IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.No.11175/2012 (MV) c/w M.F.A.No.4875/2013 (MV) M.F.A.No.4874/2013 (MV) M.F.A.No.11176/2012 (MV) IN MFA NO.11175/2012 BETWEEN:
THE DIVISIONAL MANAGER, M/S.BHARTI AXA GENERAL INSURANCE CO. LTD., NO.2951/A, D-29/1, 1ST FLOOR, TEMPLE ROAD, KALIDASA CIRCLE, V.V.MOHALLA, MYSORE-570 009.
NOW REP.BY ITS LEGAL OFFICER, M/S.BHARATI AXA GIC. LTD., BANGALORE BRANCH, 1ST FLOOR, FERNS ICON, NO.28, DODDANEKUNDI, BANGALORE-560 037.
... APPELLANT (BY SRI. H.N.KESHAVA PRASHANTH, ADVOCATE) AND:
1. CHANDRAMMA, W/O. DEVEGOWDA, NOW AGED ABOUT 45 YEARS, 2. DEVEGOWDA, S/O. SANNEGOWDA, NOW AGED ABOUT 56 YEARS, PETITIONER Nos.1 AND 2 ARE R/AT. NO.259, 1ST MAIN, 1ST CROSS, NEW KANTHARAJA URS ROAD, NIVEDITHANAGAR, MYSURU TALUK-570 009.
3. H.N. BALAJI SINGH, S/O. NARAYANA SINGH, NOW AGED ABOUT 37 YEARS, GANGADAHOSAHALLI VILLAGE, KYATHANAHALLI POST, H.D.KOTE TALUK, MYSORE DISTRICT-570 009.
(DRIVER OF THE LORRY NO.KA-09-1234) 4. ATHEEQULLA, S/O.DADAPEER, NOW AGED ABOUT 36 YEARS, R/AT NO.3325/39, ANNEGUNDI ROAD, 4TH CROSS, SECOND EDIGHA, MANDI MOHALLA, MYSORE-570 009.
(OWNER OF THE LORRY NO.KA-09-1234).
... RESPONDENTS (BY SRI. BHANU PRAKASH.H.V, ADVOCATE FOR R1 & R2; R4 (SERVED); R3-NOTICE DISPENSED WITH VIDE ORDER DATED 05.03.2019) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.06.2012 PASSED IN MVC NO.31/2011 ON THE FILE OF THE PRESIDING OFFICER, C/c FAST TRACK COURT-V, MEMBER, ADDITIONAL MACT, MYSORE, AWARDING A COMPENSATION OF Rs.2,40,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA NO.4875/2013 BETWEEN:
SRI. B.S.MANJUNATHA, S/O. SANNEGOWDA, AGED ABOUT 26 YEARS, R/AT #481, VINAYA MARGA, 9TH MAIN, SIDDARTHANAGARA, MYSORE-570 011.
... APPELLANT (BY SRI. H.V.BHANUPRAKASH, ADVOCATE FOR NOBLE LAW ASSOCIATES) AND:
1. SRI. H.N.BALAJI SINGH, S/O. NARAYANA SINGH, AGED ABOUT 38 YEARS, R/AT GANGADAHOSAHALLI VILLAGE, KYATHANAHALLI POST, H.D.KOTE TALUK, MYSORE DISTRICT-571 125.
(DRIVER OF LORRY BEARING REG.NO.KA-09-1234) 2. SRI. ATHEEQULLA, S/O. DADPEER, AGED ABOUT 37 YEARS, R/AT NO.3325/39, ANNEGUNDI ROAD, 4TH CROSS, SECOND EDIGHA, MANDI MOHALLA, MYSORE-570 021.
(OWNER OF LORRY BEARING REG.NO.KA-09-1234) 3. THE DIVISIONAL MANAGER, BHARTI AXA GENERAL INSURANCE COMPANY LTD., NO.2951/A, D-29/1, 1ST FLOOR, TEMPLE ROAD, KALIDASA CIRCLE, V.V.MOHALLA, MYSORE-570 002.
(INSURER OF LORRY BEARING REG.NO.KA-09-1234).
... RESPONDENTS (BY SRI. H.N.KESHAVA PRASHANTH, ADVOCATE FOR R3; R1 & R2 – NOTICE DISPENSED WITH VIDE ORDER DATED 14.08.2015) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 28.6.2012 PASSED IN MVC NO.34/2011 ON THE FILE OF THE PRESIDING OFFICER, C/c FAST TRACK COURT-5, MEMBER, ADDITIONAL MACT, MYSORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.4874/2013 BETWEEN:
1. SMT. CHANDRAMMA, W/O. DEVEGOWDA, AGED ABOUT 46 YEARS, 2. SRI. DEVEGOWDA, S/O. LATE SANNEGOWDA, AGED ABOUT 57 YEARS, BOTH ARE R/AT. NO.259, 1ST MAIN, 1ST CROSS, NEW KANTHARAJA URS ROAD, NIVEDITHANAGAR, MYSURU TALUK-570 009.
... APPELLANTS (BY SRI. H.V.BHANUPRAKASH, ADVOCATE FOR NOBLE LAW ASSOCIATES) AND:
1. SRI. H.N.BALAJI SINGH, S/O. NARAYANA SINGH, AGED ABOUT 38 YEARS, R/AT GANGADAHOSAHALLI VILLAGE, KYATHANAHALLI POST, H.D.KOTE TALUK, MYSORE DISTRICT-571125.
(DRIVER OF LORRY BEARING REG.NO.KA-09-1234) 2. SRI. ATHEEQULLA, S/O. DADPEER, AGED ABOUT 37 YEARS, R/AT NO.3325/39, ANNEGUNDI ROAD, 4TH CROSS, SECOND EDIGHA, MANDI MOHALLA, MYSORE-570 021.
(OWNER OF LORRY BEARING REG.NO.KA-09-1234) 3. THE DIVISIONAL MANAGER, BHARTI AXA GENERAL INSURANCE COMPANY LTD., NO.2951/A, D-29/1, 1ST FLOOR, TEMPLE ROAD, KALIDASA CIRCLE, V.V.MOHALLA, MYSORE-570 002.
(INSURER OF LORRY BEARING REG.NO.KA-09-1234).
... RESPONDENTS (BY SRI. H.N.KESHAVA PRASHANTH, ADVOCATE FOR R3; R1 & R2 – NOTICE DISPENSED WITH VIDE ORDER DATED 03.08.2015) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 28.6.2012 PASSED IN MVC NO.31/2011 ON THE FILE OF THE PRESIDING OFFICER, C/c FAST TRACK COURT-5, MEMBER, ADDITIONAL MACT, MYSORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.11176/2012 BETWEEN:
THE DIVISIONAL MANAGER, M/S.BHARTI AXA GENERAL INSURANCE CO. LTD., NO.2951/A, D-29/1, 1ST FLOOR, TEMPLE ROAD, KALIDASA CIRCLE, V.V.MOHALLA, MYSORE-570 009.
NOW REP.BY ITS LEGAL OFFICER, M/S. BHARATI AXA GIC. LTD., BANGALORE BRANCH, 1ST FLOOR, FERNS ICON, NO.28, DODDANEKUNDI, BANGALORE-560 037. ... APPELLANT (BY SRI. H.N.KESHAVA PRASHANTH, ADVOCATE) AND:
1. B.S.MANJUNATH, S/O. SANNEGOWDA, NOW AGED ABOUT 25 YEARS, R/AT. No.481, VINAYA MARGA, 9TH MAIN, SIDDARTHANAGARA, MYSORE-570 009.
2. H.N. BALAJI SINGH, S/O. NARAYANA SINGH, NOW AGED ABOUT 37 YEARS, GANGADAHOSAHALLI VILLAGE, KYATHANAHALLI POST, H.D.KOTE TALUK, MYSORE DISTRICT-570 009.
(DRIVER OF THE LORRY NO.KA-09-1234) 3. ATHEEQULLA, S/O.DADAPEER, NOW AGED ABOUT 36 YEARS, R/AT NO.3325/39, ANNEGUNDI ROAD, 4TH CROSS, SECOND EDIGHA, MANDI MOHALLA, MYSORE-570 009.
(OWNER OF THE LORRY NO.KA-09-1234).
... RESPONDENTS (BY SRI. H.V.BHANU PRAKASH, ADVOCATE FOR R1 R2 (SERVED); R3-SERVICE OF NOTICE HELD SUFFICIENT VIDE ORDER DATED 20-10-2016) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.06.2012 PASSED IN MVC NO.34/2011 ON THE FILE OF PRESIDING OFFICER, C/C FAST TRACK COURT-V AND MEMBER, ADDITIONAL MACT, MYSORE, AWARDING A COMPENSATION OF Rs.3,70,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.
THESE MFAs COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The above four appeals arise out of the same accident and from common judgment and award dated 28-6-2012 passed in MVC.Nos.31/2011 and 34/2011 on the filed of the Fast Track Court-V and Additional M.A.C.T, Mysore.
2. M.F.A.Nos.11175/2012 and 11176/2012 are filed by the insurance company, challenging the judgment and award passed by the Tribunal on the ground that the alleged vehicle i.e., lorry bearing Reg.No.KA-09/1234 is not involved in the accident, whereas, the claimants are before this Court, seeking enhancement of compensation in M.F.A.Nos.4875/2013 and 4874/2013.
3. The claimants in MVC.No.31/2011 are parents of one deceased-Arun Kumar, whereas, the claimant in MVC.No.34/2011 is an injured-B.S.Manjunath, filed claim petitions under Section 166 of the Motor Vehicles Act, claiming compensation for the death of Arun Kumar and for accidental injuries sustained by claimant-injured in a road traffic accident that occurred on 17-11-2010. It is stated that deceased-Arun Kumar was proceeding in his motorcycle bearing Reg.No.KA-11/Q-9002 along with pillion rider-claimant in MVC.No.34/2011 towards Mysore from Bannur side. When they reached near Harohalli Village in Mysore-Bannur road, a lorry bearing Reg.No.KA- 09/1234 driven by its driver came from opposite direction in a rash and negligent manner and dashed to the motorcycle. Due to the impact, both rider and the pillion rider fell down and sustained grievous injuries. Subsequently, the rider of the motorcycle i.e., deceased- Arun Kumar succumbed to the injuries. It is further stated that the deceased was aged 26 years as on the date of accident and was working as an agriculturist and coolie, who was earning Rs.10,000/- per month. The injured claimant in MVC.No.34/2011, was aged 24 years as on the date of accident, he is also an agriculturist and coolie, who was earning Rs.10,000/- per month. The injured claimant states that he was inpatient for 13 days, due to the accidental injuries.
4. On service of notice, respondent Nos.1 to 3 appeared before the Tribunal and filed their written statement. Further, insurance company denied the entire petition averments and contended that the driver of the offending vehicle was not holding a valid and effective driving licence and permit as on the date of accident. It is also stated that the accident occurred only due to the rash and negligent driving of the motorcycle rider. Hence, prayed for dismissal of the claim petitions.
5. In support of their case, the claimants examined PW-1 to 3 including Doctor who treated the claimant in MVC.No.34/2011 and also got marked documents Ex.P-1 to P-14. On behalf of respondent No.3-insurance Company, its legal officer was examined as RW-1 and three documents were marked as Ex.R-1 to R-3.
6. The Tribunal, on assessment of the entire material on record, in MVC.No.31/2011, awarded total compensation of Rs.2,40,000/- with interest at 6% per annum, on the following heads:
Amount in (Rs.) 1. Loss of dependency 2,16,000 2. Conveyance 4,000 3. For funeral expenses 10,000 4. For loss of love & affection 10,000 Total 2,40,000 In MVC.No.34/2011, the Tribunal awarded total compensation of Rs.3,70,000/- with interest at 6% per annum, on the following heads:
1. Pain and sufferings & for disablement Amount in (Rs.) 65,000 2. Conveyance 4,000 3. Attendant charges and Nourishing food 4. For loss of income during the period of treatment 5,000 12,000 5. Medical expenses 2,81,000 6. For discomfort and loss of amenities of life 3,000 Total 3,70,000 7. The insurance company is before this Court, assailing the entire judgment and award passed by the Tribunal, whereas the claimants are before this Court, seeking enhancement of compensation.
8. Learned counsel for the appellant-insurer submits that the offending lorry is not involved in the accident, which occurred on 17-11-2010. The material on record would indicate that the Tempo is involved in the said accident and not the lorry as stated by the claimants. He further submits that Ex.P-1-FIR/complaint is lodged against the unknown vehicle and subsequently the lorry is seized and charge-sheet was filed against the driver of the lorry. It is his further submission that the medical records would also indicate that the claimants have initially made statement that they have suffered accidental injuries involving Tempo and not the lorry. Further learned counsel submits that as lorry in question is not involved in the accident, the insurance company is not liable to pay any compensation. Thus, prayed for dismissal of the claim petitions.
9. Per contra, learned counsel for the respondents- claimants would submit that the accident had taken place involving motorcycle and lorry. As PW-2, who is claimant in MVC.No.34/2011 was in a shock due to the accident and stated initially that it is a Tempo involved in the accident but in his evidence he has clearly stated the lorry number and its involvement in the accident. The investigating officer after investigation has filed charge-sheet against the driver of the lorry, which is unchallenged. Therefore, he submits that the Tribunal has rightly held issue No.1 in the affirmative.
10. Further learned counsel for the claimants- respondents submits that MVC.No.31/2011 is filed by the parents of the deceased-Arun Kumar and the compensation awarded is on the lower side. He further submits that the deceased was aged 26 years, who was an agriculturist and coolie, was earning Rs.10,000/- per month. Whereas the Tribunal has assessed the monthly income of the deceased at Rs.4,000/- notionally, which is on the lower side and the multiplier ‘9’ is adopted for determining the compensation on the head ‘Loss of dependency’. The Tribunal ought to have taken age of the deceased for adopting multiplier but taking into consideration the age of the younger parent of the deceased has adopted multiplier ‘9’ which is wholly erroneous. He further submits that the compensation awarded on the ‘Conventional Heads’ is also on the lower side. Thus, he prayed for enhancement of compensation.
11. Learned counsel further submits that the compensation awarded in MVC.No.34/2011 is also on the lower side. It is his further submission that the claimant was working as an agriculturist and coolie, who was aged 24 years as on the date of accident and was earning Rs.10,000/- per month. The claimant was inpatient for 13 days and has suffered grievous injuries such as:
1. Right femur Type III B open intracondylar fracture with bone loss, 2. Type III B open lateral tibial condyle fracture right side , 3. Right type III B open patellar fracture, 4. Degloving injury right foot Looking to the injuries sustained by the claimant and as he was inpatient for 13 days, the compensation awarded by the Tribunal is on the lower side. Hence, he prayed for enhancement of compensation in this petition also.
12. Having heard the learned counsel for the parties and on perusal of the lower court records, the following questions would arise for consideration in these appeals.
1. Whether the Tribunal is justified in holding that accident took place involving lorry bearing Reg.No.KA-09/1234 and the accidental injuries and death have taken place due to the said accident?
2. Whether the claimants are entitled for enhancement of compensation?
13. Answer to the above questions are as follows:
The claimants filed claim petitions, seeking compensation for the death of Arun Kumar and for injuries suffered by one B.S.Manjunath in a road traffic accident that occurred on 17-11-2010 between motorcycle bearing Reg.No.KA- 11/Q-9002 and lorry bearing Reg.No.KA-09/1234.
14. On the day that accident occurred, the complaint was lodged before the police against the unknown vehicle. Subsequently, lorry bearing Reg.No.KA-09/1234 is identified and investigating officer on investigation filed charge-sheet against driver of the lorry. Based on Ex.P-1/FIR and medical records which indicates that the accident has taken place between motorcycle and Tempo, the learned counsel for the appellant-insurance company contends that lorry is not involved in the accident. But PW-2-B.S.Manjunath–claimant in MVC.No.34/2011, who is an eye-witness to the accident, in his evidence has clearly stated that accident had taken place between the motorcycle and lorry. The cross-examination by the insurer proceeds on the premises that the accident had taken place between the motorcycle and lorry. In the statement of objections of the insurer there is no specific denial and it is not specifically stated that lorry was not involved in the accident. Immediately after the accident, when the injured was taken to the Hospital, he was in a shock and he might have stated that tempo is involved in the accident instead of lorry. Based on that statement itself, it cannot be said that lorry is not involved in the accident. The Tribunal has rightly observed that since the claimant-injured was under tension due to the accident he might have stated as tempo instead of lorry. Thus, the finding of the Tribunal on the said issue needs no interference.
15. In MVC.No.31/2011, the parents of the deceased- Arun Kumar are claimants. The deceased was aged 26 years as on the date of accident and was working as an agriculturist and coolie, earning Rs.10,000/- per month. The Tribunal has taken notional income of the deceased at Rs.4,000/- per month for determination of compensation on the head of ‘Loss of dependency’, the income assessed by the Tribunal is on the lower side. This Court and the Lok Adalath while determining the compensation in Motor Vehicles Accident cases would normally take notional income for the accidents of the year 2010 at Rs.5,500/-. In the absence of any material to indicate the exact income of the deceased, I deem it appropriate to take Rs.5,500/- per month as notional income of the deceased for determination of the compensation on the head of ‘Loss of dependency’. Further, the multiplier adopted by the Tribunal, taking into consideration the age of the younger parent of the deceased is not correct. As on this date the settled law is that for determining the multiplier, the age of the deceased will have to be taken. If the age of the deceased is taken into consideration, the applicable multiplier would be ‘17’. As the deceased was bachelor, 50% of the income is to be deducted towards his personal expenses and the claimants would be entitled for Rs.30,000/- on ‘Conventional Heads’. Further the claimants would be entitled for Rs.40,000/- on ‘filial consortium’. Further, the claimants would be entitled for 40% of the income assessed towards ‘Future Prospects’ in view of the decision 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 and HEM RAJ vs. ORIENTAL INSURANCE COMPANY LIMITED AND OTHERS (2018 ACJ 5). Thus, the claimants in MVC.No.31/2011 would be entitled for modified enhanced compensation as follows:
1. Loss of dependency Amount in (Rs.) 7,85,400
Thus, the claimants would be entitled for enhanced compensation of Rs.8,55,400/- as against Rs.2,40,000/- with interest at the rate of 6% per annum, awarded by the Tribunal.
16. The claimant in MVC.No.34/2011 was aged 24 years and was working as an agriculturist and coolie, earning Rs.10,000/- per month. The claimant suffered grievous injuries in the accident that occurred on 17-11-2010. The Doctor-PW-3 in his evidence has stated that the claimant has suffered 14.57% injury to the particular limb but he has not stated as to what is the percentage of disability to the whole body. However, the injured claimant was inpatient for 13 days for the accidental injuries suffered by him, which are as follows:
1. Right femur Type III B open intracondylar fracture with bone loss, 2. Type III B open lateral tibial condyle fracture right side , 3. Right type III B open patellar fracture, 4. Degloving injury right foot 17. Looking to the injuries suffered by the claimant and as he was inpatient for 13 days, he would be entitled for modified compensation on the heads of Conveyance, Attendant charges and Nourishing food, Loss of income during the period of treatment and towards loss of amenities of life. Thus, the claimant in MVC.No.34/2011 would be entitled for modified enhanced compensation as follows:
Amount in (Rs.)
Thus, the claimant would be entitled for enhanced compensation of Rs.3,99,500/- as against Rs.3,70,000/- with interest at the rate of 6% per annum, awarded by the Tribunal.
18. Accordingly, M.F.A.Nos.11175/2012 and 11176/2012 filed by the insurance company are dismissed. M.F.A.Nos.4875/2013 and 4874/2013 filed by the claimants are allowed in part.
The amount in deposit be transmitted to the concerned Tribunal.
Sd/- JUDGE SMJ