IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 20TH DAY OF MARCH 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.8252/2013 (MV) C/W MISCELLANEOUS FIRST APPEAL NO.6465/2013 IN M.F.A.NO.8252/2013 Between:
1. Smt.Yashoda, Aged 32 years, W/o late Anand, R/o Amin Nivas, Yellor, Udupi Taluk and District – 576 101.
2. Master Varun, Minor, Aged about 8 years, S/o late Anand, Represented by Mother and Natural Guardian 1st Appellant No.1. ... Appellants (By Sri.Srikanth N.V., Advocate for Sri.Aruna Shyam M., Advocate) And:
1. Santhosh, Aged 28 years, S/o Srinivas Poojary, R/at Bayarguttu, Badi Post, Kaup, Udupi Taluk & District – 576 101.
2. The National Insurance Co. Ltd., Represented by its Divisional Manager, Divisional Office, I Floor, Shankar Building, Mosque Road, P.B.97, Udupi – 576 101. ... Respondents (By Sri O.Mahesh, Advocate for R2; R1 served) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the Judgment and award dated 18.03.2013 passed in MVC No.1212/2008 on the file of the Additional Senior Civil Judge, Additional MACT, Udupi, partly allowing the claim petition for compensation and seeking enhancement of compensation.
IN M.F.A.NO.6465/2013 Between:
The Divisional Manager, National Insurance Company Limited, Divisional Office, I Floor, Shankar Building, Mosque Road, Udupi. By National Insurance Co. Ltd., Regional Office No.144, Subharam Complex, M.G.Road, Bangalore – 560 001.
By its Manager. ... Appellant (By Sri.O.Mahesh, Advocate) And:
1. Smt.Yashoda, Aged 32 years, W/o late Anand, R/o Amin Nivas, Yellor, Udupi Taluk.
2. Master Varun, Minor, Aged about 8 years, S/o late Anand, R/o Amin Nivas, Yellor, Udupi Taluk – 576 101. Represented by Mother and Natural Guardian 1st Respondent herein.
3. Santhosh, Aged 28 years, S/o Srinivas Poojary, R/o Bayarguttu, Badi Post, Kaup, Udupi Taluk & District – 576 101. ... Respondents (By Sri Srikanth N.V., for Sri.Sachin B.S., Advs., for R1;
R2 – Minor represented by R1; R3 served) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the Judgment and award dated 18.03.2013 passed in MVC No.1212/2008 on the file of the Additional Senior Civil Judge, Additional MACT, Udupi, awarding a compensation of Rs.6,96,500/- with interest at 6% p.a. from the date of petition till realization.
These Appeals coming on for further hearing this day, the Court delivered the following:
J U D G M E N T MFA No.8252/2013 is filed by the claimants, namely the widow and minor son of the deceased seeking enhancement of compensation.
MFA No.6465/2013 is filed by the Insurance Company questioning the liability as well as quantum of compensation awarded by the Tribunal.
2. Both the appeals are directed against the judgment and award dated 18.03.2013 passed in MVC No.1212/2008 on the file of the court of Additional Senior Civil Judge and MACT, Udupi, wherein total compensation of Rs.6,96,500/- has been awarded for the death of one Anand in a road traffic accident which occurred on 23.08.2008.
3. I have heard Sri. Srikanth N.V. for Sri. Aruna Shyam, learned counsel appearing for the claimants and Sri. O. Mahesh, learned counsel appearing for the Insurance Company.
4. Brief facts of the case are as follows:-
On 23.08.2008, deceased Anand was riding a motorcycle bearing registration No.KA-20-U-5093. When the said motorcycle reached near Yelloor, another motorcycle bearing registration No.KA-20-K-7293 which was ridden by its rider in a rash and negligent manner came from Yelloor side towards Mudarangadi and dashed against motorcycle ridden by Anand. On account of same, he sustained severe injuries and he was immediately taken to KMC Hospital at Manipal. However, he succumbed to the injuries in the hospital while undergoing treatment on 30.08.2008.
5. The claimants being the widow and minor son of the deceased filed a claim petition seeking a total compensation of Rs.20 Lakhs. It is the case of claimants that deceased Anand was aged about 31 years at the time of accident; he had a monthly income of Rs.10,000/- by doing sub-contract work; the accident was solely due to rash and negligent driving by the rider of motorcycle bearing registration No.KA-20-K-7293; the said motorcycle was insured with the second respondent before the Tribunal and because of untimely death of the deceased, the claimants have suffered great financial difficulty and the same has crippled their lifestyle.
6. The claim petition was resisted by the Insurance Company by filing written statement mainly contending that the insured motorcycle was not involved in the accident. Even otherwise, the accident has occurred on account of the negligence of the deceased himself.
7. Before the Tribunal, the widow of the deceased was examined as P.W.1 and Ex.P1 to P14 were marked through her evidence. On behalf of the respondents R.W.1 to 4 were examined and Ex.R1 to R12 were marked.
8. The Tribunal after considering the evidence and material on record awarded total compensation of Rs.6,96,500/-under the following heads:
Loss of Dependency 6,40,000 Loss of Estate 10,000 Loss of consortium in favour of claimant No.1 Towards love and affection in favour of claimant No.2 10,000 10,000
9. The learned counsel for the claimants has contended that the deceased was doing sub-contract work and he was earning a sum of Rs.20,000/- as per the salary certificate – Ex.P14. He, therefore, submits that the income of deceased taken by the Tribunal at Rs.5,000/- per month is not proper. It is his further contention that the Tribunal has awarded meager sum under the conventional heads and the total compensation awarded is inadequate and therefore, he seeks to enhance the compensation by modifying the judgment and award passed by the Tribunal.
10. The learned counsel for Insurance Company would vehemently contend that the offending vehicle is not at all involved in the accident. The accident has occurred 23.08.2008, and FIR came to be registered on 26.08.2008 and there is unexplained delay of three days in lodging the FIR. It is his further contention that the first informant has denied having witnessed the accident and lodging the complaint and the rider of the offending motorcycle who was charge-sheeted has been acquitted. He would further contend that though the victim was shifted to the hospital, there is absolutely no records produced to show what was the condition at the time of admission of the victim to the hospital. Though there is a police outpost at KMC Hospital, no intimation has been given to the police with regard to the accident in question. The learned counsel would also contend that the claim petition itself is not maintainable since PW.1 has denied her signature on the Vakalathnama as well as in the claim petition. The learned counsel has further contended that total compensation awarded by the Tribunal in the facts and circumstances of the case is also excessive and the finding of the Tribunal with regard to avocation, income and contribution by the deceased are also without proper basis besides being on higher side and accordingly, he seeks to dismiss the appeal filed by the claimants and to allow the appeal filed by the Insurance Company by setting aside the impugned judgment and award passed by the learned Tribunal.
11. It is the case of claimants that on 23.08.2008, the deceased was riding a motorcycle bearing registration No.KA-20-U-5093 and when he reached near Yelloor, another motorcycle bearing registration No.KA-20-K-7293 ridden by its rider from Yelloor side towards Mudarangadi in a rash and negligent manner dashed against his motorcycle, on account of which he sustained severe injuries. Subsequently, while undergoing treatment, he succumbed to injuries in the hospital on 30.08.2008. One Srinivasa Prabhu has lodged the complaint on 26.08.2008. The FIR is marked as per EX.P1. A perusal of the FIR goes to show that the complaint was lodged against the offending motorcycle rider, namely Deepak. The contents of FIR goes to show that the said motorcycle which came from the opposite direction dashed against motorcycle ridden by the victim, as a result, he was thrown out and sustained injures and admitted as an inpatient to KMC Hospital at Manipal. The said FIR also discloses that the victim was in an unconscious condition at the time of his admission to the hospital. It is stated that since he was in an unconscious condition, the complainant was taking care of him and hence, there is delay in lodging the complaint.
12. The first informant has been examined as RW.1. He has deposed that he was present when the accident took place and that he admitted the victim to the hospital.
13. It is the contention of the learned counsel for Insurance Company that the accused was acquitted in the criminal case and the first informant has not supported the case of prosecution. Merely because the accused has been acquitted in the criminal case, that itself is not a ground to disbelieve the accident in question involving the offending motorcycle.
14. RW.2-Santhosh, is the owner of the offending motorcycle bearing registration No.KA-20- K-7293. He has deposed that the said motorcycle was insured and the said motorcycle met with an accident when it was being ridden by his friend Deepak. Before the Tribunal, RW.2 has stated that he was present at the time of accident and it is he who shifted the victim to the hospital and he was in the hospital with the victim for a period of three days. He has also stated that the said motorcycle was damaged and the same was repaired.
15. Ex.P7 is the IMV report. Perusal of the same goes to show that both motorcycles, namely motorcycle ridden by the victim as well as the offending motorcycle were damaged. There is damage caused to the headlight, front mud guard and the left indicator. Considering the aforesaid evidence on record, the contention of learned counsel for Insurance Company that the offending motorcycle was not involved in the accident and the same was implicated after three days with the connivance of the insured cannot be accepted.
16. It is the contention of Sri. O. Mahesh, learned counsel for Insurance Company that in the cross-examination, PW.1 has denied the signature in the claim petition as well as in the Vakalathnama and therefore, it is his contention that the claim petition itself is not maintainable.
17. PW.1 is the wife of deceased. She has deposed in the chief-examination that she is one of the petitioners in the claim petition and she has filed her evidence by way of an affidavit. She has also stated that as per the claim made in the claim petition, compensation may be awarded. In the cross-examination when a statement was shown to her, she has stated that the signature on the said statement does not belong to her however, there is nothing on record to show that whether the statement shown is the claim petition or any other statement. Though she has denied her signature in the Vakalathnama, however, there is no specific averment made by her that she has not given any Vakalath or she has not filed any claim petition in this regard. Further, she has clearly stated that the signature made in the affidavit belongs to her. The claim petition is dated 25.10.2008 and evidence of PW.1 is recorded on 25.03.2010. There is considerable lapse of time. In that view of the matter and in view of the fact that she has clearly stated that she has filed the claim petition and affidavit is also filed by her, contention of the learned counsel for the Insurance Company stating that the claim petition is not maintainable cannot be accepted.
18. The Tribunal has awarded total compensation of Rs.6,96,500/- with interest at 6% per annum. The tribunal has taken the income of the deceased at Rs.5,000/- per month. According to the claimants, deceased was doing sub-contract work and was earning a sum of Rs.20,000/- per month. The salary certificate is marked as Ex.P14. Claimants have not examined the person who has issued the said certificate. A bare perusal of Ex.P14 goes to show that it is a certificate typed on a plain paper stated to have been signed by the Proprietor of M/s.Sayi Constructions. As noted supra, the person who signed the said certificate has not been examined. The claimants have failed to substantiate by adducing any acceptable evidence to show that deceased was having income of Rs.20,000/- per month. The tribunal has taken the income of deceased at Rs.5,000/- per month. The claimants are wife and minor son of the deceased. Hence, the income taken by the Tribunal at Rs.5,000/- cannot be said to be on a higher side.
19. In views of decision of the Hon’ble Apex Court in the case of NATIONAL INSURANCE COMPANY v. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157, the deceased being aged about 31 years, an addition of 40% has to be made to the income towards future prospects. After deducting 1/3rd of the income towards personal expenses, the same would be Rs.4,667/-. The appropriate multiplier is ‘16’. Therefore, claimants are entitled for compensation of Rs.8,96,064/- as against Rs.6,40,000/- awarded by the Tribunal. Under the conventional heads, a sum of Rs.70,000/- is awarded. The tribunal has awarded a sum of Rs.10,000/- towards ‘loss of love and affection’. The same is enhanced to Rs.25,000/-. In all, the claimants are entitled for total compensation of Rs.9,91,064/- which is rounded off to Rs.9,91,000/- as against Rs.6,96,500/- awarded by the Tribunal.
20. Hence, the following order:
i) MFA No.8252/2013 is allowed in part.
ii) MFA No.6465/2013 is dismissed.
iii) The judgment and award dated 18.03.2013 passed in MVC No.1212/2008 by the court of Additional Senior Civil Judge and MACT, Udupi, is hereby modified.
iv) The claimants are entitled for a total compensation of Rs.9,91,000/- as against Rs.6,96,500/- awarded by the Tribunal with interest @ 6% p.a. from the date of petition till the date of deposit.
v) The amount in deposit before this Court shall be transmitted to the jurisdictional Tribunal.
Sd/- JUDGE Np/-