IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR Miscellaneous First Appeal No.1103 of 2016 (MV-D) C/w.
Miscellaneous First Appeal No.1702 of 2016 (MV-D) IN M.F.A. NO.1103 OF 2016:
BETWEEN:
THE REGIONAL MANAGER NATIONAL INSURANCE COMPANY LIMITED, REGIONAL OFFICE NO.144, 2ND FLOOR, SHUBHARAM COMPLEX, M. G. ROAD, BANGALORE – 560 001.
BY IT’S MANAGER. ... APPELLANT (BY SRI O. MAHESH, ADVOCATE) AND:
1. ANITHA DEVI AGE 33 YEARS, W/O. LATE K.E. HANUMANTHARAYA @ HANUMANTHARAYAPPA.
2. KUMARI. GEETHA. H.
MINOR, AGED ABOUT 14 YEARS, D/O. LATE HANUMANTHARAYA K.E. @ HANUMANTHARAYAPPA.
3. KUM. GANAGASHREE @ GAGANA MINOR, AGED ABOUT 8 YEARS D/O. LATE HANUMANTHARAYA K.E. @ HANUMANTHARAYAPPA.
RESPONDENT NOS.2 AND 3 ARE MINORS, REPRESENTED BY THEIR MOTHER 1ST RESPONDENT AS A NATURAL GUARDIAN.
RESPONDENT NOS.1 TO 3 ARE RESIDING AT NO.70-70, VEERASANDRA, ANEKAL TALUK – 562 106, BANGALORE.
4. CHIKKA HANUMAPPAGARI ERANNA @ ERANNA @ ERAJJA, AGE 75 YEARS, S/O. LATE CHIKKA HANUMAPPA R/AT NO.89, KUMBARANAGEHALLI, ANANTHAPUR DISTRICT, ANDHRA PRADESH – 515 305.
5. GANGAMMA, MAJOR, W/O. RANGASWAMAIAH, THADIKAVAGILU VILLAGE, JALAMANGALA POST, KOOTGALA HOBLI, RAMANAGARA DISTRICT – 571 511. ... RESPONDENTS (BY SRI JAGADEESH G. KUMBAR FOR SRI A. SREENIVASAIAH, ADVOCATE FOR RESPONDENT NOS.1 TO 4;
RESPONDENT NO.5 – NOTICE HELD SUFFICIENT VIDE ORDER DATED 10.03.2016) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED:21.11.2015 PASSED IN M.V.C. NO.5212/2014 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, BENGALURU (SCCH-18), AWARDING COMPENSATION OF RS.43,79,000/- WITH INTEREST AT THE RATE OF 9% PER ANNUM FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
IN M.F.A. NO.1702 OF 2016:
BETWEEN:
1. SMT. ANITHA DEVI W/O. LATE HANUMANTHARAYA K.E. @ HANUMANTHARAYAPPA AGED ABOUT 33 YEARS.
2. KUMARI GEETHA H.
D/O. LATE HANUMANTHARAYA K.E. @ HANUMANTHARAYAPPA, AGED ABOUT 14 YEARS.
MINOR REPRESENTED BY THEIR MOTHER 1ST APPELLANT AS NATURAL GUARDIAN.
3. KUMARI GANGASHREE @ GAGANA D/O. LATE HANUMANTHARAYA K.E. @ HANUMANTHARAYAPPA, AGED ABOUT 08 YEARS, MINOR, REPRESENTED BY THEIR MOTHER 1ST APPELLANT AS NATURAL GUARDIAN.
APPELLANT NOS.1 TO 3 ARE R/AT NO.70-70, VEERASANDRA, ANEKAL TALUK, BANGALORE.
4. CHIKKA HANUMAPPAGARI ERANNA @ ERANNA @ ERAJJA S/O. LATE CHIKKA HANUMAPPA, AGED ABOUT 75 YEARS.
R/AT NO.89, KUMBARANAGEHALLI ANANTHAPURA DISTRICT ANDHRA PRADESH – 515305. ... APPELLANTS (BY SRI JAGADEESH G. KUMBAR FOR SRI A. SREENIVASAIAH, ADVOCATE) AND:
1. GANGAMMA W/O. RANGASWAMAIAH THADIKAVAGILU VILLAGE, JALAMANGALA POST, KOOTGALA HOBI, RAMANAGARA DISTRICT, BANGALORE.
2. THE MANAGER, NATIONAL INSURANCE COMPANY LIMITED, R.O. NO.144, 2ND FLOOR, SHUBHARAM COMPLEX, M.G.ROAD, BANGALORE – 560 001.
... RESPONDENTS (BY SRI O. MAHESH, ADVOCATE FOR RESPONDENT NO.2; RESPONDENT NO.1 - SERVED) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED: 21.11.2015 PASSED IN M.V.C. NO. 5212/2014 ON THE FILE OF III ADDITIONAL SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though these appeals are listed for admission, with the consent of learned counsel on both sides, they are heard finally.
2. M.F.A. No.1103 of 2016 has been filed by the insurance company, while M.F.A. No.1702 of 2016 has been filed by the claimants, both assailing the judgment and award passed by the Court of III Additional Senior Civil Judge and Motor Accident Claims Tribunal, Bengaluru (herein after referred to as ‘the Tribunal’, for the sake of convenience) dated 21.11.2015 passed in M.V.C. No.5212 of 2014.
3. At this stage, it may be stated that the insurance company has assailed the judgment and award both on the question of negligence as well as on quantum, while the claimants have sought for enhancement of compensation.
4. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the Tribunal.
5. The claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for the sake of brevity) seeking compensation of Rs.45,00,000/- on account of the death of Hanumantharaya @ Hanumantharayappa in a motor vehicle accident that occurred on 07.11.2014. On the fateful day, at about 6.20 a.m. Hanumantharayappa was proceeding on a motorcycle bearing Registration No.KA- 51/X-1671 on Electronic City, Phase II, towards Hosur road. When he reached near Electronic City Toll II, at that time the driver of an Indica car bearing Registration No. KA-41/B-1078 drove the same in a rash and negligent manner and dashed against the motor cycle from behind. As a result of the impact, Hanumantharayappa fell down on the road and sustained grievous injuries. He was shifted to Sparsh Hospital, where he took treatment as an inpatient for seven days, but ultimately succumbed to the injuries. Thereafter, the dead body was shifted to Victoria Hospital for post mortem examination and thereafter the dead body was handed over to his family members for funeral and obsequies ceremonies. The widow, two minor daughters and the father of deceased Hanumantharayappa filed the claim petition seeking compensation on account of the sudden death of bread earner of the family by contending that they had suffered shock and they were in penury.
6. The claim petition was contested by respondent No.2 insurer . The offending vehicle was covered by an insurance policy as on the date of the accident, but they denied the negligence on the part of the driver of the vehicle. In fact they denied the involvement of the vehicle in accident. They contended that the accident occurred due to rash and negligent riding of the motorcycle by the deceased. While denying the other averments in the claim petition the insurance company sought dismissal of the petition. First respondent, owner of the offending vehicle did not appear before the Tribunal and she was placed ex parte.
7. Based on the aforesaid pleadings, the Tribunal framed the following issues for its consideration:
1. Whether the petitioners prove that Sri Hanumantharaya K.R. @ Hanumantharayappa S/o. Chikka Hanumappagari Eranna died due to injuries sustained by him in a motor vehicle accident that was taken place on 07.11.2014, at about 6.20 a.m. near E.C. Phase II Toll, Phase II Road, Electronic City, Bangalore, involving car bearing Registration No.KA-41/B-1078 belonging to respondent No.1 and the said vehicle insured with second respondent?
2. Whether the petitioners prove that the accident has mainly occurred due to the rash and negligent driving of the driver of the said vehicle?
3. Whether the petitioners prove that they are the only legal heirs and the dependent of the deceased?
4. Whether the petitioners are entitled for compensation as prayed? If so, at what rate and from whom?
5. What order or award?
8. In support of their case, the widow of deceased Smt. Anitha Devi examined herself as P.W.1, two other witnesses, namely, T.Kunchithapatham and G.N.Jagannath Reddy were examined as P.Ws.2 and 3. Claimants produced 25 documents, which were marked as Exs.P-1 to P-25, while the insurance company examined Sri.Chandrashekar as R.W.1, who produced three documents which were marked as Exs.R-1 to R-3. On the basis of the evidence on record, the Tribunal answered issue Nos.1 to 3 in the affirmative and issue No.4 partly in the affirmative and awarded compensation of Rs.43,79,000/- with interest at the rate of 9% per annum from the date of claim petition till realization.
9. Contended that the Tribunal had awarded an exorbitant compensation and the fact that the claimants had not proved negligence on the part of the driver of vehicle Indica car, who was also not arrayed as a party before the Tribunal, the insurance company has preferred M.F.A. No.1103 of 2016, while the claimants have preferred M.F.A. No.1702 of 2016 seeking enhancement of compensation.
10. The claimants have also filed I.A. No.1 of 2016 seeking amendment of the claim petition. That the claimants had initially sought Rs.45,00,000/- on account of the death of Hanumantharayappa and by the amendment the claim is now sought to be enhanced to Rs.75,00,000/-.
11. We have heard Sri O. Mahesh, learned counsel for the insurance company and Sri Jagadeesh G. Kumbar, learned counsel for the respondent – claimants and perused the material on record as well as the original record.
12. Appellant’s counsel has made two-fold submission. Firstly, he contended that the respondent claimants have not proved negligence on the part of the driver of the Indica car, that in fact there was no negligence on his part. Therefore, they even failed to array the driver of Indica car as a respondent before the Tribunal. In the absence of the evidence of the driver, the claimants have failed to prove that he was negligent in causing the accident. He further contended that the complaint was filed by the brother of the deceased, though an eye-witness to the accident was not examined. Hence Ex.P-1 the complaint has not been proved in accordance with law.
13. He further submitted that P.W.1, the widow of deceased is not an eye-witness to the accident and her evidence cannot be taken into consideration for the purpose of proving the accident. Hence, he contended that in the absence of the complainant, who was the eye-
witness to the accident and the driver of the Indica car being arrayed as respondent before the Tribunal, there is no proof of negligence on the part of the driver of Indica car in the instant case. Therefore, the Tribunal could not have fastened the liability on the owner and insurer of the Indica car.
14. Learned counsel for the insurer next contended that the award of compensation in the instant case is exorbitant. He submitted that the Tribunal has reckoned 50% of the notional income assessed from vending newspaper and from the salary income. That the deceased was not in a permanent job. He was working in a private company and further the monthly earnings from vending newspaper was not consistent as sale was varying from month to month, and therefore, the Tribunal could not have reckoned 50% of the income towards future prospects. He submitted that at best it could have been 40%. Hence, he said that the compensation awarded on the head of loss of dependency would have to be reduced. He further submitted that the Tribunal has awarded a sum of Rs.30,000/- towards funeral expenses, whereas the employer of the deceased had already paid an amount in that regard. Therefore, no amount of compensation on the head of funeral expenses could have been awarded in the instant case. He further contended that no reason has been assigned by the Tribunal for awarding interest at the rate of 9% per annum, whereas, normally this Court as well as the Tribunals would award only 6% per annum as the rate of interest while awarding compensation. He contended that the judgment and award of the Tribunal may be set aside both on the question of negligence and also on the question of quantum of compensation awarded by the Tribunal.
15. Per contra, learned counsel for the respondent claimants in support of his appeal contended that the Tribunal has rightly answered point Nos.1 and 2 in favour of the claimants and against the insurer; that adequate evidence was produced to prove that the driver of the Indica car was negligent in causing the accident and that the death had occurred on account of the tortious negligence committed by the driver of the Indica car. He further submitted that the claimants have sought for enhancement of compensation, as the Tribunal has assessed the monthly income, particularly the earnings from newspaper vending on the lower side, which is contrary to Exs.P-23 to P-25 and hence the monthly income of the deceased may be increased and consequently compensation on the head of loss of dependency may be enhanced. He further contended that having regard to the latest dicta of the Hon’ble Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi and Others, reported in (2017)16 SCC 680 and Magma General Insurance Company Limited v. Nanu Ram and Others, reported in 2018 ACJ 2782, the claimants are entitled to additional amounts on conventional heads. He also submitted that whatever amount may have been paid by the employer of the deceased towards funeral expenses is distinct and separate, i.e., on account of the contract of employment that the deceased had with his employer and in the instant case the compensation is being awarded on account of the tortious act committed by the driver of the Indica car and hence no amount awarded towards funeral expenses given by the deceased employer could be deducted in the instant case. He submitted that there is no merit in the appeal filed by the insurance company, the same may be dismissed and the appeal filed by the claimants may be allowed by allowing the application filed by the claimants seeking amendment in the claim petition.
16. Having heard learned counsel for the respective parties and on perusal of the material on record as well as the original record, we find that the following points would arise for our consideration:
1. Whether the Tribunal was justified in fastening negligence solely on the driver of the Indica car?
2. Whether the compensation awarded by the Tribunal calls for any modification, in other words, whether the claimants are entitled to additional compensation?
3. What order?
17. The fact that on 07.11.2014 at about 6.20 a.m. Hanumantharayappa was proceeding on motor cycle bearing Registration No.KA-51/X-1671 and the motor cycle was hit by Indica car bearing Registration No.KA-41/B- 1078 and as a result of the injuries sustained in the said accident Hanumantharayappa died after seven days, has been established. The controversy is, however, that the driver of Indica car was negligent in causing the accident. The claimants have let-in both oral as well as documentary evidence. P.W.1 Smt. Anitha Devi, widow of the deceased has been examined. Of course, she is not the eye-witness to the accident. But she has produced Ex.P-1 true copy of F.I.R. with complaint; Ex.P-2 true copy of panchanama; Ex.P-3 true copy of MVA report; Ex.P-4 true copy of PM report and Ex.P-5 true copy of charge sheet. The brother of deceased, namely, E.Chandrappa, who is stated to be the eye-witness of the accident filed the complaint. Nodoubt he has not been examined by the claimants. But, whether his non-examination is fatal to the case of claimants is the question. In this regard, the contention of learned counsel for the insurance company is, it is not only the non-examination of the eye-witness to the accident, but also the fact that the driver of the Indica car not being made a party before the Tribunal is also fatal in the instant case. We do not think that non-examination of eye- witness to the accident who gave the complaint as per Ex.p-1 is fatal to the case of the claimants. In fact P.W.1, the widow of deceased, though not an eye-witness to the accident, has produced the aforesaid documents in support of the case of the claimants. Her cross-examination has not resulted in any contra or incriminating material being elicited so as to disbelieve her version with regard to negligence on the part of the driver of Indica car. In fact even though the driver of Indica car was not made a party to the proceeding before the Tribunal, nothing prevented the insurance company from examining the driver of Indica car so as to disprove the case of claimants. But, on the other hand, the same has not been done as the chargesheet was in fact filed against the driver of the Indica car pursuant to Ex.P-1, the complaint filed in the instant case. That apart, the other documentary evidence, namely, Ex.P-2 true copy of panchanama; Ex.P-3 true copy of Motor Vehicle Accident Report and Ex.P-5 chargesheet would clearly indicate that the driver of the Indica car was negligent in causing the accident. In the circumstances, we hold that the Tribunal has rightly come to the conclusion on issue Nos.1 and 2 in favour of the claimants and against the respondents. Hence, point No.1 herein is accordingly answered against the insurance company.
18. This takes us to the next point, which is with regard to the compensation awarded by the Tribunal. The Tribunal has awarded total compensation of Rs.43,79,000/- on the following heads:
obsequies ceremony expenses 5. Towards medical expenses Rs. 1,75,000/-
Total Rs. 43,79,000/-
19. It is not necessary to reiterate the contentions of learned counsel for the respective parties, except to highlight the fact that the deceased Hanumantharayappa was working as an employee in a Company called Intek Tapes Private Limited. P.W.2 is the Administrative Manager of Intek Tapes Private Limited. He was earning a sum of Rs.11,500/- per month. The same has been established as per Exs.P-12 and 13. P.W.2 has spoken about Exs.P-12 and 13 salary certificate and salary slip. Therefore, the monthly income from said Company earned by the deceased was Rs.11,500/- per month. Further the deceased was engaged in newspaper vending. Exs.P-23 to 25 and Exs.P-14 and 15 have been produced in that regard and P.W.3 G.N. Jagannath Reddy has been examined in order to establish that the deceased was also earning income from newspaper vending. The Tribunal has, however, assessed the notional income from the said work at Rs.8,000/- per month. Learned counsel for the claimants submits that in August 2014, the deceased had earned commission of Rs.17,608/- from newspaper vending work. Therefore, the Tribunal could not have assessed Rs.8,000/- per month as the income from said work. He, therefore, submitted that the income from newspaper vending ought to be enhanced. Taking note of his submission, in the light of oral and documentary evidence on record, we think that a sum of Rs.10,000/- per month ought to be assessed as the notional income from newspaper vending work since the commission from the said work is not uniform and would vary from month to month. Hence, we think Rs.10,000/- is an average amount that the deceased would have received from the said work.
20. Further we find force in the submission of learned counsel for the insurance company, who has contended that instead of 50% of the income, only 40% of the income must be taken towards future prospects, having regard to the dictum of the Hon’ble Supreme Court in the case of Pranay Sethi. Therefore, if Rs.11,500/- + Rs.10,000/- are added, the total monthly income would be Rs.21,500/-. 40% of the said income has to be added towards future prospects which would make the total at Rs.30,100/-; 1/4th of the said income had to be deducted towards personal expenses of the deceased since there are four claimants. Then the balance amount of Rs.22,575/- would have to be annualized and the appropriate multiplier of ‘16’ would have to be applied; then the compensation on the head of loss of dependency would be Rs.43,34,400/- instead of Rs.41,04,000/- awarded by the Tribunal.
21. Further bearing in mind the latest dicta of the Hon’ble Supreme Court in the case of Pranay Sethi and Magma General Insurance Company Limited (supra), a sum of Rs.40,000/- is awarded towards loss of spousal consortium to the widow of the deceased; a sum of Rs.30,000/- each is awarded to the minor daughters of the deceased towards loss of parental consortium and a sum of Rs.30,000/- is awarded to the father of the deceased towards loss of filial consortium; a sum of Rs.15,000/- is awarded towards loss of estate. Even though a sum of Rs.30,000/- may have been paid to the claimants by the employer of the deceased towards funeral expenses, i.e., on account of the contract of employment between the deceased and Intek Tapes Private Limited and the said amount may have been given on account of an insurance or E.S.I., coverage we do not think that the said amount could be deducted in the instant case as the compensation being awarded by the Tribunal under Section 166 of the M.V. Act, is on account of the tortuous liability and not on account of any employer’s duty to pay the claims in the instant case. Therefore, we do not think we could deduct the amount paid by the employer of the deceased to the claimants towards funeral expenses of the deceased. Hence, a sum of Rs.15,000/- is awarded towards funeral expenses instead of Rs.30,000/- as awarded by the Tribunal; and a sum of Rs.1,75,000/- as ordered by the Tribunal is awarded towards medical expenses. Thus, the total compensation awarded is ‘Rs.46,69,400/-’ instead of ‘Rs.43,79,000/-’. The same shall carry interest at the rate of 6% per annum instead of 9% per annum, as ordered by the Tribunal, as this Court normally awards only 6% per annum as interest in all cases arising under the Motor Vehicles Act. In the circumstances, despite accepting some of the contentions of insurance company, compensation is enhanced. Hence, point No.2 is answered in favour of the claimants.
22. In the result, I.A. No.1/2016 filed by the claimants is allowed as the award of compensation in the instant case is higher than what was originally claimed (Rs.45,00,000/-) before the Tribunal. But, we would observe that even in the absence of such an application being filed, just compensation would have to be awarded and hence the application filed, by way of precaution, by the claimants is also allowed. Point No.2 is answered in favour of the claimants.
23. In the result, the appeal filed by insurance company is dismissed. The amount in deposit before this Court to be transmitted to the Tribunal.
24. The appeal filed by claimants is allowed in part.
25. The insurance company to deposit the compensation amount with upto date interest within a period of four weeks from the date of receipt of certified copy of this judgment.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE hnm