IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL NO.3135/2016 (MV-D) BETWEEN:
BHARATHI AXA GIC LTD., PRIDE QUADRA, NO.30, 2ND FLOOR, HEBBAL ROAD, BENGALURU – 24 NOW REPRESENTED BY ITS LEGAL MANAGER, BHARATHI AXA GIC LTD., 1ST FLOOR, FERNS ICON, SURVEY NO.28, AKNE BALLET, DODDANEKUNDI, OUTER RING ROAD, BENGALURU – 560 037.
... APPELLANT (BY SRI B. PRADEEP, ADV.) AND:
1. CHAITRA B M, W/O LATE BHARAT CHAKRAVARTHI, @ BHARATH HOLLA, NOW AGED ABOUT 30 YEARS.
2. BILWAJ BHARATH HOLLA, S/O LATE BHARAT CHAKRAVARTHI, @ BHARATH HOLLA, NOW AGED ABOUT 6 YEARS 3 MONTHS, RESIDING AT NO.233, 3RD MAIN, 2ND CROSS, KENGUNTE, MALATHAHALLI, BENGALURU NORTH, BENGALURU-56.
2ND RESPONDENT IS SINCE MINOR REPRESENTED BY HIS MOTHER 1ST RESPONDENT AS NATURAL GUARDIAN, 3. VASUDEV HOLLA, S/O LATE P SUBRAMANY HOLLA, NOW AGED ABOUT 69 YEARS.
4. RANI BHARADWAJ HOLLA, W/O VASUDEV HOLLA, NOW AGED ABOUT 66 YEARS, R/AT NO.161, RAILWAY EXTENSION, KODAGEHALLI, MAGADI MAIN ROAD, BENGALURU – 91.
5. SRI O S GAGAN BABU, S/O LATE O N NATARAJAN, MAJOR IN AGE, R/AT NO. 7, R.C.COMPLEX, 2-6-261 S G MUTT ROAD, CHAMRAJ PET.
... RESPONDENTS (BY SRI GOPAL KRISHNA.N, ADV., FOR R-1 TO 4;
R-5 – VIDE ORDER DATED 03.10.2018 APPEAL AGAINST R-5 STANDS DISMISSED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 25-2-2016 PASSED IN MVC NO.6291 OF 2011 ON THE FILE OF THE 7TH ADDITIONAL JUDGE AND 32ND ACMM, COURT OF SMALL CAUSES, BENGALURU, AWARDING COMPENSATION OF RS.24,65,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION, THIS DAY, NATARAJAN, J., DELIVERED THE FOLLOWING:
J U D G M E N T Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. This appeal is preferred by the insurer by assailing the judgment and award dated 25.02.2016 passed in MVC No.6291/2011 by the Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru, SCCH-3 (hereinafter referred to as ‘Tribunal’).
3. We have heard the arguments of Sri B.Pradeep, learned counsel for the appellant and Sri Gopal Krishna N, learned counsel for respondent Nos.1 to 4.
4. For the sake of convenience, parties herein shall be referred to in terms of their status before the Tribunal.
5. The respondent-claimants have filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) claiming compensation of Rs.35,00,000/-, inter alia, contending that on 11.11.2010 at about 7.30 a.m., the husband of claimant No.1 namely Bharath Chakravarthi @ Bharath Holla was proceeding on his Pulsar Motorcycle bearing registration No.KA-41/Q-0747 at Kolar-Bengaluru NH-4, near Kendatti Dhaba, Kolar Taluk. At that time, a HP Gas Tanker Lorry bearing registration No.KA-01/D-4899 was standing in the middle of the said road without indicators or reflectors by violating the traffic rules. The road users could not see the lorry and because of that, Bharath Holla fell down by sustaining injury and he was shifted to the hospital. However, while undergoing treatment, he succumbed to the injuries.
6. The claimants have contended that the deceased was aged about 28 years and he was hale and healthy by working as an Area Sales Manager and he was earning Rs.18,000/- per month and due to the untimely death, the claimants lost the bread winner of the family and hence, prayed for allowing the petition.
7. In pursuance of the notice issued by the Tribunal, respondent No.1-owner of the offending vehicle did not appear and was placed ex parte.
8. Respondent No.2-insurance company appeared and filed statement of objections by denying rash and negligent driving on the part of the driver of the lorry and contended that the lorry was duly parked on the left side of the road by giving indicators and only with the view to claim compensation, a false complaint had been lodged by incorporating the number of the vehicle of the insured in collusion with the owner of the vehicle and thereby denied all other averments made in the claim petition as false. Hence, the insurer prayed for dismissing the claim petition.
9. Based upon the rival pleadings, the Tribunal has framed the following issues:
i) Whether the petitioners prove that Bharath Chakravarthi @ Bharath Holla succumbed in a Road Traffic Accident that occurred on 11.11.2010, at about 7.30 a.m., on Kolar-Bengaluru NH-4 road, near Kendatti Dhaba, Kolar Taluk and District which was due to negligent parking of the Lorry bearing Reg.No.KA-01-D-4899?
ii) Whether the petitioners are entitled for compensation? If so, how much and from whom?
iii) What order?
10. To substantiate the contention of the claimant, the first claimant examined herself as PW.1 and also examined PW.2 who is the colleague of the deceased and PW.3- Senior Manager of the deceased and got marked 16 documents as per Exs.P1 to 16 and on behalf of respondent No.2, the legal executive of the insurer examined as RW.1. The insurer also got marked two documents as per Exs.R1 and R2. After considering the evidence on record, the Tribunal answered issue No.1 in the affirmative, issue No.2 partly in the affirmative and awarded compensation of Rs.24,65,000/- as under:
Heads Compensation awarded by the Tribunal Towards loss of dependency Rs.22,95,000/- Towards loss of consortium Rs.1,00,000/-
Towards funeral expenses Rs.30,000/-
Towards loss of love and affection Rs.40,000/-
Total Rs.24,65,000/-
Assailing the judgment and award passed by the Tribunal, the insurance company has preferred this appeal both on liability and also for reduction of the quantum of compensation.
11. Learned counsel for the appellant-insurer contended that the accident in question had occurred due to the rash and negligent riding of the deceased himself. The lorry was parked on the left side of the road and the deceased rode the motorcycle in a high speed and dashed to the stationery lorry. Therefore, there was no negligence on the part of the driver of the lorry, but contrary to the documentary evidence on record, the Tribunal erroneously held that the accident had occurred due to the rash and negligent act of the driver of the lorry which is not correct. Therefore, learned counsel contended that there is no negligence on the part of the driver of the lorry. Therefore, the insurance company is not liable to pay any compensation to the complainant.
12. Learned counsel for the insurer further contended that there is no authenticated document produced by the claimant to prove the income of the deceased. But the Tribunal has considered Rs.10,000/- per month which is exorbitant and further the Tribunal committed error in calculating 50% of the income towards future prospects, which is against the principles laid down by the Hon’ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others reported in (2017)16 SCC 680, (Pranay Sethi). The Tribunal also awarded exorbitant amount towards loss of consortium, funeral expenses and also towards loss of love and affection. Therefore, he prayed for reduction of quantum of compensation.
13. Per contra, the learned counsel for the respondents supported the judgment and award passed by the Tribunal and contended that there is no negligence on the part of the deceased. The Tribunal after considering the evidence on record, rightly fixed the negligence on the part of the driver of the lorry and fastened the liability on the respondents. Therefore, it is contended that the judgment and award calls for no interference from this Court.
14. Learned counsel for the claimants-respondents also contended that the claimants have examined the colleague and Senior Manager of the firm, in which deceased was working to prove the income of the deceased. Even though the deceased was getting a salary of Rs.18,000/- per month, the Tribunal has considered only Rs.10,000/- per month and also rightly considered 15% of the income towards future prospects. There are four claimants in this case. Therefore, they are entitled for compensation towards loss of spousal consortium, loss of filial consortium and loss of parental consortium. Claimant No.1 being the widow of the deceased is entitled for Rs.40,000/-, claimant Nos.2 to 4 are entitled for Rs.30,000/- each, which comes to Rs.1,30,000/-. The same was rightly awarded by the Tribunal. Therefore, he has contended that there is no reason to reduce the quantum of compensation. Hence, he prayed for dismissing the appeal.
15. Having heard the learned counsel for both the parties and on perusal of records, the points that arise for our consideration are:
i) Whether the judgment and award passed by the Tribunal by fixing the liability on the respondent calls for interference by this Court?
ii) Whether the quantum of compensation awarded by the Tribunal is excessive and exorbitant which requires reduction?
iii) What order?
16. The case of the respondents-claimants is that on 11.11.2010 at about 7.30 a.m., when Bharath Chakravarthi @ Bharath Holla was proceeding on his Pulsar Motorcycle bearing registration No.KA-41/Q-0747 on Kolar-Bengaluru NH-4, near Kendatti Dhaba, Kolar Taluk, a HP Gas Tanker Lorry bearing registration No.KA-01/D- 4899 was standing in the middle of the said road without indicators or reflectors, by violating the traffic rules. The road users could not discern that the lorry was stationery and because of that reason, the deceased dashed to the lorry and sustained injuries. He was taken to the hospital and while undergoing treatment, he succumbed to the injuries.
17. To substantiate their contentions, claimant No.1 examined herself as PW.1 and also got marked Ex.P1-Copy of FIR, Ex.P2-Copy of the statement, Ex.P3-Copy of the charge-sheet, Ex.P4-Copy of spot mahazar, Ex.P5-Copy of IMV Report, Ex.P6-Copy of sketch, Ex.P7-Copy of Inquest Mahazar, Ex.P8-Copy of PM Report. These documents corroborate with the evidence of PW.1 in respect of the accident in question.
18. The contention of the respondent-insurer is that the vehicle was parked on the left side of the road by showing indicators/reflectors, but the deceased himself rode the motorcycle in a rash and negligent manner and dashed to the stationery lorry due to which he sustained injuries and died. Therefore, it is contended that there is no negligence on the part of the driver of the lorry.
19. However, respondent No.1, owner of the lorry was placed ex parte and insurer had not examined the driver of the lorry before the Tribunal to prove that the vehicle was not parked on the middle of the road and it was parked on the left side of the road as contended by the insurer and nothing was brought on record by the respondent in the cross-examination in respect of negligence on the part of the driver of the lorry. The Tribunal after considering oral and documentary evidence on record, answered issue No.1 in favour of the claimants and as against the driver of the lorry holding the negligence on the part of the driver of the lorry. Therefore, the findings of the Tribunal do not call for any interference by this Court. Therefore, we answer point No.1 as against the appellant-insurer and in favour of respondent-claimants.
20. The next point that arises is in respect of quantum of compensation awarded by the Tribunal and whether it is excessive and exorbitant as contended by the appellant.
21. The claimants contended that the deceased was earning Rs.18,000/- per month working in the Prakruthi Remedies Pvt. Ltd., Bengaluru and in support of their case, they have produced Ex.P13-salary slips and also examined PW.3-Sales Manager. As per Ex.P13, the salary of the deceased was Rs.17,760/-. But, the Tribunal has not accepted the said salary and assessed the income of the deceased for Rs.10,000/- per month. We are of the view that the income of the deceased was assessed by the Tribunal at Rs.10,000/- per month is sufficient and correct. However, the Tribunal considered loss of income towards future prospects at 50% of the actual income which is not correct. As per the dictum of the Hon’ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others reported in (2017)16 SCC 680 (Pranay Sethi), 40% of the income should be considered towards loss of future prospects. If Rs.10,000 + 40% of Rs.10,000/-, Rs.4,000/- is calculated, it comes to Rs.14,000/-. Though the claimants are four in numbers, claimant No.1 is the widow of the deceased, claimant No.2 is the minor child, claimant No.3 is said to be a Government employee and getting pension and claimant No.4 is the mother. Therefore, the father of the deceased cannot be considered as a dependent of the deceased. If claimant No.3 is excluded, the only dependents are claimant Nos.1, 2 and 4. Therefore, as per the judgment of the Hon’ble Apex Court in the case of Sarla Verma and Others vs. Delhi Transport Corporation Limited and Another reported in (2009) 6 SCC 121 [Sarla Verma], 1/3rd of the income shall be deducted towards personal expenditure of the deceased.
If Rs.4,667/- being 1/3rd of the income is deducted, it comes to Rs.9,333/-. The same is multiplied x 12 x 17 (appropriate multiplier) i.e., (Rs.9,333/- x 12 x 17) it comes to Rs.19,03,932/-. The same is rounded off to Rs.19,04,000/-. This would be the loss of dependency assessed, as against Rs.22,95,000/- awarded by the Tribunal.
22. As per the dictum of the Hon’ble Apex Court in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram and Others reported in 2018 ACJ 2782 (SC), claimant No.1 is entitled to Rs.40,000/- towards loss of spousal consortium, claimant No.2 is entitled to Rs.30,000/- towards loss of parental consortium, claimant Nos.3 and 4 are entitled to Rs.30,000/- each towards loss of filial consortium. Further, the claimants are entitled to Rs.15,000/- towards loss of estate and another Rs.15,000/- towards funeral and transportation expenditures.
23. In the result, the re-assessed compensation is as under:
expenses and transportation Total Rs.20,64,000/-
The same shall carry interest at the rate of 6% per annum from the date of claim petition till realisation.
The directions regarding the apportionment and deposit as issued by the Tribunal is not interfered with in this appeal.
In the circumstances, the appeal filed by the Insurance Company is allowed in-part. The amount in deposit be transmitted to the Tribunal.
The appellant-insurer shall deposit the re-assessed compensation with 6% interest from the date of the claim petition till deposit within a period of four weeks from the date of receipt of a copy of certified copy of this judgment, if not deposited.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE GBB