Karnataka High Court
The Manager vs Smt Kumari on 25 September, 2020
Author: S. Sujatha
Bench: S. Sujatha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE MRS. JUSTICE S. SUJATHA
AND
THE HON'BLE MR. JUSTICE E.S. INDIRESH
MISCELLANEOUS FIRST APPEAL NO.7343 OF 2016 (MV)
a/w
MISCELLANEOUS FIRST APPEAL NOS.7344 OF 2016,
7345 OF 2016
In MFA No.7343 of 2016
BETWEEN
The Manager
Reliance General
Insurance Co. Ltd.,
No.28, 5th Floor
Centenary Building
M G Road Bengaluru-560 001.
Now represented by
Manager Legal
...Appellant
(By Smt. Padma S. Uttur a/w
Sri Ashok N Patil, Advocates)
AND
1. Smt. Kumari
W/o T Vasu
Aged about 41 years
Residing at No.2-6-3
Ward No.2,
2
M S Kurusamy Setti Street,
Kilathur (Post) Salem
Tamil Nadu - 636 303.
2. Ramegowda K K
S/o Kumaragowda
No.1 Venugopala Residency
5th Cross 3rd IBS Nagar
HAL Post
Bengaluru-560 017.
3. T Vasu
No.19/1421
Murugan Stores
Mariyamman Kovil Street
Kolathur,
Mettur Taluk
Salem
Tamil Nadu-636 303.
...Respondents
(By Shri Gopalakrishna N., Advocate for R-1;
Notice to R-2 is dispensed with)
This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicles Act, 1988 against the judgment and
award dated 01.09.2016 passed in MVC No.1147 of 2016 on the
file of the Member, Principal MACT, Bengaluru, awarding
compensation of Rs.38,24,177/- with interest at 9% per annum
from the date of petition till the realisation.
In MFA No. 7344 of 2016
BETWEEN
The Manager
Reliance General
Insurance Co. Ltd.,
No.28, 5th Floor
3
Centenary Building
M G Road Bengaluru-560 001.
Now represented by
Manager Legal
...Appellant
(By Smt. Padma S. Uttur a/w
Sri Ashok N Patil, Advocates)
AND
1. Yuvaraj P
S/o Chinnaswamy
Aged about 27 years
R/at No.27
Semmangkulipalayam
Maravatalayam Post
Kangayam Taluk
Tamil Nadu - 600 017.
2. Ramegowda K K
S/o Kumaragowda
No.1, Venugopala Residency
5th Cross, 3rd IBS Nagar
HAL Post
Bengaluru-560 017.
...Respondents
(By Shri Gopalakrishna N., Advocate for R-1;
Notice to R-2 is dispensed with)
This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicles Act, 1988 against the judgment and
award dated 01.09.2016 passed in MVC No.1148 of 2016 on the
file of the Member, Principal MACT, Bengaluru, awarding
compensation of Rs.1,00,000/- with interest at 9% per annum
from the date of petition till the realisation.
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In MFA No.7345 of 2016
BETWEEN
The Manager
Reliance General Insurance Co. Ltd.,
No.28, 5th Floor
Centenary Building
M G Road Bengaluru-560 001.
Now represented by
Manager Legal
...Appellant
(By Smt. Padma S Uttur a/w
Sri Ashok N Patil, Advocates)
AND
1. Dinesh Kumar S V
S/o Vadivel S S
Aged about 24 years
Residing at No.141
East Street, Solangapalyam
Pasur, Erode-638 154.
2. Ramegowda K K
S/o Kumaragowda
No.1, Venugopala Residency
5th Cross, 3rd IBS Nagar
HAL Post, Bengaluru-560 017.
...Respondents
(By Shri Gopalakrishna N., Advocate for R-1;
Notice to R-2 is dispensed with)
This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicles Act, 1988 against the judgment and
award dated 01.09.2016 passed in MVC No.1149 of 2016 on the
file of the Member, Principal MACT, Bengaluru, awarding
compensation of Rs.1,49,228/- with interest at 9% per annum
from the date of petition till realisation.
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These Miscellaneous First appeals coming on for hearing,
this day, INDIRESH J., delivered the following:
JUDGMENT
These appeals are arising out of same accident and the appellant-Insurance Company has urged the common question of law in the aforesaid appeals relating to liability and quantum of compensation awarded by the Tribunal and accordingly, these appeals are taken up together, and are disposed of by this common judgment.
2. These appeals are preferred by the appellant-Insurance Company against the judgment and award dated 1st September, 2016 passed in MVC No.1147, 1148 and 1149 of 2016 by the Member, Principal Motor Accident Claims Tribunal, Bangalore (for short, hereinafter referred to as 'Tribunal').
3. For the sake of convenience, the parties in these appeals are referred to as per their rank before the Tribunal.
4. The brief facts of the case for adjudication of these appeals are that, on 16th December, 2015 at about 12.00 mid night, the claimant in MVC No.1149 of 2016 was riding 6 motorcycle bearing registration No.TN-34-P-3679 along with pillion riders i.e. the claimant in MVC No.1148 and one Ganesh V. and when they reached Veerasandra Junction near Aqua Heights, Bangalore, at that time, the driver of Eicher vehicle bearing Registration No.KA-41/9716 came in high speed in a rash and negligent manner and took sudden turn without switching on the indicator and dashed against the motorcycle of the claimants. As a result of the same, the rider of the motorcycle and pillion riders sustained grievous injuries and immediately thereafter, they were shifted to Blossom Hospital, Bommanahalli, Bangalore. One of the injured, Ganesh V. succumbed to the injuries on 18th December, 2015 on account of the said accident. Claimant in MVC No.1147 of 2016 is the legal representative of the deceased-Ganesh V. It is the case of the claimants that the said accident had occurred on account of the negligent act on the part of the driver of the offending vehicle and pursuant to the same, Electronics City Police have filed First Information Report in Crime No.205 of 2015 under the provisions of Section 279, 338, 304(A) of the Indian Penal Code. Accordingly, MVC No.1147 of 2016 came to be filed by the Legal 7 Representative of the deceased-Ganesh V; and MVC No.1148 and 1149 of 2016 had been filed by the respective claimants seeking compensation for the injuries sustained by them in the road traffic accident. In pursuance of these claim petitions, the Tribunal has issued notices to the respondents and respondent No.1 in all the cases, had appeared before the Tribunal and has filed written statement denying the averments made in claim petition. Respondent No.2-Insurance Company has appeared and filed detailed written statement denying the averments made in the claim petition. It is the case of respondent No.2 that since three persons were proceeding on the motorcycle of which seating capacity is only two, and as such, the rider of the motorcycle has lost control over the vehicle and dashed to Eicher vehicle and thus invited the alleged accident. Accordingly, respondents are not liable to pay any compensation to the claimants and as such, sought for dismissal of the claim petition. Third respondent before the Tribunal has been served, unrepresented and accordingly placed ex-parte. 8
5. Based on the pleadings stated above, the Tribunal has framed common issues for its consideration. In order to prove their case, claimant in MVC No.1147 of 2016 was examined as PW1; claimant in MVC No.1148 of 2016 was examined as PW2 and claimant in MVC No.1149 of 2016 was examined as PW3 and they have produced and marked documents as Exhibits P1 to P39. Respondents have examined one witness as RW1. The Tribunal, after consideration of the materials on record and the submissions made by the learned counsel for the parties, by its judgment and award dated 01st September, 2016, has allowed the claim petitions in part and awarded compensation of Rs.38,24,129/- to the claimant in MVC No.1147 of 2016; Rs.1,00,000/- in MVC No.1148 of 2016; and Rs.1,49,228/- to the claimant in MVC No.1149 of 2016 with interest at 9% per annum in all the petitions, from the date of claim petition till the date of realisation. Being aggrieved by the judgment and award passed by the Tribunal, appellant-Insurance Company has filed the instant appeals challenging liability and also, on quantum of compensation.
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6. We have heard Smt. Padma S. Uttur, learned counsel appearing for Shri Ashok N. Patil, learned counsel for the appellant; and Shri N. Gopalkrishna learned counsel appearing for the respondent-Insurance Company and perused the entire records and re-appreciated the evidence on record.
7. Smt. Padma S. Uttur, learned counsel for the appellant- Insurance Company strenuously contended that the Tribunal ought to have fixed contributory negligence on the part of the rider of the motorcycle also, as the Tribunal failed to consider the documents on record, which clearly envisages that three persons were proceeding on a motorcycle at a speed of 55 kilometers per hour at 12.00 mid night, without following the traffic regulations, which amounts to violation of law under Section 128 of the Motor Vehicles Act. Hence, she submitted that the finding recorded by the Tribunal on issue No.1 is without any basis and is liable to be set aside. Learned counsel for the appellant further submitted that the Tribunal ought to have taken note of the fact that the accident occurred at Veerasandra Junction and in the circumstances, it is incumbent on the part of 10 the rider of the motorcycle to observe the oncoming vehicles which is not forthcoming, and added to that carrying more than one pillion rider without wearing helmet, has resulted in head injury to the deceased, and as such, the learned counsel vehemently submitted the Tribunal ought to have considered the contributory negligence on the part of the rider of the motorcycle, under the facts and circumstances of the case. The learned counsel contended that there is a delay of one day in lodging the complaint. She further submitted that the income of the deceased taken by the Tribunal at Rs.23,243/- as against Rs.20,211/- per month is bad in law while awarding compensation under the head loss of dependency. She further submitted that the Tribunal had erred in adding 50% instead of adding 40% towards future prospects to the actual salary of the deceased and further submitted that the interest awarded by the Tribunal at 9% p.a is also on the higher side and in that view of the matter, she submitted that the impugned judgment and award passed by the Tribunal is liable to be set aside. 11
8. Per contra, Shri N. Gopalakrishna, learned counsel appearing for the claimants submitted that riding of motorcycle with two pillion riders, may be a violation of Section 128 of the Motor Vehicles Act, however, the same cannot be a basis for adjudication of claim petition, awarding just and proper compensation under Section 166 of the Motor Vehicles Act. He further submitted that the rider of the motorcycle has not contributed to the accident, and on the other hand he submitted that the driver of the offending vehicle was driving the same in a rash and negligent manner and the perusal of Exhibit P14 sketch, would clearly disclose that the motorcycle was proceeding in the service road and the offending Eicher vehicle which was coming from the Main road suddenly took turn towards cross road and dashed against the motorcycle and in that view of the matter, learned counsel appearing for claimants contended that the finding recorded by the Tribunal on issue No.1 is just and proper and do not call for any interference in these appeals. In furtherance to the above, he submitted that the award of compensation made by the Tribunal in all the three claim petitions is just and proper and the same is liable to be 12 affirmed in these appeals and accordingly sought for dismissal of appeals.
9. Having heard the learned counsel for the parties and after considering the material on record, the points for consideration before us in these appeals are:
1. Whether the Tribunal is justified in affirming issue No.1 in the claim petitions?
2. Whether riding of a motorcycle with two pillion riders would disentitle the claimants from claiming compensation under Section 166 of the Motor Vehicles Act, 1988?
3. Whether the award of compensation in all the three claim petitions is just and proper;
4. Whether award of interest at 9% p.a. by the Tribunal is justified?
5. What order?13
10. It is not in dispute with regard to occurring of alleged accident on 16th December, 2015 at 12.00 mid night, when the claimant in MVC No.1149 of 2016 was riding the motorcycle bearing registration No.TN-34-P-3679 along with two pillion riders viz. Yuvaraj and Ganesh V. and when they reached Veerasandra Junction, at that time the driver of Eicher vehicle bearing registration No.KA-41/9716 dashed to the motorcycle and pursuant to the same, Ganesh V, one of the pillion riders, succumbed to injuries on 18th December, 2016, and other claimants have sustained injuries on account of the road traffic accident. PW1 is the claimant in MVC No.1147 of 2016. She has produced First Information Report, Charge sheet, sketch, spot mahazar, IMV Report and Inquest report as Exhibits P1 to P7. No doubt, there were two pillion riders proceeding on the motorcycle and the same is in violation of Section 128 of the Motor Vehicles Act, the perusal of the evidence of PWs 2 and 3, makes it clear that the driver of the offending vehicle driving the same in high speed and in a rash and negligent manner, dashed against the motorcycle of the claimants. Perusal of the sketch (Exhibit P4) would also clearly establish the fact that the 14 motorcycle was proceeding on the service road and offending Eicher vehicle which came from the main road, suddenly took turn towards cross road and dashed against the motorcycle. Viewing from any angle, the driver of the Eicher vehicle while entering the cross-road from the main road, should have taken care and caution and ensured that there are no vehicles proceeding on the service road. But the driver of the offending vehicle has not taken care and caution and accordingly the finding recorded by the Tribunal on issue No.1 is just and proper. As regards the submission of the learned counsel for the appellant that there is delay in lodging the complaint, it is pertinent to note that, there is a delay of one day in lodging complaint. As per records, alleged accident occurred on 16th December, 2015 at 12.00 mid night and thereafter the First Information Report was registered on 17th December, 2015 before the Electronics City Police Station and as per the law declared by the Hon'ble Supreme Court in the case of RAVI v. BADARINARAYAN AND OTHERS in Civil Appeal No.1926 of 2011 disposed of on 18th February, 2011, the contention of the learned counsel for the appellant with regard to delay of one day 15 in lodging the complaint is untenable. It is also undisputed fact that Motor Vehicles Act is a beneficial legislation and has to be interpreted/adjudicated without going into the bitterness of technical aspects, while awarding just compensation under Section 166 of the Motor Vehicles Act.
11. Insofar as the contentions raised by learned counsel for the appellant with regard to two pillion riders proceeding on the motorcycle, we are of the considered opinion that the finding recorded by the Tribunal with regard to issue No.2 and awarding of compensation to the respective claimants is just and proper. This Court, in the case of BHARMA KALLAPPA MURASHETTI AND OTHERS v. KARAMJEET KAUR AND ANOTHER reported in ILR 2016 KAR. 5098 (rendered by one of us) has held as follows:
"A concrete evidence is necessary to establish the violation of the statutory provision, resulting in the negligence causing the accident. Only in such circumstances, proportionate contributory negligence could be attributable. No doubt three passengers were traveling in a motorcycle in violation of Section 128 of the Act, but no evidence is led by the insurer to establish that the said violation of the statutory negligence on the part 16 of the deceased. Mere taking a defence in the written statement would not be suffice to establish the factum of contributory negligence, it has to be supported by direct and corroborative evidence."
12. Similar question, relating to awarding of compensation to the claimants where there were two pillion riders, had come up before the Hon'ble Supreme Court in the case of MOHAMMED SIDDIQUE AND ANOTHER v. NATIONAL INSURANCE COMPANY LIMITED AND OTHERS in Civil Appeal No.79 of 2020 disposed of on 08th January, 2020, wherein the Hon'ble Supreme Court, at paragraph 13 of the judgment has held that such violation of two pillion riders on the motorcycle along with the rider, cannot lead to a finding of contributory negligence, unless it is established that the very act of the rider along with two others contributed either to the accident or to the impact of the accident upon the victim. The Apex Court, held thus:
"Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two 17 others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a casual connection between the violation and the accident or a casual connection between the violation and the impact of the accident upon the victim."
13. In that view of the matter, having considered the evidence on record, particularly, the eye-witnesses PW2 and PW3, deposed that the driver of the offending Eicher vehicle was negligent while driving the vehicle and also the perusal of sketch and charge sheet, certainly it would establish the fact that the driver of the Eicher vehicle had caused the accident and in that view of the matter the finding recorded by the trial Court on issue No.2 is just and proper.
14. As regards the global compensation of Rs.1,00,000/- in MVC No.1148 of 2016 and Rs.1,49,228/- in MVC No.1149 of 2016 awarded by the Tribunal with interest at 9% per annum is concerned, the same is based on the material documents produced and the evidence adduced before it, the same is just and proper which do not suffer from and infirmity and hence, same is confirmed.
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15. Insofar as the amount of compensation awarded to the claimant in MVC No.1147 of 2016 is concerned, the same requires interference in this appeal. Exhibit P12 Salary Certificates of the deceased for the months of June to November, 2015 reflects that the deceased was drawing Rs.23,243/- per month and the same is taken as monthly income. The Tribunal has added 50% towards future prospects. As per the law declared by the Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS V. DELHI TRANSPORT CORPORATION AND ANOTHER reported in 2009 ACJ 1298, 40% is to be added towards future prospects. If that is added, the income comes to Rs.32,540/- per month. Hence, the calculation under the head loss of dependency would be Rs.32,540/- x 12 x 17 x ½ which comes to Rs.33,19,080/- and the same is awarded in lieu of Rs.36,97,177/- awarded by the Tribunal. In view of the law declared by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in 2017 ACJ 2700, Rs.70,000/- is awarded all put together under conventional heads. Further, as per the law declared by Hon'ble Supreme Court in the case of NEW INDIA 19 ASSURANCE COMPANY LIMITED v. SOMWATI AND OTHERS reported in 2020 SCC ONLINE SC 720, Rs.40,000/- is awarded towards parental consortium and as such the total compensation awarded to the claimant in MFA No.7343 of 2016 is Rs.34,29,080/-.
16. The learned counsel for the appellant submitted that the Tribunal has committed an error in awarding interest at the rate of 9% per annum and the same shall be equated with the prevailing banking rate. We find force in the said submission of the learned counsel for the appellant. Considering the prevailing bank rate, it is appropriate to award interest at the rate of 6% per annum from the date of petition till the date of realisation. Accordingly, for the foregoing reasons and findings, appeals are disposed of. In the result, we pass the following:
ORDER
1. The judgment and award dated 01st September, 2016 passed in MVC No.1149 of 2016 by the Tribunal stands modified by reducing the compensation amount to Rs.34,29,080/- in lieu of Rs.38,24,177/- with interest at 6% per annum 20 from the date of petition till the date of realisation.
2. The judgment and award dated 01st September, 2016 passed insofar as awarding global compensation of Rs.1,00,000/- in MVC No.1148 of 2016; and compensation of Rs.1,49,228/-
awarded insofar as MVC No.1149 of 2016 is concerned, remain unaltered. However, it is made clear that the interest awarded on the compensation at the rate of 9% per annum is reduced to 6% per annum from the date of petition till date of realisation.
3. The appellant-Insurance Company is liable to pay the compensation to the claimants/respondents.
4. Registry is directed to draw modified award accordingly.
Sd/-
JUDGE Sd/-
JUDGE lnn