Karnataka High Court
Sri Madappa vs Sri M S Santosh Kumar on 22 February, 2024
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MFA No. 4228 of 2015
C/W MFA.CROB No. 67 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 4228 OF 2015
(MV-D)
C/W
MFA CROSS OBJECTION NO. 67 OF 2016 (MV-D)
IN MFA NO. 4228 / 2015
BETWEEN:
THE ORIENTAL INSURANCE CO., LTD.,
NEW KANTHARAJ URS ROAD, MYSORE,
THROUGH ITS REGIONAL OFFICE,
LEO SHOPPING COMPLEX,
#44/45, RESIDENCY ROAD,
BANGALORE-560 025.
REP. BY ITS DEPUTY MANAGER
SMT.B.S. PADMAJA.
...APPELLANT
Digitally signed (BY SRI. SEETHA RAMA RAO B C.,ADVOCATE)
by BHARATHI
S
Location: HIGH AND:
COURT OF
KARNATAKA
1. SRI. MADAPPA
AGED ABOUT 52 YEARS,
S/O LATE MADEGOWDA,
2. SRI. M. BALACHANDRA
AGED ABOUT 21 YEARS,
S/O SRI. MADAPPA
BOTH ARE RESIDING AT NO.1312/A,
7TH CROSS, SAHUKAR CHANNAIAH ROAD,
JANATHA NAGAR, T.K. LAYOUT, MYSURU.
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MFA No. 4228 of 2015
C/W MFA.CROB No. 67 of 2016
3. SRI. M.S. SANTOSH KUMAR
AGED ABOUT 26 YEARS,
S/O MADAPPA,
RESIDING AT NO.1312/A,
7TH CROSS, SAHUKAR CHANNAIAH ROAD,
JANATHA NAGAR, T.K. LAYOUT,
MYSURU.
4. SRI. ERANNA
AGED ABOUT 42 YEARS,
S/O SRI DORESWAMY,
NO.199, RAMABAI NAGAR,
B-BLOCK, KUPPALURU,
MYSURU-570008.
(INSURED OF MOTOR CYCLE NO.KA.09/ET-880)
...RESPONDENTS
(BY SMT. SUMA KEDILAYA, ADVOCATE FOR R1 AND R2;
R3 AND R4 SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 29.01.2015 PASSED IN MVC
NO.326/2013 ON THE FILE OF THE PRINCIPAL JUDGE, COURT
OF SMALL CAUSES, MACT, MYSURU, IN CONCURRENT CHARGE
OF ADDITIONAL COURT OF SMALL CAUSES, MYSORE.
AWARDING COMPENSATION OF RS.8,20,000/- WITH INTEREST
@ 9% P.A FROM THE DATE OF PETITION TILL ITS
REALIZATION.
IN MFA CROB 67/2016
BETWEEN:
1. SRI MADAPPA
S/O LATE MADEGOWDA,
AGED ABOUT 53 YEARS
2. SRI M BALACHANDRA
W/O MADAPPANA
AGED ABOUT 22 YEARS
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MFA No. 4228 of 2015
C/W MFA.CROB No. 67 of 2016
BOTH ARE R/AT D.NO.1312/A,
7TH CROSS,SAHUKAR CHANNAIAH ROAD,
JANATHANAGAR, T K LAYOUT, MYSURU CITY
...CROSS OBJECTORS
(BY SMT. SUMA KEDILAYA.,ADVOCATE FOR;
SRI. PADMANABHA V. KEDILAYA., ADVOCATE)
AND:
1. SRI M S SANTOSH KUMAR
S/O MADAPPA,
AGED ABOUT 27 YEARS
R/AT D.NO.1312/A,
7TH CROSS,SAHUKAR CHANNAIAH ROAD,
JANATHANAGAR,T.K.LAYOUT, MYSURU CITY
2. SRI ERANNA
S/O DORESWAMY,
AGED ABOUT 43 YEARS
R/AT NO.199,RAMABAINAGAR
B BLOCK,KUPPALURU, MYSURU-570 008
3. THE ORIENTAL INSURANCE COMPANY LTD
DIVISIONAL OFFICE-I,NEW KANTHARAJ ROAD,
SARASWATHIPURAM, MYSURU-9
...RESPONDENTS
(BY R1 SERVED;
R2- V/O 13.02.2024 NOTICE TO R2 IS D/W;
SRI. B C SEETHARAMA RAO.,ADVOCATE FOR R3)
THIS MFA CROB IN MFA 4228/15 FILED U/O.41 RULE 22
R/W SEC.173 OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED29.01.2015 ON THE FILE OF THE PRINCIPAL
JUDGE, COURT OF SMALL CAUSES, MYSURU IN C/C OF
ADDITIONAL COURT OF SMALL CAUSES, MYSURU, ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL AND MFA CROB, COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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MFA No. 4228 of 2015
C/W MFA.CROB No. 67 of 2016
JUDGMENT
MFA.No.4228/2015 is filed by the Insurer and
MFA.CROB.No.67/2016 is filed by the claimant. In both the
appeal as well as the cross objection the judgment and award
dated 29.01.2015 passed in MVC.No.326/2013 by the Addl.
Judge of Small Causes Court and Senior Civil Judge, Mysuru1 is
under challenge. Hence, they are taken up together for
consideration.
2. For the sake of convenience, the parties herein are
referred as per their rank before the Tribunal.
3. It is the case of the claimants that on 17.04.2012 one
Meenakshi2 was proceeding on a motorcycle as pillion rider
along with her son when the motorcycle being ridden in a rash
and negligent manner, as a result of which the accident
occurred, wherein the said Meenakshi sustained grievous
injures and succumbed to the same. Claiming compensation
for death of deceased, her husband and son filed a claim
petition arraying the rider, owner and insurer of the motorcycle
as respondent No.1 to 3 respectively. The claimant No.2 was
Hereinafter referred to as 'Tribunal'
Hereinafter referred to as deceased
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examined as PW-1. Ex.P-1 to P-11 are marked in evidence.
The wound certificate and policy of insurance have been
marked as Ex.R-1 and Ex.R-2. No oral evidence is adduced on
behalf of the respondents. The Tribunal by the judgment and
award dated 29.01.2015 has awarded compensation of an
amount of `8,20,200/- together interest at 9% per annum and
directed the respondent No.3-insurer to deposit the
compensation awarded. Being aggrieved the present appeal
and cross objections are filed.
4. Learned counsel for the insurer assailing the judgment
of the Tribunal contends that the accident occurred due to the
saree of the deceased getting entangled with the wheel of the
motorcycle and hence, the accident not having occurred due to
any tortious act of the rider of the motorcycle, the Tribunal
ought not to have entertained the claim petition under section
166 of the Motor Vehicles Act3. Notwithstanding the same, it is
further contented that the having regard to place in which the
accident occurred and the admitted position that the saree of
the deceased got entangled with the wheel of the motorcycle,
the deceased herself was entirely negligent in causing the
Hereinafter referred to as 'the Act'
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accident in question. It is further submitted that the
compensation awarded by the Tribunal is exorbitant and hence,
he seeks for allowing of the above appeal and granting of the
relief sought for.
5. Per contra, the learned counsel for the claimants in
support of the cross objections submits that the complainant
having specifically stated that since the motorcycle was being
ridden in rash and negligent manner, the saree of the deceased
was entangled with the wheel of the motorcycle and hence the
accident having occurred solely due to rash and negligent riding
of the rider of the motor cycle, the claim petition filed by the
claimant is maintainable and the finding of the Tribunal
regarding issue no.1 is just and proper. Further it is contended
that the quantum of compensation awarded is on the lower side
and seeks for enhancement of same.
6. The submissions of both the learned counsels have
been considered and the material on record including the
records of the Tribunal have been perused. The questions that
arises for consideration are:
i) Whether the finding of the Tribunal on issue no.1
as to whether the accident occurred due to rash
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and negligent riding of the driver of the insured
vehicle is just and proper?
ii) Whether the compensation awarded by the
tribunal is just and proper?
Regarding Question No.(i):
7. In the claim petition, the claimants have averred that
the deceased was traveling in the motorcycle and the accident
occurred due to the rash and negligent driving of the rider of
the motorcycle. However, it is forthcoming from the complaint
at Ex.P-1 and the other police records that the death of the
deceased occurred due to saree of the deceased getting
entangled in the wheel of motorcycle.
8. It is the vehement contention of the learned counsel
for the insurer that the claim petition itself is not maintainable.
Alternatively, the deceased herself was responsible in causing
the accident in question. However, it is required to be noticed
that in the claim petition the averment is that the accident
occurred due to rash and negligent riding of the rider of the
motor cycle. In the statement of objections, the insurer has
averred that there was negligence on the part of the deceased
in sitting properly as pillion rider and in shielding her saree
properly due to which the accident occurred. In the complaint
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lodged by the complainant who is the eyewitness to the
accident, it is stated that the rider of the motorcycle was riding
the same in a rash and negligent manner, due to which the
saree of the deceased got entangled with the wheel of the
motorcycle causing the accident in question. The charge sheet
has been filed against the driver of the motorcycle. No
evidence of any eyewitness is adduced, either the insurer or the
claimant.
9. Having regard to the same, the only material on record
on the basis of which a finding is required to recorded is the
police records which indicate that the motorcycle was being
driven in rash and negligent manner, as result of which the
saree of the deceased was entangled with the wheel of the
motorcycle. Further the charge sheet has also being filed
against the driver of the motorcycle. In view of the same, the
finding recorded by the tribunal on Issue No.1 framed for its
consideration is just and proper and no interference in the
same is warranted. Hence, question No.(i) framed for
consideration herein is answered as affirmative.
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Regarding Question No.(ii)
10. It is averred that the deceased was working as an
Aaya at Holi Trinity Centre, Mysore. However no documents
have been produced to prove the said avocation or the income
of the deceased. In view of the same, the income of the
deceased is required to be re-assessed as notional income as
per the chart used for settlement of cases in Lok-Adalath
conducted by the Legal Services Authority and having regarding
to the date of the accident, the income of the deceased is re-
assessed at `7,000/-.
11. It is vehement contention of the learned counsel for
the insurer that the first claimant-husband was the government
servant and the second claimant-son is also employee at ITI
TVS company. Hence, it is clear that the claimants are not
dependant on the income of the deceased. However, merely
because the claimants are not dependent on the income of the
deceased, it cannot be held that the claimants are not entitled
for the compensation. In such cases, having regard to the
Division Bench Judgment of this Court in the case of A.
Manavalagan -Vs- Krishnamurthy and others4 as also the
ILR 2004 KAR 3268
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Division Bench Judgment in the case of Ashwathalppa &
other -Vs- Ravichandra T & other5 the loss of estate is
required to be calculated at 25% of the income and by adopting
the multiplier method.
12. The age of the deceased is 37 years and the Aadhar
Card of deceased-Meenakshi is produced at Ex.P-10 which
discloses the year of birth of deceased as 1975. Hence the
appropriate multiplier is re-assessed as 15 is adopted. Having
regard to the judgment in the case of National Insurance Co.
Ltd. -Vs- Pranay Sethi6 40% is required to be added towards
future prospects. Hence the income of the deceased is re-
assessed as `7,000/- - 1/3rd = `4,667/-. Then 40% is to be
added towards future prospects. `4,667/- + 40% = `6534/- .
`6,534/- x 25%= `1,633/-.
13. In view of the same, compensation towards loss of
estate is re-assessed at (`1,633/-x12x15) is `2,93,940/-.
14. The claimants are entitled for loss of consortium at
`44,000/- each, having regard to Hon'ble Supreme Court
Judgment in the case of Magma General Insurance Co.
Judgment dated 29.03.2023 passed in MFA.No.4096/2021 (MV-D)
(2017) 16 SCC 680
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Limited -Vs- Nanu Ram & Others7 and hence the sum of
(`44,000 x 2) `88,000/- is awarded towards the same.
15. A sum of `16,500/- is awarded towards funeral
expenses. Hence, the total compensation re-assessed at
`3,98,440/- rounded off to `3,99,000/- as against `8,20,200/-
awarded by the Tribunal.
16. Accordingly, the total compensation under various
heads is re-assessed as follows:
Sl.No. Heads Amount awarded Amount
by the Tribunal awarded by this
(`
`) Court (`
`)
1. Loss of Dependency 6,55,200-00 2,93,940-00
2. Loss of Consortium 1,00,000-00 88,000-00
3. Towards Funerals 25,000-00 16,500-00
affections
estate
transportation
Total 8,20,200-00 3,98,440-00
2018 ACJ 2782
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17. Hence, the claimants are entitled for enhanced
compensation of `3,98,440/- rounded off to `3,99,000/-
together with interest at 6% p.a.
18. In view of the aforementioned, the following:
ORDER
i) The appeal in MFA.No.4228/2015 is allowed in part
and MFA.CROB.No.67/2016 is dismissed.
ii) The judgment and award dated 29.01.2015
passed in MVC No.326/2013 on the file of Addl.
Judge, Small Causes Court and Senior Civil Judge,
Mysuru is modified to the extent stated herein. In
all other respects, the judgment and award of the
Tribunal remains unaltered;
iii) The claimants are entitled to a total compensation
of `.3,99,000/- with interest at 6% per annum from
the date of petition till its realization.
iv) The amount in deposit in MFA.No.4228/2015 be
transmitted to the Tribunal to be disbursed in terms
of award of the Tribunal.
v) In the event of any excess amount that is
deposited, the same may be refunded to the
insurer-appellant in MFA.No.4228/2015.
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vi) In the event of any deficit in the compensation, the
balance shall be paid by the Appellant in
MFA.No.4228/2015-Insurer, within eight weeks
from the date of receipt of a copy of this judgment;
vii) The Registry to draw the modified award
accordingly.
viii) No costs.
Sd/-
JUDGE
TS
