Karnataka High Court

The Branch Manager, United India ... vs Mr. Siraj on 8 February, 2024

                                             -1-
                                                        NC: 2024:KHC:5488
                                                      MFA No. 531 of 2014




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 8TH DAY OF FEBRUARY, 2024

                                         BEFORE
                        THE HON'BLE MR JUSTICE C.M. POONACHA
                  MISCELLANEOUS FIRST APPEAL NO. 531 OF 2014 (MV-D)
             BETWEEN:

             1.    THE BRANCH MANAGER,
                   UNITED INDIA INSURANCE COMPANY LIMITED,
                   BRANCH OFFICE AT:
                   POST BOX NO.705, 1ST CROSS,
                   RAM BHAVAN COMPLEX,
                   KODIALBAIL, MANGALORE TALUK.
                   BY REGIONAL MANAGER,
                   UNITED INDIA INSURANCE CO. LTD.,
                   5TH FLOOR, KRISHI BHAVAN,
                   NRUPATHUNGA ROAD, HUDSON CIRCLE,
                   BANGALORE - 560 027,
                   BY ITS MANAGER.
                                                              ...APPELLANT
             (BY SRI. O. MAHESH, ADVOCATE)


             AND:
Digitally
signed by
BHARATHI S   1.    MR. SIRAJ,
Location:          AGED 47 YEARS,
HIGH COURT         S/O LATE MOIDEEN KUNHI,
OF
KARNATAKA
             2.    SMT. KADIJA,
                   AGED 40 YEARS, W/O SIRAJ,
                   BOTH R/AT SIRAJ MANZIL,
                   NEAR THALAPADY WOOD INDUSTRIES,
                   K.C. ROAD, THALAPADY,
                   MANGALORE TALUK - 575 001.

             3.    MRS. NAMITHA KISHORE,
                   AGED ABOUT 33 YEARS,
                   W/O KISHORE, R/AT S. RAJA VILLA,
                   NEAR OVER BRIDGE, THOKKOTTU,
                                                 -2-
                                                                  NC: 2024:KHC:5488
                                                            MFA No. 531 of 2014




         MANGALORE TALUK - 575 001.
                                                                     ...RESPONDENTS
(BY SRI. PRANESH CHANDRA, ADVOCATE FOR R1 AND R2;
    VIDE ORDER DATED 01.07.2016 NOTICE TO R3
    DISPENSED WITH)
     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 17.10.2013        PASSED IN MVC
NO.616/2010 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL
JUDGE,   &   JMFC,   MACT,   MANGALORE,   D.K., AWARDING
COMPENSATION OF Rs.9,16,000/- WITH INTEREST @ 6% P.A. FROM
THE DATE OF PETITION TILL REALIZATION.

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

The above appeal is filed by the insurer challenging the

judgment and award dated 17.10.2013 passed in

MVC.No.616/2010 by the Motor Vehicle Accident Claims

Tribunal and III Additional Senior Civil Judge, Mangalore, D.K1.

2. For the sake of convenience, the parties herein are

referred as per their ranking before the Tribunal.

3. The relevant facts necessary for consideration of

the present appeal are that the claim petition was filed by the

parents of one Modeen Hasil2 claiming compensation for the

death of the deceased in a road traffic accident which occurred

Hereinafter referred to as the 'Tribunal'

Hereinafter referred as 'Deceased'

NC: 2024:KHC:5488

on 07.03.2010. It is the case of the claimants that when the

deceased was traveling in a motor cycle bearing No. KA-19-U-

5468 from Konaje towards Vittala, a bus came from the

opposite direction being driven in a rash and negligent manner

and hit the motor cycle in which the deceased was traveling,

causing the accident in question, wherein the deceased

sustained grievous injuries and succumbed to the same.

4. The owner and insurer of the bus was arrayed as

Respondent Nos.1 and 2 before the Tribunal. Respondent No.2-

insurer entered appearance before the Tribunal and contested

the proceedings. The claimant examined himself as PW.1.

Ex.P.1 to Ex.P.13 were marked in evidence. The driver of the

bus was examined as RW.1. Ex.R.1 was marked as evidence.

The Tribunal by its judgment and award dated 17.10.2013

awarded compensation `9,16,000/- together with interest at

6% per annum and directed Respondent No.2 insurer to pay

the compensation awarded. Being aggrieved the present appeal

is filed by the insurer.

5. Learned counsel for the insurer assailing the judgment

and award passed by the Tribunal submits that having regard

to the fact that the driver of the bus was examined as RW.1,

NC: 2024:KHC:5488

the Tribunal has not adequately the same and erred in

fastening the entire negligence for causing the accident on the

driver of the bus. He further submits that the quantum of

compensation awarded by the Tribunal is on the higher side.

Hence, he seeks for setting aside of the award of the Tribunal.

6. Per contra learned counsel for Respondent Nos.1 and

2 claimants justifies the finding of negligence recorded by the

Tribunal. Further with regard to the quantum of compensation

the learned counsel relies on the judgment of the Division

Bench of this Court in the case of SRI MALLIKARJUM V/S

SRI UMESH M3.

7. The submissions of both the learned counsel have

been considered and the material on record including the

records of the Tribunal have been perused. The questions that

arise for consideration of the present appeal are;

i) Whether the finding on negligence by the Tribunal is erroneous and liable to be interfered with?

ii) Whether the quantum of compensation awarded by the Tribunal is required to be enhanced?

Order dated 28.02.2020 in MFA.No.104894/2019 c/w MFA.No.103854/2018

NC: 2024:KHC:5488

Reg. Question No.(i):-

7. The deceased was riding as a pillion rider in the motor

cycle which was traveling from Konaje towards Vittala. The

insured bus was coming from Vittala towards Konaje. RW.1 in

his testimony has stated that the rider of the motor cycle was

over taking another vehicle due to which the accident was

occured. However, RW.1 admits that the sketch (Ex.P.9) is

correct. It is forthcoming from the sketch that the road was 18

feet wide and from the spot of the accident to the left side edge

of the bus there was 12 feet. Hence, it is clear that the bus was

on its right hand side of the road which is on wrong side.

9. Having regard to the manner of occurrence of the

accident as is forthcoming from the sketch (Ex.P.9) which is

also admitted by RW.1, the finding of the Tribunal regarding

negligence is just and proper. Hence, question No.(i) is

answered in the negative.

Reg. Question No.(ii):-

10. The claimant was aged 18 years and was a student

pursuing First year B.B.M at SDM college, Mangalore. In the

claim petition it has been averred that he is studying first year

B.B.M at SDM college and was good student with first class

NC: 2024:KHC:5488

marks in all the subjects and had several medals and certificate

and also participated in various sporting activities. In the

evidence the claimants have produced the transfer certificate

(Ex.P.11).

11. It is forthcoming from the Ex.P.11 that the deceased

was a first year B.B.M student studying at SDM college of

Business Management at Mangalore. The Tribunal has assessed

the income of the deceased as `7,000/- per month for the

purpose of assessment of loss of dependency and applied

appropriate multiplier of 18 by deducting 50% towards personal

expense.

12. Reliance is placed on the judgment of the Division

Bench of this Court in the case of SRI. MALLIKARJUN3 by

learned counsel for the claimant where in the Division Bench

was considering the case of death of a 22 years engineering

student and considering the contention taken with regard to the

assessment of income, after appreciating the relevant aspects

of the matter has held that for the accident for the years 2005

to 2011, considering the approximate standard of living,

earring capacity and earning potentiality of the deceased,

assessed the annual income at `25,000/-. In the said case the

NC: 2024:KHC:5488

Division Bench of has deducted 50% towards personal

expenses since the deceased was a bachelor.

13. However, in the present case monthly income is

assessed as `7,000/- pm. In the absence of an appeal filed by

the claimant seeking for enhancement, having regard to the

judgment of Hon'ble Supreme Court in the case of Ranjan

Prakash v. Divl. Manager4 it is not open to this Court to

award a higher compensation than what is already been

awarded by the Tribunal. In view of the same, the question

No.(ii) framed for consideration is answered in the negative.

14. In view of the aforementioned, the following order

is passed:

ORDER

i) The above appeal is dismissed;

ii) The judgment and award dated 25.8.2014 passed in MVC No. No.1167/2012 on the file of the VIII Additional Small Causes Judge, XXXII ACMM, Member, MACT, Bengaluru, is affirmed;

iii) Respondent No.3 - insurer is directed to deposit the entire enhanced compensation of `1,93,000/-

(2011) 14 SCC 639

NC: 2024:KHC:5488

together with accrued interest within six weeks form the date of receipt of a copy of this order;

vi) The amount deposited by the appellant before this Court be transmitted to the Tribunal for disbursement in terms of the award of the Tribunal;

v) The appellant insurer shall deposit the balance compensation together with accrued interest before the Tribunal within eight weeks from the date of receipt of a copy of this judgment;