Karnataka High Court
National Insurance Company ... vs Sri Devaiah on 14 December, 2021
Bench: P.S.Dinesh Kumar, P.Krishna Bhat
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2021
PRESENT
THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
MISCELLANEOUS FIRST APPEAL NO.501/2020(MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.6020/2019(MV-D)
IN MFA NO.501/2020:
BETWEEN:
1. SRI. DEVAIAH M S
S/O M.A.SOMAIAH,
AGED ABOUT 57 YEARS,
2. SMT.M.D.SHEELA
W/O DEVAIAH,
AGED ABOUT 51 YEARS,
BOTH ARE R/AT
NO.798, KIRUNDADU ROAD,
MADIKERI TALUK,
KIRUNDADU, KODAGU,
PARANE-571 212
... APPELLANTS
(BY SRI. PRAKASH M.H., ADVOCATE)
AND:
1. NATIONAL INSURANCE COMPANY LIMITED
TP HUB, NO.144,
SUBHARAM COMPLEX,
M.G. ROAD,
2
BANGALORE-560 001,
REP. BY ITS MANAGER
2. VTT TRANSPORT SOLUTIONS
NO.22, TANY TOWERS,
2ND CROSS,
PAMPA EXTENSION,
HEBBAL KEMPAPURA,
BANGALORE-560 024
... RESPONDENTS
(BY SRI. B.C. SEETHARAMA RAO, ADVOCATE FOR R1;
R2-SERVED)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT, PRAYING TO CALL FOR RECORDS ON THE FILE OF XXI
ADDITIONAL SMALL CAUSES AND THE MOTOR ACCIDENT
CLAIMS TRIBUNAL (SCCH-23) AT BANGALORE IN MVC
NO.6536/2017 AND TO MODIFY THE JUDGEMENT AND
AWARD DATED 20.09.2018 AND TO ENHANCE THE
COMPENSATION SUITABLY IN THE INTEREST OF JUSTICE
AND EQUITY.
IN MFA NO. 6020/2019:
BETWEEN:
NATIONAL INSURANCE COMPANY LIMITED
TP HUB, NO.144,
SUBHARAM COMPLEX,
M.G. ROAD,
BANGALORE-560001.
REP BY ITS ADM. OFFICER
SMT C.K. PARIMALA
... APPELLANT
(BY SRI. B.C.SEETHARAMA RAO, ADVOCATE)
AND:
1. SRI. DEVAIAH
S/O M.A.SOMAIAH,
3
AGED ABOUT 57 YEARS,
2. SMT.M.D.SHEELA
W/O DEVAIAH,
AGED ABOUT 51 YEARS,
BOTH ARE R/AT
NO.798, KIRUNDADU ROAD,
MADIKERI TALUK,
KIRUNDADU, KODAGU,
PARANE-571 212
3. VTT TRANSPORT SOLUTIONS
NO.22, TANY TOWERS,
2ND CROSS,
PAMPA EXTENSION,
HEBBAL KEMPAPURA,
BANGALORE-560 024
REP BY ITS MANAGER
... RESPONDENTS
(BY SRI. PRAKASH M.H., ADVOCATE FOR R1 AND R2;
SRI. RAJIV R. ADVOCATE FOR R3)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT, PRAYING TO CALL FOR RECORDS CONNECTED WITH
MVC.NO.6536/2017 AND REVIEW PETITION NO.7/2018 ON
THE FILE OF THE HON'BLE COURT OF XXI ADDITIONAL
SMALL CAUSES JUDGE AND THE MOTOR ACCIDENT CLAIMS
TRIBUNAL, (SCCH-23) AT BENGALURU, EXAMINE THE
SAME AND MODIFY THE AWARD DATED 20.09.2018 AND
ALSO THE ORDER DATED 25.04.2019 MADE IN THE
REVIEW PETITION IN THE INTEREST OF JUSTICE.
THESE MISCELLANEOUS FIRST APPEALS HAVING
BEEN HEARD THROUGH VIDEO CONFERENCING/PHYSICAL
HEARING AND RESERVED ON 21.10.2021, COMING ON
THROUGH VIDEO CONFERENCING/PHYSICAL HEARING FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, KRISHNA
BHAT J., PRONOUNCED THE FOLLOWING:
4
JUDGMENT
These appeals are at the instance of the claimants
and the Insurance Company calling in question the
correctness of the Judgment and Award dated 20.09.2018
in MVC No.6536/2017 passed by the Court of XXI Addl.
Small Causes Judge and the MACT, at Bengaluru (SCCH-23)
(hereinafter referred to as 'Tribunal').
2. During the course of the Judgment, parties
would be referred to as per their rank before the learned
Claims Tribunal.
3. The claimants are the parents of one
Machchanda Somaiah Devaiah. On 03.11.2017, at about
11.30 p.m., said Machchanda Somaiah Devaiah was riding
his motorcycle bearing registration No.KA-03-HS-2423 on
Dasarahalli Main Road, Bhuvaneshwari Nagara, opposite to
S.R. Traders shop, Bengaluru and at that time, the
offending Mahindra Xylo bearing registration No. KA-50-A-
5236 belonging to respondent No.2 and insured with
respondent No.1 came in a rash and negligent manner and
in a high speed and dashed against the motorcycle and on
account of the injuries, the rider died at the spot itself.
4. Before the Claims Tribunal, respondent No.1
and respondent No.2 entered appearance and filed their
separate written statements.
5. During the trial, claimant No.1 examined
himself as P.W.1 and the representative of the employer of
the deceased by name Vivek was examined as P.W.2. One
eye witness by name Nanjappa was examined as P.W.3.
Exs.P1 to P17 were marked. The driver of the offending
Mahindra Xylo was examined as R.W.1.
6. After hearing the learned counsel on both sides
and upon consideration of the materials placed before it,
learned Claims Tribunal allowed the claim petition in part by
awarding compensation of Rs.55,81,570/- with interest
thereon at 6% p.a. from the date of the petition till deposit
of the award amount before the learned Tribunal.
7. Learned counsel for the claimants vehemently
contended that the compensation awarded by the learned
Tribunal is on the lower side and that was mainly on
account of the fact that learned Tribunal has assessed the
income of the deceased at a lesser amount than what he
was earning. He therefore submitted that the claimants are
entitled to be awarded enhanced compensation by allowing
their appeal.
8. Learned counsel appearing for the Insurance
Company, per contra, contended that the learned Tribunal
was in error in holding the driver of the offending vehicle as
wholly negligent. He submitted that rough sketch produced
at Ex.P5 clearly showed that the rider of the motorcycle
(deceased) himself had contributed to the occurrence of the
accident due to his own negligence and therefore the
liability to pay compensation should have been apportioned
at 50% so far as Insurance Company is concerned. Learned
counsel further contended that the deceased was not
wearing helmet at the time of the accident and thereby he
increased the risk of a higher injury which resulted in his
suffering serious injuries resulting in his death. He
therefore submitted that liability of the Insurance Company
should be reduced to 50%.
9. We have given anxious consideration to the
submissions made on both sides and carefully perused the
records.
10. The claimant No.1 who is the father of the
deceased has got examined himself as P.W.1. He is not an
eye witness to the incident. P.W.3 Nanjappa is an eye
witness. He is cited as C.W.4 in the charge-sheet Ex.P3.
P.W.3 has stated the manner of the occurrence of the
accident. He has narrated in detail about R.W.1 driving the
offending Mahindra Xylo vehicle in a rash and negligent
manner and in high speed and dashing the same against
the motorcycle driven by the deceased. The sketch map
marked at Ex.P5 relied upon by the learned counsel for the
Insurance Company instead of supporting the case of the
Insurance Company, more clearly shows that at the place
of the accident, the offending vehicle had suddenly moved
to the right side thereby dashing against the motorcycle.
Both Ex.P5 rough sketch as well inquest panchanama Ex.P7
clearly show that after the accident, the offending vehicle
had dragged the deceased up to a distance of 14 ft. which
would clearly show that the vehicle was being driven in
excessive speed. Eye witness has supported the entire
case of the claimants and the charge-sheet Ex.P3 is also in
favour of P.W.1. Even though the driver R.W.1 has been
examined before the Claims Tribunal, his evidence is not
convincing. Learned Tribunal has rightly held that the
accident in question had taken place due to the rash and
negligent driving of the offending vehicle by R.W.1.
Therefore we are not in a position to accept the contention
of the learned counsel for the Insurance Company that
there was contributory negligence on the part of the
deceased / rider.
11. In so far as the contention of the learned
counsel for the Insurance Company that rider was not
wearing helmet at the time of the accident and therefore he
had increased the risk of suffering a more serious head
injury resulting in his death and therefore there is
contributory negligence on his part also is concerned, we
notice that no such plea was taken by the Insurance
Company in its written statement. In the charge-sheet
papers also we do not find any such reference to the fact
that at the time of the accident rider was not wearing
helmet. Learned counsel for the Insurance Company did
not point out any material from the charge-sheet papers or
from other documents to show that deceased was not
wearing helmet at the time of the accident. It was only at
the time of examination of P.W.3 that the Insurance
Company had come up with such a theory of deceased not
wearing helmet at the time of the accident and suggestion
was put on its behalf which was promptly denied by the eye
witness P.W.3. Similarly the assertion of R.W.1 that
deceased was not wearing helmet at the time of the
accident was contested in the cross examination on behalf
of the claimants. Therefore, we are of the view that the
contention of the Insurance Company that deceased was
not wearing helmet at the time of the accident has not been
established satisfactorily in this case and we reject the
contention of the learned counsel for the Insurance
Company. Accordingly, there is no merit in the appeal
preferred by the Insurance Company and the same is liable
to be dismissed.
12. The claimants have examined P.W.2 an
authorised representative and employee of ANZ Co. in
which the deceased was employed as Senior Credit
Assessment Officer at the time of his death. P.W.2 has
stated in detail the annual package which the deceased was
receiving as remuneration for the work he was doing for the
company as Senior Credit Assessment Officer. During his
evidence, Ex.P15 employment certificate, Ex.P16 Pay
Certificate and Ex.P17 the salary payment details were
produced. They show that deceased was receiving a gross
salary of Rs.5,59,200/- (Rs.46,600 x 12). They further
show that towards TDS there was deduction of Rs.962/-
and professional tax of Rs.200/- per month was being
deducted. Learned counsel for the claimants submitted that
another Rs.10,000/- was being annually deducted towards
income tax. Therefore the net annual salary that the
deceased was receiving was Rs.5,35,256/-. Since the
deceased was a bachelor, 50% of the same should be
deducted towards his personal expenses. Ex.P10 is the
driving licence of the deceased which showed that he was
born on 20.08.1991. Therefore he was aged 26 years at the
time of his death. The appropriate multiplier applicable in
this case is 17. 40% of the established income of the
deceased is required to be added towards loss of future
prospects in view of the decision in NATIONAL
INSURANCE COMPANY LTD. vs. PRANAY SETHI,
reported in (2017) 16 SCC 680 (see para 59.4).
Therefore, the loss of dependency would be:
5,35,256 + 40% - 50% x 17 = Rs.63,69,546.40
13. Towards filial consortium Rs.80,000/- is
required to be awarded as he has left behind his parents.
Another sum of Rs.30,000/- is required to be awarded
towards loss to estate and funeral expenses. In all,
claimants are eligible for a total compensation of
Rs.64,79,546.40.
Accordingly, we pass the following:
ORDER
(1) MFA No.501/2020 filed by the
claimants/appellants is allowed.
(2) The claimants are held entitled to a total
compensation of Rs.64,79,546.40 with
interest thereon at 6% p.a. from the date of
the petition till the date of payment. The
Award dated 20.09.2018 in MVC No.6536/2017
and the Order dated 25.04.2019 in Review
Petition No.7/2018 both passed by the Court of
learned MACT, Bengaluru, stands modified
accordingly. The apportionment of
compensation, investment etc. ordered by the
learned MACT stand intact.
(3) Insurance Company to deposit the
compensation amount as ordered above,
within a period of eight weeks from the date of
receipt of a certified copy of this Judgment,
before the learned MACT, if not already
deposited.
(4) Learned MACT to disburse the compensation
amount upon proper identification of the
claimants.
(5) MFA No.6020/2019 filed by the Insurance
Company stands disposed of in the above
terms.
(6) The statutory deposit made in MFA
No.6020/2019 before this Court shall be
transmitted to the learned MACT, along with a
copy of this Judgment and concerned records,
forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
sac*
