IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.5174/2019 C/W M.F.A.Nos.5596/2019, 5598/2019, 5175/2019(MV) IN MFA No.5174/2019: BETWEEN:
LEGAL MANAGER HDFC ERGO GIC LTD., 2ND FLOOR, No.25/1, BUILDING No.2, SHANKARANARAYANA BUILDING, MG ROAD, BANGALORE-560 001.
(BY SRI PRADEEP B, ADVOCATE) AND:
1 . SMT. NETHRA @ NEETHRA AGED ABOUT 26 YEARS, W/O LATE RANJESH KUMAR @ RANJITH KUMAR.
2 . KUM. VANDANA AGED ABOUT 8 YEARS, D/O.LATE RANJESH KUMAR @ RANJITH KUMAR.
SINCE RESPONDENT No.2 IS MINOR, WILL BE REPRESENTED BY HER MOTHER AND N/G RESPONDENT ...APPELLANT No.1 SMT.NETHRA @ NEETHRA.
3 . SMT. LAKSHMAMMA AGED ABOUT 57 YEARS W/O LATE VENKTAPPA.
ALL ARE ABOVE WILL BE R/AT LAKKUR VILLAGE POST & HOBLI MALUR TALUK KOLAR DISTRICT.
4 . M NARAYANAPPA MAJOR, S/O MUNIYAPPA, KANIVENAHALLI VILLAGE & POST, MALUR TALUK, KOLAR DISTRICT.
...RESPONDENTS (BY SRI SHRIPAD V SHASTRI, ADVOCATE FOR C/R-1) THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.12.2018 PASSED IN MVC No.3060/2017 ON THE FILE OF THE MEMBER, PRINCIPAL MACT, CHIEF JUDGE, COURT OF SMALL CAUSES, BENGALURU, AWARDING COMPENSATION OF Rs.10,52,202/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA No.5596/2019: BETWEEN:
1 . SMT. NETHRA @ NEETHRA W/O. LATE RANJESH KUMAR @ RANJITH KUMAR, AGED ABOUT 26 YEARS.
2 . KUM. VANDANA D/O LATE RANJESH KUMAR @ RANJITH KUMAR, AGED ABOUT 8 YEARS.
3 . SMT. LAKSHMAMMA W/O LATE VENKATAPPA, AGED ABOUT 57 YEARS.
PETITIONER No.2 IS SINCE MINOR REPTD. BY HER MOTHER AND NATURUAL GUARDIAN PETITIONER No.1 SMT.NETHRA @ NEETHRA.
PETITIONERS ARE RESIDING AT LAKKUR VILLAGE POST AND HOBLI MALUR TALUK, KOLAR DISTRICT.
(BY SRI SHRIPAD V SHASTRI, ADVOCATE) AND:
1 . SRI M NARAYANAPPA MAJOR IN AGE, S/O MUNIYAPPA, KANIVENAHALLI VILLAGE & POST, MALUR TALUK, KOLAR DISTRICT.
...APPELLANTS 2 . THE LEGAL MANAGER M/S. HDFC ERGO GENERAL INSURANCE CO. LTD., No.25/1, 2ND FLOOR, BUILDING No.2, SHANKARANARAYANA BUILDING, M.G. ROAD, BENGALURU-560 001.
...RESPONDENTS (BY SRI B PRADEEP, ADVOCATE FOR R-2) THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.12.2018 PASSED IN MVC No.3060/2017 ON THE FILE OF THE MEMBER, PRINCIPAL MACT, CHIEF JUDGE, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA No.5598/2019:
BETWEEN:
SRI. S. YOGESH @ YOGESH S/O SHANKARAPPA AGED ABOUT 25 YEARS, R/AT LAKKUR VILLAGE, POST & HOBLI, MALUR TALUK, KOLAR DISTRICT. ...APPELLANT (BY SRI SHRIPAD V SHASTRI, ADVOCATE) AND:
1 . SRI M NARAYANAPPA MAJOR IN AGE, S/O MUNIYAPPA, KANIVENAHALLI VILLAGE AND POST, MALUR TALUK, KOLAR DISTRICT.
2 . THE LEGAL MANAGER M/S HDFC ERGO GENERAL INSURANCE CO., LTD., No.25/1, 2ND FLOOR, BUILDING No.2, SHANKARANARAYANA BUILDING, M .G ROAD, BENGALURU-560 001.
...RESPONDENTS (BY SRI B PRADEEP, ADVOCATE FOR R-2) THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.12.2018, PASSED IN MVC No.3061/2017, ON THE FILE OF THE MEMBER, PRINCIPAL MACT AND CHIEF JUDGE, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA No.5175/2019: BETWEEN:
LEGAL MANAGER HDFC ERGO GIC LTD., 2ND FLOOR, No.25/1, BUILDING No.2, SHANKARANARAYANA BUILDING, MG ROAD, BANGALORE-560 001.
...APPELLANT (BY SRI PRADEEP B, ADVOCATE) AND:
1 . S YOGESH @ YOGESH AGED ABOUT 25 YEARS, S/O SHANKARAPPA, R/AT LAKKUR VILLAGE, POST & HOBLI, MALUR TALUK, KOLAR DISTRICT.
2 . M NARAYANAPPA MAJOR, S/O MUNIYAPPA, KANIVENAHALI VILLAGE & POST, MALUR TALUK, KOLAR DISTRICT.
…RESPONDENTS (BY SRI SHRIPAD V SHASTRI, ADVOCATE FOR C/R-1) THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.12.2018 PASSED IN MVC No.3061/2017 ON THE FILE OF THE MEMBER, PRINCIPAL M.A.C.T. AND CHIEF JUDGE, COURT OF SMALL CAUSES, BENGALURU, AWARDING COMPENSATION OF Rs.30,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
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. Heard the learned counsel who are present before the court.
3. These four appeals are directed against the judgment and award dated 10-12-2018 passed in MVC Nos.3060/2017 and 3061/2017 by the learned Chief Judge, Court of Small Causes and Member, Principal MACT, Bangalore, wherein, the claim petitions filed by Smt.Nethra @ Neethra aged about 24 years, wife of deceased Ranjesh Kumar @ Ranjithkumar along with her children and by one Yogesh came to be allowed in part.
4. 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.
5. The connection between two cases are stated as under:
Sl.No. MFA No. and filed by whom 1. 5174/2019 Insurance Company 2. 5596/2019 Petitioners/dependants of deceased 3. 5598/2019 Petitioner MVC Number Date of disposal and result 3060/2017 10-12-2018 Allowed in part 3060/2017 10-12-2018 Allowed in part 3061/2017 10-12-2018 Allowed in part 4. 5175/2019 Insurance Company 3061/2017 10-12-2018 Allowed in part 6. In order to avoid confusion and overlapping, the parties herein are referred to in accordance with their rankings held by them before the Tribunal.
7. The details of the accident connecting the road traffic accident is stated to have been occurred at 09:00 p.m. on 22.11.2016 when the deceased Ranjesh Kumar and injured Yogesh were traveling on the motorcycle bearing registration No.KA-08/V.0422 from the Malur towards Lakkur as rider and pillion rider. The rider Ranjesh kumar was riding the motorcycle slowly and cautiously and while they were proceeding near R.G.Convention Hall, at that time, lorry bearing No.KA- 04-7748, driven by its driver in a rash and negligent manner so as to endanger the human safety of others came in the same direction and dashed against the motorcycle in which the deceased Ranjesh kumar and Yogesh who is a pillion rider were traveling from backside. Because of which rider Ranjesh kumar sustained grievous injuries and succumbed to them at the spot and whereas, pillion rider Yogesh sustained grievous injuries.
8. It is stated that the dead body of deceased Ranjesh Kumar was shifted to government hospital. Further formalities have been completed. Claimants incurred expenditure in the said connection. It is stated that deceased is aged about 26 years as on the date of accident and was earning Rs.18,000/- per month by working as mason and maintaining the family. The petitioners are the wife, daughter and mother of the deceased were fully dependent on his income and lost his love and affection. They claimed compensation of Rs.25,00,000/-.
9. Insofar as claimant in MVC No.3061/2017 is concerned, he sustained grievous injuries and immediately, he was shifted to Government Hospital, Malur wherein first aid was given and thereafter, he was shifted to SDUMC Hospital, Kolar where he has taken treatment as an inpatient and spent huge amount for his treatment. Further, it is stated that, he was aged about 23 years, doing mason work and earning Rs.18,000/- per month. Since injuries sustained in the accident resulted in permanent disability, he has not only suffered loss of income but also suffered future loss of income.
10. Insurance Company resisted the claim petitions contending that petitions are not maintainable for non joinder of necessary and proper parties and driver of the lorry had no valid and effective DL and rider of the motor cycle without wearing the helmet was riding the motor cycle.
11. Learned member on the basis of the oral evidence of PWs 1 and 2 and documentary evidence of Exs.P1 to P 16 on behalf of petitioners and oral evidence of RW` and 2 and documentary evidence of Ex R1 and 2 on behalf of respondents, allowed the claim petitions in part and granted compensation of Rs.10,52,000/- after deducting 25% towards contributory negligence in MVC No.3060/2017 and Rs.30,000/- in MVC No.3061/2017 together with interest at 6% per annum from the date of petition till realization and directed the Insurance company to pay and recover from the owner of the offending vehicle.
12. The claimants in both the petitions have preferred appeals challenging the quantum and the apportionment of the liability. The insurance company in its appeals seek for cancellation of judgment and award and contends to dismiss the appeals filed by the claimants. Thus, court is disposing of these four appeals.
13. Learned counsel for the Insurance Company Sri B. Pradeep would submit that both the petitions are not maintainable and suffers from non joinder of necessary and proper parties. The driver of lorry bearing Registration No. KA.04.7748 never had valid licence. Further rider of the motor cycle was negligent as he was not wearing helmet at the time of accident in the process of overtaking the lorry, lost control over his vehicle and dashed against the rear right side wheel of the lorry and he is solely responsible for the accident and the same is corroborated by IMV report. The sequence of events establish that the lorry has been wrongly implicated by the police in chargesheet by colluding with the complainant for the sake of compensation.
14. Learned counsel for the claimants in both the petitions would submit that the compensation awarded is too low and seeks for enhancement. He would further submit that the learned Member erred in deciding the aspect of negligence by fixing 25% on the deceased, rider of the motor cycle and 75% on the driver of the Lorry.
15. Insofar as quantum of compensation in MVC No.3060/2017 is concerned, the learned Member has calculated the compensation payable to the claimants at Rs.14,02,936/- and fixed the contributory negligence of the deceased to the extent of 25% and the driver of the lorry to the extent of 75% and after deducting 25% i.e. Rs.3,50,734/- has awarded Rs.10,52,202/- together with interest at the rate of 6% p.a. from the date of petition till recovery in full. Insofar as the petitioner in MVC No.3061/2017 is concerned, considering that injured claimant has sustained multiple abrasions over left upper limb with avulsion fracture involving styloid process of left ulna, global compensation of Rs.30,000/- is granted together with interest at 6% p.a. from the date of petition till its realization.
16. Insofar as compensation in respect of the loss of dependency in MVC No.3060/2017 is concerned, the learned Member has considered the monthly income at Rs.7,000/- added 40% towards future prospects, deducting 1/3rd for personal and living expenses and applying 17 multiplier, awarded Rs.13,32,936/- towards loss of dependency and also awarded Rs.70,000/- towards conventional heads.
17. Learned counsel Sri. B. Pradeep representing the Insurance Company would submit that accident happened due to the negligence of rider of the motor cycle and for compensation sake, petitioners have impleaded the lorry as the offending vehicle.
18. Learned counsel for claimants in MVC No.3060/2017 would submit that the compensation is assessed unreasonably on the lower side and he would submit that under conventional heads an amount of Rs.70,000/- awarded is totally less compared to the debacle taken up in the family in the form of death of Ranjesh kumar. In this connection, it was submitted that the loss of estate should have been considered at Rs.1,00,000/- and monthly income assessed at Rs.7,000/- is too less.
19. The compensation is ordered to be paid by the Insurance Company. The offending vehicle lorry is stated to be not possessing the permit as such, the learned member in his wisdom directed the Insurance Company to pay the compensation and then recover the same from owner of the lorry, offending vehicle.
20. Insofar as negligence is concerned, it is a breach of legal duty to take care of oneself and others. It is a state of don’t care attitude in different being least bothered about regorocity of action or inaction which are supposed to be maintained at crucial stages.
21. Learned counsel Sri B. Pradeep for Insurance Company would submit that there was no occasion for the rider of the motor cycle to go and dash against he lorry from the rare side. At the same time, learned counsel for the claimants would submit that the negligence is confirmed on the driver of the lorry and even a criminal case for the offences punishable under section 279 and 304A of IPC is registered against the driver of the lorry in Crime No.342/2016. Thus, I do not find that Insurance Company ahs established the negligence on the rider of the motor cycle. I find the contention of the Insurance Company regarding negligence is not entertainable.
22. Insofar as quantum of compensation is concerned, deceased Ranjesh Kumar Ranjeethkumar was stated to be a mason and the income is considered at Rs.7,000/- per month which in my considered view is neither low nor high It appears to be a reasonable one considering the grant of 40% for future prospects as well. Again, insofar as compensation under conventional heads is concerned, the contention of learned counsel regarding compensation under conventional heads and enhancement of the same under the respective heads does not hold legal force in it. An amount of Rs.70,000/- is assessed by calculating the compensation in a reasonable manner and in accordance with the principles laid down by the Apex Court in this regard.
23. An amount of Rs.30,000/- granted as global compensation to the claimant/injured in MVC No.3061/2017 also does not appears to be unreasonable, considering the nature of injuries and disability.
24. In the light of the above observation, I find the apportionment of negligence between the deceased Ranjesh and driver of the offending lorry is stated to be at 25:75. However, there is no contributory negligence leveled to the petitioner Yogesh, pillion rider in the connected case. In the circumstances, I do not find there are grounds to alter the apportionment of negligence. The judgment and award is quite reasonable and deserves to be confirmed.
25. In the light of the above observation, I do not find there are grounds either to increase or to decrease the quantum of compensation or in both the appeals or negligence fixed on the deceased.
26. In the result, the appeals preferred by the Insurance Company and the claimants fail and are rejected.
Amount in deposit be transmitted to the jurisdictional tribunal forthwith.
tsn* Sd/- JUDGE