IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF FEBRUARY 2019 BEFORE THE HON'BLE MR.JUSTICE K.SOMASHEKAR M.F.A.No.7975/2015 (MV - D) C/W M.F.A.No.1499/2016 IN M.F.A.NO.7975/2015 BETWEEN:
THE ORIENTAL INSURANCE CO. LTD., MOTOR CLAIMS HUB, 44/45, RESIDENCY ROAD CROSS, LEO SHOPPING COMPLEX, BANGALORE – 560 001.
BY ITS REGIONAL OFFICER. ... APPELLANT (BY SRI.E.S. INDIRESH, ADVOCATE) AND:
1. SMT. MANJAMMA, W/O LATE NARASIMHA MURTHY, AGED ABOUT 39 YEARS, 2. KUM.L.N.LATHA, D/O LATE NARASIMHA MURTHY, AGED ABOUT 20 YEARS, BOTH ARE RESIDING AT NO.15, 210, BANDEMATA, KENGERI SATELLITE TOWN, BANGALORE – 560 060.
3. SRI.MANJUNATH P HERLE, FATHER’S NAME NOT KNOWN MAJOR, RESIDING AT NO.1785/B, 8TH ‘A’ MAIN ROAD, KENGERI SATELLITE TOWN, KENGERI, BANGALORE – 560 060. ... RESPONDENTS (BY SRI.VASANTHAPPA, ADVOCATE FOR R1 & R2; NOTICE TO R3 IS HELD SUFFICIENT.) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.08.2015 PASSED IN MVC NO.759/2014 ON THE FILE OF THE 19th ADDITIONAL SMALL CAUSES JUDGE, MACT, 41ST ACMM, AWARDING THE COMPENSATION OF RS.13,41,000/- WITH INTEREST AT 6% P.A., FROM THE DATE OF PETITION TILL ITS REALIZATION.
IN M.F.A.NO.1499/2016 BETWEEN:
1. SMT. MANJAMMA, W/O LATE NARASIMHA MURTHY, AGED ABOUT 40 YEARS, 2. KUM.L.N.LATHA, D/O LATE NARASIMHA MURTHY, AGED ABOUT 21 YEARS, BOTH ARE RESIDING AT NO.15, 210, BANDEMATA, KENGERI SATELLITE TOWN, BANGALORE – 560 060. ... APPELLANTS (BY SRI. VASANTHAPPA, ADVOCATE,) AND:
1. M/S. ORIENTAL INSURANCE CO. LTD., MOTOR CLAIMS HUB, NO. 44/45, LEO SHOPPING COMPLEX RESIDENCY ROAD CROSS, BANGALORE – 560 001.
2. SRI.MANJUNATH P HERLE, NO.1785/B, 8TH ‘A’ MAIN ROAD, KENGERI SATELLITE TOWN, KENGERI, BANGALORE – 560 060. ... RESPONDENTS (BY SRI. E.S. INDIRESH, ADVOCATE FOR R1; R2 SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.08.2015 PASSED IN MVC NO.759/2014 ON THE FILE OF THE XIX ADDITIONAL COURT OF SMALL CAUSES JUDGE, XLI ACMM, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT These appeals are slated for admission. But with the consent of the learned counsel for the parties, they are taken up for final disposal.
2. Both the appeals are preferred against the judgment and award rendered by the Tribunal in MVC No.759/2014 dated 29.8.2015 wherein a common judgment has been passed by the Tribunal in MVC No.759/2014 and MVC No.758/2014.
3. The factual matrix of the appeals filed are as under:
It is stated in the claim petition that on 27.1.2015 at about 00.30 hours, when the deceased Ananda was riding motor cycle bearing reg. No.KA02-EQ-864 on Kommaghatta main road, when he was near Cremation Center, Bangalore city, a motor cycle bearing registration No.KA-05-Y-5959 came from opposite direction with high speed in a rash and negligent manner and dashed to the motor cycle of the deceased. As a result, the deceased Ananda died on the spot. Immediately, his body was shifted to Rajarajeshwari Medical College and hospital, wherein the post mortem was held over the dead body. Subsequently, the claimants being the legal representatives of the deceased Ananda have filed MVC No.759/2014 seeking compensation. However, the pillion rider of the motor cycle bearing registration No.KA-05-Y-5959 has also sustained injuries in the accident. He was also shifted to Rajarajeshwari Medical College and hospital and has taken treatment. He has also filed claim petition in MVC No.758/2014.
4. The claimants have taken contention that the accident caused due to the negligence of the rider of the motorcycle bearing No.KA-05-Y-5959 and respondent No.2 therein being the owner of the said offending motor vehicle, which was insured under the respondent No.1, they are liable to pay the compensation.
5. On the contrary, the respondent No.1- Insurance Company filed the written statement denying the contention taken in the claim petition contending that after investigation, the police have also filed charge sheet against the rider of the motor cycle bearing No.KA-02-EQ-864 i.e., deceased Ananda. The said vehicle was not having valid insurance as on the date of accident. There is no negligence on the part of the rider of the motor cycle bearing registration No.KA-05-Y- 5959. It is contended that though the respondent No.1 has issued policy to the vehicle of respondent No.2 and it is in force, they are only formal parties and that the claim petition against them is to be dismissed. On these grounds, sought for dismissal of the claim petition filed by the claimants.
6. The 2nd respondent-owner of the vehicle though appeared before the Tribunal, did not file the written statement and contested the matter.
7. The Tribunal has framed the issues for consideration in both the claim petitions. In MVC No.759/2014, Smt.Manjamma, mother of deceased Ananda was examined as P.W.1 and got marked 12 documents as per Exs.P1 to P12. On the other hand, respondent No.1-Oriental Insurance Company examined their official as R.W.1 and got marked 5 documents as Exs.R1 to R5. Further, on evaluating the evidence placed on record by the claimants and the Insurance Company, the Tribunal holding that the accident in question is caused due to the negligence of both riders of the motor cycle, has held that there is a contributory negligence and as such, the owner of the motor cycle bearing No.KA05 Y 5959 and the insurer of the said motor cycle are liable to pay compensation to the extent of 50% and accordingly, awarded a compensation in a sum of Rs.6,70,500/- i.e., 50% of Rs.13,41,000/- with 6% interest from the date of petition till realization. The said judgment and award passed in MVC No.759/2014 is challenged in these two appeals, one by the Insurer challenging the liability and another by the claimants seeking enhancement.
8. Sri.E.S.Indiresh, learned counsel appearing for the appellant-Oriental Insurance Company in MFA No.7975/2015 has taken me through the evidence of P.W.1 and submitted that Tribunal has committed an error in awarding compensation of 50% of Rs.13,41,000/- with 6% interest, which is on the higher side and without assigning justifiable reasons. Therefore, it requires interference in this appeal. It is also the contention of the learned counsel that the Tribunal has erroneously fastened the liability to the extent of 50% on the appellant/Insurance company without considering the evidence of R.W.1, so also, the documents at R1 to R5, so also, the objection filed by the Insurance Company to resist the claim made by the claimants. It is emphatically contended that though the Investigating Officer has laid the charge sheet against the rider of the motorcycle bearing registration No.KA- 02-EQ-864, the Tribunal has not considered the oral as well as documentary evidence to that extent also. It is submitted that the said judgment and award requires interference in this appeal and accordingly, sought to set aside the award passed against the Insurance company.
9. Per-contra, Sri.Vasanthappa, learned counsel appearing for the appellants-claimants in MVC No.1499/2016 submits that the accident has occurred due to the negligence of the rider of the motorcycle bearing registration No.KA05 Y 5959. The owner of the said motor cycle colluding with the police have filed the charge sheet against the deceased Ananda. The contributory negligence fixed on the deceased is contrary to law. The Tribunal ought to have fixed the entire liability on the owner and the insurer of the motor cycle bearing No.KA-05 Y 5959. It is the further submission of the learned counsel for the claimants that in view of the decision in the case of National Insurance Company Ltd., Vs. Pranay Sethi and Ors.
reported in AIR 2017 SC 5157, the compensation on conventional heads should be not exceeding Rs.70,000/-, as such, the amount awarded on conventional heads require to be enhanced. Accordingly, sought to dismiss the appeal filed by the Insurance Company and to enhance the amount of compensation awarded by the Tribunal.
10. As per the averments in the complaint Ex.P2, the accident has caused due to the negligence of the rider of the motorcycle bearing No.KA-05 Y 5959. In this regard, Ex.P3 the sketch map relating to the scene of accident is produced. The contents of Ex.P3 shows that the accident has occurred in the middle of the road. The Tribunal, based on Ex.P3, the sketch drawn by the police authorities, has come to the conclusion that the accident is caused due to the negligence of both the riders of the motorcycles. Similarly, the police have laid the charge sheet against deceased Ananda the rider of the motor cycle bearing registration No.KA-02-EQ- 864 and also against the owner of the motorcycle Manjunatha, S/o Bengaluraiah stating that his motor cycle was not having valid insurance coverage as on the date of accident. Hence, it is the contention of the learned counsel for the Insurance Company that the accident has caused due to the negligence of deceased himself.
11. There is no dispute about the death of deceased Ananda in the accident which occurred on 27.1.2015 at about 00.30 hours, when the deceased Ananda was riding motor cycle bearing reg. No.KA02- EQ-864 on Kommaghatta main road and that when he came near Cremation Center, Bangalore city, a motor cycle bearing reg. No.KA-05-Y-5959 came from opposite direction with high speed in a rash and negligent manner and dashed to the motor cycle of the deceased. Ex.P6 is the inquest panchanama said to be conducted by the police. Ex.P7 is the post mortem report issued by the Doctor indicating the injuries sustained by the deceased. Ex.P3 is the copy of the scene of crime drawn by the police during the course of investigation. The Tribunal has also considered the evidence of P.W.1 Smt.Manjamma, so also, the documents placed on record seeking compensation from the Insurance Company. The Tribunal has awarded a compensation of 50% of Rs.13,41,000/- on different heads. On the head loss of dependency, the Tribunal by taking the income of the deceased at Rs.8,000/- per month and by adding 50% towards future income i.e., Rs.4,000/- which would come to Rs.12,000/- and thereafter by deducting 50% towards his personal expenses which would be Rs.6,000/-, by applying the appropriate multiplier of 18 has awarded a sum of Rs.12,96,000/-. Further, towards loss of funeral expenses and love and affection, the Tribunal has awarded a sum of Rs.25,000/- and 20,000/- respectively. Further, respondents 1 and 2 before the Tribunal were jointly and severally made liable to pay the compensation, by considering the contributory negligent of 50% on both the vehicles.
12. In view of the decision rendered in Pranay Sethi’s case, referred to supra, the compensation awarded on the conventional heads requires to be enhanced in a sum of Rs.25,000/-, in addition to Rs.45,000/- already awarded by the Tribunal.
13. The Tribunal has considered the entire evidence on record and has rightly come to the conclusion, by giving justifiable reasons, in fastening the liability on the respondent No.1-Insurance Company i.e., the appellant in MFA No.7975/2015, which finding does not call for any interference by this Court. Accordingly, I proceed to pass the following:
ORDER (i) MFA No.7975/2015 preferred by the appellant-Insurance Company is hereby rejected. M.F.A.No.1499/2016 preferred by the claimants is allowed in part.
(ii) A sum of Rs.25,000/- has been enhanced towards conventional heads, which shall also carry interest @ 6%, as against Rs.45,000/- awarded by the Tribunal towards conventional heads, in view of the ratio laid down by the Apex Court, referred to supra.
(iii) The Insurance Company is directed to deposit the amount of Rs.25,000/- as well as the compensation awarded by the Tribunal in MVC No.759/2014, within a period of four weeks from the date of receipt of the copy of this Order.
(iv) The amount deposited, if any, in MFA No.7975/2015 be transmitted to the concerned Tribunal for disbursal, forthwith.
SD/- JUDGE bkp