IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.8096/2009 C/W M.F.A CROB.No.128/2010, M.F.A.No.8094/2009, M.F.A CROB.No.127/2010(MV) IN MFA No.8096/2009 BETWEEN:
THE NEW INDIA ASSURANCE CO., LTD., BRANCH OFFICE, B.D. ROAD, CHITRADURGA, REPRESENTED BY REGIONAL OFFICE, No.2-B, UNITY BUILDING ANNEX, MISSION ROAD, BANGALORE – 560 027.
BY ITS DULY CONSTITUTED ATTORNEY (BY SRI C R RAVISHANKAR, ADVOCATE) AND:
..APPELLANT 1. SRI DYAMESH AGED 27 YEARS S/O SRI HANUMANTHAPPA METER READER IN BESCOM BHARAMASAGARA, R/O MUDDAPURA CHITRADURGA TALUK.
2. SRI SRINIVASA AGED 30 YEARS S/O SRI DASAPPA OWNER OF LORRY No.KA-26-4949 R/O MADAKARINAGARA, 3RD CROSS CHALLAKERE.
..RESPONDENTS (BY SRI K SHASHIKANTH PRASAD, ADVOCATE FOR R1 R2 IS SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:15.09.2009 PASSED IN MVC No.1009/2007 ON THE FILE OF THE CIVIL JUDGE (SR.DN) AND CJM AND ADDITIONAL MACT, CHITRADURGA, AWARDING A COMPENSATION OF Rs.60,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
IN MFA CROB No.128/2010 BETWEEN:
MR.DYAMESH S/O MR.HANUMANTHAPPA AGED ABOUT 25 YEARS BESCOM METER READER MUDDAPURA, BHARAMASAGAR CHITRADURGA TALUK.
..CROSS OBJECTOR (BY SRI K SHASHIKANTH PRASAD, ADVOCATE) AND:
1. THE BRANCH MANAGER NEW INDIA ASSURANCE CO., LTD., BRANCH OFFICE, B.D. ROAD, CHITRADURGA.
2. MR.SRINIVAS S/O MR.DASAPPA AGED ABOUT 31 YEARS OWNER OF LORRY No.KA-26/4949 3RD CROSS, MADAKARINAGARA CHALLAKERE.
..RESPONDENTS (BY SRI C R RAVISHANKAR, ADVOCATE FOR R1 NOTICE TO R2 IS DISPENSED WITH V/O DATED:04.01.2019) THIS MFA CROB IN MFA No.8096/2009 IS FILED UNDER ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED:15.09.2009 PASSED IN MVC No.1009/2007 ON THE FILE OF CIVIL JUDGE (SR.DN.), CJM & ADDITIONAL MACT, CHTRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA No.8094/2009 BETWEEN:
THE NEW INDIA ASSURANCE CO., LTD., BRANCH OFFICE, B.D. ROAD, CHITRADURGA, REPRESENTED BY REGIONAL OFFICE, No.2-B, UNITY BUILDING ANNEX, MISSION ROAD, BANGALORE – 560 027.
BY ITS DULY CONSTITUTED ATTORNEY ..APPELLANT (BY SRI C R RAVISHANKAR, ADVOCATE) AND:
1. SMT.RUDRAMMA AGED 37 YEARS W/O LATE THIMMA REDDY 2. CHI K T NANDESHA AGED 16 YEARS S/O LATE THIMMA REDDY 3. CHI K T KALLESH AGED 14 YEARS S/O LATE THIMMA REDDY THE RESPONDENTS NO.2 & 3 ARE MINORS, REPRESENTED BY THEIR MOTHER & NATURAL GUARDIAN SMT.RUDRAMMA THE RESPONDENTS NO.1 TO 3 ARE R/AT CHIKKAGONDANAHALLI CHITRADURGA TALUK 4. SRI SRINIVASA, AGED 30 YEARS, S/O SRI DASAPPA OWNER OF LORRY NO.KA-26-4949 R/O MADAKARINAGARA, 3RD CROSS CHALLAKERE.
..RESPONDENTS (BY SRI K SHASHIKANTH PRASAD, ADVOCATE FOR R1 R 2 AND 3 ARE MINORS AND REPRESENTED BY R1 R4 IS SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:15.09.2009 PASSED IN MVC No.696/2007 ON THE FILE OF THE CIVIL JUDGE (SR.DN) AND CJM AND ADDITIONAL MACT, CHITRADURGA, AWARDING A COMPENSATION OF Rs.3,37,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
IN MFA CROB No.127/2010 BETWEEN:
1. SMT.RUDRAMMA W/O LATE THIMMA REDDY AGED ABOUT 38 YEARS 2. K T NANDESHA S/O LATE THIMMA REDDY AGED ABOUT 17 YEARS 3. K T KALLESH S/O LATE THIMMA REDDY AGED ABOUT 15 YEARS APPELLANT No.2 AND 3 ARE MINORS AND THEY ARE REPRESENTED BY NATURAL GUARDIAN FIRST APPELLANT.
ALL ARE RESIDING CHIKKAGONDANAHALLI CHITRADURGA TALUK.
..CROSS OBJECTORS (BY SRI K SHASHIKANTH PRASAD, ADVOCATE) AND:
1. THE BRANCH MANAGER NEW INDIA ASSURANCE CO., LTD., BRANCH OFFICE, B.D. ROAD, CHITRADURGA.
2. MR.SRINIVAS S/O MR.DASAPPA AGED ABOUT 31 YEARS OWNER OF LORRY No.KA-26/4949 3RD CROSS, MADAKARINAGARA CHALLAKERE. ..RESPONDENTS (BY SRI C R RAVISHANKAR, ADVOCATE FOR R1 NOTICE TO R2 IS DISPENSED WITH V/O DTD.4.1.2019) THIS MFA CROB IN MFA No.8094/2009 FILED UNDER ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED:15.09.2009 PASSED IN MVC No.696/2007 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), AND CJM ADDITIONAL MACT, CHTRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs AND MFA CROBs COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These are the two appeals and two cross objections directed against the Judgment and awards passed in MVC No.696/2007 and MVC No.1009/2007 by Civil Judge, Senior Division, CJM and Additional MACT, Chitradurga on 15.09.2009 wherein the claim petitions were allowed in part and compensation of Rs.3,37,000/- and Rs.60,000/- respectively came to be granted by the Tribunal.
2. The appeals preferred by the insurance company seeking setting aside of the Judgment and awards are MFA No.8096/2009 and MFA No.8094/2009 and appeal in the form of cross objections preferred by Dyamesh-injured in MFA Crob No.128/2010 and preferred by the dependants of Thimma Reddy in MFA Crob No.127/2010.
3. In order to avoid confusion and overlappings, the parties are hereinafter referred with reference to their status and rankings as it stood before the Tribunal.
4. The proceedings before the Tribunal came to be initiated because of the road traffic accident said to have occurred on 09.04.2007 at 6.30 A.M. when one Dyamesh was riding the motorcycle bearing registration No.KA-16-K-2253 along with Thimma Reddy-pillion rider to reach Chitradurga by which time lorry bearing registration No.KA-26-4949 driven in a rash and negligent manner dashed against the back side hind portion of motorcycle on which Dyamesh was riding and due to which Dyamesh sustained injuries and Thimma Reddy, pillion rider succumbed to injuries. Thus, dependants of Thimma Reddy preferred claim petition in MVC No.696/2007 seeking compensation of Rs.14,50,000/-. Dyamesh-injured claimed compensation of Rs.4,50,000/- in MVC No.1009/2007.
5. Insurance company disputed the involvement of the vehicle i.e., branded as offending vehicle. The learned Member adjudicated the matter after considering documentary evidence and oral evidence and granted compensation of Rs.3,37,000/- in MVC No.696/2007 and Rs.60,000/- in MVC No.1009/2007.
6. The contention of the insurance company as submitted by the learned counsel Sri Ravi Shankar is mainly on the involvement of vehicle. It was submitted that driver of lorry bearing registration No.KA-26-4949 did not commit accident and there is no point of reliability and even in the FIR there is no mention of registration number of lorry or the name of the accused. It can be noticed only in the charge sheet. Learned counsel would further submit that even the evidence of eye witness fortifies the stand of the insurance company to the effect that vehicle of the insured was not involved.
7. The learned counsel for petitioners in both the cases Sri K Shashikanth Prasad would submit that happening of the incident and name of the accused is a closed chapter as the driver who is accused herein is accused in the connected criminal case in Crime No.54/2007 for the offence punishable under Sections 279, 337 and 304A of IPC and Section 187 of Motor Vehicles Act and has pleaded guilty. The complaint was lodged by Dyamesh who is injured filed MVC No.1009/2007 and also claimants-dependants of Thimma Reddy filed MVC No.696/2007. Learned counsel for petitioners submits that compensation awarded is very much on the lower side and insists for enhancement in both the cases.
8. In the circumstances, the moot question that arises for consideration would be involvement or non- involvement of lorry bearing registration No.KA-26- 4949 and discrepancy between the contents of Motor Vehicles Accident report(MV) and FIR and according to MVA damages shown in Exhibit R-3 are as under:
1.Front Wheel with mud guard damaged.
2.Front left side indicate damages.
9. Learned counsel for insurance company would submit that eye witnesses to the incident have given their statement before the police that the accident did not happen as per the version of the claim petition. Despite the said materials that were available and reliable, learned Member committed serious error in disposing of the matter and granting compensation.
10. Learned counsel for petitioners controverts the submissions made by learned counsel for insurance company. It is the case of the claimants that death of Thimma Reddy and injuries sustained by Dyamesh is due to the accident. The point that is being stressed assertively by learned counsel for insurance company is that there is statement which states loud and clear about non involvement of lorry bearing registration No.KA-26-4949. It is to be observed that the case of the insurance company is that offending vehicle was not involved in the accident but not identifiable and clearly ascertainable fact as to discharge other vehicle that committed the accident, as it is the substance of the submissions by the learned counsel for insurance company that the present offending vehicle was not the one that was involved. However, the offending vehicle is submitted to be not known to the insurance company which is not acceptable. The statement relied upon by the insurance company said to be eye witnesses are that of all witnesses under Section 161 of Cr.P.C in the connected criminal case. Learned counsel for claimant-cross objectors would submit that the driver of the lorry has pleaded guilty of the accident. Further insurance company being an institution stops at the point of litigation or if it was really made to suffer pecuniary liability illegally by other person no action is taken as per law. Thus it is passive approach and in this connection it also goes diagonally opposite to its stand. The statement of the witnesses are not sworn testimony. The statement regarding damage to the front side of the motorcycle falsifies the contention of the claim petition. The complaint states that from hind side. The non affect of the damage to the vehicle on front side can never exclusively held to be the cause of accident. In the over all context and circumstances, I find that the material relied upon by the claimants in both the cases do not appear to be doubtful or suspicious and finding regarding negligence or pleading guilty fortifies the same. Thus, I find there are no circumstances or point of law driving to interfere with the Judgment regarding allowing the petitions in part.
11. Cross objections are preferred by Dyamesh and dependants of deceased Thimma Reddy. The data available for consideration are the deceased victim Thimma Reddy is aged 45 years as on the date of accident and his dependants are three in numbers and they claimed deceased Thimma Reddy was earning Rs.1,00,000/- from agriculture. Insofar as Dyamesh is considered he is said to be meter reader in BESCOM and sustained following injuries as per wound certificate Exhibit -P-9.
(i) Contusion 5x5 cm over forehead (ii) Abrasion 4x4 cm just above eyebrow (iii) Contusion 5x5 cm over zygamatic region (iv) Lacerated wound 3x1/2 cm over first interdigital space (R) foot.
(v) Tenderness over tip and (R) II toe (vi) Contusion 3x3 cm over (R) knee joint (vii) Tenderness over (R) third toe (viii) Tenderness over (R) fourth toe Injuries No.6, 7 and 8 are grievous and injuries 1, 2, 3, 4 and 5 are simple in nature.
12. It is observed by the learned Member that no medical bills are produced in case of injured Dyamesh and doctor is not examined. However considering the injuries, compensation of Rs.60,000/- is granted which appears to be just and proper and no interference is required and at the same time there are no grounds to set aside the award.
13. Compensation granted by the Tribunal to dependants of deceased Thimma Reddy is as under:
DESCRIPTION AMOUNT Loss of dependency Rs.3,12,000.00 Consortium Rs. 10,000.00 Loss of estate Rs. 10,000.00 Funeral Expenses Rs. 5,000.00 Total Rs.3,37,000.00 14. Income considered by the Tribunal at Rs.3,000/- per month and income claimed by his wife is Rs.1,00,000/- and deceased Thimma Reddy was aged 45 years, applicable multiplier is `13’. In the circumstances, I find the income in the absence of specific document in the present case appears to be just and proper at Rs.3,000/-. However, future prospects of 25% should have been considered and Tribunal erred in not considering the same. Thus, compensation towards `loss of dependency’ would be as under:
Rs.3,000+ 750(25% future prospects) Rs.3,750-1,250 (1/3rd personal and living expenses) Rs.2,500x12x14= Rs.4,20,000 Conventional heads Rs. 70,000 Just compensation Rs.4,90,000 Less: awarded by Tribunal Rs.3,37,000 Enhancement Rs.1,53,000 15. Thus, in the context and circumstances of the case, total amount of compensation which claimant- Dyamesh is entitled is Rs.60,000/- as injured in respect of MVC No.1009/2007. Dependants of Thimma Reddy in MVC No.696/2007 should have been granted total compensation of Rs.4,90,000/- as against Rs.3,37,000/-.
16. Thus, learned Member erred in awarding Rs.3,37,000/- and interest awarded at the rate of 6% p.a. appears to be just and proper and it is maintained.
17. In the result claimants in MVC No.696/2007 are entitled for enhanced compensation of Rs.1,53,000/- with interest @ 6% p.a.
Hence, the following:
ORDER 1. MFA Nos.8096/2009, 8094/2009 and MFA Crob No.128/2010 are dismissed.
2. MFA Crob No.127/2010 is partly allowed.
3. Judgment and award dated 15.09.2009 passed in MVC No.696/2007 is modified by granting enhanced compensation of Rs.1,53,000/- with interest @ 6% p.a.
4. Insurance company is directed to deposit the enhanced compensation amount with interest within four weeks from the date of receipt of certified copy of this order.
Amount in deposit be transferred to Tribunal.
Sd/- JUDGE SBN