Karnataka High Court
The Legal Manager The New India ... vs Smt Hemashree N on 5 March, 2024
-1-
NC: 2024:KHC:9350-DB
MFA No.2479/2023
C/w MFA No.1591/2023
MFA No.1620/2023
MFA No.2493/2023
MFA No.2505/2023
MFA No.2560/2023
MFA No.5712/2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
MISCELLANEOUS FIRST APPEAL NO.2479/2023 (MV-D)
C/w
MISCELLANEOUS FIRST APPEAL NO.1591/2023 (MV-D)
MISCELLANEOUS FIRST APPEAL NO.1620/2023 (MV-I)
MISCELLANEOUS FIRST APPEAL NO.2493/2023 (MV-I)
MISCELLANEOUS FIRST APPEAL NO.2505/2023 (MV-I)
MISCELLANEOUS FIRST APPEAL NO.2560/2023 (MV-I)
MISCELLANEOUS FIRST APPEAL NO.5712/2023 (MV-I)
M.F.A.No.2479/2023:
BETWEEN:
Digitally
signed by K S THE LEGAL MANAGER
RENUKAMBA THE NEW INDIA ASSURANCE CO. LTD.,
Location: MOTOR TP HUB, 9/2, 2ND FLOOR
High Court of MAHALAKSHMI CHAMBERS
Karnataka M G ROAD, BANGALORE - 560 001 ...APPELLANT
(BY SRI PRADEEP B, ADVOCATE)
AND:
1. SMT HEMASHREE N
W/O NIVEDHAN M YADAV
@ NIVEDHAN M
AGED ABOUT 27 YEARS
-2-
NC: 2024:KHC:9350-DB
MFA No.2479/2023
C/w MFA No.1591/2023
MFA No.1620/2023
MFA No.2493/2023
MFA No.2505/2023
MFA No.2560/2023
MFA No.5712/2023
2. GAHANA NIVEDHAN YADAV
D/O LATE NIVEDHAN M YADAV
@ NIVEDHAN M
AGED ABOUT 7 YEARS
SINCE R2 IS MINOR
REP. BY HER MOTHER AND
N/G I.E. R1
R1 & R2 ARE R/AT NO.34
GOVINDARAJANAGAR SLUM
BASAVESHWARNAGAR
BANGALORE
3. VENKATA LAKSHMAMMA
W/O MURALI
AGED ABOUT 68 YEARS
R/AT NO.122/1, 7TH CROSS
4TH MAIN, GOVINDARAJANAGAR
VIJAYANAGAR, BENGALURU
4. MANJUNATHA R V
MAJOR
S/O VEERABADRAIAH
R/AT NO.4, RAMAKALLUPALYA
VVG DODDI POST, MADBAL
MAGADI TALUK, RAMANAGARA DISTRICT
5. LEGAL MANAGER
NATIONAL INSURANCE CO. LTD.
NO.144, 145, TP HUB
SHUBARAM COMPLEX
M G ROAD, BENGALURU - 560 001
6. SHAIKH IRFAN RABANI
MAJOR
S/O SHAIKH RABBANI
R/AT DATTA NAGAR, KAILASH NAGAR
AURANGABAD
MAHARASHTRA- 431 001 ...RESPONDENTS
(BY SMT.SUNITHA B.H. FOR SRI RAJANNA, ADVOCATES FOR C/R1& R3;
R2 MINOR REPRESENTED BY R1;
SRI K.G.BHAT FOR SRI SHRIPAD V SHASTRI, ADVOCATES FOR R4;
SMT.MANJULA N TEJASWI, ADVOCATE FOR R5;
NOTICE TO R6 DISPENSED WITH V/C/O DTD: 06.06.2023)
-3-
NC: 2024:KHC:9350-DB
MFA No.2479/2023
C/w MFA No.1591/2023
MFA No.1620/2023
MFA No.2493/2023
MFA No.2505/2023
MFA No.2560/2023
MFA No.5712/2023
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION
173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 02.12.2022 PASSED BY II ADDITIONAL JUDGE AND
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, COURT OF SMALL
CAUSES, BENGALURU, SCCH-13 IN MVC NO.4034/2019 AWARDING
COMPENSATION OF RS.46,35,000/- WITH INTEREST AT 6% P.A.
M.F.A.No.1591/2023::
BETWEEN:
1. SMT HEMASHREE N
W/O NIVEDHAN M YADAV @ NIVEDHAN M
AGED ABOUT 27 YEARS
2. KUM GAHANA NIVEDHAN YADAV
D/O LATE NIVEDHAN M YADAV @ NIVEDHAN M
AGED ABOUT 7 YEARS
A2 IS MINOR
REP. BY HER MOTHER AND
NATURAL GUARDIAN SMT.HEMASHREE N
A1 & A2 ARE R/AT NO.34,
GOVINDARAJANAGARA SLUM
BASAVESHWARA NAGARA
BENGALURU - 560 079
3. SMT VENKATLAKSHMAMMA
W/O MUARLI
AGED ABOUT 68 YEARS
R/AT NO.122/1, 7TH CROSS
4TH MAIN, GOVINDARAJA NAGAR
VIJAYANAGAR, BENGALURU - 560 040 ...APPELLANTS
(BY SMT.SUNITHA B.H FOR SRI RAJANNA, ADVOCATES)
AND:
1 . SRI MANJUNATHA R V
S/O VEERABHADRAIAH
MAJOR
R/AT NO.4, RAMAKALLUPALYA
-4-
NC: 2024:KHC:9350-DB
MFA No.2479/2023
C/w MFA No.1591/2023
MFA No.1620/2023
MFA No.2493/2023
MFA No.2505/2023
MFA No.2560/2023
MFA No.5712/2023
VVG DODDI POST
MADBAL, MAGADI TALUK
RAMANAGARA DISTRICT - 562 159
2.
NATIONAL INSURANCE CO. LTD.
NO.144, 145, TP HUB
SHUBARAM COMPLEX
M G ROAD, BENGALURU - 560 001
REP. BY IT'S MANAGER
3 . SHAIKH IRFAN RABANI
S/O SHAIKH RABBANI
R/AT DATTA NAGAR, KAILASH NAGAR
AURANGABAD
MAHARASTRA - 431 001
4 . NEW INDIA ASSURANCE CO. LTD.,
OFFICE AT NO.9, 2ND FLOOR
MAHALAKSHMI CHAMBERS
M G ROAD, BENGALURU - 560 001
REP. BY IT'S MANAGER ...RESPONDENTS
(BY SRI K.G.BHAT FOR SRI SHRIPAD V SHASTRI, ADVOCATES FOR R1;
SMT.MANJULA N TEJASWI, ADVOCATE FOR R2;
SRI B PRADEEP, ADVOCATE FOR R4;
NOTICE TO R3 DISPENSED WITH V/C/O DTD:08.11.2023)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION
173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 02.12.2022 PASSED BY II ADDITIONAL JUDGE AND
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, COURT OF SMALL
CAUSES, BENGALURU, SCCH-13 IN MVC NO.4034/2019 PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
M.F.A.No.1620/2023:
BETWEEN:
SMT HEMASHREE N
W/O NIVEDHAN M YADAV @ NIVEDHAN M
AGED ABOUT 27 YEARS
R/AT NO.34, GOVINDARAJANAGARA
GOVINDARAJANAGARA SLUM
-5-
NC: 2024:KHC:9350-DB
MFA No.2479/2023
C/w MFA No.1591/2023
MFA No.1620/2023
MFA No.2493/2023
MFA No.2505/2023
MFA No.2560/2023
MFA No.5712/2023
BASAVESHWARA NAGARA
BENGALURU - 560 079 ...APPELLANT
(BY SMT.SUNITHA B.H. FOR SRI RAJANNA, ADVOCATES)
AND:
1. SRI MANJUNATHA R V
S/O VEERABHADRAIAH
MAJOR
R/AT NO.4, RAMAKALLUPALYA
VVG DODDI POST, MADBAL
MAGADI TALUK
RAMANAGARA DISTRICT - 570 024
2. M/S NATIONAL INSURANCE CO. LTD.,
OFFICE/AT NO.144, 145,
TP HUB, SHUBARAM COMPLEX
M G ROAD, BANGALORE - 560 001
REP. BY ITS MANAGER
3. SHAIKH IRFAN RABANI
S/O SHAIKH RABBANI
R/AT DATTA NAGAR
SHANKARANARAYAN BUILDING
KAILASH NAGAR, AURANGABAD
MAHARASHTRA - 431 001
4. M/S. NEW INDIA ASSURANCE CO. LTD.
OFFICE AT NO.9, 2ND FLOOR
MAHALAKSHMI CHAMBERS
M G ROAD, BANGALORE - 560 001
REP. BY ITS MANAGER ...RESPONDENTS
(BY SMT.MANJULA N.TEJASWI, ADVOCATE FOR R2;
SRI B.PRADEEP, ADVOCATE FOR R4; R1 & R3 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION
173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD
DATED 02.12.2022 PASSED BY THE II ADDITIONAL JUDGE AND
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, COURT OF SMALL
CAUSES, MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL, BENGALURU
(SCCH-13) IN MVC NO.4236/2019 PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
-6-
NC: 2024:KHC:9350-DB
MFA No.2479/2023
C/w MFA No.1591/2023
MFA No.1620/2023
MFA No.2493/2023
MFA No.2505/2023
MFA No.2560/2023
MFA No.5712/2023
M.F.A.No.2493/2023:
BETWEEN:
THE LEGAL MANAGER
THE NEW INDIA ASSURANCE CO. LTD.
MOTOR TP HUB, 9, 2ND FLOOR
MAHALAKSHMI CHAMBERS
M.G. ROAD, BENGALURU - 560 001 ...APPELLANT
(BY SRI PRADEEP B, ADVOCATE)
AND:
1. DAKSHAYANI
D/O GURURANGAIAH
AGED ABOUT 30 YEARS
R/AT TIPPU SULTHAN ROAD
NEAR RAILWAY STATION ROAD
DEVANAHALLI, BENGALURU RURAL DISTRICT
2. MANJUNATHA. R. V.
S/O. VEERABADRAIAH
MAJOR
R/AT NO.4, RAMAKALLUPALYA
VVG DODDI POST
MADBAL, MAGADI TALUK
RAMANAGARA DISTRICT
3. NATIONAL INSURANCE CO. LTD.
NO.144, 145, TP HUB
SHUBARAM COMPLEX
M.G. ROAD, BENGALURU - 560 001
REP. BY IT'S MANAGER
4. SHAIKH IRFAN RABANI
MAJOR
S/O. SHAIKH RABBANI
R/AT DATTA NAGAR, KAILASH NAGAR
AURANGABAD
MAHARASHTRA - 431 001 ...RESPONDENTS
(BY SMT.SUNITHA B.H FOR SRI RAJANNA, ADVOCATES FOR C/R1;
SRI K.G.BHAT FOR SRI SHRIPAD V SHASTRI, ADVOCATES FOR R2;
SMT.MANJULA N TEJASWI, ADVOCATE FOR R3;
NOTICE TO R4 DISPENSED WITH V/C/O DTD:06.06.2023)
-7-
NC: 2024:KHC:9350-DB
MFA No.2479/2023
C/w MFA No.1591/2023
MFA No.1620/2023
MFA No.2493/2023
MFA No.2505/2023
MFA No.2560/2023
MFA No.5712/2023
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION
173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 02.12.2022 PASSED BY THE II ADDITIONAL JUDGE
AND ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, COURT OF
SMALL CAUSES, BENGALURU, SCCH-13 IN MVC NO.4224/2019
AWARDING COMPENSATION OF RS.5,41,480/- WITH INTEREST AT 6%
P.A. (FUTURE MEDICAL EXPENSES DOES NOT CARRY ANY INTEREST)
FROM THE DATE OF PETITION TILL REALIZATION.
M.F.A.No.2505/2023:
BETWEEN:
THE LEGAL MANAGER
THE NEW INDIA ASSURANCE CO. LTD.
MOTOR TP HUB, 9, 2ND FLOOR
MAHALAKSHMI CHAMBERS
M.G. ROAD, BENGALURU - 560 001 ...APPELLANT
(BY SRI PRADEEP B, ADVOCATE)
AND:
1. SMT HEMASHREE N
W/O NIVEDHAN M YADAV @ NIVEDHAN M
AGED ABOUT 27 YEARS
R/AT NO.34, GOVINDARAJANAGARA
GOVINDARAJANAGARA SLUM
BASAVESHWARA NAGARA
BENGALURU
2. MANJUNATHA R. V.
MAJOR
S/O. VEERABADRAIAH
R/AT NO.4, RAMAKALLUPALYA
VVG DODDI POST
MADBAL, MAGADI TALUK
RAMANAGARA DISTRICT
3. NATIONAL INSURANCE CO. LTD.
NO.144, 145, TP HUB
SHUBARAM COMPLEX
M.G. ROAD, BENGALURU - 560 001
REP. BY IT'S MANAGER
-8-
NC: 2024:KHC:9350-DB
MFA No.2479/2023
C/w MFA No.1591/2023
MFA No.1620/2023
MFA No.2493/2023
MFA No.2505/2023
MFA No.2560/2023
MFA No.5712/2023
4. SHAIKH IRFAN RABANI
MAJOR
S/O. SHAIKH RABBANI
R/AT DATTA NAGAR, KAILASH NAGAR
AURANGABAD
MAHARASHTRA - 431 001 ...RESPONDENTS
(BY SMT.SUNITHA B H FOR SRI RAJANNA, ADVOCATES FOR C/R1;
SRI K.G.BHAT FOR SRI SHRIPAD V SHASTRI, ADVOCATES FOR R2;
SMT.MANJULA N TEJASWI, ADVOCATE FOR R3;
NOTICE TO R4 DISPENSED WITH V/C/O DTD:06.06.2023)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION
173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 02.12.2022 PASSED BY II ADDITIONAL JUDGE AND
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, COURT OF SMALL
CAUSES, BENGALURU, SCCH-13 IN MVC NO.4236/2019 AWARDING
COMPENSATION OF RS.2,80,183/- WITH INTEREST AT 6% P.A.
(FUTURE MEDICAL EXPENSES DOES NOT CARRY ANY INTEREST) FROM
THE DATE OF PETITION TILL REALIZATION.
MFA No.2560/2023:
BETWEEN:
THE LEGAL MANAGER
THE NEW INDIA ASSURANCE CO. LTD.
NO.9, 2ND FLOOR
MAHALAKSHMI CHAMBERS
M.G.ROAD, BENGALURU - 560 001 ...APPELLANT
(BY SRI PRADEEP B, ADVOCATE)
AND:
1. MANJUNATHA R. V.
MAJOR
S/O. VEERABADRAIAH
R/AT NO.4, RAMAKALLUPALYA
VVG DODDI POST
MADBAL, MAGADI TALUK
RAMANAGARA DISTRICT
2. SHAIKH IRFAN RABANI
MAJOR
S/O. SHAIKH RABBANI
-9-
NC: 2024:KHC:9350-DB
MFA No.2479/2023
C/w MFA No.1591/2023
MFA No.1620/2023
MFA No.2493/2023
MFA No.2505/2023
MFA No.2560/2023
MFA No.5712/2023
R/AT DATTA NAGAR, KAILASH NAGAR
AURANGABAD, MAHARASHTRA - 431 001 ...RESPONDENTS
(BY SRI.K.G.BHAT FOR SRI SHRIPAD V SHASTRI, ADVOCATES FOR R1;
NOTICE TO R2 DISPENSED WITH V/C/O DTD: 06.06.2023)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION
173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 02.12.2022 PASSED BY THE II ADDITIONAL JUDGE
AND ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, COURT OF
SMALL CAUSES, BENGALURU SCCH-13 IN MVC.NO.6614/2019
AWARDING COMPENSATION OF RS.1,00,000/- WITH INTEREST AT 6%
P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
M.F.A. No. 5712/2023:
BETWEEN:
SMT.DAKSHAYANI
D/O GURURANGAIAH
AGED ABOUT 30 YEARS
R/AT TIPPU SULTHAN ROAD
NEAR RAILWAY STATION ROAD
DEVANAHALLI
BENGALURU RURAL DISTRICT- 562 113 ...APPELLANT
(BY SMT.SUNITHA B.H., FOR SRI RAJANNA, ADVOCATES)
AND:
1. SRI MANJUNATHA R. V.
S/O.VEERABHADRAIAH
MAJOR
R/AT NO.4, RAMAKALLUPALYA
VVG DODDI POST, MADBAL
MAGADI TALUK
RAMANAGARA DISTRICT-562 159
2. NATIONAL INSURANCE CO. LTD.
NO.144, 145, TP HUB
SHUBARAM COMPLEX
M.G. ROAD, BENGALURU - 560 001
REP. BY IT'S MANAGER
3. SHAIKH IRFAN RABANI
S/O. SHAIKH RABBANI
R/AT DATTA NAGAR, KAILASH NAGAR
- 10 -
NC: 2024:KHC:9350-DB
MFA No.2479/2023
C/w MFA No.1591/2023
MFA No.1620/2023
MFA No.2493/2023
MFA No.2505/2023
MFA No.2560/2023
MFA No.5712/2023
AURANGABAD
MAHARASTRA - 431 001
4. NEW INDIA ASSURANCE CO. LTD.
OFFICE AT NO.9, 2ND FLOOR
MAHALAKSHMI CHAMBERS
M G ROAD, BENGALURU - 560 001
REP. BY ITS MANAGER ...RESPONDENTS
(BY SMT.MANJULA N.TEJASWI, ADVOCATE FOR R2;
SRI B.PRADEEP, ADVOCATE FOR R4;
R1 & R3 SERVED & UNREPRESENTED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION
173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD
DATED 02.12.2022 PASSED BY II ADDITIONAL JUDGE AND
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, COURT OF SMALL
CAUSES, MACT, BENGALURU, (SCCH-13) IN MVC NO.4224/2019
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR FINAL
HEARING, THIS DAY, K.S.MUDAGAL.J, DELIVERED THE FOLLOWING:
JUDGMENT
These appeals arise out of the accident which took place on
22.05.2019 at 3.00 a.m. near Lakkenahalli, Ambedkar Nagara
cross, Kunigal Nelamangala NH-75 within the limits of Kudur
police station between lorry bearing Registration No.MH-20-DE-
4175 and car bearing No.KA-42-A-4662. In the said accident, one
Dr.Nivedhan died and two inmates of the car namely Hemashree
and Dakshayini and the driver of the car Manjunath R.V. suffered
injuries.
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NC: 2024:KHC:9350-DB
2. Claiming compensation for the death of Dr.Nivedhan
his wife, daughter Gahana and mother Venkatalakshmamma filed
M.V.C.No.4034/2019. For the injuries suffered by Hemashree,
Dakshayini and Manjunath, they filed M.V.C.No.4236/2019,
M.V.C.No.4224/2019 and M.V.C.No.6614/2019 respectively.
3. Award in M.V.C.No.4034/2019, M.V.C.No.4236/2019
and M.V.C.No.4224/2019 are challenged both by the Insurer of
the lorry and the claimants and the award in
M.V.C.No.6614/2019 is challenged by the Insurer of the lorry.
The particulars of the appeals and the relating claim petitions are
set out in the table below:
MFA No. MVC No. Appeal by
2479/2023 4034/2019 Insurer of lorry
1591/2023 4034/2019 Claimants
1620/2023 4236/2019 Claimant
2505/2023 4236/2019 Insurer of lorry
2493/2023 4224/2019 Insurer of lorry
5712/2023 4224/2019 Claimant
2560/2023 6614/2019 Insurer of lorry
4. The ranks of the parties and the documents marked in
these cases are referred to according to M.V.C.No.4034/2019,
c/w M.V.C.No.4224/2019, M.V.C.No.4236/2019 and
M.V.C.No.6614/2019.
- 12 -
NC: 2024:KHC:9350-DB
5. Brief facts of the case are as follows:
That on 22.05.2019 at 3.00 a.m. when deceased Nivedhan,
Hemashree, Dakshayani and daughter of the deceased were
travelling in car bearing No.KA-42-A-4662 near Lakkenahalli and
Kunigal Nelamangala NH-75, the driver of the car rammed into
lorry bearing No.MH-20-DE-4175 which was parked on the road.
In the accident, Nivedhan died and the claimants in the above
cases including the driver of the car suffered the injuries.
6. Regarding the accident, Harish relative of Nivedhan
filed complaint as per Ex.P2 alleging that the driver of the lorry
had parked the lorry on the road without parking indicator lights
and the driver of the car also driving the car in rash and negligent
manner hit the lorry. Therefore the accident occurred. Based on
the said complaint, Kudur police registered first information
report as per Ex.P1 (in M.V.C.No.4034/2019 c/w
M.V.C.No.4224/2019) in Crime No.128/2019 against the drivers
of the car and the lorry. On investigation, the said police filed the
charge sheet as per Ex.P3 (in M.V.C.No.4034/2019 c/w
M.V.C.No.4224/2019) against the drivers of the car and lorry for
the offences punishable under Sections 279, 304A, 338 of IPC
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NC: 2024:KHC:9350-DB
and Section 122 of the Indian Motor Vehicles Act, 1988 ('the MV
Act' for short).
7. The claimants in M.V.C.No.4034/2019,
M.V.C.No.4224/2019 and M.V.C.No.4236/2019 filed claim
petitions contending that the accident occurred due to actionable
negligence on the part of the drivers of the lorry and the car. In
M.V.C.No.4034/2019 the claimants contended that they were
solely dependant on the income of the deceased. In
M.V.C.No.4236/2019 and M.V.C.No.4224/2019 the claimants
contended that in the accident, they have suffered grievous
injuries and permanent physical disability. The driver of the car
who was the claimant in M.V.C.No.6614/2019 contended that the
accident occurred solely due to actionable negligence on the part
of the driver of the lorry. He claimed compensation from the
owner and the driver of the lorry. They all claimed compensation
on different heads as per the table below:
Compensation
MVC No.
claimed by the
parties in Rs.
4034/2019 1,00,00,000/-
4236/2019 20,00,000/-
4224/2019 20,00,000/-
6614/2019 12,00,000/-
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NC: 2024:KHC:9350-DB
8. At the relevant time, respondent Nos.1 and 2 were
the driver and Insurer of the car and respondent Nos.3 and 4
were the registered owner and the Insurer of the lorry (in
M.V.C.No.4034/2019, M.V.C.No.4236/2019, M.V.C.No.4224/2019)
respectively. The owner of the lorry did not contest the petition.
The owner of the car and the insurers of both vehicles contested
the petition denying actionable negligence on the part of their
insured vehicles, age, occupation, income of the deceased, the
injuries, permanent physical disability suffered by the injured and
their liability to pay the compensation.
9. The Tribunal framed relevant issues in all the cases.
The parties led their evidence. The Tribunal on hearing the
parties held that the accident occurred due to actionable
negligence on the part of the driver of the lorry. The Tribunal on
considering the evidence on record, awarded compensation in the
above cases as per the table below:
Compensation
MVC No.
awarded by the
Tribunal in Rs.
4034/2019 46,35,000/-
4236/2019 2,80,183/-
4224/2019 5,41,480/-
6614/2019 1,00,000/-
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NC: 2024:KHC:9350-DB
10. The Insurer of the lorry has filed the appeals
challenging the negligence on the part of the driver of the lorry,
as well as quantum of compensation, whereas the claimants have
preferred the appeals as stated supra questioning the adequacy
of quantum of compensation.
11. Reiterating the grounds of appeal Sri B.Pradeep,
learned Counsel for the Insurer of the lorry submits that all along
the claimants contended that the accident occurred due to
actionable negligence on the part of the drivers of both vehicles
and even the charge sheet was filed against the drivers of both
vehicles. Therefore the Tribunal committed error in holding that
the driver of the lorry was solely responsible for the accident.
Regarding quantum of compensation, he submits that in
M.V.C.No.4034/2019, income of the deceased was not
established and the compensation awarded on other heads is also
on the higher side. So far as the claim petitions of the injured, he
challenges the findings on the assessment of permanent physical
disability, income of the injured and medical expenses etc.
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NC: 2024:KHC:9350-DB
12. Smt.Sunitha B.H., learned Counsel for the claimants
questioning the award contended that the compensation awarded
is on the lower side and contrary to the evidence on record.
13. Sri K.G.Bhat, learned Counsel for the driver of the car
submitted that the accident occurred due to actionable negligence
on the part of the driver of the lorry, in the accident, the driver
also suffered injuries and the compensation awarded to him is on
the lower side.
14. On considering the submissions of both parties and on
examining the materials on records, the points that arise for
determination of the Court are:
(i) Whether the Tribunal was justified in holding that the
accident occurred solely due to actionable negligence
on the part of the driver of the lorry bearing
Registration No.MH-20-DE-4175?
(ii) Whether the compensation awarded in
M.V.C.No.4034/2019, M.V.C.No.4236/2019 and
M.V.C.No.4224/2019 is just one?
Reg. Point No.1: Negligence:
15. None of the parties are at dispute about occurrence of
the accident on 22.05.2019 at 3.00 a.m. on Kunigal Nelamangala
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National Highway 75 Road, Lakkenahalli involving car bearing
No.KA-42-A-4662 and lorry bearing No.MH-20-DE-4175. It is also
not disputed that lorry bearing No.MH-20-DE-4175 was stationary
one and the car was in motion. It is further not disputed that the
first information report was registered against the drivers of the
car and lorry and the charge sheet was also filed against both of
them. But against the driver of the lorry, Section 122 of the
MV Act was also invoked saying that he had parked the lorry on
public road without indicator lights causing danger to other users
of public road.
16. Though the charge sheet was filed against both the
drivers, it is settled law that the charge sheet is not conclusive
proof of actionable negligence. That was only prima facie proof of
negligence which can be rebutted by adducing evidence by the
parties.
17. To rebut the presumption which arose under the
charge sheet, the driver of the car who was the claimant in
M.V.C.No.6614/2019 entered the witness box in all these cases
and deposed that the driver of the lorry had parked the same on
the road without putting indicator lights, therefore he could not
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notice that and his car hit the lorry. Admittedly, the place where
the accident took place was National Highway. None of the
witnesses deposed to say that the driver of the car was driving
the same beyond any prescribed limit of speed. The sketch of
scene of offence was produced at Ex.P24 in M.V.C.No.4034/2019
and connected matter which goes to show that the lorry was
parked on the main road and not on the side mud road. The spot
mahazar Ex.P4 shows that the accident had occurred on the tar
road.
18. Under the circumstances, the burden was on the
owner and the insurer of the lorry to prove that the driver of the
lorry had switched on the parking indicator lights. But he was not
examined. Apparently the place where the lorry was parked was
not the parking area. The owner of the lorry did not contest the
petitions at all and the insurer of the lorry failed to discharge its
burden to prove that the driver of the car alone was rash and
negligent.
19. Under the circumstances, the ignorance expressed by
the claimants in M.V.C.No.4034/2019, M.V.C.No.4224/2019 and
M.V.C.No.4236/2019 in their evidence about they not noticing the
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source of light at the scene of accident or the driver of the car
may also be negligent, did not come to the aid of the insurer of
the lorry. In the similar circumstances, the Hon'ble Supreme
Court in Jumani Begam v. Ram Narayan1 and K.Anusha v.
Regional Manager, Shriram General Insurance Co. Ltd.2 held that
when the vehicle was in a place which was not the parking place,
without indication or signal, actionable negligence has to be
imputed to the driver of the lorry. These cases are also covered
by the said judgments. The Tribunal on judicious appreciation of
the evidence on record arrived at the conclusion that the driver of
the lorry was solely responsible for the accident. Such finding
does not warrant interference of this Court.
Reg. Point No.2: Quantum of compensation in
M.V.C.No.4034/2019:
20. There is no dispute that the claimants in this case are
the wife, daughter and mother of deceased Nivedhan M.Yadav.
Exs.P14 and P15 BAMS degree certificate and registration
certificate (in M.V.C.No.4034/2019 C/w. M.V.C.No.4224/2019)
show that Nivedhan secured Bachelor of Ayurvedic Medicine &
LAWS (SC)-2019-12-105
LAWS (SC)-2021-10-62
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Surgery in the year 2009. He got registered himself as doctor in
2013. Though it was contended that he was working in two
hospitals and earning Rs.1,00,000/- per month, there was no
proof of his actual income. Under the circumstances, the Tribunal
considered his income notionally at Rs.25,000/- per month. Even
as per the Government Notification No.PSC 1 RTB-1/2020 dated
30.07.2020 for the post of Assistant Professor in Ayush
Department which requires minimum qualification of Bachelor of
Degree in Ayush, the pay scale of Rs.15,600- 39,100/- is fixed.
21. To prove that Dr.Nivedhan was earning Rs.1,00,000/-
per month, the claimants neither produced his bank statements
nor income tax returns. Therefore the Tribunal was justified in
considering his income at Rs.25,000/- per month. Based on
Ex.P38 SSLC Marks card, the Tribunal rightly considered the age
of the deceased at 31 years. As he was having three dependants,
as per the judgment of the Hon'ble Supreme Court in Sarla
Verma v. Delhi Transport Corporation3 1/3rd has to be deducted
from his income for his personal expenses. As per the judgment
of the Hon'ble Supreme Court in National Insurance Company
AIR 2009 SC 3104
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Limited vs. Pranay Sethi4 for his age, 40% has to be super added
to his income by way of future prospects which comes to
Rs.25,000/- x 40% = Rs.10,000/-. Therefore his monthly income
comes to Rs.25,000/- + 10,000/- = Rs.35,000/- Out of
Rs.35,000/-, 2/3rd comes to Rs.23,333.33 p.m. The applicable
multiplier is 16. Therefore the compensation payable on the head
of loss of dependency comes to Rs.23,333.33 x 12 x 16 =
Rs.44,79,936/- rounded of to Rs.44,80,000/-.
22. As per the judgment of the Hon'ble Supreme Court in
Pranay Sethi's case referred to supra and Magma General
Insurance Company Ltd. v. Nanu Ram5, each of the claimants
are entitled to compensation of Rs.40,000/- with escalation of
10% on the head of loss of consortium which comes
to Rs.1,32,000/-.
23. As per the judgment of the Hon'ble Supreme Court in
Pranay Sethi's case referred to supra, the claimants are entitled
to compensation of Rs.15,000/- on the head of funeral expenses
and Rs.15,000/- on the head of loss of estate with escalation of
AIR 2017 SC 5157
2018 (18) SCC 130
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10% which comes to Rs.33,000/-. Thus the total compensation
payable to the claimants is as follows:
Sl. Particulars Compensation
No. awarded in Rs.
1. Loss of dependency 44,80,000/-
2. Consortium 1,32,000/-
3. Funeral expenses & 33,000/-
loss of estate
Total 46,45,000/-
Less: Awarded by Tribunal (- ) 46,35,000/-
Enhanced compensation 10,000/-
24. In view of the above, M.F.A.No.2479/2023 is liable to
be dismissed and M.F.A.No.1591/2023 deserves to be allowed in
part.
Reg. Point No.2: Quantum of compensation in
M.V.C.No.4224/2019:
25. The claimant in this case contended that she suffered
fracture of femur and right tibia, she underwent surgery for the
same and she suffered permanent physical disability. She claimed
compensation of Rs.20,00,000/-.
26. The evidence of PW.3 the doctor who treated her in
Bowring and Lady Curzon Hospital, wound certificate Ex.P25 and
the discharge summaries Exs.P26 to 29 (in M.V.C.No.4034/2019
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and connected matter) show that the claimant had suffered the
following injuries:
(i) Fracture of right proximal femur
(ii) Fracture of right tibia.
27. The claimant underwent surgery in Bowring Hospital.
She was admitted in the said hospital for 42 days. PW.3 deposed
that she suffered permanent physical disability of 60% in her
right lower limb and 30% to the whole body. The Tribunal
reduced the said disability to 8% only on the ground that she is
working as Accountant, therefore, there is no functional disability.
28. The claimant was hardly aged 26 years at the time of
the accident. She was unmarried. Being a woman she had several
responsibilities in her domestic front which requires her physical
movements. She had expectation of marriage, pregnancy and
child care responsibility which again need intense physical fitness.
PW.3 the doctor deposed that she is unable to walk, not able to
sit, squat. There was shortening of right lower limb. Under the
circumstances, the Tribunal was not justified in reducing the
disability to 8%, only considering her occupation. Therefore, 1/3rd
of her disability to her particular limb/right lower limb shall be
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taken as permanent physical disability of whole body which
comes to 20%.
29. There was no proof of actual income. Having regard
to the minimum wages during 2019 and cost of living, the
Tribunal was justified in considering her income at Rs.14,000/-
per month, 20% of the same comes to Rs.14,000/- x 20%=
2,800/-p.m. The applicable multiplier is 17. Therefore the
compensation payable under the head of loss of future earnings
comes to Rs.2,800/- x 12 x 17= 5,71,200/-.
30. Having regard to the nature of the injuries,
hospitalization and the doctor's evidence, the compensation
awarded on the head of pain and sufferings is on the lower side.
It would be reasonable to award Rs.50,000/- on that head. As
she was hospitalized for 42 days, minimum of three months
period has to be taken as laid up period. Therefore the
compensation payable on the head of loss of income during laid
up period comes to Rs.42,000/- (Rs.14,000/- x 3).
31. The medical expenses awarded was based on the
documents produced by the claimants. Therefore the same needs
to be maintained. Having regard to the nature of the injuries,
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doctor's evidence, age and other circumstances, the
compensation awarded on the head of amenities requires to be
enhanced to Rs.1,00,000/-. PW.3 stated that future medical
expenses required for the treatment is Rs.30,000/-. But the
Tribunal without any reasons reduced that to Rs.15,000/-.
Therefore Rs.30,000/- has to be awarded for future medical
expenses. The compensation awarded on the head of food,
nourishment and conveyance is just. Therefore the just
compensation payable is as follows:
Sl. Particulars Compensation
No. awarded in Rs.
1. Loss of future earnings 5,71,200/-
2. Pain and sufferings 50,000/-
3. Loss of income during laid up period 42,000/-
4. Medical expenses 1,73,000/-
5. Loss of amenities 1,00,000/-
6. Future medical expenses 30,000/-
7. Food/nourishment/conveyance 50,000/-
Total 10,16,200/-
Less: Awarded by the Tribunal (-) 5,41,480/-
Enhanced compensation 4,74,720/-
32. For the aforesaid reasons, M.F.A.No.2493/2023 is
liable to be dismissed and M.F.A.No.5712/2023 deserves to be
allowed in part.
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Reg. Point No.2: Quantum of compensation in
M.V.C.No.4236/2019:
33. The victim in this case was aged 23 years. The
evidence of PW.3 the doctor who treated her and Ex.P7 the
wound certificate issued by him, Exs.P9 and P13 prescriptions
and discharge summaries, Ex.P14 case sheet, Ex.P16 clinical
notes in M.V.C.No.4236/2019 show that the claimant had
suffered the following injuries:
(i) Fracture of left ribs from 2nd to 4th
(ii) Fracture of spinous process from C6 to T5
(iii) Facial injury
34. The doctor assessed the disability of left arm at 31%
and to the whole body at 10%. The evidence of PW.3 further
shows that she was treated as an inpatient from 25.05.2019 to
03.06.2019 and all the fractures were treated conservatively. As
against the evidence of PW.3, the Tribunal reduced the disability
to 8% only on the ground that the fracture was united. PW.3 has
deposed that when he examined the claimant on 22.02.2022, she
was still complaining weakness and pain in the left upper limb,
unable to lift weight with the left upper limb and her face was
disfigured. Under the circumstances, the Tribunal was not
justified in reducing the permanent disability to 8% contrary to
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the medical and other evidence on record. The Tribunal should
have taken the disability at 10% to the whole body.
35. The Tribunal though considered the prevailing wage
rate at Rs.14,000/- p.m., reduced that for the claimant to
Rs.10,000/- on the sole ground that she is homemaker.
Homemaker's job is more tough and demanding than the other
jobs. That job requires dedication 24 x 7 x 365 days. Reduction
of income from Rs.14,000/- to Rs.10,000/- suffers gender bias
and is unacceptable. Therefore the income has to be considered
notionally at Rs.14,000/- per month. The applicable multiplier for
her age is 18. Therefore the compensation payable on the head
of loss of future earnings is Rs.3,02,400/- (Rs.1400/- (14,000 x
10%) x 12 x 18).
36. As there was loss of weight bearing bone, it would be
just to award compensation of Rs.40,000/- on the head of pain
and suffering as against Rs.30,000/- awarded by the Tribunal.
The claimant was admitted in hospital for 10 days. There was no
major functional disability. Therefore the compensation of
Rs.10,000/- awarded under the head loss of amenities is
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maintained. The medical expenses awarded is based on the bills
and the records. Therefore the same needs to be maintained.
37. Though PW.3 doctor has deposed that Rs.1,00,000/-
would be required for future medical expenses, the claimant is
awarded Rs.20,000/- on the head of loss of future medical
expenses. Nothing is placed on record to show that pending these
cases she underwent any plastic surgery for treating her facial
disfiguration. Therefore, the compensation awarded under the
head of future medical expenses needs to be maintained.
38. As deposed by PW.3 the victim suffered face
disfigurement. Therefore the compensation of Rs.30,000/-
awarded for disfigurement of face is maintained. As she was
admitted in the hospital for 10 days and treated conservatively in
the hospital, compensation of Rs.10,000/- awarded on the head
of conveyance, food, nourishment and attendant charges is just
and the same needs to be maintained. Therefore just
compensation payable is as under:
Sl. Particulars Compensation
No. awarded in Rs.
1. Loss of future earning 3,02,400/-
2. Pain & suffering 40,000/-
3. Loss of amenities 10,000/-
4. Medical expenses 7,383/-
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5. Future medical expenses 20,000/-
6. Facial disfiguration 30,000/-
7. Transportation & Diet 10,000/-
Total compensation 4,19,783/
Less: awarded by Tribunal (-) 2,80,183/-
Enhanced compensation 1,39,600/-
39. For the aforesaid reasons, M.F.A.No.2505/2023 is
liable to be dismissed and M.F.A.No.1620/2023 deserves to be
allowed in part.
Reg. M.V.C.No.6614/2019 (MFA.No.2560/2023):
40. The claimant in this case is the driver of the car. He
claimed compensation of Rs.12,00,000/- on the ground that he
has suffered personal injuries and damages to his car. The
Tribunal held that the claimant received Rs.3,00,701/- from his
insurer towards damages to the car. Therefore, did not award
compensation under the said head. He has not challenged the
same. Therefore, the only question to be considered is "whether
the compensation awarded for the injuries suffered by the
claimant is on the higher side?
41. As per the wound certificate Ex.P3 in
M.V.C.No.6614/2019, the claimant suffered the following injuries:
(i) Blunt contusion injury to head.
(ii) CLW left maxillar region 12x2x1 cm.
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(iii) Swelling around left side of the face and lips.
(iv) Loss of upper alvelor teeth.
42. As per the wound certificate Ex.P3, injury No.1 was
simple in nature and injury Nos.2 to 4 were grievous in nature.
The author of Ex.P3 was not examined. PW.1/the clamant himself
admitted in his cross-examination that he suffered simple
injuries. Ex.P14 in M.V.C.No.6614/2019 the discharge summary
coupled with the evidence of the claimant shows that he was
treated as inpatient in Sapthagiri Hospital, Bengaluru, from
22.05.2019 to 29.05.2019 which would come to eight days. The
genuineness of Ex.P3 wound certificate was not denied. Thus,
there is no reason to disbelieve that he lost a tooth and suffered
injuries as shown in Ex.P3. Ex.P12 in M.V.C.No.6614/2019 the
photograph shows that he suffered disfigurement of the face.
43. Considering the above said facts and circumstances of
the case, it cannot be said that the global compensation awarded
by the Tribunal is arbitrary and exorbitant. Therefore,
M.F.A.No.2560/2023 is liable to be dismissed. For the aforesaid
reasons, the following:
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ORDER
M.F.A.No.2479/2023, M.F.A.No.2505/2023,
M.F.A.No.2493/2023 & M.F.A.No.2560/2023 are hereby
dismissed.
M.F.A.No.1591/2023, M.F.A.No.1620/2023 and
M.F.A.No.5712/2023 are partly allowed.
The claimants in M.V.C.No.4034/2019 are awarded
enhanced compensation of Rs.10,000/- and the claimant in
M.V.C.No.4224/2019 is awarded enhanced compensation of
Rs.4,74,720/-. The claimant in M.V.C.No.4236/2019 is awarded
enhanced compensation of Rs.1,39,600/-.
The enhanced compensation shall carry interest at 6% p.a.
from the date of petition till realization.
Respondent -Insurer of lorry bearing No.MH-20-DE-4175
shall deposit the enhanced compensation before the Tribunal in
the above cases within four weeks from the date of receipt of
copy of this order.
On such deposit, the Tribunal shall release the amount to
the claimants in terms of the award.
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The amount in deposit, if any, in the concerned matters and
the trial Court records shall be transmitted to the Tribunal
forthwith.
Pending IAs if any stood disposed of accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
KSR,S
