IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO M.F.A.No.1042/2019 C/W M.F.A.Nos.1044/2019, 1045/2019,4339/2019, 5622/2019 & 5623/2019 (MV) IN MFA No.1042/2019:
BETWEEN:
THE MANAGER BHARATHI AXA GIC LTD., PRIDE QUADRA, NO.20, 2ND FLOOR, HEBBAL ROAD, BENGALURU-560 024, NOW REP. BY LEGAL MANAGER, BHARATHI AXA GIC LTD., HOSTO CENTRE, 1ST FLOOR, NO.43, MILLERS ROAD, VASANTH NAGAR, OPP. IMPERIAL HOTEL, BANGALORE-560 052. ..APPELLANT (BY SRI PRADEEP B., ADVOCATE) AND:
1 . NALLANAGAPPA S/O. LATE YARAPPA, AGED ABOUT 63 YEARS, R/O. HANUMANTHPURA POST, MIDIGESHI HOBLI, MADHUGIRI TALUK, TUMAKURU DISTRICT-579 072.
2 . SMT. RAQUEEB UNNISA SINCE DEAD BY HER LR ABDUL KHADAR, S/O. ABDUL KAREEM, S/O. LATE SMT. RAQUEEB UNNISA, R/O. ARIKERE VILLAGE, KASABA HOBLI, TUMAKURU DISTRICT-579 073. ..RESPONDENTS (BY SRI M V MAHESHWARAPPA, ADVOCATE FOR R-1) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 31.10.2018 PASSED IN MVC NO.807/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MACT XIII, MADHUGIRI, AWARDING COMPENSATION OF Rs.1,02,172/- WITH INTEREST AT 6% P.A. FROM THE DATE OF THE PETITION TILL THE DATE OF DEPOSIT OF COMPENSATION AMOUNT.
IN MFA No.1044/2019: BETWEEN:
1 . THE MANAGER BHARATHI AXA GIC LTD., PRIDE QUADRA NO.20 2ND FLOOR HEBBAL ROAD, BENGALURU-24, NOW REP. BY LEGAL MANAGER BHARATHI AZA GIC LTD HOSTO CENTRE 1ST FLOOR NO.43 MILLERS ROAD, VASANTH NAGAR OPP IMPERIAL HOTEL BANGALORE-560052 ..APPELLANT (BY SRI PRADEEP B., ADVOCATE) AND:
1 . GURUCHANNABASAVAIAH S/O LAKSHMINARASAPPA AGED ABOUT 63 YEARS, R/O THOTAMADAGALU VILLAGE, HANUMANTHAPURA POST MIDIGESHI HOBLI MADHUGIRI TALUK TUMAKURU DISTRICT-579072 2 . SMT RAQUEEB UNNISSA SINCE DEAD BY HER LR ABDUL KHADAR S/O ABDUL KAREEM S/O LATE SMT RAQUEEB UNNISA R/O ARIKERE VILLAGE KASABA HOBLI TUMAKURU DISTRICT-579073 ..RESPONDENTS (BY SRI M.V.MAHESHWARAPPA, ADVOCATE FOR R-1) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 31.10.2018 PASSED IN MVC NO.787/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MACT XIII, MADHUGIRI, AWARDING COMPENSATION OF Rs.2,44,380/- WITH INTEREST AT 6% P.A. FROM THE DATE OF THE PETITION TILL THE DATE OF DEPOSIT OF COMPENSATION AMOUNT.
IN MFA No.1045/2019:
BETWEEN:
THE MANAGER BHARATHI AXA GIC LTD., PRIDE QUADRA NO.20 2ND FLOOR HEBBAL ROAD, BENGALURU-24, NOW REP BY LEGAL MANAGER BHARATHI AXA GIC LTD., HOSTO CENTRE 1ST FLOOR NO.43, MILLERS ROAD, VASANTHI NAGAR OPP IMPERIAL HOTEL BANGALORE-560052 ..APPELLANT (BY SRI PRADEEP B., ADVOCATE) AND:
1 . SMT NAGARATHNAMMA W/O LATE CHANDRASHEKARAIAH AGED ABOUT 53 YEARS, R/AT HANUMANTHAPURA VILLAGE, MIDIGESHI HOBLI MADHUGIRI TALUK TUMAKURU DISTRICT 2 . BHUJANGAMURTHY S/O LATE CHANDRASHEKARAIAH AGED ABOUT 35 YEARS, R/AT HANUMANTHAPURA VILLAGE, MIDIGESHI HOBLI MADHUGIRI TALUK TUMAKURU DISTRICT 3 . DHANANJAYA S/O LATE CHANDRASHEKARAIAH AGED ABOUT 31 YEARS, R/AT HANUMANTHAPURA VILLAGE, MIDIGESHI HOBLI MADHUGIRI TALUK TUMAKURU DISTRICT 4 . SMT RAQUEEB UNNISSA SINCE DEAD BY HER LR ABDUL KHADAR S/O ABDUL KAREEM S/O LATE SMT RAQUEEB UNNISA R/O ARIKERE VILLAGE, KASABA HOBLI TUMAKURU DISTRICT ..RESPONDENTS (BY SRI M V MAHESHWARAPPA, ADVOCATE FOR R-1 TO R- 3) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 31.10.2018 PASSED IN MVC NO.786/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MACT XIII, MADHUGIRI, AWARDING COMPENSATION OF Rs.7,62,072/- WITH INTEREST AT 6% P.A. FROM THE DATE OF THE PETITION TILL THE DATE OF DEPOSIT OF COMPENSATION AMOUNT.
IN MFA No.4339/2019: BETWEEN:
1 . SMT. NAGARATHNAMMA W/O LATE CHANDRASHEKARAIAH, AGED ABOUT 54 YEARS RESIDING AT HANUMANTHAPURA VILLAGE, MIDIGESHI HOBLI, MADHUGIRI TALUK, TUMKUR DISTRICT-576201 2 . SRI BHUJANGAMURTHY, S/O LATE CHANDRASHEKARAIAH, AGED ABOUT 36 YEARS, RESIDING AT HANUMANTHAPURA VILLAGE, MIDIGESHI HOBLI, MADHUGIRI TALUK, TUMKUR DISTRICT-576201 3 . SRI DHANANJAYA S/O LATE CHANDRASHEKARAIAH, AGED ABOUT 32 YEARS, RESIDING AT HANUMANTHAPURA VILLAGE, MIDIGESHI HOBLI, MADHUGIRI TALUK, TUMKUR DISTRICT-576201 ..APPELLANTS (BY SRI M V MAHESWARAPPA, ADVOCATE) AND:
1. SMT. RAQUEEB UNNISA SINCE DEAD BY HER L.R. ABDUL KHADAR S/O ABDUL KAREEM, R/AT ARIKERE VILLAGE, KASABA HOBLI, TUMKURU DISTRICT-576201 2. THE BRANCH MANAGER THE BHARATHI AXE GENERAL INSURANCE CO. LTD., PRIDE QUADRA NO.20 2ND FLOOR, HEBBAL ROAD, BENGALURU-560 024 ..RESPONDENTS (BY SRI B PRADEEP, ADVOCATE FOR R-2) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 31.10.2018 PASSED IN MVC NO.786/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MACT XIII, MADHUGIRI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA No.5622/2019:
BETWEEN:
GURUCHANABASAVIAH S/O LAKSHMINARASAPPA AGED ABOUT 64 YEARS RESIDING AT THOTAMADAGALU VILLAGE, HANUMANTHAPURA POST MIDIGESHI HOBLI, MADHUGIRI TALUK, TUMKUR DISTRICT-576201 ..APPELLANT (BY SRI M.V.MAHESHWARAPPA, ADVOCATE) AND:
1. SMT. RAQUEEB UNNISA SINCE DEAD BY HER LR ABDUL KHADAR S/O ABDUL KAREEM R/AT: ARIKERE VILLAGE KASABA HOBLI, TUMKURU DISTRICT -576 201 2. THE BRANCH MANAGER THE BHARATHI AXE GENERAL INSURANCE CO. LTD., PRIDE QUADRA NO.20 2ND FLOOR, HEBBAL ROAD, BENGALURU-560 024. ..RESPONDENTS (BY SRI B.PRADEEP, ADVOCATE FOR R-2) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 31.10.2018 PASSED IN MVC NO.787/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MACT XIII, MADHUGIRI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA No.5623/2019:
BETWEEN:
NALLANAGAPPA S/O LATE YARAPPA AGED ABOUT 60 YEARS RESIDING AT HANUMANTHAPURA MIDIGESHI HOBLI, MADHUGIRI TALUK, TUMKUR DISTRICT-576201 ...APPELLANT (BY SRI M.V.MAHESHWARAPPA, ADVOCATE) AND:
1. SMT. RAQUEEB UNNISA SINCE DEAD BY HER LR ABDUL KHADAR S/O ABDUL KAREEM R/AT: ARIKERE VILLAGE KASABA HOBLI, TUMKURU DISTRICT -576 201 2. THE BRANCH MANAGER THE BHARATHI AXE GENERAL INSURANCE CO. LTD., PRIDE QUADRA NO.20 2ND FLOOR, HEBBAL ROAD, BENGALURU-560 024. ..RESPONDENTS (BY SRI B.PRADEEP, ADVOCATE FOR R-2) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 31.10.2018 PASSED IN MVC NO.807/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MACT XIII, MADHUGIRI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Since both the learned counsel for the parties are present, with their consent appeals are taken up for final disposal.
These are the appeals directed against the Judgment and award dated: 31.10.2018 passed in MVC Nos.786/2015, 787/2015 and 807/2015 on the file of the Additional Senior Civil Judge and MACT-XIII at Madhugiri.
2. MFA Nos.1042/2019, 1044/2019 and 1045/2019 are preferred by the insurance company. MFA Nos.4339/2019, 5622/2019 and 5623/2019 are preferred by the dependants and injured claimants respectively.
3. In order to avoid confusion and overlapping, parties are referred to as per their rankings before the Tribunal.
4. The details of the accident as could be seen from the Judgment are:
Claimants submitted that deceased Chandrashekaraiah and injured Guruchannabasavaiah and Nallanagappa are all farmers and after attending to their agricultural work on 02.03.2015 at about 9 a.m. when they were escorting the goods and proceeding in a goods tempo bearing registration No.KA-03-4944 at I.D.Halli Village on I.D.Halli-
Hindupur Road, Madhugiri Taluk, the driver of the said vehicle drove it in a rash and negligent manner. As a result vehicle capsized, rolled because of which Chandrashekaraiah sustained grievous head injuries and succumbed to the injuries on 25.04.2015 at home and others sustained injuries.
5. Claim petitions are filed in MVC Nos.786/2015, 787/2015 and 807/2015. Insofar as MVC No.786/2015 is by dependants relating to death of Chandrashekariah and other two claim petitions are for injuries sustained by Guruchannabasavaiah and Nallanagappa. There are six appeals for consideration.
6. The details of the appeals with reference to MVC cases are as under:
SL.
NO.
MFA NO. PREFERRED BY MVC NO. RESULT 1. 1042/2019 Insurance company 807/2015 Partly allowed 2. 1044/2019 Insurance company 3. 1045/2019 Insurance company 4. 4339/2019 Dependants of deceased Chandrashekaraiah 5. 5622/2019 injured Guruchannabasavaiah 6. 5623/2019 Injured Nallanagappa Rs.1,02,172/-
with interest @ 6% p.a.
787/2015 Partly allowed Rs.2,44,380/-
with interest @ 6% p.a.
786/2015 Partly allowed Rs.7,62,072/-
with interest @ 6% p.a.
786/2015 Partly allowed Rs.7,62,072/-
with interest @ 6% p.a.
787/2015 Partly allowed Rs.2,44,380/-
with interest @ 6% p.a.
807/2015 Partly allowed Rs.1,02,172/-
with interest @ 6% p.a.
evidence Exhibits P-1 to P-35. Oral evidence of RW-1 and documentary evidence Exhibits R-1 to R-3 on behalf of respondents. Compensation granted in each of the cases is according to the following break up: MVC No.786/2015:
MVC No.787/2015:
SL.NO. DESCRIPTION AMOUNT 1. Loss of future income on account of physical disability Rs. 72,000/-
2. Medical expenses Rs.1,20,380/-
3. Pain and sufferings Rs. 20,000/-
4. Food, diet, Nourishment and attendant charges 5. Loss of income during laid up period 6. Loss of amenities and enjoyment of life Rs. 10,000/- Rs. 12,000/- Rs. 10,000/-
Total Rs.2,44,380/-
MVC No.807/2015:
SL.NO. DESCRIPTION AMOUNT 1. Loss of amenities in life, happiness and frustration 2. Conveyance, attendance charges food and nourishment Rs. 5,000/-
Rs. 5,000/-
3. Pain and sufferings Rs. 10,000/-
4. Medical expenses Rs. 82,172/-
5. Total Rs.1,02,172/-
8. The learned counsel for the insurance company contends that the liability is saddled on the insurance company to pay compensation amount and it is not correct as there was breach of terms of the policy. Learned counsel would submit that when the accident happened the injured persons and deceased were traveling in the offending vehicle as unauthorized passengers. The offending vehicle was meant only for transporting goods. Thus there is material breach of the terms of the policy and also would submit that the compensation granted is unreasonably high.
9. Learned counsel Sri Pradeep in all the cases would submit that basically insurance company was not liable to pay compensation as there was serious breach of the policy terms. Further he emphasizes on the point that the number of persons who traveled in the offending vehicle are unauthorized passengers.
10. Per contra, learned counsel for claimants and dependants Sri M.V.Maheshwarappa would submit compensation is under assessed and requires to be enhanced. Learned counsel would submit that in case of death of Chandrashekaraiah, future prospect is not awarded and monthly income was under assessed.
11. Learned counsel Sri Maheshwarappa for the dependants in first appeal and claimants in rest of the appeals would submit that the learned Member erred in not considering compensation under the head future prospects and monthly income considered in all the cases are unreasonably on the lower side.
12. MVC 807/2015– injuries sustained by claimant – Nallanagappa are:
Head injury with multiple heamotomar, left temperer and right paratal region with thin extradernal heamotoma in left temporal region and secondly orbital injury with periostbital oedema.
13. MVC No.787/2015 – injuries sustained by claimant – Guruchannabasavaiah are:
Pelvic fracture, fracture of neck 5th metacarpal bone with extensor tendon injury on the right side and fracture of 3-6 ribs right side with fracture right clavicle with subluxation of left stervo clavicular joint, urethral injury.
14. Tribunal considered monthly income of the injured at Rs.12,000/- in MVC No.807/2015 and compensation of Rs.1,02,172/- is granted globally. I find the doctor is not examined and the learned Member has arrived at the compensation which is fair and just. Thus appeal filed by the insurance company as well as claimants are liable to be rejected.
15. Tribunal considered monthly income of the injured at Rs.6,000/- in MVC No.787/2015 and disability to the whole body is considered at 10%. Compensation granted under loss of future earning capacity is on the basis of 10% disability. However, learned Member has considered the multiplier `10’ considering age of claimant as 60 years it should have been considered multiplier `9’. Thus there shall be reduction in loss of future earning capacity:
6,000x12=72,000x9x10/100 =64,800/-
However compensation is not granted under the head `future medical expenses’. An amount of Rs.7,200/- may be considered as future medical expenses in which event compensation would be Rs.2,44,380/-. Thus, though heads considered may vary but compensation granted would remain the same which according to me is fair and just.
16. Next case is regarding death of Chandrashekaraiah, aged 55 years as on the date of accident and agriculturist and loss of dependency arrived at by considering the monthly income of deceased at Rs.6,000/-. 1/3rd is deducted towards personal and living expenses. However future prospects is not considered. Age of the deceased 55 years applicable multiplier is 11 and loss of dependency granted by the Tribunal is Rs.5,28,000/- and conventional heads Rs.70,000/-. In this case fair and just compensation invariably includes future prospects of 10%. Thus loss of dependency would be Rs.6,000+10% =600. Rs.6,600-1/3=2,200 Rs.6,600-2,200=4400x12x11 =Rs.5,80,800/-
Conventional heads Rs. 70,000/-
Rs.6,50,800/-
Medical expenses Rs.1,64,072/-
========= Total Rs.8,14,872/-
========= 17. In continuation of the objections raised by the insurance company I do not find material corroboration to hold and declare by this time that there was violation of terms of the policy.
In the result, MFA Nos.1042/2019, 1044/2019 and 1045/2019 are rejected. MFA Nos.5622/2019 and 5623/2019 are rejected. MFA No.4339/2019 filed by the claimants is partly allowed. Judgment and award dated 31.10.2018 passed in MVC No.786/2015 by the Additional Senior Civil Judge and MACT XIII, Madhugiri, is modified by granting compensation of Rs.8,14,872/- with interest @ 6% p.a. from the date of petition till the date of deposit.
Insurance company is directed to deposit the balance amount including enhanced compensation in MFA No.4339/2019 with interest @ 6% p.a. within 30 days from the date of receipt of certified copy of this order.
Office is directed to transmit the amount in deposit to the Tribunal.
Sd/- JUDGE SBN