Karnataka High Court

M/S. New India Assurance Company ... vs Savithri on 5 January, 2021

Author: Alok Aradhe Srishananda

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 5TH DAY OF JANUARY 2021

                         PRESENT

       THE HON'BLE MR. JUSTICE ALOK ARADHE

                             AND

     THE HON'BLE MR. JUSTICE V. SRISHANANDA

                   MFA NO. 4501/2016
                         C/W
                   MFA No. 6591/2016

IN MFA NO. 4501/2016:
BETWEEN:

M/s. New India Assurance Company Limited
Shri Ram Building, Near Head Post Office
Udupi. Now rep. by its Appeals Hub
Divisional Office - III
No. 9/2, Mahalakshmi Chambers
M. G. Road, Bengaluru - 560001
Rep. by its Duly Constituted Attorney
                                         ...   APPELLANT
(By Sri. A. M. Venkatesh, Adv.,)

AND:

1.     Savithri
       W/o. Vijay Poojary
       Aged about 47 years

2.     Vijaya Poojary
       S/o. Late Giriya Poojary
       Aged about 49 years
                             2


     Both are R/at 'Sadguru Kripa'
     Thenkumane
     Kudiyoor village and post
     Udupi Taluk and District-576 101.

3.   Vijaya S. Bhandari
     S/o. Subbayya Bhandari
     Kodrasharma
     Thenkanidiyoor village
     Udupi Taluk and District-576 101.
                                          RESPONDENTS

     (By Sri. Ganesh. R., Adv. for R1 and R2. R3-served)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED:
22.04.2016 PASSED IN MVC NO.544/2014 ON THE FILE OF
THE ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL
MACT,    UDUPI,    AWARDING     COMPENSATION     OF
RS.10,47,000/- WITH INTEREST @ 6% P.A. FROM THE
DATE OF PETITION TILL REALIZATION.
                       ******

IN MFA No. 6591/2016:
BETWEEN:

1.   Savithri. V
     W/o. Vijay Poojary
     Aged about 47 years

2.   Vijaya Poojary
     S/o. Late Giriya Poojary
     Aged about 49 years

Both are R/at 'Sadguru Kripa'
Thenkumane, Kidiyoor Village and Post
Udupi Taluk and District - 576101.
                                          ...APPELLANTS
     (By Sri. Ganesh. R. Adv.,)
                             3



AND:

1.     Vijaya S. Bhandari
       S/o. Subbayya Bhandari
       Kodrasharma Thenkanidiyoor village
       Udupi Taluk and District.

2.     The New India Assurance Co. Ltd.,
       Sri Ram Building, Near Head Post Office
       Udupi Taluk and District - 576101.
                                          ...RESPONDENTS

(R-1 - notice dispensed with vide order dated 9.12.2020
 By Sri. A. M. Venkatesh, Adv., for R2)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
22.04.2016 PASSED IN MVC NO.544/2014 ON THE FILE OF
THE ADDITIONAL SENIOR CIVIL JUDGE, UDUPI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.


     THESE M.F.As. COMING ON FOR ADMISSION, THIS
DAY,   V.  SRISHANANDA     J.,  THROUGH   VIDEO
CONFERENCING DELIVERED THE FOLLOWING:

                          JUDGMENT

The Insurance Company and the claimants are in

appeal challenging the validity of the Judgment and Award

dated 22nd April 2016 passed in MVC No.544/2014 by the

Additional Senior Civil Judge and Addl. MACT, Udupi

(hereinafter referred to as the "Tribunal" for short).

2. The brief facts, which are necessary for disposal of

these appeals are as under:

A claim petition came to be filed under Section 166

of the Motor Vehicles Act contending that on 02.12.2013

Bipin V. Poojary was proceeding on a motor-cycle bearing

No.KA-20-L-7458 as a pillion-rider from Kidiyoor towards

Malpe and when they reached near Kalmady main road of

Kodavoor village, a bus bearing Registration No.KA-20-

9698 came in a rash and negligent manner and dashed

against the motor-cyclist from the hind side. As a result,

pillion-rider of the motor-cycle fell down and sustained

grievous injuries. Sri.Bipin V.Poojary was shifted to Hi-

tech Hospital, Udupi and then to KMC Hospital, Manipal.

Despite the best treatment, he did not survive. The

claimants further contend that they being the dependants

on the income of the deceased, have sought for awarding

suitable compensation.

3. In pursuance of the notice issued, first

respondent-owner of the offending bus remained absent

and he was placed exparte. Second respondent appeared

through advocate and resisted the claim petition by filing

objection statement denying the averments of the claim

petition in toto.

4. Based on the rival contentions, the Tribunal raised

the following issues:

(1) Whether petitioners prove that their son namely Bipin V. Poojary died in an accident took place on 02.12.2013 near Kalmady main road of Kodavoor Village, when he was going in a motor cycle bearing registration No. KA-20-L-7548 as pillion rider, due to the rash and negligent driving of the driver of the bus bearing registration No.KA- 20/9698 and dashed against the motor cycle?

(2) Whether petitioners are entitled for the compensation? If so, what is the quantum?

(3) What order or award?

5. In order to prove the claim petition averments,

first claimant got examined himself as P.W.1 and

Preetham was examined as P.W.2 and relied on 11

documentary evidence which were exhibited and marked

as Exs.P.1 to P.11. On behalf of the Insurance Company,

there was oral evidence adduced and copies of insurance

policy was marked as Ex.R1.

6. On cumulative consideration of the oral and

documentary evidence on record, the Tribunal allowed the

claim petition in part awarding a sum of Rs.10,47,000/-. It

is that judgment which is under challenge by the Insurance

Company as well as the claimants.

7. Learned counsel appearing for the Insurance

Company contended that the Tribunal wrongly appreciated

the evidence on record as there was no negligence on the

part of the driver of the bus. He further contended that at

least the Tribunal should have taken into consideration

some amount of contributory negligence on the rider of the

motor-cycle. He also contended that the Tribunal failed to

notice that the claim petition was bad for non-joinder of

necessary parties. He further contended that the Tribunal

grossly erred in awarding the compensation by adding

50% towards future prospects and also erred in taking the

monthly income of the deceased. He further contended

that the deceased being the bachelor, the Tribunal ought

to have deducted 50% towards personal expenses in

considering the loss of dependency and should have

adopted the multiplier '14'. He further contended that the

Tribunal misjudged itself while awarding the quantum of

compensation in a proper manner.

8. Per contra, the learned counsel for the claimants

contended that the award of compensation by the Tribunal

is on the lower side and sought for suitable enhancement.

9. In view of the rival contentions of the parties, the

sole point that would arise for consideration is:

"(i) Whether the finding recorded by the Tribunal that the accident has occurred solely

on the negligence of the driver of the bus is erroneous?

(ii) Whether the quantum of compensation adjudged by the Tribunal is just compensation?

10. The answer to the above point is in the negative

for the following:

REASONS

11. In the case on hand, the pillion rider namely

Bipin V.Poojary, having lost his life on account of the

accidental injuries that occurred on 02.12.2013 at Kalmady

main road of Kodavoor village involving motor-cycle

bearing No.KA-20-L-7458 and the bus bearing No.KA-20-

9698 is not in dispute.

12. Admittedly, the Police, after thorough

investigation, filed the charge sheet against the driver of

the bus.

13. The spot sketch that was produced and marked

at Ex.P5 would depict the scene of the incident. The oral

testimony of P.W.2 is taken into consideration by the

Tribunal who is an eye-witness to the incident and rider of

the motor-cycle. In his cross-examination, a suggestion is

made that there was no accident at all. When such being

the situation, for the first time before this Court without

there being sufficient pleading and proof, Insurance

Company urging that the Tribunal ought to have attributed

some amount of contributory negligence to the rider of the

motor-cycle cannot be countenanced. Accordingly, Point

No.1 is answered.

14. In so far as quantum of compensation is

concerned, admittedly, the deceased was aged about 18

years. It has been contended that he was working as a

Fisherman. In the absence of any formal proof of income,

the Tribunal assessed the monthly income at Rs.6,000/-

per month for the accidental claim of the year 2013. But,

this Court and Lok Adalaths would normally assess the

notional income at the rate of Rs.8,000/- per month for

the accidental claim of the year 2013. As per the decision

of the Hon'ble Apex Court in the case of National

Insurance Company Limited vs. Pranay Sethi and

others reported in (2017) 16 SCC 680, the claimants

would be entitled to additional 40% on the notional income

and 50% is to be deducted as the deceased was a bachelor

for calculating towards future prospectus which works out

to Rs.12,09,600/- [8,000/- + 3,200 = 11,200/2 =

Rs.5,600/- x 12 x 18]. Under conventional heads, a sum

of Rs.70,000/- is awarded to the first claimant. In so far

as the second claimant is concerned, he is entitled for a

sum of Rs.40,000/- towards filial affection. Accordingly,

the quantum of compensation payable to the claimants is

re-assessed as under:

             Head of account                    Amount in Rs.

     Towards Loss of dependency                  12,09,600/-
     including future prospectus

     Towards love and affection                    1,10,000/-

                  Total:                         13,19,600/-

In view of the aforesaid discussions, we pass the

following:

ORDER

(i) The appeal of the Insurance Company

in MFA No.4501/2016 is rejected and the

appeal of the claimants in MFA No.6591/2016

is allowed in part.

(ii) In modification of the award passed

by the Tribunal, the claimants are entitled to

a sum of Rs.13,19,600/- with interest at 6%

p.a., from the date of petition till realization as

against a sum of Rs.10,47,000/- awarded by