Smt. Rathnamma Vs Sri Manjunatha G.S. S/O Shivanna

THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.08.2023 PASSED IN MVC NO.1412/2022 ON THE FILE OF THE VIII ADDITIONAL SCJ AND ACMM, MEMBER, MACT, BENGALURU SCCH-5, AWARDING COMPENSATION OF RS.15,29,659/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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IN MFA NO. 365/2024

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BETWEEN:

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SMT. RATHNAMMA W/O LATE G S GANGADAHRA SWAMY AGED ABOUT 48 YEARS

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SRI KOWSHIK G S/O LATE G S GANGAHDAR SWAMY AGED ABOUT 29 YEARS

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MS. KAVITHA G D/O LATE G S GANGADHARAY SWAMY AGED ABOUT 16 YEARS

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ALL ARE R/AT HOSAGABBADI VILLAGE KAGGALAHALLI, HAROHALLI HOBLI KANAKAPURA MAIN ROAD

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HC-KAR

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KANAKPUARA TALUK, RAMANAGARA DISTRICT-562117.

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...APPELLANTS

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(BY SRI. K P BHUVAN, ADV.)

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AND:

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SRI MANJUNATHA G.S. S/O SHIVANNA AGED MAJOR HOSAGAABBADI VILLAGE HAROHALLI HOBLI, KANAKAPURA, GUBBADI KAVAL, KAGGALHALLI RAMANGARA DISTRICT-562112.

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ICICI LOMBARD GENERAL INSURANCE CO. LTD., NO.121, ‘THE ESTATE’ 9^TH FLOOR, DICEKNSON ROAD M G ROAD, BENGALURU 560042 REP. BY ITS BRANCH MANAGER.

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...RESPONDENTS

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(BY SRI. B PRADEEP, ADV. FOR R2 NOTICE TO R1 IS D/W)

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THIS APPEAL IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATE 03.08.2023 PASSED IN MVC NO.1412/2022 ON THE FILE OF THE VIII ADDITIONAL SMALL CAUSE JUDE AND ACMM, MEMBER, MACT, BENGALURU, (SCCH-5), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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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 MR. JUSTICE S.G.PANDIT AND

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HON'BLE DR. JUSTICE K.MANMADHA RAO

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE S.G.PANDIT)

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The claimants as well as insurer are in appeal aggrieved by the judgment and award dated 03.08.2023 in MVC No.1412/2022 on the file of the VIII Additional Small Causes Judge and the Motor Accident Claims Tribunal (SCCH-5) at Bengaluru. In MFA No.7919/2023, the insurer questions the liability whereas, in MFA No.365/2024, the claimants seek enhancement of compensation not being satisfied with the quantum of compensation awarded by the Tribunal.

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The brief facts of the case are that the claimants being wife and children of the deceased G.S.Gangadhara Swamy filed claim petition under Section 166 of the MV Act, 1988 claiming compensation for the death of the said G.S.Gangadhara Swamy in a road traffic accident that occurred on 11.02.2022 involving Motorcycle bearing Reg.No.KA-42-EB-7817. It is stated that the deceased was proceeding as pillion rider along with rider

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Puttaswamy @ Puttaswamaiah on Bidadi - Harohalli Road and at that time, the rider of the motorcycle rode the same in a rash and negligent manner without seeing the road humps, which lead to the rider of the motorcycle losing control and the deceased fell down from the motorcycle and sustained grievous head and bodily injuries. On account of injuries sustained in the accident, the deceased died on 15.02.2022. It is stated that the deceased was aged 57 years and was earning a sum of Rs.30,000/- per month by doing building material/granite business and agricultural activity.

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On service of notice, respondent No.1 remained

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absent and was placed exparte. Respondent No.2 appeared and filed its written statement denying the claim petition averments, however, admitted the issuance of policy. It also contended that rider of the motorcycle was not holding valid and effective driving licence and further contended that rider Puttaswamaiah was not riding the motorcycle at the time of alleged accident and he was

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impleaded as rider subsequently. Thus, it prayed for dismissal of the claim petition.

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Claimant No.1 - wife of the deceased examined herself as PW-1 and PW-2 Medical Record Assistant of the Hospital were examined apart from marking Exs.P.1 to P.20. On behalf of the respondents, RWs-1 to 3 were examined and documents Exs.R.1 to R.3 were marked. The Tribunal on appreciating the material on record awarded total compensation to Rs.15,29,659/- along with interest at the rate of 6% per annum from the date of petition till realization.

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Heard Sri.B.Pradeep, learned counsel for the

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appellant - insurer and learned counsel Sri.K.P.Bhuvan for claimants. Perused the entire appeal papers including Tribunal records.

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Sri.B.Pradeep, learned counsel for the

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Insurance Company would submit that the deceased sustained injury and succumbed to the said injuries due to

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his own negligence. It is submitted that deceased was riding the motorcycle and he was not traveling as a pillion rider. It is the contention of the learned counsel for the appellant that while the deceased was riding the motorcycle, he lost control of the vehicle and fell down, due to which, he suffered injury. He was taken to hospital by third person and in terms of Ex.R.2 - MLC extract of Subhash Hospital, the deceased was brought to hospital with history of 'self RTA skid and fall'. The said version is subsequently changed and the rider Puttaswamaiah is implicated. Learned counsel would submit that while Ex.R.2 Subhash Hospital record makes it clear that the deceased had self fall and suffered injury and as the deceased would not get compensation for the self fall, to get compensation, the said Puttaswamaiah is implicated as rider of the motorcycle. Learned counsel would submit that all subsequent documents and police records are created for the purpose of getting compensation and he

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would further submit that those documents are concocted

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documents.

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7. Further, learned counsel would submit that the complaint was filed after one day from the date of accident and one Madhusudan has filed the complaint. Learned counsel for the insurer would submit that the claimants have failed to prove that the deceased was a pillion rider by examining either the eyewitness to the accident or rider of the motorcycle. Thus, placing heavy reliance on Ex.R2 – MLC Register extract, learned counsel for the insurer would pray for allowing the appeal. Learned counsel for the insurer would, without prejudice to the above, submit that the compensation awarded is exorbitant and he would pray for reduction of the compensation.

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8. Per contra , learned counsel Sri.K.P.Bhuvan for respondent/claimants would support the judgment passed by the Tribunal. However, he submits that the compensation awarded needs to be enhanced. Learned

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counsel S ri.K.P.Bhuvan would submit that when the victim – deceased was taken to Subhash Medical Centre, he was unconscious and it is not known who has taken the deceased to the hospital. The person who has taken the deceased to the hospital did not known who was riding the motorcycle and as such the person who has taken the deceased to the hospital might have given a wrong statement. Learned counsel referring to other police records, submit that the charge sheet is filed against the rider of the two wheeler and that the claimants have proved that the deceased was proceeding as pillion rider in the offending vehicle along with the rider P uttaswamy @ Puttaswamaiah . Further, learned counsel would submit that the claimants would be entitled for adding 50% towards future prospects. However, he submits that the Tribunal erroneously added 10% towards future prospects. He would also submit that the compensation awarded on the other heads are also on the lower side and prays for enhancement of the compensation.

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9. Having heard the learned counsel for the parties

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and on perusal of the entire appeal papers including the

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Tribunal records, the following points would arise for our consideration:

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a) Whether the findings of the Tribunal that the deceased was traveling as pillion rider along with rider P uttaswamy @ Puttaswamaia h sustained injuries and succumbed to the injuries is justified?

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b) Whether the compensation awarded by the Tribunal needs interference at the hands of this Court?

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Answer to the above points would be in the affirmative and negative respectively for the following reasons:

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There is no dispute with regard to occurrence of accident on 11.02.2022 and the death of G.S.Gangadhara Swamy, husband of the first claimant in the said accident is not in dispute in these appeals. The insurer is questioning the award on the ground that the deceased himself was riding the motorcycle and Puttaswamy @ Puttaswamaiah was not the rider of the motorcycle as on

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the date of the accident. It is noticed that except Ex.R2 – MLC Register extract, no other documents would indicate that the deceased was riding the motorcycle and there is corroborative evidence to support Ex-R2. It is an admitted fact that he was initially brought to Subhash Medical Centre, which has issued Ex.R2. Ex.R2 would also indicate that when he was brought to Subhash Medical Centre, he was unconscious. It is not known who brought the deceased victim to Subhash Medical Centre, who gave the history of self road traffic accident, skid and fall. The person who was brought the deceased victim to Subhash Medical Centre is not examined.

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Moreover, the insurer who has taken a specific contention that the deceased was riding the motorcycle and one Sri.Puttaswamaiah was not riding the motorcycle ought to have examined or summoned the rider of the motorcycle. Except Ex.R2, there is no other material to support the contention of the appellant/insurer. Furthermore, the charge sheet is filed against the rider of

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the motorcycle. In the above circumstances, we are not inclined to accept the contention of the appellant/insurer that the deceased was riding the motorcycle and it was a self fall.

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The claimants have stated that the deceased

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was aged 57 years and was earning a sum of Rs.30,000/-

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p.m., by doing building material/granite business. However, no documents or material is placed on record to prove or establish the said income. In the absence of the material on record to establish the income, the Tribunal has rightly assessed the notional income of the deceased at Rs.15,500/- p.m., taking note of the chart with regard to notional income prepared by the Karnataka State Legal Services Authority. Further, the Tribunal has rightly added 10% of the assessed income towards future prospects, deducted 1/3^rd towards personal and living expenses, while adding multiplier of ‘9’. Thus, the compensation awarded at Rs.15,29,659/- is just and reasonable. Hence, no interference is called for.

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