IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL 2019 PRESENT THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD M.F.A.No.902 OF 2016 (MV) CW M.F.A. No.1245 OF 2017(MV) IN MFA NO.902/2016 BETWEEN:
The Reliance General Insurance Company Ltd., 5th Floor, Centenary Building M G Road, Bengaluru-560 001. …. Appellant (By Sri O.Mahesh, Advocate) AND 1. Sri. Damodar Sari S/o Sri. Satari Bari Aged about 56 years 2. Smt. Tirsi Bari W/o Damodar Bari Aged about 50 years Both are Residing at No.54, Birsanagar Zone No.4 Behind Birsanagar Thana Birsanagar Post Jamshedpur, Purbi Singhabhum Jharkhand-831 004.
3. God Gift Tours & Travels No.1375. 2nd Main, 2nd Cross Kaverinagar, Whitefield Road Mahadevapura, Bengaluru-560 048. … Respondents (By Sri. K.T. Gurudeva Prasad, Advocate for R1 & R2: R3 is served unrepresented) This MFA is filed under Section 173(1) of MV Act against the Judgment and award dated: 7.11.2015 passed in MVC No.3814/2014 on the file of the 2nd Additional Small Causes Judge & 28th ACMM, Bengaluru & C/C of Small Causes Judge, 26th ACMM, awarding the Compensation of Rs.1,08,50,148/- with interest at 6% p.a. from the date of petition till the deposit.
IN MFA No. 1245/2017: BETWEEN:
1. Sri. Damodar Bari S/o Satari Bari Aged about 58 years 2. Smt. Tirsi Bari W/o Damodar Bari Aged about 52 years AND Both are Residing at No.54, Birsanagar, Zone No.4 Behind Birsanagar Thana Birsanagar Post Jamshedpur, Purbi Singhabhum Jharkhand-831 004. …. Appellants (By Sri K.T.Gurudeva Prasad, Advocate) 1. God Gift Tours & Travels No.1375. 2nd Main, 2nd Cross Kaverinagar, Whitefield Road Mahadevapura, Bengaluru-560 048.
2. The Reliance General Insurance Co. Ltd., 5th Floor, Centenary Building M G Road, Bengaluru-560 001, By its Manager. … Respondents (By Sri.O.Mahesh, Advocate for R2: R1 is served unrepresented) This MFA is filed under Section 173(1) of MV Act against the Judgment and award dated:07.11.2015 passed in MVC No.3814/2014 on the file of the 2nd Additional Small Causes Judge & XXVIII ACMM and C/C of Small Causes Judge, XXVI ACMM (SCCH-9), partly allowing the claim petition for compensation seeking enhancement of compensation.
These MFAs, having been heard and reserved for orders on 08.04.2019, coming on for pronouncement this day, NARENDRA PRASAD J., delivered the following:
JUDGMENT M.F.A.No.902/2016 is filed by the Insurance Company challenging the judgment and award passed by the Motor Vehicles Accident Claims Tribunal, Bengaluru (SCCH-9) (hereinafter referred to as the ‘Tribunal’ for the sake of brevity), dated 07.11.2015 in MVC No.3814/2014. Claimants have also preferred M.F.A.No.1245/2017 against the same judgment and award seeking enhancement of compensation. Since the challenge is to the same judgment and award, both the appeals are clubbed together and are being disposed of by this common judgment.
2. For the sake of convenience, parties herein shall be referred to in terms of their status before the Tribunal.
3. Brief facts of the case according to claimants are, on 07.08.2014 at about 10.45 p.m. when deceased, Divakar Bari was going on a motorbike bearing registration No.UP-65/AV-7534, near Trinity Metro Station, M.G.Road, Bengaluru, at that time, a lorry bearing registration No.KA- 53/B-0670 came in a rash and negligent manner and dashed to the motorbike, on which deceased was going, due to which, deceased sustained multiple injuries and died on the way to the hospital. Since the claimants had lost the sole bread earner of the family, claimants being the parents of the deceased filed the claim petition, seeking compensation on account of death of their son.
4. The claimants contended that deceased was aged about 26 years and he was working as a Software Engineer in Zynga Game Network India Pvt. Ltd., and earning Rs.1,00,000/- per month and that he was utilizing the entire amount for maintenance of his family. Therefore, they sought for compensation on various heads.
5. In response to the notice issued by the Tribunal, respondent No. 2 - Insurance Company appeared through their advocate and filed the written statement and admitted that the offending vehicle was insured with them and insurance policy was in force as on the date of accident. They denied the petition averments regarding the accident, the manner in which the accident took place and rash and negligent driving of the offending lorry by its driver, as the cause for the accident. They also denied the age, avocation and income of the deceased and that claimants were depending on the deceased and hardship caused to them due to the death of deceased. They contended that accident was due to the negligence of the deceased as he was riding the motorbike without a helmet, without driving licence and without following traffic rules. They also contended that driver of the offending lorry was not having a valid driving licence and lorry had no valid permit and fitness certificate and there was violation of policy conditions by the owner of the lorry. Therefore, Insurance Company was not liable to pay compensation and sought for dismissal of the claim petition.
6. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration:-
“1. Whether the petitioners prove that the death of Divakar Bari in the accident was due to the rash and negligent driving by the driver of the HGV lorry bearing Reg.No.KA-53/B-570 that took place near Trinity Metro Station, M.G.Road, Bengaluru on 07.08.2014 at about 10.45 p.m.?
2. Whether the petitioners are entitled for compensation?
3. What order or award?
7. In support of their case, claimants examined father of the deceased as PW1 and another witness as PW2 and produced twenty eight documents as Exs.P-1 to P- 128, while respondent-insurer neither examined any witness nor produced any document.
8. On the basis of the said evidence, Tribunal by judgment and award dated 07.11.2015 awarded compensation of Rs.1,08,50,148/- with interest at the rate of 6% p.a. Being aggrieved by the same, Insurance Company preferred MFA No.902/2016 and claimants being not satisfied with the quantum of compensation awarded, have preferred MFA No.1245/2017.
9. Sri O.Mahesh, learned counsel appearing for the Insurance Company submitted that the Tribunal, on the issue of negligence, has wrongly given a finding that accident had occurred due to the rash and negligent driving of lorry bearing No.KA-53/B-0670. There is no eyewitness to the alleged accident. The complainant – PW2 was not an eyewitness. He came to the spot on receiving information about the alleged accident and his evidence is not credible. Secondly, he contended that the Tribunal has only relied on certain materials i.e., police documents, which are marked as Exs. P1, P3, P5, P7 i.e., FIR, spot mahazar, spot sketch and charge-sheet, respectively to come to the conclusion that due to rash and negligent driving of the driver of the offending lorry accident had occurred and Divakar Bari died due to the injuries sustained in the said accident. Thirdly, he contended that spot sketch reveals that both the vehicles were proceeding in the same direction, i.e., from west to east, motorbike which was driven by deceased, had come in contact with the lorry and due to his negligence, accident has occurred and he died. Therefore, he submitted that finding given by the Tribunal on issue No.1 is contrary to the materials available on record. Fourthly, he contended that the compensation granted by the Tribunal on various heads is on the higher side. Hence, he sought for allowing the appeal in MFA No.902/2016.
10. Per contra, Sri K.T.Gurudeva Prasad, learned counsel appearing for the claimants submitted that to prove their case the Insurance Company, has not examined any witness and they have also not examined the owner or driver of the offending vehicle. Secondly, he contended that as per the spot sketch at Ex.P5 it is very clear that both the vehicles were proceeding in the same direction. Lorry dashed to the motorbike at the hind portion. From a bare perusal of Ex.P1 - FIR, Ex.P3 - spot mahazar and Ex.P4 - inquest report, it is very clear that accident occurred due to rash and negligent driving of the driver of the offending lorry. Thirdly, he contended that compensation awarded by the Tribunal under the head ‘loss of love and affection’ and other heads is on the lower side and hence sought for enhancement of compensation.
11. We have thus heard learned counsel for the parties and perused the original record.
12. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
(i) Whether the claimants have proved that death of Divakar Bari was due to the accident that occurred on account of rash and negligent driving of the driver of lorry bearing No.KA-53/B-0670? In other words, whether the case of the insurer has to be accepted?
(ii) Whether claimants have made out a case for enhancement of compensation?
(iii) What order?
Re: Point No.1 13. According to the claimants, on 07.08.2014 when deceased was going in a motorbike bearing registration No.UP-65/AV-7534, a lorry bearing registration No.KA- 53/B-0670 dashed against the motorbike, due to which deceased sustained multiple injuries and died on the way to hospital. Immediately after the accident, PW2 gave the police complaint. The Police registered FIR and conducted spot mahazar and prepared spot sketch. By looking into those documents it is clear that both the vehicles were proceeding in the same direction and the lorry dashed against the hind portion of the motorbike. The Police, after investigation have filed the charge-sheet (Ex.P7), against the driver of the offending lorry. The owner of the lorry, despite service of summons, did not choose to appear before the Tribunal to deny the case of the claimants. The Insurance Company has neither examined any witness nor marked any document to rebut the evidence of the claimants. Even though Insurance Company has taken a specific defence about the involvement of the vehicle as well as cause of accident in order to substantiate the same except suggestion by way of a denial to PW1, nothing is elicited from the claimants’ witnesses. The accident occurred at 10.45 p.m. and complaint was lodged by Suresh Parameshwaram at 00.30 hours against the driver of offending lorry. After investigation, charge-sheet was filed against the driver of the offending vehicle. Spot mahazar and spot sketch are the clinching evidence to show the negligence on the part of the driver of the offending vehicle. Accordingly, point No.1 is answered against the insurer and in favour of the claimants.
Re-Point No.2 14. At the time of the accident, deceased was aged about 26 years and earning Rs.73,292/- per month. Tribunal, after deducting Rs.90,615/- towards annual income tax and Rs.2,400/- towards professional tax has taken the net salary of the deceased at Rs.8,46,993/- per annum. Since deceased was a bachelor, Tribunal has rightly deducted 50% of the income towards his personal expenses. Since deceased was aged 26 years, the Tribunal, in view of the law laid down by the Hon’ble Apex Court in the case of SARLA VERMA AND OTHERS vs. DELHI TRANSPORT CORPORATION AND ANOTHER reported in (2009) 6 SCC 121, has rightly applied multiplier of 17. As per the law laid down by the Hon’ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157, the Tribunal has rightly added 50% towards future prospects and has granted a compensation of Rs.1,07,99,148/- under the head ‘loss of dependency’. In the very same judgment the Hon’ble Supreme Court has held that claimants are entitled to Rs.15,000/- under the head ‘loss of estate’, Rs.40,000/- under the head ‘loss of consortium’ and Rs.15,000/- under the head ‘funeral expenses’. But the Tribunal has granted Rs.20,000/- under the head ‘loss of estate’ and Rs.25,000/- under the head ‘funeral expenses’. Hence, the same are reduced to Rs.15,000/- each. The Tribunal has granted a very meagre compensation of Rs.6,000/- under the head ‘loss of love and affection’. In view of the law laid down by the Hon’ble Supreme Court in the case of MAGMA GENERAL INSURANCE COMPANY LIMITED vs. NANU RAM AND OTHERS, reported in 2018 ACJ 2782, a sum of Rs.40,000/- each would have to be awarded under the head of ‘loss of love and affection’ to the parents of the deceased. Accordingly, the compensation granted under the head ‘loss of love and affection’ is enhanced from Rs.6,000/- to Rs.80,000/-.
15. For the reasons stated above, the award, dated 07.11.2015, stands modified as under:
16. The compensation is enhanced to Rs.
Rs.1,09,09,148/- as against Rs.1,08,50,148/-. The enhanced compensation shall carry interest at the rate of 6% p.a. from the date of claim petition till the date of realisation.
17. The enhanced compensation of Rs.59,000/- shall be apportioned equally to claimant Nos. 1 and 2. Point No.2 is accordingly answered.
18. The Insurance Company is directed to deposit the compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition, till the date of realization, within a period of six weeks from the date of receipt of a certified copy of this judgment. Point No.2 is accordingly answered.
19. Accordingly, appeal filed by the Insurance Company in MFA No.902/2016 is dismissed. Appeal filed by the claimants in MFA No.1245/2017 is allowed in part.
The amount in deposit to be transmitted to the Tribunal.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE Cm/-