The Legal Manager Vs Smt. Gangamma

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.06.2023 PASSED IN MVC No.3123/2022 ON THE FILE OF THE MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL, II ADDITIONAL JUDGE, ACMM AND MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU (SCCH.13), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA No. 5244/2023

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BETWEEN:

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THE LEGAL MANAGER RELIANCE GENERAL INSURANCE COMPANY LIMITED UNNATI ARCADE , 5/111 AND 6/112 1^ST FLOOR, 1^ST BLOCK DR. RAJKUMAR ROAD RAJAJINAGAR BENGLAURU – 560 010.

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HC-KAR

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ALSO AT RELIANCE GENERAL INSURANCE COMPANY LIMITED EAST WING, 5^TH FLOOR No. 28, CENTENARY BUILDING, M.G ROAD BENGLAURU - 560 001.

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NOW REPRESENTED BY MANAGER LEGAL

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...APPELLANT

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(BY SRI ASHOK N PATIL, ADVOCATE)

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AND:

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SMT. GANGAMMA W/O LATE. PUTTASWAMY A.B., AGED ABOUT 50 YEARS.

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SRI. PUTTASWAMY A.B. S/O BASAVEGOWDA AGED ABOUT 60 YEARS.

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BOTH ARE R/AT No.1857 1^ST MAIN, D BLOCK BEHIND AMBHA BHAVANI TEMPLE RAJAJINAGAR BENGALURU-560 010.

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VIJAYAVRUNDA C.R. S/O RAGHUVENDRA C.R. No.1060, 65^TH CROSS 18^TH B MAIN,, 5^TH BLOCK RAJAJINAGAR BENGALURU-560 010.

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...RESPONDENTS

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(BY SRI P MAHADEVA SWAMY, ADVOCATE FOR R1 & R2 SRI SHIVARAM B R, ADVOCATE FOR R3)

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HC-KAR

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.06.2023 PASSED IN MVC No.3123/2022 ON THE FILE OF THE II ADDITIONAL JUDGE, ACMM AND MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU (SCCH.13), AWARDING COMPENSATION OF Rs. 41,02,700/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL THE REALIZATION.

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

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CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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MFA No.4983/2023 is filed by the

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appellants/claimants seeking enhancement.

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MFA No.5244/2023 is filed by the insurer challenging the liability as well as quantum of compensation awarded in the judgment and award dated 14.06.2023 passed in MVC No.3123/2022 by the II Additional Judge, ACMM and Member, MACT, Court of Small Causes, Bengaluru.

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The facts leading to filing of claim petition are as under:

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HC-KAR

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(a) That on 27.03.2022 at about 8.30 a.m., Navyaraj was rider of motorcycle bearing Regn.No.KA-02-JK-4921, in front of Welfons flooring both and behind shop, near ESI Hospital, Rajajinagar, Bengaluru, the driver of car bearing Regn.No.KA-02-MR-0618 drove the same with high speed, in a rash and negligent manner and dashed to the motor cycle of Navyaraj. Due to the said impact, Navyaraj fell down and sustained grievous injuries to the head and other parts of the body. He took treatment in the hospital and he succumbed to the injuries on 24.05.2022.

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(b) Claimant No.1 is the mother and claimant No.2 is the father of deceased. The deceased was aged 27 years and he was working as a contract based employee in KMF and was earning Rs.30,000/- p.m. The claimants being the parents of the deceased made the claim petition.

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(c) Respondent No.1/insurer filed statement of objections denying the averments of the petitioner and it admitted the issuance of policy in respect of the offending vehicle by respondent and its liability subject to terms and

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HC-KAR

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conditions of the policy. It contended that the driver of the vehicle was not holding valid and effective driving license. The rider of the motor cycle was not holding valid DL and was not wearing helmet. It denied the avocation and income of the deceased.

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On the basis of the pleadings, the Tribunal has

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framed the following issues:

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1. Whether the petitioners prove that the death of Sri.Navyaraj P. S/o Puttaswamy A.B. was only due to rash and negligent driving by the driver of car bearing No.KA02-MR-0618 on 27.03.2022, in front of Welfons Flooring both and behind shop, near ESI hospital, 41^st Cross, Rajajinagar, Bengaluru District?

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2. What compensation petitioners are entitled?

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3. What order?

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Claimant No.1 has been examined as PW.1 and

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got examined one witness as PW.2 and got marked Exs.P1 to P23. The driver of the offending car is examined as

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HC-KAR

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RW.1 and official of the insurance company is examined as

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RW.2 and got marked Ex.R1 and R2.

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The trial Court after hearing arguments and

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appreciating the evidence on record has awarded compensation under different heads as under:

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Sl.No.	Particulars	Amount
1.	Loss of dependency	22,84,800/-
2.	Loss of consortium	80,000/-
3.	Loss to estate	20,000/-
4.	Transportation of dead body, funeral obsequies expenses	15,000/-
5.	Medical expenses	17,02,900/-
	Total	41.02.700/-

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The Tribunal awarded interest 6% p.a. from the

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date of petition till realization and held that respondent

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No.1/insurer is liable to pay the entire compensation with

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HC-KAR

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interest. The claimants have filed the appeal seeking enhancement and insurer has filed appeal challenging the liability and also quantum of compensation awarded by the Tribunal.

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Heard the learned counsel for the claimants and learned counsel for the insurer.

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Learned counsel for the claimants would contend that Tribunal erred in not deducting the amount of bills which are at Sl.No.2 to 24, 26 to 36 in Ex.P19 on the ground that the amount is included in the discharge bill issued by the hospital. He further submits that Ex.P21 – letter and Ex.P22 – pay slips will establish that the deceased was earning Rs.30,000/- p.m. and that has not been considered by the Tribunal. The Tribunal has not considered escalation while awarding loss of consortium and 10% escalation has to be added to loss of consortium.

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Learned counsel for insurer would contend that the income of the deceased has not been established and

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HC-KAR

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therefore, ought to have taken the income as per the chart prepared by the Legal Services Authority at Rs.15,500/p.m. instead of Rs.16,000/-. He further submits that accident occurred due to head on collusion and in order to establish the same, the driver of the offending vehicle has been examined as RW.1. The deceased has jumped the signal in the circle and in order to avoid the same, RW.1 took his car on right side and there was accident. Therefore, there is contributory negligence on the part of deceased also.

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Having heard the learned counsel, the Court has perused the impugned judgment and award and trial Court records.

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On perusal of the material on record the following points arise for consideration in this appeal:

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i) Whether the Tribunal is justified in holding that the accident occurred due to rash and negligence on the part of the driver of the offending vehicle?

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HC-KAR

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ii) Whether the Tribunal has erred in taking the income of the deceased at Rs.16,000/- per month?

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iii) Whether the claimant is entitled to escalation at 10% on consortium and other conventional heads?

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ON POINT No. i) Ex.P.9 is copy of the charge sheet. Charge sheet is filed against the driver of the offending vehicle. P.W.2 is eye witness to the accident. He has stated that due to the negligence on the part of the owner of the car the accident has occurred. The driver of the offending car has been examined as R.W.1. He has admitted that charge sheet has been filed against him. As there is evidence of P.W.2 – eye witness, the evidence of R.W.1 will not help the insurer and the onus is on the insurer and owner of the vehicle and they have not examined eye witness to prove the contributory negligence of the deceased. Ex.P.3 – spot mahazar and Ex.P.4 – sketch of the spot indicate that the accident has taken

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HC-KAR

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place on the left side of the road on which the deceased was proceeding and the driver of the offending car took his car on his extreme right side and dashed to the motorcycle. Considering the said aspect, entire negligence is on the part of the driver of the offending car. Therefore,

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the Tribunal is justified in holding that the entire negligence is on the part of the driver of offending car. Accordingly, the said point is answered.

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ON POINT No. ii) Ex.P.21 is the letter issued by Mathru Enterprises indicating that the deceased was working as a Checking Inspector and getting salary of Rs.17,700/- per month and Ex.P.22 is the tax invoice which indicate that the pay of the deceased was Rs.17,700/-. The Tribunal has not believed Ex.P.21 and Ex.P.22 on the ground that author of Ex.P.21 and Ex.P.22 is not examined and the Bank account statement of the deceased has not been produced to indicate that the said pay has been credited to his account. Considering the fact that the deceased was working in a private firm the

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HC-KAR

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Tribunal has taken the salary as Rs.16,000/- per month which is Rs.500/- higher than the chart prepared by the Legal Services Authority for settlement of disputes before the Lok Adalat. Considering the fact that the deceased was employed in a private firm and income is not established the Tribunal is justified in taking the income at Rs.16,000/- per month. Accordingly, the said point is answered.

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ON POINT No. iii) The Tribunal has awarded loss of consortium at Rs.80,000/- i.e., Rs.40,000/- each to claimants 1 and 2. The accident has taken place in the year 2022. For every 3 years there should be escalation of loss of consortium by 10% and compensation to be awarded under other conventional heads as per the decision of the Hon’ble Apex Court in the case of National

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Insurance Company Vs Pranay Sethi and Ors, reported in AIR 2017 SC 5157 . Considering the said aspect, claimants are entitled for consortium at Rs.88,000/- as against Rs.80,000/- awarded by the

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Tribunal. The Tribunal has awarded a sum of Rs.20,000/towards loss of Estate. The claimants are entitled to a sum of Rs.15,000/- towards loss of estate with 10% escalation. Therefore, the claimants are entitled to a sum of Rs.16,500/- towards loss of estate. The Tribunal has awarded a sum of Rs.15,000/- towards transportation of dead body, funeral expenses etc., which is on lower side. The claimants are entitled to a sum of Rs.16,500/towards transportation of dead body, funeral expenses etc. Hence, claimants are entitled to a sum of Rs.16,500/towards loss of estate and Rs.16,500/towards transportation of dead body, funeral expenses etc. Accordingly, the said point is answered.

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The Tribunal has rightly awarded future prospects, taken the multiplier of 14 and awarded compensation towards loss of dependency.

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Learned counsel for appellants – claimants contended that amount of bills which are at Sl.Nos. 2 to 24 and 26 to 36 have not been taken into consideration by

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HC-KAR

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the Tribunal and those amounts are excluded while awarding medical bills. Ex.P.19 contains several bills. Ex.P.19 is the medical bill to the extent of Rs.20,67,713/-. The Tribunal has excluded the bill amounts which are at Sl.Nos. 2 to 24 and 26 to 36 on the ground that main inpatient bill, i.e. Ex.P.19 (Sl.No.1) includes charges of pharmacy, drugs and materials for Rs.1,36.423.18 and 1,37,433.06. A perusal of those bills which are at Sl.Nos. 2 to 24 and 26 to 36 does not indicate any payment made by the appellants – claimants of the amounts of the said bills. Considering the said aspect the Tribunal has not erred in excluding the said medical bills which are at Sl.Nos. 2 to 24 and 26 to 36.

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In view of the above, the appellants – claimants

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are entitled to compensation as under:

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Sl.No.	Particulars	Amount
1.	Loss of dependency	22,84,800/-
2.	Loss of consortium	88,000/-
3.	Loss to estate and transportation of	33,000/-

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HC-KAR

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	dead body, funeral obsequies expenses
4.	Medical expenses	17,02,900/-
	Total	41,08,700/-

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Considering the said aspects the appellants –

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claimants are entitled to enhanced compensation of Rs.6,000/- (4108700 – 4102700) with interest at the rate of 6% p.a. from the date of petition till the date of realization.

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In view of the above, the following;

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O R D E R

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i) The appeals are allowed in part .

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ii) The appellants – claimants in MFA No. 4983/2023

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are entitled for enhanced compensation of Rs.6,000/- with interest at the rate of 6% p.a. from the date of petition till the date of realization.

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HC-KAR

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iii) Respondent – insurer shall deposit the enhanced compensation with interest within six weeks from this day failing which it is liable to pay interest at the rate of 9% p.a. from this day till the date of

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payment.

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iv) Amount in deposit shall be transmitted to the Tribunal.

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v) Appellants – claimants are entitled to release of

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entire compensation amount.

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Sd/(SHIVASHANKAR AMARANNAVAR) JUDGE

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DKB, LRS List No.: 1 Sl No.: 62

The Legal Manager v. Smt. Gangamma

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The Legal Manager v. Smt. Gangamma

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