Karnataka High Court

The National Insurance Company ... vs Durgappa Yallappa Midakanatti on 11 March, 2022

Bench: N.S.Sanjay Gowda

        IN THE HIGH COURT OF KARNATAKA
                 AT BENGALURU

     DATED THIS THE 11 T H DAY OF MARCH, 2022

                          BEFORE

THE HON'BLE MR.JUSTICE N.S. SANJAY GOWDA

                MFA No.102812/2016 (MV)

Between:

The National Insurance Company Ltd.,
Rep. by the Senior Divisional Manager,
Divisional Officer at Prabhu Building,
Ramdev Galli, Belagavi,
Rep. by its Manager,
The National Insurance Company Ltd.,
Regional Office Arihanth Plaza,
Kusugal Road, Hubballi.
                                          ... Appellant

(By Shri G.N. Raichur, Advocate)


And:

1.     Durgappa Yallappa Midakanatti,
       Age 51 years, Occ: Agriculture,
       R/o.: Santi Bastawad,
       Tq.: & Dist.: Belagavi-590 001.

2.     Renuka Durgappa Midakanatti,
       Age 45 years, Occ: Household,
       R/o.: Santi Bastawad,
       Tq.: & Dist.: Belagavi-590 001.

3.     Ramkrishna
       S/o. Durgappa Midakanatti,
                              :2:



      Age 25 years, Occ: Nil,
      R/o.: Santi Bastawad,
      Tq.: & Dist.: Belagavi-590 001.

4.    Nirmala
      D/o. Durgappa Midakanatti,
      Age 24 years, Occ: Student,
      R/o.: Santi Bastawad,
      Tq.: & Dist.: Belagavi-590 001.

5.    Abdulrashid S/o. Ghudusaheb Sheikh,
      R/o.: Classic Apartment, Flat No.4,
      4th Cross, Pixeam Dongeri Vasco D Gama,
      Goa-403 802.

6.    TATA AIG General Insurance Company Ltd.,
      Penisulla Corporate Park Nicholas
      Piramal Towers, 9th Floor,
      Ganapatrao KAdam, Marg Lower Parel,
      Mumbai-400 001.
                                           ... Respondents

(By Shri Ashok A.Naik, Advocate for R1 to R4;
 Respondent No.5 served & Un-represented;
 Shri S.K. Kayakamath, Advocate for R6)


      This MFA is filed under Section 173(1) of M.V. Act,
against the Judgment and Award dated 14.06.2016, passed in
MVC No.2005/2013 on the file of the VI-Addl. District and
Sessions Judge and Member Addl. MACT, Belagavi, awarding
the compensation of Rs.14,76,000/- with interest at the rate
of 9% p.a. from 23.09.2013 till realization which shall be paid
deposited before the Tribunal within one month from the dfate
of this order.


      This appeal coming on for admission, this day, the Court
delivered the following:
                               :3:



                           JUDGMENT

1. The appellant - Insurance Company is in

appeal challeng ing the Judgment and Award dated

14.06.2016 awarded for the death of Kallappa in an

accident, which occurred don 04.06.2013. The

Insurance Company is challenging the award both on

the aspect of neg ligence as well as on the quantum.

2. Learned counsel for the appellant

contended that a perusal of Ex.R2 would ind icate that

the motorcycle rider had entered into the road

abruptly and this had caused the collusion. According

to him, in view of the manner in which, the accid ent

has been depicted in Ex.R2, it is clear that the rider

of the motorcycle alone was responsible for the

accident or he was at least responsible to the extent

of 50%.

3. Learned counsel for the appellant also

contended that the notional income determined at

Rs.7,500/- per month and the compensation of

Rs.2,00,000/- awarded by the Tribunal towards loss

of love and affection towards father and mother and

loss of estate was exorbitant and deserves to be

reduced.

4. A perusal of Ex.R2 would ind icate that the

accident occurred virtually after the motorcycle had

completed the right turn. The p hotograp h, which is

enclosed to the charge sheet, which was made

availab le by the learned counsel for the claimants

indicate that the road from which the motorcycle

driver came out and on to the road where the

accident occurred would be clearly visib le to the

driver of the car. It also ind icates that had the driver

approached the intersection in a cautious manner, he

could have had a clear vision and could have avoided

the impact. The fact that the impact between the car

and the motorcycle occurred virtually after the

motorcycle had taken the right turn indicates that

the car driver has essentially failed to notice the

motorcycle completely. The argument of the learned

counsel on the ground that there was at least 50%

negligence on the part of the motorcycle driver is

unacceptable and is rejected.

5. The Tribunal has however, regarding

negligence of the motorcycle rider has held that the

deceased had also contributed to the accident by

about 10%. In my view, this assessment of the

Tribunal meets the ends of justice and therefore, it

does not call for any interference.

6. The evidence on record indicates that the

deceased had stud ied 2nd PUC. The Tribunal has

determined the income of the deceased at Rs.7,500/-

per month. The argument of the learned counsel that

at the relevant point of time i.e., in the year 2013,

the Karnataka State Legal Service Authority had

determined the monthly income at Rs.7,000/- and

the same ought to be taken into consideration cannot

be accepted. In this case, the deceased had studied

up to 2 n d PUC and he would have earned more than a

sum of Rs.7,000/- per month that is determined by

the Karnataka State Legal Service Authority, which is

indication of the minimum wage that a person would

earn in the relevant year. I therefore affirm the

finding of the Tribunal that the deceased was earning

Rs.7,500/- per month.

7. The Tribunal has however awarded future

prospects at the rate of 50%. This is contrary to the

decision of the Hon'ble Apex Court rendered in the

case of National Insurance Company Limited V.

Pranay Sethi and others, reported in (2017) 16 SCC

680. The claimants would be entitled to future

prospects only at the rate of 40% as per this

decision.

8. As, the deceased was a bachelor at the

time of accident, the Tribunal has rig htly deducted

50% towards personal expenses of the deceased and

has also applied the correct multiplier of 18 to

calculate the loss of dependency. Hence, the

compensation towards loss of dependency, the

claimants would be entitled to Rs.11,34,000/-

(Rs.7,500/- + 40% - 50% x 12 x 18).

9. The claimants are parents and siblings of

the deceased. As per the decision of the Hon'ble Apex

Court in the case of Pranay Sethi (Supra), each of

them would be entitled to Rs.44,000/- towards loss

of love and affection. Hence, the claimants would be

entitled to a sum of Rs.1,76,000/-(Rs.44,000/- x 4).

10. The claimants would also be entitled to a

sum of Rs.33,000/- under conventional heads.

11. The compensation of Rs.2,00,000/-

awarded by the Tribunal toward s medical expenses

which is based on the documentary evidence is

affirmed.

12. Thus, the claimants would be entitled to

the following sums:

   Loss of dependency                         11,34,000/-
   Loss of love and affection                  1,76,000/-
   Towards conventional heads                    33,000/-
   Towards medical expenses                    2,00,000/-
                Sub Total                    15,43,000/-
   Less: 10% negligence attributed             1,54,300/-
         to the deceased
                  TOTAL                      13,88,700/-

13. Accordingly, the appeal is allowed in part.

The claimants would be entitled to a total

compensation of Rs.13,88,700/- instead of

Rs.14,76,000/- awarded by the Tribunal along with

interest at the rate of 9% p.a. from the date of

petition till the d ate realization.

14. The appellant Insurance Company is

directed to deposit the entire compensation amount

before the Tribunal within a period of four weeks

from today for disbursement, if it is not already

deposited.

15. The amount in d eposit shall be transmitted