IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.8928/2013 C/W M.F.A.No.1857/2014 [MV] M.F.A.No.8928/2013 BETWEEN:
M/S. ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED OPP. HIGH SCHOOL GROUND P.B. ROAD, DAVANAGERE NOW REP. BY NO.89 2ND FLOOR, S.V.R COMPLEX HOSUR MAIN ROAD MADIWALA, BANGALORE-560068 REP. BY ITS MANAGER-LEGAL.
...APPELLANT (BY SRI. A M VENKATESH, ADV.) AND:
1. SMT. SUMANGALAMMA W/O O. KRISHNAPPA AGED ABOUT 46 YEARS 2. SRI O. KRISHNAPPA S/O LATE LAXMAPPA AGED ABOUT 52 YEARS 3. K.O. SRIKANTH S/O O. KRISHNAPPA AGED ABOUT 29 YEARS 4. KUMARI VEENA K.O D/O O. KRISHNAPPA AGED ABOUT 24 YEARS ALL ARE R/O D.NO.1663/31 "SAPTAGIRI", 11TH CROSS SIDDAVEERAPPA BADAVANE SHAMNUR ROAD DAVANAGERE-577002.
5. MOHAN KUMAR S/O CHANDRAPPA T MAJOR DRIVER OF MOTORCYCLE BEARING REG.NO.KA-17/X-1622 R/O. 01/117, F-5 BUILDING D.C.M. TOWNSHIP DAVANAGERE-577002.
6. SRI T. CHANDRAPPA S/O THIPPESWAMY MAJOR OWNER OF MOTORCYCLE BEARING REG.NO.KA-17/X-1622 R/O NO.91/117, F-5 BUILDING D.C.M TOWNSHIP DAVANAGERE-577002.
7. YUVARAJA S/O JUNJAPPA MAJOR DRIVER OF MOTORCYCLE BEARING REG.NO.KA-16/R-5712 R/O. KONDAHALLI HOSA GOLLARAHATTI MOLAKALMURU TALUK CHITRADURGA DISTRICT-577501.
8. SRI VEERABHADRAPPA S/O JUNJAPPA MAJOR OWNER OF MOTORCYCLE BEARING REG.NO.KA-16/R-5712 R/O.KONDAHALLI HOSA GOLLARAHATTI MOLAKALMURU TALUK-577501 CHITRADURGA DISTRICT.
…RESPONDENTS (BY SMT. SARITHA KULAKARNI, ADV. FOR R1-R4 SRI. H.K. RAVI, ADV. FOR R8, R5, R6, R7 - SERVED) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.04.2013 PASSED IN MVC NO.723/2011 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND VI ADDITIONAL MACT, AT DAVANGERE, AWARDING COMPENSATION OF RS.19,15,492/- WITH INTEREST @ 6% PA FROM THE DATE OF PETITION TILL REALIZATION.
M.F.A.No.1857/2014 BETWEEN:
1. SMT. SUMANGALAMMA W/O O. KRISHNAPPA AGED ABOUT 47 YEARS 2. SRI O. KRISHNAPPA S/O LATE LAXMAPPA AGED ABOUT 54 YEARS 3. K.O. SRIKANTH S/O O. KRISHNAPPA AGED ABOUT 30 YEARS 4. KUMARI VEENA K.O. D/O O. KRISHNAPPA AGED ABOUT 25 YEARS ALL ARE R/O D.NO.1663/31 SAPTHAGIRI, 11TH CROSS SIDDAVEERAPPA BADAVANE SHAMNUR ROAD DAVANAGERE-577001 HARIHAR TALUK.
...APPELLANTS (BY SMT. SARITHA KULKARNI, ADV.) AND:
1. MOHAN KUMAR S/O CHANDRAPPA T MAJOR R/O. 01/117, F-5 BUILDING D.C.M. TOWNSHIP DAVANGERE-577001.
2. T. CHANDRAPPA S/O THIPPESWAMY AGE:MAJOR R/O 91/117, F-5, BUILDING D.C.M TOWNSHIP DAVANGERE-577001.
3. THE MANAGER ICICI LOMBARD GENERAL INSURANCE CO. LTD., OPP: HIGH SCHOOL GROUND P.B. ROAD, DAVANGAERE-577001 4. YUVARAJA S/O JUNGAPPA MAJOR R/O. KONDLAHALLI HOSA GOLLARAHATTI MOLAKALMURU TALUK CHITRADURGA DISTRICT-577501.
5. SRI VEERABHADRAPPA S/O JUNGAPPA MAJOR R/O.KONDAHALLI HOSA GOLLARAHATTI MOLAKALMURU TALUK CHITRADURGA DISTRICT-577501.
…RESPONDENTS (BY SRI. A.M. VENKATESH, ADV. FOR R3 SRI. H.K. RAVI, ADV. FOR R5 R1, R2 & R4 – NOTICE D/W V/O DT:14.01.2015) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.04.2013 PASSED IN MVC NO.723/2011 ON THE FILE OF THE II ADDITIONAL CIVIL SENIOR JUDGE AND VI ADDITIONAL MACT, AT DAVANGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE M.F.A.s COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Both claimants and insurer are in appeals, assailing the judgment and award dated 25.04.2013 passed in MVC No.723/2011 on the file of II Additional Senior Civil Judge and 6th Additional Motor Accident Claims Tribunal, Davanagere (hereinafter referred to as 'the Tribunal' for short).
2. The claimants are in appeal in MFA No.1857/2014 aggrieved by saddling 50% of the contributory negligence on respondents No.4 and 5 rider and owner of the offending vehicle No.KA-16/R-5712 and also seeking for enhancement of compensation, not being satisfied with the quantum of compensation awarded by the Tribunal. Whereas the insurer is in appeal in MFA No.8928/2013 on the ground that the Tribunal committed an error in saddling 50% of liability on the insurer.
3. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the death of one K.O.Sridhara son of claimants No.1 and 2 in a road traffic accident. It is stated that on 09.07.2011, when the deceased was proceeding as a pillion rider on a motorcycle bearing registration No. KA-17/X-1622, another motorcycle bearing registration No.KA-16/R-5712 came in a rash and negligent manner and collided with each other. Due to which, the pillion rider K.O.Sridhara fell down and sustained grievous injuries. Immediately, he was shifted to S.S.Hospital, Davanagere and while taking treatment, on 13.07.2011 he succumbed to the injuries. The deceased was working as a Primary School teacher drawing salary of Rs.15,000/- p.m. He was aged about 26 years as on the date of accident.
4. Respondents No.1 and 2 are rider and owner of the motorbike bearing registration No.KA-17/X-1622, in which the deceased was proceeding as a pillion rider. Respondent No.3 is insurer of the motorbike bearing registration No.KA-17/X-1622 whereas respondents No.4 and 5 are rider and owner of motorcycle bearing registration No.KA-16/R-5712.
5. On issuance of notice, respondents appeared and filed their objections. Respondents No.1 and 2 denied the claim petition averments and further stated that the accident had not occurred due to the fault of respondent No.1, but occurred solely due to the rash and negligent riding of the motorbike bearing registration No.KA-16/R-5712 by respondent No.4 who was not having valid and effective driving license as on the date of accident. The 3rd respondent/insurer in its objection statement denied the claim petition averments and also denied the existence of policy in respect of motorbike bearing registration No.KA-17/X-1622 and its validity. The insurer also stated that the accident occurred due to the rash and negligent riding of the motorcycle by respondent No.4 who was not having valid driving license and the insurance policy. Respondents No.4 and 5 in their written statement denied the claim petition averments and stated that the accident occurred solely due to the rash and negligent riding of the motorcycle by respondent No.1.
6. Claimant No.2/father of the deceased got examined himself as P.W.1 apart from marking the documents Ex.P1 to Ex.P59. The respondents examined R.W.1 to R.W.3 and marked the documents Ex.R1 to Ex.R3.
7. The Tribunal, based on the material placed on record awarded total compensation of Rs.19,15,492/- with interest at the rate of 6% p.a., from the date of petition till realization, on the following heads:
1. Loss of financial dependency :: Rs.18,30,492/-
2. Loss of love and affection :: Rs. 20,000/-
While awarding the above compensation, the Tribunal held that the riders of both the motorcycles have contributed to the occurrence of accident and saddled contributory negligence to an extent of 50% each on them. The claimants, not being satisfied with the quantum of compensation awarded by the Tribunal and aggrieved by saddling 50% of liability on respondents No.4 and 5 are before this Court praying for enhancement of compensation and also to shift the liability on the insurer/3rd respondent, are before this Court in MFA No.1857/2014. Whereas, the insurer is before this Court in MFA No.8928/2013, aggrieved by saddling 50% of liability on them, on the ground that the accident had taken place solely due to the negligent riding of the motorbike bearing registration No. KA-17/X-1622 by its rider.
8. Heard the learned counsel for the parties and perused the material on record including the lower court records.
9. Learned counsel for the insurer would submit that the Tribunal committed an error in saddling 50% liability on the insurer of the motorbike bearing registration No.KA-17/X-1622. It is his submission that the accident occurred solely due to negligent riding of the motorbike bearing registration No.KA-16/R-5712 and as such, the entire liability ought to have been fastened on respondents No.4 and 5. It is his submission that the insurer of the bike in which the deceased was proceeding is not liable to pay compensation. Thus, prays for allowing the appeal filed by the insurer.
10. Per contra, learned counsel for the appellants/ claimants submits that the quantum of compensation awarded by the Tribunal is on the lower side and submits that claimants No.1 and 2 parents of the deceased would be entitled for Rs.40,000/- each towards filial consortium as per the decision of the Hon'ble Apex Court reported in 2018 ACJ 2782 in the case of MAGMA GENERAL INSURANCAE COMPANY LIMITED v/s NANU RAM AND OTHERS. Further, it is submitted that the Tribunal committed an error in fastening 50% contributory negligence on respondents No.4 and 5. She also submits that the accident had taken place solely due to the negligence of rider of the motorbike bearing registration No.KA-16/R-5712 and even though charge sheet is filed against the riders of both the motorcycles, but solely due to negligent riding of rider of the motorbike bearing registration No. KA-16/R-5712. It is also her submission that relying on the decision of the Hon'ble Apex Court reported in 2008 ACJ 1165 in the case of T.O.ANTHONY v/s KARVARNAN AND OTHERS submits that entire liability ought to have been saddled on insurer and the claimants would be entitled to claim compensation from any one of the tort feasors. Thus, prays for allowing the appeal filed by the claimants.
11. Having heard the learned counsel for the parties and on perusal of the material on record including the lower court records, the following points would arise for consideration in these two appeals:
(i) Whether the Tribunal is justified in saddling 50% contributory negligence each, on respondents No.1 to 3 and respondents No.4 and 5?
(ii) Whether the claimants would be entitled for enhanced compensation, in the facts and circumstances of the case?
12. Answer to the above points would be in the affirmative for the following reasons:
The accident occurred on 09.07.2011 involving two motorbikes bearing registration No.KA-17/X-1622 and KA-16/R-5712 and the accidental death of K.O.Sridhara are not in dispute in these two appeals. The accident had taken place involving the motorcycles, both the rider and owner of the both the vehicles are parties to the proceedings. Admittedly, owner of the motorcycle bearing registration No.KA-16/R-5712 had no insurance policy covering the motorbike. Respondent No.2/owner of the motorcycle bearing registration No.KA-17/X-1622 was covered by insurance policy issued by the 3rd respondent. It is also admitted fact that the rider of the motorbike bearing registration No.KA-16/R-5712, respondent No.4 had no valid driving license to ride the motorcycle as on the date of accident. Admittedly, the charge sheet is filed against the riders of both the vehicles. Learned counsel for the insurer contended that the accident occurred solely due to the negligent riding of the motorbike bearing registration No.KA-17/X-1622 i.e., by the first respondent, relying upon Ex.P8/sketch and Ex.P5/IMV report. IMV report denotes damages caused to both the motorcycles which are as follows:
Following damages noticed due to impact at the time of the Vehicle Involved in the Accident:
KA-17/X-1622 KA-16/R-5712 1. Front left side clutch 1. Head light & its Lever broken mask damaged.
2.Left side rear view 2. Handle bar Mirror damaged damaged.
3.Silencer pipe dented 3. Front shock- Inwards. absorbers damaged.
4. Right side rear view mirror damaged.
No other damages found on the vehicles at the time of inspection.
13. Learned counsel for the insurer further submits that the motorbike bearing registration No.KA-16/R- 5712 dashed to the motorbike bearing registration No.KA-17/X-1622, when it had almost passed through. But on examination of Ex.P8/sketch it would not substantiate the contention of the insurer. The motorbike had fallen at 10 feet away on Hanumanthnayakanahalli road, whereas the bike bearing registration No.KA-16/R-5712 had fallen on the other corner of the road and the sketch would not indicate as to how the accident occurred. The sketch is ambiguous and it would not give true picture of occurrence of the accident. Thus, Ex.P8 cannot be relied upon to decide the question of contributory negligence.
14. The Tribunal, based on the charge sheet filed against the riders of both the motorcycles and Ex.P4/mahazar, has come to the conclusion that the accident had taken place in the middle of 18 feet width road. The rider of the motorcycle bearing registration No.KA-16/R-5712 had no license to ride the motorcycle as on the date of accident and the vehicle was also not covered by the insurance policy. Learned counsel for the claimant relied upon the decision of the Hon'ble Apex Court reported in T.O.ANTHONY case (supra) wherein the facts of the said case is entirely different and would not have any bearing on the facts of the present case. In the present case, both the rider and owner of both the vehicles are parties to the proceedings. Admittedly, rider of the motorbike bearing registration No.KA-16/R-5712 had no valid and effective driving license to ride the motorcycle. Further PW1 in his cross examination has admitted as follows:
“¸ÁQëAiÀÄÄ, E§âgÀ vÀ¦à¤AzÀ DVgÀÄvÀÛzÉ JAzÀÄ ºÉüÀÄvÁÛgÉ”. A perusal of Ex.P5 Motor Vehicle Accident report would indicate damage caused to both motorcycles. On perusal of the entire evidence including Ex.P4, Ex.P5 and Ex.P8, I am of the view that fastening contributory negligence at 50% each, on respondents No.1 to 3 and respondents No.4 and 5 by the Tribunal is proper and correct, which does not warrant interference by this Court.
15. Learned counsel for the claimants submitted that the claimants are not challenging the quantum of compensation on the head of loss of financial dependency since the Tribunal has assessed the income of the deceased correctly and awarded future prospects at 50% of the assessed income, which is in accordance with the judgment of the Hon'ble Apex Court in PRANAY SETHI case (supra). But the compensation awarded on the head of loss of love and affection, the claimants 1 and 2 would be entitled for Rs.40,000/- each as per the decision of the Hon'ble Apex Court in MAGMA GENERAL INSURANCAE COMPANY LIMITED case (supra), towards filial consortium. The claimants 1 and 2 would also be entitled for a sum of Rs.30,000/- on conventional heads, since the deceased was a bachelor. Thus, the claimants would be entitled for the following modified compensation:
1. Loss of financial dependency :: Rs.18,30,492/-
2. Filial consortium (40000x2) :: Rs. 80,000/-
3. Conventional heads :: Rs. 30,000/-
4. Cost of medical treatment :: Rs. 50,000/-
Total Rs.19,90,492/-
Thus the claimants would be entitled to total compensation of Rs.19,90,492/- with interest at the rate of 6% p.a., from the date of petition till realization as against Rs.19,15,492/- awarded by the Tribunal.
16. Accordingly, MFA No.8928/2013 filed by the insurer is dismissed while MFA No.1857/2014 filed by the claimants is allowed in part. The judgment and award dated 25.04.2013 passed in MVC No.723/2011 on the file of II Additional Senior Civil Judge and 6th Additional Motor Accident Claims Tribunal, Davanagere is modified to the above extent. The claimants would be entitled to enhanced compensation of Rs.75,000/-.
The amount in deposit in MFA No.8928/2013 be transmitted to the concerned Tribunal.
Sd/-
JUDGE mpk/-*CT:bms