IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.8183 OF 2015 (MV) CONNECTED WITH MFA NO.7980 OF 2015 (MV) IN MFA NO.8183/2015: BETWEEN TATA AIG GENERAL INS. CO. LTD., NO.69, II FLOOR, JP AND DEVI JAMBUKESHWAR ORCHADE, MILLERS ROAD, VASANTHANAGAR, BENGALURU-560 052.
(BY SRI. Y.P. VENKATAPATHI, ADVOCATE) AND 1. SRI. SRINIVASULU, S/O. SANJEEVAPPA, AGED 52 YEARS, 2. SMT. SHAMALAMMA, W/O. SRINIVASULU, AGED 48 YEARS, 3. KUM. ISWARYA, AGED 24 YEARS, D/O. SRINIVASULU, ALL RESIDING PERMANENTLY AT:
NATAVARAYII PALLI, PEDDAPALEM PANCHAYAT, ... APPELLANT MULAKALACHERUVU MANDAL, NETAVARAYINI PALLI, PEDDAPALEM, CHITOOR-517 390, ANDHRA PRADESH.
PRESENT ADDRESS AS PER PETITION: NO.102/1, KRISHNAPPA FORM, CAUVERY TEMPLE, BEHIND BELLANDURU VILLAGE, BENGALURU-560 103.
4. SRI. R. KUMAR, S/O. RAMAKRISHNA, NO.16, 1 A.A.N.BLOCK, 1ST MAIN, VAYALIKAVAL EXTENSION, BENGALURU-560 003.
5. SBI GENERAL INSURANCE CO. LTD., GROUND & 1ST FLOOR, RUKMINI TOWER 3-1, PLATFORM ROAD, RAILWAY APPROACH ROAD, SESHADRIPURAM, BENGALURU-560 020.
6. SRI. MANJUNATH, S/O. NARAYANASWAMY, HADADURU COLONY, VARTHUR POST, BENGALURU-560 048.
... RESPONDENTS (BY SRI. L HARISH KUMAR, ADVOCATE FOR R1 TO R3;
SRI. M.D. NAVEEN FOR SRI. RAJENDRA PRASAD SHETTY, ADVOCATE FOR R4;
SRI. RAVI S. SAMPRATHI, ADVOATE FOR R5;
R6-NOTICE DISPENSED WITH VIDE COURT ORDER DATED 14.12.2017) MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:21.07.2015 PASSED IN MVC NO.1969/2013 ON THE FILE OF THE V ADDITIONAL SMALL CAUSES JUDGE & XXIV A.C.M.M, COURT OF SMALL CAUSES & MEMBER, M.A.C.T (SCCH-20),MAYOHALL UNIT, BANGALORE, AWARDING COMPENSATION OF RS.17,00,000/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF ITS REALIZATION.
IN MFA NO.7980/2015:
BETWEEN:
M/S. SBI GENERAL INSURANCE COMPANY LTD., NO.3/1, RUKMINI TOWERS, PLATFORM ROAD, SESHADRIPURAM, BENGALURU-560 020.
REPRESENTED BY MANAGER. …APPELLANT (BY SRI. RAVI S. SAMPRATHI, ADVOCATE) AND:
1. SRI. SRINIVASULU, S/O. SANJEEVAPPA, AGED ABOUT 52 YEARS, 2. SMT. SHAMALAMMA, W/O. SRINIVASULU, AGED ABOUT 48 YEARS, 3. KUM. ISWARYA, C/O. SRINIVASULU, AGED ABOUT 24 YEARS, ALL ARE RESIDING AT: PERMANENT ADDRESS: NATAVARAYLI PALLI, PEDDAPALEM PANCHAYAT, MULAKALACHERUVU MANDAL, PEDDAPALEM, CHITTOR, ANDRA PRADESH-571 390.
PRESENT ADDRESS :
NO.102/1, KRISHNAPPA FORM, CAUVERY TEMPLE, BEHIND BELLANDURU VILLAGE, BENGALURU-560 103.
4. SRI. R. KUMAR, S/O. RAMAKRISHNA, NO.16, 1 AAN BLOCK, 1ST MAIN, VAYALIKAVAL, VAYALIKAVAL EXTENSION, BENGALURU-560 003.
5. SRI. MANJUNATH, S/O. NARAYANASWAMY, MAJOR IN AGE, R/O. HADADURU COLONY, VARTHUR POST, BENGALURU-560 048.
6. M/S. TATA AIG GENERAL INSURANCE COMPANY LTD., 2ND FLOOR, JP & DEVI JAMBUKESHWAR ARCHADE, NO.69, MILLERS ROAD, BENGALURU-560 052. REPRESENTED BY REGIONAL CLAIMS MANAGER.
... RESPONDENTS (BY SRI. L HARISH KUMAR, ADVOCATE FOR R1 TO R3;
SRI. M.D. NAVEEN FOR SRI. RAJENDRA PRASAD SHETTY, ADVOCATE FOR R4;
R5-NOTICE DISPENSED WITH VIDE COURT ORDER DATED 14.12.2017;
SRI. Y.P. VENKATAPATHI, ADVOCATE FOR R6) MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:21.07.2015 PASSED IN MVC NO.1969/2013 ON THE FILE OF THE 5TH ADDITIONAL SMALL CAUSES JUDGE, 24TH ACMM, MEMBER, MACT, COURT OF SMALL CAUSES, MAYOHALL UNIT, BANGALORE, AWARDING COMPENSATION OF RS.17,00,000/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF ITS REALIZATION.
THESE MFAs COMING ON FOR ADMISSION, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though these appeals are listed for admission, the same are taken up for final disposal with the consent of learned counsel on both sides.
Both these appeals are directed against the judgment and award dated 21.07.2015 passed by the MACT, V Addl. Court of Small causes, Mayohall, Bangalore in MVC No.1969/2013, wherein the Tribunal has awarded a total compensation of Rs.17 Lakhs with interest at 9% per annum. The Tribunal further held that respondents No.1 to 4 before the Tribunal are jointly and severally liable to pay the compensation and respondents No.2 and 4 are directed to deposit 50% each, of the compensation.
2. I have heard the learned counsel appearing for the appellant and also the learned counsel appearing for the respondents in the respective appeals.
3. The brief facts of the case are that on 11.03.2013 at about 10.45 p.m., the deceased by name Rajesh T. @ Thamatham Rajesh was proceeding in a car bearing registration No.KA-04/D-4001, on outer ring Road, Kalyananagar fly over, Bangalore, at that time, the driver of the said car lost control over the same and dashed against the hind portion of the lorry bearing registration No.MH-06/AQ-3854 which was parked on the road without any signal or indicator. Due to the said accident, Reajesh T. @ Thamatham Rajesh sustained fatal injuries and died at the spot.
4. The claimants being the parents and the sister of the deceased filed a claim petition before the Tribunal seeking a total compensation of Rs.20 Lakhs. The mother of the deceased was examined as PW1 and the employer of the deceased was examined as PW2. Exs.P1 to P16 were marked in evidence. The claim petition was resisted by the Insurance Company. RW1 was examined by the respondent. However, no documents were produced and marked on behalf of the respondents.
5. The Tribunal after considering the oral and documentary evidence on record, awarded a total compensation of Rs.17 Lakhs with interest at 9% per annum.
6. The Tribunal held that the drivers of both the vehicles were negligent and therefore the accident has occurred due to the rash and negligent act of both the drivers and accordingly apportioned the negligence at 50% each. The Insurers of both the vehicles have preferred these appeals, challenging the finding recorded by the Tribunal on the point of quantum awarded as well as on the point of negligence.
7. The learned counsel appearing for the appellants would contend that the compensation awarded by the Tribunal is on the higher side since the Tribunal has awarded an excessive compensation by adding 50% of the income of the deceased towards future prospects which is contrary to the decision of the Hon’ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in AIR 2017 SC 5157 and further submitted that the deceased was a bachelor, hence 50% of his income ought to be deducted towards personal expenses and that the compensation awarded under the conventional heads are also on the higher side.
8. The learned counsel appearing for the appellant in MFA No.8183/2015 would contend that the offending lorry in question was parked by the side of the road and there is no rash or negligent act by the driver of the said lorry in causing the accident and therefore, the Tribunal was not justified in holding that there is a contributory negligence on the part of the driver of the said lorry. Accordingly, he seeks to allow the appeal.
9. The learned counsel appearing for the claimants on the other hand contended that the Tribunal after considering the entire material on record, has awarded a just and reasonable compensation and drivers of both the vehicles are responsible in causing the accident. Therefore, there is no error committed by the Tribunal in fastening the liability on the Insurer of both the vehicles. Accordingly, he seeks to dismiss the appeal.
10. The accident in question and in the said accident the deceased namely Rajesh T. @ Thamatham Rajesh succumbing to the injuries is not in dispute. The FIR and charge sheet which are marked as Exs.P1 and P8 would disclose that the case was registered against the drivers of both the car and lorry, for the offenses punishable under Sections 279, 283 and 304(A) of IPC. The accident has occurred at about 10.45 p.m., on 11.03.2013 on Outer Ring Road, Kalyananagar Fly over. The driver of the lorry who had parked it on an Outer Ring Road had not put any indicator or parking signal. Therefore, it cannot be said that the driver of the said lorry was not negligent. The accident has occurred due to the rash and negligent act of the drivers of both the vehicles. Therefore, the Tribunal was justified in fastening the liability on the insurer of both the vehicles.
11. The claimants are the parents and the sister of the deceased. The deceased was a bachelor, aged about 25 years at the time of the accident. He was working at Shahi Exports Private Limited, Sarjapura, Bengaluru as a data entry operator. PW2 is an employer and he has been examined to prove the income and the avocation of the deceased. Ex.P10 is the appointment letter and Ex.P11 is the salary certificate. The deceased was drawing a salary of Rs.7,500/- per month at the time of the accident. However, it is noticed that he was on probation and it was not a permanent job. The Tribunal has taken the income of the deceased at Rs.7,500/- per month and added another 50% of his income towards future prospects. In view of the decision of the Hon’ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in AIR 2017 SC 5157, 40% of the income has to be added towards future prospects (Rs.7,500/-
+40%=Rs.10,500). Further, the deceased was a bachelor, hence 50% of his income has to be deducted towards personal expenses (Rs.10,500x50%=Rs.5,250/-). The appropriate multiplier applicable to his age is ‘18’. Accordingly, the claimants are entitled for a compensation of Rs.11,34,000/- (Rs.5,250x12x18) towards loss of dependency. The claimants are entitled for a sum of Rs.30,000/- towards loss of estate, funeral expenses and obsequies. The claimants being the parents and unmarried sister of the deceased are entitled for compensation towards loss of love and affection. The compensation of Rs.50,000/- each awarded by the Tribunal under the said head is undisturbed. Accordingly, I pass the following:
ORDER Both the appeals are allowed in part.
The judgment and award dated 21.07.2015 passed by the MACT & V Addl. Judge, Court of Small Causes, Mayohall Unit, Bengaluru (SCCH20) in MVC No.1969/2013 is hereby modified.
The appellants-claimants in MVC No.1969/2013 are entitled for a total compensation of Rs.13,14,000/- as against Rs.17 Lakhs awarded by the Tribunal.
The interest awarded by the Tribunal in the facts and circumstances of the case is maintained.
Respondents No.2 and 4 before the Tribunal are directed to deposit 50% each of the modified compensation amount within six weeks from the date of receipt of a copy of this judgment.
The apportionment and disbursement of compensation shall be in terms of the order passed by the Tribunal.
The amount in deposit before this Court shall be transmitted to the jurisdictional Tribunal.
Sd/- JUDGE snc