Karnataka High Court
Ganesh Acharya vs Prasad Ballal on 30 June, 2023
Bench: T G Gowda
MFA NO.2211 OF 2016 C/W
MFA.NO.3745 OF 2016
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30 TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA
MFA NO.2211 OF 2016 C/W
MFA.NO.3745 OF 2016 (MV-D)
IN MFA NO.2211 OF 2016
BETWEEN:
THE RELIANCE INSURANCE CO. LTD
DIVISIONAL MANAGER, DIVISIONAL OFFICE
MAXIMUS COMMERCIAL COMPLEX
4TH FLOOR, LIGHT HOUSE HILL ROAD
HAMPANAKATTA-MANGALORE
ALSO AT M/S RELIANCE GENERLA INS. CO LTD
NO.28, 5TH FLOOR, CENTENARY BUILDING
M.G.ROAD , BENGALURU-560 001
NOW REP. BY MANAGER LEGAL ... APPELLANT
(BY SRI. ASHOK N. PATIL, ADV.)
AND:
1. GANESH ACHARYA
S/O LATE KRISHNA ACHARYA
AGED ABOUT 56 YEARS,
2. LAXMI ACHARTHY
W/O GANESH ACHARYA
AGED ABOUT 52 YEARS,
3. JAGADEESH ACHARYA
S/O GANESH ACHARYA
AGED ABOUT 29 YEARS,
4. PRASHANTH ACHARYA
S/O GANESH ACHARYA
AGED ABOUT 27 YEARS,
MFA NO.2211 OF 2016 C/W
MFA.NO.3745 OF 2016
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ALL ARE R/AT LAXMI GANESH NILAYA
NARNADU, UPPOOR VILLAGE, KOLALAGIRI
POST, UDUPI TALUK & DISTRICT - 574 104
5. SRI PRASAD BALLAL
S/O LATE SUBODH BALLAL
AGED ABOUT 47 YEARS
R/O APM MOTORS, MAIN ROAD
HEBRI, KARKALA TALUK
UDUPI DISTRICT ... RESPONDENTS
(R1 TO R5 SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 29.12.2015
PASSED IN MVC NO.633/13 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE & ADDITIONAL MACT, UDUPI,
AWARDING COMPENSATION OF RS.9,29,000/- WITH
INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE
DATE OF REALIZATION.
IN MFA.NO.3745 OF 2016
BETWEEN:
1. GANESH ACHARYA
AGED ABOUT 57 YEARS,
S/O LATE KRISHNA ACHARYA
2. LAXMI ACHARTHY
AGED ABOUT 53 YEARS,
W/O GANESH ACHARYA
3. JAGADEESH ACHARYA
AGED ABOUT 30 YEARS,
S/O GANESH ACHARYA
4. PRASHANTH ACHARYA
AGED ABOUT 28 YEARS
S/O GANESH ACHARYA
ALL ARE R/AT LAXMI GANESH NILAYA
NARNADU, UPPOOR VILLAGE, KOLALAGIRI
POST, UDUPI TALUK & DISTRICT - 574 101
... APPELLANTS
(BY SMT. SHUBHALEKHA S. ADV. FOR
SRI.PAVANA CHANDRA SHETTY, ADV.)
MFA NO.2211 OF 2016 C/W
MFA.NO.3745 OF 2016
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AND:
1. PRASAD BALLAL
AGED ABOUT 48 YEARS
S/O LATE SUBODH BALLAL
R/O APM MOTORS, MAIN ROAD
HEBRI, KARKALA TALUK
UDUPI DISTRICT - 576 101
2. THE RELIANCE INSURANCE CO LTD
DIVISIONAL MANAGER, DIVISIONAL
OFFICE, MAXIMUS COMMERCIAL COMPLEX
4TH FLOOR, LIGHT HOUSE HILL ROAD
HAMPANAKATTA, MANGALORE ... RESPONDENTS
(BY SRI. ASHOK N. PATIL, ADV. FOR R2;
VIDE ORDER DATED 23.02.2018
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 29.12.2015
PASSED IN MVC NO.633/2013 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT,
UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 16.06.2023 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
MFA NO.2211 OF 2016 C/W
MFA.NO.3745 OF 2016
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JUDGMENT
In these appeals, the appellants have
challenged the judgment dated 29.12.2015 passed in
M.V.C.No.633 of 2013 on the file of the Additional
Senior Civil Judge and Addl.M.A.C.T., Udupi
(hereinafter referred to as 'Tribunal' for short).
2. MFA No.2211/2016 is filed by the 2nd
respondent/Insurance Company. MFA No.3745/2016
is filed by the petitioners seeking enhancement of
the compensation. The parties will be referred with
respect to their status before the Tribunal for the
sake of convenience.
3. Briefly stated the facts are that,
petitioners are the parents and brothers of
Shashidhara Acharya, the deceased. The deceased
killed in a road accident that took place on
25.05.2013 at about 7.30 a.m. at Heraibettu on NH-
66 leading from Udupi to Kundapura, hit by Bus
MFA NO.2211 OF 2016 C/W
MFA.NO.3745 OF 2016
bearing registration No.KA-20/C-6037 against his
Motor Cycle bearing registration No.KA-21-H-3426
from behind. The deceased has suffered injures and
succumbed during transit to KMC Hospital, Manipal.
Petitioners claimed compensation of Rs.14,41,000/-.
They pleaded that deceased was aged 29 years,
working as office attendant at MAHE University
drawing salary of Rs.5,750/- per month. The claim
was opposed by the Insurance Company. The
Tribunal awarded Rs.9,29,000/- with 6% interest.
4. The Insurance Company has filed this
appeal on the ground that the Tribunal has not
considered the contributory negligence on the part of
the deceased, addition of 50% of future prospects is
incorrect and selection of multiplier on the age of
parents was not taken. The petitioners are pleading
inadequacy of compensation and that the amount
awarded towards conventional heads by the Tribunal
is on the lower side.
MFA NO.2211 OF 2016 C/W
MFA.NO.3745 OF 2016
5. Heard the arguments of
Smt.S.Shubhalekha on behalf of Sri.Pavan Chandra
Shetty, learned counsel for petitioners and Sri.Ashok
N Patil, learned counsel for the Insurance Company.
6. According to the learned counsel for
petitioners, the deceased was salaried person with
permanent job earning Rs.5,750/- per month, huge
money was spent towards transportation, funeral
and obsequies but compensation awarded towards
conventional heads is on lower side and accordingly
she sought for re-assessment and enhancement.
7. Per contra, learned counsel for Insurance
Company contended that the Tribunal has not
correctly assessed the income of the deceased, the
deceased himself came and hit against the bus at
the junction, he has contributed more than 50% for
the accident, it is not been considered by the
Tribunal, the selection of multiplier with reference
the age of the deceased is not correct, compensation
MFA NO.2211 OF 2016 C/W
MFA.NO.3745 OF 2016
under conventional heads has been settled and
accordingly compensation may be re-assessed and
sought for modification of impugned judgment.
8. I have given my anxious consideration to
the arguments addressed on behalf of the parties
and perused the records.
9. The first contention of the Insurance
Company is that the deceased had contributed for
the accident more than 50% and it shall be fixed
minimum of 50%. Exs.P1 to P7 are the police papers
regarding accident. On careful analysis of the
materials on record, it is pertinent to note that the
accident took place on the National Highway. The
purpose of National Highway is to facilitate smooth
and fast transport system. The movement of vehicles
on National Highway will certainly be at a higher
speed compared to other roads. Spot sketch shows
that the accident was on the middle of the median of
the road where there was open space for the
MFA NO.2211 OF 2016 C/W
MFA.NO.3745 OF 2016
vehicles to cross to other side of the road. There is a
recital in the Ex.P2/complaint that the deceased had
come to the spot from Laxmi Bar road and was
taking turn on the road divider when the bus hit
against his motor cycle and same is also the
evidence of PW-2/Laxman Kotiyan. This piece of
evidence is misread by the Insurance Company to
attribute contributory negligence. Ex.P4 is the spot
sketch showing the topography of the spot. In the
sketch, there is no mention of Laxmi bar road.
Hence, the reference of Laxmi bar road shall not give
any indication that the deceased came and dashed
against the Bus. At the spot, the Highway was closed
on the left side due to repair work, all the vehicles
were required to take a right turn to go towards
Kundapura. IMV report at EX.P5 points out the
damages to the left side corner of the bus. Both Bus
and Motor Cycle were going towards Kundapura. If
the Motor cycle had entered the road, it ought to
have hit on the right side of the bus. The evidence
MFA NO.2211 OF 2016 C/W
MFA.NO.3745 OF 2016
on record points out that the deceased was at the
spot before the accident, the bus which came behind
had hit on the hind side of the motor cycle in order
to take diversion. The material on record has not
supported the contention of the Insurance Company
regarding contributory negligence.
10. Exs.P9 to P13 are the documents to
explain that the deceased was working as Office
Assistant with proof of income of Rs.5,750/- per
month. The Tribunal considered the income of the
decease at Rs.6,000/- per month. When the
deceased was earning definite income, it shall be
taken into consideration, however, without any
evidence adding Rs.250/- extra is not correct.
Hence, the income of the deceased is assessed
accordingly.
11. As seen from the impugned judgment, the
Tribunal has considered 50% future prospects, under
conventional heads, Rs.40,000/- towards loss of love
MFA NO.2211 OF 2016 C/W
MFA.NO.3745 OF 2016
and affection and Rs.25,000/- towards transportation
and funeral expenses. In this regard, it is the
contention of the learned counsel for the Insurance
Company that it shall be 40% as the deceased is not
a permanent employee. But the records show that
though the deceased was appointed on temporary
basis, he was made permanent on the regular scale.
Hence, the said contention of the Insurance
Company cannot be supported with. By applying the
principles laid down in National Insurance
Company Limited vs. Pranay Sethi and Others -
2017 ACJ 680 future prospects should be taken as
50% for a person of below 40 years having
permanent job. Ex.P7/Postmortem report confirms
that the deceased was aged 29 years. Hence, the
appicable multiplier as per decision of Apex Court in
the case of Sarla Verma v. DTC- (2009)6 SCC
121, is '17' on the basis of the age of the deceased
and not on the basis of the age of the parents.
MFA NO.2211 OF 2016 C/W
MFA.NO.3745 OF 2016
12. If all these factors are taken into
consideration, the assessment of loss of dependency
would be: Rs.5,750/-/- (Income of the deceased) +
Rs.2,875/- (50% future prospects) = Rs.8,625/- per
month. The petitioners are the parents of the
deceased and the deceased was a bachelor, hence,
50% has to be deducted towards personal expenses
of the deceased. It comes to Rs.4,312.50 -
Rs.4,312.50 x 12 x 17= Rs.8,79,750/-. Under the
conventional heads, each of the petitioners is
entitled to Rs.40,000/- towards loss of love and
affection i.e., Rs.40,000/-x4=Rs.1,60,000/-, towards
loss of estate and funeral expenses Rs.15,000/-
each. The total compensation comes to
Rs.8,79,750/- + Rs.1,90,000/- = Rs.10,69,750/- as
against Rs.9,29,000/-, which is the just
compensation to which the petitioners are entitled.
The appeal filed by the petitioners for enhancement
deserves to be allowed in part for enhancement of
Rs.1,40,750/-. The appeal filed by the Insurance
MFA NO.2211 OF 2016 C/W
MFA.NO.3745 OF 2016
Company is devoid of merits and liable to be
dismissed.
13. In the result, the following:
ORDER
(i) M.F.A.No.2211/2016 filed by the
Insurance Company is dismissed.
(ii) M.F.A.No.3745/2016 filed by the
petitioners is allowed in part.
(iii) The judgment and award passed by
them Tribunal is modified.
(iv) The petitioners are entitled to
compensation of Rs.10,69,750/- as against
Rs.9,29,000/-, awarded by the Tribunal, thereby
enhancement of Rs.1,40,750/- with interest at the
rate of 6% per year on the enhanced
compensation.
(v) Rest of the judgment and award of the
Tribunal is kept intact.
MFA NO.2211 OF 2016 C/W
MFA.NO.3745 OF 2016
(vi) Office is directed to transfer the amount
if any in deposit, to the Tribunal, forthwith.
SD/-
JUDGE
KNM/-
