Shriram General Insurance Co Ltd vs Smt Senkavitha
2022 Latest Caselaw 523 Kant

                            1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 12TH DAY OF JANUARY, 2022

                        PRESENT
       THE HON'BLE MR. JUSTICE P S DINESH KUMAR
                          AND
     THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
             MFA.NO.4993 OF 2014(MV-D)

BETWEEN:

SHRIRAM GENERAL INSURANCE CO. LTD.,
#5, 3RD FLOOR, INFANTRY ROAD
BANGALORE-560 001
NOW REPRESENTED BY
ASSISTANT LEGAL MANGAR
SHRIRAM GENERAL INSURANCE CO. LTD.,
3RD FLOOR, S & S CORNER BUILDING
OPP: BOWRING & LADY CURZON HOSPITAL
SHIVAJI NAGAR, BENGALURU-560 001
                                           ...APPELLANT

(BY SRI. A.N. KRISHNA SWAMY, ADVOCATE)

AND:

1.     SMT. SENKAVITHA
       W/O LATE SUBRAMANIAN SUNDRAM
       NOW AGED ABOUT 37 YEARS

2.     MASTER KAVIN
       S/O LATE SUBRAMANIAN SUNDARAM
       NOW AGED ABOUT 6 YEARS
       SINCE MINOR REPRESENTED BY HIS NATURAL
       GUARDIAN/MOTHER, THE 1ST RESPONDENT
       HEREIN BOTH R/O #409, MAHAVEER SQUARE
       KODI CHIKKANAHALLY, BANGALORE

3.     AYYANAR K.
       S/O KALIYAPPA CHETTIYAR, MAJOR
                                 2


       R/O 704, KOTTANGAL VILLAGE
       KOTTANGAL POST CHANGAM TALUK
       TIRUVAMANAMALAI DISTRICT
       TAMIL NADU
                                             ...RESPONDENTS

(BY SRI. K.V. GIRISH, ADVOCATE FOR R1,
    R2 IS MINOR REP. BY R1,
    VIDE ORDER DTD.18.09.2017 NOTICE TO R3 IS D/W)


    THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 06.05.2014, PASSED IN MVC
NO.3264/2010, ON THE FILE OF THE XV ADDITIONAL JUDGE,
MACT, COURT OF SMALL CAUSES, BANGALURU, AWARDING
COMPENSATION OF RS.87,78,504/- WITH INTEREST @ 6%
P.A. FROM THE DATE OF PETITION TILL REALIZATION AND
ETC.
    THIS MFA COMING ON FOR ADMISSION, THIS DAY,
RAJENDRA BADAMIKAR J., DELIVERED THE FOLLOWING:

                         JUDGMENT

Insurance Company has filed this appeal under Section

173(1) of the MV Act challenging the judgment and award

dated 06.05.2014 passed by MACT and Court of Small

Causes, Mayo Hall Unit, Bengaluru ( 'Tribunal' for short) in

MVC No.3264/2010, whereby the Tribunal has awarded

compensation of Rs.87,78,504/- fastening the liability on the

on the owner and the insurer.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them before

the trial Court.

3. The brief factual matrix of the case is as under:

That on 04.10.2009 at 5.00 p.m., first claimant's

husband Subramanian Sundram was driving his car bearing

registration No.KA-51-P-6709 slowly and carefully. When he

reached near Karumangalam at Melchengam Pudur Junction,

Tamil Nadu, a lorry bearing registration No.TN-30-Y- 4447,

driven in a rash and negligent manner first dashed against

two wheeler and then against the car. Subramanian

sustained fatal injuries and died on the spot, while the other

inmate also suffered injury.

4. It is contended that the deceased was working as

a Senior Flex Developer and earning Rs.76,667/- per month.

Claimants are the wife and minor son of the deceased. It is

alleged that they have spent Rs.50,000/- towards medical

and funeral expenses. They assert that accident is because

of the actionable negligence on the part of the driver of the

lorry and sought compensation of Rs.2.00 crore.

5. Owner of the offending vehicle (Respondent No.2)

did not appear and the Insurer contested the claim

contending inter alia that the accident had occurred because

of the negligence on the part of the deceased himself, as he

drove his vehicle on the wrong side.

6. The Tribunal after appreciating the oral and

documentary evidence has come to a conclusion that

accident is because of the negligence on the part of the

driver of the lorry and awarded a compensation of

Rs.87,78,504/- and fastened the liability on both the owner

and insurer of the lorry.

7. Being aggrieved by this judgment and award, the

insurance company has filed this appeal.

8. We have heard the arguments advanced by the

learned counsel for the appellant-insurance company and

respondents-claimants at length. We have also perused the

records in detail.

9. Learned counsel for the appellant-insurance

company contended that the records disclose that when

accident has occurred, the lorry was on the left side of the

road. The car driver had moved to extreme right side of the

road. Therefore, negligence is entirely on the part of the

driver of the car. The Tribunal has failed to appreciate the

sketch of the scene of accident and the MV report, which

disclose that there has been head on collision on the left side

of the road. He urged that contributory negligence on the

part of the driver of the car, in the least may be taken at

60%, as he had moved on the wrong side of the road.

10. Per contra learned counsel for the claimants

submitted that the Tribunal is justified in holding that the

accident is because of the negligence on the part of the

driver of the offending lorry. He contended that police

records and charge sheet disclose that driver of the lorry has

been prosecuted. He further contended that the Tribunal has

not considered future prospects and the compensation

awarded under the Conventional heads is also on the lower

side. He urged that though there is no cross objection, this

Court is empowered to grant enhanced just compensation. In

this context he placed reliance on the decision of this Court

in MFA No.9140/2010 dated 08.07.2019 (Bajaj Allainz

General Insurance Company Ltd., vs. B.Krishnappa

Setty and Ors.) and a judgment of Delhi High Court in

MAC.App.587/2011 dated 22.01.2015 (United India

Insurance Co. Ltd., vs. Ashok Kumar & Ors.).

11. It is not in dispute that the victim has succumbed

to the injuries sustained in the road traffic accident. There is

no serious dispute regarding his age of 34 years, as on the

date of the accident and his monthly income of

Rs.76,667/-.

12. It was argued by the learned counsel for the

insurer that the Tribunal is justified in taking income of the

deceased at Rs.8,19,704/- after deducting Professional Tax

and Income Tax and 1/3rd towards his personal expenses.

However, in his usual fairness, he did not dispute that 40%

of income has to be added towards future prospects. He

contended that the Tribunal has failed to consider the

contributory negligence on the part of the deceased.

13. The spot mahazar Ex.P6 and sketch Ex.P9

disclose that the car had moved on the extreme right side of

the road.

14. Learned counsel for the insurer has invited our

attention towards the recitals of the complaint marked at

Ex.P2. Ex.P1 and Ex.P2 are the FIR and gist of complaint.

From Ex.P2, it is evident that the Inspector of Police after

receiving the message went to Government hospital

Chengam and recorded the statement of one Senthilkumar

who has stated that the lorry had dashed on the hind side of

his two wheeler and then hit the car coming from opposite

direction. Thus, it is evident that the offending lorry first

knocked down the two wheeler and then hit the car. Hence,

the negligence on the part of the driver of the offending

vehicle cannot be disputed.

15. All records disclose that there was head on

collision between the lorry and car. As observed above, it is

for the claimants to explain as to why the car moved on the

wrong side of the road when it collided with the lorry. The

best witness would have been one Lokesh who was an

inmate of the car. Though PW.1 who is the claimant (wife)

has admitted this aspect, has stated that he was a friend of

her deceased husband and his whereabouts were not known.

The burden is on the claimants to explain under what

circumstances the car moved on the wrong side, but there is

no explanation in that regard.

16. A careful analysis of Ex.P1 and Ex.P2 shows that

lorry has first hit the two wheeler. When there was an

accident right in front, it is reasonable to infer that driver of

car may have lost control and moved towards right side. In

any event, it is not in dispute that the lorry has knocked

down the two wheeler. Therefore, in our considered opinion,

both the drivers of lorry and the car were equally negligent.

17. There is no serious dispute with regard to

earnings of the deceased as Rs.76,667/- per month as on

the date of the accident. Since, he had two dependents 1/3rd

is required to be deducted. After deduction of income tax,

professional tax and 1/3rd towards his personal expenditure,

the Tribunal is justified in taking annual income of the

deceased at Rs.8,19,704/-.

18. Since the deceased was having independent

private profession, 40% is to be added to future prospects

and his annual income would work out to Rs.11,47,586/

(Rs.8,19,704 x 40/100 = 3,27,882 + 8,19,704). Hence, he

would have earned Rs.11,47,586/- per annum and 1/3rd of

it needs to be deducted towards his personal expenses.

Since the deceased was aged about 34 years, the multiplier

'16' is applicable as per the decision of the Hon'ble Apex

Court in the case of Smt.Sarla Verma and Ors vs. Delhi

Transport Corporation and Anr reported in AIR 2009 SC

3104. Hence, loss of income under the head of dependency

would work out to be Rs.7,65,058/- X 16 =

Rs.1,22,40,928/-.

19. Claimants being the widow and minor son are

entitled for Rs.40,000/- each under the head of loss of

consortium and Rs.30,000/- towards conventional heads.

The total compensation is computed as follows :

  Sl.No.         Compensation Heads          Amount            in
                                             Rupees

   1         Loss of dependency                 1,22,40,928/-

   2         Loss of estate                      15,000-00

   3         Funeral Expenses                    15,000-00

   4         Consortium(Rs.40,000/-              80,000-00
             x2)

                                Total          1,23,50,928/-

20. We have held that driver of the car was equally

negligent. Hence, claimants shall be entitled for 50% of the

total compensation of Rs.61,75,464/- with interest at 6%

per annum from the date of petition till the date of

realization.

21. In the result, the following:

ORDER

The appeal is allowed in part.

The judgment and award passed by the Tribunal is modified and claimants (respondents No.1 and 2 in this appeal) are held entitled for total compensation of Rs.61,75,464/- (Rs.1,23,50,928 x 50%) with interest at the rate of 6% per annum from the date of petition till realization from the owner and the insurer as against Rs.87,78,504/- awarded by the Tribunal. Primary liability is fastened on Insurer (appellant herein)

The appellant shall deposit the awarded compensation within six weeks from the date of receipt of certified copy of this order. The release, apportionment and deposit, shall be as per the order of the Tribunal.

Registry shall transmit the amount in deposit to the Tribunal forthwith.

No costs.

Sd/-

JUDGE

Sd/-

JUDGE NS