Karnataka High Court
Bajaj Allianz General Insurance Co Ltd vs Smt Lakshmamma on 14 June, 2018
Author: B.Sreenivase Gowda
Bench: B. Sreenivase Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JUNE 2018
BEFORE
THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA
MFA. NO. 10530/2008 (MV)
C/W
MFA.CROB NO.112/2009(MV)
IN MFA. NO. 10530/2018 (MV)
BETWEEN;
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
NO.105-A/107 A, SESAR PLAZA
136, RESIDENCY ROAD
BANGALORE-560 025.
REP. BY ITS SENIOR LEGAL EXECUTIVE
SMT. GEETHA RAJ, R.O. BANGALORE.
... APPELLANT
(BY SRI.D.VIJAYA KUMAR, ADVOCATE )
AND:
1. SMT. LAKSHMAMMA
W/O LATE RANGAPPA
AGED ABOUT 42 YEARS
2. KUMARI SHARADA
D/O LATE RANGAPPA
AGED ABOUT 15 YEARS
3. KUMARI MANJULA
D/O LATE RANGAPPA
AGED ABOUT 12 YEARS
2
RESPONDENT NOS. 2 & 3 ARE MINORS BEING
REP. BY THEIR NATURAL GUARDIAN
AND MOTHER, SMT. LAKSHMAMMA
ALL ARE RESIDENTS OF
GAJALADINNE VILLAGE
KAMALA NEHRU HOSPITAL POST
KOLAR TALUK, KOLAR DISTRICT.
4. SRI ESHWAR R MANWAN
S/O LATE REJAMAL, MAJOR
NO.84, 2ND CROSS
RAMESHWARAM NIVAS
SPENCER ROAD, FRAZER TOWN
BANGALORE-560 005.
(OWNER OF THE MARUTHI CAR
NO.KA-03-MA-6402)
5. SMT. CHANDRA LAKSHMIKANTH
W/O SRI N. LAKSHMIKANTH, MAJOR
R/O FLAT NO.E-203
ATRIUM, NO.49/22
KALAKSHETRA ROAD
THIRUVANMIYUR
CHENNAI-600041
TAMIL NADU.
... RESPONDENTS
(BY SMT. SUGUNA R. REDDY, ADV., FOR R1 TO R3;
SRI. M.L. DAYANANDA KUMAR, ADV., FOR R4;
SRI. V.B. RAVISHANKAR, ADV., FOR R5)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
23.8.2008 PASSED IN MVC NO.320/2004 ON THE FILE OF
THE CIVIL JUDGE (SR. DN.) AND CJM AND MACT, KOLAR,
AWARDING A COMPENSATION OF RS.3,76,000/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
PAYMENT.
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IN MFA. CROB NO. 112/2009 (MV)
BETWEEN;
1. SMT. LAKSHMAMMA
W/O LATE RANGAPPA
AGED ABOUT 43 YEARS
2. KUMARI SHARADA
D/O LATE RANGAPPA
AGED ABOUT 16 YEARS
3. KUMARI MANJULA
D/O LATE RANGAPPA
AGED ABOUT 13 YEARS
SINCE CROSS-OBJECTOR NOS. 2 & 3 ARE MINORS
REP. BY THEIR NATURAL GUARDIAN
CUM MOTHER, SMT. LAKSHMAMMA
ALL ARE R/AT GAJALADINNE VILLAGE
KAMALA NEHRU HOSPITAL POST
KOLAR TALUK, KOLAR DISTRICT
... CROSS-OBJECTORS
(BY SMT. SUGUNA R. REDDY, ADV., )
AND:
1. ESHWAR R MANWAN
S/O LATE REJAMAL, MAJOR
NO.84, 2ND CROSS
RAMESHWARAM NIVAS
SPENCER ROAD, FRAZER TOWN
BANGALORE-560 005.
2. THE BRANCH MANAGER
M/S. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
NO.105-A/107 A, CEARS PLAZA
4
136, RESIDENCY ROAD
BANGALORE-560 025.
3. SMT. CHANDRA LAKSHMIKANTH
W/O SRI N. LAKSHMIKANTH, MAJOR
R/O FLAT NO.E-203
ATRIUM, NO.49/22
KALAKSHETRA ROAD
THIRUVANMIYUR
CHENNAI-600041
TAMIL NADU.
... RESPONDENTS
(BY SRI. M.L. DAYANANDA KUMAR, ADV., FOR R1;
SRI. D. VIJAYA KUMAR, ADV., FOR R2;
SRI. V.B. RAVISHANKAR, ADV., FOR R3)
THIS MFA CROB IN MFA NO.10530/2008 FILED U/O
41 FULE 23 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 23.8.2008 PASSED IN MVC NO.320/2004
ON THE FILE OF THE PRL. CIVIL JUDGE (SR. DN.) AND
CJM, KOLAR, PARTLY ALLOWING THE PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE MFA AND MFA CROB ARE COMING ON FOR
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
JUDGMENT
MFA 10530/2008 is filed by the second respondent - insurer of Maruthi Alto car challenging the judgment and award passed by the Civil Judge (Senior Division) and CJM, Kolar, in MVC No.320/2004 on the 5 ground of negligence as well as quantum. Whereas, MFA CROB 112/2009 is filed by the claimants challenging the judgment and award passed by the Tribunal in MVC No.320/2004 on the ground of quantum.
2. As this appeal and cross objection have arisen out of a common judgment and award of the Tribunal, with the consent of the learned Counsel appearing for the parties, they were heard together and disposed of by this common judgment.
3. For the sake of convenience parties are referred to as they are referred to in the claim petition before the Tribunal.
4. Sri. D.Vijayakumar, learned Counsel appearing for the appellant/insurer of Maruthi Alto car bearing registration No. KA-03-MA-6402, herein after referred to as Maruthi Alto car, submits that in the complaint and 6 FIR marked as Ex.P.1, it was clearly mentioned that the Maruthi car was going ahead of the Accent car bearing registration No.TN-07-AA-2224, herein after referred to as Accent car, belonging to the third respondent. Hence, Maruthi Alto car could not dash against the hind portion of the Accent car. He submits that Ex.P.5 - IMV report clearly shows, the right side hind portion of the Maruthi car was damaged and this would show that the Accent car came and dashed against the Maruthi car from behind. As a result, the driver of the Maruthi car lost balance and control over his car and both the cars have dashed against the deceased. The Tribunal, without appreciating this aspect of the matter, has grossly erred in fixing entire negligence only on the part of the driver of the Maruthi Alto car.
Learned Counsel submits, the Tribunal miserably failed to note that as per Ex.P.7 and Ex.R.2 - the charge sheet filed by the Police, it was filed against Mahendra, 7 son of Sohan Raj, the driver of Accent car and as per Ex. P.9, the driver of the Accent car has pleaded guilty in C.C.No.29/2005 and as per Ex.P.10, he has been sentenced to pay a fine of Rs.1,000/-. The above documents would clearly show that accident was occurred mainly due to the negligence of the driver of the Accent car.
Regarding quantum, learned Counsel submits, the compensation awarded by the Tribunal towards loss of dependency and on other heads is on the higher side, which requires to be reduced, and therefore he prays for allowing the appeal preferred by the appellant-insurer of Maruthi car by setting aside the judgment and award passed by the Tribunal both on negligence as well as quantum and dismissing the cross objection filed by the claimants.
5. Smt. Suguna R.Reddy, learned Counsel appearing for the respondent - claimants submits, the Tribunal considering the fact that on 05-09-1994 at 8 about 6.45 p.m. on N.H.4 road, near Petechamanahalli bye pass road, Kolar, when deceased was walking on the foot path, a Maruthi Alto car was driven by one Mahendra son of Sohan Raj, came from Mulbagal side towards Bangalore in a rash and negligent manner and the driver of the said car lost control and dashed against the deceased and then proceeded further and dashed against an Accent car which was parked on the left side of the road. As a result of the impact, deceased sustained multiple grievous and fatal injuries and succumbed to the same. Hence, accident was occurred due to the rash and negligent driving of the Maruthi Alto car by its driver, as rightly held by the Tribunal.
Regarding quantum, the learned Counsel submits, the Tribunal has committed an error in awarding meager compensation towards loss of dependency and towards conventional heads. Therefore, she prays for dismissing the appeal preferred by the insurer of 9 Maruthi Alto car and allow the cross objection filed by the claimants by enhancing the compensation awarded by the Tribunal.
6. After hearing the learned Counsel appearing for the parties and perusing the judgment and award of the Tribunal, points that arise for consideration in this appeal and cross objection are :
`1. Whether the finding of the Tribunal on issue No.1 relating to negligence that deceased Rangappa died in the accident occurred on 05-09-2004 due to rash and negligent driving of Maruthi Alto car bearing registration No. KA-03-MA-6402 by its driver on N.H.4 road near Petechamanahalli bye pass road, insured with the appellant is sustainable in law ?
2. Whether compensation of Rs.3,76,000/- with interest at 6% p.a. awarded by the Tribunal is just and reasonable or does it call for reduction or enhancement ?
3. What order or award ?' 10
7. There is no dispute that deceased Rangappa died in a motor vehicle accident occurred on 05-09- 2004 by involvement of Maruthi Alto car and Accent car. According to the claimants, on 05-09-2004 at 6.45 p.m. on N.H.4 road near Petechamanahalli bye pass road when deceased was walking on the foot path, at that time a Maruthi Alto car came from Mulbagal side and proceeding towards Bangalore, was driven in a rash and negligent manner and the driver lost control over the vehicle and dashed against the deceased and then proceeded further and dashed against one Accent car which was parked on the left side of the road and as a result of the said impact, deceased sustained multiple grievous and fatal injuries and succumbed to the injuries.
8. Whereas, according to the appellant - insurer of Maruthi Alto car, on 05-09-2004 at 6.45 p.m. when the driver of the Maruthi Alto car was driving the car 11 carefully and cautiously on the left side of the road, near Petechamanahalli bye pass road, driver of the Accent car drove the same in a rash and negligent manner and in an attempt to over take the Maruthi Alto car, dashed against the right side hind portion of the Maruthi Alto car and dashed against the hind portion of the tractor-trailer which was suddenly stopped in the middle of the road. As a result, the driver of the Maruthi Alto car lost control over the vehicle and dashed against the deceased who came in between the Maruthi Alto car and the Accent car.
9. Therefore, the dispute is whether death of deceased is on account of rash and negligent driving of Maruthi Alto car or the Accent car or by contributory negligence of the drivers of both the cars.
10. Immediately after the accident, one Mahendra, the driver of Accent car has lodged a complaint with the jurisdictional Police stating that on 05-09-2004, when he was driving the Accent car belonging to his brother from 12 Mulbagal towards Bangalore, on N.H.4 road and proceeding near Bangarpet Railway gate, the dirver of Maruthi Alto car was driving the said car with high speed in a rash and negligent manner and dashed against the person who was proceeding on the left side of the road and then dashed against the hind portion of the tractor-trailer parked on the right side of the road.
11. The wife of the deceased examined as P.W.1 and an eye witness - Aiyappa examined as P.W.2 have reiterated the contents of the complaint and averments made in the claim petition.
12. Though the owners of the Maruthi Alto care and Accent car were made as parties in the claim petition as respondents 1 and 3 respectively, they neither filed their statement of objections nor they cross examined P.Ws. 1 and 2, denying the case of the petitioner.
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13. Both P.W.1 - wife of the deceased and R.W.1 working as Assistant Manager with the appellant - insurer of Maruthi Alto car, admittedly were not eye witnesses to the accident. As such, their evidence is not useful in deciding the issue relating to negligence.
14. The case of the claimants that, when deceased was walking on the footpath on N.H.4 road, near Petechamanhalli bye pass road, the driver of the Maruthi Alto car drove the same in a rash and negligent manner and lost control over the same and dashed against the deceased and then proceeded further and dashed against the Accent car which was parked on the left side of the road, as a result, he sustained multiple grievous and fatal injuries and succumbed to the injuries, was corroborated by P.W.2 who was an eye witness to the accident.
15. The case of the insurer of Maruthi Alto car is that, at 6.45 p.m. on 05-09-2004, when the driver of the 14 Maruthi Alto car was driving the car carefully and cautiously on the left side of the road, near Petechamanahalli bye pass road, driver of the Accent car drove the same in a rash and negligent manner and in an attempt to over take the Maruthi Alto car, dashed against the right side hind portion of the Maruthi Alto car and dashed against the hind portion of the tractor- trailer which was suddenly stopped in the middle of the road, as a result, the driver of the Maruthi Alto car lost control over the vehicle and dashed against the deceased who came in between the Maruthi Alto car and the Accent car. This version of the insurer of Maruthi Alto car was not substantiated by examining either the driver or the owner of the Maruthi Alto car. Nothing was elicited from P.W.2 during his cross examination in favour of the insurer of Maruthi Alto car.
16. Complaint was lodged by the driver of the Accent car against unknown person and registration 15 number of the Maruthi Alto car was furnished and on the basis of subsequent information furnished by Dr. Kemparaju, second FIR was registered against the driver of the Accent car. The Police after investigating the case have filed charge sheet against the drivers of both Maruthi Alto car and Accent car. The contention of the appellant that the charge sheet was filed only against the driver of the Accent car is incorrect. Perusal of Motor Vehicle Accident Report, marked as Ex.P.5 would show that front right side shape, radiator and right side corner shape, steering front and rear wind glass, rear left side door of the Maruthi Alto car were damaged and the left side body and left rear wheel and all glass, indicator and front shape, indicator of the Accent car were damaged, further rear side wheel and `U' clamp of the tractor-trailer were shifted and turned.
17. Perusal of the averments made in the claim petition, evidence of P.W.2 - an eye witness to the 16 accident, certified copy of FIR, certified copy of second FIR, inquest report, spot mahazar, IMV report and charge sheet marked as Exs.P.1 to P.7 respectively, would show that the accident was occurred due to rash and negligent driving of the drivers of both Maruthi Alto car and Accent car and it would further show that the drivers of both the cars had equally contributed for the accident at the rate of 50% each. Therefore, finding of the Tribunal on negligence is modified accordingly, holding that the accident was occurred due to contributory negligence of the drivers of both Maruthi Alto car and Accent car at the rate of 50% each. Regarding quantum :
18. Claimant No.1 is the wife and claimants 2
and 3 are minor daughters of the deceased. Claimants though in their claim petition have stated that deceased by working as a mason under a contractor and by doing coconut business was earning Rs.150/- to Rs.200/- per 17 day, but P.W.1 in her evidence has stated that deceased by doing mason work was earning Rs.200/- per day. Claimants have not examined the contractor under whom deceased claimed to have been working as mason and no evidence was adduced regarding coconut business alleged to have been carried on by deceased and income derived from the said business. Therefore, considering the age of deceased as 40 years as per the post mortem report - Ex.P.6, the year of accident as 2004 and his avocation as daily wager, his income could be assessed at Rs.150/- per day and Rs.4,500/- per month. All the three claimants are dependent legal representatives of deceased. Therefore, the Tribunal was justified in deducting 1/3rd of the income of the deceased towards his personal expenses and taking the remaining 2/3rd as his contribution towards his family. Multiplier of `14' applied by the Tribunal based on the age of the deceased was also correct. So, loss of dependency would work out to Rs.5,04,000/- 18 (Rs.4,500/- x 2/3 x 12 x 14) and it is awarded as against Rs.3,36,000/- awarded by the Tribunal.
19. As per the latest judgment of the Hon'ble Supreme Court in the case of National Insurance Co.
Ltd. Pranay Sethi and others, reported in 2017 SCC online SC 1270 a sum of Rs.70,000/- (Rs.40,000/- towards loss of consortium in respect of first claimant, Rs.15,000/- towards loss of estate and Rs.15,000/- for transportation of dead body and funeral expenses) is awarded.
20. Thus, the claimants are entitled for the following compensation:
1) Loss of dependency Rs. 5,04,000/-
2) Conventional heads Rs. 70,000/-
_______________
Total Rs.5,74,000/-
Less compensation awarded by the
Tribunal Rs.3,76,000/-
Rs.1,98,000/-
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Liability :
21. Maruthi Alto car was insured with the appellant - insurer and policy was in force as on the date of accident, as evident from Ex.R.1 - insurance policy. Though the insurer of Maruthi Alto car got the owner of the Accent car impleaded as respondent No. 3 in the claim petition, nothing was stated as to whether the said vehicle was insured or not and whether policy was in force as on the date of accident or not.
22. It is needless to say, as per the law laid down by this Court and by the Hon'ble Supreme Court in cases where a person sustained injuries or died in a motor vehicle accident by involvement of more than one vehicle, the injured/claimant and the legal representatives of the deceased will be at liberty to recover compensation from the owner and insurer of any one of the vehicles. Accordingly, claimants are at liberty to recover compensation from the owner and 20 insurer of Maruthi Alto car. Accordingly the insurer of Maruthi Alto car has to deposit the entire compensation awarded and then recover 50% of the compensation from respondent No.3 - the owner of the Accent car.
Accordingly, both MFA and MFA CROB are allowed in part.
It is held that the accident was occurred due to contributory negligence of the drivers of both Maruthi Alto car and Accent car at the rate of 50% each.
The claimants are entitled for a total compensation of Rs.5,74,000/- as against Rs.3,76,000/- awarded by the Tribunal, with interest at 6% per annum from the date of claim petition till the date of its realisation.
The insurer and owner of Maruthi Alto car are jointly and severally liable to pay the above compensation amount awarded by this Court to the claimants.
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However, the insurer of the Maruthi Alto car is hereby directed to deposit the entire compensation amount of Rs.5,74,000/- awarded by this Court, with interest at 6% per annum from the date of claim petition till the date of deposit, within two months from the date of receipt of a copy of this judgment, after deducting the amount, if any, already deposited, with liberty to recover 50% of the compensation amount with proportionate interest from the third respondent - owner of the Accent car.
From the compensation amount of Rs.5,74,000/- Rs.1,00,000/- each with proportionate interest shall be deposited in FD in the name of the claimants in any nationalised or scheduled Bank for a period of 5 years in case of first claimant and two years in case of claimants 2 and 3, with a right of option to withdraw interest periodically and the remaining amount with 22 proportionate interest is ordered to be released in favour of the claimants equally immediately after deposit.
Amount in deposit is ordered to be transmitted to the Tribunal for disbursement in favour of the claimants in terms indicated hereinabove.
No order as to costs.
Sd/-
JUDGE MGN/-