Karnataka High Court
The New India Assurance Co Ltd vs Smt Lalithamma on 4 January, 2021
Author: Alok Aradhe Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF JANUARY 2021
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
MFA NO. 5512/2015
C/W MFA CROB NO.108/2020, MFA NO. 1123/2016
C/W MFA CROB NO.109/2020 (MV)
IN MFA NO.5512/2015:
BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD
D O 12, YESHAWANTHAPURA
BANGALORE, THROUGH MOTOR
THRID PARTY, CLAIMS HUB, M.G.ROAD
BY DULY CONSTITIUTED ATTORNEY. ...APPELLANT
(BY SRI. K. SURYANARAYANA. RAO ADV.,)
AND:
1. SMT. LALITHAMMA
W/O. LATE KRISHNAMURTHY
AGED ABOUT 30 YEARS.
2. KUMARI TEJA
D/O. LATE KRISHNAMURTHY
AGED ABOUT 6 YEARS.
2
3. KUMARI POOJA
D/O. LATE KRISHNAMURTHY
AGED ABOUT 4 YEARS.
4. SMT . GANGAMMA
W/O. LATE AJJAPPA @ AJJAIAH
AGED ABOUT 75 YEARS.
THE PETITIONER NOS.2 AND 3 ARE
MINORS REPRESENTED BY THEIR MOTHER
ALL ARE R/AT OF
RAMAPPANAHATTI VILLAGE
GOWRASAGARA MAJARE
SADARAHALLI POST
KANDIKERE HOBLI
CHIKKANAYAKANAHALLI TALUK
TUMKUR DISTRICT - 572 101.
PRESENTLY R/AT
C/O RAJANNA S/O AJJAPPA
NO.6. 8TH CROSS, BANDAPPA ROAD
YESHAWANTHAPURA
BANGALORE - 22.
5. SRI. NARASIMHA MURTHY
S/O. KARIYAPPA
AGED ABOUT 23 YEARS
R/AT NO.43, 7TH CROSS
BANDAPPA ROAD
YESHAWANTHAPURA
BANGALORE - 22.
6. M/S. SLR TRAVELS
BY ITS PROPRIETOR
HULIYAR TOWN,
CHIKKANAYAKANAHALLI TALUK
TUMKUR DISTRICT - 572 101.
3
7. M/S IFFCO - TOKIO GENERAL
INSURANCE CO LTD
BY ITS MANAGER
NO.141, SRI SHANTHI TOWERS
4TH FLOOR, 3RD MAIN
EAST NGEF LAYOUT
KASTURI NAGAR
BANGALORE - 43.
...RESPONDENTS
(BY SRI. R. LAKSHMANA ADV. FOR R1 TO R4
R2 AND R3 ARE MINORS REPRESENTED BY R1
R5 - NOTICE DISPENSED WITH VIDE ORDER
DATED: 21.9.2016 R6 - SERVED;SRI. D. S.
SRIDHAR, ADV. FOR R7)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
17.04.2015 PASSED IN MVC NO.4506/2013 ON THE
FILE OF THE 13TH ADDITIONAL SMALL CAUSES JUDGE
AND MEMBER, MACT, COUR OF SMALL CAUSES,
BENGALURU, AWARDING A COMPENSATION OF
RS.17,66,000/- THE APPELLANT HEREIN IS LIABLE TO
PAY 5,29,800/- WITH INTEREST @ 8% P.A FROM THE
DATE OF PETITION TILL ITS REALIZATION.
IN MFA CROB. NO.108/2020
BETWEEN:
1. SMT. LALITHAMMA
W/O. LATE KRISHNAMURTHY
AGED ABOUT 37 YEARS
4
2. KUMARI. TEJA
D/O. LATE KRISHNAMURTHY
AGED ABOUT 13 YEARS
3. KUMARI. POOJA
D/O. LATE KRISHNAMURTHY
AGED ABOUT 11 YEARS
4. SMT. GANGAMMA
W/O. LATE [email protected] AJJIGAIAH
AGED ABOUT 85 YEARS
THE PETITIONER NOS.2 AND 3 ARE
MINORS REP BY THEIR MOTHER
NATURAL GUARDIAN
SMT: LALITHAMMA
W/O. LATE KRISHNAMURTHY
ALL ARE RESIDENT OF
RAMAPPANAHATTI VILLAGE
GOWRASAGARA MAJARE
SADARAHALLI POST
KANDIKERE HOBLI
CHIKKANAYAKANAHALLI TALUK
TUMKUR DISTRICT - 572214.
PRESENTLY R/AT
C/O. RAJANNA
S/O. AJJAPPA
NO.6, 8TH CROSS
BANDAPPA ROAD
YESHWANTHAPPA
BANGALORE - 92. ...CROSS OBJECTORS
(BY SRI. R. LAKSHMANA ADV)
AND
1. M/S IFFCO - TOKIO GENERAL
INSURANCE CO LTD
BY ITS MANAGER
5
NO.141, SRI SHANTHI TOWERS
4TH FLOOR, 3RD MAIN
EAST NGEF LAYOUT
KASTURI NAGAR
BANGALORE - 43.
2. M/S. SLR TRAVELS
BY ITS PROPRIETOR
HULIYAR TOWN
CHIKKANAYAKANAHALLI TALUK
TUMKUR DISTRICT - 572 101.
3. THE NEW INDIA ASSURANCE
CO LTD BY ITS MANAGER
CDU-VII, NO.42, GOPAL COMPLEX
2ND FLOOR, BAZAR STREET
YESHAVANTHAPURA
BANGALROE - 22.
4. SRI. NARASIMHA MURTHY
S/O. KARIYAPPA
AGED ABOUT 36 YEARS
R/AT NO.43/9, 7TH CROSS
BANDAPPA ROAD
YESHAVANTHAPURA
BANGALORE - 22. ...RESPONDENTS
(BY SRI.B. PRADEEP ADV FOR R1,
R2 - HELD SUFFICIENT (NOTICE DISPENSED IN
CONNECTED APPEAL MFA 1123/2016)
SRI. K. SURYANARAYANA RAO ADV FOR R3)
THIS MFA CROB IS FILED UNDER ORDER XLI RULE
22 OF THE CPC AGAINST THE JUDGMENT AND AWARD
DATED 17.04.2015 PASSED IN MVC NO. 4506/203 ON
THE FILE OF THE XIII ADDITIONAL SMALL CAUSE
JUDGE AND MEMBER, MACT, COURT OF SMALL CAUSES,
6
BENGALURU (SCCH-15) PARTLY ALLOWING THE
CLAIMPETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSAITON.
IN MFA NO.1123/2016
BETWEEN
LEGAL MANAGER
IFFCO TOKIO GIC LTD
CUSTOMER SERVICE CENTRE
SRI. SHANTHI TOWERS, 5TH FLOOR
NO. 141, 3RD MAIN
EAST OF NGEF LAYOUT
KASTURBANAGAR
BANGALORE - 560 043.
...APPELLANT
(BY SRI. B. PRADEEP., ADV. (P/HG))
AND
1. SMT. LALITHAMMA
S/O. LATE KRISHNAMURTHY
NOW AGED ABOUT 33 YEARS
2. KUM. TEJA
S/O. LATE KRISHNAMURTHY
NOW AGED ABOUT 9 YEARS
3. KUM. POOJA
D/O. LATE KRISHNAMURTHY
NOW AGED ABOUT 7 YEARS
4. SMT. GANGAMMA
W/O. LATE [email protected] AJJIGAIAH
NOW AGED ABOUT 78 YEARS
RESPONDENT NOS.2 AND 3 ARE
SINCE MINOR REP BY THEIR
7
NATURAL GUARDIAN
MOTHER AS 1ST RESPONDENT
ALL ARE R/AT
RAMAPPANAHATTI VILLAGE
GOWRASAGARA MAJARE
SADARAHALLI POST
KANDIKERE HOBLI
CHIKKANAYAKANAHALLI TALUK
TUMKUR DISTRICT - 572 101.
PRESENTLY R/AT
C/O. RAJANNA, S/O. AJJAPPA
NO.6, 8TH CROSS, BANDAPPA ROAD
YESHWANTHAPPA
BANGALORE - 96.
5. THE NEW INDIA ASSURANCE
CO LTD BY ITS MANAGER
CDU-VII, NO.42, GOPAL COMPLEX
2ND FLOOR, BAZAR STREET
YESHAVANTHAPURA
BANGALORE - 22.
6. SRI. NARASIMHA MURTHY
S/O. KARIYAPPA
AGED ABOUT 36 YEARS
R/AT NO.43/9, 7TH CROSS
BANDAPPA ROAD
YESHAVANTHAPURA
BANGALORE - 22.
7. M/S. SLR TRAVELS
BY ITS PROPRIETOR
HULIYAR TOWN
CHIKKANAYAKANAHALLI TALUK
TUMKUR DISTRICT - 572 101.
...RESPONDENTS
(BY SRI. R. LAKSHMANA. R. ADV FOR R1-4 (P/HG),
8
SRI. K. SURYANARAYANA RAO ADV FOR R5 (P/HG)
R2 AND R3 ARE MINORS REP BY R1
NOTICE TO R6 D/W.
VIDE DATED 22.06.2016 NOTICE TO R7 HG)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
:17.04.2015 PASSED IN MVC. NO. 4506/2013 ON THE
FILE OF THE 13TH ADDITIONAL SMALL CAUSE JUDGE
AND MEMBER, MACT, BENGALURU, AWARDING
COMPENSATION OF RS.17,66,00 WITH INTEREST AT
9% PA. FROM THE DATE OF PETITION TILL THE
DEPOSIT.
IN MFA CROB No. 109/2020:
BETWEEN :
1. SMT. LALITHAMMA
W/O. LATE KRISHNAMURTHY
AGED ABOUT 37 YEARS.
2. KUMARI. TEJA
D/O LATE KRISHNAMURTHY
AGED ABOUT 13 YEARS
3. KUMARI. POOJA
D/O. LATE KRISHNAMURTHY
AGED ABOUT 11 YEARS
4. SMT. GANGAMMA
W/O. LATE AJJAPPA @ AJJIGAIAH
AGED ABOUT 85 YEARS
THE PETITIONER NOS.2 AND 3 ARE
9
MINORS REPRESENTED BY THEIR MOTHER
AND NATURAL GUARDIAN
SMT. LALITHAMMA
W/O. LATE KRISHNAMURTHY
ALL ARE R/AT OF
RAMAPPANAHATTI VILLAGE
GOWRASAGARA MAJARE
SADARAHALLI POST
KANDIKERE HOBLI
CHIKKANAYAKANAHALLI TALUK
TUMKUR DISTRICT - 572214
PRESENTLY C/O. RAJANNA
S/O. AJJAPPA, NO.6, 8TH CROSS
BANDAPPA ROAD
YESHAVANTHAPURA
BANGALORE - 22. ...CROSS OBJECTORS
(BY SRI. R. LAKSHMANA, ADV.,)
AND:
1. THE NEW INDIA ASSURANCE
CO LTD BY ITS MANAGER
CDU-VII, NO.42, GOPAL COMPLEX
2ND FLOOR, BAZAR STREET
YESHAVANTHAPURA
BANGALROE - 22.
2. SRI. NARASIMHA MURTHY
S/O. KARIYAPPA
AGED ABOUT 36 YEARS
R/AT NO.43/9, 7TH CROSS
BANDAPPA ROAD
YESHAVANTHAPURA
BANGALORE - 22.
3. M/S. SLR TRAVELS
BY ITS PROPRIETOR
HULIYAR TOWN
CHIKKANAYAKANAHALLI TALUK
10
TUMKUR DISTRICT - 572214.
4. M/S IFFCO - TOKIO GENERAL
INSURANCE CO LTD
BY ITS MANAGER
NO.141, SRI SHANTHI TOWERS
4TH FLOOR, 3RD MAIN
EAST NGEF LAYOUT
KASTURI NAGAR
BANGALORE - 43. ...RESPONDENTS
(BY SRI. K. SURYANARAYANA RAO ADV FOR R1
R2 - DISPENSED WITH (NOTICE IS DISPENSED
WITH IN CONNECTED APPEAL 5512/2015)
R3 - SERVED IN CONNECTED APPEAL NO.
5512/2015. SRI. B. PRADEEP ADV FOR R4)
THIS MFA CROB IS FILED UNDER ORDER 41 RULE
22 OF THE CPC READ WITH SECTION. 173 (1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
17.04.2015 PASSED IN MVC NO. 4506/2013 ON THE
FILE OF THE XIII ADDITIONAL SMALL CAUSE, JUDGE
AND MEMBER, MACT BENGALURU (SCCH- 15), PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs. AND MFA CROSS OBJECTIONS
COMING ON FOR ORDERS, THIS DAY, V.
SRISHANANDA J., THROUGH VIDEO CONFERENCING /
PHYSICAL HEARING DELIVERED THE FOLLOWING:
JUDGMENT
Though these matters are listed for admission
today, with the consent of both the parties, matter is
taken up for final disposal.
2. All these matters arise out of one and the same
Judgment and Award and therefore, are being disposed of
by this common order.
3. The rank of the parties are referred as per their
ranks before the Tribunal.
4. Appellant in MFA No.1123/2016 is the insurer of
the bus bearing No.KA-44/1278 who was the 4th
respondent in MVC No.4506/2013 challenged the validity
of the Judgment and Award dated 17th April 2015 on the
file of MACT, Court of Small Causes, Bengaluru (SCCH-15)
(hereinafter referred to as "the Tribunal" for short). The
claimants have filed cross objection in MFA
CROB.No.108/2020 seeking enhancement of
compensation.
5. So also the Insurance Company of the motor-
cycle which was involved in the same accident has filed
MFA No.5512/2015 challenging the validity of the same
Judgment and Award and the claimants have filed cross
objection in MFA.CROB.No.109/2020 in the appeals.
6. The brief facts, which are necessary for disposal of
these matters are as under:
A claim petition came to be filed under Section 166
of the Motor Vehicles Act, contending that on 15.07.2013
at about 6.30 p.m., when Krishnamurthy was proceeding
as a pillion-rider on the motor-cycle bearing No.KA-02-HC-
9164, the rider of the motor-cycle was moving with proper
speed and following the necessary rules, when they
reached near Doddabidare village bus stand at
Chikkanayakanahalli to Hiriyur raod, driver of the bus
bearing No.KA-44/1278 who was also proceeding in the
same direction, all of a sudden applied brakes without
proper signal, whereby rider of the motor-cycle could not
control the vehicle and dashed against the hind portion of
the bus resulting in falling down of rider and pillion-rider
from the motor-cycle. It is further contended that pillion-
rider of the motor-cycle sustained grievous injuries and
they were shifted to Govt. Hospital, Chhikkanayakanahalli
for first aid treatment and from there to NIMHANS
Hospital, Bengaluru and from there to Victoria Hospital,
Bengaluru and succumbed to the injuries two days later.
It is further contended that the Respondents 2 and 3 who
are the R.C owners of the motor-cycle and the bus and
Respondents 1 and 4 who being the insurer of the motor-
cycle and bus are jointly liable to pay the compensation for
the accidental death of Krishnamurthy and thus sought for
awarding suitable compensation.
7. In response to the notice issued, all the
respondents appeared before the Tribunal and through
their advocates, filed statement of objections denying the
petition averments. Second respondent no doubt admitted
that he is the R.C owner of the motor-cycle and the
deceased was riding the motor-cycle at the time of
accident.
8. First respondent who is the insurer of the motor-
cycle contended that rider of the motor-cycle did not
possess valid and effective driving licence, but admitted
that policy was in force. First respondent also contended
that accident has occurred on account of the negligent
driving of the bus. Third respondent who is the owner of
the bus, contended that the accident has taken place on
account of the negligent riding of the rider of the motor-
cycle without maintaining minimum distance between the
vehicles and denied that driver of the bus has suddenly
applied the brake. Fourth respondent admitted the
incident and contended that bus driver did not possess a
valid driving licence and accident has occurred on account
of the negligent riding of the two-wheeler and therefore,
there is no fault on the part of the bus driver and sought
for dismissal of the petition.
9. Based on the rival contentions, the Tribunal raised
necessary issues.
10. In order to prove the claim petition averments,
first claimant Smt.Lalithamma who is the wife of the
deceased was examined as PW.1 and one eye-witness by
name Anjana Bhovi was examined as P.W.2. Claimants
relied on 19 documents in support of their claim which
were exhibited and marked as Exs.P.1 to P.19. On behalf
of the respondents, the officer of the first respondent is
examined as R.W.1 and Gireesha and Soorya Prakash were
also examined as R.Ws.2 and 3. The owner of the motor-
cycle who is Respondent No.2 is examined as R.W.4. On
behalf of the respondents, 19 documents were relied on
which were exhibited and marked as Exs.R1 to R19.
11. The Tribunal, on cumulative consideration of the
oral and documentary evidence on record, allowed the
claim petition in part and awarded a sum of
Rs.17,66,000/- at the ratio of 40:25:25:10 with interest at
8% p.a., from the date of petition till realization and
apportioned the liability to the first and fourth respondent
in the ratio of 30%:70%. It is that judgment which is the
subject matter of all these appeals.
12. First respondent who is the insurer of the motor-
cycle contended that rider of the motor-cycle did not
possess valid and effective driving licence, but admitted
that policy was in force. First respondent also contended
that accident has occurred on account of the negligent
driving of the bus. Third respondent who is the owner of
the bus, contended that the accident has taken place on
account of the negligent riding of the rider of the motor-
cycle without maintaining minimum distance in between
the vehicles and denied that driver of the bus has suddenly
applied the brake. Fourth respondent admitted the
incident and contended that bus driver did not possess a
valid driving licence and accident has occurred on account
of the negligent riding of the two-wheeler and therefore,
there is no fault on the part of the bus driver and sought
for dismissal of the petition.
13. Learned counsel for the Insurance Company of
the motor-cycle as well as the bus vehemently contended
that the Tribunal has properly appreciated the probative
value of the documents relied on by the Insurance
Company and came to a wrong conclusion that deceased
who was a pillion-rider of the motor-cycle did not maintain
a safe distance between the two vehicles. Therefore, the
accident has occurred. It is also the contention of the
Insurance Companies that it is the deceased who was
riding the motor-cycle at the time of accident was under
the influence of alcohol as is evident from the medical
records, especially, Exs.R12 and R14 and thus, he is solely
responsible for the accident in question and thus, sought
for dismissal of the claim petition by allowing the appeals.
In support of their arguments, the Insurance Company has
relied on the decision reported in NISHAN SINGH AND
ORS. vs. ORIENTAL INSURANCE COMPANY LTD.,
THROUGH REGIONAL MANAGER AND ORS. (AIR 2018 SC
2118). Relevant portion of the Judgment is extracted
hereunder:
" The next question is whether the
Tribunal should have at least answered the
issue of contributory negligence of the truck
driver in favour of the appellants (claimants).
The question of contributory negligence would
arise when both parties are involved in the
accident due to rash and negligent driving.
Inn a case such as the present one, when the
maruti car was following the truck and no fault
can be attributed to the truck driver, the
blame must rest on the driver of the maruti
car for having driven his vehicle rashly and
negligently. The High Court has justly taken
note of the fact that the driver and owner of
the maruti car, as well as insurer of that
vehicle, had not been impleaded as parties to
the claim petition. The Tribunal has also
taken note of the fact that in all probability,
the driver and owner of the maruti car were
not made party being close relatives of the
appellants. In such a situation, the issue of
contributory negligence cannot be taken
forward."
14. Per contra, learned counsel for the claimants
vehemently contended that the Tribunal rightly came to
the conclusion that the deceased was the pillion-rider of
the motor-cycle bearing No.KA-02-HC-9164 after
thoroughly appreciating the entire materials on record. He
further contended that the Insurance Companies did not
suggest to P.W.1 or P.W.2 that the deceased was not the
pillion-rider of the motor-cycle in question and it is only
after the amendment of the objection statement by the 1st
respondent, the Insurance Company raised the issue of the
deceased being not the pillion-rider and thereafter, they
did not recall P.W.1 or P.W.2 and suggested to the
witnesses that the deceased was not the pillion-rider of the
motor-cycle as well as the negligence on the part of the
bus is to be maintained.
15. Learned counsel for the claimants also contended
that the quantum of compensation awarded by the
Tribunal is also on the lower side and sought for suitable
enhancement. He further contended that two days after
the accident, the injured died. Therefore, the claimants
are entitled for compensation under the head of "pain and
sufferings" suffered by the deceased for the period of two
days.
16. Learned counsel for the claimants further
contended that Tribunal has not properly assessed the
income of the deceased while computing the
compensation. He further contends that the claimants are
entitled for the compensation as per National Insurance
Company Limited vs. Pranay Sethi and others (2017) 16
SCC 680 and Magma General Insurance Company
Limited vs. Nanu Ram & Others (2018) 18 SCC 130 and
United India Insurance Co. Ltd., Vs. Satinder Kaur (2020)
SCC Online SC 410 and thus, sought for suitable
enhancement of compensation by modifying the award
only in respect of quantum of compensation.
17. In view of the rival contentions of the parties,
the following points would arise for consideration:
i. Whether the finding recorded by the Tribunal
that the accident has occurred on account of
the negligent driving of the rider of the motor-
cycle and driver of the bus, is erroneous?
ii. Whether the finding recorded by the Tribunal
that deceased was the pillion-rider on the
motor-cycle bearing No.KA-02-HC-9164 is
erroneous?
iii. Whether the quantum of compensation
awarded by the Tribunal is just compensation?
18. The answer to the above points is in the negative
for the following:
REASONS
RE. POINT NOS.1 AND 2:
19. In the case on hand, Krishnamurthy (deceased)
loosing his life on account of the accidental injuries
involving motor-cycle bearing No.KA-02-HC-9164 and the
bus bearing No.KA-44-1278 on Chikkanayanakahalli road
at about 6.30 p.m., near Doddabidare village bus stand is
not in dispute.
20. The prime contention of the Insurance
Companies is that it is the deceased who was the rider of
the motor-cycle and not the pillion-rider. It is their further
contention that Exs.R12 and R14 clearly demonstrate that
the deceased was under the influence of liquor and he
having not spotted the bus which was moving in the same
direction, dashed against the bus from the hind side and
therefore, he is alone responsible for the accident due to
his negligence. Therefore, claim petition ought to have
been dismissed. In support of their arguments, they drew
the attention of this Court to Exs.R12 and R14. The
relevant portions of Exs.R12 and R14 are extracted
hereunder for ready reference:
Ex.R12:
" H/O. alleged RTA on 15.07.2013 at around
7.00 p.m., while he was riding two-wheeler,
with no sufficient history of place and way of
incidence happened."
Ex.R14
"H/O. RTA - When he was riding two-wheeler in
the place of accident, he hit the bus from back
on 15.07.2013 at 7.00 p.m., at Huliyur-
Chikkanayakanahalli road."
21. It is pertinent to note that the Insurance
Companies did not take such a stand when they filed the
written statement at the first instance. During the
pendency of the claim petition before the Tribunal, as an
afterthought, first respondent amended the objection
statement and took the contention that deceased was not
the pillion-rider of the motor-cycle, but he was actually
riding the motor-cycle. It is also pertinent to note that in
the cross-examination of P.W.1 or P.W.2 who is an eye-
witness to the incident, there is no suggestion made by the
Insurance Company that it is not the second respondent
who was the rider of the motor-cycle, but it was the
deceased who was the rider of the motor-cycle. Police,
after thorough investigation, has filed chargesheet against
the driver of the bus. It is also pertinent to note that
second respondent who is the owner of the motor-cycle,
got examined himself as R.W.4. In his objection
statement itself, he has specifically mentioned that he was
riding the motor-cycle as on the date of accident.
Insurance Companies no doubt cross-examined R.W.4 by
suggesting that he has colluded with the claimants and
rendered a false evidence before the Tribunal. Except
those suggestions, there is nothing on record to show that
the evidence of R.W.4 is to be discarded. It is also
pertinent to note that deceased when he was taken to
NIMHANS Hospital, Bengaluru, he was unconscious and
the recordings are made by the doctors based on the
information provided by the brother of the deceased.
Having taken a contention that deceased being the rider of
the motor-cycle, nothing prevented the Insurance
Companies to summon the doctors who recorded the
history as is culled out supra in Exs.R12 and 14 or at least
to summon the brother of the deceased who said to have
furnished such information to the doctors as referred to
supra. When such being the situation, merely suggesting
to R.W.4 that he was not the rider of the motor-cycle in
question would not discharge the burden on the Insurance
Companies to establish the fact that R.W.4 is not the rider
of the motor-cycle, but deceased was the rider of the
motor-cycle. Moreover, ExS.R12 and R14 are the photo
copies which have been attested by the officer of the
Insurance Companies. Nothing prevented the Insurance
Companies to summon the original records itself,
especially when there is an entry in Ex.R8 that deceased
was travelling on a motor-cycle as a pillion-rider and not
riding the motor-cycle. All these facts have been
cumulatively taken into consideration and properly
appreciated by the Tribunal while reaching the finding that
the deceased was the pillion-rider on the motor-cycle and
it is the second respondent who was riding the motor-cycle
as on the date of the accident. Having said thus, the
Tribunal also took into consideration the negligence on the
part of the rider of the motor-cycle and assessed the
contributory negligence to the extent of 25%. It is
pertinent to note that the Insurance Company of the
motor-cycle took the contention in the objection statement
that the bus was slowed down on account of the road
humps, the driver of the bus gives a clear go-by to the
said contention and deposed before the Court that the bus
was stationed at the time of accident. It is pertinent to
note that there is a deviation on the part of the bus driver
while deposing before the Court. The pleadings of the
Insurance Company shows that somehow the Insurance
Company is trying to escape from the liability.
22. Insofar as the decision referred to by the
Insurance Companies regarding maintaining safe distance,
there cannot be any dispute as to the legal principles
enunciated in the said judgment. In fact the law requires
that every driver of a motor vehicle is required to drive the
motor vehicle cautiously 'expecting the unexpected'.
When such being the case, some amount of negligence is
also to be attributed to the rider of the motor-cycle which
has been done by the Tribunal by attributing 25%
contributory negligence to the rider of the motor-cycle. In
view of the fact that the motor-cycle has hit the hind
portion of the bus and bus driver contending that he had
halted the bus in the bus stand and it is the rider of the
motor-cycle who hit the bus from the hind side.
23. There is no cogent evidence on record as to what
exactly is the contributory negligence that could be
attributable to the rider of the motor-cycle or driver of the
bus. As such, when two vehicles are involved that too
moving in the same direction, contributing 50% negligence
to the rider of the motor-cycle as well as 50% to the driver
of the bus, in the considered opinion of this Court would
meet the ends of justice. Accordingly, Point Nos.1 and 2
are answered.
Re. Point No.3:
24. Admittedly, there is no cogent or formal evidence
placed on record to show the income of the deceased. In
the inquest mahazar, it is mentioned that deceased is an
Agriculturist, but in the claim petition, it has been
mentioned that he was working as a Plumber. In the
absence of any cogent material placed on record, the
income of the deceased must be assessed notionally. This
Court and the Lok Adalaths would normally assess the
income at Rs.8,000/- for an accidental claim of the year
2013.
25. Whereas the Tribunal has taken Rs.6,000/- as
the notional income. Deceased, at the time of death was
aged about 35 years. As per National Insurance Company
Limited vs. Pranay Sethi and others (2017) 16 SCC 680
and Magma General Insurance Company Limited vs.
Nanu Ram & Others (2018) 18 SCC 130 and United India
Insurance Co. Ltd., Vs. Satinder Kaur (2020) SCC Online
SC 410, the claimants are entitled to addition of 40% of
income towards future prospects as against 50% ordered
by the Tribunal. Having regard to the number of
dependants, 1/4th of the adjudged & notional income is to
be deducted towards the personal expenses of the
deceased. Accordingly, on the head of loss of dependency,
the claimants are entitled to a sum of Rs.10,08,000/- as
under:
Rs.8,400/- x 12 x 16 = Rs.16,12,800/-
26. The claimants are entitled to a sum of
Rs.30,000/- towards funeral expenses and loss of estate.
Further, the claimants are entitled towards conventional
heads to a sum of Rs.40,000/- each as per Pranay Sethi,
Magma and Satinder Kaur cases supra, in all Rs.1,90,000/-
on account of loss of consortium as well as loss of love and
affection.
27. Learned counsel for the claimant also pressed
into service the judgment of the Hon'ble Apex Court in the
case of N.SIVAMMJAL AND OTHERS vs. MANAGING
DIRECTOR, PANDIAN ROADWAY CORPORATION AND
ANOTHER reported in 1985 ACJ 75 to impress upon this
Court that the claimants are entitled for compensation on
the head of pain and suffering.
28. What was the condition of the claimants during
the treatment period is not spoken to by the claimants in
their evidence nor there is any material on record to
establish the same. Admittedly, the deceased was
unconscious even when he was brought to NIMHANS
Hospital at the first instance. Under such circumstances,
the argument put forth on behalf of the Insurance
Companies cannot be countenanced and is entitled for
compensation of Rs.18,02,800/- along with interest at the
rate of 6% p.a., from the date of petition till realization.
Accordingly, Point No.3 is answered.
29. In view of the above discussion, following order
is passed:
ORDER
The Appeal filed by the Insurance Company in MFA
No.5512/2015 is rejected.
The Appeal filed by the Insurance Company in MFA
No.1123/2016 is allowed in part.
MFA Cross Objection No.109/2020 in MFA No.
5512/2015 is dismissed.
MFA Cross Objection No.108/2020 in MFA No.
1123/2016 is allowed in part.
In modification of the award passed by the Tribunal,
the claimants are entitled to a sum of Rs.18,02,800/-
with interest at the rate of 6% p.a., from the date of
petition till realization against the compensation of
Rs.17,66,000/-.
It is made clear that the claimants shall be entitled
to 8% interest on the compensation awarded by the
Tribunal. The adjudged compensation is ordered to be
paid in the ratio of 50% each by the Insurance Company of
the motor-cycle in MFA No.1123/2016 and the Insurance
Company of the bus-appellant in MFA No.5512/2015.
Apportionment and the deposits are in the same
proportion as ordered in the Judgment and Award of the
Tribunal.
Amount in deposit if any, shall be transmitted to the
Tribunal.
The Insurance Companies are directed to
deposit/pay the compensation within six weeks from the
date of receipt of this order.
Sd/-
JUDGE
Sd/-
JUDGE
BNV/PL*
