IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2019 PRESENT THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MFA NO.385 OF 2016 (MV) BETWEEN:
NATIONAL INSURANCE COMPANY LTD., REGIONAL OFFICE, NO.144, SHUBHARAM COMPLEX, M.G.ROAD, BENGALURU – 560001. REPRESENTED BY ITS ADMINISTRATIVE OFFICER, C.K.PARIMALA (BY SRI L. SREEKANTA RAO, ADVOCATE) AND:
1. SMT. SAROJA, W/O LATE RAMEGOWDA, ALIAS RAMKUMAR, AGED ABOUT 29 YEARS 2. SANMAYI 5 YEARS, S/O LATE RAMEGOWDA, ALIAS RAMKUMAR, SINCE MINOR REP. BY HIS ...APPELLANT MOTHER SMT.SAROJA.
3. MARIYAPPA GOWDA, S/O LATE THIMMEGOWDA, AGED ABOUT 73 YEARS 4. SMT. LAKSHMAMMA 64 YEARS, W/O MARIYAPPA GOWDA, ALL ARE R/AT KUDUR VILLAGE, MAGADI TALUK, RAMANAGAR DIST.
5. SMT.SUJATHA, 42 YEARS, W/O LATE ESHARPRASAD, R/AT NO.954, 2ND MAIN ROAD, MC BADAVANE, GOVINDARAJNAGAR, BANGALORE – 560040.
6. ANANTHA RAMU, S/O GINNAGOWDA, DABBASPETE POST, NELAMANGALA TALUK, BENGALURU RURAL DISTRICT-562 122.
...RESPONDENTS (BY SRI CHANDRASHEKARAIAH S., ADVOCATE FOR R1-5; R6 SERVED & UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:10.09.2015 PASSED IN MVC NO.2365/2014 ON THE FILE OF THE 2ND ADDITIONAL SMALL CAUSES JUDGE & 28TH ACMM, BENGALURU, AWARDING COMPENSATION OF RS.15,27,500/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
THIS MFA COMING ON FOR ADMISSION THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
JUDGMENT The Insurance Company has filed the top noted appeal questioning the judgment and award dated 10.09.2015 passed in MVC.No.2365/2014.
2. The case of the respondents-claimants before the Tribunal is that on 25.04.2014 at about 7.45 a.m. one M.Ramegowda @ Ramakumar, who is the husband of claimant No.1 and father of claimant Nos.2 and 3 and son of claimant No.4 was proceeding on a Hero Honda Motorcycle bearing Reg.No.KA-52-E- 8118 as a pillion rider. At that juncture, the rider of the said bike namely Anantharamu, on account of his rash and negligent riding, applied sudden breaks in front of Bangalore Bakery as a result of which, the deceased fell down and sustained grievous injuries all over the body. The said Ramegowda was shifted to Government Hospital, Tumakuru and was given first aid treatment and thereafter, he was shifted to Nimhans Hospital, Bengaluru for further treatment. The husband of first claimant on account of grievous injuries, succumbed on 26.04.2014 at about 9.00 a.m.
3. Based on these averments, the claimants filed claim petition claiming compensation of Rs.50,00,000/- by contending that the deceased was running a Chicken Centre and earning a sum of Rs.60,000/- p.m.
4. On receipt of notice, the present appellant, who was arrayed as second respondent before the Tribunal contested the proceedings by filing written statement. The appellant denied the involvement of the motor bike and also disputed the contention of the claimants that the deceased was proceeding as a pillion rider. The appellant would specifically contend that the deceased was riding the vehicle involved in the accident.
5. Based on the rival contentions, the Tribunal formulated issues and the respondents-claimants in support of their contentions, examined the widow of the deceased i.e., claimant No.1 as PW.1 and two witnesses as PWs.2 and 3 and to corroborate oral evidence, produced documentary evidence vide Exs.P-1 to P-24 . The present appellant examined one witness as RW.1 and produced Exs.R-1 to R-4. The Tribunal having examined the material on record, answered issue No.1 in the affirmative by holding that the accident was caused due to rash and negligent riding by the rider of the motor bike. The Tribunal having examined the evidence in regard to the income of the deceased, took the income of the deceased at Rs.7,000/- p.m. Having taken the monthly income at Rs.7,000/-, the Tribunal added 50% towards future prospects by holding that the deceased was aged about 40 years and thereby proceeded to award compensation of Rs.14,17,500/- towards ‘loss of dependency’. Being aggrieved by the quantum of compensation and challenging the liability on the ground of implication of the vehicle, the Insurance Company is in appeal.
6. Heard the learned counsel appearing for the appellant and learned counsel for the respondents.
7. Learned counsel for the appellant urging the grounds raised in the appeal memo would vehemently argue that the Tribunal erred in fastening the liability on the Insurance Company. Learned counsel for the appellant would contend that a false complaint was filed implicating the vehicle in the accident and to buttress his argument, he would contend that a notice was issued to the owner of the bike and hence, would contend before us that the Insurance Company is liable to be exonerated on the ground that the vehicle was not at all involved in the accident. This contention cannot be accepted in the light of the conclusion arrived by the Tribunal. The Tribunal has examined the lodging of FIR as per Ex.P-1, wherein a case came to be registered against the rider of the bike on account of his rash and negligent driving. On perusal of Ex.P-6 - charge sheet, it is clearly evident that the rider of the bike was charge sheeted for the offences and in this background, the argument of the learned counsel for the appellant that there are some discrepancies in the postmortem report in regard to the fact as to who was riding the bike cannot be taken as a rebuttal evidence and a holistic view has to be adopted by the Tribunal and the Courts, once the competent authority files the charge sheet. Based on these materials, the Tribunal rightly held that the accident has occurred due to rash and negligent riding by the rider of the biker and we do not find any infirmities in the reasoning assigned by the Tribunal while answering issue No.1 in the affirmative.
8. The next contention raised by the learned counsel for the appellant that the Tribunal having taken the age of the deceased at 40 years was not at all justified in adding 50% of the income towards future prospects while determining compensation under the head ‘loss of dependency’. We find some force in the submission made by the learned counsel for the appellant. The Tribunal having taken the age of the deceased at 40 years who was self employed, was not justified in adding 50% towards future prospects. This reasoning appears to be erroneous and the same requires modification. We do not find any sustainable grounds to disturb the income assessed by the Tribunal. The income of the deceased arrived at Rs.7,000/- p.m. appears to be just and proper and if 40% is added towards future prospects, the income of the deceased has to be taken at Rs.9,800/- and if 1/4th is deducted towards personal expenses of the deceased, the monthly income of the deceased would come to Rs.7,350/- and the proper multiplier applicable to the present case is 15. Hence, the compensation payable under the head ‘loss of dependency’ comes to Rs.13,23,000/- (7,350x12x15). The compensation determined by the Tribunal under the other heads is just and proper and as such, would not warrant any interference by this Hon’ble Court and the same would stand undisturbed.
9. In the result, the appeal filed by the appellant – Insurance Company is partly allowed and the respondents-claimants are entitled to a total compensation of Rs.14,33,000/- as against Rs.15,27,500/- awarded by the Tribunal, which shall be paid with interest at the rate of 6% per annum from the date of petition till deposit.
The order of the Tribunal insofar as apportionment and investment remains unaltered.
Sd/- JUDGE Sd/- JUDGE CA