Karnataka High Court
Master Preetam S/O Sanjiveev Kalluri vs The Divisional Controller on 5 July, 2018
Author: P.S.Dinesh Kumar
Bench: B.V. Nagarathna, P.S.Dinesh Kumar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5th DAY OF NOVEMBER 2018
PRESENT
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
MISCELLANEOUS FIRST APPEAL No.102869 OF 2015
C/W MISCELLANEOUS FIRST APPEAL NO.100597 OF 2016 (MV)
IN MFA NO.102869 OF 2015
BETWEEN:
THE NATIONAL INSURANCE CO. LTD.
DIVISIONAL OFFICE RAMDEV GALLI
BELAGAVI
REP BY DEPUTY MANAGER
NATIONAL INSURANCE CO. LTD.,
REGIONAL OFFICE KUSUGAL ROAD, HUBLI.
...APPELLANT
(BY SRI. M.K. SOUDAGAR, ADVOCATE)
AND:
1. SMT.ANNAPURNA
W/O RAMESH SANGANAGOUDAR
AGE:42 YEARS, OCC:HOUSEHOLD WORK
R/O:CHIWATAGUNDI
TQ:BAILHONGAL, DIST:BELAGAVI
2. MISS.GEETA D/O RAMESH SANGANAGOUDAR
AGE:21 YEARS, OCC:STUDENT
2
R/O:CHIWATAGUNDI, TQ:BAILHONGAL
DIST:BELAGAVI
3. MISS.SHRIDEVI
D/O RAMESH SANGANAGOUDAR
AGE:19 YEARS, OCC:STUDENT
R/O:CHIWATAGUNDI, TQ:BAILHONGAL
DIST:BELAGAVI
4. MISS.SHOBHA,
D/O RAMESH SANGANAGOUDAR
AGE:15 YEARS, OCC:STUDENT
R/O:CHIWATAGUNDI, TQ:BAILHONGAL
DIST:BELAGAVI
SINCE THE RESPONDENT NO.4
IS MINOR SHE IS REP BY HER
NATURAL GUARDIAN MOTHER
RESPONDENT NO.1
5. SHRI.SHIVAPPA BASAPPA SANGANAGOUDAR
AGE:78 YEARS, OCC:NIL
R/O:CHIWATAGUNDI, TQ:BAILHONGAL
DIST:BELAGAVI
6. SMT.SHARAWWA
W/O SHIVAPPA SANGANAGOUDAR
AGE:72 YEARS, OCC:NIL
R/O:CHIWATAGUNDI, TQ:BAILHONGAL
DIST:BELAGAVI
7. SHRI.GANGADHAR S/O ANNAPPA WALI
AGE:MAJOR, OCC:CONSULTANT
R/O:NEELAGAR GALLI
BAILHONGAL
...RESPONDENTS
(BY SRI.HANUMANT R. LATUR, ADV. FOR R1 TO R3 AND
R5 AND R6.
. R4 MINOR REP. BY R1. R7 SERVED)
3
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES
ACT AGAINST THE JUDGMENT & AWARD DATED
12.06.2015 PASSED IN MVC.NO.756/2013 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, BAILHONGAL,
AWARDING THE COMPENSATION OF RS.16,95,600/- WITH
INTEREST AT THE RATE OF 9% P.A. FROM THE DATE OF
PETITION TILL DEPOSIT.
IN MFA NO.100597 OF 2016
BETWEEN
1. SMT.ANNAPURNA
W/O RAMESH SANGANAGOUDAR,
AGE: 43 YEARS,
OCC: HOUSE HOLD WORK,
R/O: CHIVATAGUNDI,
TAL: BAILHONGAL, DIST: BELAGAVI.
2. MISS GEETA D/O RAMESH SANGANAGOUDAR,
AGE: 22 YEARS, OCC: STUDENT,
R/O: CHIVATAGUNDI, TAL: BAILHONGAL,
DIST: BELAGAVI.
3. MISS.SHRIDEVI
D/O RAMESH SANGANAGOUDAR
AGE: 20 YEARS, OCC: STUDENT,
R/O: CHIVATAGUNDI,
TAL: BAILHONGAL, DIST: BELAGAVI.
4. MISS SHOBHA
D/O RAMESH SANGANAGOUDAR,
AGE: 16 YEARS, OCC: STUDENT,
R/O: CHIVATAGUNDI, TAL: BAILHONGAL,
4
DIST: BELAGAVI,
SINCE MINOR, R/BY M/G HER NATURAL MOTHER
APPELLANT NO.1.
SMT.ANNAPURNA
W/O RAMESH SANGANAGOUDAR,
AGE: 43 YEARS,
OCC: HOUSE HOLD WORK,
R/O: CHIVATAGUNDI, TAL: BAILHONGAL,
DIST: BELAGAVI.
5. SHIVAPPA S/O BASAPPA SANGANAGOUDAR,
AGE: 79 YEARS, OCC: NIL,
R/O: CHIVATAGUNDI, TAL: BAILHONGAL,
DIST: BELAGAVI.
6. SMT.SHARAWWA
W/O BASAPPA SANGANAGOUDAR,
AGE: 73 YEARS, OCC: NIL,
R/O: CHIVATAGUNDI,
TAL: BAILHONGAL, DIST: BELAGAVI.
... APPELLANTS
(By Sri. HANAMANT R. LATUR, ADVOCATE)
AND
1. SHRI.GANGADHAR S/O ANNAPPA WALI,
AGE: 50 YEARS, OCC: TAX CONSULTANT,
R/O: NEELAGAR GALLI, BAILHONGAL,
TQ: BAILHONGAL, DIST: BELAGAVI.
2. THE NATIONAL INSURANCE COMPANY LTD.,
RPTD BY DIVISIONAL MANAGER,
DIVISIONAL OFFICE, RAMADEV GALLI,
BELAGAVI, DIST: BELAGAVI.
... RESPONDENTS
(By Sri. M.K. SOUDAGAR, ADVOCATE FOR R2.
R1 SERVED)
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THIS MFA IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND
AWARD DATED 12.06.2015 PASSED IN MVC NO.756 OF
2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, BAILHONGAL, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ADMISSION THIS
DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT
Though these appeals are listed for admission, with the consent of the learned counsel on both sides, they are heard finally.
2. MFA No.102869 of 2015 is filed by the insurance company while MFA No.100597 of 2016 is filed by the claimants before the Tribunal, both assailing the judgment and award passed by the learned Senior Civil Judge and Additional Motor Accident Claims Tribunal, 6 Bailhongal, (hereinafter referred to as 'Tribunal' for the sake of convenience) in MVC No.756 of 2013 dated 12.06.2015.
3. For the sake of convenience, the parties shall be referred to in terms of their status before the Tribunal.
4. The claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'Act' for the sake of brevity), seeking compensation on account of the death of Ramesh, son of Shivappa Sanganagoudar, in a road traffic accident that occurred on 06.01.2013. The deceased was the husband of the first claimant, father of claimant Nos.2 to 4 and son of claimant Nos.5 and 6. According to the claimants, on 06.01.2013, at about 3.35 pm, Ramesh and his wife were returning towards their native place at Chivatagundi after visiting Murarji Desai School, Bailhongal, wherein their daughter was studying, on a TVS Excel Motor Cycle bearing registration No.KA-24/Q-2739, at that time, Ramesh was riding the motorcycle and claimant No.1 was 7 the pillion rider. When they came near Bailhongal- Sampagaon road near Bailwad Warthi cross, at that time, the driver of the Maruti Car bearing No.KA-49/M-1629 came from Bailhongal towards Sampagaon in a rash and negligent manner and dashed against the motorcycle. As a result of the impact, Ramesh, rider of the motorcycle, sustained fatal injuries. He was shifted to Dr. Mahantshetti Hospital, Bailhongal in the said Maruti car where he took first aid and thereafter was shifted to KLE hospital, Belgaum, for treatment. But in spite of treatment, he succumbed to the injuries on 08.01.2013. Postmortem was conducted and his dead body was brought to their village and funeral rites and obsequies were performed. It is contended that the claimants have spent huge amount towards his medical treatment. The claimants have further contended that on account of loss of an earning member of the family, they have been constrained to file the claim petition seeking compensation on various heads.
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5. The claimants have contended that the deceased Ramesh, apart from owning agricultural lands, owned a harvesting machine and was earning Rs.1,00,000/- per annum. He was having a flour mill and was earning Rs.10,000/- per month. On account of the sudden death, they have left without any succour.
6. In response to the claim petition, the first respondent-owner of the motor vehicle appeared through his counsel and filed statement of objections denying all the material averments made in the claim petition. It was further admitted that at the time of the accident, the Maruti Car was validly insured with the second respondent. That there was no negligence on the part of the driver of the Maruti Car and therefore payment of compensation would not arise.
7. The second respondent-insurance company appeared through their counsel and filed statement of objections denying the averments made in the claim petition and contended that the compensation sought by 9 the claimants is exorbitant and also not liable to be paid. It is the specific case of the insurance company that the driver of the Maruti car was driving the same in a moderate speed following all traffic rules and regulations and that the motorcycle was driven by the deceased Ramesh and without giving any indication, he took a right turn and in that process, the car came in contact with the motorcycle, as a result, he fell down and sustained injuries. That the accident occurred on account of the negligence on the part of the rider of the motorcycle and therefore, the claim petition may be dismissed. If at all, the Tribunal comes to the conclusion that there was any negligence on the part of the driver of the Maruti Car, it is only to an extent of 30% and not beyond that. In the circumstances, the insurance company sought for dismissal of the claim petition.
8. On the basis of the above pleadings, the Tribunal raised the following issues for its consideration:
" 1. Whether the petitioner proves that on 01/01/2013 at about 3.35 p.m. on Bailhongal-10
Sampagaon road near Bailwad warthi cross, when the petitioner No.1 and her husband deceased Ramesh Sanganagoudar were returning to Chivatagundi after attending their daughter, who is studying at Muraji Desai School, Bailhongal on a Motorcycle bearing Reg.No.KA-24/Q-2739. when they came near the spot of accident, at that time driver of the Maruti Car bearing Reg. No.KA-49/M-1629 came from Bailhongal towards Sampagon in a very high speed with rash and negligent manner so as to endanger the human life and personal safety of others and dashed to the Motorcycle thereby caused accident and in the accident Mr. Ramesh Sanganagoudar had sustained grievous injuries on his vital parts of the body. Immediately after the accident, he was shifted to Dr Mahantshetti Hospital, Bailhongal then at KLES Hospital, Belgaum, but due to the accidental injuries he succumbed on 8/01/2013 in the Hospital?
2. Whether the petitioner proves that, the driver of offending vehicle had valid and effective driving license, at the time of accident?
3. Whether the petitioner is entitled for compensation, If so, what extent and from whom?
4. What order or Award?"11
9. In support of their case, claimants examined two witnesses and produced 77 documents which were marked as Exs.P-1 to P-77 whereas the insurance company examined its officer as RW-1 and produced a copy of the insurance policy as Ex.R-1. On the basis of the said evidence, the Tribunal answered issue Nos.1 and 2 in the affirmative, issue No.3 partly in the affirmative and allowed the claim petition in part by awarding compensation of Rs.16,95,600/- with interest at the rate of 9% per annum from the date of claim petition till disposal. Directions were also issued regarding apportionment as well as deposit of compensation awarded by the Tribunal.
10. Being aggrieved by the said judgment and award, the claimants have sought enhancement of compensation while the insurance company has assailed the said judgment and award both on the question of negligence as well as on the question of quantum of compensation awarded by the Tribunal.
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11. We have heard learned counsel for the appellant-insurance company and learned counsel for the respondents-claimants and perused the material on record.
12. Learned counsel for the insurance company contended that the Tribunal was not right in fastening the entire liability on the driver of the Maruti car involved in the accident. He contended that the deceased Ramesh, rider of the motorcycle, took a sudden right turn without giving any indication to the driver of the Maruti Car proceeding behind the motorcycle. As a result, the Maruti car hit the motorcycle from behind resulting in causing injuries to Ramesh who died as a result of the accident. He submitted that the entire negligence is on the part of the rider of the motorcycle who suddenly turned towards right of the road without indicating to the vehicles coming behind and hence, on the question of negligence, this Court may reverse the finding and fasten the entire negligence on the rider of the motorcycle. 13
13. Learned counsel next contended that the award of compensation and the calculation thereof is incorrect. He submitted that the Tribunal has assessed the notional income of the deceased at the rate of Rs.12,000/- per month which is on the higher side. That in respect of an unskilled labour, for an accident which has occurred in the year 2013, notional income is assessed at the rate of Rs.7,000/- per month by this Court. But in the instant case, in the absence of there being any evidence, the notional income of the deceased has been assessed at Rs.12,000/- per month. He further submitted that having regard to the latest dictum of the Hon'ble Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi and others reported in AIR 2017 SC 5157, the award of compensation on conventional heads ought to be Rs.70,000/- only. But in the instant case, it has been awarded at the rate of Rs.1,50,000/- which is exorbitant. He, therefore, submitted that this Court may interfere with the matter and reduce the compensation awarded to the respondent/claimants.
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14. Per contra, learned counsel for the respondents-claimants contended that the Tribunal has not taken note of the future prospects and that in view of the latest judgment of the Hon'ble Supreme Court in Pranay Sethi, having regard to the age of the deceased being 50, 10% has to be added to the monthly income. If it is done so, the amount of compensation on the head of loss of dependency would be increased. He further submitted that on the other heads, this Court may not interfere with the matter, as there are six dependants and the Tribunal has awarded a just compensation under conventional heads as well as towards medical expenses.
15. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
" 1. Whether the Tribunal was justified in holding that the accident occurred on account of the negligence on the part of the driver of the motor vehicle as a result of which, Ramesh, the 15 rider of the motorcycle sustained serious injuries and died as a result of the same?
2. Whether the claimants are entitled to enhanced compensation? In other words, award of compensation calls for any reduction as claimed by the insurance company?"
16. On hearing learned counsel for the parties and on perusal of the material on record, it is noted that Ramesh died on account of the road traffic accident that occurred on 06.01.2013 at about 3.35 p.m. on Bailhongal- Sampagaon road near Bailwad warthi cross, has been established.
17. The first point is with regard to negligence attributed to the driver of the Maruti car. In order to prove the same, claimants have examined an eyewitness to the accident, who is none other than the widow of the deceased, who was the pillion rider of the motor cycle at the pertinent point of time, who has been examined as PW-1. She has deposed that the driver of the Maruti Car 16 drove the car in a rash and negligent manner and caused the death of her husband on account of the serious injuries sustained by him due to the impact of the accident, as the car hit the motorcycle on its hind portion. In support of their case, PW-1 has produced Ex.P.1 which is the certified copy of the complaint, Ex.P-2 is the certified copy of the FIR, Ex.P-4 is the certified copy of the spot panchanama, Ex.P-5 is the certified copy of the hand sketch, Ex.P-6 is the certified copy of the inquest panchanama, Ex.P-7 is the certified copy of the postmortem report and Ex.P-8 is the certified copy of the charge sheet. On considering the said documentary evidence, the Tribunal has held that the accident had occurred on account of the rash and negligence on the part of the driver of the Maruti car. It is noted that the police had filed charge sheet against the driver of Maruti Car which caused the accident. However, it is the contention of the learned counsel for the insurance company that the rider of the motorcycle, who is none other than the deceased Ramesh, was equally negligent inasmuch as without giving any indication, he took a right 17 turn and the driver of the Maruti car hit the motorcycle in the hind portion. In support of that specific contention, no document has been produced by RW-1. Even while cross- examining PW-1, only certain suggestions have been made with regard to the negligence attributed which have been clearly denied by her. As per Ex.P-5, which is the hand sketch prepared by the Investigating Officer reveals that the accident occurred on the extreme left side of Bailhongal-Sampagaon road. Therefore, it cannot be inferred at all that the rider of the motorcycle was trying to take a right turn without giving any indication to him and the Maruti car hit the motorcycle at its hind portion. In the circumstances, we hold that the Tribunal was right in fastening the entire negligence on the driver of the Maruti Car and therefore, point No.1 is answered against the insurance company.
18. So far as point No.2 is concerned, it is with regard to the award of compensation to the claimants. A 18 sum of Rs.16,95,600/- has been awarded in the following manner:
Sl.No. Head Amount
1 Loss of dependency Rs.14,97,600/-
2 Medical, conveyance and Rs.48,000/-
attendant
3 Loss of estate, loss of love and 1,50,000/-
care, loss of consortium,
transportation of dead body,
funeral and obsequies
Total Rs.16,95,600/-
19. The contentions of the learned counsel for the respective parties need not be reiterated. So far as loss of dependency is concerned, the Tribunal has assessed the notional income as Rs.12,000/- per month by taking into consideration the fact that the deceased was earning the said sum having regard to the fact that he had 3 acres 39 guntas of land wherein sugarcane was being grown as also income from other sources even though there was no categorical evidence to that effect. In the result, notional income is assessed at the rate of Rs.12,000/- per month. 19 Of course, learned counsel for the insurance company vehemently contended that the said sum is on the higher side and it ought to be reduced to Rs.10,000/- per month at least. We do not find any reason to do so and hence we retain Rs.12,000/- per month as the notional income of the deceased.
20. The next contention is with regard to deduction towards personal expenses of the deceased. According to the appellant-insurance company, 1/4th should be deducted and not 1/5th in terms of the dictum of the Hon'ble Supreme Court in the case of Sarla Verma and Ors. v. Delhi Transport Corporation and Anr (2009 ACJ 1298). There is force in the said submission and hence only 1/4th of the monthly income ought to be deducted.
21. Learned counsel for the insurance company has also contended that the award of Rs.1,50,000/- under the conventional heads is on the higher side and the same may be reduced. Having regard to the recent dictum of 20 the Hon'ble Supreme Court in Pranay Sethi (supra) wherein it has been observed that Rs.70,000/- ought to be awarded under the conventional heads, we reduce the award on conventional heads from Rs.1,50,000/- to Rs.70,000/-.
22. Per contra, learned counsel for the claimants has contended that an amount of Rs.12,000/- per month as notional income is meager and the same ought to be enhanced. He further submitted that in terms of the dictum of the Hon'ble Supreme Court in Pranay Sethi (supra), 10% of the monthly income must be added towards future prospects, which has not been done in the instant case. He further submitted that having regard to the number of claimants, there must be no reduction in awarding of compensation by this Court and that the award made by the Tribunal would call for enhancement.
23. We have noted that notional monthly income at Rs.12,000/-, has been assessed by the Tribunal. The said notional income would not call for any enhancement in 21 the absence of any evidence being produced by the claimants. In the circumstances, we retain Rs.12,000/- per month as notional income. However, having regard to the recent judgment of the Hon'ble Supreme Court in Pranay Sethi (supra), 10% of the notional income would have to be added towards future prospects. Therefore, the notional monthly income would be Rs.13,200/- (12,000+1,200). 1/4th of the said amount would have to be deducted towards personal expenses of the deceased and the applicable multiplier is 13, having regard to the age of the deceased for 50 years. In the circumstances, award of compensation under the head of loss of dependency would be Rs.15,44,400/-. In addition, compensation under conventional heads towards loss of consortium, loss of estate, loss of love and affection, transportation of dead body and funeral expenses would have to be awarded. The Tribunal has awarded Rs.1,50,000/-. But keeping in mind the judgment of the Hon'ble Supreme Court in Pranay Sethi (supra), compensation has to be reduced to Rs.70,000/- only. In 22 addition, Rs.48,000/- has to be awarded under medical expenses and other incidental charges. Thus, the total award of compensation would be as under:
Rs.
1. Towards loss of dependency 15,44,400/-
2. Towards conventional heads 70,000/-
3. Medical and incidental charges 48,000/-
--------------
Total 16,62,400/-
---------------
instead of Rs.16,95,600/- awarded by the Tribunal. The
aforesaid amount shall carry interest at the rate of 9% per annum from the date of claim petition till realization.
The amount in deposit before this Court is directed to be transmitted to the Tribunal. Learned counsel for the insurance company submitted that the award of 9% interest is on the higher side and that normally it is only 6%. The reason as to why the Tribunal has awarded 9% interest is on account of there being as many as six 23 claimants and therefore we affirm the rate of interest awarded by the Tribunal.
26. The Tribunal on awarding Rs.16,95,600/- has apportioned the compensation in the following manner:
"Petitioner No.1: Rs.8,47,800/- with accrued interest and costs.
Petitioner No.2: Rs.2,15,934/- with accrued interest and costs.
Petitioner No.3: Rs.2,15,933/- with accrued interest and costs.
Petitioner No.4: Rs.2,15,933/- with accrued interest and costs.
Petitioner No.5: Rs.1,00,000/- with accrued interest and costs.
Petitioner No.6: Rs.1,00,000/- with accrued interest and costs."
Since there is reduction in the said award by a sum of Rs.33,200/-, the said amount shall be deducted from the compensation awarded to claimant No.1 and it shall now be Rs.8,14,600/-. The specific amounts awarded to the other claimants is retained. Directions issued towards deposit and release of the amount by the Tribunal is not interfered by us.
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In the result, the appeals, filed by the insurance company as well as the claimants are disposed off in the aforesaid terms without any order as to costs.
Sd/-
JUDGE Sd/-
JUDGE kmv