The Manager Vs Sri. Shivalingaiah

THE MANAGER RELIANCE GENERAL INS.CO.LTD., THOPKHAN MOHALLA, AMBEDKAR ROAD, NEAR OLD RAILWAY STATION, RAMANAGARA-562159, REP. BY ITS MANAGER LEGAL, NO.28, 5^TH FLOOR, EAST WING, CENTENARY BUILDING, M G ROAD, BENGALURU-560001.

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…APPELLANT

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(BY MS. SONALI, ADV. FOR SRI. D VIJAYAKUMAR, ADV.)

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AND:

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SRI. SHIVALINGAIAH S/O LATE BASAVEGOWDA, AGED ABOUT 70 YEARS,

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SMT. NINGAMMA W/O SHIVALINGAIAH, AGED ABOUT 55 YEARS,

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HC-KAR

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LAKSHMI K S

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D/O SHIVALINGAIAH, AGED ABOUT 30 YEARS,

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ALL ARE R/AT K P DODDI VILLAGE AND POST, KAILANCHA HOBLI, RAMANAGARA TALUK AND DISTRICT-562159.

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SRI GIRISH V S/O VENKATESHA H., NO.216, 4^TH WARD, BOTI BEEDI, RAMANAGARA TOWN-562159. (OWNER OF TWO WHEELER BEARING NO.KA-42-K-0820).

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…RESPONDENTS

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(BY SRI. K.T. MADHU, ADV. FOR R1 TO R3 SRI M.G. RAVISHA, ADV. FOR R4)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 13.02.2023 PASSED IN MVC NO.484/2018 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND CJM, MACT, RAMNAGARA, AWARDING COMPENSATION OF RS.23,68,000/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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IN MFA.CROB NO. 28/2024

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BETWEEN:

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SRI.SHIVALINGAIAH S/O LATE BASAVEGOWDA, AGED ABOUT 70 YEARS,

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SMT. NINGAMMA W/O SHIVALINGAIAH, AGED ABOUT 55 YEARS,

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HC-KAR

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LAKSHMI K S D/O SHIVALINGAIAH, AGED ABOUT 30 YEARS,

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ALL ARE RESIDING AT, K P DODDI VILLAGE AND POST, KAILANCHU HOBLI, RAMANAGARA TALUK AND DISTRICT.

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...CROSS OBJECTORS

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(BY SRI. K.T. MADHU, ADV.)

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AND:

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SRI. GIRISH.V S/O VENKATESHA H, NO. 216, 4^TH WARD, BOTI BEEDHI, RAMANGARA TOWN AND DISTRICT, (REPRESENTED BY HIS COUNSEL).

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THE MANAGER, RELIANCE GENERAL INSURANCE CO.LTD., THOPKHAN MOHALLA AMBEDKAR ROAD, NEAR OLD RAILWAY STATION RAMANAGAR.

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...RESPONDENTS

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(BY MS. SONALI, ADV. FOR SRI D VIJAYA KUMAR, ADV. FOR R2)

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THIS. MFA.CROB. IS FILED U/O.41 RULE 22 R/W SEC.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 13.02.2023 PASSED IN MVC NO.484/2018 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND CJM, MACT, RAMNAGARA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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MFA AND MFA.CROB ARE COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE S.G.PANDIT AND 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 above appeal and cross objection are directed

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against the judgment and award dated 13.02.2023 in MVC No.484/2018 passed by the Principal Senior Civil Judge and CJM, Motor Accident Claims Tribunal, Ramanagara (for short “the Tribunal”).

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MFA No.4040/2023 is by the Insurer, questioning the entire liability saddled on it, whereas MFA Crob.28/2024 is by the claimants, not being satisfied with the quantum of compensation awarded by the Tribunal, with a prayer for enhancement of compensation.

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The claimants being parents and sister of one Shivaraju S., filed claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the accidental death of Shivaraju that took place on 11.08.2018 involving motor cycle bearing registration

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HC-KAR

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No.KA-42/E-1828 and two wheeler bearing registration No.KA-42/K-0820. It is stated that, in respect of the said accident, FIR was registered on the same day, i.e., on 11.08.2018. It is stated that the deceased was working as Coolie, earning a sum of Rs.800/- per day.

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On appearance before the Tribunal, the Insurer filed objections, denying the claim petition averments and contended that the accident occurred solely due to the rash and negligent riding of the motorcycle bearing No.KA42/K-1828. However, the Insurer admitted the Policy in respect of the motorcycle No.KA-42/K-0820. Further, it is stated that the rider of the motorcycle had not possessed valid and effective driving license as on the date of accident.

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Before the Tribunal, claimant No.1, father of the deceased examined himself as P.W.1 apart from marking the documents as Ex.P1 to Ex.P16. No evidence was let in on behalf of the respondents.

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HC-KAR

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The Tribunal, on appreciating the material on record

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awarded total compensation of Rs.23,68,000/- with interest at the rate of 6% p.a. from the date of petition till

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payment on the following heads:

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01	Loss of Dependency	Rs.18,14,400/-
02	Medical expenses	Rs. 3,77,700/-
03	Loss of estate	Rs. 16,500/-
04	Funeral expenses	Rs. 16,500/-
05	Transportation charges	Rs. 10,000/-
06	Loss of Consortium	Rs. 1,32,000/-
	Total	Rs.23,67,100/-

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The Insurer questioning the non consideration of contention of negligence on the part of the rider of the motorcycle i.e., deceased as well as questioning the quantum of compensation as also saddling the entire liability on it, is before this Court, whereas, the claimants are in cross-objection seeking enhancement of compensation, not being satisfied with the quantum of compensation awarded by the Tribunal.

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Heard learned counsel Ms.Sonali for Sri.D.Vijaya

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Kumar, learned counsel for the appellant-Insurer and

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HC-KAR

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Sri.K.T.Madhu, learned counsel for respondents No.1 to 3 and Sri.M.G.Ravisha, learned counsel for respondent No.4. Perused the appeal papers as well as original records of the Tribunal.

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Learned counsel for the appellant-Insurance

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Company would contend that the Tribunal committed a grave error in not considering the contention of the appellant that the accident occurred solely due to the negligence on the part of the rider of the motorcycle. Further, learned counsel would submit that the accident occurred due to the rash and negligent riding of the motor cycle by the deceased and without appreciating the said fact, the Tribunal saddled the entire liability on the Insurer. Learned counsel would also submit that the vehicle in which the deceased was proceeding was not involved in the accident and the same is implicated to get compensation. Further, learned counsel would submit that the complaint filed or FIR registered is a belated one, which also indicates implication of the vehicle involved in

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HC-KAR

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the accident. Learned counsel for the appellant-Insurer

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further submits that the quantum of compensation awarded is on the higher side. It is also contended that claimant No.3 is married sister of the deceased and she would not be entitled for compensation on the head of consortium, as such, learned counsel would pray for allowing the appeal by setting aside the judgment and award under challenge.

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On the other hand, Sri.Madhu, learned counsel for respondents No.1 to 3/claimants would submit that the Tribunal committed a grave error in assessing the monthly income of the deceased at Rs.12,000/- p.m. Learned counsel would submit that though the claimants have not placed any material on record to establish the income of the deceased, the Tribunal ought to have assessed the income of the deceased notionally by taking the notional income fixed by the Karnataka State Legal Services Authority (for short “KSLSA”). He submits that the notional income for the accident of the year 2018 is

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HC-KAR

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Rs.12,500/- p.m. Hence, he submits that the Tribunal is not justified in assessing the income of the deceased at Rs.12,000/- p.m. Thus, he would pray for re-assessing the income of the deceased and to modify the award.

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Learned counsel for the respondents/claimants would also submit that the accident took place on 11.08.2018 and the deceased died due to accidental injuries after 37 days, during which period he was in the hospital. The Tribunal failed to award any compensation on the head of attendant charges, conveyance, food and nourishment. Thus, he would pray for appropriate compensation on the said head.

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With regard to negligence and involvement of the motorcycle in question, learned counsel would submit that a complaint was lodged on the same day and FIR was also registered on the same day of the accident i.e., on 11.08.2018 and there was no delay in filing the complaint. Further, learned counsel for the respondents/claimants

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HC-KAR

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would submit that there was no negligence on the part of the deceased in riding the motorcycle. He submits that the appellant-Insurance Company has not placed on record any material to prove their contention of negligence. Hence he submits that the said contention remains as it is, as the same is not proved by placing any cogent evidence on record. Thus, he would pray for dismissal of the appeal.

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Having heard the learned counsel for the parties and on perusal of the entire appeal papers as well as the original records of the Tribunal, the following points would arise for our consideration:

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(i) Whether the contention of the appellant-

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Insurer that the accident took place solely due to negligent riding of the motorcycle by the deceased is proved?

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(ii) Whether the claimants would be entitled

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for enhancement of compensation?

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HC-KAR

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Answer to the above points would be in the negative

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and affirmative for the following reasons:

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According to the claimants, the accident took place on 11.08.2018 involving motorcycles bearing No.KA-42/E1828 and KA-42/K-0820. Ex.P12/OPD book maintained

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by the Bangalore Medical College and Research Institute, Bangalore would indicate that the deceased was brought to the hospital on 11.08.2018 around 9.30 a.m. with RTA injuries that had taken place between two motorcycles. The Police records would also indicate that the accident had taken place on 11.08.2018 at 9.30 a.m. between two motorcycles, wherein one of the motorcycle was ridden by the deceased. Therefore, the contention of the appellantInsurance Company that the motorcycle was not involved and it is implicated is liable to be rejected. The contention that the complaint is belated one is also liable to be rejected, since it is pointed out that the complaint was submitted on the same day and FIR was registered on the same day of accident i.e., on 11.08.2018. The other

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HC-KAR

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contention raised by the Insurance Company is that the accident occurred solely due to negligent riding of the motorcycle by the deceased. The Insurance Company has not placed any material or any other evidence in support of the said contention. Mere averment that the accident occurred solely due to negligent riding of the motorcycle by the deceased is not sufficient, unless it is proved by placing cogent material on record.

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The claimants/cross objectors contended that the income of the deceased ought to have been assessed at Rs.12,500/- p.m., in terms of the notional income chart prepared by the KSLSA. The accident is of the year 2018

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and the notional income fixed for the said year is Rs.12,500/- p.m., the Tribunal has failed to take note of the chart prepared by the KSLSA while determining the notional income of the deceased. The assessment of notional income of the deceased at Rs.12,000/- p.m. is on the lower side and notional income of the deceased is reassessed at Rs.12,500/- p.m. as per the chart prepared

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HC-KAR

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by the KSLSA. Considering the age of the deceased i.e., 24 years, the Tribunal has awarded 40% of the assessed income towards future prospects, which needs no interference. The Tribunal has rightly adopted the multiplier 18 and rightly deducted 50% of the assessed income towards personal expenses of the deceased, since he was a bachelor at the time of accident.

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Learned counsel for the appellant/Insurance Company contended that the 3^rd claimant is a married daughter and she would not be entitled for consortium. The said contention is noted only for the purpose of rejection. The consortium is granted towards love and affection. Though 3^rd claimant is married, love and affection would remain the same. As such, awarding consortium of Rs.44,000/- is proper and correct.

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In view of reassessment of income of the deceased at Rs.12,500/- p.m., the compensation on the head of loss of dependency would be as follows:

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HC-KAR

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12,500/- + 5,000/- (40% Future prospects) = Rs.17,500/50% of the income to be deducted towards personal expenses. Hence, the loss of dependency would be: 17,500-8,750 = 8,750/- x 12 x 18 = 18,90,000/-

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It is submitted that the Tribunal has failed to award any compensation on the head of attendant charges, conveyance, food and nourishment for 37 days. It is submitted that the accident took place on 11.08.2018 whereas the deceased died after 37 days from the date of accident, during which period he was in the hospital.

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The claimants have placed on record Ex.P11/31 medical prescriptions and Ex.P10-37 medical bills to establish that the deceased was hospitalized for 37 days. However, the Tribunal has failed to appreciate those documents and to award compensation on the head attendant charges, conveyance, food and nourishment, though the Tribunal had awarded compensation on the head of medical expenses. Taking note of the

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HC-KAR

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hospitalization of the deceased for 37 days, we deem it appropriate to award a sum of Rs.50,000/- towards attendant charges, conveyance, food and nourishment.

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Thus, the claimants would be entitled to total compensation as under:

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01	Loss of Dependency	Rs.18,90,000/-
02	Medical expenses	Rs. 3,77,700/-
03	Loss of estate	Rs. 16,500/-
04	Funeral expenses	Rs. 16,500/-
05	Transportation charges	Rs. 10,000/-
06	Loss of Consortium	Rs. 1,32,000/-
07	Attendant charges, Conveyance, Food and Nourishment	Rs. 50,000/-
	Total	Rs.24,92,700/-

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In all, the claimants are entitled for total compensation of

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Rs.24,92,700/-, thereby they are entitled for enhanced compensation of Rs.1,24,700/- .

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Accordingly, MFA No.4040/2023 filed by the appellant-Insurance Company is dismissed . MFA Crob.28/2024 is allowed in part . The judgment and award dated 13.02.2023 passed in MVC No.484/2018 on the file of the Principal Senior Civil Judge and CJM, MACT,

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HC-KAR

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Ramanagara is modified to the above extent. The claimants are entitled for enhanced compensation of Rs.1,24,700/- with interest at the rate of 6% p.a. from the date of petition till realization.

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The Insurer shall deposit the enhanced compensation

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within six weeks from today.

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The apportionment is maintained as ordered by the Tribunal.

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The statutory deposit before this Court be transferred

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to the concerned Tribunal.

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Sd/(S.G.PANDIT) JUDGE