Karnataka High Court
H M Manjula vs Divisional Manager on 12 September, 2022
Bench: N S Gowda
-1-
MFA No. 4092 of 2012
C/W MFA No. 4425 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
MISCELLANEOUS FIRST APPEAL NO. 4092 OF 2012 (MV-)
C/W
MISCELLANEOUS FIRST APPEAL NO. 4425 OF 2012
IN M.F.A. No.4092/2012
BETWEEN:
THE BAJAJ ALLIANZ GENERAL
INSURANCE CO. LTD.,
#363, SRI HARI COMPLEX, SEETHAVILAS ROAD
MYSORE-570 024,
REPRESENTED BY ITS
A.V.P. CLAIMS, AT R.O. AT NO.31,
TBR TOWERS, NEW MISSION ROAD,
NEXT TO JAIN COLLEGE
AND STOCK EXCHANGE, J C ROAD,
BANGALORE-560 002
Digitally ...APPELLANT
signed by (BY SRI. S SRISHAILA, ADVOCATE)
PANKAJA S
Location:
High Court AND:
of Karnataka
1. SMT H.M.MANJULA
AGED ABOUT 33 YEARS
W/O LATE S N UMESH
2. PRAJWAL S.U.
AGED ABOUT 14 YEARS
S/O LATE S.N.UMESH
-2-
MFA No. 4092 of 2012
C/W MFA No. 4425 of 2012
3. PRAKRUTHI S.U.
AGED ABOUT 12 YEARS
D/O LATE S.N.UMESH
R NO.2 AND 3 BEING MINORS
REP BY THIER NATURAL
GUARDIAN/MOTHER
SMT H.M. MANJULA
R/A NO.360, LOKANAYAKA NAGARA
METAGALLI, MYSORE-570 021
4. C.RAVI
S/O CHINNASWAMY,
AGED ABOUT 31 YEARS
D.NO.83, 3RD MAIN RAOD,
3RD STAGE, GOKULAM
MYSORE
5. NARASIMHA MURTHY S,
S/O SHIVANNA,
AGED ABOUT 41 YEARS,
NO.162/4 VRC RAILWAY QUARTERS
YADEVAGIRI, MYSORE - 560021.
...RESPONDENTS
(BY SRI. PRAKASHA H.C., ADVOCATE FOR R1 TO R3
NOTICE TO R4 & R5 DISPENSED WITH V/O/D 11.03.2015)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:27.12.2011 PASSED IN MVC
NO.274/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT-II, MEMBER, ADDITIONAL MACT, MYSORE,
AWARDING A COMPENSATION OF Rs.3,52,000/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
DEPOSIT.
-3-
MFA No. 4092 of 2012
C/W MFA No. 4425 of 2012
IN M.F.A. No.4425/2012
BETWEEN:
1 . H.M.MANJULA
W/O LATE S.N. UMESH
AGED ABOUT 33 YEARS
2 . PRAJWAL S.U.
S/O LATE S.N.UMESH
AGED ABOUT 14 YEARS
3 . PRAKRUTHI S.U.
D/O LATE S.N.UMESH
AGED ABOUT 12 YEARS
APPELLANTS NO.2 & 3 ARE MINOR
REP. BY THEIR NATURAL GUARDIAN
MOTHER 1ST APPELLANT
H.M.MANJULA
ALL ARE R/AT NO. 360,
LOKANAYAKA NAGARA, METAGALLI
MYSORE-570 009
...APPELLANTS
(BY SRI. PRAKASH H.C., ADVOCATE)
AND:
1. DIVISIONAL MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
NO. 363, SRI HARI COMPLEX,SEETHAVILAS ROAD
MYSORE -570 002
2. C.RAVI
S/O CHINNASWAMY
AGED ABOUT 31 YEARS,
D.NO. 83, 3RD MAIN ROAD,
3RD STAGE, GOKULAM
MYSORE-570 012
-4-
MFA No. 4092 of 2012
C/W MFA No. 4425 of 2012
3. NARASIMHAMURTHY S.,
S/O SHIVANNA,
AGED ABOUT 41YEARS,
NO.162/4, V.R.C. RAILWAY QUARTERS,
YADAVAGIRI,
MYSORE-570 012
...RESPONDENTS
(BY SRI. S.SRISHAILA, ADVOCATE FOR R1
R2 & R3 - NOTICE DISPENSED WITH V/O/D. 23.04.2015)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 27.12.2011 PASSED IN MVC
NO.274/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT-II, MEMBER, ADDITIONAL MACT, MYSORE,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. MFA.No.4092/2012 is by the Insurer challenging the
finding recorded by the Tribunal that the driver of the car
had contributed to the accident to the extent of 60%.
2. MFA.No.4425/2012 is by the claimants challenging
the finding that the deceased had contributed to the
accident to the extent of 40% and also for enhancement of
compensation.
MFA No. 4092 of 2012
C/W MFA No. 4425 of 2012
3. The contention urged by the claimants in the claim
petition was that when the deceased was riding a
motorcycle, he was hit by the car.
4. The owner and the driver of the car, who were
arrayed as respondents 1 and 2, did not choose to contest
the proceedings and were placed ex parte. Thus, the
assertion of the claimants in the claim petition remained
undisputed.
5. The Tribunal took the view that as per the complaint
lodged by the driver of the car, it had been alleged that
the deceased was unable to control his vehicle when a dog
suddenly ran across the road, he hit the dog and
thereafter, lost control and hit the car. This assertion of
the 1st respondent in the FIR has been taken into
consideration and the sketch that has been produced has
also been taken into consideration by the Tribunal to come
MFA No. 4092 of 2012
C/W MFA No. 4425 of 2012
to the conclusion that the deceased had also contributed
to the accident to the extent of 40%.
6. As stated above, since the driver of the car did not
choose to contest the assertion of the claimants, the
allegations made in the FIR cannot be taken as sacrosanct.
7. A perusal of the sketch upon which reliance has been
placed by the Tribunal also indicates that the point of
impact was on the middle of the road, thus, indicating that
the rider of the motorcycle has not gone on to the wrong
side of the road. Since there is absolutely no evidence
indicating that the deceased hit the dog and thereafter,
lost control and hit the car, the apportionment of
negligence by the Tribunal to the extent of 40% on the
deceased cannot be sustained.
8. In fact, since the accident occurred in the middle of
the road and neither the driver, nor the owner of the car
MFA No. 4092 of 2012
C/W MFA No. 4425 of 2012
choose to contest the assertion of the claimants, it will
have to be held that the accident had occurred solely due
to the negligence of the driver of the car. Keeping in mind
that the driver of the car would have clear vision of the
road and since the road on which both the car and the
motorcycle were travelling was a straight road, the driver
of the car could have taken steps to avoid the impact. The
finding of the Tribunal is, therefore, set aside and it is also
held that the driver of the car alone is responsible for the
accident.
9. As far as compensation is concerned, the Tribunal
has determined the monthly income of the deceased at
Rs.3,000/- since there was no credible evidence to
determine the same. In such cases, it would be
appropriate to adopt the notional income determined by
the Karnataka State Legal Services Authority, which, for
the accident of the year 2010, would be Rs.5,500/-. To the
said sum, 25% will have to be added towards future
MFA No. 4092 of 2012
C/W MFA No. 4425 of 2012
prospects, which would result in the notional income to be
Rs.6,875/-. Out of the said sum, 1/3rd requires to be
deducted towards personal expenses, which would in turn
makes the monthly income of the deceased to be
Rs.4,583/-
10. As the deceased was aged 48 years, multiplier of 13
would have to be adopted. Thus, the claimants are entitled
for the sum of Rs.7,14,948/- (Rs.4,583 X 12 X 13)
towards loss of dependency.
11. The claimants, being the wife and children of the
deceased, each of them would be entitled for a sum of
Rs.44,000/- towards loss of consortium.
12. The claimants are also entitled for a sum of
Rs.33,000/- under the conventional heads.
13. Thus, the claimants are entitled for the following
sums as compensation along with interest at 6% p.a. from
the date of petition till its realization:
MFA No. 4092 of 2012
C/W MFA No. 4425 of 2012
Sl. Amount
Particulars
No. in (Rs.)
1. Loss of dependency 7,14,948
2. Loss of consortium 1,32,000
3. Conventional heads 33,000
Total 8,79,948
14. The Insurer would be liable to pay the
aforementioned compensation and is directed to deposit
the amount of compensation awarded within a period of
two months from the date of receipt of a certified copy of
this judgment.
15. The amount in deposit, if any, shall be transferred to
the Tribunal for disbursement in terms of the award.
16. The appeal of the Insurer is accordingly dismissed
and the appeal of the claimants is accordingly allowed in
part.
SD/-
JUDGE
PKS
CT:AN
