Royal Sundaram General Insurance ... vs Smt.Sowbhagya K P
2021 Latest Caselaw 1816 Kant

                          1



   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23RD DAY OF MARCH, 2021

                      PRESENT

        THE HON'BLE MR. JUSTICE ALOK ARADHE

                         AND

        THE HON'BLE MR. JUSTICE M.G.S. KAMAL

           M.F.A. NO.8802/2018 (MV - D)
                         C/W.
           M.F.A. NO.3079/2019 (MV - D)


IN M.F.A. NO.8802/2018



BETWEEN:

ROYAL SUNDARAM GENERAL INSURANCE CO. LTD.,
(FORMERLY KNOWN AS ROYAL SUNDARAM ALLIANCE
INSURANCE CO., LTD.,),
BRIGADE ROAD, NEXT TO BRIGADE TOWERS,
BENGALURU - 560 025.
REPRESENTED BY REGIONAL OFFICE
NO.30, 3RD FLOOR, JNR CITY CENTRE,
RAJRAM MOHAN ROY ROAD,
SAMPANGIRAMA NAGAR,
BENGALURU - 560 027
BY ITS STATE HEAD LEGAL
MR.S.K.SANDEEP.
                                      ... APPELLANT

(BY SRI. RAVI S. SAMPRATHI, ADVOCATE)
                            2



AND:

1.     SMT.SOWBHAGYA K.P.,
       WIFE OF LATE RUDRESHAIAH K.H.,
       AGED ABOUT 42 YEARS.

2.     NANDANA R.,
       SON OF LATE RUDRESHAIAH K.H.,
       AGED ABOUT 19 YEARS.

3.     SANJAN R
       SON OF LATE RUDRESHAIAH K.H.,
       AGED ABOUT 14 YEARS

4.     HOSALAYYA
       SON OF LATE VEERAPPA,
       AGED ABOUT 74 YEARS.

5.     PARVATHAMMA
       WIFE OF HOSALAYYA,
       AGED ABOUT 67 YEARS.

       REPONDENT NO.3 MINOR REPRESENTED
       BY RESPONDENT AS MOTHER AND NATURAL
       GUARDIAN

       RESPONDENT NO.1 TO 3 ARE RESIDING AT
       NO.8161, 3RD CROSS, NEAR MES SCHOOL,
       CHANNAPPA BADAVANE,
       NELAMANGALA TOWN,
       BENGALURU RURAL DISTRICT - 562 123.

       RESPONDENT NO.4 AND 5 ARE RESIDING AT
       NO.19, KANNASANDARA, SOLUR HOBLI,
       LAKKENAHALLI POST, MAGADI TALUK,
       RAMANAGARA DISTRICT - 577 501.

6.     RSK TRANSPORTS
       TB ROAD, MICO PUMP
       OPPOSITE TO BHAVANI MAIN ROAD,
                            3



      SHANKARI TALUK, SALEM DISTRICT,
      TAMIL NADU -637 301
      REPRESENTED BY ITS MANAGER.
                                           ... RESPONDENTS

(By Sri. SHRIPAD V. SHASTHRI, ADVOCATE FOR R1 TO R5;
  R3 IS MINOR REP. BY R1; R6 SERVED AND
  UNREPRESENTED)

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV
ACT   AGAINST   THE   JUDGMENT       AND   AWARD     DATED
09.07.2018 PASSED IN MVC NO.8181/2016 ON THE FILE OF
THE XIX ADDITIONAL SCJ & MACT, BENGALURU [SCCH- 17],
AWARDING    COMPENSATON        OF   RS.56,47,264/-    WITH
INTEREST @ 7.5% P.A.FROM THE DATE OF PETITION TILL
REALIZATION.


IN M.F.A. NO.3079/2019


BETWEEN:

1.    SMT.SOWBHAGYA K. P.
      W/O. LATE RUDRESHAIAH K. H.,
      AGED ABOUT 43 YEARS,

2.    MASTER NANDANA. R.,
      S/O. LATE RUDRESHAIAH K. H.,
      AGED ABOUT 20 YEARS.

3.    MASTER SANJAN R.,
      S/O LATE RUDRESHAIAH K.H.,
      AGED ABOUT 15 YEARS.

      APPELLANTS 1 TO 3 ARE
      RESIDING AT NO.8161,
      3RD CROSS, NEAR MES SCHOOL,
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       CHANNAPPA BHADAVANE,
       NELAMANGALA TOWN,
       BENGALURU RURAL DISTRICT.

                                          ... APPELLANTS
(BY SRI SHRIPAD V. SHASTRI, ADVOCATE)


AND:

1.     MR. RSK TRANSPORTS
       T.B. ROAD, MICO PUMP
       OPP. BHAVANI MAIN ROAD,
       SANKARI TALUK,
       SELAM DISTRICT,
       TAMIL NADU - 637 301.

2.     THE MANAGER
       ROYAL SUNDARAM ALLIANCE
       INSURANCE COMPANY LTD.,
       BRIGADE ROAD,
       NEXT TO BRIGADE TOWERS,
       BENGALURU-560 025.

3.     SRI. HOSALAYYA
       S/O. LATE VEERANNA,
       AGED ABOUT 75 YEARS,

4.     SMT. PARVATHAMMA
       W/O. HOSALAYYA,
       AGED ABOUT 68 YEARS,

       RESPONDENT 3 AND 4 ARE RESIDING AT NO.19,
       KANNASANDRA, SOLUR HOBLI,
       LAKKENAHALLI POST, MAGADI TALUK,
       RAMANAGARA DISTRICT.

                                        ... RESPONDENTS

(BY SRI RAVI S.SAMPRATHI, ADVOCATE FOR R2)
                              5



                                 ---

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.07.2018, PASSED IN MVC NO.8181/2016, ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSES JUDGE AND MACT, BENGALURU (SCCH-17), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THESE M.F.As. COMING ON FOR ORDERS, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

MFA No.8802/2018 has been filed by the Insurance

Company questioning the involvement of the insured Lorry in

the accident, whereas MFA No.3079/2019 has been filed by

the claimants seeking enhancement of compensation against

the judgment dated 09.07.2018 passed by the Motor

Accident Claims Tribunal, Bengaluru.

2. Since the appeals arise out of the same accident,

they were heard together meticulously and are decided by

this common judgment.

3. Facts giving rise to the filing of the appeal briefly

stated are that, on 16.12.2016, at about 8.30 a.m., when the

deceased Rudreshaiah was riding a motorcycle bearing

registration No.KA-04/ES-4604 towards Bengaluru from

Nelamangala on Tumkur- Bengaluru NH-4 road, when he

reached near Kumar Petrol Bunk, Madanayakanahalli,

Dasanapura, Benglauru, at that time, a Lorry bearing

registration No.TN-52/F-5398, which was being driven by its

driver in a rash and negligent manner dashed against the

motorcycle of the deceased. As a result of the aforesaid

accident, the deceased fell down from the motorcycle,

sustained grievance injuries and succumbed to the same.

There upon, the claimants filed a petition under Section 166

of the Motor Vehicles Act, 1988, inter alia, on the ground that

the accident took place only due to rash and negligent

driving of the driver of the Lorry, it was further pleaded that

the deceased, at the time of accident was employed as a

Teacher in a Government School and was earning a salary of

Rs.35,000/- p.m. The claimants accordingly claimed

compensation to the tune of Rs.60,00,000/- .

4. First respondent did not appear and the Tribunal

proceeded to place it as exparte. On receipt of notice of the

proceedings, the second respondent filed written statement

in which, inter alia, the Insurance Company denied the

averments made in the claim petition and pleaded that the

petition is bad in law for violation of the provisions of Section

158(6) of the Motor Vehicles Act, as the jurisdictional police

failed to furnish the particulars and documents of the

offending vehicle and the accident within time. It denied the

involvement of the insured Lorry in the accident, pleaded

that the accident has taken place on account of rash and

negligent driving of the motorcycle by the deceased himself

and the petition is bad for non-joinder of the owner and

insurer of the motorcycle. The income and the avocation of

the deceased was also denied.

5. The claimants, in order to prove their case,

examined three witnesses, out of which, the first petitioner

got examined herself as PW- 1, another two are K.N.Suresh

and K. Venkatesh, as PWs.-2 and 3 and got marked 31

documents namely Ex.P1 to Ex.P31. The Insurance Company

examined three witnesses, namely, Thirupathi, G.R.Ramesh

and Sandeep S.K. and did not adduce any documentary

evidence. The Claims Tribunal on the basis of the evidence

on record held that the accident took place on account of

rash and negligent driving of the driver of the Lorry, by which

the deceased sustained injuries and succumbed to the same.

It is further held that the claimants are entitled to the

compensation to the tune of Rs.56,47,264/- along with

interest at the rate of 7.5% p.a. and the Insurance Company

is liable to pay the aforesaid amount. In the aforesaid

factual background, the Insurance Company has filed

M.F.A.No.8802/2018 challenging the liability and the

claimants have filed M.F.A.No.3079/2019, seeking

enhancement of compensation.

6. Learned counsel for the Insurance Company opposes

the involvement of the insured Lorry in the accident and

submitted that the same is on account of rash and negligent

driving of the motorcycle by the deceased. In this

connection, he has invited our attention to the evidence of

RWs.1 and 2, who are driver of the Lorry and the

Investigating Officer, by referring to Ex.P8 - sketch and

submitted that as per the contents of Ex.P8, it is clear that

the motorcycle has hit the offending Lorry from behind. It

was also submitted that the IMV report at Ex.P5, indicates

the nature of damages caused to the motorcycle and the

offending Lorry has not sustained any damage. He also

submitted that the Tribunal is not justified in discarding the

evidence produced by the Insurance Company and awarding

interest on the compensation amount at the rate of 7.5%

p.a.

7. On the other hand, learned counsel for the claimants

submitted that the findings recorded by the claims Tribunal

with regard to the involvement of the insured vehicle and the

manner of the accident is after meticulous appreciation of

material on record and hence, does not call for any

interference in these appeals. It is further submitted that the

amount of compensation awarded by the claims Tribunal is

on the lower side and deserves to be enhanced.

8. We have considered the submissions made by the

learned counsel for the parties and have perused the record.

9. The claimants to prove their case examined one

witness namely K.N.Suresh, who is an eyewitness to the

accident as PW.2. The aforesaid witness has stated about

the manner in which the accident had taken place and rash

and negligent driving of the offending Lorry which dashed the

motorcycle from behind. He has further deposed that on

account of the accident, deceased fell down and sustained

injuries. It is pertinent to note that in the cross-

examination, no such suggestion has been made to the

aforesaid eyewitness that the motorcycle hit the offending

Lorry from behind. Therefore, there appears to be no

plausible reason to disbelieve the testimony of the evidence

of this witness. Even otherwise, the claimants are required

to prove the factum of the accident on the basis of

preponderance of probabilities. Therefore, we confirm the

finding recorded by the claims Tribunal with regard to the

manner of accident and the involvement of the offending

Lorry.

         10.    Now,    we     may   advert   to   the   quantum    of

compensation.          The deceased Rudreshaiah was aged 44

years at the time of accident and was employed as a Teacher

in the Government School. From the perusal of Ex.P.16, -

salary slips from January 2016 to November 2016, it is

evident that the deceased was drawing Rs.34,049/- p.m.,

after deductions. To the aforesaid sum, 30% shall be added

on account of future prospects as per the decision of the

Supreme Court in the case of NATIONAL INSURANCE

COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS

reported in AIR 2017 SC 5157. Thus, the monthly income

of the deceased comes to Rs.44,263/-. Since the number of

dependents is '5', 1/4th of the amount has to be deducted on

account of personal expenses. Thus, the monthly

dependency of the claimants comes to Rs.33,197/- and

taking into account the age of the deceased, multiplier of '14'

is applicable. Thus, a sum of Rs.55,77,096/- is payable to

the claimants on account of loss of dependency instead of

Rs.55,77,264/- awarded by the Tribunal.

11. In view of the law laid down by the Hon'ble

Supreme Court in the case of MAGMA GENERAL

INSURANCE COMPANY LIMITED Vs. NANU RAM & ORS.

reported in (2018) 18 SCC 130, which has been

subsequently clarified in the case of UNITED INDIA

INSURANCE CO. LTD. VS. SATINDER KAUR AND ORS.

reported in AIR 2020 SC 3076, each of the claimants are

entitled to a sum of Rs.40,000/- on account of loss of

consortium and loss of love and affection. Thus, the

claimants are held entitled to Rs.2,00,000/-. In addition,

claimants are held entitled to Rs.30,000/- on account of loss

of estate and funeral expenses. Thus, in all, the claimants

are entitled to the total compensation of Rs.58,07,096/-. It

is needless to say that the enhanced amount of

compensation shall carry interest at the rate of 6% p.a. from

the date of petition till the date of realization.

To the aforesaid extent, the judgment of the Claims

Tribunal is modified.

The amount in deposit, if any, shall be transmitted to

the Claims Tribunal for payment to the claimants.

Accordingly, the appeals are disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

nvj