Karnataka High Court
Sri S. Thimmarayappa vs Sri P. Velu on 26 August, 2020
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF AUGUST, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
MFA No.10340/2013 (MV)
C/W
MFA No.11358/2011
AND
MFA No.9247/2011
IN M.F.A.No.10340/2013
BETWEEN:
SRI S. THIMMARAYAPPA,
S/O LATE SAKAPPA,
AGED ABOUT 44 YEARS,
RESIDING AT
NO.257, 7TH CROSS,
SANJAYNAGAR, MARATHAHALLI,
BANGALORE - 37. ... APPELLANT
(BY SRI.N.GOPALKRISHNA, ADVOCATE)
AND:
1. SRI P. VELU,
S/O PAPANNA GOUNDER,
MAJOR IN AGE,
RESIDING AT
NO.39, JALAGAMPARI,
PERUMPATTU,
VANIYAMBADI TALUK,
2
VELLORE DISTRICT,
TAMIL NADU - 570 001.
2. THE UNITED INDIA INSURANCE
COMPANY LTD.,
REGIONAL OFFICE:
NO.25, SHANKARANARAYANA
BUILDING, M.G.ROAD,
BANGALORE - 560 001.
REPRESENTED BY ITS MANAGER.
NOW THE OFFICE SHIFTED TO
THE UNITED INDIA INSURANCE
COMPANY LTD.,
REGIONAL OFFICE
5TH FLOOR, KRISHI BHAVAN,
NRIPATUNA ROAD,
BANGALORE - 560 001.
3. SRI.NARAYANA,
S/O LATE SRI BETTAPPA,
MAJOR IN AGE,
NO.172, 5TH CROSS,
SANJAYNAGAR,
MARATHAHALLI,
BANGALORE - 560 037. ... RESPONDENTS
(BY SRI. G.S.MARULAIAH, ADVOCATE FOR R2;
NOTICE TO R1 IS HELD SUFFICIENT VIDE ORDER
DATED 18.11.2016;
R3 IS SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 01.04.2013 PASSED
IN MVC NO.1054/2010 ON THE FILE OF THE VI
ADDITIONAL JUDGE, MEMBER, MACT, COURT OF SMALL
CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
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IN M.F.A.No.11358/2011
BETWEEN:
UNITED INDIA INSURANCE
COMPANY LIMITED.,
REPRESENTED BY
THE MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
REGIONAL OFFICE,
5TH AND 6TH FLOORS,
KRISHI BHAVAN,
HUDSON CIRCLE,
BANGALORE - 560 001. ... APPELLANT
(BY SRI.G.S.MARULAIAH, ADVOCATE)
AND:
1. SHRI J. RAJA,
S/O LATE SHRI JOTHIRLINGAM,
AGED ABOUT 49 YEARS,
R/AT NO. 98, 3RD CROSS,
SANJAYANAGAR,
MARATHHALLI,
BANGALORE - 560 017.
2. SHRI. P VELU,
S/O SHRI PAPANNA GOUNDER,
MAJOR,
NO.39, JALAGAMPARIPERUMPATTU,
VANIYAMBADI TALUK,
VELLORE DISTRICT,
TAMILNADU - 635 751. ... RESPONDENTS
(BY SRI.N.GOPALKRISHNA, ADVOCATE FOR R1;
NOTICE TO R2 IS DISPENSED WITH VIDE
ORDER DATED 26.11.2015)
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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 17.08.2011 PASSED
IN MVC NO.8951/09 ON THE FILE OF THE JUDGE,
MEMBER, MACT, BANGALORE, AWARDING A
COMPENSATION OF RS.2,92,500/- WITH INTEREST @ 6%
P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
IN M.F.A.No.9247/2011
BETWEEN:
SHRI J. RAJA,
S/O LATE JOTHIRLINGAM,
AGED ABOUT 49 YEARS,
R/AT NO. 98, 3RD CROSS,
SANJAYANAGAR,
MARATHAHALLI,
BANGALORE - 560 037. ...APPELLANT
(BY SRI.N.GOPAL KRISHNA, ADVOCATE)
AND:
1. SHRI. P VELU,
S/O PAPANNA,
MAJOR IN AGE,
RESIDING AT NO.39,
JALAGAMPARI PERUMPATTU,
VANIYAMBADI TALUK,
VELLORE DISTRICT - 632 001,
TAMIL NADU.
2. THE UNITED INDIA INSURANCE
COMPANY LIMITED.,
REGIONAL OFFICE, NO.25,
SHANKARNARAYANA BUILDING,
M.G.ROAD,
5
BANGALORE - 1.
REPRESENTED BY
ITS MANAGER. ... RESPONDENTS
(BY SRI.G.S.MARULAIAH, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH VIDE ORDER
DATED 30.11.2011)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 17.08.2011 PASSED
IN MVC NO.8951/2009 ON THE FILE OF JUDGE AND
MEMBER MACT, AT BANGALORE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE MFA'S COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.10340/2013 is filed by the pillion rider of the motor cycle bearing registration No.KA-03-HA-4426 while MFA No.9247/2011 is by the rider of the motor cycle and MFA No.11358/2011 is by the Insurance Company.
2. Before the Tribunal it was stated that on 26.11.2009, an accident occurred between the motor cycle bearing registration No.KA-03-HA-4426 and a 6 Tractor bearing registration No.TN-23-W-4170, as a result of which, the rider of the motor cycle David Kumar suffered serious injuries and ultimately died and the pillion rider i.e., S.Thimmarayappa suffered grievous injuries.
3. The father of deceased David Kumar filed an application under Section 163A of the Motor Vehicles Act, 1988 seeking compensation for the death of his son under the structured formula basis.
4. The pillion rider S.Thimmarayappa filed a claim application under Section 166 of the Motor Vehicles Act, 1988. The Tribunal on consideration of the evidence adduced before it recorded a finding that on accident had occurred on 26.11.2009 between the motor cycle and the tractor and that accident resulted in the death of David Kumar and also injuries to S.Thimmarayappa.
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5. The Tribunal proceeded to award compensation of Rs.2,92,500/- for the death of David Kumar and it also awarded a sum of Rs.2,92,000/- for the injuries suffered by S.Thimmarayappa.
6. The Tribunal, however, proceeded to hold that the accident occurred solely due to the negligence of the rider of the motor cycle i.e., David Kumar and therefore, the Insurance Company could not be saddled with the liability and it proceeded to fasten the liability on the owner of the motor cycle.
7. As a result, both the pillion rider and the father of David Kumar are in appeal.
8. The Insurance Company has challenged the award passed in favour of David Kumar's father on the ground that the evidence adduced indicated that David Kumar was earning Rs.5,400/-p.m., and hence, a claim 8 could not have been brought under Section 163A of the Act.
9. In this case, it is not in dispute that immediately after the accident an FIR was lodged by the father of the deceased - David Kumar. Subsequently, the police filed a charge sheet against the rider of the motor cycle i.e., Sri. David Kumar. It is therefore the contention of the Insurance company that since the Police on investigation found David Kumar was responsible for the accident they could not be made liable.
10. In the instant case, admittedly no independent evidence was adduced by the Insurance Company to indicate the manner in which the accident took place and the cause for the said accident. The Insurance Company is basically relying upon the charge sheet laid against the deceased. A perusal of the IMV report indicates that there was damage to the right side 9 of the tractor and in view of the said fact, it cannot be said that rider of the motor cycle came on wrong side of the road and had a head on collision, in the absence of any independent evidence adduced to indicate as to who was responsible for the accident.
11. In my view the Tribunal was wrong in coming to the conclusion that the rider of the motor cycle was responsible for the accident. The fact as to whether accident occurred or not will have to be determined by applying the principle of "preponderance of problems" rather than on the principle of "proof beyond all reasonable doubt. In this case, the pillion rider i.e., S.Thimmarayappa has appeared before the Court and categorically stated that the accident occurred only because of the negligence of the tractor driver. No rebuttal evidence was adduced and no admission was elicited in his cross-examination which 10 even remotely indicated that the motor cycle rider was negligent.
12. I am therefore of the view that the finding recorded by the Tribunal that the rider of the motor cycle was responsible cannot be sustained. As a consequence it will have to be held that the liability arising out of the accident will have to be borne by the Insurance Company which had insured the tractor.
13. The pillion rider has been awarded a compensation of Rs.2,92,000/-. The Tribunal has awarded a sum of Rs.1,20,960/- towards loss of future income by assessing monthly income at Rs.4,500/- p.m. In my view assessment of compensation is just and proper and does not call for any interference.
Thus, holding that Insurance Company is liable to pay the compensation that is awarded to the pillion 11 rider, the appeal filed by the pillion rider is allowed in part.
14. As far as the appeal filed by the father of the rider of the motor cycle is concerned, a similar contention advanced by the Insurance company was that the evidence adduced indicated that the deceased was earning Rs.5,400/- p.m., as a Welder but, he cannot restrict the annual income notionally to Rs.40,000/- cannot be accepted, in view of the decision of the Full Bench of this Court in MFA No.5377/1998, wherein in paragraph 33, it is held that persons with a higher income can notionally bring down their income to Rs.40,000/- p.a., in order to present a claim under Section 163A of the Act. As a result there is no merit in the appeal of the Insurance Company and the same is accordingly, dismissed.
15. The Tribunal while determining the compensation for the death of David Kumar has taken 12 the annual income of the deceased as Rs.24,000/- even though the father of the deceased had notionally brought down the annual income to Rs.40,000/- p.a. In view of the fact that there was evidence that deceased was earning Rs.5,400/-p.m., and the father had notionally brought down the income to Rs.40,000/-, in my view, the Tribunal could not have decreased the annual income to Rs.24,000/-. As a consequence, the income of the deceased would have to be taken as Rs.40,000/- p.a., and as per Section 163A of the Act, he would be awarded a sum of Rs.7,20,000/- - 33% (deduction towards personal expenses of the deceased) = 4,82,400/-.
16. The claimant is also entitled to a sum of Rs.4,500/- under the conventional head as prescribed under Section 163A of the Act. In all the claimant in MFA No.9247/2011 would be entitled to sum of Rs.4,86,900/-.
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The Insurance Company is directed to satisfy the award amount within a period of two months from the date of receipt of copy of the order.
The amount in deposit shall stand transmitted to the Tribunal for disbursement in terms of the award.
The compensation amount shall carry interest at the rate of 6% p.a., from the date of claim petition till the date of realization.
Sd/-
JUDGE NS/pgg