IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.10326 OF 2012 [MV] C/W MFA NO.10187 OF 2012 [MV] IN MFA NO.10326/2012:
BETWEEN 1. DURGAPPA @ DURGEGOWDA, AGED ABOUT 57 YEARS, S/O. LATE BHEEMEGOWDA, 2. SMT. SHIVALINGAMMA, AGED ABOUT 50 YEARS, W/O. DURGAPPA @ DURGEGOWDA, BOTH ARE R/AT NO.680, HARINAGAR, ACHARAPPA LAYOUT, RBI LAYOUT MAIN ROAD, ANJANAPURA POST, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK.
PERMANENT ADDRESS, BELAGANAKUPPE VILLAGE, THATTEKERE POST, MARALAWADI HOBLI, KANAKAPURA TALUK, RAMANAGAR DISTRICT.
... APPELLANTS (BY SRI. GIRIMALLAIAH, ADVOCATE) 1. NEW INDIA ASSURANCE CO. LTD, REGIONAL OFFICE, NO.2-B, UNITY BUILDING ANNEX, MISSION ROAD, BENGALURU-560 002. BY ITS MANAGER, 2. SRI. NANJESH, MAJOR, S/O. NANJEGOWDA, HONGERUDODDI VILLAGE, HYYAMBALLI HOBLI, KANAKAPURA TALUK, RAMANAGAR DISTRICT.
... RESPONDENTS (BY SRI. K.S. LAKSHMINARASAPPA FOR SRI. B.C. SEETHARAMA RAO, ADVOCATES, R-2 SERVED) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.07.2012 PASSED IN MVC NO.4919/2011 ON THE FILE OF IX ADDL. SENIOR CIVIL JUDGE MEMBER MACT-7 COURT OF SMALL CAUSES BANGALORE PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.10187/2012:
BETWEEN 1. THE NEW INDIA ASSURANCE CO. LTD, REGIONAL OFFICE, NO.2-B, UNITY BUILDING ANNEXE, MISSION ROAD, BANGALORE-560 002. REP. BY ITS MANAGER SRI. V. RAMACHANDRAN. ... APPELLANT (BY SRI. K.S. LAKSHMINARASAPPA FOR SRI. B.C. SEETHARAMA RAO, ADVOCATES) 1. SRI. DURGAPPA @ DURGEGOWDA, AGED ABOUT 57 YEARS, S/O. LATE BHEEMEGOWDA, 2. SMT. SHIVALINGAMMA, AGED ABOUT 50 YEARS, W/O. SRI. DURGAPPA @ DURGEGOWDA, BOTH ARE RESIDING AT NO.680, HARINAGAR, ACHARAPPA LAYOUT, RBI LAYOUT MAIN ROAD, ANJANAPURA POST, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK-560 062.
PERMANENT ADDRESS, BELAGANAKUPPE VILLAGE, THATTEKERE POST, MARALWADI HOBLI, KANAKAPURA TALUK, RAMANAGARA DIST-562 102.
3. SRI. NANJESH, MAJOR, S/O. NANJEGOWDA, HONGERUDODDI VILLAGE, HYYAMBALLI HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT-562 102.
….RESPONDENTS (BY SRI. GIRIMALLAIAH, ADVOCATE FOR R1 AND R2) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.07.2012 PASSED IN MVC NO.4919/2011 ON THE FILE OF THE IX ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, MACT-7, COURT OF SMALL CAUSES, BANGALORE, AWARDING A COMPENSATION OF RS.4,90,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.
THESE MFAs COMING ON FOR HEARING, THIS DAY THE COURT MADE THE FOLLOWING:
JUDGMENT MFA No.10326/2012 is filed by the claimant seeking enhancement of compensation and MFA No.10187/2012 is filed by the Insurance Company questioning the findings regarding negligence as well as the quantum of compensation awarded by the Tribunal in MVC No.4919/2011 on the file of the Court of IX Addl. Senior Civil Judge, Small Causes Court, Bengaluru.
2. I have heard the learned counsel appearing for the parties.
3. The facts of the case in brief are that on 23.06.2011 at about 9.30 p.m., deceased Ravi @ Ravikumar was proceeding on his motor cycle bearing registration No.KA-04-EP-1494 on Kanakapura- Bengaluru Road, NH-209. When he was near Veerabhadreswara Petrol Bunk, the driver of the lorry bearing registration No.KA-19-B-225 by driving the same in a rash and negligent manner overtook the motor cycle and took a left turn and stopped the vehicle without giving any signal. As a result of which, the motor cycle collided with the lorry and Ravi alias Ravikumar sustained severe injuries and died on the spot.
4. The parents of the deceased filed a claim petition in MVC No.4919/2014 seeking a total compensation of Rs.16,50,000/-.
5. Before the Tribunal, PWs.1 and 2 were examined on behalf of the claimants and Exs.P1 to P8 were got marked. The claim was refuted by the Insurance Company. However, no evidence was led on behalf of the respondents before the Tribunal. The Tribunal after considering the evidence and material on record, awarded a total compensation of Rs.4,90,000/- with interest at 6% per annum.
6. It is the contention of the learned counsel appearing for the claimants that the deceased was aged about 28 years at the time of accident and he was earning a sum of Rs.15,000/- per month from stamp vending and real estate business. It is further contended that the Tribunal has grossly erred in taking the age of the parents of the deceased while adopting the multiplier for the purpose of calculating the loss of dependency. It is also contended that the compensation awarded under the conventional head is very meager and therefore, the learned counsel seeks to enhance the compensation awarded by the Tribunal.
7. It is the primary contention of the learned counsel for the Insurance Company that the accident has occurred wholly on account of the rash and negligent riding of the motor cycle by the deceased himself. He placed reliance on Ex.P4 – Charge sheet and Ex.P3 – spot mahazar in support of his arguments. It is further contended that the claimants have failed to adduce satisfactory evidence with regard to the income of the deceased and therefore, the income of the deceased taken at Rs.3,000/- per month is proper. It is also contended that the Tribunal ought to have deducted 50% of the income of the deceased towards personal expenses. On the other hand, it has deducted 1/3rd of the income of the deceased, which is also not proper.
8. It is the case of the claimants that on 23.06.2011 at about 9.30 p.m., when their son Ravi alias Ravikumar was proceeding on his motor cycle bearing registration No.KA-04-EP-1494 on Kanakapura- Bengaluru Road, NH-209, near Veerabhadreswara Petrol Bunk, the driver of a lorry bearing registration No.KA-19- B-225 by driving the same in a rash and negligent manner overtook the motor cycle and took a left turn and stopped the vehicle without giving any signal. As a result of which, the motor cycle collided with the lorry and Ravi alias Ravikumar sustained severe injuries and died on the spot.
9. The claimants have got marked Exs.P-1 to P-
4 namely, FIR, complaint, spot mahazar and charge sheet to establish the fact that the accident was on account of the rash and negligent act of the driver of the offending vehicle.
10. FIR came into existence on the same day and case was registered against the driver of the lorry in question and charge sheet was filed against the driver for having committed offences under Sections 279 and 304A of IPC.
11. The Insurance Company has not led any evidence to disprove the said fact or to establish that the accident occurred on account of the rash and negligent riding by the rider of the motor cycle. The material on record clearly goes to show that the lorry overtook the motor cycle and came in front of it, as a result of which, the deceased lost control and dashed his motor cycle against the lorry from behind.
12. The learned counsel for the Insurance Company has placed reliance on a decision of the Hon’ble Apex Court in the case of Raj Rani and others vs. Oriental Insurance Company Limited reported in 2009(13) SCC 654, to contend that the deceased himself dashed his motor cycle against the lorry from behind and therefore there is contributory negligence on the part of the deceased. In the said case, the deceased dashed his vehicle against a stationary truck and therefore, the Hon’ble Apex Court held that some amount of negligence on the part of the deceased could not be ruled out. The facts of the said case are entirely different and not applicable to the facts of the present case. Therefore, the findings of the Tribunal that the deceased died on account of the rash and negligent driving by the driver of the lorry in question cannot be held to be erroneous.
13. It is the case of the claimants that the deceased was earning a sum of Rs.15,000/- p.m. by doing stamp vending business and real estate business. The same is disputed by the learned counsel for the Insurance Company. The claimants have produced Ex.P6 i.e. Notarized copy of Stamp Vending Licence belonging to the deceased. However, it is not established as to what was the income of the deceased as a stamp vendor. The Tribunal has taken the income of the deceased at Rs.4,500/- p.m. and deducted 1/3rd towards personal expenses. Considering the fact that the accident is of the year 2011 and also in the absence of any satisfactory evidence with regard to the income of the deceased, I am of the view that the notional income of the deceased can be taken as Rs.6,500/- p.m. To the said amount, 40% is added towards future prospects. Admittedly, the deceased was a bachelor. Hence, 50% of the income is deducted towards his personal expenses. The deceased was aged about 28 years and therefore the appropriate multiplier applicable in the present case is 17. Hence, the compensation towards loss of dependency to which the claimants are entitled is a sum of Rs.9,28,200/- (4,550/- x 12 x 17). The Tribunal has awarded a sum of Rs.10,000/- towards loss of love and affection, Rs.10,000/- towards funeral expenses and Rs.2,000/- towards transportation of dead body.
14. The Hon’ble Apex Court in the case Magma General Insurance Co. Ltd. –vs- Nanu Ram and others reported in 2018 ACJ 2782 has held as under:
“Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime children are valued for their love, affection, companionship and their role in the family unit.”
15. In the said case, Rs.40,000/- was awarded to the claimants who are the father and sister of the deceased towards loss filial consortium. In view of the same, in the facts and circumstances of the present case, the appellants/claimants are entitled for a sum of Rs.40,000/- each towards loss of filial consortium and another sum of Rs.50,000/- each towards loss of love and affection. The compensation awarded towards loss of estate, funeral expenses and transportation of dead body is enhanced from Rs.12,000/- to Rs.30,000/-. Hence, the claimants are entitled for a sum of Rs.11,38,200/- as against Rs.4,90,000/- awarded by the Tribunal. Accordingly, I pass the following:
ORDER MFA No.10326/2012 filed by the Insurance Company and MFA No.10187/2012 are allowed in part.
The judgment and award dated 13.7.2012 passed in MVC No.4919/2011 on the file of the IX Additional Senior Civil Judge, Member, MACT-7 Court of Small Causes Bangalore, is modified.
The claimants/appellants in MFA No.10326/2012 are entitled for a total compensation of Rs.11,38,200/- as against Rs.4,90,000/- awarded by the tribunal, with interest at 6% p.a. from the date of petition till the payment.
The Insurance Company shall deposit the entire amount within a period of four weeks from the date of receipt of copy of this judgment.
Apportionment of the compensation shall be in terms of the judgment and award passed by the Tribunal.
The amount in deposit before this Court shall be transmitted to the Tribunal.
Sd/- JUDGE SNC/Bkm