IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH 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.6899/2014 C/W Miscellaneous First Appeal No.3433/2014(MV-D) IN M.F.A. NO.6899/2014 BETWEEN :
SRI. T M VARADARAJU, SON OF MOTAIAH, SINCE DEAD, LRS ALREADY ON RECORD 1. SMT. PARVATHAMMA, WIFE OF LATE T M VARADARAJU, AGED ABOUT 45 YEARS, 2. SRI. MANJUNATH V., SON OF LATE T M VARADARAJU, AGED ABOUT 28 YEARS, 3. KUM. SUSHMA, DAUGHTER OF LATE T M VARADARAJU, AGED ABOUT 23 YEARS, ALL ARE RESIDING AT NO.267, KANAKANAGARA, BANGALORE SOUTH, BANGALORE – 560 089.
R/O NO.816, 2ND MAIN ROAD, 3RD CROSS, KUMARASWAMY LAYOUT, BANGALORE – 78. ... APPELLANTS (BY SRI. A.K. BHAT ADV. FOR SRI. RAJU S, ADVOCATE) AND:
1. SMT. SHILPA K., W/O SRI KRISHNANAYAK, NO.4, ADIKABIR ASHRAM LAYOUT, 1ST CROSS, R.T.NAGAR, BANGALORE – 82.
2. THE BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., GROUND FLOOR, NO.31 TBR TOWER, 1ST CROSS, NEW MISSION ROAD, NEXT TO JAIN COLLEGE, J.C.ROAD, BANGALORE – 02. ... RESPONDENTS (BY SRI. O MAHESH , ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH VIDE ORDER DATED 22.06.2015) IN M.F.A.NO.3433/2014 BETWEEN:
THE LEGAL MANAGER BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED, GROUND FLOOR, NO.31,TBR TOWER, 1ST CROSS, NEW MISSION ROAD, NEXT TO JAIN COLLEGE, J.C. ROAD, BANGALORE – 560 027.
NOW AT BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD., REGIONAL OFFICE, GOLDEN HEIGHTS, 4TH LEVEL NO.1/2, 59TH CROSS, 4TH "M" BLOCK, RAJAJINAGAR, BANGALORE – 560 010.
BY IT’S MANAGER. ... APPELLANT (BY SRI. A.K. BHAT FOR SRI. RAJU S, ADVOCATES) AND:
1. SRI. T M VARADARAJU, AGED ABOUT 58 YEARS, S/O MOTAIAH, REPORTED DEAD DURING EVIDENCE OF 2ND RESPONDENT HEREIN BEFORE TRIBUNAL. HOWEVER, CAUSE TITLE NOT AMENDED BEFORE TRIBUNAL RESPONDENTS 1(a) TO 1(c) HEREIN ARE L.R’S OF DECEASED 1ST RESPONDENT AND ARE ALREADY ON RECORD TO BE TREATED TO BE SO.
1(a). SMT. PARVATAMMA, AGE 45 YEARS, W/O LATE T.M VARADARAJU, 1(b). SRI. MANJUNATH V., AGED ABOUT 28 YEARS, S/O LATE T.M VARADARAJU, 1(c). KUM. SUSHMA, AGED 23 YEARS, D/O LATE T.M VARADARAJU, ALL ARE R/O NO.267, KANAKANAGARA, BANGALORE SOUTH, BANGALORE – 560 089.
NOW AT PRESENTLY R/O NO.816, 7TH MAIN ROAD, 8TH CROSS, KUMARASWAMY LAYOUT, BANGALORE – 560 078.
2. SHILPA K., MAJOR, W/O KRISHNANAYAK, NO.4, ADIKABIR ASHRAMA LAYOUT, 1ST CROSS, R.T. NAGAR, BANGALORE - 560 032. ...RESPONDENTS (BY SRI. O MAHESH , ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH VIDE ORDER DATED 22.06.2015) THESE MISCELLANEOUS FIRST APPEALS ARE FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.03.2014 PASSED IN MVC NO.172/2010 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND ADDL. MOTOR ACCIDENT CLAIMS TRIBUNAL, RAMANAGARA, AWARDING A COMPENSATION OF RS.18,65,200/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.
THESE M.F.As COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though these appeals are listed for consideration of I.A.No.1/19 filed by claimants for early hearing, with the consent of learned counsel on both sides, they are heard finally.
2. M.F.A.No.6899/2014 is filed by claimants seeking enhancement of compensation, while M.F.A.No.3433/2014 is filed by the Insurance Company challenging the judgment and award of the Court of Addl. Senior Civil Judge & Addl. Motor Accident Claims Tribunal, Ramangara (hereinafter referred to as ‘Tribunal’ for brevity) in MVC No.172/2010, dated 05.03.2014 on the issue regarding the deceased himself being the rider of motor cycle and on the question of his legal heirs entitlement for compensation as well as on the quantum of compensation awarded by the Tribunal. Hence, these appeals have been connected together, they have been heard together and are disposed of by this common judgment.
3. For the sake of convenience, parties shall be referred to, in terms of their status before the Tribunal.
4. The legal heirs of the deceased Prashanth filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation on account of the death of Prashanth in a road traffic accident. According to the claimants, on 06.03.2010 at about 9 p.m., Prashanth was proceeding as a pillion rider on a Motor cycle bearing No.KA-04-EX-6265 along with Arun Kumar, who was riding the motor cycle on B.M. Road in a rash and negligent manner. When they were opposite Excise office, he dashed against a bicyclist, as a result, Prashanth fell down from the motor cycle and sustained grievous injuries to his head and all over his body. Immediately, he was shifted to Ramanagara hospital, thereafter to BGS Global hospital and subsequently to NIMHANS, where he died during treatment on 09.03.2010. Contending that the deceased Prashanth was a B.Com. graduate, who was hale and healthy and pursuing his MBA degree through correspondence course and was working in ING Vysya Bank and earning salary of `.15,000/- p.m.
The claimants contended that they lost the earning member of the family and were in agony and penury. Therefore, they sought for compensation on account of the death of Prashanth.
5. In response to the claim petition, first respondent- owner of the vehicle though appeared through her counsel, did not file any written statement. But, respondent No.2-Insurance Company filed its written statement contending that the averments made in the claim petition were false and incorrect and that there was a policy issued in respect of the motor cycle. That respondent No.1 was the owner of the motor cycle, but denied that Prashanth had sustained injuries on account of the accident and his legal representatives were entitled to any compensation. Respondent No.2 – insurance company took a specific contention that driver of the motor cycle was not having a valid and effective driving licence and the compensation awarded would be subject to the terms and conditions of the policy. Hence, respondent No.2-insurance company sought for dismissal of the claim petition.
6. On the basis of the aforesaid pleas, the Tribunal formulated the following five issues for its consideration:
1. vÁ:06-03-2010 gÀAzÀÄ gÁwæ ¸ÀĪÀiÁgÀÄ 9.00 UÀAmÉUÉ ²æÃ.¥Àæ±ÁAvÀ gÀªÀgÀÄ CªÀgÀ ¸ÉßûvÀgÀ eÉÆvÉ gÁªÀÄ£ÀUÀgÀ mË£ï ¨ÉAUÀ¼ÀÆgÀÄ-ªÉÄʸÀÆgÀÄ gÀ¸ÉÛAiÀÄ C§PÁj ¥ÉÆðøï oÁuÉAiÀÄ JzÀÄgÀÄUÀqÉ ªÉÆÃmÁgï gÀ¸ÉÛAiÀÄ C§PÁj ¥ÉÆðøï oÁuÉAiÀÄ JzÀÄgÀÄUÀqÉ ªÉÆÃmÁgï ¨ÉÊPï ¸ÀASÉå:PÉJ-04-EJPïì-6265 gÀ°è ¸ÀºÀ ¸ÀªÁgÀ£ÁV ¥ÀæAiÀiÁt¸ÀÄwÛzÁÝUÀ ¸ÀzÀj ªÉÆÃmÁgï ¸ÉÊPÀ ï£À ZÁ®PÀ gÀ¸ÉÛ ¥ÀPÀÌzÀ°è ¸ÉÊPÀ ï£À°è ºÉÆÃUÀÄwÛzÀÝ ªÀåQÛUÉ rQÌ ºÉÆqÉzÀÄ ªÉÆÃmÁgï ¸ÉÊPÀ ï ©Ã½¹zÀ ¥ÀjuÁªÀĪÁV ¥Àæ±ÁAvÀ UÁAiÀÄUÉÆAqÀÄ ªÀÄÈvÀ¥ÀlÖ£ÉAzÀÄ CfðzÁgÀgÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀgÉÃ?
2. ªÉÆÃmÁgï ¨ÉÊPï ZÁ®PÀ C¥ÀWÁvÀ ¸ÀªÀÄAiÀÄzÀ°è ¥ÀjuÁªÀÄPÁj qÉæ Ê«AUï Éʸɣïì ºÉÆA¢gÀ°®è JAzÀÄ JgÀqÀ£Éà JzÀÄgÀÄzÁgÀgÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀgÉÃ?
3. CfðzÁgÀgÀÄ CfðAiÀÄ°è PÉÆÃjgÀĪÀ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä CºÀðgÉÃ?
4. ºËzÁzÀgÉ JµÀÄÖ ªÀÄvÀÄÛ AiÀiÁjAzÀ?
5. AiÀiÁªÀ CªÁqïð CxÀªÁ DzÉñÀ?
7. In support of their case, claimants examined two persons viz., P.W.1-Parvathamma, mother of the deceased and P.W.2- Reshma, a representative of the ING Vysya Bank, where deceased Prashanth was working as an Accountant. The claimants produced 34 documents, which were marked as Exs.P1 to P.34. The Insurance Company examined Sunil Ramesh as R.W.1 and produced 10 documents, marked as Exs.P.1 to P.10.
8. On the basis of the evidence on record, the Tribunal answered issue Nos.1 and 2 in the affirmative and issue Nos.3 and 4 in favour of the claimants and awarded compensation of `.18,65,200/- with interest at the rate of 6% p.a. from the date of the claim petition till realization.
9. Not being satisfied with the quantum of compensation awarded by the Tribunal, claimants have preferred M.F.A.No.6899/2014 seeking enhancement of compensation, while the Insurance Company has filed M.F.A.No.3433/2014 by contending that the deceased Prashanth being the rider of the motor cycle, had caused the accident and hence his legal representatives are not entitled to claim any compensation under Section 166 of the Motor Vehicle Act 1988.
10. We have heard Sri. O. Mahesh, learned counsel for the appellant-insurer and Sri. A.K. Bhat, for Sri Raju S., learned counsel for the claimants and perused the material on record as well as original record.
11. Appellant’s counsel made two-fold submission: firstly, he contended that Prashanth, rider of the motor cycle bearing No.KA- 04-EX-6265 was responsible for causing the accident, inasmuch as the motor cycle was driven in a rash and negligent manner and it dashed against a bicyclist, as a result Prashanth fell down, sustained head injuries and other grievous injuries and died in the hospital. Since, Prashnath himself was the cause of his death, his legal representatives are not entitled to any compensation under Section 166 of the Act. He contended that the Tribunal was not right in concluding that Arun Kumar was the rider of the vehicle and Prashanth was the pillion rider. He submitted that the evidence on record viz., Exs.R.3, R.5, R.7 to R.10 would clearly indicate that Prashanth was the rider of the motor cycle and not Arun Kumar. He contended that there were two complaints: first complaint was lodged by Smt. Lilly wife of Rathnam, the latter being bicyclist, who was injured in the accident and the second complaint was filed by Nagaraj. That, on a reading of the complaints and material documents produced by the Insurance Company, would clearly indicate that Prashanth was riding the Motor cycle in a negligent manner and hit against the bicyclist and Prashanth fell off the motor cycle, resulted in sustaining head injury and other injuries and died while receiving treatment. Therefore, he contended that the finding arrived at by the Tribunal may be reversed and claim petition may be dismissed.
12. Secondly, learned counsel for the Insurance-Company contended that, awarding of compensation to an extent of `.18,65,200/- is on the higher side, that Prashanth was not working as permanent employee in ING Vysya Bank, he was only working as an accountant on a temporary basis. His gross salary was `.8,450/- and net salary was `.8,100/-. That, the Tribunal erred in reckoning his salary at Rs.8450/- p.m. In this context, he drew our attention to Ex.P.34. He submitted that, only the net salary ought to be taken into account, not the gross salary..
13. Learned counsel next submitted that in the matter of future prospectus, 50% of the salary has been added, which is erroneous. Deceased Prashanth was working as an Accountant on a temporary basis and it was not a permanent job and that 50% of salary could not have been added towards future prospects. He submitted that at the highest 40% of the salary could be reckoned towards future prospects. He also submitted that the Tribunal was not right in deducting 1/3rd of the income of the deceased towards his personal expenses by bearing in mind that there were four claimants. That, father of the deceased had since died, siblings of the deceased were major and deceased was a bachelor, therefore half of the salary has to be deducted towards personal expenses of the deceased. He contended that quantum of compensation awarded by the Tribunal would then be reduced and hence, alternatively, the quantum of compensation may be reduced in the event this Court is to come to a conclusion that the legal representatives of the deceased Prashanth are entitled to receive compensation.
14. Per contra, learned counsel for the respondents/claimants supported the impugned judgment and award of the Tribunal on the finding of negligence and contended that the insurance company, as an afterthought, has taken up the contention that the rider of the motor cycle was the deceased Prashanth. That was not their case at all, neither in the written statement nor during the cross-examination of PW1 and that, such a line of argument has been developed belatedly without any pleading evidence in support of the same. It was contended that even in the cross-examination of PW1, what has been elicited is in favour of the claimants and against the insurance company. That, the documents produced and oral evidence of RW1 in no way would substantiate the contention of the insurance company, that Prashanth was the rider of the vehicle. On the other hand, the document would suggest that Arun Kumar was indeed the rider of the vehicle. It was contended that charge sheet was filed against Arun Kumar and that is the additional factor, which may be borne in mind while affirming the finding of the Tribunal to the effect that Prashanth was the pillion rider and Arun Kumar was the rider of the motor cycle.
15. Learned counsel for the claimants relied upon Exs.P.1 to P.4 to contend that said documents and the evidence of PW1 would clearly indicate that Prashanth was indeed a pillion rider of the motor cycle at the time of the accident, therefore, his legal representatives are entitled to seek compensation on account of the death of Prashanth in a road traffic accident that occurred on 06.03.2010.
16. Learned counsel for the claimants next contended that the awarding of compensation by the Tribunal not just and proper and same would call for any interference. In this regard, learned counsel for the appellants drew our attention to the reasoning of the Tribunal in the impugned judgment and submitted that this Court may interfere and reassess with the compensation awarded by the Tribunal. He contended that there is no merit in the appeal and therefore, the said appeal may be dismissed.
17. Having heard learned counsel for the respective parties, we find that the following points would arise for our consideration:
i) Whether the Tribunal was justified in arriving at a finding that the deceased Prashanth was the rider of motor cycle bearing No. KA-04-EX-6265 on 06.03.2010 at about 9 p.m. when the accident occurred on B.M. Road?
ii) Whether the claimants are entitled to enhanced compensation or whether the quantum of compensation awarded by the Tribunal calls for reduction in this appeal?
iii) What order?
18. The fact that on 06.03.2010 at about 9 p.m., there was a road traffic accident involving motor cycle bearing No.KA-04-EX 6265, when the said motor cycle hit a bicycle of Rathnam, husband of the complainant, who was injured in the accident has been established. The controversy, however, is, as to, who caused the injuries to Rathnam. In other words, who was riding the motor cycle, whether it was deceased Prashanth or Arun Kumar. It is the case of the claimants that Prashanth was the pillion rider, who died on account of the collision of motor cycle, which was being driven by Arun Kumar, when it collided with the bicycle. Whereas, it is the case of the insurance company, that Prashanth was the rider of the motor cycle, he dashed against the bicycle; as a result, he fell down and sustained injuries and died in the accident. Therefore, legal heirs of Prashanth are not entitled to any compensation, as Prashanth was negligent in driving the motor cycle, caused the accident and died out of his own negligent act.
19. In support of their respective contentions, claimants have produced Ex.P.1 - copy of the FIR; Ex.P.2 - copy of spot mahazar; Ex.P.3 - copy of inquest report ; Ex.P.4 - P.M. Report and Ex.P.23 - discharge summary. Whereas, Insurance Company has produced Ex.R.5 - MLC extract from BGS Global hospital; Ex.R.6 - MLC extract from NIMHANS hospital and Ex.R.7 and R.8 are certified copies of two FIRs and Ex.P.9 and Ex.P10 are certified copies of two complaints. These documents have been produced by PW.1 and R.W.1 respectively.
20. On considering all the aforesaid documents, in light of oral evidence of PW1 and R.W.1, the question that arises is, as to whether, the deceased Prashanth was indeed riding the motor cycle on the fateful day. In the instant case, the first complaint was filed by Lilly, wife of Rathnam, who was injured in the accident when the motor cycle hit the bicycle. The second complaint was filed by Nagaraj, a relative of Prashanth, who according to the claimants, was proceeding as a pillion rider. In the written statement filed by the Insurance company, no plea was taken with regard to claimants being entitled to claim any compensation, since Prashanth himself was responsible for his death.
21. On the other hand, what was contended is that, the rider of the motor cycle did not have a valid and effective driving licence. Even in the cross-examination of PW1 with regard to the question as to whether Prashanth was the rider of the motor cycle, the answer of PW1 was that he was the pillion rider. Complaint at Ex.P.1 given at an undisputed point of time by Lilly wife of Rathnam, bicyclist does not state that Prashanth was riding the vehicle. In fact, even in the complaint given by Nagaraj subsequent to the death of Prashanth, it does not indicate that Prashanth was riding the vehicle. On the other hand, after investigation, police have filed charge sheet against Arun Kumar, who was the rider of the motor cycle. The same would also indicate that Arun Kumar was the rider of the vehicle.
22. According to learned counsel for the insurer, on perusal of the medical records it show that Prashanth was riding the motor cycle. But in out view such a conclusion cannot be arrived at on going through the medical records which has been placed by the respondent/insurer. Moreover, when the insurance company cross- examined PW1, nothing incriminating was elicited in the cross- examination of PW1, inasmuch as the mother of the deceased Prashanth has categorically stated that Prashanth was the pillion rider and not the rider of the motor cycle. In the circumstances, the Tribunal arrived at a conclusion that Prashanth was the pillion rider and not rider of the motor cycle and that Arun Kumar was the rider of the motor cycle. The conclusion arrived at by the Tribunal, in our opinion, is just and proper and would not call for any interference in these appeals. Point No.1, is accordingly held against the insurance company and in favour of the claimants.
23. This takes us to the next point for consideration which is regarding the quantum of compensation awarded by the Tribunal. The Tribunal awarded in toto a sum of `18,65,200/- with interest at the rate of 6% per annum from the date of claim petition till realization, on various heads in the following manner:
Heads of Compensation Compensation amount 1. Loss of dependency Rs. 18,25,200/-
2. Loss of love and affection Rs. 10,000/-
3. Loss of estate Rs. 20,000/-
4. Funeral expenses Rs. 10,000/-
TOTAL Rs. 18,65,200/-
Rupees Eighteen Lakhs Sixty Five Thousand Two hundred only 24. The contentions of learned counsel for the insurance company and learned counsel for claimants with regard to quantum of compensation awarded by the Tribunal would not call for a reiteration. However, on perusal of the original record Ex.P.34, we note that gross salary of Prashanth drawn from ING Vysya Bank where he was working as an accountant, but not in a permanent job was `8,450/- p.m. The net salary was `8,100/-. The Tribunal has taken the gross salary at the rate of `8450/- p.m. for the purpose of calculating compensation on the head of loss of dependency which is erroneous. The Tribunal ought to have considered `8,100/- p.m. as salary. Further, 50% of the salary has been added towards future prospects which is also not correct. The deceased was not having a permanent job and he was working on temporary basis as an Accountant in ING Vysya Bank as is evident from the deposition of P.W.2, representative of Bank, who deposed in the matter.
25. In view of the latest dictum of the Hon’ble Supreme Court in the case of National Insurance Company Vs. Pranay Sethi, reported in 2017(10) SCC 680, only 40% of the monthly income ought to be added towards future prospectus, in which event it would be `8,100 + `3,240=`11,340/-. Since the deceased Prashanth was a bachelor, 50% has to be deducted towards personal expenses and not 1/3rd as has been done by the Tribunal, even though there were four claimants. The father of the deceased has since died and siblings of the deceased were all majors even at the time of the accident, therefore, while 50% is deducted, it comes to `11,340 ÷ 2=`5,670. Such amount has to be annualised and proper multiplier, ‘18’ has to be applied, since Prashanth was aged about 23 years, then the compensation on the head of loss of dependency would be `5,670X12X18=` 12,24,720/-.
26. In addition a sum of `30,000/- would have to be awarded towards loss of filial consortium to the mother of the deceased, having regard to the latest decision of the Hon’ble Supreme Court in the case of Magma General Insurance Ltd., Vs. Nanu Ram Alias Chuhru Ram reported in 2018 ACJ, 2782. Similarly, siblings of the deceased Prashanth (Appellant Nos.2 and 3) are each entitled to a sum of `30,000/- on the head of loss of love and affection and a sum of `15,000/- is awarded on the head of loss of estate and another sum of `50,000/- is awarded towards funeral. Thus, the compensation reassessed in these appeals appeal is only `13,79,720/- as against to `18,65,200/- awarded by the Tribunal. The reassessed compensation shall carry interest at the rate of 6% per annum from the date of claim petition till realization.
Since, father of the deceased has died and siblings of the deceased are entitled to compensation only on the head of loss of love and affection, after deducting the said amount of `30,000/- to each of them, entire compensation with proportionate interest shall be apportioned to the mother of the deceased.
50% of the re-assessed compensation of `13,19,720/-with proportionate interest shall be deposited in any nationalized bank for an initial period of ten years. Mother of the deceased shall be entitled to draw periodical interest on the said deposit. Balance compensation shall be released to her after due identification. The compensation awarded to siblings of the deceased with proportionate interest shall be released to them after due identification.
The insurance company shall deposit balance compensation along with interest within a period of four weeks from the date of receipt of a certified copy of the judgment.
In the circumstances, appeal filed the insurance company is allowed in part while appeal filed by the claimants is dismissed.
Statutory amount deposited before this Court shall be transmitted to the concerned Tribunal.
Parties to bear their respective costs.
Registry to dispatch the original record to the concerned Tribunal forthwith.
In view of the disposal of the appeal I.A.No.1/19 is allowed and disposed of.
Sd/- JUDGE Sd/- JUDGE Psg*