National Insurance Co.Ltd Vs Sri Javaraiah

(VIDE ORDER DATED 01.09.2016, R2 IS TREATED AS LR OF DECEASED R1 R2 - IS SERVED AND UNREPRESENTED VIDE ORDER DATED 08.06.2017, NOTICE TO R3 IS HELD SUFFICIENT)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.08.2013 PASSED IN MVC NO.1853/2010 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MACT, HASSAN, AWARDING COMPENSATION OF RS.4,57,300/- WITH INTEREST @ 8% P.A FROM THE DATE OF PETITION TILL DEPOSIT.

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IN MFA NO. 223/2014

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BETWEEN:

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NATIONAL INSURANCE CO.LTD KORAMANGALA, BANGALORE THROUGH ITS REGIONAL OFFICE NO.144, SUBHARAM COMPLEX M G ROAD, BANGALORE - 560 001 REP BY ITS DEPUTY MANAGER A GHANI

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...APPELLANT

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(BY SRI. ANUP SEETHARAM RAO, ADVOCATE)

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3 - NC: 2026:KHC:34885 MFA No. 222 of 2014 C/W MFA No. 223 of 2014

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HC-KAR

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AND:

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SRI JAVARAIAH S/O DYAVAIAH SINCE DECEASED REP. BY R2 - SOLE LEGAL HEIR OF R1

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CT AMENDED AS PER ORDER DATED 01.09.2016

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SMT. JAYAMMA AGED ABOUT 57 YEARS W/O JAVARAIAH RESIDENT OF NAGARANAHALLI (RAGIHALLIDAVATU) VILLAGE HALLIMYSORE HOBLI HOLENARASIPURA TALUK - 573 211

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SRI K P VISHWANATH MAJOR S/O K S PARTHASARATHI H.NO.49/1, 2^ND FLOOR R V ROAD, BASAVANAGUDI BANGALORE - 560 004 (OWNER OF TANKER NO.KA.01/D-1596) ...RESPONDENTS

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(BY SMT. SHALINI C., ADVOCATE FOR SRI. M.N. NINGARAJA, ADVOCATE FOR R2 VIDE ORDER DATED 08.06.2017, NOTICE TO R3 IS HELD SUFFICIENT)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.08.2013 PASSED IN MVC NO.1852/2010 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MACT, HASSAN, AWARDING COMPENSATION OF RS.3,30,400/- WITH INTEREST @ 8% P.A FROM THE DATE OF PETITION TILL DEPOSIT.

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- 4 - NC: 2026:KHC:34885 MFA No. 222 of 2014 C/W MFA No. 223 of 2014

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HC-KAR

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

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CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA

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COMMON ORAL JUDGMENT

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Heard the arguments of learned counsel for the appellant in both the cases. Learned counsel for respondents present and sought for time.

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The present appeals are filed by the appellant/Insurance Company against the common award dated 02.08.2013 passed by the II Additional District and Sessions Judge, Hassan in M.V.C Nos.1852/2010 and 1853/2020.

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The petitions averments in brief are that, on 04.05.2010, Mohan Kumar and his wife Shantamma were proceeding on a Hero Honda bearing registration number KA-1919-H-986 and they met with an accident due to the negligence of the driver of the Tanker. In laws of Shantamma filed MVC No.1852/2010 claiming compensation of Rs.8,00,000/-. Tribunal after considering

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5 - NC: 2026:KHC:34885 MFA No. 222 of 2014 C/W MFA No. 223 of 2014

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HC-KAR

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the evidence on record has granted an amount of Rs.3,30,400/- and parents of Mohan Kumar filed MVC No.1853/2010 claiming compensation Rs.8,00,000/-. The Tribunal after considering the evidence on record has granted Rs,4,57,300/-. The Tribunal also assessed the contributory negligence of 30% on the rider of the motorcycle and 70% on the driver of the offending vehicle.

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4. Insurance company filed MFA Nos. 222/2014 and 223/2014 against the award of the Tribunal in MVC Nos.1852/2010 and 1853/2010. Learned counsel for the appellant stated that while Mohan Kumar/husband and Shantamma/wife were travelling on a motorcycle on the left side of the road, one Tanker bearing registration number KA-01-D-1596 came in a rash and negligent manner and dashed against them. Charge sheet is filed against the driver of the offending vehicle. As per Ex.P.6 - sketch, the accident occurred on the middle of the road. They are coming from the village service road to the main road. Instead of travelling on the left side of the road, they

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6 - NC: 2026:KHC:34885 MFA No. 222 of 2014 C/W MFA No. 223 of 2014

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HC-KAR

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came onto the middle of the road. Therefore, the contributory negligence is to be assessed as 50%. But the petitioners examined PW-3 an eyewitness to the occurrence and he stated that accident occurred only due to the negligence of the driver of the offending vehicle.

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The tribunal considering the manner of the accident and evidence of PW-3 has rightly assessed the contributory negligence of the rider of the motorcycle as 30%. This Court finds no reason to interfere with the said order.

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5. It is stated that Mohan Kumar was aged 29 years at the time of accident and was earning Rs.10,000/per month by doing business. But claimants have not filed any income proof. As deceased Mohan Kumar met with an accident in the year 2010, Tribunal has taken Rs.4,500/p.m. as his income. This Court finds it reasonable to take the national income as Rs.5,500/- per month as per the chart prepared by the Karnataka State Legal Services Authority. At the time of accident Mohan Kumar was aged 29 years and the relevant multiplier is ‘17’. In the accident

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7 - NC: 2026:KHC:34885 MFA No. 222 of 2014 C/W MFA No. 223 of 2014

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HC-KAR

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both husband and wife died and Mohan Kumar’s parents are the claimants. Therefore, this Court finds that it is just and reasonable to deduct 50% towards his personal expenses and is entitled for 40% towards future prospects. Hence, loss of dependency comes to Rs.5,500/+ 40% x 12 x 17 - 50% = Rs.7,85,400/- and each of the claimants are entitled for Rs.40,000/- towards filial consortium and they are also entitled for Rs.30,000/under the conventional heads.

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Thus in all, compensation awarded by this Court are as below:

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Particulars	Amount in Rs.
Loss of dependency	7,85,400/-
Filial consortium	80,000/-
Conventional head	30,000/-
Total	8,95,400/-

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Compensation is enhanced from Rs.4,57,300/- to

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Rs.8,95,400/- and as the insurance company already

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deposited the awarded amount before the tribunal, they are directed to deposit balance amount along the interest

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8 - NC: 2026:KHC:34885 MFA No. 222 of 2014 C/W MFA No. 223 of 2014

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HC-KAR

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accrued on it. Insurance company is directed to deposit

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70% of the compensation.

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Accordingly, the following:

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ORDER

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(i) The appeal in MFA No.222/2014 is partly allowed.

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(ii) The judgment and award dated 02.08.2013, passed in MVC No.1852/2010 by the II Additional District and Sessions Judge, Hassan is modified;

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(iii) The Insurance company - is directed to deposit the balance compensation with interest @ 6% p.a. within one month from the date of this order.

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8. On such deposit, as the father of the Mohan

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Kumar died during the pendency of the appeal, the second petitioner/mother is alone permitted to withdraw the said amount.

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9 - NC: 2026:KHC:34885 MFA No. 222 of 2014 C/W MFA No. 223 of 2014

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HC-KAR

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MFA No.223/2014

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9. MFA No. 223/2014 is filed against the award of the Tribunal in MVC No. 1852/2010. Shantamma, pillion rider was also travelling on the motorcycle along with her husband. Therefore, in view of the discussion in the above paragraphs, this Court finds that Tribunal has rightly considered 30% of contributory negligence on their part and she was aged 23 years at the time of accident. It is stated that she was doing coolie work and earning Rs.4,000/- per month, but they have not filed any income proof. As she met with an accident in the year 2010, this Court finds it reasonable to take her notional income as Rs.5,500/- per month as per the chart prepared by Karnataka State Legal Services Authority. As she was aged 23 years, the relevant multiplier is ‘18’ and as both husband and wife died in the same accident this Court finds that it is just and reasonable to deduct 50% towards her personal expenses and she is entitled for 40% towards for future prospects. Hence, the loss of dependency comes

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10 - NC: 2026:KHC:34885 MFA No. 222 of 2014 C/W MFA No. 223 of 2014

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HC-KAR

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to Rs.5,500/- + 40% x 12 x 18 - 50% = Rs.8,31,600/-.

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Her in-laws have filed this appeal claiming compensation and father-in-law had already died during the pendency of the appeal. Therefore, this Court finds that no amounts are required to be granted either under the head

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consortium or under conventional heads.

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Compensation is enhanced from Rs.3,30,400/- to

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Rs.8,31,600/-.

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11. As the insurance company has already deposited the awarded amount before the tribunal, they are directed to deposit the balance amount along the interest accrued on it. Insurance company is directed to deposit 70% of the compensation.

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Accordingly, the following:

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ORDER

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(iv) The appeal in MFA No.223/2014 is partly allowed.

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11 - NC: 2026:KHC:34885 MFA No. 222 of 2014 C/W MFA No. 223 of 2014

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HC-KAR

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(v) The judgment and award dated 02.08.2013, passed in MVC No.1853/2010 by the II Additional District and Sessions Judge, Hassan is modified;

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(vi) The Insurance company - is directed to deposit the balance compensation with interest @ 6% p.a. within one month from the date of this order.

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13. On such deposit, the mother-in-law of

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Shantamma is permitted to withdraw the said amount.

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14. It is stated that as there is no driving licence, insurance company is entitled for pay and recovery. Therefore, insurance company is at liberty to recover the said amount from the owner of the vehicle by due process of law.

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Sd/(P SREE SUDHA) JUDGE

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BVK; List No.: 1 Sl No.: 19

National Insurance Co.Ltd v. Sri Javaraiah

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National Insurance Co.Ltd v. Sri Javaraiah

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