Karnataka High Court

Smt. Munirathna @ Munirathnamma vs Nandeesh Kumar B V on 3 September, 2024

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                                                           NC: 2024:KHC:35778
                                                        MFA No. 5572 of 2017
                                                    C/W MFA No. 1632 of 2017



                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 3RD DAY OF SEPTEMBER, 2024

                                         BEFORE
                 THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
                    MISCELLANEOUS FIRST APPEAL NO.5572 OF 2017 C/W
                   MISCELLANEOUS FIRST APPEAL NO.1632 OF 2017 (MV-D)


                 IN MFA No.5572/2017
                 BETWEEN:


                 1. SMT. MUNIRATHNA @ MUNIRATNAMMA,
                    W/O LATE NANJAPPA,
                    AGED ABOUT 34 YEARS.

                 2. MASTER AJAY,
                    S/O LATE NANJAPPA,
                    AGED ABOUT 12 YEARS.

                 3. KUM, MAMATHA,
                    D/O LATE NANJAPPA,
                    AGED ABOUT 11 YEARS.

Digitally signed by  SINCE THE APPELLANTS NO.2 & 3
PRAJWAL A            ARE MINORS REP. BY MOTHER
Location: HIGH COURT NATURAL GUARDIAN SMT. MUNIRATHNA.
OF KARNATAKA
                     ALL ARE R/AT GIDDENAHALLI VILLAGE,
                     KADABAGERE POST, DASANAPURA HOBLI,
                     BANGALORE NORTH.
                                                                ...APPELLANTS

                 (BY SRI SHRIPAD V.SHASTRI, ADVOCATE [V/C])

                 AND:

                 1. NANDEESH KUMAR B V,
                    S/O VENKATESH N,
                    R/AT NO.801, 10TH MAIN,
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                                        NC: 2024:KHC:35778
                                     MFA No. 5572 of 2017
                                 C/W MFA No. 1632 of 2017



   III STAGE, 4TH BLOCK,
   BASAVESHWARANAGAR,
   BANGALORE-79.

2. THE MANAGER,
   SBI GENERAL INSURANCE CO. LTD.,
   V.V. GIRI COLONY, SHESHADRIPURAM,
   BANGALORE-20
                                           ...RESPONDENTS

(BY SRI B.PRADEEP, ADVOCATE FOR R-2;
    V/O DATED 03.10.2018, NOTICE TO R-1 IS
    DISPENSED WITH)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 01.12.2016 PASSED IN MVC
NO.4813/2015 ON THE FILE OF III ADDITIONAL SENIOR CIVIL
JUDGE COURT OF SMALL CAUSES, BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.


IN MFA NO.1632/2017

BETWEEN:

SBI GENERAL INSURANCE COMPANY LTD.,
V.V.GIRI COLONY, SHESHADRIPURAM,
BENGALURU-20.

NOW REP. BY ITS MANAGER,
SBI GENERAL INSURANCE COMPANY LTD.,
NO.3/1, GROUND FLOOR, RUKMINI TOWERS,
PLATFORM ROAD, SHESHADRIPURAM,
BENGALURU-20.
                                          ...APPELLANT

(BY SRI PRADEEP B, ADVOCATE)
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                                       MFA No. 5572 of 2017
                                   C/W MFA No. 1632 of 2017



AND:

1. SMT. MUNIRATHNA
   @ MUNIRATHNAMMA,
   W/O LATE NANJAPPA,
   NOW AGED ABOUT 34 YEARS.

2. MASTER AJAY,
   S/O LATE NANJAPPA,
   NOW AGED ABOUT 12 YEARS.

3. KUM. MAMATHA,
   D/O LATE NANJAPPA,
   NOW AGED ABOUT 11 YEARS.

   SINCE THE APPELLANT Nos.2 & 3 ARE
   MINORS REP. BY MOTHER NATURAL GUARDIAN
   SMT. MUNIRATHNA @ MUNIRATHNAMMA.

   ALL ARE R/AT GIDDENAHALLI VILLAGE,
   KABADAGERE POST, DASANAPURA HOBLI,
   BANGALORE-NORTH.

4. NANDESH KUMAR B V,
   S/O VENKATESH .N,
   R/AT NO.801, 10TH MAIN,
   III STAGE, 4TH BLOCK,
   BASAVESHWARANAGAR,
   BANGALORE-79.
                                      ...RESPONDENTS
(BY SRI SHRIPAD V.SHASTRI, ADVOCATE FOR R-1 TO R-3;
    R-2 & R-3 ARE MINORS REP. BY R-1;
    R-4 SERVED)

    THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 01.12.2016 PASSED
IN MVC NO.4813/2015 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE, COURT OF SMALL
CAUSES, BANGALORE, AWARDING COMPENSATION OF
RS.16,26,000/- WITH INTEREST @ 9% P.A. FROM THE
DATE OF PETITION TILL THE DATE OF DEPOSIT.
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                                        MFA No. 5572 of 2017
                                    C/W MFA No. 1632 of 2017



    THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:      HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA


                        ORAL JUDGMENT

In this appeal, petitioners are seeking for

enhancement of compensation and the Insurance

Company is questioning the quantum of compensation,

rate of interest and contributory negligence on the part of

the deceased.

2. For the sake of convenience, the rank of the

parties shall be referred to as per their status before the

Tribunal.

3. Brief facts of the case are, on 23.09.2015 at about

8:00 am., the husband of petitioner No.1 and father of

petitioner Nos.2 and 3 by name Nanjappa, the deceased,

was riding the motor cycle bearing Reg.No.KA-02-EE-2332

from Giddenahalli towards Tavarekare, near Govindappa

Bricks Factory, from opposite direction, goods vehicle

bearing Reg.No.KA-02-AD-4420 hit against the motor

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cycle, due to which, the deceased fell down and sustained

injuries. Though, he was treated at Lakshmi Multi

Speciality Hospital, Bengaluru, but he was not revived and

he succumbed to death on 24.09.2015. The petitioners

claiming compensation as dependents had approached the

Tribunal for grant of compensation of Rs.40,00,000/-. The

claim was opposed by the respondents. After taking the

evidence and hearing both parties, the Tribunal awarded

compensation of Rs.16,26,000/- with interest at 9% per

annum. Questioning the same, both the petitioners as well

as Insurance Company are before this Court on various

grounds.

4. Heard the arguments of Shripad V.Shastri,

learned counsel for the petitioners and Sri B.Pradeep,

learned counsel for the Insurance Company.

5. It is contended by the learned counsel for the

petitioners that the accident is of the year 2015. The

petitioners have examined the employer of the deceased

as P.W.2, who has spoken to about the salary of

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Rs.18,000/- paid every month. The Tribunal has not

considered the same. The compensation awarded under

the conventional heads is on the lower side and sought for

enhancement of compensation.

6. Per contra, learned counsel for the Insurance

Company has contended that in the objection statement,

plea of contributory negligence has been raised. In the

course of cross-examination of first petitioner and her

witnesses, negligence has been attributed and

demonstrated. There is damage to the rear bumper of the

goods vehicle and front portion of the motorcycle and the

deceased sustained the head injury. The evidence though

suggests that the deceased hit on the hind portion of the

goods vehicle with complete negligence, but the Tribunal

erroneously ignored the said aspect. Interest awarded at

9% p.a., is on the higher side. The future prospects of

50% is taken instead of 40% and sought for modification

of the award.

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7. I have given my anxious consideration to the

arguments addressed by the learned counsel for both

parties and perused the records.

8. The material on record shows that on

23.09.2015 at 8:00 am., there was an accident involving

the motorcycle and goods vehicle. The place of accident is

a curved point and it is alleged in the prosecution papers

that it is a head on collusion. The spot mahazar and sketch

is drafted by the Investigating Officer without indicating

the directions. The IMV report points out that there is

damage on the rear bumper of the Tempo, whereas in the

mahazar, it is stated that front bumper portion of the

goods vehicle has been damaged. This aspect is silent in

the IMV report. The cross-examination did not point out

that the deceased was intervening to the way of the

goods vehicle and hit on the hind portion. Hence, the

evidence and understanding of both the parties is that the

accident was head on collusion. The mahazar clearly points

out that the accident took place in the middle of the road.

Though, no evidence is placed on behalf of the Insurance

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Company, cross-examination on behalf of the Insurance

Company and material on record demonstrated that the

deceased has also contributed to certain extent as it is a

head on collusion. Hence, it is appropriate to attribute

10% of contributory negligence on the deceased and 90%

against the goods vehicle.

9. P.W.2 is the employer of the deceased. Though,

he speaks of payment of Rs.18,000 of salary, he has not

demonstrated anything that he was doing any contract

work and earning such money to pay salary to the

deceased. Such an evidence of P.W.2 is not inspiring the

confidence and therefore the income of the deceased has

to be taken notionally. As the accident is of the year 2015,

Rs.9,000/- shall be the notional income, the deceased was

aged 36 years, hence, 40% has to be considered as future

prospects. Since there are 3 dependents, 1/3 has to be

deducted towards personal expenses. The applicable

multiplier will be "15". Hence, loss of dependency will be:

Rs.9,000/- + Rs.3,600/- (40%)=Rs12,600/- - Rs.4,200/-

(1/3rd)= Rs.8,400x12x15=Rs.15,12,200/-.

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10. The deceased was admitted to the hospital

where he was treated for two days. The medical bills

placed before the Tribunal constitute Rs.1,31,000/- and

the same was ordered to reimbursed to the petitioner.

Towards loss of consortium to the wife, love and affection

to the children Rs.40,000/- each, and Rs.15,000/- each

towards loss of estate and funeral expenses with 10%

appreciation as the accident is of nine years old in the light

of the law laid by the Hon'ble Supreme Court in the case

of National Insurance Company Limited Vs. Pranay

Sethi & Others reported in (2017) 16 SCC 680.

Compensation under the conventional heads comes to

Rs.1,65,000/-. Total compensation comes to

Rs.18,08,000/- as against Rs.16,26,000/- awarded by the

Tribunal, thereby, enhancement of Rs 1,82,000/-.

11. With regard to rate of interest is concerned, the

Tribunal has not offered any explanation and in the year

2015, no Bank will offer interest at the rate of 9%.

Interest at higher side is permissible only if there are

special reasons to be recorded. No such reasons are

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recorded by the Tribunal. Hence, the petitioners are

entitled to interest at the rate of 6% on the total

compensation.

12. In view of the above discussion, both the

appeals deserve consideration, in the result, the

following:

ORDER

(i) Both appeals are allowed in part;

(ii) The impugned judgment and award is modified;

(iii) The petitioners are entitled to enhanced

compensation of Rs.1,82,000/- with interest

at the rate of 6% per annum from the date of

petition till its realization;

(iv) The petitioners are entitled to 90% of the total

compensation with interest at 6% p.a., The

Insurance Company shall deposit 90% of the

compensation with interest within eight