The Manager vs Parvathi Bai
2022 Latest Caselaw 12459 Kant

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 14TH DAY OF OCTOBER, 2022

                         BEFORE

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

                M.F.A.No.5280/2015 (MV-D)
BETWEEN:

THE MANAGER
RELIANCE GIC LTD.,
3RD FLOOR, ASIAN FLAZA,
TIMPURI CIRCLE,
MAIN ROAD, GULBARGA
NOW REP. BY ITS THE LEGAL MANAGER,
RELIANCE GENERAL INSURANCE CO. LTD.,
REGIONAL OFFICE, 5TH FLOOR,
CENTENARY BUILDING,
NO.28, M.G.ROAD,
BENGALURU-560 001.                          ... APPELLANT

               (BY SRI B.PRADEEP, ADVOCATE)
AND:

1.     PARVATHI BAI
       W/O LATE KUMARA NAIKA,
       NOW AGED ABOUT 27 YEARS,

2.     KUM.HARSITHA
       D/O LATE KUMARA NAIKA,
       NOW AGED ABOUT 7 YEARS,

3.     THARUN
       S/O LATE KUMARA NAIKA,
       NOW AGED ABOUT 4 ½ YEARS,

4.     RATHNA BAI
       W/O LATE PIKYA NAIKA,
       NOW AGED ABOUT 68 YEARS,
                                 2




       THE RESPONDENT No.2 AND 3 ARE
       SINCE MINOR REP. BY THEIR NATURAL
       GUARDIAN MOTHER AS RESPONDENT No.1.

       ALL ARE R/AT RAMANDIRA TEMPLE STREET,
       UPPARAHALLI VILLAGE, T.B.EXTENSION,
       NAGAMANGALA-571 432.

5.     ABDUL KAREEM
       S/O IBRAHIMSAB KAMANDRAWAJA,
       MAJOR, R/O 2/3/6,
       HANUMANMANDIR ROAD,
       NOUKADAGALLI, ALANDA TALUK,
       GULBARGA DISTRICT-52.               ... RESPONDENTS

      (BY SRI N.SURENDRA KUMAR, ADVOCATE FOR R1 & R4;
           R2 & R3 ARE MINORS REPRESENTED BY R1;
                        R5 IS SERVED)

      THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 30.4.2015
PASSED IN MVC NO.663/2014 ON THE FILE OF THE SENIOR
CIVIL JUDGE, MACT, NAGAMANGALA, AND ETC.

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


                        JUDGMENT

This appeal is filed by the Insurance Company challenging

the judgment and award dated 30.04.2015 passed in

M.V.C.No.663/2014 on the file of the Senior Civil Judge and

MACT, Nagamangala ('the Tribunal' for short).

2. Heard the learned counsel appearing for the

appellant and the learned counsel appearing for respondent

Nos.1 to 4.

3. The factual matrix of the case is that on 25.05.2014 at

about 2.45 p.m., when Kumara Naika was proceeding towards

Bellur by riding motorcycle at Manamangala-Bellur road along

with his minor son, near PWD quarters in Magamangala town,

the above said motorcycle was slipped/skidded when it passed

over a stone lying on the road, as a result, Kumar Naika and his

son fell down from the motorcycle and Kumar Naika fell down on

the right side of the road across the divider whereas his son fell

down on the left side of the road and when Kumar Naika fell

down on the right side of the road, a lorry came from Bellur side

in a rash and negligent manner and passed over Kumar Naika

and due to the said impact, he sustained injuries and died at the

spot. The claimants in order to substantiate their case,

examined wife of the deceased as PW1 and also examined two

witnesses as PW2 and PW3 who are the eye-witnesses to the

alleged accident and also got marked Ex.P1 to P11 and the

respondents have not led any evidence. The Tribunal after

considering both the oral and documentary evidence taken 50%

contributory negligence on the part of the deceased and awarded

an amount of Rs.9,38,000/- with interest at the rate of 9% p.a.

Hence, the present appeal is filed before the Court.

4. The Insurance Company in his appeal mainly

contended that Tribunal has committed an error in taking income

of Rs.8,000/- and also adding 50% future prospectus and also

taking contributory negligence of 50% against the driver of the

lorry hence, the very approach of the Tribunal is erroneous and

the interest awarded at 9% is also on the higher side hence, it

requires interference.

5. Per contra, the counsel appearing for the

respondents would submit that the Tribunal has taken income of

Rs.8,000/- only since the accident of the year 2014 hence, the

income would be Rs.8,500/- and though added future prospects

at 50%, lesser income is taken and the contributory negligence

taken by the Tribunal is also on the higher side and the interest

awarded is also not on the higher side as contended by the

appellant counsel.

6. Having heard the arguments of the learned counsel

for the parties, the points that arise for the consideration of this

Court are:

(i) Whether the Tribunal has committed an error in taking the contributory negligence of 50% against the deceased and whether it requires interference?

(ii) Whether the Tribunal has committed an error in awarding exorbitant compensation as contended by the Insurance Company?

(iii) Whether the Tribunal has committed an error in awarding 9% interest instead of 6%?

      (iv)      What order?


Point No.1:

7. Having heard the arguments of the learned counsel

for the parties and also on perusal of the documentary evidence

on record it is clear that the deceased himself has dashed

against the road divider and fallen on the other side of the road

as such, the alleged accident has occurred. No doubt, as

contended by the respondents' counsel that when the road

where the alleged accident was occurred is a straight road, the

driver of the lorry would have avoided the accident. When the

driver was proceeding on the other way, the very contention of

the counsel appearing for the respondents cannot be accepted.

However taking note of the manner in which the alleged accident

has occurred and on perusal of the material on record and also

the Insurance Company also not examined the driver of the

offending vehicle, hence, I do not find any error in taking 50%

contributory negligence on the part of the deceased as well as on

the offending vehicle hence, it does not requires any

interference. Hence, point No.1 is answered as negative.

Point No.2:

8. The learned counsel appearing for the Insurance

Company has contended that the Tribunal has committed an

error in awarding exorbitant compensation and the same cannot

be accepted as the Tribunal has taken income Rs.8,000/- only as

against the notional income of Rs.8,500/- and also the Tribunal

has committed an error in taking 50% of the loss of income

which ought to have been taken 40%. However, the Tribunal

has awarded only an amount of Rs.1,00,000/- towards

consortium since the claimants are four in numbers, the same

would be Rs.1,60,000/- and even the same is considered, the

quantum of compensation would be more and there is no appeal

by the claimants and also no injustice while considering the

quantum of compensation is concerned hence, I do not find any

force in the contention of the counsel for the appellant.

Accordingly, point No.2 is answered as negative.

Point No.3:

9. The accident had occurred in the year 2014 and the

case was disposed of in the year 2015 i.e., within a span of one

year. When such being the case, the Tribunal ought to have

taken the interest as per the nationalized bank interest as on the

date of the passing the judgment. Hence, it is appropriate to

reduce the interest from 9% to 6%. Hence, point No.3 is

answered as affirmative.

Point No.4:

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

following:

ORDER

(i) The appeal is allowed in part.

(ii) The impugned judgment and award of the Tribunal dated 30.04.2015 passed in

M.V.C.No.663/2014 is modified only to the extent of interest from 9% to 6%.

(iii) The amount in deposit, if any, may be transmitted to the Tribunal.

(iv) The Registry is directed to send the records to the concerned Tribunal, forthwith.

Sd/-

JUDGE

SN