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NC: 2023:KHC:40973 MFA No. 89 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF NOVEMBER, 2023 BEFORE THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR MISCELLANEOUS FIRST APPEAL NO. 89 OF 2015 (MV-I) BETWEEN:
M/S ORIENTAL INSURANCE CO. LTD., NO.663, 1ST FLOOR, 1ST MAIN, DEFENCE COLONY, B M SRI CIRCLE, 100 FEET ROAD, INDIRANAGAR, BANGALORE, NOW REPRESENTED BY ITS, REGIONAL OFFICE, NO.44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD, REP. BY ITS AUTHORIZED SIGNATORY …APPELLANT
(BY SRI. LAXMI NARASAPPA, ADVOCATE FOR SRI. A M VENKATESH, ADVOCATE)
AND:
SMT SARALA DEVI NANDAN, W/O DR M NANDAN, AGED ABOUT 49 YEARS, OCC: HOUSE WIFE,
DR. SAJILTHA, D/O DR M N NADAN, AGED ABOUT 24 YEARS,
BOTH ARE R/O NO.833, 10TH ‘A’ MAIN ROAD, 1ST STAGE, INDIRANAGAR, BANGALORE-560 038
Digitally signed by SOWMYA D Location: High Court of Karnataka
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NC: 2023:KHC:40973 MFA No. 89 of 2015
SRI SACHIDANANDA MENON, S/O K V N MENON, AGED ABOUT 27 YEARS, R/AT DOOR NO.171, 13TH MAIN, 5TH CROSS, HAL, 3RD STAGE, KODIHALLI, BANGALORE-560 008.
SRI VIKRAM KUMAR MENON, S/O K V N MENON, MAJOR, R/AT FLAT NO.41-23, VASAS RESIDENCY, KAGGADASAPURA MAIN ROAD, C V RAMAN NAGAR, BANGALORE-560 093.
…RESPONDENTS
(BY SRI. A JAYAPRAKASH, ADVOCATE FOR R1 AND R2, V/O DTD:10.1.2020, SERVICE OF NOTICE TO R3 AND R4 IS HELD SUFFICIENT)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:14.8.2014 PASSED IN MVC NO.2300/2002 ON THE FILE OF THE ADDITIONAL JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, MAYOHALL UNIT, BANGALORE, AWARDING A COMPENSATION OF RS.36,15,436/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL REALIZATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:40973 MFA No. 89 of 2015
JUDGMENT
This appeal is filed under Section 173(1) of M.V.Act (hereinafter referred to as 'the Act' for short) challenging the judgment and award passed by the MACT / Court of Small Causes, Mayo Hall Unit (SCCH-19) in M.V.C.No.300/2002 dated 14.08.2014. 2. For the sake of convenience, the parties herein are referred with original ranks occupied by them before the tribunal. 3. The brief factual matrix leading to the case are that the petitioners claiming to the be the legal representatives of deceased Dr.M.Nandanan have filed this claim petition seeking compensation of Rs.64,64,400/- by filing a petition under Section 166 of the Act. It is the assertion of the claimants that on 06.01.2002 at 7.15 p.m., the deceased Dr.M.Nandanan was returning to his house after purchasing the vegetables and fruits from 7th Main Road, Indiranagar First Stage, which is a commercial place. When he was crossing the road at the pedestrian cross
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NC: 2023:KHC:40973 MFA No. 89 of 2015
situated at grill divider and stone slab divider at the signal point to B.M.Sri Circle Road, the respondent No.1 being the rider of the motor cycle bearing registration No.KA-03-2- 7745 rode the same in a rash and negligent manner endangering human life without observing traffic rules came from the southern side and dashed against the deceased, due to which he was thrown at a distance of 4 meters and sustained severe head injuries and went into Coma. 4. The respondent No.1 shifted the injured to the hospital. The deceased was first shifted to Chinmaya Mission Hospital and then Manipal Hospital and thereafter to Nimhans. Later on, he succumbed due to the accidental injuries in Nimhans at 11.10 p.m. That the deceased was aged about 56 years and was working in National Aerospace Laboratories (NAL), Bangalore since, January 1973 and he was specialized in Theoretical and Experimental “Aero Dynamics” and he was heading the Advanced Aero Dynamics Design Group in Aeronautical Development Agency on deputation from NAL from 23.03.1986 and he
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NC: 2023:KHC:40973 MFA No. 89 of 2015
was absorbed in the Aeronautical Agency on 31.08.1989. He was getting emoluments to the tune of Rs.43,131/- per month and he was due for promotion on 01.07.2001. 5. That the accident has occurred due to the rash and negligent riding of the motor cycle by respondent No.1 and the claimants have lost the sole bread earner and they being the wife and daughter filed a claim petition under Section 166 of the Act claiming compensation of Rs.64,64,440/-. 6. The respondent No.1 did not contest the matter, while respondent No.2 appeared and filed objection statement disputing the claim. It is asserted that the accident has occurred due to the actionable negligence on the part of the deceased who suddenly crossed the road without following traffic rules without using the place meant for pedestrian crossing. The respondent No.2 admitted the policy of the offending vehicle but disputed the other assertions and sought for dismissal of the claim petition. The respondent No.3 – insurer has also admitted the policy,
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NC: 2023:KHC:40973 MFA No. 89 of 2015
but disputed the liability on the ground that the accident is on account of actionable negligence on the part of the deceased. 7. The tribunal after appreciating the oral and documentary evidence, has awarded a total compensation of Rs.36,15,436/- along with interest at the rate of 6% per annum. 8. Heard the arguments advanced by the learned counsel for the appellants/claimants. Inspite of granting sufficient opportunities, the learned counsel for the respondents did not appear so as to advance the arguments. Perused the records. 9. The learned counsel for the appellant would contend that he has challenged the quantum and negligence. He would contend that wrong multiplier is applied by considering the age of the deceased as 55 years in place of 57 years. He fairly concedes that liability is not disputed but there is contributory negligence on the part of the deceased and he would also assert that the deduction of
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NC: 2023:KHC:40973 MFA No. 89 of 2015
professional tax is done only to the extent of Rs.100/- but it ought to have been done to the extent of Rs.200/-. He would also assert that there is no zebra crossing and according to him initially, the claim petition was allowed by awarding compensation of Rs.30,20,000/-, which was remanded in M.F.A.No.3559/2009 for granting an opportunity to the respondent to contest the matter and after the insurance company contested the matter, the award was enhanced to Rs.36,15,436/-. 10. It is asserted that as per the post mortem report, age of deceased is shown to be 56 years and PW4 claims the age of the deceased as 57 years, but the tribunal has taken the age as 55 years, which is erroneous. Hence, he would seek for allowing the appeal by modifying the award by fastening the contributory negligence and reducing quantum of the award. 11. On perusal of the records, it is evident that there is no serious dispute of the fact that the deceased Dr.M.Nandanan met with an accident on 06.01.2002 at 7.15
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NC: 2023:KHC:40973 MFA No. 89 of 2015
p.m. when he was hit by a two-wheeler by respondent No.1 who was riding the same, which has resulted in his death. 12. The learned counsel for the appellant – insurance company would contend that there is contributory negligence on the part of the deceased, but to substantiate the said aspect, no evidence is placed by the respondents. The respondent No.1 would have been the best witness in the given circumstance but he did not enter into the witness box. 13. Admittedly, the respondent No.1 was prosecuted and a First Information Report is lodged against him. Ex.P3 is the material document, which is the sketch of the scene of offence. At the accident spot, there is a cross road and it is a circle. Further, all along, it is asserted that there is no pedestrian lane for crossing the road. But the sketch, which is marked at Ex.P3 discloses that the accident has occurred on the pedestrian crossing road. Further, the accident spot is the circle and it is a commercial locality. It is a 100 feet road and there are divider grills.
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NC: 2023:KHC:40973 MFA No. 89 of 2015
Considering all these aspects, the rider of the motor cycle – respondent No.1 ought to have driven his two-wheeler cautiously that too when he was fast approaching the circle, but his conduct disclose that he was in a hurry to cross the circle, which has resulted in the accident. Though the appellant asserts contributory negligence, no evidence is placed on record to substantiate this aspect and in the given circumstances, respondent No.1 would have been the best witness, but he was not examined. Further, the prosecution records also discloses that the rider i.e., respondent No.1 himself was prosecuted for the said accident and hence, the oral and documentary evidence clearly establish that the accident is due to the actionable negligence on the part of the rider of the offending vehicle i.e., the respondent No.1. Hence, the contention on the part of the appellant / insurance company that there is contributory negligence on the part of the deceased cannot be accepted.
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NC: 2023:KHC:40973 MFA No. 89 of 2015
From Ex.P10, it is evident that the deceased was drawing a salary of Rs.43,131/-. The tribunal, considering the professional tax by deducting Rs.100/- and income tax of Rs.6,350/- per month, has taken the salary at Rs.36,781/-. Further considering the age of the deceased as 56 years, 10% was taken as future prospects but as per the decision of the Hon’ble Apex Court in ‘NATIONAL INSURANCE COMPANY LTD V. PRANAY SETHI’, AIR 2017 SC 5157, 15% was required to be taken. From the salary of Rs.43,131/- if a sum of Rs.200/- is deducted towards professional tax and a sum of Rs.6,253/- is taken as approximate income tax, his take home salary would be Rs.36,678/-. To the said amount, if 15% is added towards future prospects, then the monthly salary would be Rs.42,180/-. However, the tribunal has taken the salary as Rs.40,459/- which is on the lower side. 16. The age of the deceased is taken by the tribunal as 55 years on the basis of inquest mahazar, but interestingly, in the claim petition itself in para 3, the age of
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NC: 2023:KHC:40973 MFA No. 89 of 2015
the deceased is asserted as 56 years. However, the age of the deceased is shown to be 55 years in the post mortem report. When the claimants themselves are claiming that the deceased was aged about 56 years, the tribunal has committed an error in taking his age as 55 years. If the age is taken as 56 years, the multiplier of ‘9’ is applicable instead of ‘11’ as applied by the tribunal. The claimants are the legal representatives and since, there are two dependants, 1/3rd is required to be deducted. Therefore, the monthly dependency comes to Rs.28,120/- i.e., (42180x2/3). Hence, the deceased would have contributed a sum of Rs.28,120/- towards his family. Hence, the loss of dependency would work out to RS.30,36,960/- i.e., (Rs.28,120x12x9). Hence, the claimants are entitled for a compensation of Rs.30,36,960/- under the head loss of dependency. 17. The claimants are the widow and daughter of the deceased. As per decision in ‘MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM & ORS.’ (2018)
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NC: 2023:KHC:40973 MFA No. 89 of 2015
18 SCC 130, which has been subsequently clarified by the Supreme Court in ‘UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.’ IN CIVIL APPEAL NO.2705/2020 DECIDED ON 30.06.2020, each of the claimants are entitled to a sum of Rs.40,000/- on account of loss of consortium. Thus, they are held entitled to a sum of Rs.80,000/-. In addition, the claimants are held entitled to a sum of Rs.30,000/- on account of loss of estate and funeral expenses. Hence, the claimants are entitled for a total compensation under various heads as under: Loss of dependency Rs.30,36,960/- Loss of consortium Rs.80,000/- Loss of Estate and funeral expenses Rs.30,000/- Total Rs.31,46,960/-
As such claimants are held entitled for a total compensation of Rs.31,46,960/- as against Rs.36,15,436/- awarded by the tribunal. 18. Considering these aspects, the appeal needs to be allowed in part and accordingly, I proceed to pass the following:
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NC: 2023:KHC:40973 MFA No. 89 of 2015
ORDER (i) The appeal stands allowed in part. (ii) The claimants are held entitled for a total compensation of Rs.31,46,960/- as against Rs.36,15,436/- awarded by the tribunal. (iii) The entire compensation is required to be paid by the appellant herein i.e., the respondent / insurance company / appellant herein within a period of six weeks from the date of receipt of the certified copy of this order. (iv) The deposit and disbursement shall be as per the order of the tribunal.
The amount in deposit shall be transmitted to tribunal for dispersement.
Sd/- JUDGE
SS List No.: 1 Sl No.: 9