Karnataka High Court

Mr R. C. Hanumaiah vs Sri Madappa N on 15 December, 2023

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                                                                   NC: 2023:KHC:45788
                                                                  MFA No. 6256 of 2016




                            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 15TH DAY OF DECEMBER, 2023

                                               BEFORE
                       THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
                                     MFA NO. 6256 OF 2016 (MV-D)
                       BETWEEN:

                       1.      MR. R. C. HANUMAIAH
                               S/O LATE CHOWDAPPA
                               AGED ABOUT 55 YEARS
                               R/AT NO.21, RACHANAMADU
                               NEAR VALLEY SCHOOL
                               KANAKAPURA MAIN ROAD
                               BENGALURU - 560 062

                       2.      MR. NARASIMHA MURTHY H.
                               S/O R.C.HANUMAIAH
                               AGED ABOUT 27 YEARS
                               R/AT RACHANAMADU
                               THATAGUNI POST
                               KANAKAPURA MAIN ROAD
                               BENGALURU - 560 062                ... APPELLANTS

                       (BY SRI.BASAVARAJU P., ADV.)

                       AND:
Digitally signed by    1.      SRI. MADAPPA N.
MALA K N
                               S/O LATE NANJAPPA
Location: HIGH COURT           AGED ABOUT 51 YEARS
OF KARNATAKA
                       2.      SMT. MUNIRATHNAMMA
                               W/O MADAPPA
                               AGED ABOUT 43 YEARS
                               BOTH ARE R/O RACHANAMADU VILLAGE
                               THATAGUNI POST, KENGERI HOBLI
                               BENGALURU SOUTH TALUK
                               BENGALURU - 560 062            ... RESPONDENTS

                       (BY SRI.D.S.SRIDHAR, ADV. FOR C/R1 & R2)
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                                            NC: 2023:KHC:45788
                                           MFA No. 6256 of 2016




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 21.07.2016
PASSED IN MVC NO.2845/2015 ON THE FILE OF THE XXI
ADDITIONAL SMALL CAUSES JUDGE, & XIX ACMM, MEMBER,
MACT, BENGALURU, (SCCH-23), AWARDING COMPENSATION
OF RS.13,69,900/- WITH INTEREST @ 6% P.A., FROM THE
DATE OF PETITION TILL DEPOSIT IN TRIBUNAL.

     THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 10.11.2023 AND COMING        ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                       JUDGMENT

In this appeal, the respondents have challenged

the judgment dated 21.07.2016 in M.V.C.

No.2845/2015 passed by the XXI Additional Small

Causes Judge and M.A.C.T., Bengaluru (SCCH-23)

('the Tribunal' for short).

2. For the sake of convenience, the rank of the

parties will be referred to as per their status before the

Tribunal.

3. Brief facts of the case are, on 22.10.2014 at

about 06:30 pm, the son of the petitioners by name

Muniraju, the deceased, while riding the Honda Activa

bearing Reg.No.KA-05/TA-8048 as pillion rider rided by

Sri. H. Narasimhamurthy at Pipeline Road near

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Thalaghattapura Lake, met with an accident, fell into

the road side ditch and causing him the injuries. He

was treated at Sairam Hospital, Apollo Hospital and

Sri. Sevakshetra Hospital and he was succumbed to

death on 27.10.2014. The petitioners being the

dependants, have approached the Tribunal for grant of

compensation against the owner and rider of the motor

cycle. Claim was opposed by the respondents. The

Tribunal after taking the evidence of both the parties,

by impugned judgment awarded compensation of

Rs.13,63,900/- with 6% interest p.a. Aggrieved by the

same, both the respondents have filed this appeal on

various grounds.

4. Heard the arguments of Sri. Basavaraju. P,

learned counsel for the appellants and

Sri. D.S. Sridhar, learned counsel for the petitioners.

5. It is the contention of learned counsel for the

owner and rider of the motor cycle that the deceased

was the friend of the owner, borrowed the motor cycle,

he himself was the rider, who rode without taking care,

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he himself fell into the ditch and sustained the injuries.

This has been manipulated and the rider is replaced as

pillion rider and there is no injury on the part of rider

of the motor cycle to make it believe that it is a road

traffic accident to claim the compensation. When the

deceased was brought to Sairam Hospital as an

injured, there is a clear history furnished that near

Pipeline of Thalaghattapura Lake, he has suffered a

self-accident on two-wheeler. Even when he was

brought to Apollo Hospital, history is furnished that it

was accidental fall while riding the two-wheeler near

Pipeline of Kanakapura Main road. This clearly points

out that the deceased was not a pillion rider, he

himself was the rider and because of his

self-negligence, caused the self-accident and sustained

the injuries and succumbed to death. The

1st petitioner being the owner, has not lent the motor

cycle. In his absence, the deceased unauthorizedly

took away the motor cycle, which was expired

insurance and therefore, he has no liability to pay the

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compensation. In connivance with the Police,

respondent No.2 is prosecuted as the rider of the

motor cycle for the sake of compensation and the

compensation assessed by the Tribunal is on the

higher side for which the petitioners are not entitled to

and he sought for interference.

6. Per contra, learned counsel for the petitioners

has contended that respondent No.2 was rider of the

motor cycle, the deceased was the pillion rider, it is he

who rided the motor cycle to road side ditch, resulting

injuries to the deceased. The deceased was an I.T.I.

student, aged 19 years, earning Rs.10,000/- per

month in a private factory. The petitioners have lost

the bread-earner. Much apart, the respondents have

committed the breach of law in not insuring the vehicle

and driving the petitioners to this stage and for this

reason both rider and owner of the motor cycle are

jointly liable to pay the compensation. It is further

contended that the notional income in the year 2014 is

Rs.8,500/-, whereas the Tribunal has taken Rs.7,000/-

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and he sought for dismissal of the appeal and

enhancement of the compensation suo moto.

7. I have given my anxious consideration to the

arguments advanced on both sides and also perused

the materials on record.

8. It is the specific case of the petitioners that

their son was pillion rider, respondent No.2 was the

rider of the motor cycle at the time of accident.

Contrary, the respondents contend that the deceased

was the rider of the motor cycle, with his permission

the deceased took the motor cycle, while going on the

road, lost the control and self-fall to ditch. In order to

make a claim for compensation, in connivance with the

Police, 1st petitioner has created the records and filed

the case.

9. Learned counsel for the petitioner has mainly

relied upon first information furnished to the hospital

when the deceased was brought to Sairam Hospital

that the deceased while riding the motor cycle,

accidentally fell from a two-wheeler at 06:30 pm near

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Thalaghattapura Lake on 22.10.2014. The material

on record did point out that there was an accident

involving the motor cycle and the deceased. The

deceased was fell down along with the motor cycle at

06:30 pm on 22.10.2014 near Pipeline of Kanakapura

Main Road.

10. Whom among respondent No.2 and the

deceased was the pillion rider is the question before

this Court. In order to prove the accident,

1st petitioner has examined himself as PW-1.

RW-2 Chandrappa is an eye witness to the accident.

They have placed reliance on complaint at Ex.P2

leading to registration of F.I.R. in Crime No.588/2014,

autopsy report of the deceased and spot inspection

under Exs.P5 and P6. 4 months after the accident, the

motor cycle was inspected by Motor Vehicles Inspector

to issue Ex.P7/certificate about damages to the front

portion of mudguard, rear wheel disk damage, rear

number plate damage, the front shape on the left side

was scratched. On the basis of the complaint filed by

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1st petitioner, respondent No.2 has been charge

sheeted for the offence punishable under Section 279,

304(a) of I.P.C. while riding the motor cycle, along

with the deceased as pillion rider, caused the accident.

11. Respondent No.2 has also entered the

witness box denying the accident. During the course

of his cross-examination, it is elicited that he has not

challenged the criminal prosecution and he stood for

the trial. In the background of respondent No.2 not

challenging the criminal prosecution against him,

whether the evidence relied upon the petitioner can be

relied or the evidence of the respondents or whether

the hospital records will exonerate respondent No.2

from the accident is the question.

12. For the first time, the deceased was brought

to the Sairam Hospital and M.L.C. has been registered

and its extract is at Ex.R1. The history recorded in the

Sairam Hospital reads as follows:

"Alleged H/o RTA on 22.10.2014 at 6.30pm near Pipeline Talagattapura being knocked down? Self- accident on two wheeler and brought by 108

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Ambulanc in alterd sensoriam and gasping with bleeding from the right ear."

13. Thereafter, the patient was referred to higher

centre for further treatment and management

considering the seriousness of the patient

subsequently. Thereafter the deceased was brought to

the Apollo Hospital, history has been furnished and it

has been recorded in case sheet at Ex.P23. As per the

records maintained in the hospital, the deceased was

brought unconscious in a 108 Ambulance. The history

furnished reads as follows:

"Alleged history of RTA, accidentally fell while riding a two wheeler at around6.30 pm near Talagattapura Police Station on 22.10.2014 near Pipeline Kanakapura Main Road, reason for fall and situation at accident is not known exactly and patient was taken to Sairam Hospital in the 108 Ambulance....."

14. During the course of cross-examination of

petitioner, it is brought out that the first person to visit

the hospital is respondent No.2 and thereafter, he

went to Sairam Hospital, history of the accident was

informed to the doctor and they have recorded the

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same. So 1st petitioner admits the history furnished to

the Sairam Hospital. Same is the history recorded in

Apollo Hospital also. The 1st petitioner in the course of

cross-examination alleges that respondent No.2 was

also sustained injuries for the reason of riding the

motor cycle. PW-1 admits that respondent No.2 has

also sustained minor injuries in the accident.

Respondent No.2 has admitted his visit to the Sairam

Hospital in the witness box. From thereafter, he did

not attend the injured (deceased) either in Apollo

Hospital or in Sri. Seva Kshetra Hospital, where he was

later taken.

15. RW-2 Chandrappa is another witness

examined on behalf of the respondents who asserts

that the deceased was riding the motor cycle and not

respondent No.2; it is the deceased tailored self-

accident to sustain injuries. In the course of cross-

examination, he admits that he was not an eye

witness, when he visited the hospital at 07:00 pm, he

saw the presence of respondent No.2 and Sri.

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Anjinappa, the maternal grandfather of the deceased.

This goes to show that on the date of accident at

07:00 pm, respondent No.2 was in Sairam Hospital. If

respondent No.2 has not caused the accident, he ought

to have been reported the accident to the Police, but

the cross-examination of respondent No.2 has brought

out that he did not attend the funeral of the deceased.

He was not available in the house for more than 2

months and Police have issued notice under Section

133 of Motor Vehicles Act to his father. At one breath,

respondent No.2 without challenging his criminal

prosecution but faces the trial. When it comes to

liability, he pleads that he was not the rider.

Interesting to note that respondent No.2 is not the

owner, respondent No.1 is the owner of the motor

cycle. Then why the criminal case has been registered

against respondent No.2 is not explained. As noticed

from the record, the deceased was brought from the

spot to Sairam Hospital with the suspected road traffic

accident in a 108 Ambulance. There were no eye

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witnesses to the accident. Only after seeing somebody

fallen near pipeline drainage, public have alerted 108

Ambulance which carried the deceased to Sairam

Hospital. So, the information furnished to Sairam

Hospital has no basis. There is no source for

furnishing the said information. Under such

circumstances, it is very difficult to accept the

argument canvassed on behalf of the respondents.

16. The material on record did suggest that the

deceased and respondent No.2 were the rider and

pillion rider of the motor cycle. When the motor cycle

pertains to the respondent No.2 was met with an

accident, it is expected that he will report the same to

the Police. But, he did not report it and he disappears

for few days and later he faces the criminal trial with

anticipating the consequences to pay the

compensation. Admittedly, the motor cycle was not

insured with. For this reason, the liability is fastened

against the respondents. In order to avoid liability to

pay the compensation, respondents are dissecting the

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hospital records to make it believe that it is a self-

accident by the deceased. On perusal of the impugned

judgment, the Tribunal has rightly accepted the

accident and the argument canvassed on behalf of the

respondents is not persuasive.

17. Coming to the assessment of compensation is

concerned, there is no dispute that the deceased was a

student, aged 19 years old. He has been treated at 3

hospitals by spending Rs.1,19,900/-, but he was not

survived. The Tribunal has taken the notional income

at Rs.7,000/- and added 50% future prospects.

18. In a case of this nature, principles of

assessment of compensation is settled by the

Hon'ble Apex Court in National Insurance Co.Ltd.

-Vs- Pranay Sethi and Others1, Sarla Varma

(Smt.) and Others -Vs- Delhi Transport

Corporation and Another2 and Shri Ram General

(2017) 16 SCC 680

(2009) 6 SCC 121

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Insurance Co. Ltd. -Vs- Bhagat Singh Rawat &

Ors.3. By applying these principles, compensation

has to be assessed.

19. The deceased was a bachelor, 50% has to

be deducted towards personal expenses; since the

deceased was not in a permanent employment, 40%

is the future prospects instead of 50%. Accordingly,

compensation has to determined. The notional

income of the deceased is Rs.7,000/- + Rs,2,800/-

(40%) = Rs.9,800/- - Rs.4,900/- (50%) =

Rs.4,900/- x 12 x '18' multiplier = Rs.10,58,400/-.

Rs.40,000/- towards loss of love and affection to the

petitioners Rs.15,000/- each towards loss of estate

and funeral expenses have to be assessed. Since

the claim is of the year 2016, 10% of compensation

under conventional heads has to be appreciated for

every 3 years (i.e., 20%) which comes to

Rs.14,000/-. Then, total compensation under

Civil Appeal Nos.2410-2412/2023, decided on 27.03.2023

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conventional heads comes to Rs.84,000/-, medical

expenses of Rs.1,19,900/- has to be reimbursed. In

all, total compensation comes to Rs.12,62,300/- as

against Rs.13,63,900/-, thereby reduction of

Rs.1,01,600/-.

20. Hence, the appeal merits consideration to

the limited extent of compensation, in the result, the

following:

ORDER

i) Appeal is allowed-in-part.

     ii)     Impugned         judgment       and    award      is
             modified.

     iii)    The petitioners are entitled to total
             compensation           of       Rs.12,62,300/-
             instead     of    Rs.13,63,900/-,        thereby
             reduction of Rs.1,01,600/-.

     iv)     The   respondents             are   directed   to