Karnataka High Court
The Oriental Insurance Company Limited vs Sri Govindaiah on 7 February, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 2629 of 2018
C/W MFA No. 4938 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 2629 OF 2018 (MV-CD)
C/W
MISCELLANEOUS FIRST APPEAL NO. 4938 OF 2018 (MV-D)
IN MFA NO.2629/2018
BETWEEN:
THE ORIENTAL INSURANCE
COMPANY LIMITED
REGIONAL OFFICE,
NO.44/45, LEO SHOPPING COMPLEX,
RESIDENCY ROAD CROSS,
M.G.ROAD, BENGALURU-560001.
REP. BY ITS AUTHORIZED SIGNATORY.
Digitally signed ...APPELLANT
by JAI JYOTHI J (BY SRI. LAKSHMINARASAPPA, ADVOCATE FOR SRI. A M
Location: High VENKATESH, ADVOCATE (THROUGH VIDEO CONFERENCE)
Court of AND:
Karnataka
1. SRI GOVINDAIAH
S/O.LAKSHMANAPPA,
AGED ABOUT 58 YEARS,
2. SMT PREMA
W/O GOVINDARAJU,
AGED ABOUT 51 YEARS
BOTH ARE RESIDING AT
NO.1062, 3RD MAIN ROAD,
NGO S COLONY,
NEAR SHANKARANAGAR BUS STOP,
KAMALANAGAR,
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MFA No. 2629 of 2018
C/W MFA No. 4938 of 2018
BENGALURU-560079.
3. SRI MANJUNATH RAO
S/O M.SEENAN,
NO.25/12, 5TH CROSS,
SRINIVAS TEMPLE STREET,
MARUTHINAGARAM,
MADIWALA NEW EXTENSION,
BENGALURU-560068.
...RESPONDENTS
(BY SRI. K SHANTHARAJ, ADVOCATE FOR R1 & R2; R3-
SERVED-UNREPRESENTED)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:31.01.2018 PASSED IN MVC
NO.7048/2016 ON THE FILE OF THE 10TH ADDITIONAL JUDGE,
COURT OF SMALL CAUSES, BENGALURU, AWARDING
COMPENSATION OF RS.28,52,400/- WITH INTEREST AT 9%
P.A. FROM THE DATE OF PETITION TILL REALISATION.
IN MFA NO.4938/2018
BETWEEN:
1. GOVINDAIAH
S/O. LAKSHMANAPPA,
AGED ABOUT 58 YEARS,
2. PREMA
W/O. GOVINDARAJU,
AGED ABOUT 51 YEARS,
BOTH ARE R/AT. NO.1062,
3RD MAIN ROAD, NGOS COLONY, NEAR
SHANKARNAGAR BUS STOP,
KAMALANAGAR, BENGALURU - 560079.
...APPELLANTS
(BY SRI. SHANTHARAJ K., ADVOCATE)
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MFA No. 2629 of 2018
C/W MFA No. 4938 of 2018
AND:
1. THE ORIENTAL INSURANCE
COMPANY LIMITED
REGIONAL OFFICE,
BY ITS REGIONAL MANAGER,
NO.44/L45, LEO SHOPPING COMPLEX,
RESIDENCY ROAD, CROSS,
M.G. ROAD, BENGALURU - 560001.
2. MANJUNATH RAO
S/O M. SEENAN,
AGED MAJOR,
RESIDING AT NO.25/12,
5TH CROSS,
SRINIVAS TEMPLE STREET,
MARUTHINAGARA,
MADIWALA NEW EXTENSION,
BENGALURU - 560068.
...RESPONDENTS
(BY SRI. LAKSHMINARASAPPA, ADVOCATE FOR SRI. A.M.
VENKATESH, ADVOCATE FOR R1; V/O DT:18/4/22 NOTICE TO
R2 IS D/W)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED31.01.2018 PASSED IN MVC
NO.7048/2016 ON THE FILE OF THE 10TH ADDITIONAL JUDGE,
COURT OF SMALL CAUSES, BENGALURU (SCCH-16), PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALs, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 2629 of 2018
C/W MFA No. 4938 of 2018
JUDGMENT
These appeals are filed under Section-173(1) of the Motor Vehicles Act 1988 (hereinafter referred to as 'MV Act' for brevity) calling in question the judgment and award dated 31.01.2018, passed in M.V.C.No.7048/2016, on the file of the Small Causes and Motor Accident Claims Tribunal (SCCH-16) at Bengaluru (hereinafter referred to as 'the Tribunal' for brevity).
MFA No.4938/2018 is filed by the claimants seeking enhancement of compensation, as well as questioning apportionment of the negligence on the part of the deceased at 10%.
MFA No.2629/2018 is filed by the insurance company questioning the apportionment made by the Tribunal at 90:10 percent between the driver of the tempo and the deceased, by contending that the deceased is equally responsible for causing the accident and contending that 50% negligence is to be fastened on the deceased and -5- MFA No. 2629 of 2018 C/W MFA No. 4938 of 2018 praying to reduce the quantum of compensation awarded by the Tribunal.
Brief facts:
2. On 01.10.2016, at 11.20 p.m., the deceased namely Santhosh.G was riding a motorcycle bearing No.KA-02-JG-7662 on the BB road near IAF gate. At that time, the driver of the Lorry bearing No.KA-28-B-186 drove the same in a rash and negligent manner and hit against the motorcycle of the deceased from back side. As a result, he sustained grievous injuries. Immediately, he was shifted to Profile Hospital, but he succumbed to the injuries while taking treatment on 02.10.2016.
3. Hence, a claim petition was filed by the legal heirs under Section-166 of the M.V. Act, claiming compensation for the deceased. The Tribunal on appreciating the materials on record, allowed the claim petition in part, and awarded a compensation of Rs.28,52,400/-, along with interest at 9% per annum from -6- MFA No. 2629 of 2018 C/W MFA No. 4938 of 2018 the date of petition till the date of realisation. The Tribunal held respondent No.1 - insurance company therein, liable to pay the compensation. The Tribunal fastened 10% negligence on the deceased and 90% negligence on the part of the driver of the offending Lorry.
4. Heard arguments of the learned counsel for the appellants-claimants and the learned counsel for respondent No.1 - insurance company and perused the materials on record.
REGARDING NEGLIGENCE :
5. The learned counsel for the insurance company submitted that the deceased was only holding a Learner's License to drive the motorcycle. Therefore, the deceased also contributed rash and negligence. Hence, prays to fasten some contributory negligence on the part of the deceased and also submitted that the monthly income taken by the Tribunal is on higher side. Therefore, prays to reduce the same.-7-
MFA No. 2629 of 2018 C/W MFA No. 4938 of 2018
6. On the other hand, the learned counsel for the claimants submitted that the deceased was riding motor cycle ahead of the offending lorry and the lorry dashed motor cycle from behind and then the wheels of the lorry ran over the deceased. Therefore, the deceased was not at all rash and negligence. Just because the deceased was holding the Learner's License that is not contributory negligence on the part of the deceased. Therefore, submitted that the lorry driver was 100% rash and negligent in driving the lorry and causing the accident.
7. Further, submitted that the quantum of the compensation awarded by the Tribunal is on lower side.
Therefore, prays for enhancement of the compensation.
8. From the evidence on record, it is proved that the accident was caused on 01.10.2016 on Bengaluru- Ballari Road near Indian Air Force gate. The road on which the accident has occurred is within the city limits. The lorry was going behind the motorcycle, the lorry dashed -8- MFA No. 2629 of 2018 C/W MFA No. 4938 of 2018 the motorcycle from behind and the deceased fell down on the left side and the motor cycle fell on the right side and then the rear wheel of the lorry ran over the deceased. In this way the accident caused, which is revealed from the complaint, FIR and charge-sheet material. Just because the deceased was holding a Learner' License it cannot be said that the deceased contributed to the accident. Therefore, considering the scenario of the accident as discussed above and also in detail discussed by the Tribunal, it is held by that the driver of the lorry was 100% negligent for causing the accident. REGARDING QUANTUM OF COMPENSATION:
9. The Tribunal has awarded compensation as follows:
Loss Dependency : Rs. 28,22,400/- Loss of Estate & Funeral Expenses : Rs. 30,000/- TOTAL : Rs. 28,52,400/- -9- MFA No. 2629 of 2018 C/W MFA No. 4938 of 2018
10. The deceased was working as a Team Leader in GVK and PERCOS company and earning Rs.25,000/- per month and was aged 31 years as on the date of the accident and was a bachelor. Previously, the deceased was working as a Team Leader in GVK EMRI and earning Rs.13,000/- per month after he resigned and he joined PERCOS India Private Limited as Territory Manager and earning Rs.21,000/- per month. Exhibit-P12 and Exhibit- 18 go to show that a sum of Rs.20,300/- has been credited to the account of the mother of the deceased, as by that time he was no more. Exhibit-P20, is Form No.16(a) letter issued by the company wherein the basic salary of the deceased is shown as Rs.15,010/- and other allowance is shown as Rs.90/-. Therefore, the total salary and emoluments received by the deceased is Rs.20,100/-.
11. PW-2 is Area Manager of GVK EMRI Institute, in which the deceased was serving as a Territory Manager. After giving resignation to GVK EMRI Institute the deceased joined PERCOS and within one month of joining
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MFA No. 2629 of 2018C/W MFA No. 4938 of 2018 the new company, the deceased met with the accident and died. Therefore, the claimants have proved that the deceased was working as a Territorial Manager with a salary of Rs.20,300/-. The Tribunal has held the monthly income of deceased at Rs.21,000/- which is correct and hence kept intact. The Tribunal committed error in adding 40% of income, but the deceased was having fixed salary in a company and a job is a permanent in nature. Therefore, 50% of the monthly income is to be added towards 'loss of future prospects in life' as per the judgment of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi1. The deceased was a bachelor, therefore 50% of his salary is to be deducted towards 'living and personal expenses'. Therefore, the compensation towards 'loss of dependency' is re-assessed and quantified as follows:
Rs.21,000 + 10,500 (50% of 21,000) x 50% x 16 x 12 = Rs.30,24,000/-
1 (2017) 16 SCC 680
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C/W MFA No. 4938 of 2018
12. The Tribunal has committed error in not awarding compensation 'Loss Of Consortium and Love And Affection'. Therefore, as per the judgment of the Hon'ble Apex Court in the cases of Magma General Insurance Co. Limited v. Nanu Ram & Others2 and in the case of National Insurance Co. Ltd. Vs. Pranay Sethi3, the claimants being the parents of the deceased are entitled to Rs.40,000/- each under the head 'Loss Of Consortium', along with 10% escalation. Accordingly, Rs.88,000/- (Rs.40,000 x 2 + 10%) is awarded under the head 'Loss Of Consortium including Loss Of Love And Affection'.
13. Further, a compensation of Rs.15,000/- each is awarded under the head 'Loss Of Estate' And 'Funeral And Transportation' respectively, along with 10% escalation. Therefore, Rs.33,000/- (Rs.15,000 x 2 + 10%) towards 'Loss Of Estate' And 'Funeral And Transportation'.
22018 ACJ 2782 3 (2017) 16 SCC 680
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MFA No. 2629 of 2018C/W MFA No. 4938 of 2018
14. Thus, in all the appellants/claimants are entitled for enhanced compensation as follows:
Loss Dependency : Rs. 30,24,000/-
Rs.21,000 + 10,500 (50% of 21,000) x 50% x 16 x 12 Loss of Consortium : Rs. 88,000/-
(Rs.40,000 x 2 + 10%) Loss of Estate : Rs. 16,500/- Funeral and Transportation : Rs. 16,500/- Expenditure TOTAL : Rs. 31,45,000/-
15. Therefore, the appellants-claimants are entitled for compensation of Rs.31,45,000/- as against Rs.28,52,400/-. The appellants - claimants are entitled for an additional compensation of Rs.2,92,600/- (Rs.31,45,000 - Rs.28,52,400) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal. However, the claimants are not entitled for interest for 41 days. The Insurance Company is directed to deposit the amount of total compensation within Eight
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MFA No. 2629 of 2018C/W MFA No. 4938 of 2018 Weeks from the date of receipt of the certified copy of this judgment.
16. Accordingly, I pass the following:
ORDER i. MFA No.4938/2018 filed by the claimants is Allowed in Part.
ii. MFA No.2629/2018 filed by the insurance company is Allowed in Part iii. The impugned judgment and award dated 31.01.2018, passed in M.V.C.No.7048/2016, on the file of the Small Causes and Motor Accident Claims Tribunal (SCCH-16) at Bengaluru is modified to the aforesaid extent.
iv. The driver of the offending lorry bearing No.KA-
28-B-186 was 100% negligent for causing the accident. The appellants - claimants are
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MFA No. 2629 of 2018C/W MFA No. 4938 of 2018 entitled for 100% compensation awarded as above.
v. The appellants - claimants are entitled for an additional compensation of Rs.2,92,600/- (Rs.31,45,000 - Rs.28,52,400) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal. However, the claimants are not entitled interest for 41 days.
vi. The amount in deposit shall be transmitted to the Tribunal forthwith.
vii. Insurance company shall pay the compensation to the appellants/claimants.
viii. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.
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MFA No. 2629 of 2018C/W MFA No. 4938 of 2018 ix. Draw award accordingly.
x. No order as to costs.
Sd/-
JUDGE
JJ
List No.: 1 Sl No.: 25