Karnataka High Court
M/S Liberty Videocon Gen Ins Co Ltd vs Ram Sakal Mishra on 12 July, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC:26999
MFA No. 7777 of 2015
C/W MFA No. 4016 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 7777 OF 2015
(MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 4016 OF 2015
(MV-D)
IN MFA NO. 7777/2015
BETWEEN:
1. SRI. RAM SAKAL MISHRA,
S/O. LATE JAGADISH MISHRA,
AGED ABOUT 44 YEARS.
2. SMT. NIRMALA DEVI,
Digitally signed by
NANDINI R
Location: HIGH
W/O RAM SAKAL MISHRA,
COURT OF
KARNATAKA AGED ABOUT 41 YEARS,
BOTH ARE R/AT
NO.23,THRAKIYA POST,
NAGAR UTTARI P.S. (CHITBISHRAM),
PIPARDIH CHITBISHRAEN,GHARWA,
JHARKHAND-822 121.
AND ALSO R/O
H.NO.29, BAULLYA ,BAILLA VILLAGE,
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NC: 2024:KHC:26999
MFA No. 7777 of 2015
C/W MFA No. 4016 of 2015
DHRKI PAIN & SUFFERINGS, TEH RAMKANDA,
GARHWA DISTRICT.
...APPELLANTS
(BY SRI. GURUDEV PRASAD K T., ADVOCATE)
AND:
1. M/S. LIBERTY VIDEOCON GE.INS.CO.LTD.,
MOTOR CLAIMS HUB,
NO.22,UNIT NO.302, 3RD FLOOR,
PRESTIGE KADA,RICHMOND ROAD,
BANGALORE-560 025.
2. M/S. NAGARJUNA CONSTRUCTION CO.LTD.,
BANGALORE ELEVATED HIGHWAY PROJECT,
NO.16,2ND CROSS,MUNISWAMAPPA LAYOUT,
BOMMANAHALLI, HOSUR ROAD,
BANGALORE-560 066.
...RESPONDENTS
(BY SRI. O MAHESH, ADVOCATE FOR RESPONDENT NO.1)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 17/3/2015 PASSED
IN MVC NO.1652/2014 ON THE FILE OF THE XV
ADDITIONAL JUDGE, COURT OF SMALL CAUSES, & MACT,
MAYO HALL UNIT, BANALORE (SCCH-19), PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
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NC: 2024:KHC:26999
MFA No. 7777 of 2015
C/W MFA No. 4016 of 2015
IN MFA NO. 4016/2015
BETWEEN:
1. M/S LIBERTY VIDEOCON GEN.INS.CO.LTD.,
MOTOR CLAIMS HUB,
NO.22, UNIT NO.302, 3RD FLOOR,
PRESTIGE KADA,
RICHMOND ROAD,
BANGALORE - 560 025.
BY
CHIEF LITIGATION MANAGER,
LIBERTY VIDEOCON GENERAL
INSURANCE CO.LTD.,
10TH FLOOR, TOWER A,
PEENINSULA BUSINESS PARK,
GANAPTRAO KADAM MARG,
LOWER PAREL, MUMBAI - 400 013.
...APPELLANT
(BY SRI. O MAHESH, ADVOCATE)
AND:
1. RAM SAKAL MISHRA,
S/O. LATE JAGADISH MISHRA,
AGED ABOUT 44 YEARS,
2. NIRAMALA DEVI,
W/O. RAM SAKAL MISHRA,
AGED ABOUT 41 YEARS,
R/O NO.23, THRAKIYA POST,
NAGAR UTTARI P.S. (CHITBISHRAM),
PIPARDIH CHITIBSHRAEN GHARWA,
JHARKHAND - 822 121,
AND ALSO R/O, H.NO.29,
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NC: 2024:KHC:26999
MFA No. 7777 of 2015
C/W MFA No. 4016 of 2015
BAULLYA, BAILLA VILLAGE,
DHRKI PAIN & SUFFERINGS,
TEH RAMKAND GARHWA DISTRICT - 04.
3. M/S NAGARJUNA CONSTRUCTION CO.LTD.,
BANGALORE ELEVATE HIGHWAY PROJECT,
NO.16, 2ND CROSS, MUNISWAMAPPA LAYOUT,
BOMMANAHALLI, HOSUR ROAD,
BANGALORE -560 066.
...RESPONDENTS
(BY SRI. K.T GURUDEV PRASAD, ADVOCATE FOR R1 AND
R2 V/O DATED 04.06.2015 NOTICE TO R3 DISPENSED
WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 17.03.2015 PASSED
IN MVC NO. 1652/2014 ON THE FILE OF THE XV
ADDITIONAL JUDGE, COURT OF SMALL CAUSES,
MAYOHALL UNIT, MACT, BENGALURU, AWARDING A
COMPENSATION OF RS.10,05,000/- WITH INTEREST @
6% P.A FROM THE DATE OF PETITION TILL REALIZATION.
THESE APPEALS, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA Nos. 7777/2015 and 4016/2015 are filed under Section 173(1) of the Motor Vehicles Act, 1988, -5- NC: 2024:KHC:26999 MFA No. 7777 of 2015 C/W MFA No. 4016 of 2015 (hereinafter referred to as 'MV Act' for brevity) challenging the judgment and award dated 17.03.2015 passed in MVC No. 1652/2014, on the file of the Motor Accident Claim Tribunal and XV Additional Judge, Court of Small Causes, Mayo Hall Unit, Bangalore (SCCH-19) (hereinafter referred to as 'the Tribunal' for brevity).
2. MFA No.7777/2015 is filed by the claimants for seeking enhancement of compensation and MFA No.4016/2015 is filed by the insurance company challenging the liability fixed on the insurance company to pay compensation.
3. The factum of accident, the death of deceased and coverage of insurance are not in dispute.
4. Heard the arguments from both sides and perused the records.
5. Brief facts of the case are as under:
It is the case of the claimant that on 22.01.2014, at about 9.30 a.m. when the deceased pedestrian was -6- NC: 2024:KHC:26999 MFA No. 7777 of 2015 C/W MFA No. 4016 of 2015 crossing the road near outer ring road, Hennur Fly over junction Bangalore and at that time one Hydra Crane bearing registration No. KA-51-N-5834 driven by its driver with high speed and in a rash and negligent manner dashed against the deceased, due to which, the deceased sustained grievous injuries and on the way to the hospital, he died. Therefore, the parents have filed claim petition and the Tribunal after considering evidence on record, awarded compensation of Rs.10,05,000/- along with interest at 6% per annum from the date of the petition till realization, making the Insurance Company liable to pay compensation.
6. The learned counsel for the claimant submitted that the quantum arrived at by the Tribunal is not correct since it is very meager and therefore prays for enhancement of the compensation. On the other hand, the learned counsel for the insurance company submitted that the deceased was an employee of the Second respondent/Company. Therefore, whatever compensation -7- NC: 2024:KHC:26999 MFA No. 7777 of 2015 C/W MFA No. 4016 of 2015 is granted as per provisions of Employees Compensation Act, 1923. Further, it is submitted that the driver is necessary party but was not made as party. Hence, the petition is liable to be dismissed for non-joinder of necessary party and also raised various grounds regarding Sections 135 and 134 of the Motor Vehicle Act, 1988 and thus, prayed to allow the appeal filed by Insurance Company and to set aside the Judgment and award passed by the Tribunal.
7. The Tribunal has awarded the compensation under various heads as follows:
Particulars Awarded by
the Tribunal
Loss of dependency Rs. 9,45,000-00
Loss of love and affection and estate Rs. 20,000-00 Expenses incurred on Transportation Rs. 40,000-00 of Dead Body and Funeral and Obsequies Expenses TOTAL Rs. 10,05,000-00
8. The Tribunal has fastened the liability on the insurance Company to pay compensation. -8-
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9. The father of the deceased has given the evidence as PW-1 and stated that the deceased was working in second respondent/Company by receiving salary of Rs.10,000/- per month but, considering the place of accident is concerned, the accident has occurred on the near outer ring road, Hennur Fly over junction Bangalore, while the deceased was crossing the road on pedestrian crossing. Just because the deceased was an employee of the second respondent/Company and the accident has taken place outside the premises of the Company, then, the compensation granted as per the Employees compensation Act, 1923, cannot be accepted, as it is a clear case of Motor Vehicular Accident Case as the accident that has taken place outside the premises of the second respondent/Company. Therefore, the compensation has to be determined under the provisions of the Motor Vehicles Act, 1988, but not under the Employees Compensation Act, 1923. Here, just because the deceased was working in the second respondent/Company and accident has taken place outside the premises of the -9- NC: 2024:KHC:26999 MFA No. 7777 of 2015 C/W MFA No. 4016 of 2015 Company on the road, then the compensation can be granted on the relationship of employer and employee is not correct. Where the deceased was working under the employment of second respondent and if any accident has taken place in the premises of company out of and in the course of employment then the provisions of the Employee Compensation Act, is applicable. But, the deceased died outside the premises of the Company on the public road/ring road, Hennur Fly over junction Bangalore, Therefore, the case has to be considered on the base of the Motor Vehicular accident by applying provisions of the Motor Vehicles Act, 1988. Therefore, there is no merit found in the arguments of the counsel for the Insurance Company.
10. The driver is not a necessary party since the owner is made liable and the owner is vicariously liable to pay compensation as awarded by the Tribunal. Therefore, the driver is not a necessary party and just because the driver is not made party, the petition cannot be rejected.
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11. Coming to the question of quantum of compensation awarded by the Tribunal, it is seen from the records that the deceased was aged about 21 years old at the time of accident. The accident has occurred in the year 2014. In the absence of proof of income, the notional income is taken at Rs.8,500/- per month, 40% of income is added towards 'Loss of Future Prospects in Life', i.e., Rs.3,400/- (Rs.8,500/-X40%). Therefore, the monthly income of the deceased is taken at Rs.11,900/- (Rs.8,500/- + 40%). Since, the deceased was a bachelor, 50% of deceased income is deducted towards personal and living expenses. The appropriate multiplier is '18' and the contribution to the family is taken as Rs.5,950/- per month. Therefore, the compensation under the head 'Loss of Dependency' is recalculated and quantified as follows:
Rs.11, 900/-X50%X18X12= Rs.12, 85,200/-.
Accordingly, compensation of Rs.12,85,200/- is awarded under the head 'Loss of dependency'.
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12. There are two claimants. Therefore, loss of consortium is awarded at Rs.40,000/- each, for the claimants with escalation of 10%. Hence, compensation of Rs.88,000/-(Rs.44,000/- + 10% X 2) is awarded under the head 'loss of consortium'.
13. The compensation of Rs.15,000/- is awarded under the head 'loss of estate' with 10% escalation. Accordingly, sum of Rs.16,500/-(Rs.15,000/- + 10%).
14. The compensation of Rs.15,000/- is awarded under the head 'funeral expenses' with 10% of escalation. Accordingly, sum of Rs.16,500/-(Rs.15,000/- + 10%).
15. Thus, the total compensation determined by this Court as follows:
Sl.No. Particulars Awarded by this Court
01. Loss of dependency Rs. 12,85,200-00
02. Loss of consortium Rs. 88,000-00
03. Loss of estate Rs. 16,500-00
04. Funeral expenses Rs. 16,500-00 TOTAL Rs. 14,06,200-00
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16. In view of the aforesaid observations, the judgment and award passed by the Tribunal is modified. The claimants are entitled for a total enhanced compensation of Rs.14,06,200/-as against Rs.10, 05,000/- awarded by the Tribunal. Hence, the appellants are entitled for an additional compensation of Rs.4,01,200/- (Rs.14,06,200 -10,05,000) along with interest at the rate of 6% per annum from the date of petition till the date of realization in addition to what has been awarded by the Tribunal.
17. Accordingly, I proceed to pass the following:
ORDER i. MFA No. 7777/2015 is allowed-in-part.
ii. MFA No. 4016/2015 is dismissed.
iii. The impugned judgment and award dated 17.03.2015 in MVC No. 1652/2014, on the file of the Motor Accident Claim Tribunal and XV Additional Judge, Court of Small Causes, Mayo Hall Unit, Bangalore (SCCH-19), is hereby modified holding the claimant is
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NC: 2024:KHC:26999 MFA No. 7777 of 2015 C/W MFA No. 4016 of 2015 entitled for enhanced compensation of Rs.4,01,200/- along with interest at the rate of 6% per annum from the date of petition till its realization, in addition to what has been awarded by the Tribunal.
iv. The amount in deposit shall be transferred to the Tribunal forthwith.
v. 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 vi. No order as to costs.
vii. Draw award accordingly.
Sd/-
JUDGE BKN List No.: 1 Sl No.: 19