M/S. National Insurance Company ... vs Kumari Subbagolla Vimala
2023 Latest Caselaw 6106 Kant

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                                                          NC: 2023:KHC:30938
                                                        MFA No. 5270 of 2018




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 30TH DAY OF AUGUST, 2023

                                            BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                   MISCELLANEOUS FIRST APPEAL NO. 5270 OF 2018 (MV)
                   BETWEEN:

                   M/S. NATIONAL INSURANCE COMPANY LTD
                   REGIONAL OFFICE
                   NATIONAL INSURANCE CO.LTD.,
                   NO.144, 2ND FLOOR
                   SHUBARAM COMPLEX
                   M.G.ROAD, BANGALORE-560 001
                   REPRESENTED BY ITS
                   AUTHORISED SIGNATORY
                   MR. SAI PRAKASH
                                                                ...APPELLANT
                   (BY SRI. M ARUN PONAPPA., ADVOCATE)

                   AND:

                   1.    KUMARI SUBBAGOLLA VIMALA
Digitally signed         AGED ABOUT 14 YEARS
by
DHANALAKSHMI             D/O LATE SUBBAGOLLA SUBBANNA
MURTHY                   NO.2/54, KURUMALA VILLAGE AND POST,
Location: High           KADHIRI TALUK
Court of                 ANANTHAPUR DISTRICT
Karnataka
                         ANDHRA PRADESH-515531
                         (SINCE MINOR REPRESENTED BY
                         UNCLE/NATURAL GUARDIAN NEXT FRIEND
                         SRI.KONGOLLAGANGADHRI)

                   2.    SRI.G. RAJA
                         MAJOR
                         S/O M. GANESAN
                         NO.6, 1ST STREET, NEW COLONY
                         THIRUNAGAR, VELLORE
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                                           NC: 2023:KHC:30938
                                         MFA No. 5270 of 2018




      KATPADI DISTRICT
      TAMIL NADU-632006.
                                              ...RESPONDENTS
(BY SRI.K.T. GURUDEVA PRASAD., ADVOCATE FOR R1:
    NOTICE TO R2 IS DISPENSED WITH)
       THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 03/04/2018,
PASSED IN MVC NO.3292/2017, ON THE FILE OF THE V
ADDITIONAL SMALL CAUSES JUDGE & XXIV ACMM., MEMBER,
MACT, (SCCH-20), MAYO HALL UNIT, BENGALURU, AWARDING
COMPENSATION OF RS.11,82,180/- WITH INTEREST AT 9%
PER    ANNUM   FROM    THE   DATE   OF    PETITION   TILL   ITS
REALIZATION.

       THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                        JUDGMENT

1. This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act', for

short) has been filed by the Insurance Company being

aggrieved by the judgment and award dated 03.04.2018

passed by the MACT, Bengaluru in MVC No.3292/2017.

2. Facts giving rise to the filing of the appeal briefly

stated are that on 14.05.2017 at about 02.30 p.m., when

NC: 2023:KHC:30938 MFA No. 5270 of 2018

the deceased S. Anil Kumar was riding a motorcycle

bearing Registration No.ME4JC655BHT006492 and Engine

No.ET1021183, on Whitefield Road, Lowry Junction,

Bengaluru, at that time, the driver of the lorry bearing

Registration No.TN-23-BJ-5815 drove the same in a rash

and negligent manner endangering human life without

following any traffic rules and regulations came at high

speed from the opposite direction and dashed against the

deceased's motorcycle. As a result of the aforesaid

accident, the deceased sustained grievous injuries and

succumbed to the injuries.

3. The claimant filed a petition under Section 166 of the

Act seeking compensation for the death of the deceased

along with interest.

4. On service of summons, the respondent No.1

appeared through counsel and filed written statement in

which the averments made in the petition were denied. It

was pleaded that the petition itself is false and frivolous in

NC: 2023:KHC:30938 MFA No. 5270 of 2018

the eye of law. The age, occupation and income of the

deceased are denied. It was further pleaded that the

quantum of compensation claimed by the claimants is

exorbitant. Hence, he sought for dismissal of the petition.

5. The respondent No.2 did not appear before the

Tribunal inspite of service of notice and hence was placed

ex-parte.

6. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimant, in order to prove their case,

examined claimant as PW-1 and got exhibited documents

namely Ex.P1 to Ex.P13. On behalf of respondents, neither

examined any witness nor exhibited any documents. The

Claims Tribunal, by the impugned judgment, inter alia,

held that the accident took place on account of rash and

negligent driving of the offending vehicle by its driver, as a

result of which, the deceased sustained injuries and

succumbed to the injuries. The Tribunal further held that

NC: 2023:KHC:30938 MFA No. 5270 of 2018

the claimant is entitled to a compensation of

Rs.11,82,180/- along with interest at the rate of 9% p.a.

and directed the Insurance Company to deposit the

compensation amount along with interest. Being

aggrieved, this appeal has been filed.

7. The learned counsel for the Insurance Company has

raised the following counter-contentions:

a) Firstly, at the time of the accident, the deceased was

a minor, aged about 17 years and studying II PUC at

Government College, Kadiri. He has not having any driving

license. The deceased himself was negligent in causing the

accident. But the Tribunal has erred in holding that the

driver of the lorry bearing Registration No.TN-23-BJ-5815

has contributed 85% to the accident.

b) Secondly, even though the claimants claim that the

deceased was earning Rs.10,000/- per month as computer

operator part time job, the same is not established by the

claimant by producing documents to prove the same.

NC: 2023:KHC:30938 MFA No. 5270 of 2018

Since he was a student, the notional income assessed by

the Tribunal Rs.9,000/- is on higher side.

c) Thirdly, since the claimants have not established the

income of the deceased, they are not entitled for

compensation towards 'future prospects'.

d) Lastly, in view of the Division Bench decision of this

Court in the case of MS.JOYEETA BOSE AND OTHERS -V-

VENKATESHAN.V AND OTHERS (MFA 5896/2018 AND CONNECTED

MATTERS DISPOSED OF ON 24.8.2020), the rate of interest

granted by the Tribunal at 9% p.a. on the compensation

amount is on the higher side. Hence, he prays for allowing

the appeal.

8. On the other hand, the learned counsel for the

claimant has raised the following contentions:

a) Firstly, even though the deceased was aged about

17 years at the time of the accident, there is no evidence

produced by the respondents to prove that he was

negligent and has contributed to the accident and even no

witnesses have been examined on behalf of the

NC: 2023:KHC:30938 MFA No. 5270 of 2018

respondents. Therefore, the driver of the lorry alone was

negligent in causing the accident. The Tribunal has erred

in holding that the deceased was contributed 15% to the

accident.

b) Secondly, at the time of the accident, the deceased

was aged about 17 years, studying in II PUC and he was

also earning Rs.10,000/- per month by working as

Computer Operator. But the Tribunal is not justified in

taking the monthly income of the deceased as merely as

Rs.9,000/-.

c) Thirdly, as per the law laid down by the Hon'ble

Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -

v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157] and MAGMA

GENERAL INSURANCE CO. LTD. -V- NANU RAM [2018 ACJ 2782],

the compensation awarded under the heads of consortium

and the conventional heads are on lower side.

d) Lastly, considering the age and avocation of the

deceased, the overall compensation awarded by the

Tribunal is on the lower side. Hence, he prays for dismissal

of the appeal by enhancing the compensation.

NC: 2023:KHC:30938 MFA No. 5270 of 2018

9. Heard the learned counsel for the parties and

perused the judgment and award of the Tribunal.

REG : CONTRIBUTORY NEGLIGENCE

10. The case of the claimant is that on 14.05.2017 at

about 02.30 p.m., when the deceased S. Anil Kumar

was riding a motorcycle bearing Registration

No.ME4JC655BHT006492 and Engine No.ET1021183, on

Whitefield Road, Lowry Junction, Bengaluru, at that time,

the driver of the lorry bearing Registration No.TN-23-BJ-

5815 drove the same in a rash and negligent manner

without following any traffic rules and regulations came at

high speed from the opposite direction and dashed against

the deceased's motorcycle. As a result of the aforesaid

accident, the deceased sustained grievous injuries and

succumbed to the injuries.

11. To prove the same, the claimant herself examined as

PW-1 and produced 13 documents. The respondents

NC: 2023:KHC:30938 MFA No. 5270 of 2018

neither examined any witnesses nor exhibited any

documents. Immediately after the accident, the Police

have registered FIR against the driver of the offending

vehicle and after thorough investigation, have filed the

charge sheet.

12. Considering the evidence of the parties and material

available on record and the findings given by the Tribunal,

I am of the opinion that the Tribunal has rightly held that

the claimant has contributed negligence to an extent of

15% to the accident and driver of the offending vehicle

has contributed negligence to an extent of 85% to the

accident.

REG : QUANTUM OF COMPENSATION

13. Even though the deceased was aged about 17 years

and he was a student studying in II PUC at the time of the

accident, the Tribunal considering the age, avocation and

his educational qualification, has rightly assessed the

notional income of the deceased at Rs.9,000/- per month

and the Tribunal has also considering the law laid down by

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NC: 2023:KHC:30938 MFA No. 5270 of 2018

the Constitution Bench of the Supreme Court in 'PRANAY

SETHI' (supra) and 'MAGMA GENERAL INSURANCE' (supra), the

overall compensation awarded by the Tribunal is just and

reasonable and the same does not call for any

interference.

14. However, in view of judgment of the Division Bench

of this Court in the case of 'MS.JOYEETA BOSE' (supra),

the interest awarded by the Tribunal at 9% is scale down

to 6% per annum.

15. In the result, I pass the following order:

ORDER

a) The appeal is allowed in part.

b) The judgment of the Claims Tribunal is modified.

c) The Insurance Company is directed to deposit the

remaining compensation amount along with interest @ 6%

p.a. from the date of filing of the claim petition till the date

of realization, within a period of six weeks from the date of

receipt of copy of this judgment.

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NC: 2023:KHC:30938 MFA No. 5270 of 2018

d) The amount in deposit, if any, shall be transferred to

the Tribunal.

Sd/-

JUDGE

HA