Karnataka High Court
Sri. Muralidhar vs National Insurance Co. Ltd on 5 January, 2024
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MFA No. 4783 of 2019
C/W MFA No. 370 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 4783 OF 2019 C/W
MFA NO. 370 OF 2020 (MV-I)
IN MFA NO.4783/2019
BETWEEN:
THE CLAIM MANAGER
TATA AIG GENERAL INSURANCE
COMPANY LIMITED, SALEM
TAMIL NADU - 536 004 ... APPELLANT
(BY SRI.O MAHESH, ADV.)
AND:
1. MURALIDHAR
AGED 35 YEARS, S/O JAIMUNI RAO
R/AT NO.1191, 5TH CROSS, 'V' MAIN
L.N.COLONY, YESHWANTHAPURA
BANGALORE - 560 022
AND ALSO AT PRESENTLY
NO.46 D, RAILWAY QUARTERS
Digitally signed by AND KOKTOSUD SHED HOUSES
MALA K N YESHWANTHAPUR, BENGALURU - 560 022
Location: HIGH COURT
2. NATIONAL INSURANCE CO. LTD.
OF KARNATAKA
NO.281/8, RUPENA AGRAHARA
HOSURU MAIN ROAD
BANGALURU - 560 064
3. TYAGARAJAN, MAJOR
NO.63/B MANGALA LAYOUT
URANDY, PUTTUR
DAKSHINA KANNADA
DISTRICT - 574 201 ... RESPONDENTS
(BY SRI.H.V.SUBRAMANYA, ADV. FOR
SRI. S. RAJU, ADV. FOR R1;
-2-
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MFA No. 4783 of 2019
C/W MFA No. 370 of 2020
SMT. SUJATHA PANDIT, ADV. FOR
SRI.K. SRIDHARA, ADV. FOR R2;
VIDE ORDER DATED 13.12.2022
NOTICE TO R3 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 26.02.2019
PASSED IN MVC NO.5511/2016, ON THE FILE OF THE III
ADDITIONAL JUDGE AND MEMBER, MACT, COURT OF SMALL
CAUSES, BENGALURU (SCCH-18), AWARDING
COMPENSATION OF RS.13,40,000/- (FUTURE MEDICAL
EXPENSES DOES NOT CARRY ANY INTEREST) WITH INTEREST
@ 8% P.A., FROM THE DATE OF PETITION TILL THE DATE OF
DEPOSIT.
IN MFA NO.370/2020
BETWEEN:
SRI. MURALIDHAR
S/O JAIMUNI RAO
AGED ABOUT 35 YEARS
R/AT NO.1191, 5TH CROSS,
'V' MAIN, L.N.COLONY
YESHWANTHAPURA
BANGALORE - 560 022
AND ALSO AT PRESENTLY
NO.46-D, RAILWAY QUARTERS
AND KOKTOSUD SHED HOUSES
YESHWANTHAPUR, BENGALURU - 560 022 ... APPELLANT
(BY SRI.H.V.SUBRAMANYA, ADV. FOR
SRI. RAJU S., ADV.)
AND:
1. NATIONAL INSURANCE CO. LTD.
NO.281/8, RUPENA AGRAHARA
HOSURU MAIN ROAD
BANGALURU - 560 068
REP. BY ITS BRANCH MANAGER
2. SRI. TYAGARAJAN, MAJOR
NO.63/B MANGALA LAYOUT
URANDY, PUTTUR-574 201
-3-
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MFA No. 4783 of 2019
C/W MFA No. 370 of 2020
DAKSHINA KANNADA
DISTRICT - 574 201
3. THE TATA AIG INSURANCE CO. LTD.
SALEM, TAMIL NADU - 536 004
REP. BY ITS BRANCH MANAGER
... RESPONDENTS
(BY SMT.SUJATHA PANDIT, ADV. FOR
SRI.K. SRIDHARA, ADV. FOR R1;
SRI. O. MAHESH, ADV. FOR R3
VIDE ORDER DATED 20.01.2023
NOTICE TO R2 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 26.02.2019
PASSED IN MVC NO.5511/2016, ON THE FILE OF THE III
ADDITIONAL JUDGE AND MEMBER, MACT, COURT OF SMALL
CAUSES, BENGALURU (SCCH-18), PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 13.10.2023 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
In these appeals, the Insurance Company of
the lorry as well as the petitioner have challenged
the judgment and award dated 26.02.2019 in
M.V.C.No.5511/2016 passed by the III Addl. Court of
Small Causes and M.A.C.T., Bengaluru (SCCH-18)
('the Tribunal' for short).
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2. For the sake of convenience, the parties
shall be referred to as per their status before the
Tribunal.
3. Brief facts of the case are, on 07.09.2015 at
about 06:30 am, the petitioner was the pillion rider
in a motor cycle bearing Reg.No.KA-04/HF-7196
rided by one Madhu, met with an accident at
Gundamgere Cross on Doddaballapura-Gowribidanur
Road, while riding from Gowribidanur side towards
Doddaballapur, hit by a lorry bearing Reg.No.KA-
21/A-5310 coming from the opposite direction,
killing the rider at the spot and injuring the
petitioner. The petitioner after taking treatment at
Navachethana Hospital, Yelahanka, has approached
the Tribunal for grant of compensation of
Rs.18,30,000/- against the Insurance Company the
motor cycle, owner and insurer of the lorry. Claim
was opposed by both the Insurance Companies.
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3.1. The Insurance Company of the motor
cycle/respondent No.1 has contended that the
petitioner himself is the owner of the motor cycle,
though policy was in force, he cannot maintain the
claim against the Insurance Company. The policy of
Insurance only covers the liability of the owner to
indemnify him.
3.2. The Insurance Company of the lorry/
respondent No.3 has contended that though there is
a valid insurance, it is subjected to terms and
conditions of the policy. Its contention is that there
is a violation of mandatory provisions, the accident
took place due to negligent riding of the motor cycle
by its rider, the rider of the motor cycle was
prosecuted by the Police after investigation. There is
no negligence on part of the lorry and therefore,
owner of the lorry/respondent No.2 has no liability to
pay the compensation so it has no liability to
indemnify the owner.
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3.3. The Tribunal after taking the evidence, by
impugned judgment awarded compensation of
Rs.13,40,000/- with 8% interest p.a., directing the
owner and insurer of the lorry to pay the
compensation by dismissing the claim against
Insurance Company of the motor cycle. Aggrieved
by the same, Insurance Company of the lorry has
filed the appeal in M.F.A.No.4783/2019 and seeking
enhancement, the petitioner has filed the appeal in
M.F.A.No.370/2020.
4. Heard the arguments of Sri. O. Mahesh,
learned counsel for the Insurance Company of the
lorry, Sri. Raju. S, learned counsel for the petitioner
and Smt. Sujatha Pandit, learned counsel on behalf
of Sri. K. Sridhara, learned counsel for the Insurance
Company of the motor cycle.
5. It is the contention of Sri. O. Mahesh that,
there is a specific issue framed by the Tribunal
regarding the rash and negligent act of the driver of
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the lorry as well as the rider of the motor cycle. The
petitioner himself has produced the evidence to the
effect that on the complaint filed by the driver of the
lorry, case was registered against the rider in Crime
No.326/2015. After the investigation, abated charge
sheet was filed against the rider in C.C.No.967/2016.
Ex.P2/spot mahazar and Ex.P3/spot sketch did point
out that the width of the road at the spot was 24 ft.,
the accident took place on the complete right side of
the road towards motor cycle. This clearly shows
that the motor cycle went off the road to its right
side while hitting against the front portion of the
lorry. This clearly shows that there was no
negligence on part of the driver of the lorry,
complete negligence is on part of the rider of the
motor cycle.
5.1. PW-3 Sri. S. Shivakumar is the
Investigating Officer, who has filed charge sheet; his
evidence points out that on the basis of the
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complaint filed by Sri. Mutthuswamy, the driver of
the lorry, case has been registered and charge sheet
was filed against the rider of the motor cycle. When
such is so, Tribunal has committed error in holding
that the accident took place on the fault of the driver
of the lorry. If the rider of the motor cycle moved on
his way to his left side, there would not have been
any accident at all. The accident is tailored by the
rider, on his fault, it is not proper to penalize the
lorry. He has given more emphasis on the manner
in which the accident took place as noted in
Ex.P3/spot sketch, the damage to the front portion
of motor cycle as well as front right bumper of the
lorry as noted in Ex.P4/M.V.A. report corroborates
negligence on part of the rider of the motor cycle.
There is no justification in the finding recorded by
the Tribunal to attribute negligence against the
driver of the lorry, he sought for interference and to
exonerate the lorry from its liability to pay the
compensation.
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6. Learned counsel for the Insurance Company
of the motor cycle has contended that the petitioner
himself is the owner of the motor cycle, he will not
be a third-party to make a claim against his own
motor cycle; the Tribunal has correctly dismissed the
claim and she supported the impugned judgment.
7. Per contra, learned counsel for the petitioner
has contended that the petitioner in his affidavit
evidence, has correctly narrated the accident, the
negligence was pleaded against the driver of the
lorry; the Investigating Officer is cross-examined on
behalf of the petitioner denying that he has not
properly investigated the matter; it is the driver of
the lorry who has shown the spot for drawing
mahazar as per Ex.P2, wherein he has stated that
the motor cycle came and hit on hind side of the
lorry which is incorrect; hence, there is no proper
investigation.
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7.1. According to him, the accident took place
in the early morning, there is no eye witness
examined by the Investigating Officer. The
statement of the driver of the lorry is contrary to the
facts on the spot. For the reason of rider of the
motor cycle died at the spot, abated charge sheet
was filed, the manner of investigation conducted by
PW-2 is seriously challenged. The driver of the lorry
is interested person who has created Ex.P1/spot
sketch and it cannot be relied. Spot mahazar is
contrary to the averments made in the complaint.
The petitioner was under hospitalization for 42 days,
he was not involved in the investigation process, his
statement was recorded 3 months after the accident.
PW-3 admitted the delay in recording the statement
of PW-1 and no explanation was given as to why
such a delay had taken place. Hence, complete
negligence is on part of the driver of the lorry and
the Tribunal has rightly recorded its finding that the
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accident was occurred due to negligence on part of
the driver of the lorry.
7.2. It is further contended that the Tribunal
has not properly evaluated the material on record.
Though the petitioner has produced medical bills
worth Rs.4.84 Lakhs, only Rs.20,000/- was awarded
by the Tribunal. Due to the head injury, the
petitioner was laid-up for more than 1 year, but only
Rs.50,000/- has been awarded towards loss of
income during laid-up period; loss of future earnings
has to be awarded reckoning to the future income of
the petitioner, but no future prospects was
considered and he sought for enhancement of
compensation.
8. I have given my anxious consideration to the
arguments addressed on both sides and also perused
the materials on record.
9. There is no dispute as to the accident that
took place on 07.09.2015 at about 07:00 am near
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Gundamgere cross on Doddaballapur-Gowribidanur
road involving the motor cycle and the lorry in
question. The petitioner is the owner of the motor
cycle and he cannot make a claim against himself
from his Insurance Company. The Tribunal has
rightly dismissed the claim against the insurer of the
motor cycle.
10. Now, according to the Insurance Company
of the lorry, complete negligence is on part of the
rider of the motor cycle, the investigation was
culminated in the charge sheet against the rider of
the motor cycle, the Investigating Officer has been
examined before the Tribunal, explaining negligence
on part of the rider. Hence, when the rider was at
fault, liability is on the owner of the motor cycle to
pay the compensation and if the motor cycle is
covered with insurance, the insurer has to indemnify
the insured. If that argument is to be accepted, the
petitioner being the owner of the motor cycle cannot
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claim compensation against himself and the entire
claim has to go.
10.1. On perusal of the impugned judgment,
the Tribunal attributed complete negligence on part
of the driver of the lorry. This part of finding is now
questioned by the Insurance Company of the lorry
and quantum of compensation assessed by the
Tribunal is questioned by the petitioner.
11. As regarding the first point is concerned,
the petitioner himself entered the witness box as
PW-1 to explain how the accident had taken place.
According to him, the motor cycle was rided by one
Madhu from Hosur Village of Gowribidanur Taluk and
they were moving towards Bengaluru. At
Gundamgere cross, the lorry came from opposite
direction and dashed against the motor cycle, killing
the rider at the spot and injuring him. He has relied
upon the investigating papers and also the evidence
of Investigator as per PW-3.
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11.1. PW-3 S. Shivakumar is the Investigation
Officer. His evidence points out that on the basis of
the complaint filed by the driver of the lorry, F.I.R.
was registered, during investigation, found complete
negligence on part of the rider of the motor cycle,
accordingly he has filed an abated charge sheet.
PW-3 has been cross-examined on behalf of the
petitioner attributing that he has not properly
investigated the case, nor recorded the statement of
any eye witnesses, he has completely relied upon
the statement of driver of the lorry. As seen from
the mahazar at Ex.P2, the driver has stated before
the Investigating Officer that the motor cycle came
and hit on the hind portion of the lorry. If this is to
be appreciated, there cannot be any accident as
narrated in the prosecution papers. The accident was
head-on collision between the lorry and the motor
cycle.
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11.2 Interesting to note that in Ex.P1, F.I.R.
copy of the complaint is annexed. The allegations
made makes it very clear that the motor cycle was
coming towards Bengaluru at the place of accident, it
was overtaking another vehicle, came and dashed
against the lorry. It is pertinent to note that the
driver of the lorry, who is an eye witness did not
mention which was the vehicle that the motorist has
overtaken. Simply he says that motorist has
overtaken some unknown vehicle while hitting
against the lorry. This clearly demonstrates that the
driver of the lorry was aware of the incoming traffic
from the opposite direction. If the motor cycle were
to overtake another vehicle as pointed out in Ex.P3,
it was a complete curve at that juncture, the lorry as
well as the motor cycle have to be very cautious and
slow. If the driver of the lorry had seen the motor
cycle overtaking another vehicle and coming on the
right side, he ought to have stopped the vehicle, nor
could have been taken the lorry to the left side of
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the road since it is a national highway. But the
driver did not do so which facilitated the rider to hit
against the right portion of the lorry. As seen from
Ex.P3, the lorry was on its left side and the motor
cycle came right side to the mid line of the road
while hitting against the lorry. Hence, the
contribution of driver of the lorry to the accident
cannot be ruled out as under such circumstances, it
is the duty of the driver of the lorry to be very
cautious and deligent to avoid the accident. Only on
the fact that the rider of the motor cycle died at the
spot, the petitioner has sustained head injury and
was under hospitalization, there were no other
person who could be able to explain the accident to
the police. As seen from the investigation papers,
PW-3 has completely relied upon the statement of
driver of the lorry alone, prejudged the accident and
completed the formality of investigation aiming
towards abatement chargesheet against the rider.
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12. I have carefully perused the finding
recorded in the impugned judgment and also
materials on record. There is a major contribution
by the rider of the motor cycle in causing the
accident. Under these circumstances, the Tribunal
ought to have attributed contributory negligence
against the rider of the motor cycle. Contrary to the
material on record, the Tribunal attributed complete
negligence against the driver of the lorry. Hence,
the finding recorded by the Tribunal is erroneous and
contrary to the material evidence relied upon by the
petitioner. In the facts and circumstances, the
material on record itself suggests that the rider of
the motor cycle has contributed 80% to the accident
and contribution of the driver of the lorry could only
be quantified at 20%.
13. As regarding second point i.e., quantum of
compensation is concerned, the Tribunal has
awarded the compensation as follows:
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Sl. No. Particulars Rs.
1 Towards loss of future 9,60,000
earnings
2 Towards pain and sufferings 1,00,000
3 Towards loss of amenities 50,000
4 Towards attendant, 60,000
nourishment and
conveyance charges
5 Towards medical expenses 20,000
6 Towards loss of income 50,000
during laid-up period and
rest period
7 Towards future medical 1,00,000
expenses
Total 13,40,000
13.1. PW-2 Dr. M. Krishnaprasad, Neurosurgeon
is the treated Doctor at Navachethana Hospital,
Yelahanka. The petitioner was also evaluated by the
Board of Doctors consists of Dr. J. Murlidhar,
PW-2 and one Dr. R. Premalatha. As seen from the
material on record, the petitioner has suffered
multiple fractures in the face and he has suffered
loss of vision and Ex.P11(a) is the
neuropsychological assessment report of the
petitioner indicating 30-40% of mental disability.
According to PW-2, the petitioner has suffered mild
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left motor incardination of 10%, visual disability due
to brain injury at 20%, neurocognitive disability at
40%, in all 70% to the whole body. 70% whole
body disability assessed by PW-2 is on the higher
side. If Ex.P11(a) is to be accepted, the mental
disability comes has to be assessed at 35% and that
of vision disability and mild left motor incarnation
together comes to 30%, then the total disability to
the whole body would be 65%, accordingly it has to
be taken; but, the Tribunal has taken it at 50%
which is on the lower side.
14. The petitioner claims that he is a driver by
profession, earning Rs.20,000/- per month. In order
to prove his income, except PAN card at Ex.P15, he
has not placed any evidence in proof of his income.
The petitioner holds a driving licence which is only
for driving motor cycle and therefore, the Tribunal
has rightly taken the notional income of the
petitioner at Rs.10,000/-. As indicated by the
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medical records and also the PAN card and driving
licence, the age of the petitioner as on the date of
accident is 35 years, hence the applicable multiplier
is '16'. As loss of future income is for the future
date, 40% of future prospects has to be taken. If
that is so, loss of future earnings will be Rs.10,000/-
+ Rs.4,000/- (40%) = Rs.14,000/- x 12 x 16 x 65%
= Rs.17,47,200/- as against Rs.9,60,000/- assessed
by the Tribunal. The petitioner was laid-up for not
less than 6 months. Hence, Rs.60,000/- has to be
assessed towards loss of income during laid-up for 6
months (Rs.10,000/- x 6). Rest of the compensation
assessed by the Tribunal is proper and the same has
to be kept intact. If these enhancements are
appreciated, then the total compensation is as
follows:-
Sl. No. Particulars Rs.
1 Towards loss of future 17,47,200
earnings
2 Towards pain and sufferings 1,00,000
3 Towards loss of amenities 50,000
4 Towards attendant, 60,000
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nourishment and
conveyance charges
5 Towards medical expenses 20,000
6 Towards loss of income 60,000
during laid-up period and
rest period
7 Towards future medical 1,00,000
expenses
Total 21,37,200
15. Adverting to the percentage of contributory
negligence of the motor cycle is excluded at 80%,
utmost the petitioner is entitled to is 20% of the
total compensation i.e., Rs.21,37,200/- x 20% =
Rs.4,27,440/-. This is the just compensation that
the petitioner is entitled to in the facts and
circumstances of the case.
16. As regarding rate of interest at 8% is
concerned, no banks will offer 9% interest in the
year 2015 and even today. In this regard, the
Division Bench of this Court in Ms. Joyeeta Bose
and Ors. -Vs.- Venkateshan. V and Ors.1 with
M.F.A.No.5896/2018 c/w M.F.As.No.4444/2018 and 4659/2018
(MV), decided on 24.08.2020
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reference to Section 149(1) of Motor Vehicles Act,
1988, Rule 253 of Karnataka Motor Vehicles Rules,
1989 and Section 34 of Civil Procedure Code, at Para
52 has laid down principles regarding award of
interest, it reads thus:
"52.Thus, under Section 34 of CPC being
squarely applicable to the interest awarded by the
tribunal and Section 34 empowering the tribunal to
award pendente lite interest and discretion being
vested with the Court/tribunal to award interest
from the date of suit or petition is to the maximum
extent of 6% p.a. or in other words, not exceeding
6% p.a., the contention raised by the learned
Advocates appearing for the Insurance Company
deserves to be accepted and accordingly, it is
accepted. . . . . . . . . . . ."
In view of the settled principles, it is reasonable to
award interest at 6% p.a. on the total compensation.
Hence, both the appeals merit consideration, in the
result, the following:
ORDER
i) Both the appeals are allowed-in-part;
ii) Impugned judgment and award is
modified;
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iii) Petitioner is entitled to compensation
of Rs.4,27,440/- as against
Rs.13,40,000/-;
iv) Respondents No.2 and 3 (owner and
insurer of the lorry) are directed to
deposit Rs.4,27,440/- with 6%
interest p.a. from the date of petition
till its realization within 8 weeks from
the date of receipt of certified copy of
this judgment;
v) Amount in deposit, if any, shall be
transmitted to the Tribunal along
with records forthwith.
Sd/-
JUDGE
PA
CT:HS
