Smt K S Roopa @ Gowramma vs M/S Sri Rama General Insurance ...
2023 Latest Caselaw 4728 Kant

                                   MFA NO.5537 OF 2014 C/W
                                   MFA NO.4523 OF 2014
                            1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 21ST DAY OF JULY, 2023

                         BEFORE

  THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA

             MFA NO.5537 OF 2014 C/W
             MFA NO.4523 OF 2014 (MV )

IN MFA NO.5537 OF 2014

BETWEEN:

1.    SMT K S ROOPA @ GOWRAMMA
      W/O LATE REVANASIDDAPPA
      AGED ABOUT 32 YEARS, HOUSE MAKER

2.    KUMARI. DIXITHA P.R, MINOR
      D/O LATE REVANASIDDAPPA
      AGED ABOUT 5 YEARS

3.    KUMARI PAVITRA P.R, MINOR
      D/O LATE REVANASIDDAPPA
      AGED ABOUT 11 YEARS

4.    SRI. HANUMANTHAPPA
      S/O RANGAPPA,
      AGED ABOUT 67 YEARS

5.    SMT. NINGAMMA
      W/O HANUMANTHAPPA
      AGED ABOUT 60 YEARS

      THE APPELLANT NOS.2 AND 3 ARE
      MINORS REP. BY THEIR MOTHER
      AS NATURAL GUARDIAN
      ALL ARE R/O MATTI VILLAGE
      DAVANGERE TALUK &
      DISTRICT-577 001                   ... APPELLANTS

(BY SRI.SREEHARSHA A. K., ADV.)
                                  MFA NO.5537 OF 2014 C/W
                                 MFA NO.4523 OF 2014
                         2

AND:

1.     M/S SRI RAMA GENERAL INSURANCE CO., LTD,
       BY ITS BRANCH MANAGER, 1003-E-8M
       RIICO INDUSTRIAL AREA, SITAPURA-JAIPUR
       RAJASTAN-302 022

2.     KUMAR R.
       S/O RAMAIAH
       AGED ABOUT 43 YEARS
       DRIVER OF LORRY KA-25-A-6021
       R/O AGARADHALLI VILLAGE
       BHADRAVATHI TALUK
       SHIMOGA DISTRICT-577 227

3.     BHANGARAPPA
       S/O NARASHIMAIAH
       AGED ABOUT 57 YEARS
       R/O YADEHALLI VILLAGE
       BHADRAVATHI TALUK
       SHIMOGA DISTRICT-577227
                                       ... RESPONDENTS
(BY SRI.O. MAHESH, ADV. FOR R1;
    NOTICE TO R2 AND R3 ARE DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 12.04.2014
PASSED IN MVC NO.433/2012 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE & MEMBER, MACT-IV,
DAVANAGERE, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION     AND    SEEKING   ENHANCEMENT      OF
COMPENSATION.

IN MFA NO.4523 OF 2014

BETWEEN:

THE BRANCH MANAGER
SHRIRAM GENERAL INSURANCE
COMPANY LIMITED, NO.1003-E-8
RIICO INDUSTRIAL AREA
SITAPURA, JAIPUR, RAJASTHAN-302 022
BY SHRIRAMA INSURANCE COMPANY LIMITED
                                     MFA NO.5537 OF 2014 C/W
                                    MFA NO.4523 OF 2014
                             3

NO.302, 3RD FLOOR, S & S CORNER BUILDING
PLOT NO.48, HOSPITAL ROAD, SHIVAJINAGAR
BANGALORE-560 001, BY ITS MANAGER
                                             ... APPELLANT
(BY SRI.O.MAHESH, ADVOCATE)

AND:

1.     SMT K S ROOPA @ GOWRAMMA
       W/O LATE REVANASIDDAPPA
       AGED ABOUT 32 YEARS, HOUSE MAKER

2.     KUMARI. DIXITHA P.R, MINOR
       D/O LATE REVANASIDDAPPA
       AGED ABOUT 5 YEARS

3.     KUMARI PAVITRA P.R, MINOR
       D/O LATE REVANASIDDAPPA
       AGED ABOUT 11 YEARS

4.     SRI. HANUMANTHAPPA
       S/O RANGAPPA,
       AGED ABOUT 67 YEARS

5.     SMT. NINGAMMA
       W/O HANUMANTHAPPA
       AGED ABOUT 60 YEARS

       THE APPELLANT NOS.2 AND 3 ARE
       MINORS REP. BY THEIR MOTHER
       AS NATURAL GUARDIAN
       ALL ARE R/O MATTI VILLAGE
       DAVANGERE TALUK & DIST-577 001

6.     KUMAR R.
       AGED 43 YEARS, S/O RAMAIAH
       R/O AT AAGRADHALLI VILLAGE
       BHADARAVATHI TALUK
       SHIMOGA DISTRICT - 577 201

7.     BHANGARAPPA
       AGED 57 YEARS, S/O NARASHIMAIAH
       R/O AT YADEHALLI VILLAGE
       BHADRAVATHI TALUK
       SHIMOGA DISTRICT - 577 201      ... RESPONDENTS
                                   MFA NO.5537 OF 2014 C/W
                                  MFA NO.4523 OF 2014
                           4

(BY SRI.SREEHARSHA A. K., ADV. FOR R1 TO R5;
    R2 AND R3 ARE MINORS REP. BY R1;
    R7 SERVED AND UNREPRESENTED;
    NOTICE TO R6 DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 12.04.2014
PASSED IN MVC NO.433/2012 ON THE FILE OF THE
PRINCIPAL, SENIOR CIVIL JUDGE & MEMBER, MACT-IV, AT
DAVANGERE, AWARDING COMPENSATION OF RS.4,24,500/-
WITH INTEREST @ 9% P.A FROM THE DATE OF PETITION TILL
REALIZATION.
     THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 03.07.2022 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                     JUDGMENT

In these appeals, both petitioners and the

Insurance Company have challenged the judgment

dated 12.04.2014 passed by the Principal Senior

Civil Judge and Member, MACT-IV at Davangere

('the Tribunal' for short) in M.V.C.No.433/2012.

2. The appellants in M.F.A.No.5537/2014 are

the petitioners and the appellant in

M.F.A.No.4523/2014 is the third respondent before

the Tribunal. Hence, for the sake of convenience, MFA NO.5537 OF 2014 C/W MFA NO.4523 OF 2014

the parties shall be referred to as per their status

before the Tribunal.

3. Briefly stated the facts are that, the husband

of first petitioner, father of petitioners No.2 and 3

and son of petitioners No.4 and 5 is one

Revanasiddappa, the deceased. While the deceased

was riding his motor cycle bearing No.KA-17/W-5047

on 08.02.2012 at about 08.30 p.m. near Thyavanagi

village, a lorry bearing No.KA-25/A-6021 was parked

on the middle of the road without putting any

parking lights due to which, the deceased rammed

his motor cycle on the hind portion of the lorry,

sustained injuries and later died at SSIMS Hospital,

Davangere on 13.02.2012. Seeking compensation,

the petitioners have moved the Tribunal under

Section 163-A of the Motor Vehicles Act, 1988 ('the

Act' for short). Claim was opposed by the

respondents No.1 and 3. The Tribunal after

recording the evidence of both sides passed the MFA NO.5537 OF 2014 C/W MFA NO.4523 OF 2014

impugned judgment awarding compensation of

Rs.4,24,500/- with interest @ 9% per annum, by

fastening liability against the respondents No.1 and

3. The petitioners on the ground of inadequacy of

award of compensation and the Insurance Company

assailing the order of fastening the liability have filed

these appeals on various grounds.

4. Heard Sri.A.K.Sreeharsha, learned counsel

for the petitioners and Sri.O.Mahesh, learned counsel

for respondent No.1/Insurance Company.

5. It is the contention of the learned counsel for

the petitioners that though the claim petition is filed

under Section 163A of the Act, the Tribunal has not

properly assessed the compensation towards loss of

dependency, inadequate compensation is assessed

under conventional heads and sought for

enhancement.

MFA NO.5537 OF 2014 C/W MFA NO.4523 OF 2014

6. Per contra, learned counsel for the Insurance

Company has contended that the deceased is said to

be earning huge income even on the date of

accident, in the Lok Adalat, notional income of a

person with no proof of income is assessed at

Rs.7,000/- but petitioners artificially brought down

the income of the deceased at Rs.40,000/- per

annum for claiming compensation under Section

163A of the Act. It is further contended that due to

puncture, the lorry was broke down, arranging signal

the driver and cleaner were attending the lorry, at

that time, the deceased rash and negligently raided

the motor cycle and came and hit on the hind portion

of the lorry and is completely negligent for the

accident. Hence, actionable negligence is against

the deceased, which the petitioners are not entitled

to claim compensation.

MFA NO.5537 OF 2014 C/W MFA NO.4523 OF 2014

7. I have given my anxious consideration to the

arguments advanced on both sides and perused the

materials on record.

8. It is the specific case of the petitioners that

the lorry was parked on the middle of the road

without indicating any signal to the incoming traffic.

Contrarily, the contention of the driver of the lorry is

that, the sidelight indicator was on and the lorry was

under repair for replacing the punctured wheel. The

evidence placed before the Tribunal in this regard

suggests that the lorry was broke down on the

middle of the road due to wheel puncture. At that

time, the accident had taken place. Though it is

attributed to the petitioners that the accident was at

the fault of the deceased, since the petition is filed

under Section 163A of the Act, plea of negligence is

not available for the respondents to contest the

claim.

MFA NO.5537 OF 2014 C/W MFA NO.4523 OF 2014

9. As seen from the evidence on record and

also the photograph produced along with Ex.P16 that

at about 8.30 p.m., the accident took place and lorry

is found on the middle of the road and the deceased

came behind the lorry and hit against it. It is

pertinent to note that the lorry is loaded with

wooden poles and a back luggage door was hanging

to the road and there is no parking indicator showing

the incoming traffic, in the breakdown lorry. Hence

the contention of the Insurance Company that

complete negligence is on the part of the deceased

cannot be accepted. There is no plea taken by the

Insurance Company before the Tribunal that the

income of the deceased was artificially reduced to

Rs.40,000/- per annum. The cross-examination of

the petitioners did not suggest on behalf of the

Insurance Company that the income of the deceased

was more than Rs.40,000/- per annum on the date

of accident. The Law Officer of the Insurance MFA NO.5537 OF 2014 C/W MFA NO.4523 OF 2014

Company, who has stepped into the witness box, did

not raise such plea. When such a plea was not taken

before the Tribunal, it is not proper on the part of

the Insurance Company to raise such a plea in this

appeal for the first time, which was not available for

the Tribunal for appreciation.

10. There is no dispute that the Police

investigation culminated in charge sheet against the

deceased. But the evidence, on record speaks that

the lorry having been parked on the middle of the

road at 8.30 p.m. without any indicator for the

incoming traffic and also the manner in which the

goods being transported in a dangerous manner, will

keep the Insurance Company away from such a plea

that the deceased was completely negligent in

causing the accident. The contribution for the

accident on behalf of the lorry cannot be ignored.

Mere filing of charge sheet against the deceased is

not a ground to support the contention taken by the MFA NO.5537 OF 2014 C/W MFA NO.4523 OF 2014

Insurance Company when the petition is filed under

Section 163A of the Act. Hence, I do not find any

valid ground in the contention taken by the

Insurance Company.

11. Now as regards the assessment of

compensation is concerned, I have perused the

impugned judgment. The Tribunal has awarded

compensation on conventional heads at Rs.5,000/-

towards loss of consortium, Rs.2,500/- towards loss

of estate, Rs.2,000/- towards funeral expenses,

which is proper. Though the petitioners have

produced the medical bills for spending huge money

towards treatment, in view of the restriction of

awarding compensation towards medical expenses, a

sum of Rs.15,000/- assessed by the Tribunal is

statutorily permissible as against Rs.71,738/- spent

by the petitioners. The Tribunal referring to the

income of the deceased at Rs.40,000/- per annum,

the age of the deceased at 37 years and also MFA NO.5537 OF 2014 C/W MFA NO.4523 OF 2014

multiplier at 16, with reference to Schedule-II of the

Act, taken the fixed compensation at Rs.6 lakhs and

deducted 1/3rd towards personal expenses and

assessed Rs.4,00,000/- towards loss of dependency.

This is what the petitioners have questioned in their

appeal.

12. There is no dispute as to the age and also

applicable multiplier. If the income of Rs.40,000/- is

taken, since the dependants are 5 in number, 1/3rd

has to be deducted towards personal expenses i.e.,

Rs.40,000/- minus Rs.13,333/- = Rs.26,667/- x 16

multiplier comes to Rs.4,26,672/- and the total

compensation comes to Rs.4,51,172/- as against

Rs.4,24,500/- assessed by the Tribunal, thereby

nominal enhancement of Rs.26,672/-, it is just

compensation in the facts and circumstances of the

case.

MFA NO.5537 OF 2014 C/W MFA NO.4523 OF 2014

13. In the light of the discussion made above,

the appeal filed by the petitioner deserves to be

allowed and the appeal filed by the Insurance

Company deserves to be dismissed. In the result,

the following:

ORDER

(i) M.F.A.No.5537/2014 filed by the petitioner

is allowed in part.

(ii) The award passed by the Tribunal is hereby

modified. The petitioner is entitled for enhanced

compensation of Rs.26,672/- with interest @ 6% per

annum from the date of petition till realization.

(iii) The Insurance Company is directed to

satisfy the award within a period of eight weeks from

the date of receipt of a certified copy of this

judgment.

(iv) M.F.A.No.4523/2014 filed by the Insurance

Company is dismissed.

MFA NO.5537 OF 2014 C/W MFA NO.4523 OF 2014

(v) The amount in deposit, if any, shall be

transmitted to the Tribunal along with records

forthwith.

SD/-

JUDGE

KNM/-

CT:HS