Karnataka High Court
Divisional Manager vs Ramanna Shetty on 13 December, 2018
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
MFA.No.6134/2010 (MV)
C/W
MFA.No.10419/2010 (MV)
IN MFA.No.6134/2010
BETWEEN:
DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.
II FLOOR, KRISHNA COMPLEX
G.B.PANTH ROAD, UDUPI
BY ITS MANAGER ... APPELLANT
(BY SRI O.MAHESH, ADVOCATE)
AND:
1. RAMANNA SHETTY
AGED ABOUT 52 YEARS
S/O LATE SHEENA SHETTY
2. SMT. GIRIJA SHETTY
AGED ABOUT 47 YEARS
W/O RAMANNA SHETTY
R-1 & R-2 ARE R/AT NEAR ABHARANA
MOTORS, MARUTHI SHOW ROOM
UDUPI, PUTTUR, UDUPI TALUK
3. M.SRIDHAR
S/O.M.LINGAPPA SHERIGAR
AGED ABOUT 37 YEARS
2
R/O SRISHTI NILAYA
BAJAGOLI, DIDIMBIRI GUDDE
MUDAR, KARKALA TALUK ... RESPONDENTS
(BY SRI PAWAN SHYAM FOR SRI K.A.CHANDRASHEKARA,
ADVOCATES FOR R1 AND R2;
R3 IS SERVED & UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT, 1988 PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED:11.05.2010 PASSED IN MVC NO.1185/2008
ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE &
MACT, UDUPI AND ETC.
IN MFA. No.10419/2010
BETWEEN:
1. RAMANNA SHETTY
AGED ABOUT 52 YEARS
S/O LATE SHEENA SHETTY
2. SMT. GIRIJA SHETTY
AGED ABOUT 47 YEARS
W/O RAMANNA SHETTY
BOTH ARE R/AT NEAR ABHARANA
MOTORS, MARUTHI SHOW ROOM
UDUPI TALUK, UDUPI DISTRICT ... APPELLANTS
(BY SRI PAWAN SHYAM FOR
SRI K.A.CHANDRASHEKARA, ADVOCATES)
AND:
1. SRIDHAR M
S/O M.LINGAPPA SHERIGAR
AGED ABOUT 36 YEARS
R/O SRISHTI NILAYA
BAJAGOLI, DIDIMBIRI GUDDE
MUDAR, KARKALA TALUK
UDUPI DISTRICT
3
2. THE DIVISIONAL MANAGER
THE UNITED INDIA INSURANCE CO. LTD.
DIVISIONAL OFFICE
UDUPI DISTRICT ... RESPONDENTS
(BY SRI O.MAHESH, ADVOCATE FOR R2;
R1 IS SERVED & UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT, 1988 PRAYING TO SET ASIDE/MODIFY THE
JUDGMENT AND AWARD DATED:11.05.2010 PASSED IN
MVC NO.1185/2008 ON THE FILE OF ADDITIONAL SENIOR
CIVIL JUDGE & MACT, UDUPI AND ETC.
THESE MFAs COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA.No.6134/2010 is filed by the Insurance Company challenging the judgment and award dated 11.05.2010 passed in MVC.No.1185/2008 on the file of the Additional Senior Civil Judge & MACT, Udupi questioning, entertaining the petition filed under Section 163A of the Motor Vehicles Act, 1988 ('MV Act' for short) in awarding compensation and also with regard to quantum of compensation and MFA.No.10419/2010 is filed by the claimants challenging the quantum of compensation. 4
2. The brief facts of the case are that the claimants have filed the claim petition before the Tribunal under Section 163A of the MV Act. They have contended that one Suresh Shetty was riding a motor cycle bearing registration No.KA-03/EP-5905 on 05.06.2008 from Kadri towards Bajagoli side. When the motor cycle reached near Manjalpade cross, Mudar village, one TVS Suzuki Samurai bearing registration No.KA-20/K-9683 which was driven by its rider in a rash and negligent manner dashed against the motor cycle of Suresh Shetty. As a result, he sustained grievous injuries. Immediately, he was taken to Spandana Maternity and General Hospital and lateron, he was shifted to Mangala hospital, Mangalore and he was succumbed to the injuries on 12.06.2008. It is also the contention of the claimants that the deceased Suresh Shetty was doing vegetable vending business. He was earning Rs.3,000/- per month.
3. The respondent - Insurance Company has filed the written statement denying the averments made in 5 the claim petition and contends that the deceased rider was riding his motor cycle bearing registration No.KA- 03/EP-5905 without following the traffic and in a wrong side without observing the vehicle and due to the said impact, the accident was occurred and contends that the above accident was occurred on account of negligence of the deceased. Hence, the petition is deserves to be dismissed with cost.
4. The Tribunal having considered the pleadings framed the issue that one Sri Sudhir Kamath being the driver of TVS Suzuki Samurai motor cycle bearing registration No.KA-20/K-9683 dashed against the motor cycle of Suresh Shetty and thereby he succumbed to the injuries.
5. The claimants in support of their claim have examined the first claimant as PW.1 and got marked the documents as Exs.P1 to P29 and on behalf of the respondents, they have not lead any evidence before the Tribunal.
6
6. The Tribunal after considering both oral and documentary evidence, partly allowed the petition and awarded the compensation of Rs.4,49,000/- with interest @ 6% and fastened the liability on the Insurance Company.
7. Being aggrieved by the judgment and award of the Tribunal, the Insurance Company has preferred this Miscellaneous First Appeal contending that the Tribunal has grossly erred in ignoring the variance in pleadings and material evidence in respect of the claim made under Section 163A of the MV Act and further contended that the Tribunal has grossly erred in rejecting the defence of the appellant - Insurer on highly technical ground and ignoring the admission made by PW.1-father of the deceased that his deceased son was a pillion rider on motor cycle. Hence, the Tribunal ought not to have allowed the claim petition.
The other contention of the Insurance Company is that the Tribunal has grossly erred in applying 7 multiplier of '17' based on the age of the deceased rather than considering the age of the mother of the deceased as ruled by the Apex Court and further contended that the Tribunal ought to have seen that the Apex Court has ruled on several occasion that structured formula envisaged in Schedule-II under Section 163A of the MV Act and is defective and could only be used as a guideline. The method adopted by the Tribunal to compute compensation under Section 163A of the MV Act is improper, incorrect and illegal and pray this Court to set aside the judgment and award.
8. In MFA.No.6134/2010, the learned counsel for the appellant-Insurance Company has vehemently contended that the pleadings and the evidence, which show contrary to the case of the claim and in pleadings, it is contended that he was a rider and in cross examination of PW.1, he categorically admits that his son was proceeding as a pillion rider in other vehicle and it is a false claim and the same cannot be 8 entertained by the Tribunal. With regard to the other contention is concerned, while applying the multiplier, the Court has to consider the factual aspect of the case and though the Apex Court in the reasoned judgment held that the multiplier has to be taken with reference to the age of the deceased and the Court has to take note of the dependency and hence, the same also to be considered by revisiting the consideration.
9. In MFA.No.10419/2010, the learned counsel appearing for the appellants-claimants contends that the Tribunal has committed an error in taking an amount of Rs.2,000/- towards funeral expenses, which is very low and hence, the same needs to be enhanced and further contends that even though the appellants have claimed Rs.61,770/- towards hospital and medical expenses, the Tribunal has erred in awarding Rs.15,000/- only. Considering the fact that, the deceased before succumbing to the injuries was hospitalised for a period of 8 days and the Tribunal has 9 not been taken note of the same. The other contention that the Tribunal ought to have awarded the interest at 12% as against 6%. The Tribunal has failed to apply the principles behind grant of compensation in the motor accident cases and contended that the compensation awarded is unjust and unreasonable and the same has to be modified.
In support of his contention, he also relied upon the judgment of the Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi and others reported in (2017) 16 SCC 680 and contends that this Court has to award appropriate just and reasonable compensation under the conventional heads and brought to my notice paras 48 to 52 of the said judgment. He further contends that the Court has to take note of the principles laid down in the judgment referred supra while awarding the compensation under the conventional heads.
10. After having heard the arguments of the learned counsel appearing for the Insurance Company 10 and the claimants and on perusal of the judgment and award of the Tribunal, the points that arise for my consideration are:
i) Whether the Tribunal has committed an error in entertaining the petition filed under Section 163A of the MV Act in awarding compensation with regard to the pleadings and evidence, which are contrary to the material on record?
ii) Whether the Tribunal has committed an error in not awarding the just and reasonable compensation and whether it requires modification of the judgment and award of the Tribunal with regard to the quantum of compensation?
11. Regarding first point is concerned, the main contention of the Insurance Company is that the pleadings and evidence varies from each other and the Tribunal ought not to have considered the false claim petition filed before the Tribunal. Though the claimants claim that the deceased was riding the motor cycle bearing registration No.KA-03/EP-5905, the Tribunal 11 failed to take note of the admission given by PW.1 that he was proceeding as a pillion rider in the motor cycle bearing registration No.KA-20/K-9683. Inspite of the admission, the Tribunal has entertained the claim petition. The Tribunal has considered the pleadings of the claim petition that he was proceeding in the motor cycle bearing registration No.KA-03/EP-5905 and also taken note of the admission which has been elicited in the cross examination of PW.1 and with regard to the discrepancy is concerned, the Tribunal has given its definite finding in para 16 that it has been brought to the notice that the name of the rider of the motor cycle bearing registration No.KA-20/K-9683 is one Sudhir Kamath whereas the name of the owner of the motor cycle bearing registration No.KA-03/EP-5905 is also Sudhir Kamath. But they are different persons. Under these circumstances, it cannot be said that the deceased Suresh Shetty was proceeding as a pillion rider in the motor cycle owned by respondent No.1. Nothing was prevented to take such contention in the 12 written statement itself and further observed that on the stray admission of PW.1, it cannot be held that the deceased Suresh Shetty was riding as a pillion rider in the other vehicle. On other hand, there are sufficient materials to show that the deceased was riding the motor cycle bearing registration No.KA-03/EP-5905 and further observed that for having considered the material on record, it did not find any force in the submission of the learned counsel for the Insurance Company.
12. Now this Court has to reappreciate the material available on record since it is the first appellate Court. The Court can consider the facts as well as the question of law. On perusal of the pleadings in the claim petition, it is specific that the deceased was proceeding in the motor cycle bearing registration No.KA-03/EP- 5905 and rightly it is pointed out by the Tribunal that there was no such defence in the written statement that he was proceeding as a pillion rider in the vehicle bearing registration No.KA-20/K-9683 and on perusal of 13 the written statement, the only contention was taken with regard to the negligence on the part of the deceased himself. Further, the Tribunal has observed in its judgment that stray admission of PW.1 cannot be looked into and the Court has to look into both oral and documentary evidence available before the Court and in toto consider the evidence on record.
13. The learned counsel appearing for the Insurance Company also brought to my notice the admission of PW.1. On perusal of the admission of PW.1 which has been discussed in para 15 of the judgment of the Tribunal, PW.1 says that his son was proceeding in the motor cycle bearing registration No.KA-20/K-9683 as a pillion rider. When the said suggestion was made to him, he gave the answer. The said suggestion is also not based on the pleadings and it came into picture abruptly to the witness, who has been examined before the Tribunal. On perusal of his signature, he appears to be illiterate and his signature was also made with 14 difficulty mentioning as 'Ramanna Shetty'. The Court has to look into the evidence in a proper perspective. Hence, the very contention of the insurer that he was proceeding as a pillion rider in the other vehicle cannot be accepted. The Tribunal has given definite finding that he was proceedings in the motor cycle as a rider and it did not accept the contention of the insurer. Therefore, the order passed by the Tribunal is a reasoned order with regard to accepting the evidence of PW.1.
14. Point No.2: Admittedly, the claim petition is filed under Section 163A of the MV Act. The claimants also pleaded in the claim petition that he was earning Rs.3,000/- per month. The Tribunal also while considering the quantum of compensation has taken Rs.3,000/- as the income of the deceased and while calculating the compensation has applied the multiplier as '18' and not '17' as contended by the appellant in the appeal memorandum. The contention of the insurer's 15 Counsel is that the Tribunal ought to have taken the age of the mother of the deceased, who is younger and not the age of the deceased. This contention cannot be accepted for the reasons that in the catena of the judgments, the Apex Court held that the age of the deceased has to be taken and not the age of the younger parents of the deceased. The other contention of the insurer's counsel is that the Tribunal has committed an error in taking the age of the deceased while applying the multiplier, cannot be accepted and the said ground also fails.
15. The Tribunal while calculating the compensation has deducted 1/3rd towards personal expenses instead of deducting 50%. Since the deceased is a bachelor, I am of the opinion that the Tribunal ought to have deducted 50% towards personal expenses and not 1/3rd. Though the claimants' counsel contends that the compensation awarded by the Tribunal is meager, nothing is shown with regard to the same. The 16 Tribunal has committed an error in deducting 1/3rd instead of 50% towards personal expenses. The same has to be revisited and recalculated. Having considered the income of the deceased as Rs.3,000/-, multiplier applicable is '18' and deducting 50% towards personal expenses, it comes to 3,000 x 12 x 18 = 6,48,000 - 50% = 3,24,000/-. The other contention of the claimants' counsel in the appeal that though the medical bills is produced to the extent of Rs.61,770/- towards hospital and medical expenses, the Tribunal has committed an error in awarding Rs.15,000/- only and further contends that he was in the hospital for a period of 8 days from the date of the accident till his death. There is no dispute with regard to the deceased was in the hospital from the date of accident to the date of death. Schedule-II limits the amount to Rs.15,000/-. Hence, the Tribunal did not commit any mistake in awarding the amount of Rs.15,000/- towards medical expenses as per Schedule-II. I do not find any force in the contention of the claimants' counsel to enhance the same. 17
16. The learned counsel relying upon the judgment of Pranay Sethi's case contends that in the said judgment, the Apex Court discussed with regard to Sections 166, 163A and 168 of the MV Act to award just compensation and also brought to my notice paras 48 to 52 of the said judgment. No doubt, in the said judgment, the Apex Court discussed with regard to awarding of the compensation under the conventional heads and awarded the amount of Rs.70,000/- in respect of all other conventional heads. The Tribunal observing the judgments of the Apex Court which have been considered more compensation in support of the conventional heads, has awarded Rs.70,000/-. The Tribunal has considered the case under Section 163A of the MV Act, since the very claimants have approached the Court by filing the petition under Section 163A of the MV Act. The Tribunal has awarded the compensation in respect of the other conventional heads. Hence, the very contention of the claimants that the judgment of Pranay Sethi's case is applicable to 18 the case filed under Section 163A of the MV Act, also cannot be accepted for the reason that when the statute and schedule-II clearly say that the quantum of compensation to be considered in a petition filed under Section 163A of the MV Act and the same has to be looked into. No doubt, the Central Government did not amend the schedule-II inspite of the said provision was brought in the year 1994 by act 54 of 1994 with effect from 14.11.1994 and the proviso of 163A(3) of the MV Act empowers that the Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the second schedule and same has not been done. Even after almost 24 years, in several judgments of the Supreme Court, it is also observed and direction was given to amend the same, it has not been done. When the statute does not permit and schedule-II has not been amended, the contention of the claimants' counsel cannot be accepted to award more compensation. 19
17. The learned counsel appearing for the claimants contends that the accident is of the year 2008. The Tribunal awarded interest at 6% and the same has to be enhanced to 12%. It is repeatedly held by the Apex Court that while awarding the compensation, the Court has to take note of the interest of the Nationalised Bank and also to take note of the date of the accident. I do not find any force in the contention of the claimants' counsel that the Tribunal ought to have awarded interest @ 12%. Since it is the accident of the year 2008 and hence, I do not find any ground to interfere with regard to Tribunal awarding interest @ 6% and hence, the same is confirmed.
18. In view of the above discussion, MFA.No.6134/2010 filed by the Insurance Company insofar as the quantum of compensation is partly allowed. The judgment and award passed by the Tribunal is modified. The compensation of Rs.3,41,000/- with interest @ 6% is awarded as against 20 Rs.4,49,000/- awarded by the Tribunal. MFA.No.10419/2010 filed by the claimants is dismissed.
Amount in deposit be transmitted to the Tribunal for payment of the amount in favour of the claimants.
Sd/-
JUDGE LB