Karnataka High Court
S. Ramesh Kumar vs Reliance General Insurance Company ... on 22 November, 2023
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NC: 2023:KHC:42224-DB
MFA No. 6559/2017
C/W MFA.CROB No. 151/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
MISCELLANEOUS FIRST APPEAL NO. 6559/2017 (MV-D)
C/W
MFA CROSS OBJECTION NO. 151/ 2017
IN MFA No.6559/2017
BETWEEN:
1. RELIANCE GENERAL INSURANCE CO. LTD.,
LAXMAN TOWERS,
NO.60/4, HOSUR MAIN ROAD,
ELECTRONIC CITY,
BANGALORE-560 010.
REP. BY ITS REGIONAL MANAGER,
NO.28, EAST WING, 5TH FLOOR,
CENTENARY BUILDING, M.G.ROAD,
Digitally BANGALORE-560 001. ... APPELLANT
signed by K S
RENUKAMBA (BY SRI D. VIJAYAKUMAR., ADVOCATE)
Location:
High Court of AND:
Karnataka
1. SRI S. RAMESH KUMAR,
S/O S.SRINIVASAN,
R/AT NO.22/B,
4TH CROSS, 1ST MAIN,
PRAKRUTHI LAYOUT,
KALYAN NAGAR,
HBR LAYOUT,
BANGALORE-560 043.
SINCE DECEASED BY LRs
1(a) SRI S. SRINIVASAN
S/O P.SUBRAMANI
AGED ABOUT 56 YEARS,
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MFA No. 6559/2017
C/W MFA.CROB No. 151/2017
1(b) SMT.UMA
W/O SRINIVASAN,
AGED ABOUT 51 YEARS,
BOTH ARE R/AT No.22/B,
4TH CROSS, 1ST MAIN,
PRAKRUTHI LAYOUT,
KALYAN NAGAR, HBR LAYOUT,
BANGALORE-560 043.
2. MR.BIJI JACOB,
FATHER NAME NOT KNOWN,
MAJOR,
R/AT NO.282, 6TH MAIN,
4TH CROSS, VIVEK NAGAR,
BANGALORE-560 047.
(OWNER OF CAR BEARING
REG.NO.KA-01-ME-3345) ... RESPONDENTS
(BY SRI K. T. GURUDEVAPRASAD, ADVOCATE FOR R1(a & b);
VIDE ORDER DATED 18.11.2023 APPEAL AGAINST R2 STANDS
DISMISSED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 05.05.2017 PASSED IN MVC NO.5834/2011 ON THE FILE OF
THE XXII ADDITIONAL SMALL CAUSES JUDGE, & XX ACMM &
MEMBER, MACT, BENGALURU, (SCCH-24), AWARDING
COMPENSATION OF Rs.25,89,000/- WITH INTEREST @ 8% P.A.
FROM THE DATE OF PETITION TILL DEPOSIT.
IN MFA CROB No.151/2017
BETWEEN:
1. S. RAMESH KUMAR,
S/O S. SRINIVASAN,
SINCE DECEASED BY
LEGAL REPRESENTATIVES,
1(a) S.SRINIVASAN,
S/O P. SUBRAMANI,
AGED ABOUT 51 YEARS,
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MFA No. 6559/2017
C/W MFA.CROB No. 151/2017
1(b) SMT. UMA,
W/O SRINIVASAN,
AGED ABOUT 46 YEARS,
BOTH ARE RESIDING AT
NO.22/B, 4TH CROSS,
1ST MAIN, PRAKRUTHI LAYOUT,
KALYANANAGAR, HBR LAYOUT,
BANGALORE-560043. ... CROSS OBJECTORS
(BY SRI GURUDEVA PRASAD K. T., ADVOCATE)
AND:
1. RELIANCE GENERAL INSURANCE COMPANY LIMITED.,
LAXMAN TOWERS,
NO.60/4, HOSUR MAIN ROAD,
ELECTRONIC CITY,
BANGALORE-560010.
REPRESENTED BY ITS MANAGER
2. BIJI JACOB,
MAJOR IN AGE,
R/AT NO.282, 6TH MAIN,
4TH CROSS, VIVEK NAGAR,
BANGALORE-560047. ... RESPONDENTS
(BY SRI D. VIJAYAKUMAR, ADVOCATE FOR R1;
VIDE ORDER DT. 09.02.2021 NOTICE TO R2 DISPENSED WITH)
THIS MFA CROB IS FILED UNDER ORDER 41 RULE 22 OF CPC
WITH SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 05.05.2017 PASSED IN MVC
NO.5834/2011 ON THE FILE OF THE 22ND ADDITIONAL SMALL
CAUSES JUDGE & 20TH ACMM & MEMBER, MACT, BENGALURU,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL AND MFA CROB COMING
ON FOR FURTHER HEARING THIS DAY, K.S. MUDAGAL J., DELIVERED
THE FOLLOWING:
JUDGMENT
MFA No.6559/2017 is preferred by the insurer challenging
the award in MVC No.5834/2011. The claimants in the said
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case have preferred the cross objection No.151/2017
questioning the adequacy of the compensation awarded to the
claimants in MVC No.5834/2011.
2. For the purpose of convenience, the parties are
referred to henceforth according to their ranks before the
Tribunal.
3. Initially, MVC No.5834/2011 was filed by S. Ramesh
Kumar seeking compensation for the injuries suffered by him in
the motor vehicle accident. Pending MVC No.5834/2011, he
succumbed to the injuries suffered by him. Therefore, his
father and mother came on record as claimant Nos.1a and 1b
and prosecuted the matter. At the relevant time, respondent
Nos.1 and 2 before the Tribunal were the insurer and owner of
the offending vehicle.
4. On 25.06.2011 at 8.45 p.m., when S.Ramesh
Kumar was riding motor cycle bearing No.KA-53-S-5801 at
Dickenson Road, near Sub Area Officers Colony, Halasur, Car
bearing No.KA-01-ME-3345, hit his motor cycle. In the
accident, S. Ramesh Kumar suffered grievous injuries resulting
in Paraplegia.
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5. Ramesh Kumar filed MVC No.5834/2011 contending
that the accident and consequential injuries occurred due to the
actionable negligence on the part of driver of Car bearing No.
KA-01-ME-3345. He further contended that due to grievous
injuries suffered by him, he has suffered permanent physical
disability. He claimed that he was serving as Business
Development Executive in M/s. V. Verve Health Consultants,
Bengaluru and earning Rs.15,500/- p.m. by way of salary. He
further claims that he suffered 100% permanent physical
disability. He claimed compensation of Rs.1,10,00,000/- from
respondent Nos.1 and 2. Pending MVC No.5834/2011, Ramesh
Kumar died on 05.04.2015.
6. Respondent Nos.1 and 2 contested the petition
denying the actionable negligence on the part of the driver of
Car bearing No.KA-01-ME-3345, age, occupation and income of
the claimant and the permanent disability suffered by him.
They contended that the accident occurred due to rash and
negligent riding of the motor cycle by the claimant himself and
the driver of the car was falsely implicated in the case in
collusion with police etc. Respondent No.2 contended that the
vehicle is insured with respondent No.1. The liability, if any,
shall have to be indemnified by respondent No.1. Respondent
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No.1 contended that the claimant was riding the vehicle without
valid Driving License and it's liability was subject to the
conditions of the policy.
7. In support of the case of the claimants, PW's 1 to 7
were examined and Exs.P1 to P33 were marked. The original
claimant - Ramesh Kumar was examined as PW.1. The Doctor,
who treated the claimant during his life time was examined as
PW.2. PW.3 was the complainant/eye-witness to the accident.
PW.4 was examined as the attendant/care taker of the victim.
PW.5 was examined to prove Ex.P11 - Salary Certificates
allegedly issued by M/s. V. Verve Health Consultants - the
employer. PW.6 is claimant No.1a - father of the deceased.
PW.7 is Doctor, who speaks about the death summary and the
death report. Respondents did not lead any evidence.
8. The Tribunal on hearing both parties, relying on the
oral evidence and Exs.P1 to P6 and P32 held that the accident
occurred due to rash and negligent driving on the part of driver
of the Car bearing No.KA-01-ME-3345. The Tribunal further
held that the death of original claimant was due to the
accidental injuries suffered by him, the cause of action survives
to claimant Nos.1a and 1b and they are entitled to the
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compensation on the head of loss of dependency. The Tribunal
disbelieved the evidence of PW.5 and the case of the claimant
that the deceased was employed in M/s. V. Verve Health
Consultants as Business Development Executive. Therefore,
notionally assessed his income at Rs.8,000/- p.m.
9. The Tribunal assessed the age of the deceased at
20 years, added 50% to income of the deceased by way of
future prospectus, deducted (1/2) half from the income of the
deceased for his personal expenses as he was a bachelor,
applied '18' multiplier and awarded compensation at
Rs.12,96,000/- on the head of loss of dependency. The
Tribunal in all awarded compensation of Rs.25,89,029/- on
different heads as per the table below:
Sl. Particulars Compensation
No. Amount in Rs.
1. Medical Expenses Rs.10,23,029/-
2. Food and Nourishment, Attendant Rs.2,00,000/-
and conveyance Charges
3. Loss of dependency Rs.12,96,000/-
4. Loss of Love and affection Rs.50,000/-
5. Transportation Charges, Funeral Rs.20,000/-
and obsequies ceremony expenses
TOTAL Rs.25,89,029/-
10. Both the claimants and insurer challenge the said
award questioning the adequacy of the compensation awarded.
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11. Apart from that Sri. D. Vijayakumar, learned
counsel for the insurer relying on the judgments of this Court
further contends that when the injured died, the cause of action
does not survive to his parents. Therefore, they were entitled
to compensation only under the head of loss of estate. He
further claims that the other compensation awarded is also on
the higher side.
12. In support of his submissions, he relied on the
following judgments:
1. Kannamma V/s. Deputy General Manager1
2. Uttam Kumar V/s. Madhav and Another2
13. Sri. K. T. Gurudevaprasad, learned counsel for the
claimants submits that the judgments relied on by the learned
counsel for the appellant are not applicable as the death was
direct consequence of the injuries suffered by the victim in the
accident. He further submits that the victim was a diploma
student. The Tribunal was not justified in rejecting the
evidence of PW.5 and assessing the income of the deceased at
Rs.8,000/- p.m. He further submits that the compensation
awarded on other heads is also on the lower side.
ILR 1990 KAR 4300
ILR 2002 KAR 1864
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14. On hearing both side and on examination of the
records, the point that arises for consideration of this Court is:
"Whether the compensation granted by the Tribunal
under the impugned award is just one?"
ANALYSIS
15. The rider of the motor cycle himself deposed before
the Court that accident occurred due to rash and negligent
driving on the part of the driver of the Car bearing No.KA-01-
ME-3345. On the complaint of PW.3 as per Ex.P2, the Police
registered FIR as per Ex.P1 and on investigation filed charge
sheet Ex.P32 against the driver of the car. The said evidence
was not refuted by the respondents by examining the driver of
the car. Under the circumstance, the trial Court rightly held
that the actionable negligence on the part of the driver of the
car was proved.
16. Whether the death of Ramesh Kumar - the original
claimant occurred due to the injuries suffered by him in the
accident is the next question. To prove that, the claimant
relied on the evidence of PW.2 - the Doctor, who treated him
during his lifetime and PW.7, who issued the death summary
as per Ex.P26 and death report at Ex.P27. The evidence of
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those witnesses coupled with Ex.P6 - wound certificate, Ex.P7 -
Discharge summary for the period 26.06.2011 to 03.07.2011,
Ex.P8 - another discharge summary for the period 03.07.2011
to 28.08.2011 and the evidence of PWs.2 and 7 show that the
victim had suffered the following injuries in the accident.
1. "Abrasion over right maxillary region.
2. Abrasion over right forearm.
3. Abrasion over right shoulder.
4. Abrasions over both knees.
5. Abrasions over dorsum of both hands.
6. Post Traumatic D-II vertebra fracture."
17. The evidence of PWs.2, 7 and other witnesses
shows that the victim had suffered paraplegia. The medical
evidence further shows that the victim had bladder dysfunction.
The medical evidence further shows that due to the injuries the
victim was bed ridden all along, therefore, he developed bed
sores and septicemia. He died on 05.04.2015 due to septic
shock and bed sores. The said evidence was not impeached in
the cross-examination of the witnesses. Therefore, the
Tribunal was justified in holding that there was a direct nexus
between the accidental injuries and the death of S. Ramesh
Kumar.
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18. Then the question is whether on the death of S.
Ramesh Kumar after four years due to the accidental injuries,
the cause of action survived to his parents or not? In both the
judgments relied on by the learned counsel for the insurer
himself, on reference this Court held that a claim petition
presented under Section 110A of the Motor Vehicle Act, 1939
by the person sustaining bodily injuries in a motor accident,
claiming compensation for personal injuries as also for
compensation towards expenses, loss of income etc., on such
persons death occurring as a result or consequence of bodily
injuries sustained in the motor accident can be prosecuted by
his/her legal representatives.
19. In paragraph No.9 of the judgment of Uttam
Kumar's case referred to supra, Full bench of this Court
referring to Section 166 of the Motor Vehicles Act, 1988 (for
short 'the Act) held that, if any death is resulted from the
accident, the legal representatives can be brought on record
and can pursue the claim petition under Section 166(1)(c) of
the Act. Therefore, the said judgment applies.
20. In the present case it is not disputed that the victim
was aged 20 years, who was the son of claimant Nos.1a and
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1b. Therefore, they become his dependants. Thus, we are not
convinced by the submission that the claimants are entitled to
the compensation only on the head of loss of estate. The Act
applicable in the present case is the Motor Vehicles Act, 1988.
Section 166 of the Act sufficiently protected the interest of
claimant Nos.1a and 1b. On the death of the victim, they did
not claim compensation for the personal injuries of the victim
but they claimed compensation on the head of loss of
dependency as the dependants of the deceased. Therefore, the
judgment relied by the learned counsel for the insurer does not
advance his case.
21. As per the medical records, at the time of accident
the victim was aged 20 years. When he died, his age was 24
years. Therefore, as per the judgment of the Hon'ble Supreme
court in Sarla Varma v. Delhi Transport Corporation3, the
trial Court was justified in applying 18 multiplier. So far as the
income of the deceased, though the claimants contended that
he was earning Rs.15,500/- p.m. from his employment in
M/s. V. Verve Health Consultants, the author of Ex.P11 was not
examined. PW.5 though claimed that he was another employee
in the said Institution. PW.5 himself admitted that there was
AIR 2009 SC 3104
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no authorization letter issued by the employer to depose.
PW.5's evidence was rightly rejected by the trial Court to hold
that Ex.P11 was not a dependable document. Therefore, the
Tribunal was justified in assessing the income notionally.
22. Though it was contended that deceased was a
diploma student, to prove that the authors of Exs.P12 and P13
- the alleged college ID and student certificate were not
examined. Even the SSLC marks card of the deceased was not
produced. Considering the age of the deceased and the
prevailing wage rate during the relevant period, the notional
income assessed is on the higher side. The Tribunal should
have assessed the same as to Rs.6,500/- p.m.
23. As per the judgment of the Hon'ble Supreme Court
in the case of National Insurance Company Limited vs.
Pranay Sethi4, for a self employed person below 50 years of
age, the future prospects to be awarded is at 40%. The
Tribunal erred in awarding 50% of future prospects. 40%
future prospects comes to Rs.2,600/- p.m (Rs.6,500 X 40% =
Rs.2,600/-). Therefore, his total income per month comes to
Rs.9,100/-.
AIR 2017 SC 5157
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24. As the deceased was bachelor, as per the judgment
of the Hon'ble Supreme Court in Sarla Varma's case referred
to supra, 50% of his income has to be deducted for personal
and living expenses. Therefore, his contribution to the family
comes to Rs.4,550/- p.m. (Rs. 9100X50%). Therefore, the
compensation payable on the head of loss of dependency
comes to Rs.9,82,800/- (Rs.4,550/- X 12 X 18).
25. On the head of food, nourishment, attendant and
conveyance charges the Tribunal has awarded in all
Rs.2,00,000/-. The victim survived for about four years. The
medical records show that he was fully bed ridden and
dependent on others. The oral evidence and Exs.P6 to P8, P21,
P22 and other records show that victim had to be taken to the
hospital frequently and he was on physiotherapy etc. In the
similar circumstance of paraplegia, the Hon'ble Supreme Court
in the case of MASTER AYUSH V/s. BRANCH MANAGER,
RELIANCE GENERAL INSURANCE COMPANY LIMITED AND
ANOTHER5 awarded attendant charges at Rs.3,700/- p.m.
Therefore, the compensation payable on the head of attendant
charges come to Rs.1,77,600/- (Rs.3,700/- X 12 X 4).
(2022)7 SCC 738
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26. Considering the fact that the victim was bed ridden
for four years, the Tribunal should have awarded at least
Rs.1,00,000/- on the head of Food and Nourishment
separately.
27. As per Ex.P22 - 7 ambulance bills, the expenses of
shifting to the hospital was Rs.17,485/-. Apart from Ex.P22,
victim had to be taken to the hospital therefore, awarding
Rs.50,000/- on the head of conveyance charges meets ends of
justice.
28. The medical expenses of Rs.10,23,029/- was
awarded based on the records therefore, that does not warrant
any interference.
29. Claimants 1a and 1b being the parents, as per the
judgment of Hon'ble Supreme Court in Pranay Sethi's case
referred to supra, are entitled to compensation of Rs.40,000/-
each with escalation at 10% on the head of loss of filial
consortium. On the conventional heads of loss of estate and
funeral expenses, as per the judgment of Hon'ble Supreme
Court in Pranay Sethi's case referred to supra, claimants are
entitled to Rs.15,000/- on each head with escalation of 10%,
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which comes to Rs.33,000/-. Therefore, the just compensation
payable is as follows:
Sl. Particulars Compensation
No. awarded in Rs.
1. Loss of dependency Rs. 9,82,800/-
2. Medical expenses Rs.10,23,029/-
3. Attendant Charges Rs. 1,77,600/-
4. Food and Nourishment Rs. 1,00,000/-
5. Conveyance charges Rs. 50,000/-
6. Consortium Rs. 88,000/-
7. Loss of estate and Rs. 33,000/-
funeral expenses
Total Rs.24,54,429/-
Rounded off to Rs.24,54,500/-
30. The Tribunal without assigning any reasons has
awarded interest at 8% per annum. As per Section 150 of M.V.
Act, the interest payable on the award amount is as per the
laws applicable relating to interest. The applicable law is
Interest Act, 1978 and Section 34 of CPC. Under the Interest
Act, interest is payable at contractual rate. In this case, there
is no such contract. Therefore, Section 34 of CPC applies.
According to the said provision, interest payable is 6% per
annum. Therefore, impugned award requires to be modified
accordingly. Hence, the following;
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ORDER
i) The appeal and cross-objection are partly
allowed.
ii) The impugned award is modified as follows:
a) The claimants are entitled to total
compensation of Rs.24,54,500/- with interest
thereon at 6% per annum, from the date of
petition till date of realization.
b) Respondent No.1-Insurer shall deposit the
said amount before Tribunal on adjusting the
amount already deposited, if any, within four
weeks from the date of receipt of copy of this
order.
c) The order of Tribunal with regard to
apportionment is maintained.
d) Registry to return TCRs and transmit the
amount in deposit, if any, to Tribunal.
Sd/-
JUDGE
Sd/-
JUDGE
VBS,MV
