IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.1391/2019 C/W M.F.A.Nos.2980/2019, 1950/2019, AND 1951/2019 (MV) IN MFA No.1391/2019: BETWEEN:
1 . SMT. BHAVYA W/O LATE RAMESH G H AGED ABOUT 31 YEARS 2 . KUM. AKASH S/O LATE RAMESH G H AGED ABOUT 13 YEARS.
3 . KUM. YASHWANTH S/O LATE RAMESH G H AGED ABOUT 10 YEARS.
4 . SRI HANUMANTHAIAH S/O LATE MAREGOWDA AGED ABOUT 67 YEARS, 5 . SMT. KENCHAMMA S/O HANUMANTHAIAH AGED ABOUT 62 YEARS.
ALL ARE R/AT: GADASAHALLI VILLAGE KASABA HOBLI KANAKAPURA TALUK RAMANAGARA DIST.-562 117.
(APPELLANTS No.2 AND 3 ARE MINORS AND HENCE REP. BY THEIR MOTHER AND NATURAL GUARDIAN APPELLANT No.1).
...APPELLANTS (BY SRI PRAKASH M H, ADVOCATE) AND:
1. NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE AT No.9/2, MAHALAKSHMI CHAMBERS M .G. ROAD, BENGALURU-560 001. REP. BY ITS MANAGER.
2. SRI MAHESH S/O NAGARAJU MAJOR, R/AT:NIDAVANDA VILLAGE SOMPURA HOBLI NELAMANGALA TALUK BENGALURU RURAL DISTRICT – 560 062.
…RESPONDENTS (BY SRI C R RAVISHANKAR, ADVOCATE FOR R-1) THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.11.2018, PASSED IN MVC No.940/2016, ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE & XXXIV ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA No.2980/2019:
BETWEEN:
SMT. KEMPAMMA W/O SIDDALINGAIAH @ SIDDALINGEGOWDA @ THAMMAYANNA AGED ABOUT 53 YEARS R/AT: GADASAHALLI VILLAGE KASABA HOBLI KANAKAPURA TALUK RAMANAGARA DISTRICT-586 112.
(BY SRI PRAKASH M H, ADVOCATE) AND:
1 . NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE AT No.9/2, MAHALAKSHMI CHAMBERS M G ROAD, BENGALURU-560 001.
REP. BY ITS MANAGER.
2 . SRI MAHESH S/O NAGARAJU MAJOR R/AT: NIDAVANDA VILLAGE SOMPURA HOBLI NELAMANGALA TALUK BENGALURU RURAL DISTRICT-560 062.
...APPELLANT …RESPONDENTS (BY SRI C R RAVISHANKAR, ADVOCATE) THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.11.2018, PASSED IN MVC No.941/2016, ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE & XXXIV ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU,(SCCH-7), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA No.1950/2019:
BETWEEN:
THE NEW INDIA ASSURANCE CO., LTD., MOTOR THIRD PARTY CLAIMS HUB MAHALAKSHMI CHAMBERS, No.9, 2ND FLOOR, MAHATMA GANDHI ROAD, BANGALORE-560 001.
REPRESENTED BY ITS MANAGER. ...APPELLANT (BY SRI RAVISHANKAR C R, ADVOCATE) AND:
1 . SRI SIDDALINGAIAH @ SIDDALINGEGOWDA @ THAMMAYANNA AGED ABOUT 61 YEARS S/O LATE DEVEGOWDA 2 . SMT. KEMPAMMA AGED ABOUT 53 YEARS W/O SRI SIDDALINGAIAH @ SIDDALINGEGOWDA @ THAMMAYANNA BOTH ARE RESIDING AT GADASIHALLI VILLAGE KASABA HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT.
3 . SRI MAHESH AGED MAJOR, S/O SRI NAGARAJU R/AT NIDAVANDA VILLAGE SOMPURA HOBLI NELAMANGALA TALUK BANGALORE RURAL DISTRICT. …RESPONDENTS (BY SRI PRAKASH M H, ADVOCATE) THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.11.2018 PASSED IN MVC No.941/2016 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES, XXXIV ACMM, COURT OF SMALL CAUSES, MEMBER AND ADDITIONAL MACT, MACT-7, BENGALURU, AWARDING COMPENSATION OF Rs.13,15,200/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALISATION OF ENTIRE.
IN MFA No.1951/2019:
BETWEEN:
THE NEW INDIA ASSURANCE CO., LTD., MOTOR THIRD PARTY CLAIMS HUB, MAHALAKSHMI CHAMBERS, No.9, 2ND FLOOR, MAHATMA GANDHI ROAD, BANGALORE-560 001.
REPRESENTED BY ITS MANAGER.
...APPELLANT (BY SRI RAVISHANKAR C R, ADVOCATE) AND:
1 . SMT. BHAVYA AGED ABOUT 32 YEARS W/O LATE RAMESH G H 2 . CHI AKASH AGED ABOUT 14 YEARS S/O LATE RAMESH G H 3 . CHI YASHWANTH AGED ABOUT 11 YEARS S/O LATE RAMESH G H 4 . SRI HANUMANTHAIAH AGED ABOUT 68 YEARS S/O LATE MAREGOWDA 5 . SMT. KENCHAMMA AGED ABOUT 63 YEARS S/O SRI HANUMANTHAIAH THE RESPONDENTS No.2 & 3 ARE MINORS, REPRESENTED BY THEIR MOTHER & NATURAL GUARDIAN SMT. BHAVYA ALL ARE R/AT GADASIHALLI VILLAGE KASABA HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT.
6 . SRI MAHESH, AGED MAJOR S/O SRI NAGARAJU R/AT NIDAVANDA VILLAGE SOMPURA HOBLI NELAMANGALA TALUK BANGALORE RURAL DISTRICT.
…RESPONDENTS (BY SRI PRAKASH M H, ADVOCATE FOR R-1 R-2 & R-3 MINORS REPRESENTED BY R-1 R-5 SERVED – UNREPRESENTED) THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.11.2018 PASSED IN MVC No.940/2016 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE AND XXXIV ACMM, ADDITIONAL MACT, COURT OF SMALL CAUSES, MEMBER MACT-7, BENGALURU(SCCH-7) AWARDING COMPENSATION OF Rs.29,05,000/- WITH FUTURE INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL REALISATION OF ENTIRE AMOUNT.
THESE MFAs COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though, the matters are listed for admission, with the consent of learned counsel for the parties, the same are taken up for final disposal.
2. These four appeals are directed against the judgment and award dated 05-11-2018 passed in MVC Nos.940/2016 and 941/2016 by the learned IX Additional Small Causes Judge and XXXIV ACMM, Court of Small Causes and Member, MACT-7, Bangalore (SCCH-7), wherein, the claim petitions filed by dependants of deceased Ramesh G.H. and parents/ dependants of deceased Devegowda came to be allowed in part.
3. Since both the claim petitions came up before the tribunal in respect of same road traffic accident, both the petitions were disposed of by the learned Member through a common judgment.
4. The connection between cases are stated as under:
Sl.No. MFA No. and filed by whom 1. 1391/2019 dependants of deceased Ramesh G.H.
MVC Number Date of disposal and result 940/2016 05-11-2018 Allowed in part 2. 2980/2019 mother of deceased Devegowda 3. 1950/2019 Insurance Company 941/2016 05-11-2018 Allowed in part 941/2016 05-11-2018 Allowed in part 4. 1951/2019 Insurance Company 940/2016 05-11-2018 Allowed in part 5. In order to avoid confusion and overlapping, the parties herein are referred to in accordance with their rankings held by them before the Tribunal.
6. The details of the accident that led to initiating the claim petitions are :
On 26.1.2016 at about 10.10 p.m. Ramesh G.H. was riding the motor cycle bearing Registration No. KA.42.U.9190 from Kanakapura towards Gadasahalli village side on Kanakapura-Sathanoor Main Road and when they came near Narayanappanakere, N.H.209 road, the driver of Tata Sumo bearing Registration No.KA.01.B.7078 drove the same in a rash and negligent manner and dashed against the motor cycle in which Ramesh G.H. was proceeding and caused accident. Due to which, Ramesh G.H. the rider of motor cycle and Devegowda, pillion rider sustained severe head injuries and fractures all over the body and succumbed to them on the spot. It is stated that the claimants in both the petitions conducted funeral and obsequies ceremonies by spending Rs.3,00,000/-.
MVC No.940/2016 is pertaining to the death of Ramesh G.H. rider of the motor cycle and MVC No.941/2016 is pertaining to death of Devegowda, pillion rider.
7. In MVC No.940/2016, it is stated that prior to the accident deceased Ramesh G.H was hale and healthy aged about 38 years as on the date of accident and was earning Rs.60,000/- per month as business Partner in VR Logistic Srikantapura (Anchepalya), Nagasandra Post, Tumkur. The petitioners are the wife, minor children and parents of the deceased were fully dependent on his income and lost his love and affection.
8. In MVC No.941/2016, it is stated that prior to the accident deceased Devegowda was hale and healthy aged about 28 years as on the date of accident and was earning Rs.30,000/- per month by working as driver cum owner of auto bearing Reg.No.KA.42.5899 at Kanakapura town. The petitioners are the parents of the deceased Devegowda were fully dependent on his income and lost his love and affection.
9. Before the Tribunal owner and Insurance company of the vehicle Tata Sumo bearing Reg.No.KA.01.B.7078 resisted the claim petitions by filing their objections.
10. Learned member on the basis of the oral evidence of PWs 1 to 4 and documentary evidence of Exs.P1 to P 30 on behalf of petitioners and oral evidence of RW1 to 3 and documentary evidence of Ex.R1 to R5on behalf of respondents, allowed the claim petitions in part and granted compensation of Rs.29,05,000/- in MVC No.940/2016 and Rs.13,15,200/- in MVC No.941/2016 together with interest at 6% per annum from the date of petition till realization fixing 10% contributory negligence and directed the Insurance company to deposit 90% of the same.
11. The claimants in both the petitions have preferred appeals in MFA Nos.1391/2019(MVC No.940/2016) and MFA No.2980/2019(MVC No.941/2016) challenging the quantum and seeking enhancement of compensation. The insurance company preferred MFA Nos. 1951/2019 (MVC No.940/2016) and 1950/2019 (MVC No.941/2016) seeking cancellation of judgment and award. Thus, court is disposing of these four appeals.
12. Learned counsel Sri. M.H.Prakash appearing for claimants would submit that, in MVC No.940/2016 deceased Ramesh G.H. was the rider of motor cycle, aged about 38 years, business partner in VR Logistic, and earning Rs.60,000/-. But the Tribunal considered his income at Rs.15,000/-.
13. Learned counsel for Insurance Company would submit that monthly income of the deceased Ramesh considered by the learned member at Rs.15,000/- is on higher note and that requires to be reduced.
14. In the overall circumstances of the case, the compensation awarded by the Tribunal on account of death of deceased Ramesh, rider is: Rs.28,35,000/- towards loss of dependency and Rs.70,000/- under conventional heads and in all Rs.29,05,000/- fixing 10% contributory negligence.
15. Learned counsel Sri M.H.Prakash for claimants would submit that 10% contributory negligence fixed on the rider of the motor cycle by the Tribunal is excessive on the ground that the tire mark on the road to the extent of 40 ft. land tells about the negligence.
Per contra, learned counsel Sri. C.R. Ravishankar for the Insurance Company relying on the sketch showed to the court would submit that the mode of accident clearly indicate the negligence of the rider of the motor cycle.
16. In the over all context and circumstances of the case, it appears, the learned Member has considered the concept of contributory negligence and saddled 10% on the rider of the motorcycle and rest of the matter including considering Rs.15,000/- as monthly income, adding 40% towards future prospects, deducting 1/4th for personal and living expenses and applying 15 multiplier are found for sound reasoning. In this connection, I do not find neither of the appeals have merit to be entertained.
17. Insofar as MVC No.941/2016 is concerned, it is filed by the parents of the deceased Devegowda, who was the pillion rider, who was aged about 30 years at the time of his death. In this connection, the learned member considered his income at Rs.9,000/- per month as he was an auto driver, added 40% for future prospects, after deducting 50% for personal and living expenses as he was unmarried and applying 17 multiplier, awarded Rs.12,85,200/- towards loss of dependency and also awarded Rs.30,000/- towards conventional heads and I agree with the learned member.
18. However, insofar as saddling of 10% contributory negligent is concerned, there are reasons to look into the grounds to find that a rider is negligence for the purpose of contributory negligence. However, the apportionment of negligence on the pillion rider does not make sense. The contributory negligence of the pillion rider does not take place unless if it is the specific case of the law enforcing agency that it was the pillion rider through his action or inaction was negligent and caused the accident. In the circumstance, the contributory negligence of 10% fixed by the learned Member on the rider is not applicable in MVC No.941/2016 wherein, deceased was a pillion rider. Thus, I find the compensation granted at Rs.13,15,200/- is fair and equitable and it does not require to be altered whether increasing or decreasing.
19. Insofar as liability of the insurance company is concerned it shall be 100% as no contributory negligence is saddled on the pillion rider.
20. For the reasons assigned above, MFA No.1391/2019 filed by the claimant in MVC No.940/2016 and MFA Nos.1950/2019 and 1951/2019 filed by the Insurance Company are dismissed.
MFA No.2980/2019 filed by the claimants in MVC No.941/2016 is allowed in part, fastening entire liability on the Insurance Company. To that effect the impugned judgment and award is modified.
The insurance company is directed to deposit the compensation amount in the appeals with interest as awarded within 30 days from the date of receipt of a copy of this judgment.
The amount in deposit in both the appeals be transmitted to the jurisdictional tribunal forthwith.
Sd/- JUDGE tsn*