Karnataka High Court
Reliance General Insurance Co., ... vs Shekamma W/O Late Thippeswamy on 11 March, 2022
Bench: N.S.Sanjay Gowda
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11 T H DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
M.F.A. No.24772/2012
C/W. M.F.A. No.23975/2012,
M.F.A. Nos.21452 AND
M.F.A. No.21453 OF 2013
IN M.F.A. NO.24772/2012:
BETWEEN:
RELIANCE GEN. INS. CO. LTD.,
PARVATHI NAGAR, BELLARY.
REPRESENTED BY ITS
DEPUTY MANAGER LEGAL CLAIMS,
CTS, 472-474, V A KALBURGI SQUARE, DESAI CIRCLE,
DESHAPANDE NAGAR, HUBLI.
... APPELLANT
(SRI.NAGARAJ C. KALLOORI, ADV.)
AND:
1. SMT. SATYAMMA W/O. LATE. RAMANNA
AGE: 38 YEARS, OCC: HOUSEWIFE
2. JAGADISH S/O. RAMANNA
AGE: 20 YEARS, OCC: STUDENT
3. HARISH S/O. LATE RAMANNA
AGE: 17 YEARS, OCC: STUDENT
4. TAYAMMA D/O. RAMANNA
AGE: 14 YEARS, OCC: STUDENT
SINCE RESPONDENT NO.3 AND 4 ARE MINORS
R/BY THEIR MOTHER-R1
:2:
5. SMT. TAYAMMA W/O. RAMA MALIYAPPA
AGE: 65 YEARS, OCC: NIL
RESPONDENT NOS.1 TO 5 ARE
R/O. KAMALAPURA VILLAGE,
TQ. HOSPET, DIST. BELLARY.
6. SRI. PEERA @ HUSSAIN PEERA
S/O. DRIVER SHAREEF @ SHAREED SAB
AGE: 26 YEARS, OCC: DRIVER,
R/O. YASHAVANTANAGAR,
TQ. SANDUR, DIST. BELLARY.
7. SRI. CHANNABSAPPA S. NAGAVI
S/O. SHIVAPPA
AGE: 40 YEARS, OCC: BUSINESS,
R/O. MARADI JAMBAPPA,
W.NO.17, NEAR UKKADAKERI, HOSPET,
DIST. BELLARY.
8. SRI. S. RAHULKUMAR S/O. S. BHARGAVA
AGE: 23 YEARS, OCC: DRIVER,
R/O. ALLUM STREET, W.NO.12,
NEAR CUMMING ROAD, BELLARY.
9. M/S. UNITED INDIA INSURANCE CO. LTD.,
BY ITS DIVISIONAL MANAGER,
BELLARY.
.... RESPONDENTS
(BY SRI. Y. MALATHI REDDY, ADV. FOR R1-R4;
SRI. S. M. KALAWAD, ADV. FOR R8;
SRI. M. K. SOUDAGAR, ADV. FOR R9;
R5 AND R6-SERVED;
R7- HELD SUFFICIENT)
THIS APPEAL IS FILED UNDER SECTION 173 (1) OF M.V. ACT,
AGAINST THE JUDGMENT AND AWARD DATED 21.06.2012 PASSED IN
MVC NO.1383/2011 ON THE FILE OF THE MEMBER, MACT-IX,
BELLARY, AWARDING THE COMPENSATION OF RS.8,47,500/- WITH
INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF PETITION
TILL ITS DEPOSIT.
:3:
IN M.F.A. NO.23975/2012:
BETWEEN:
RELIANCE GEN. INS. CO. LTD.,
PARVATHI NAGRA, BELLARY.
REPRESENTED BY ITS
DEPUTY MANAGER LEGAL CLAIMS,
CTS, 472-474, V A KALBURGI SQUARE, DESAI CIRLE,
DESHAPANDE NAGAR, HUBLI.
... APPELLANT
(SRI. NAGARAJ C. KALLOORI, ADV.)
AND:
1. SMT. SHEKAMMA W/O. LATE. THIPESWAMY
AGE: 19 YEARS, OCC: HOUSEWIFE
2. SMT. PARVATAMMA W/O. LATE. SHIVARAMAPPA
AGE: 45 YEARS, OCC: HOUSEWIFE
BOTH ARE R/O. KAMALAPURA VILLAGE,
TQ. HOSPET, DIST. BELLARY.
3. SRI. PEERA @ HUSSAIN PEERA
S/O. DRIVER SHAREEF @ SHAREEF SAB
AGE: 26 YEARS, OCC: DRIVER,
R/O. YASHAVANTANAGAR,
TQ. SANDUR, DIST. BELLARY.
4. SRI. CHANNABSAPPA S. NAGAVI
S/O. SHIVAPPA
AGE: 40 YEARS, OCC: BUSINESS,
R/O. MARADI JAMBAPPA, W. NO.17,
NEAR UKKADAKERI, HOSPET,
DIST. BELLARY.
5. SRI. S. RAHULKUMAR S/O. S. BHARGAVA
AGE: 23 YEARS, OCC: DRIVER,
R/O. ALLUM STREET, W.NO.12,
NEAR CUMMING ROAD, BELLARY.
6. M/S. UNITED INDIA INSURANCE CO. LTD.,
BY ITS DIVISIONAL MANAGER,
BELLARY.
.... RESPONDENTS
(BY SRI. Y. MALATHI REDDY, ADV. FOR R1 AND 2;
:4:
SRI. S. M. KALAWAD, ADV. FOR R5;
SRI. M. K. SOUDAGAR, ADV. FOR R6;
R3- HELD SUFFICIENT;
R4- DISPENSED WITH)
THIS APPEAL IS FILED UNDER SECTION 173 (1) OF M.V. ACT,
AGAINST THE JUDGMENT AND AWARD DATED 21.06.2012 PASSED IN
MVC NO.1382/2011 ON THE FILE OF THE MEMBER, MACT-IX,
BELLARY, AWARDING THE COMPENSATION OF RS.9,01,500/- WITH
INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF PETITION
TILL ITS DEPOSIT.
IN M.F.A. NO.21452/2013:
BETWEEN:
1. SMT. SHEKAMMA,
W/O. LATE THIPPESWAMY,
AGED ABOUT 21 YEARS,
WIFE OF THE DECEASED THIPPESWAMY
2. SMT. PARVATHAMMA
W/O. LATE SHIVA RAMAPPA,
AGED ABOUT 47 YEARS,
MOTHER OF THE DECEASED THIPPESWAMY
BOTH ARE R/O. KAMALAPURA VILLAGE,
HOSPET TALUK,
BELLARY DISTRICT.
... APPELLANTS
(SMT. Y. MALATHI REDDY, ADV.)
AND:
1. CHANNA BASAPPA S NAGAVI
S/O. SHIVAPPA NAGAVI,
AGED ABOUT 42 YEARS,
OWNER OF THE TIPPER LORRY BEARING
REG. NO.KA-35/A 2983,
AP-02/TA 3683,
C/O. MARADI JAMBAPPA,
W.NO.17, NEAR UKKADAKERI,
HOSPET.
:5:
2. M/S. RELIANCE INSURANCE CO. LTD.,
REP. BY ITS MANAGER,
PARVATHI NAGAR,
BELLARY.
3. S. RAHUL KUMAR,
S/O. S. BHARGAVA,
OWNER OF THE CAR BEARING
REG. NO.KA-34/M 5374,
R/O. ALLUM STREET,
WARD NO.12, NEAR CUMMING ROAD,
BELLARY.
4. M/S. UNITED INDIA INSURANCE CO. LTD.,
BY ITS DIVISIONAL MANAGER,
BELLARY.
.... RESPONDENTS
(BY SRI.NAGARAJ C. KALLORI, ADV. FOR R2;
SRI. M. K. SOUDAGAR, ADV. FOR R4;
R1 AND 3- NOTICE DISPENSED WITH)
THIS APPEAL IS FILED UNDER SECTION 173 (1) OF M.V. ACT,
AGAINST THE JUDGMENT AND AWARD DATED 21.06.2012 PASSED IN
MVC NO.1382/2011 ON THE FILE OF THE MEMBER, MACT-IX,
BELLARY, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A. NO.21453/2013:
BETWEEN:
1. SMT. SATHYAMMA,
W/O. LATE RAMANNA,
AGED ABOUT 40 YEARS,
WIFE OF THE DECEASED RAMANNA
2. JAGADISH,
S/O. LATE RAMANNA,
AGED ABOUT 22 YEARS
3. HARISHA
S/O. LATE RAMANNA,
AGED ABOUT 19 YEARS
:6:
4. KUM. TAYAMMA
D/O. LATE RAMANNA,
AGED ABOUT 16 YEARS.
5. SMT. TAYAMMA,
W/O. LATE RAMA MALIYAPPA,
AGED ABOUT 67 YERS,
MOTHER OF THE DECEASED RAMANNA
ALL ARE R/O. KAMALAPURA VILLAGE,
HOSPET TALUK, BELLARY DISTRICT.
... APPELLANTS
(SRI. Y. MALATHI REDDY, ADV.)
AND:
1. CHANNA BASAPPA S NAGAVI
S/O. SHIVAPPA NAGAVI,
AGED ABOUT 42 YEARS,
OWNER OF THE TIPPER LORRY BEARING
REG. NO.KA-35/A 2983,
AP-02/TA 3683,
C/O. MARADI JAMBAPPA,
W.NO.17, NEAR UKKADAKERI,
HOSPET.
2. M/S. RELIANCE INSURANCE CO. LTD.,
REP. BY ITS MANAGER,
PARVATHI NAGAR,
BELLARY.
3. S. RAHUL KUMAR,
S/O. S. BHARGAVA,
OWNER OF THE CAR BEARING
REG. NO.KA-34/M 5374,
R/O. ALLUM STREET,
WARD NO.12, NEAR CUMMING ROAD,
BELLARY.
4. M/S. UNITED INDIA INSURANCE CO. LTD.,
BY ITS DIVISIONAL MANAGER,
BELLARY.
.... RESPONDENTS
(BY SRI.NAGARAJ C. KALLORI, ADV. FOR R2;
SRI. M. K. SOUDAGAR, ADV. FOR R4;
R1 AND 3- NOTICE DISPENSED WITH)
:7:
THIS APPEAL IS FILED UNDER SECTION 173 (1) OF M.V. ACT,
AGAINST THE JUDGMENT AND AWARD DATED 21.06.2012 PASSED IN
MVC NO.1383/2011 ON THE FILE OF THE MEMBER, MACT-IX,
BELLARY, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS ARE COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed for an accident which occurred on
17.04.2011, between a motorcycle and a tipper lorry
resulting in a death of rider of the motorcycle of Sri
Thippeswamy and Sri Ramanna, who was riding pillion,
claim petitions were preferred by the legal representatives
of the said deceased.
2. It is the case of the claimants that Thippeswamy
was riding the motorcycle with Ramanna as the pillion rider
at about 8.30 p.m. It was stated that the driver of a tipper
lorry, one Peera had parked the vehicle on the center of the
road and he had not turned on its indicators to indicate that
the tipper had been parked and consequently, Thippeswamy
lost control and hit the tipper lorry from behind and
thereafter the motorcycle swerved to the right and went on
to collide with a car driven by S. Rahul Kumar (respondent
No.4 in the claim petition). As a result of the impact, both
Thippeswamy and Ramanna suffered grievous injuries and
ultimately succumbed to the injuries.
3. The fact that the accident occurred is not in
serious dispute. It is also not in dispute that the tipper lorry
was insured with the Reliance Insurance Company. The
Tribunal on assessment from the evidence awarded
compensation of Rs.9,01,500/- to the legal representatives
of Thippeswamy and Rs.8,47,500/- to the legal
representatives of Ramanna.
4. Being dissatisfied with the said compensation,
the legal representatives of Thippeswamy and Ramanna are
in appeal in MFA No.21452/2013 and MFA.No.21453/2013
respectively. The legal representatives are also challenging
the imposition of contributory negligence on the rider of the
motorcycle.
5. The Reliance Insurance Company which has been
made liable to the extent of 50% is also in appeal.
6. The Tribunal by the impugned award had fixed
the liability for the accident in the ratio of 50:50. The
Tribunal had come to the conclusion that Thippeswamy had
contributed to the accident by 50% and therefore, the
Insurance Company was made liable to pay only 50%.
7. The learned counsel for the Insurance Company
Shri. N.C.Kalloori contended that Ex.P.6 and the sketch
indicated that the motorcycle had not only hit the tipper
lorry from behind, but had also hit the oncoming car and
this clearly indicated that the driver of the motorcycle who
was completely responsible for the accident and therefore,
the Insurance Company ought not to have been saddled
with any liability. He further argued that the complaint
which had been lodged by the driver of the car had
mentioned about the impact to pedestrian and thereafter to
the car and this also indicated that there was no impact to
the tipper at all so as to make the tipper liable to the
accident.
8. The learned counsel for the petitioners/claimants
contended that it was not in dispute that the tipper lorry
had been parked on the road and this was the fundamental
cause for the accident. It was contended that as a result of
the impact with the tipper lorry, the motorcycle had
swerved to the right and thereafter collided with the
oncoming car and this itself established that the accident
occurred only due to the negligence of the driver of the
tipper lorry. He also placed reliance on the materials, i.e.,
Ex.P.6, sketch and also the evidence of the eyewitness,
which is fortifies his submission that the collusion was
essentially between the rider of the motorcycle and the
tipper lorry, which had been parked on the road.
9. I have considered the submissions made by the
learned counsels for the parties and perused the materials
on record.
10. A perusal of the hand sketch at Ex.P.6 clearly
indicates that the first impact of the motorcycle was to the
tipper lorry, which was standing by the side of the road and
thereafter the motorcycle went on to hit the oncoming car.
This Ex.P.6 clearly indicates that the accident occurred
solely because the tipper lorry had been parked by the side
of the road. Though, there is a mention about the
motorcycle colliding with the pedestrian in the complaint,
the complaint does not state about any injuries caused to
any pedestrian. The eyewitness PW-3 who was examined
has also narrated that the accident occurred because of the
impact of the motorcycle with the tipper lorry from behind
and thereafter the impact with the car.
11. It is also mentioned here that the Police had filed
a charge sheet not only against the rider of the motorcycle
but also against the driver of the tipper lorry. The Motor
Vehicle Report in respect of the motorcycle indicates
expensive damage to the front portion of the motorcycle
and thereby indicating an impact with the tipper lorry.
12. In my view, having regard to the fact that the
accident occurred at 8.30 p.m. at night and it is not in
dispute that the tipper lorry had been parked by the side of
the road, it cannot be held that the rider of the motorcycle
was also responsible for the accident.
13. It is to be stated here that the driver of the
tipper lorry did not choose to examine himself and narrate
the case. In the absence of any evidence from the driver of
the tipper lorry, it cannot be assumed that the rider of the
motorcycle had contributed to the accident. So long as it is
not in dispute that the tipper lorry was parked by the side of
the road, it will have to be held that the driver of the tipper
lorry alone was responsible to the accident and therefore as
a consequence, Reliance General Insurance which has
insured the tipper lorry would become entirely liable for the
compensation payable to the legal representatives of the
claimants.
14. The Tribunal insofar as the death of Sri
Thippeswamy has taken the monthly income of Rs.6,000/-
and adopted the multiplier of 18 (since he was 23 years)
and has awarded a sum of Rs.8,64,000/- towards loss of
dependency. In all the Tribunal has awarded the following
sums:
1 Loss of dependency Rs.8,64,000/-
2 Loss of consortium Rs.10,000/-
3 Loss of love and affection Rs.10,000/-
4 Towards transportation of dead body Rs.7,500/-
and funeral expenses.
Total Rs.9,01,500/-
15. In respect of the death of Ramanna, the Tribunal
has taken the income at Rs.6,000/- per month and applied
the multiplier of 15 since Sri Ramanna was 40 years as on
the date of his death and awarded a sum of Rs.8,10,000/-
towards loss of dependency. In all the Tribunal has awarded
the following sums:
1 Loss of dependency Rs.8,10,000/-
2 Loss of consortium Rs.10,000/-
3 Loss of love and affection Rs.10,000/-
4 Loss of estate Rs.10,000/-
4 Towards transportation of dead body Rs.7,500/-
and funeral expenses.
Total Rs.8,47,500/-
16. The income determined by the Tribunal for the
death of Tippeswamy and Ramanna at Rs.6,000/- per
month is just and proper and is in consonance with the
income determined by the Karnataka Legal Services
Authority for the accidents occurred in the year 2011. The
multiplier adopted in both cases at 18 and 15 are also in
order and do not call for interference. Deductions made to
the income are also in order.
17. However, the Tribunal has not awarded future
prospects and the Tribunal has also awarded only a sum of
Rs.37,400/- towards loss of consortium, loss of love and
affection and loss of estate and funeral expenses. In both
the claim petitions, the same which would have to be
enhanced in accordance with the Judgment rendered by the
Hon'ble Apex Court in the case of National Insurance
Company Limited V/s Pranay Sethi and others, reported in
(2017) 16 SCC 680.
18. Having regard to the age of Sri Tippeswamy, a
factor of 40 would have to be added to the monthly income
of Rs.6,000/- and this would result in the legal
representatives being entitled to a sum of Rs.5,600/- X 12 X
18 = Rs.12,09,600/- (after deducting 1/3rd of the monthly
income towards personal expenses).
19. In respect of Sri Ramanna, the claimants would be
entitled to a sum of Rs.6,300/- X 12 X 15 = Rs.11,34,000/-
(after deducting 1/4th of his monthly income towards
personal expenses).
20. In both the cases, the claimants being the wife
and mother (in respect of Sri Tippeswamy), and wife and
three children and mother (in respect of Sri Ramanna)
would be entitled to a sum of Rs.44,000/- each apart from a
sum of Rs.33,000/- under the conventional head.
21. The claimants in MFA.No.21452/2013 (in respect
of Sri Tippeswamy) would be therefore entitled to following
sums :
1 For Loss of dependency Rs.12,09,600/-
2 For loss of love and affection Rs.88,000/-
(Two dependents (Rs.44,000/-X2)
3 Under the conventional heads Rs.33,000/-
Total Rs.13,30,600/-
22. The claimants in MFA.No.21453/2013 (in respect
of Sri Ramanna) would be therefore entitled to following
sums :
1 For Loss of dependency Rs.11,34,000/-
2 For loss of love and affection Rs.2,20,000/-
(Five dependents(Rs.44,000/-X 5)
3 Under the conventional heads Rs.33,000/-
Total Rs.13,87,000/-
23. The appeals filed by the Insurance Company
(MFA.Nos.23975 and 24772 of 2012) are dismissed and
the appeal filed by the claimants (MFA.Nos.21452 and
21453 of 2013) are allowed in part.
24. The claimants in MFA.No.21452/2013 are entitled
to enhanced compensation of Rs.13,30,600/- as against
Rs.9,01,500/- as awarded by the Tribunal. The claimants in
MFA.No.21453/2013 are entitled to enhanced compensation
of Rs.13,87,000/- as against Rs.8,47,500/- as awarded by
the Tribunal.
The Insurance Company shall deposit the
compensation within a period of six weeks from the date of
receipt of a copy of this Judgment.
The compensation shall carry interest at the rate of
6% per annum as held by the Tribunal and disbursal shall
also be made in accordance with the terms of the impugned
Judgment.
The amounts in deposit shall be transmitted to the
M.A.C.T for disbursal in terms of the award forthwith.
Sd/-
JUDGE
SMM
Ckk 14 to end
