per month and added 40% to

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the existing income towards future prospectus and deducted 1/4^th in view of five claimants survived the deceased and accordingly awarded compensation stated supra and directed the Insurer to deposit the entire award amount. It is this Judgment and award is called in question in this appeal as well as Cross-objection on the ground of liability by the Insurer and on the ground of quantum by the Claimants.

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Heard, Govindarajan.R, learned counsel

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appearing for the Insurer, Sri.K.V.Naik & Sri.Muniyappa, learned counsel appearing for the claimants. Respondent No.6 in the appeal filed by the Insurer though served, remained unrepresented.

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Sri.Govindarajan.R, has argued the appeal on more than one ground. Firstly, regarding non-involvement of vehicle the learned counsel submits that the vehicle is falsely implicated in the case. He also submits that, the owner has appeared and filed statement of objection denying the accident, clearly postulates that the claimants

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in active collusion with the police, have created police record regarding the accident and involvement of the vehicle for unjust enrichment. Secondly, the evidence of the claimants is silent on the initial information which has set criminal law into motion. A perusal of complaint clearly shows that the deceased was hit by an unidentified vehicle. In these circumstances, the further investigation stating the Lorry is highly improbable. The Tribunal has

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failed to consider this aspect of the matter, so also the evidence of claimants. He further submits that the claimants have failed to discharge their initial burden on the proof of involvement of vehicle, negligence of driver and their entitlement to the compensation. In these circumstances, the Tribunal ought to have dismissed the Claim Petition. With this, he sought to allow the appeal by dismissing the Claim Petition against the Insurer.

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In contrast, Sri.K.V.Naik, with all vehemence

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submits that, a perusal of the complaint clearly shows that the accident occurred on 12.09.2017 at about 6:30 pm, wherein Ramesh suffered grievous injuries resulting in instantaneous death on the spot. In the complaint it is clearly stated that there are paint marks of Blue as well as Yellow Color on the body of the vehicle as well as Bumper and sought the Police to take action in tracing the vehicle. The Police during the course of investigation, after securing the information regarding the involvement of the Lorry, secured the driver as well as the Lorry. During the

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course of investigation, it was found that the right side glass of the head light is fixed newly when compared to the left side which was old and on the basis of investigation field charge sheet against the driver of the Lorry for the offences punishable under Section 279 and 304A of IPC R/w Section 187 of Indian Motor Vehicles Act, 1988. Neither the Insurer nor the driver of the Lorry called in question the chargesheet filed by the Police, however they have contested the matter. Even the evidence led by the owner of the vehicle is not helpful to the case as nothing worthwhile has been stated to substantiate their claim regarding non-involvement of the vehicle.

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Learned counsel further submits that the Head Constable² of Gudibande police Station who has been examined as RW.2 who was summoned by the Insurer has answered to the question put by the Insurer against the Insurer and the Insured. To the question that ‘How they have traced the Lorry’, the HC has clearly stated that the

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2 the HC, for short

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Circle Police Inspector instructed him for securing information regarding the vehicle which caused the accident. The said Police Head Constable after receiving information from his informant, found the vehicle which belongs to one Lakshmi Narayana Reddy.K of Tumkur and found the Yellow color Lorry and observed that the right side head light glass is newly fixed when compared to left head light which was old, he has brought the same to the notice of the Circle Police Inspector and after investigation, they have filed the charge sheet. In these circumstances, the Tribunal while considering the contentions of the Insurer and Insured, on Police records and supportive evidence to that effect, answered the entire contention in Paragraph Nos.16 to 19 and held that the driver of the Lorry is solely responsible for the accident and answered Issue No.1 framed regarding negligence in the Affirmative

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and against the driver of offending Lorry. In these circumstances, the contention of liability on the ground of non-involvement of vehicle does not hold any water. With

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this, learned counsel sought to reject the appeal filed by

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the Insurer and to enhance the compensation considering the income fixed under the Chart prepared by Karnataka State Legal Services Authority for the year 2017 so also grant 10% escalation on compensation awarded under Conventional Heads by allowing the Cross-objection.

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Having considered the rival submissions, we have perused the entire appeal paper and the crossobjection paper and also the Trial Court Record.

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The following points would arise for our consideration:

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(i) Whether the Appellant-Insurer has made out any case to interfere with the Judgment and Award of the Tribunal on liability?

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(ii) Whether the Claimants have made out any case for enhancement?

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Our answer to the above points are as under: Point No.1: In the Negative .

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Point No.2: In the Affirmative , for the

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following:

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REASONS

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16. POINT NO.1 : Though several contentions have

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been taken by the Insurer as well as Insured before the Tribunal, however only Insurer is in appeal, whereas the Insured has admitted/accepted the Judgment and Award of the Tribunal and he is not in appeal so also he has not appeared before the Court despite service of notice. The Insurer has failed to substantiate the claim of non involvement of vehicle by leading cogent evidence. The witness summoned by it especially RW.2 – the HC of Gudibande Police Station, who has clearly answered all the suggestions put forth by the Insurer against the interest of the Insurer. He has clearly stated the way they traced and found the Vehicle. There is nothing found in the evidence of RW.2 to discredit his evidence by the Insurer. PW.2 - the eye witness, who has stated regarding the accident and involvement of the vehicle, though has been cross-

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examined by the Insurer, however could not elicitate anything worthwhile to substantiate their contention.

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The complaint is lodged within a day i.e., on the following day of the accident at 9:45 am. In these circumstances, though there is no number mentioned regarding the vehicle, but there is a clear indication of the color of the vehicle which is subsequently found bearing the same color with change of head light glass on the right side. This probabilizes the case of the Claimants regarding involvement of the Lorry in the accident. The Tribunal having considered the entire material, answered the involvement of the vehicle as well as negligence on the part of the driver of the vehicle while answering Issue No.1. the Tribunal at Paragraph Nos.16 to 19 observed after going through the evidence of the eye witness as well as evidence of other side stated regarding color of the Lorry and relying on the Police records regarding the tracing of the Lorry held that the offending lorry involved

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in the accident and the accident had occurred due to rash

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and negligent driving of the driver of the Lorry.

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We, having gone through the entire materials and the reasoning of the Tribunal satisfied with the reasons given by the Tribunal while answering Issue No.1. No contra materials and evidence substantiated by the Insurer to take a contra view from the records available in the Trial Court Record. In these circumstances, the appeal by the Insurer on the ground of liability fails and is liable to be dismissed.

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At this stage, learned counsel for the Insurer submits that the Tribunal has awarded interest @ 9% in the absence of any exceptional circumstances being made out by the Claimants to entitle them to such a higher rate of interest. He further submits that the Tribunal has referred to the Judgments of the Supreme Court which are distinguishable on the facts and circumstances of the present case. In the case on hand, there is no special case

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made out to seek for higher interest. He also submits that generally the interest in motor vehicle cases by High Courts across the Country and even by the Apex Court is maintained at 6% and sought to consider the case of the Insurer so far as reducing the interest.

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Though Sri.K.V.Naik, tried to impress us upon the Judgments of the Apex Court, but to the query of the Court, he has failed to answer the exceptional case made out for seeking higher interest. In these circumstances, we accede to the contention raised by the Insurer and reduce the interest from 9% to 6%. To that extent the appeal filed by the Insurer is allowed in part .

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POINT NO.2 : So far as compensation is concerned, we find force in the argument advanced by learned counsel for the Claimants. The Tribunal has considered the income of the deceased at Rs.7,500/- per month, whereas the accident is of the year 2017 and considering the income fixed under the Chart supra,

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income of the deceased should have been considered at

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Rs.11,000/- per month. Accordingly, we proceed to consider the income of the deceased at Rs.11,000/- per month. Further in view of settled position of law, the claimants are also entitled for 10% escalation on the compensation awarded under the Conventional Heads for each completed three years from 2017. In view of taking higher income as well as escalation, the compensation awarded by the Tribunal requires reconsideration and it is reassessed, which reads as under:

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Sl. No.	Heads	Compensation awarded by the Tribunal In Rs.	By this Court In Rs.
1.	Loss of dependency	15,12,000-00	22,17,600-00 (11,000+40%x12x16x3/4)
2.	Loss of Consortium	40,000-00	2,00,000-00
3.	Funeral expenses	15,000-00	15,000-00
4.	Loss of Estate	15,000-00	15,000-00
5.	Loss of Filial consortium	1,60,000-00	-
	10% escalation (for two terms of three completed years on conventional heads)	-	46,000-00
	TOTAL	17,42,000-00	24,93,600-00

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Accordingly, the Claimants are entitled for reassessed compensation of Rs.24,93,600/- rounded off at

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Rs.24,94,000/- as against Rs.17,42,000/-, which shall

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carry interest @ 6% per annum from the date of petition till realization.

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For the foregoing reasons, we proceed to pass the following:

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ORDER

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(i) MFA No.2163/2020 filed by the Insurer is allowed in part reducing the interest from 9% to 6%. In all other aspect, the appeal is dismissed.

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(ii) The amount in deposit in the Insurer’s appeal shall be transmitted forthwith to the concerned Tribunal.

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(iii) MFA Crob.105/2024 filed by the Claimants is allowed in part .

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(iv) The Judgment and Award dated 11.07.2019 in MVC No.7737/2017 passed by the XV Addl. Small Causes Judge & XXIII Addl. Chief Metropolitan Magistrate, Member, Motor Accident Claims Tribunal, Mayo Hall Unit, Bengaluru (SCCH-19) is modified.

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(v) The Claimants are entitled for reassessed compensation of Rs.24,94,000/- with interest @ 6% per annum from the date of petition till realization.

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(vi) The Insurer shall deposit the balance reassessed compensation along with accrued interest supra, before the Tribunal within six weeks from the date of receipt of certified copy of this order.

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