Karnataka High Court
Regional Manager vs Smt. Muniyamma on 6 November, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA.CROB No. 45 of 2016
C/W MFA No. 6165 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MFA CROB. NO.45 OF 2016 C/W
MISCELLANEOUS FIRST APPEAL NO.6165 OF 2013 (MV-D)
IN MFA.CROB.No.45/2016
BETWEEN:
1. SMT MUNIYAMMA
W/O LATE NARAYANASWAMY,
AGED ABOUT 31 YEARS,
2. SANJAYA KUMAR
S/O LATE NARAYANASWAMY,
AGED ABOUT 12 YEARS,
3. KUMARI NETHRAVATHI
D/O LATE NARAYANASWAMY,
AGED ABOUT 10 YEARS,
BENGALURU CITY.
CROSS OBJECTORS. 2 AND 3 ARE MINORS,
Digitally signed REP BY THEIR MOTHER AND NATURAL GUARDIAN
by RAMYA D
Location: HIGH THE 1ST CROSS OBJECTOR,
COURT OF
KARNATAKA ALL ARE R/AT #15,
HENNUR BANASAWADI,
BENGALURU CITY
...CROSS OBJECTORS
(BY SRI. K V SHYAMAPRASADA.,ADVOCATE)
AND:
1. M/S THE ORIENTAL INSURANCE CO.LTD.
INDIAN MUTUAL BUILDING,
1ST FLOOR, NO. 221,
CUBBONPET MAIN ROAD,
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MFA.CROB No. 45 of 2016
C/W MFA No. 6165 of 2013
N R SQUARE,
BENGALURU - 560 002.
REPRESENTED BY ITS MANAGER.
2. NARASIMHA B R
S/O SADHURAMAPPA,
MAJOR, R/O BYRATHI VILLAGE,
DODAGUBBI,
BENGALURU - 560 018.
3. BABU RAO
S/O LAKSHMAN,
AGED ABOUT 34 YEARS,
R/AT #2733,
RAMAPURA THANDA KODAD MANDAL,
NALAGONDA DISTRICT,
ANDHRA PRADESH.
4. KUNDAVARAPU VIJAY NAIDU
S/O RAMANAIDU,
AGED ABOUT 37 YEARS,
PROPRIETOR OF VNS TRANSPORT,
#3-92, RAMAPURAM X-ROAD NALLABANGAGUDEM,
KODAD MANDAL NALAGONDA DISTRICT,
ANDHRA PRADESH.
5. M/S THE ORIENTAL INSURANCE CO. LTD.
REGIONAL OFFICE,
NO.44/45, LEO SHOPPING COMPLEX,
RESIDENCY ROAD,
BENGALURU-560025.
REPRESENTED BY ITS MANAGER.
...RESPONDENTS
(BY SRI. A.N. KRISHNASWAMY ADVOCATE FOR R1 AND R5;
SRI. N.S BHAT ADVOCATE FOR R2;
V/O DATED 12.01.2023 NOTICE TO R3 DISPENSED WITH;
V/O DATED 29.10.2024 NOTICE TO R4 IS D/WITH)
THIS MFA CROB IN MFA NO. 6165/2013 FILED U/O 41,
RULE 22 OF CPC AGAINST JUDGMENT AND AWARD DATED
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MFA.CROB No. 45 of 2016
C/W MFA No. 6165 of 2013
15.4.2013 IN MVC NO. 1921/2007 ON THE FILE OF MEMBER,
MACT, 8TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES,
BENGALURU, PARTLY ALLOWING THE PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO. 6165/2013
BETWEEN:
REGIONAL MANAGER
ORIENTAL INSURANCE CO. LTD.
REGIONAL OFFICE,
#44/45,
LEO SHOPPING COMPLEX,
RESIDENCY ROAD,
BANGALORE - 560 025.
...APPELLANT
(BY SRI. A N KRISHNA SWAMY.,ADVOCATE)
AND:
1. SMT. MUNIYAMMA
W/O LATE NARYANASWAMY
NOW AGED ABOUT 28 YEARS
2. SANJAY KUMAR
S/O LATE NARAYANASWAMY
NOW AGED ABOUT 9 YEARS
3. KUMARI NETHRAVATHI
D/O LATE NARAYANASWAMY
NOW AGED ABOUT 7 YEARS
4. SMT. VENKATAMMA
W/O CHENCHULAPPA
NOW AGED ABOUT 66 YEARS
RESPONDENTS NO.2 SND 3 HEREIN
SINCE MINORS REPRESENTED
BY THEIR NATURAL GUARDIAN/ MOTHER
THE 1ST RESPONDENT HEREIN.
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MFA.CROB No. 45 of 2016
C/W MFA No. 6165 of 2013
ALL R/A # 15,
R/AT # 15,
HENNUR BANASAWADI,
BANGALORE.
5. NARASIMHA B.R
S/O SADHURAMAPPA
MAJOR
R/O BYRATHI VILLAGE,
DODDAGUBBI
BANGALORE.
6. BABU RAO
S/O LAKSHMAN
AGED ABOUT 31 YEARS
R/AT # 2733,
RAMAPURA THANDA
KODAD MANDAL,
NALAGONDA DISTRICT
ANDHRA PRADESH.
7. KUNDAVARAPU VIJAY NAIDU,
S/O RAMANAIDU
NOW AGED ABOUT 34 YEARS
PROPRIETOR OF VNS TRANSPORTS,
# 3-92, RAMAPURAM X-ROAD,
NALLABANGAGUDEM, KODAD MANDAL
NALAGONDA DISTRICT
ANDHRA PRADESH
...RESPONDENTS
(BY SRI.K.V. SHYAMA PRASAD ADVOCATE FOR R1;
R2 AND R3 ARE MINORS REPRESENTED BY R1;
V/O DATED 25.10.2017 NOTICE R4 IS HELD
SUFFICIENT;
R5, R6 , R7 ARE SERVED AND UNREPRESENTED)
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MFA.CROB No. 45 of 2016
C/W MFA No. 6165 of 2013
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 15.04.2013 PASSED IN
MVC NO. 1921/2007 ON THE FILE OF THE VIII ADDITIONAL
JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES,
BANGALORE, AWARDING A COMPENSATION OF
Rs.6,21,000/- WITH INTEREST @ 6% P.A. FROM THE DATE
OF PETITION TILL DEPOSIT IN COURT.
THIS MFA CROB AND APPEAL, COMING ON FOR
ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
ORAL ORDER
MFA.No.6165/2013 is filed by the Insurance
Company questioning the contribution of 60% of rash and
negligence on the driver of the lorry.
MFA.Crob.No.45/2016 is filed by the claimants for
seeking enhancement of compensation as well as
questioning attribution of 40% of rash and negligence on
the part of the driver of the motor cycle.
2. The brief facts of the case are that, on
20.12.2006 at 7:00 p.m., the deceased was proceeding on
TVS XL Super Hero Honda motor cycle bearing
Reg.No.KA.50.E.4198 as a pillion rider and when they
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reached near Nandi Cross, Chikkaballapur, the rider of the
motor cycle drove the vehicle in a rash and negligent
manner and dashed behind one lorry which was parked on
the road side without indicator and signal. Thereby, the
deceased who was the pillion rider sustained grievous
injuries and on the way to the hospital, he succumbed to
the injuries. Therefore, the wife, children and mother
have filed a claim petition under Section 166 of Motor
Vehicle Act and the Tribunal has granted compensation of
Rs.6,21,000/- along with interest at 6% p.a., from the
date of petition till the date of deposit and also it is held
that the rider of the motor cycle has contributed 40% of
rash and negligence towards the accident and driver of the
lorry has contributed 60% of rash and negligence towards
the accident. Accordingly, apportionment of 40:60
regarding rash and negligence is made by the Tribunal.
3. Learned counsel for the claimants
submitted that the lorry was parked on the middle of the
road without any indicator and signal. Therefore, the
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driver was negligent in parking the lorry in the road.
Hence, the driver of the lorry was completely rash and
negligent in parking the lorry resulting into causing the
accident.
4. On the other hand, learned counsel for the
Insurance Company submitted that in the complaint the
entire allegation is made against the rider of the motor
cycle who was rash and negligent in riding the motor
cycle. The charge sheet is also filed against the rider of the
motor cycle. Further the claimants themselves in the claim
petition as well as in the evidence have stated that the
rider of the motor cycle was rash and negligent in riding
the motor cycle and caused the accident. Therefore, the
driver of the lorry was not rash and negligent in driving
the vehicle. Therefore, prays to allow the appeal.
5. Upon considering the time and place of
accident, the accident was caused on 20.12.2006 in the
evening at about 7:00 p.m., on the N.H.7 near Nandi
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Cross, Chikkaballapur. It was the month of December at
7:00 p.m., the sunset is early compared to summer days.
Therefore, whoever are parking the vehicles in the middle
of the road, they should have put indicator or signal
inviting the attention of other drivers of vehicles, but in
this case, there is no evidence by the owner or driver of
the lorry that they have taken precaution in inviting the
attention of other vehicles that the lorry is parked on the
road.
6. In the complaint and FIR, the allegation is
made against the rider of the motor cycle. The charge
sheet is filed against the rider of the motor cycle, but upon
considering the spot sketch, the width of the road is 25
feet. In the spot sketch, it is shown that the lorry was
parked not on the left side mud of the road, but on the tar
road slightly on the left side. The time of accident is 7:00
p.m. Therefore, in the absence of proof regarding indicator
or signal have been put, therefore, the driver of the lorry
has shown negligence while parking the lorry. At the same
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time, the rider of the motor cycle also could have taken
care while riding the motor cycle in order to avoid the
accident. Therefore, in this regard, both the rider of the
motor cycle and driver of the lorry have contributed their
rash and negligence towards the accident. Therefore, in
this regard, the Tribunal has correctly assessed the
parameter of rash and negligence and accordingly, it is
correctly held by the Tribunal. Therefore, regarding the
apportionment of rash and negligence, there is no need to
make interference by this Court.
7. Insofar as amount of compensation
awarded, the same is found to be on the lesser side.
Therefore, the claimants are entitled for enhancement of
compensation.
8. The deceased was aged 25 years old as on
the date of the accident. The accident is caused on
20.12.2006. The deceased was working as a car driver. In
the absence of proof of income, notional income of
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Rs.4,000/- p.m., is taken into consideration. As the
deceased was aged 25 years as on the date of the
accident, appropriate multiplier applicable is "18". There
are four dependents, hence, 1/4th of income is to be
deducted towards personal and living expenses of the
deceased. 40% of income is to be added. Therefore,
compensation under the head loss of dependency is re-
assessed and quantified as follows:
Rs.4,000/- + Rs.1,600/- (40% of Rs.4,000/-) x ¾ x 18 x
12 =Rs.9,07,200/-
Accordingly, compensation of Rs.9,07,200/- is
awarded under the head loss of dependency.
9. The Tribunal has awarded compensation of
Rs.10,000/- towards loss of love and affection and
Rs.5,000/- towards loss of consortium. The loss of love
and affection and loss of consortium are having the same
connotation. As per the judgment of the Hon'ble Supreme
Court in the case of Magma General Insurance Co.
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Limited v. Nanu Ram & Others1, each claimants are
entitled for Rs.40,000/- with 10% escalation. Hence, in the
present case, there are four dependents. Therefore,
compensation of Rs.1,76,000/- (Rs.40,000/- x 4
dependants + 10% escalation) is awarded under the head
loss of consortium including loss of love and affection.
10. The compensation of Rs.16,500/-
(Rs.15,000/- + 10% escalation) is awarded under the
head loss of estate as against Rs.10,000/- awarded by the
Tribunal.
11. The compensation of Rs.16,500/-
(Rs.15,000/- + 10% escalation) is awarded under the
head transportation of dead body and funeral expenses as
against the compensation awarded by the Tribunal.
2018 ACJ 2782
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12. Thus, the appellants/claimants are entitled
to total compensation as under:
1 loss of dependency Rs. 9,07,200/-
2 Loss of consortium Rs.
1,76,000/-
including loss of love
and affection
3 Loss of estate Rs. 16,500/-
4 Funeral and obsequies Rs.
16,500/-
and transportation of
dead body
TOTAL Rs. 11,16,200/-
13. The Tribunal has awarded compensation of
Rs.6,21,000/- with interest at 6% p.a., from the date of
petition till the date of deposit. But the
appellants/claimants are entitled to total compensation of
Rs.11,16,200/-. Hence, the appellants/claimants are
entitled to enhanced compensation of Rs.4,95,200/-
(Rs.11,16,200/- - Rs.6,21,000/-) along with interest at
6% p.a., from the date of petition till the date of
realization.
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14. The Tribunal has ordered that the owner of the
motor cycle to pay 40% of compensation to the claimants
by exonerating the insurer of the motor cycle on the
reason that the rider of the motor cycle was not having
driving licence to ride two wheelers. It is observed by the
Tribunal that rider of the motor cycle was having driving
licence to drive heavy transport vehicle and light motor
vehicle, but has not produced driving licence that he was
authorized to drive two wheelers also. Ex.R.1 is the driving
licence extract of the rider of the motor cycle that he was
having driving licence to drive heavy transport vehicle and
light motor vehicle. Hence, there is no evidence to prove
that the rider of the motor cycle was authorized to drive
two wheelers also. Therefore, the Tribunal has rightly
exonerated the insurer of the motor cycle to pay
compensation and rightly fastened liability on the owner of
the motor cycle to pay compensation at 40%.
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15. It is proved that the rider of the motor cycle
was not having driving licence to drive motor cycle, but
was having licence to drive heavy transport vehicle and
light motor vehicle and in this regard, to drive the class of
vehicle, infraction is proved. Therefore, as per Sub-section
(2) of Section 149 of Motor Vehicle Act, when the
Insurance Company established the fact that the driver
was not holding driving licence, then as per Sub-sections
(1), (4), (7) of Section 149 of Motor Vehicle Act, the
Insurance Company as if the judgment debtor shall satisfy
the claim in respect of third parties and then recover the
same from the owner of the motorcycle. Accordingly, the
order of pay and recovery is made as per the principle of
law laid down by the Hon'ble Supreme Court in the cases
of PAPPU AND OTHERS -Vs- VINOD KUMAR LAMBA
AND ANOTHER2; NATIONAL INSURANCE
COMPANY LIMITED VS. SWARAN SINGH AND
(2018) 3 SCC 208
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OTHERS 3 and also as per the full bench decision of this
Court in the case of NEW INDIA ASSURANCE
COMPANY LIMITED VS. YELLAVVA AND ANOTHER4.
Accordingly, an order of pay and recovery is
made. Therefore, the Insurance Company who issued
policy in respect of motorcycle shall pay the compensation
to the claimants at the first instance and then recover the
same from the owner of the motor cycle. To this extent,
the judgment and award passed by the Tribunal is
modified. Therefore, the appeal filed by the Insurance
Company is liable to be allowed in part and the cross
objection filed by the claimants is liable to be allowed in
part.
16. Accordingly, I proceed to pass the following
(2004) 3 SCC 297
2020 ACJ 2560
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ORDER
i. MFA.No.6165/2013 filed by the Insurance
Company is allowed-in-part.
ii. MFA.Crob.No.45/2016 filed by the claimants in
allowed-in-part.
iii. The impugned judgment and award dated
15.04.2013 in MVC.No.1921/2007 passed by
Member, MACT-V, Court of Small Causes, VIII
Addl. Judge, Bengaluru, is hereby modified.
iv. The appellants/claimants are entitled to enhanced
compensation of Rs.4,95,200/- (Rs.11,16,200/-
- Rs.6,21,000/-) along with interest at 6% p.a.,
from the date of petition till the date of realization.
v. The Insurance Company shall pay the
compensation to the claimants at the first instance
and then recover the same from the owner of the
motor cycle.
vi. No order as to costs.
vii. Draw award accordingly.
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viii. Registry is directed to transmit the TCR along with
copy of this order to the Tribunal forthwith.
ix. The amount in deposit made by the Insurance
Company shall be transmitted to the Tribunal
forthwith.
SD/-
(HANCHATE SANJEEVKUMAR)
JUDGE
PB
