IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE N.K.SUDHINDRARAO MISCELLANEOUS FIRST APPEAL No.4601/2011 (MV) C/W.
MFA.CROB.No.21/2013 IN MFA NO.4601 OF 2011:
BETWEEN BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., 105-A/107-B, CEARS PLAZA, I FLOOR, NO.136 RESIDENCY ROAD, BENGALURU-25 NOW SITUATED AT BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., # 31, GROUND FLOOR, TBR TOWER I CROSS, NEW MISSION ROAD, ADJACENT TO JAIN COLLEGE, BENGALURU-560 027 ... APPELLANT (By Sri M.V.SHIVAKUMAR, ADVOCATE FOR Sri A.N.KRISHNA SWAMY, ADVOCATE) AND 1. SMT LAKSHMAMMA W/O ANNAIAH @ NANJAPPA NOW AGED ABOUT 33 YEARS 2. MOHAN S/O ANNAIAH @ NANJAPPA NOW AGED ABOUT 16 YEARS 3. LAVANYA D/O ANNAIAH @ NANJAPPA NOW AGED ABOUT 13 YEARS 4. NAVEENA S/O ANNAIAH @ NANJAPPA NOW AGED ABOUT 11 YEARS 5. MARAPPA S/O NANJAPPA NOW AGED ABOUT 67 YEARS 6. SMT NANJAMMA W/O MARAPPA NOW AGED ABOUT 62 YEARS RESPONDENTS NO.2 TO 4 HEREIN SINCE MINORS, REPRESENTED BY THEIR NATURAL GUARDIAN/MOTHER THE 1ST RESPONDENT HEREIN ALL R/AT. SAVARA BATTA VILLAGE DENKANIKOTE TALUK, PADAGINALA PANCHAYATH AND POST KRISHNAGIRI DISTRICT, TAMIL NADU 7. ABDUL SALAM MAJOR R/AT SIDDAPPA LAYOUT OPP: VYSYA BANK HOSUR ROAD BOMMANAHALLI BENGALURU-500 068 ... RESPONDENTS (By Sri.B.P.NAGARAJU, ADVOCATE FOR Sri K.R.MURALI KRISHNA, ADVOCATE FOR R1-R6 R7 - SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:21.01.2011 PASSED IN MVC NO.4413/2007 ON THE FILE OF 14TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BANGALORE CITY, AWARDING A COMPENSATION OF Rs.4,57,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
IN MFA.CROB.NO.21 OF 2013:
1. SMT LAKSHMAMMA W/O LATE ANNAIAH AGED ABOUT 35 YEARS 2. MASTER. MOHAN S/O LATE ANNAIAH AGED ABOUT 17 YEARS 3. KUM. LAVANYA D/O LATE ANNAIAH AGED ABOUT 14 YEARS 4. MASTER. NAVEENA S/O LATE ANNAIAH AGED ABOUT 12 YEARS 5. MARAPPA S/O LATE NANJAPPA AGED ABOUT 69 YEARS 6. SMT NANJAMMA W/O MARAPPA AGED ABOUT 64 YEARS CROSS OBJECTORS NO.2 TO 4 SINCE MINORS, REPRESENTED BY FIRST CROSS OBJECTOR, THE MOTHER AND NATURAL GUARDIAN ALL ARE R/AT. SAVARA BATTA VILLAGE DENKANIKOTE TALUK, PADAGINALA PANCHAYATH AND POST KRISHNAGIRI DISTRICT, TAMIL NADU (NOW AT BENGALURU) … CROSS OBJECTORS (By Sri.B.P.NAGARAJU, ADVOCATE FOR Sri K.R.MURALI KRISHNA, ADVOCATE) AND 1. Sri ABDUL SALAM R/AT SIDDAPPA LAYOUT OPP. VYSYA BANK HOSUR ROAD BOMMANAHALLI BENGALURU-500 068 2. M/s. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., #105-A/107-B, CEARS PLAZA I FLOOR, NO.136 RESIDENCY ROAD BENGALURU-560 025 ... RESPONDENTS (By Sri M.V.SHIVAKUMAR, ADVOCATE FOR Sri A.N.KRISHNA SWAMY, ADVOCATE FOR R2 R1 - SERVED) THIS MFA CROB IN MFA NO.4601/2011 FILED U/O 41, RULE 22 OF CPC, R/W 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:21.01.2011 PASSED IN MVC NO.4413/2007 ON THE FILE OF 14TH ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BENGALURU CITY, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFA & MFA.CROB COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT MFA No.4601/2011 is preferred by the Insurance Company-M/s. Bajaj Allianz General insurance Company Limited and MFA.CROB.No.21/2013 is preferred by the claimants seeking enhancement of compensation.
2. The Appeal and Cross Objections are directed against the judgment and award dated 21.01.2011 passed in MVC No.4413/2007 on the file of Motor Accidents Claims Tribunal, Court of Small Causes, Bengaluru City, (SCCH-10), (hereinafter referred to as ‘The Tribunal’, for short), wherein the claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘The Act’, for short) came to be allowed in part and the learned Member had granted compensation of Rs.4,57,000/- together with interest at the rate of 6% p.a. from the date of petition till the date of depositing the amount to the dependants of the deceased Annaiah @ Nanjappa.
3. In order to avoid over-lapping and confusion, the parties are referred as Insurance Company and Claimants.
4. The facts leading to initiating proceeding before the Tribunal is that, on 05.03.2007, at about 9-30 to 10-30 p.m, at Hiriyur Taluk, Hosur Village inside U.E.M.S.R.J.V. Plant, which is in the limits of Hiriyur Police Station, the accident occurred, wherein, when one Annaiah @ Nanjappa had gone to Hiriyur along with the crane bearing Regn.No.KA-01-MB-6356 at U.E.M.S.R.J.V. Plant, he was standing behind the said crane, the driver of the said crane drove the same in reverse direction in a rash and negligent manner, dashed against Annaiah. Because of accident, the latter sustained serious injury and succumbed to death.
5. It is stated that Annaiah was hale and healthy and working as a Cleaner/Loader/Helper. The claimants are the wife, aged 29 years, three minor children viz., Master Mohan, 12 years, Kum. Lavanya, 9 years and Master Naveena, 7 years, Parents Marappa, 63 years and Nanjamma, 58 years. Thus, the bunch of family members consisting of widow, three minor children including two sons and a daughter and parents being the claimants, have claimed compensation of Rs.10 Lakhs.
6. The learned Member was accommodated with the oral evidence of PW.1-Smt.Lakshmamma and RW.1-A.Ravichandran, RW.2-Sadiq and RW.3- T.Rangappa. Documentary evidence Exs.P1 to P8 consisting of C.C.FIR, Complaint, Chargesheet, Spot Mahazar, P.M.Report, MVA Report, Death Certificate and Election ID card and Exs.R1 to R12 consisting of Policy copy, DL, Complaint, Further Statement, FIR, Mahazar, Inquest Mahazar, PM Report, MVI Report, Copy of letter, Postal acknowledgement and endorsement with regard to DL.
7. The learned Member has considered the monthly income at Rs.3,000/- per month. The ‘loss of dependency’ is calculated with the notional monthly income of Rs.3,000/- deducting 1/4th for his personal and living expenses by applying the multiplier of 16.
8. Learned counsel for the appellant-Insurance Company would submit that the Tribunal was mislead, fraud was played and a wrong claim was made. The appellant has claimed that it was not an accident. On the other hand, it is a murder. It is further asserted that the hands of the dead body of Annaiah was tied backwards. Thus, the Insurance Company has reason to believe even the provision of law were invoked to suit the convenience of the claimants. The Tribunal erred in not considering that the vehicle was shown as unknown vehicle-Lorry in the FIR and the claim against owner and Insurer of the crane would not be maintainable in the eye of law. Another pitch raised by the Insurance Company that a plot was hatched by playing fraud and converted the case to be one under the Motor Vehicles Act just for the purpose of compensation. It is also claimed the entire story of the claimants cannot be accepted. Appellant has reason to believe that Annaiah was done to death and it was a murder. The ground No.3 in the appeal memo is worth to be mentioned as under:
“ 3. The appellant also has a reason to believe that the hands of Annaiah were tied backwards, thereafter he was thrashed and he suffered fatal injuries owing to thrashing, thereafter he must have been thrown on the road where a lorry has killed him. Undoubtedly, the driver of crane has not used the vehicle in a reverse direction to cause injury x x x.”
9. Learned counsel for the claimants and also the cross objectors refuting the objection raised by the learned counsel for the Insurance Company, submits the death of Annaiah has landed the entire family in dire state and the Insurance Company is coming in the way of the right of claimants to claim compensation in a Road Traffic Accident, wherein, the offending vehicle was validly insured.
10. One of the grounds raised and submitted before the Court by the Insurance Company is that, there was no schedule of work to the Crane at that point. It is necessary to mention here that, no time schedule or log sheet is produced by the Insurance Company regarding its competency to assert such defence. It relies on the evidence of RW.3-Rangappa and contends that the entire evidence of Rangappa should have been solely believed to dislodge the case of the claimants. Rangappa is the PSI, who has registered the criminal case for the offence punishable under Section 174 of Cr.P.C. He visited the hospital and conducted the Inquest Mahazar; also recovered the offending vehicle and lodged the FIR. For a moment, it is necessary to go though Inquest Mahazar-Ex.R7. It was contended, while addressing the argument that the hands of dead body was tied backside and was done to death.
11. The objects that were found i.e., waste thread white and brown checks full shirt, banian with sleeves, dark colour pant and a brown colour underwear. It is not known from what quarter, the information was obtained by the Insurance Company that the hands of Annaiah was tied backwards. According to the Insurance Company, it was a murder.
12. It is necessary to mention even a murder of a person is accident for him because he will be knowing that murder will not happen at particular time and particular place, so that, he places the body for getting murdered.
13. An accident is untoward and unexpected incident. There are no designs for it.
14. In this connection, the orders passed in W.P.Nos.18051-52/2010 (GM-AC) was made available for reading. This is the writ petitions filed by M/s. Bajaj Allianz General Insurance Company Limited against the claimants. The said writ petitions are not regarding the contentions taken by way of defence and on the other hand, it seeks quashing of Notification No.ADMI/141/2010 issued by Chief Judge, Court of Small Causes, Bengaluru, to restore the file and permission to file the affidavit and the matter came to be disposed of on 17.06.2010. Thus, it has got nothing to do with the contention of murder as claimed by the Insurance Company.
15. It is necessary to place on record; there is a classification between the litigant as individual and institution. As a matter to be raised as a defence first the litigant must believe what he asserts to be true and then it as a claim or contention and not making mechanical and irresponsible claim for the sake of avoiding the liability to pay the compensation, without producing a single paper, the Insurance Company contends that the death of Annaiah is a murder and not an accident, wherein, neither the Police nor the Complainant not even the Insurance Company has made complaint and pursued the matter in that direction. It appears that it is an allegation made knowing that there are no reasons to believed it be true.
16. Thus, the incident definitely covered under the provisions of Section 147 of the Act. Further, it is stated that the accident did not occur at public place and the claimants/dependants had no provision to claim compensation under Section 147 of the Act. The term “public place” is defined under Section 2(34) of the Act and it is as under:
“2(34) “public place” means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage;”
17. I can only say this is another defence without there being any substance in it. Claimant was working as Cleaner/Loader/Helper and he was earning an income of Rs.200/- per day. Where as the Tribunal has considered at Rs.3,000/- per month, which comes up to Rs.100/- per day. The date of accident is 05.03.2007. Deceased - Annaiah was aged 32 years. Though, he never had fixed job, getting regular salary reckoning Rs.100/- per day is unreasonable and on the lower side. A minimum of Rs.120/- ought to have been considered i.e., not done by the Tribunal, which requires to be enhanced. At the same time, the question of future prospect in this case may not be par with any salaried employee, 40% should have been added as ‘future prospects’ which comes to Rs.7,25,760/-, the calculation of which is [120x30=3600+40%=5040x1/4=1260=3780x12x16] and Rs.70,000/- under other conventional heads.
18. The break-up of fair and just compensation is as under:
19. Learned Member though was right in coming to the conclusion of allowing the claim petition in part, but erred seriously in under assessing the quantum of compensation.
20. Thus, the claimants are entitled for the enhancement of compensation for a sum of Rs.3,38,760/- with interest at the rate of 6% p.a. Accordingly, I pass the following:
ORDER (i) MFA No.4601/2011 filed by the Insurance Company-M/s. Bajaj Allianz General insurance Company Limited is devoid of merits and it is dismissed.
(ii) MFA.CROB.No.21/2013 filed by the claimants is allowed in part.
(iii) Insurance Company is hereby directed to deposit the compensation amount, including the enhanced compensation with interest at 6% p.a. within four weeks from the date of receipt of a copy of this Judgment.
(iv) The Registry is directed to return the Lower Court records to the Tribunal.
(v) The amount in deposit with this Court is directed to be transferred to the Tribunal, forthwith.
cp* Sd/- JUDGE