Karnataka High Court
New India Assurance Co Ltd vs Sri Shivam K on 8 January, 2021
Author: Alok Aradhe Rangaswamy
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
M.F.A. NO.917 OF 2015 (MV-D)
C/W
M.F.A. NO.2087 OF 2015 (MV-D)
IN MFA NO.917/2015:
BETWEEN:
NEW INDIA ASSURANCE CO. LTD.,
MOTOR THIRD PARTY CLAIMS HUB,
NO.9/2, MAHALAKSHMI CHAMBERS,
M.G.ROAD, BANGALORE.
REPRESENTED BY ITS MANAGER.
... APPELLANT
(BY SRI. R. JAI PRAKASH, ADVOCATE)
AND:
1. SRI. SHIVAM.K.,
S/O KUMARASWAMY,
AGED MAJOR,
R/AT NO.114, KANAPATTY,
MARANPATTY KRISHNAGIRI DISTRICT,
TAMILNADU.
2. SRI. CHANDRAMOHAN
S/O RAMAKRISHNA
AGED ABOUT 54 YEARS
2
3. SMT. C. LATHA
W/O R.CHANDRAMOHAN,
AGED ABOUT 44 YEARS
4. SMT. BHARATHI
W/O LATE HARSHAVARDHAN,
AGED ABOUT 22 YEARS
5. KUM. NIHARIKA.H.,
D/O LATE HARSHAVARDHAN,
AGED ABOUT 3 YEARS
2ND & 3RD RESPONDENTS ARE PARENTS
5TH RESPONDENT ARE DAUGHTERS
OF HARSHAVARDHAN,
5TH RESPONDENT IS MINOR
REPRESENTED BY 4TH RESPONDENT
ALL ARE RESIDING AT NO.3, 159,
KUDISEGANAPALLI, NO.3,
THORAPALLI AGRAHARAM,
ONNAVALAPADI POST,
HOSUR-635109.
... RESPONDENTS
(BY SRI. K.T. GURUDEVA PRASAD, ADVOCATE FOR
RESPONDENT NOs.2 TO 5;
SERVICE OF NOTICE TO RESPONDENT NO.1 IS DISPENSED
WITH VIDE COURT ORDER DATED 14.03.2017)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST
THE JUDGMENT AND AWARD DATED: 30.08.2014 PASSED IN
MVC NO.5452/2013 ON THE FILE OF THE XIX ADDITIONAL
SMALL CAUSE JUDGE, MACT AND XLI ACMM, BANGALORE,
AWARDING COMPENSATION OF RS.13,52,500/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.
3
IN MFA NO.2087/2015:
BETWEEN:
1. SRI. CHANDRAMOHAN
S/O RAMAKRISHNA,
AGED ABOUT 54 YEARS,
RESIDING AT NO.310,
33RD MAIN ROAD,
J.P.NAGAR VI PHASE,
BANGALORE-560078.
3. SMT. C. LATHA
W/O R.CHANDRAMOHAN,
AGED ABOUT 44 YEARS
4. SMT. BHARATHI
W/O LATE HARSHA VARDHAN,
AGED ABOUT 22 YEARS
5. KUM. NEEHARIKA.H.,
D/O LATE HARSHA VARDHAN,
AGED ABOUT 13 YEARS
SINCE MINOR REPRESENTED BY
HER MOTHER AS NATURAL GUARDIAN,
SMT. BHARATHI.
APPELLANTS 2 TO 4 ARE R/AT
NO.3-159, KUDISAGANAPALLI,
WARD-3,
THORAPALLI, AGRAHARAM,
ONNALAVADI POST,
HOSUR-635109.
... APPELLANTS
(BY SRI. GURUDEV PRASAD K.T., ADVOCATE)
AND:
1. THE NEW INDIA ASSURANCE CO. LTD.,
MOTOR THIRD PARTY CLAIMS HUB,
NO.9/2, MAHALAXMI CHAMBERS,
M.G.ROAD,
4
BANGALORE-560001.
BY ITS DIVISIONAL MANAGER.
2. SRI. SIVAM.K.,
S/O KUMARASWAMY,
MAJOR,
NO.114, KANAPATTY,
MARANPATTY,
KRISHNAGIRI DISTRICT,
TAMILNADU-635109.
... RESPONDENTS
(BY SRI. K.SURYANARAYANA RAO, ADVOCATE FOR
RESPONDENT NO.1;
SERVICE OF NOTICE TO RESPONDENT NO.2 IS DISPENSED
WITH VIDE COURT ORDER DATED 31.07.2015)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST
THE JUDGMENT AND AWARD DATED: 30.08.2014 PASSED IN
MVC NO.5452/2013 ON THE FILE OF THE XIX ADDITIONAL
SMALL CAUSE JUDGE, MACT AND XLI ACMM, BANGALORE,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ORDERS THIS DAY,
NATARAJ RANGASWAMY, J., DELIVERED THE FOLLOWING:
JUDGMENT
MFA No. 917/2015 is filed by the insurer challenging
the quantum of compensation awarded by the Motor
Accident Claims Tribunal, Bangalore (henceforth referred
as Tribunal) in terms of the Judgment and Award dated
30.08.2014 in MVC No. 5452/2013.
2. MFA No.2087/2015 is filed by the claimants
seeking enhancement of the compensation awarded in
MVC No.5452/2013 by the Motor Accident Claims Tribunal,
Bangalore in terms of the Judgment and Award dated
30.08.2014.
3. Though these appeals are listed for admission,
they are taken up for final disposal with the consent of the
learned counsel for the parties.
4. For the sake of brevity and convenience, the
parties shall henceforth be referred to as they were
referred before the Tribunal.
5. The claim petition discloses that the claimants
are the legal representatives of Mr.C. Harshavardhan.
It is stated that on 25.06.2013, said Mr.C.Harshavardhan
was riding a motor cycle bearing registration
No.TN-70-C-3568. He reached Attibele town at 07.15 p.m.
and when he reached Attibele border Arch on National
Highway No.7, a heavy goods vehicle bearing registration
No. TN-24-H-8256 (henceforth referred to as the offending
lorry) was steered from the opposite direction in a rash
and negligent manner and dashed against the motor cycle.
As a result, said Mr.C.Harshavardhan and another person
who was riding pillion fell on the road. The said
Mr.C.Harshavardhan died at the spot while the pillion rider
sustained severe head injuries. The claimants contended
that the accident was due to the rash and negligent driving
by the driver of the offending lorry. The claimant No.1
lodged a complaint against the driver of the offending lorry
and the jurisdictional police registered Crime No.183/2013
for the offence punishable under Sections 279, 304(A) and
338 of IPC. The claimants contended that the deceased
was aged 26 years old and was doing business in bricks
under the name RCM Brick Works and was earning a sum
of Rs.1,50,000/- per month. The claimants contended that
due to the death of the deceased, they were deprived of
the financial and emotional support provided by the
deceased. The claimants therefore filed a claim petition
claiming compensation of a sum of Rs.3,50,00,000/-
(Rupees Three crores Fifty lakhs only) against the owner
and insurer of the offending lorry.
6. The insurer contested the claim petition and
contended that it was the deceased who was negligent and
who was responsible for the accident. It was alleged that
the deceased was not riding the motor bike but was riding
pillion and the pillion rider who was injured in the accident
was the one who was riding it but he did not possess a
driving license. Therefore, the claimants had swapped the
name of the deceased as the person who was riding the
motor cycle at the time of the accident. They also
contended that the claim made by the claimants were
exorbitant and excessive.
7. With these contentions, the claim petition was
set down for trial. The claimant No.1 was examined as
PW-1 and he marked Ex.P1 to P11. The insurer did not
chose to lead any evidence and did not mark any
documents.
8. The Tribunal noticed that a complaint was
registered against the driver of the offending lorry. It also
noticed from Ex.P3-Motor Vehicle Accident report,
Ex.P4-Spot Panchanama, Ex.P5-sketch of scene of the
accident and the charge sheet at Ex.P8 and held that the
driver of the offending lorry was negligent and was
responsible for the accident.
9. In so far as the claim for compensation is
concerned, the Tribunal noticed that the claimant had not
produced any material proof to show that the deceased
was beneficially employed and that he had any source of
income. The Tribunal though noticed Ex.P11- the bank
passbook of the deceased which contained various financial
transactions, but yet the Tribunal did not consider it fit to
accept the said document as proof of income. The Tribunal
also noticed the deposition of PW-1, where he contended
that he and the deceased were looking after the business.
Therefore, the Tribunal held that in the absence of any
proof regarding the nature of the payment made to the
deceased, it could not be held that the deceased was
earning a sum of Rs.1,50,000/- per month. In that view of
the matter, the Tribunal considered the notional income of
the deceased at a sum of Rs.5,000/- per month. It
awarded the loss of future prospects at the rate of 50% of
the income of the deceased and thus the Tribunal awarded
the following compensation:
Heads under which Amount in
compensation awarded Rupees
Towards pain and agony 20,000-00
Towards Medical expenses 44,138-00
Towards loss of income 15,000-00
Towards loss of amenities 10,000-00
TOTAL 89,138-00
10. Feeling aggrieved by the Quantum of
compensation awarded by the Tribunal, the insurer and the
claimants are in appeal.
11. We have heard the learned counsel for the
parties and we have perused the records of the Tribunal as
well as its Judgment and award.
12. The insurer contended that the Tribunal
committed an error in considering the loss of future
prospects at 50% while the Apex Court in the case of
National Insurance Company Limited V/s Pranay
Sethi reported in (2017) 16 Supreme Court Cases 680
had held that the claimants are entitled to loss of future
prospects at 40% as the deceased was self employed.
Learned counsel for the insurer also contended that the
Tribunal committed an error in holding that the driver of
the offending lorry was negligent and responsible for the
accident.
13. Per contra, learned counsel for the claimants
contended that the insurer and the owner did not lead any
evidence before the Tribunal. They also did not examine
the driver of the offending lorry. They also pointed out
from the documents available on record, that the driver of
the offending lorry was responsible for the accident and
that since a claim for compensation under the Motor
Vehicles Act, 1988 must be considered on pre-ponderence
of probabilities and not proof beyond reasonable doubt,
the learned counsel contended that the driver of the
offending lorry was responsible for the accident. The
claimants contended that the Tribunal committed an error
in considering the notional income at the rate of
Rs.5,000/-. The learned counsel invited our attention to
Ex.P11 which is the bank passbook of the deceased which
indicated that several payments were received by him in
his account. The learned counsel submitted that this
document was obtained from a genuine source and
therefore ought to have been considered as sufficient
proof of the income of the deceased. He further contended
that the Tribunal failed to award compensation towards
loss of filial love and affection as well as the loss of
parental consortium and thus claimed that this Court may
award suitable compensation as declared by the Apex
Court in Magma General Insurance Company Limited
V/s Nanu Ramu Alias Chuhru Ram and others
reported in (2018) 18 Supreme Court Cases 130 and
United India Insurance Company Limited Vs.
Satinder Kaur @ Satwinder Kaur and others reported
in AIR 2020 SC 3076.
14. As rightly contended by the learned counsel for
the claimants, the insurer and the owner of the offending
lorry had not examined the driver of the offending lorry to
establish that he was not negligent. Thus, the only
evidence available on record is the testimony of PW1 and
the documentary evidence which are prepared by the
police after investigation and in the usual course of their
official duties. These documents indicate that the driver of
the offending lorry was charge sheeted for the offence
punishable under Sections 279, 304(A) and 338 of IPC.
Therefore, it has to be held that the driver of the offending
lorry was responsible for the accident and was negligent.
15. Insofar as the claim for compensation is
concerned, as rightly contended by the learned counsel for
the claimants, the account at Axis Bank as per Ex.P11 was
opened in the name of Harshavardhana as GPA holder of
RCM Brickworks. Ex.P11 indicates that the deceased had
received the payments from Utsav Foundation, Skyline
Consortium, ZN Microset, etc. It also shows that the
deceased was transacting lot of cash in his account. Under
the circumstances, it is quite probable that the claimant
had some business venture which could possibly be a
business of bricks. Therefore, the Tribunal ought to have
considered the notional income of the claimant at not less
than Rs.8,000/- per month as per guidelines issued by
Karnataka State Legal Services Authority. It is also
noticed that the deceased had raised a loan from
Sundaram Finance and was paying monthly installments of
more than Rs.14,000/- per month. Hence, the income of
the deceased must have been not less than Rs.8,000/- per
month. In that view of the matter, the Tribunal committed
an error in considering the notional income of the
deceased at a sum of Rs.5,000/- per month but must have
considered at a sum of Rs.8,000/- per month. In addition,
the Tribunal committed an error in considering the loss of
future prospects of the deceased at 50% of his income in
view of the law declared in National Insurance
Company Limited V/s Pranay Sethi reported in (2017)
16 Supreme Court Cases 680, that in respect of self
employed individual, loss of future prospects should be
calculated at 40%. The claimant Nos.1 and 2 were also
entitled to loss of filial consortium and claimant No.4 was
entitled to loss of parental consortium In that view of the
matter, the impugned Judgment and Award passed by the
Tribunal is liable to be set aside and the compensation be
re-determined as follows:-
Heads under which compensation Amount in
awarded Rupees
Loss of dependency at 17,13,600-00
Rs.11,200/- per month along with
loss of future prospects at 40%
after deducting 1/4th towards
personal living expenses of the
deceased x 12 x 17
Loss of consortium to the claimant 40,000-00
No.3
Loss of love and affection to claimant 80,000-00
Nos.1 and 2 at Rs.40,000/- each
Loss of parental love and affection to 40,000-00
claimant No.4
Loss of estate 25,000-00
Funeral and other obsequies and 25,000-00
other charges
TOTAL 19,23,600-00
16. In view of the above, the appeal filed by the
insurer is dismissed and the appeal filed by the claimants
is allowed in part and the compensation to which the
claimants are entitled is re-determined at a sum of
Rs.19,23,600/- which is payable by the insurer to the
claimants at the rate of 6% per annum from the date of
claim petition till the date of realization.
17. The compensation amount as re-determined by
this Court shall be deposited by the insurer within one
month from the date of receipt of certified copy of this
order.
18. The amount in deposit by the insurer shall be
transmitted to the Tribunal for necessary orders.
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JUDGE
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JUDGE
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