Karnataka High Court

Smt. Meenakshamma vs Mohan Kumar on 3 November, 2022

Bench: H.P.Sandesh

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 3RD DAY OF NOVEMBER, 2022

                           BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  M.F.A.No.6414/2013 (MV)

BETWEEN

1.   SMT. MEENAKSHAMMA
     AGED ABOUT 41 YEARS
     W/O LATE VENKATESH

2.   SAHANA
     AGED ABOUT 25 YEARS
     D/O LATE VENKATESH

3.   TRIVENI
     AGED ABOUT 24 YEARS
     D/O LATE VENKATESH

4.   GOWRAMMA
     AGED ABOUT 59 YEARS,
     W/O LATE CHINTAMANI GOWDA

     ALL ARE R/AT NO.101, 1ST FLOOR
     4TH CROSS, 2ND MAIN
     BEHIND B.P PETROL BUNK
     SHANKAR MUTT
     BASAVESHWARANAGAR
     BANGALORE-560079
                                            ...APPELLANTS
(BY SMT. SUNITHA B H, ADVOCATE FOR
 SRI RAJANNA, ADVOCATE)
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AND

1.    MOHAN KUMAR
      S/O THAMMAIAH
      MAJOR
      R/AT NO.113, MAVINAKERE AT POST
      TURUVEKERE TALUK
      TUMKUR DISTRICT-572227

2.    THE BRANCH MANAGER
      THE ORIENTAL INSURANCE CO.
      M.G. ROAD BRANCH
      BANGALORE-560001

3.    RAMESH R.I
      S/O RAMAKRISHNAIAH
      MAJOR
      R/AT KATANAYAKANAHALLI
      H.Y.R. TALUK, K.R. HALLI POST
      CHITRADURGA DIST.-577501
                                          ... RESPONDENTS
(BY SRI K S LAKSHMINARASAPPA, ADVOCATE FOR
 SRI A M VENKATESH, ADVOCATE FOR R2;
 R1 & R3 ARE SERVED)


       THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 23.11.2012
PASSED IN MVC NO.7992/2010 ON THE FILE OF THE MEMBER,
PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL AND CHIEF
JUDGE, COURT OF SMALL CAUSES, BANGALORE AND ETC.



       THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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                           JUDGMENT

This appeal is filed by the claimants challenging the

judgment and award dated 23.11.2012 passed in

M.V.C.No.7992/2010 on the file of the Member, Principal Motor

Accident Claims Tribunal and Chief Judge, Court of Small Causes,

Bengaluru ('the Tribunal' for short).

2. Heard the learned counsel appearing for the

appellants and the learned counsel appearing for respondent

No.2.

3. The factual matrix of the case is that on 08.09.2010,

when the deceased was proceeding to his home as a pedestrian,

one motorcycle came in a rash and negligent manner and

dashed against the deceased as a result, he sustained injuries

and he was shifted to the Adichunchanagiri hospital and

thereafter he was shifted to NIMHANS hospital and then he was

shifted to KIMS hospital and succumbed to the said injuries. The

claimants in order to substantiate their case, 1st petitioner has

been examined herself as PW1 and got marked documents at

Ex.P1 to P14 and also examined two witnesses as PW2 and PW3.

On the other hand, Insurance Company has examined one

witness as RW1 and also examined another witness as RW2 and

got marked the documents at Ex.R1 to R7. The Tribunal after

considering both the oral and documentary evidence dismissed

the claim petition in coming to the conclusion that there is an

entry in the records of KIMS hospital that the vehicle involved in

the accident is an Auto which hit the motorcyclist when the

injured was riding the motorcycle and hence, the present appeal

is filed.

4. The main contention of the counsel for the claimants

that the Tribunal has committed an error in not relying upon the

documents of Adichunchanagiri hospital and NIMHANS hospital

instead of that relied upon the documents of KIMS Hospital

wherein the deceased died and failed to take note of the

contentions taken by PW2 who is an eye-witness to the alleged

incident and who is also accompanied with the injured to the

hospital and he also given the history that two wheeler hit the

pedestrian and document at Ex.R1 and R2 relied upon by the

Insurance Company itself disclose that pedestrian was hit by the

two wheeler and same has not been discussed. Hence, it

requires interference of this Court.

5. Per contra, the learned counsel appearing for the

Insurance Company would submit that the Tribunal has rightly

taken note of the material available on record particularly, Ex.R7

which is the case sheet of KIMS hospital wherein history was

given that the patient was hit by an auto while riding a two

wheeler.

6. Having heard the learned counsel appearing

respective parties and also on perusal of the material available

on record, the Court has to take note of the documentary

evidence. PW1 is the wife of the deceased and she is not an

eye-witness. However, this Court has to rely upon the evidence

of PW2 who claims that he accompanied with the injured and

both of them were walking on the left side of the road at that

time, the motorcycle came and dashed against the deceased as

a result, he sustained injuries and lost his conscious and

immediately he was shifted to the hospital and he is an eye-

witness to the alleged incident and he was subjected for cross-

examination and in the cross-examination, he admits that he has

not given statement before any doctor but he claims that

Doreswamy was there with him and they have been to the

Adhichunchanagiri hospital but he claims that he furnished the

information to the doctor as to how the accident was occurred.

Another witness has been examined as PW3 who is the Medical

Record Technician of KIMS hospital and got marked the

documents at Ex.P13 and P14 and also he was cross-examined

wherein he admits that the patient was hit by an auto. The

other witness is RW1 who is also the Medical Record Technician

of KIMS hospital and he was not subjected to the cross-

examination.

7. On the other hand, the Insurance Company

examined another witness as RW2 who is an Administrative

Officer of Insurance Company and in his cross-examination, he

admits that in Ex.R4 it is mentioned that the patient by name

Venkatesh who met with an accident was hit by two wheeler was

brought to the hospital on 08.09.2010 at about 8.30 p.m. and

also he admits that the name of Doreswamy was mentioned in

Ex.R4 and also admits that Ex.R4 which is the record pertaining

to the admission and treatment at Adhichunchanagiri hospital as

an out patient and in Ex.R6 also it was mentioned that the

patient was shifted to the NIMHANS hospital with a history of

accident hit by two wheeler. When answers are elicited from the

mouth of RW2 regarding history that the pedestrian was hit by

two wheeler and also Ex.R4 and R6 are admitted by RW2, the

Tribunal committed an error in only relying upon Ex.R7 and

failed to take note of Ex.R4 and R6 which came into existence

immediately after the accident wherein specifically mentioned

that he was a pedestrian and hit by two wheeler and instead of

that third hospital record was relied upon by the Tribunal and

there is no discussion with regard to Ex.R4 and R6 and also he

admits that there is no date and signature on Ex.R7 and inspite

of it, the Tribunal has relied upon the document at Ex.R7 and

fails to take note of the immediate records at Ex.R1 to R4 and

even in PM report at Ex.P7 also it was mentioned as traffic

accident and all other documents disclose that hit by two

wheeler and no doubt, there was a delay in lodging the

complaint and explanation was given in that regard and the

complainant himself is an eye-witness to the alleged accident.

When such being the case, the Tribunal ought not to have

dismissed the claim petition. Hence, it requires to be set aside

the impugned judgment and award.

8. Now, coming to the quantum of compensation

awarded by the Tribunal. The deceased was an agriculturist and

aged about 45 years at the time of the accident and the accident

is of the year 2010, hence, the notional income would be

Rs.5,500/- and 25% has to be added as future prospectus and it

comes to Rs.6,875/- (5,500 x 25%) and the claimants are the

wife, children and mother hence, 1/4th has to be deducted

hence, it comes to Rs.5,156/- (6,875 / 1/4th) and the

appropriate multiplier would be 14 hence, the claimants are

entitled for an amount of Rs.8,66,208/- (5,156 x 12 x 14)

towards loss of dependency and the claimants are entitled for an

amount of Rs.1,60,000/- (40,000 x 4) towards loss of love and

affection and apart from that the claimants are entitled for an

amount of Rs.33,000/- towards loss of estate and funeral

charges and in all, the claimants are entitled for the

compensation of Rs.10,59,208/-.

9. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed.

(ii) The impugned judgment and award of the

Tribunal dated 23.11.2012 passed in

M.V.C.No.7992/2010 is set aside and

consequentially, the appeal is allowed granting

compensation of Rs.10,59,208/- with interest

at 6% per annum from the date of petition till

deposit.