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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF JULY, 2021
PRESENT
THE HON’BLE MRS. JUSTICE S. SUJATHA
AND
THE HON’BLE MR. JUSTICE E.S. INDIRESH
MISCELLANEOUS FIRST APPEAL No.2055 OF 2017 (MV) C\w MISCELLANEOUS FIRST APPEAL CROB No.46 OF 2019 and MISCELLANEOUS FIRST APPEAL No.2056 OF 2017 and MISCELLANEOUS FIRST APPEAL No.2057 OF 2017 C/w MISCELLANEOUS FIRST APPEAL CROB No.123 OF 2017
In MFA No.2055/2017
BETWEEN
United India Insurance Co. Ltd Shivamogga DO RUB Building, B H Road A A Circle Shivamogga-577 201. Rep. by its Divisional Manager Smt. M Sudhamani ...Appellant (By Shri B C Seetharama Rao, Advocate)
AND
Sri R Bhojaraj Shetty Aged about 57 years S/o late Ramanna Shetty
Smt. Rajani Aged about 44 years W/o R Bhojaraj Shetty
Sri Vinay Kumar Aged about 24 years S/o R Bhojaraj Shetty
All are residing at No.66-a Railway quarters Near:Railway Station Shivamogga-577 201.
Sri Halappa M G Aged about 74 years S/o Giriyappa Residents of Hiremalali Village Channagiri Taluk Davanagere District-577 002. (Owner of i-10 Car No.KA 14/N-6521)
Mr. Rahamathulla S/o Mr. Hussain Peer R/at NO.14-308 Opp. Banda Masjid Hospital Street, C-B Road Thadapathri Post Ananthpur District Andhra Pradesh State-500211. (Owner of Lorry No.AP.02/x-9399)
5.The Manager Cholamandalam General Insurance Co. Ltd., II Floor Dara House, 2 NSC Bose Road Chennai-600 001. (Insurer of Lorry No.AP-02/X-9399) ….Respondents (By Shri K Prasanna Shetty, Advocate for R1 to 3;
3 Shri O Mahesh, Advocate for R6; Vide order dated 05.04.2021 notice to R5 is dispensed with)
This Miscellaneous First Appeal is filed under Section 173(1) of Motor Vehicles Act, against the judgment and award dated 07.10.2016 passed in MVC No.301 of 2013 on the file of the I Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal-VII, Shivamogga, awarding compensation of Rs.47,58,200/- with interest at 6% per annum from the date of petition till entire realisation.
In MFA Crob No.46/2019
BETWEEN
Sri R Bhojaraj Shetty S/o late Ramanna Shetty Aged about 59 years
Smt. Rajani W/o R Bhojaraj Shetty Aged about 46 years
Sri Vinay Kumar S/o Bhojaraj Shetty Aged about 26 years
All are residing at H. No.66-A Railway quarters Near:Railway Station Shivamogga-577 201.
….Cross Objectors (By Shri K Prasanna Shetty, Advocate )
AND
Halappa M G S/o Giriyappa
4 Aged about 76 years R/at Hiremalali Village Channagiri Taluk Davanagere District.
United India Insurance Company Ltd Divisional Office RUB Building B H Road, A A Circle Shivamogga.
Rahamathulla S/o Husain Peer R/ at No.14/308 Opp. Banda Masjid Hospital Street, C B Road Thadapathri Post Ananthpur District Andrapradesh State.
4.The Manager Cholamandalam General Insurance Co. Ltd., II Floor Dara House, 2 NSC Bose Road Chennai-600 001. …Respondents (By Shri V R Prasanna, Advocate for R1; Shri B C Seetharama Rao, Advocate for R2; Shri O Mahesh, Advocate for R4; Vide order dated 01.06.2021 notice to R3 is dispensed with)
This MFA Crob No.46 of 2019 is filed in MFA No.2055 of 2017 under Order XLI Rule 22 of the CPC., read with Section 173(1) of Motor Vehicles Act, against the judgment and award dated 07.10.2016 passed in MVC No.301 of 2013 on the file of the I Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal-VII Shivamogga, partly allowing the claim petition for compensation and seeking enhancement of compensation.
In MFA No.2056/2017
BETWEEN
United India Insurance Co. Ltd Shivamogga DO RUB Building, B H Road A A Circle Shivamogga-577 201. Rep. by its Divisional Manager Smt. M Sudhamani ...Appellant (By Shri B C Seetharama Rao, Advocate)
AND
Mr. S H Swagath Aged about 27 years S/o Sri S M Halappa R/of Rathanakara Layout Opp. Krushi College Abbalagere Post Shivamogga Taluk-577 201.
Sri Halappa M G Aged about 74 years S/o Giriyappa Residents of Hiremalali Village Channagiri Taluk Davanagere District-577 002. (Owner of i-10 Car No.KA 14/N-6521)
Mr. Rahamathulla S/o Mr. Hussain Peer R/at No.14-308 Opp. Banda Masjid Hospital Street, C-B Road Thadapathri Post
6 Ananthapur District Andhra Pradesh State-500211. (Owner of Lorry No.AP.02/X-9399)
4.The Manager Cholamandalam General Insurance Co. Ltd., II Floor Dara House, 2 NSC Bose Road Chennai-600 001. (Insurer of Lorry No.AP.02/X-9399) ….Respondents (By Shri Srinivasa S A, Advocate for R1; Sri V R Prasanna , Advocate for R2; Notice to R3 is held sufficient; Shri O Mahesh, Advocate for R4)
This Miscellaneous First Appeal is filed under Section 173(1) of Motor Vehicles Act, against the judgment and award dated 07.10.2016 passed in MVC No.504 of 2013 on the file of the I Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal-VII, Shivamogga, awarding compensation of Rs.5,65,500/- with interest at 6% per annum from the date of petition till entire realisation.
In MFA No.2057/2017
BETWEEN
United India Insurance Co. Ltd Shivamogga DO RUB Building, B H Road, A A Circle Shivamogga-577 201. Rep. by its Divisional Manager Smt. M Sudhamani ...Appellant (By Shri B C Seetharama Rao, Advocate)
AND
7 1. Mr. V Sathyajeeth Aged about 28 years S/o Sri A N Venkatesh Rao Mechanical Engineer R/of II Cross, Thilaknagara Shivamogga Taluk-577 201.
Sri Halappa M G Aged about 74 years S/o Giriyappa Residents of Hiremalali Village Channagiri Taluk Davanagere District-577 001. (Owner of i-10 Car No.KA 14/N-6521)
Mr. Rahamathulla S/o Mr. Hussain Peer R/at NO.14-308 Opp. Banda Masjid Hospital Street, C-B Road Thadapathri Post Ananthapur Distirct Andhra Pradesh State-500211. (Owner of Lorry No.AP.02/x-9399)
The Manager Cholamandalam General Insurance Co. Ltd., II Floor Dara House, 2 NSC Bose Road Chennai-600 001. (Insurer of Lorry No.AP.02/x-9399) ….Respondents (By Shri Chandrakanth R Patil, Advocate for R1; Sri V R Prasanna , Advocate for R2; Shri O Mahesh, Advocate for R4; Notice to R3 is held sufficient)
This Miscellaneous First Appeal is filed under Section 173(1) of Motor Vehicles Act, against the judgment and award
8 dated 07.10.2016 passed in MVC No.505 of 2013 on the file of the I Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal-VII, Shivamogga, awarding compensation of Rs.4,01,500/- with interest at 6% per annum from the date of petition till entire realisation.
In MFA Crob No.123/2017
BETWEEN
V Sathyajeeth S/o A N Venkatesh Rao Aged about 28 years Mechanical Engineer R/at 2nd Cross Tilak Nagar-577 201 Shivamogga City. ….Cross Objector (By Shri Chandrakanth R Patil, Advocate )
AND
Halappa M G S/o Giriyappa Aged about 75 years R/at Hiremalali Village Channagiri Taluk-577 213 Davanagere District. (Owner of i-10 Car No.KA 14/N-6521)
United India Insurance Company Ltd Divisional Office RUB Building B H Road, A A Circle Shivamogga-577 201.
Rahamathulla S/o Husain Peer Ra/t No.14/308
9 Opp. Banda Masjid Hospital Street, C B Road Thadapathri Post Ananthpur District Andhra Pradesh State.
The Manager Cholamandalam General Insurance Co. Ltd., II Floor Dara House, 2 NSC Bose Road Chennai-600 001. …Respondents (By Shri V R Prasanna, Advocate for R1; Shri B C Seetharama Rao, Advocate for R2; Shri O Mahesh, Advocate for R4; Notice to R3 is dispensed with)
This MFA Crob No.123 of 2017 is filed in MFA No.2057 of 2017 under Order XLI Rule 22 of the CPC., read with Section 173(1) of Motor Vehicles Act, against the judgment and award dated 07.10.2016 passed in MVC No.505 of 2013 on the file of the I Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal-VII Shivamogga, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These Miscellaneous First appeals and Cross Objections coming on for hearing, this day, INDIRESH J., delivered the following:
J U D G M E N T
These appeals are filed by the Insurance Company and the claimants, challenging the common judgment and award dated 07th October, 2016 in MVCs 301, 504, 505 and 1127 of 2013 I Additional Senior Civil Judge and Additional Motor Accident
10 Claims Tribunal-VII Shivamogga (for short, hereinafter referred to as 'the Tribunal’).
MFAs 2055, 2056 and 2057 of 2017 are filed by the Insurance Company challenging the judgment and award in MVC No.301, 504 and 505 of 2013 respectively. MFA Cross-objections 123 of 2017 and 46 of 2019 are filed by the claimants in MVC 505 of 2013 and MVC 301 of 2013 respectively, seeking enhancement of compensation.
For the sake of convenience, the parties in these appeals cross-objections are referred to with their status and rank before the Tribunal.
It is the case of the claimants in the claim petition that, on 14th January, 2013 deceased-Vijaykumar B and claimants were traveling in a car bearing registration number KA-14/N- 6521 from Shivamogga towards Ayanoor side and the said Car was being driven by one Ajay. It is the case of the claimants that when the car reached near Tavarekoppa Simhadhama, a lorry bearing registration number AP-02/X-9399 dashed to the Car and as a result, the said Vijaykumar B died and others got
11 injured. It the case of the claimants that the said accident occurred due to the negligent driving on the part of the driver of the offending lorry in question. Hence Claim petition in MVC No.504 of 2013 is filed by S.H. Swagath seeking compensation for the injuries sustained by him in the accident; MVC No.505/2017 is filed by one Sathyajeet, seeking compensation for the injuries sustained by him; and MVC No.301/2013 is filed by the legal representatives of the deceased-Vijaykumar seeking compensation.
On service of notice, respondents entered appearance and filed detailed written statement. Respondent No.3 placed ex- parte before the Tribunal. The second respondent-Insurance Company contended that the alleged accident occurred due to negligence of the part of the offending lorry and therefore, sought for dismissal of the claim petition against the driver/owner of the Car.
The Tribunal after considering the pleadings on record, has framed issues for its consideration. Claimants were examined as PW1 to PW4 and 3 more witnesses were examined
12 as PW5 to PW7. Claimants produced 165 documents and same were marked Exhibits P1 to P165. Doctor was examined as CW1 and documents were marked as per Exhibits C1 to C3 in MVC No.503/2013. The respondents have examined three witnesses as RW1 to RW3 and produced 5 documents and same were marked as Exhibits R1 to R5.
The Tribunal, after considering the material on record, allowed the claim petition in MVC No.301 of 2013 awarding compensation of Rs.47,58,200/- to the claimant; in MVC No.504 of 2013 the claimant was awarded Rs.5,65,500/-; and claimant in MVC No.505 of 2013 was awarded Rs.4,01,500/-, with interest at the rate of 6% per annum from the date of the petition till realisation in all the claim petitions. Being not satisfied with the quantum of compensation as meagre, the claimants have preferred these appeals seeking enhancement of compensation and the insurance company questioned the impugned judgment and award on the ground of liability and quantum.
We have heard Sriyuths B.C. Seetharama Rao, learned counsel appearing for the United India Insurance Company, O.
13 Mahesh, learned counsel appearing for the Cholamandalam General Insurance Company, K. Prasanna Shetty, Chandrakanth R Patil, learned counsel appearing for the claimants and V.R. Prasanna, learned counsel appearing for Insured-vehicle.
Sri B.C. Seetharama Rao, learned counsel appearing for the Insurance Company argued that the Tribunal has not properly appreciated evidence on record. He further contended that the Tribunal ought to have fastened the entire liability on the driver of the lorry in question, since the perusal of spot sketch produced at Exhibit P165 establish that the alleged accident occurred due to the negligence on the part of the driver of the lorry as driver of the said lorry suddenly took to right side of the road and as such, dashed to the moving car and this aspect of the matter was not properly appreciated by the Tribunal while fastening the liability and also argued that the compensation awarded is on the higher side and requires to be modified.
Sri O. Mahesh, learned counsel appearing for Cholamandalam Insurance Company argued that the Tribunal
14 rightly fastened the liability on the driver of the Car and as such, no interference is required to disturb the impugned judgment and award on the ground of liability.
Learned counsel appearing for the claimants, in chorus, submitted that the Tribunal rightly fastened the liability as per the finding recorded on issue No.1 and same does not require any interference in this appeal. However, the learned counsel for claimants argued that as regards awarding of compensation is concerned, the Tribunal has not properly appreciated the material on record and therefore, the claimants are entitled for just compensation as required under Section 166 of the Motor Vehicles Act.
Having heard the learned counsel appearing for the parties, we have carefully perused the original documents. Perusal of the record would clearly indicate that one Ajay was driving the car on 14th January, 2013 from Shivamogga to Ayanoor side and deceased-Vijaykumar, and injured Swagath and V. Sathyajeet, were inmates of the car. Considering the arguments advanced by the learned counsel appearing for the
15 Insurance Company with regard to liability, we have carefully scrutinised the sketch produced as per Exhibit P165. On re- appreciation of the said document, we found that the Tribunal has rightly fastened the liability on the Driver of the Car, exonerating the insured of the lorry in question. The police records also substantiate the fact that the driver of the car, while overtaking the lorry, hit the portion of the lorry.
In this regard, we have carefully re-assessed the testimony of PW5-Govindappa, who has been examined by the claimants as an eye witness to the accident. Undisputably, he is not a charge-sheet witness and therefore, even if certain stray sentences deposed by the PW5 with regard to the negligence as contended by the learned counsel appearing for the insurance company, the same cannot be a basis to take another possible view departing from the finding recorded by the Tribunal and therefore, there is no merit in the arguments advanced by Sri B.C. Seetha Rama Rao, learned counsel appearing for the Insurance Company with regard to liability and therefore, we are
16 of the view that MFAs.2055, 2056 and 2017 of 2017 are liable to be dismissed on the question of liability.
Insofar as quantum of compensation to be awarded in MFA.2055 of 2017 connected with MFA Crob.46 of 2019 is concerned, deceased Vijaykumar.B was aged about 23 years as on the date of accident and he was working as Software Engineer at Sun Technologies, Bangalore earning monthly income of Rs.28,600/- as per Exhibit P9-Salary certificate. The claimants have examined the employer as PW7. Testimony of PW7 would indicate that the salary of the deceased was Rs.28,600/- per month as on the date of accident and therefore, the annual salary would be Rs.3,43,200/- and after deducting Income tax and professional tax in a sum of Rs.17,720/-, the net salary would be Rs.3,25,480/-. In the light of the dictum of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in 2017 ACJ 2700, 40% is to be added to the income towards future prospects. In terms of the law declared by the Hon’ble Supreme Court in the case of SARLA VERMA AND OTHERS v.
17 DELHI TRANSPORT CORPORATION AND ANOTHER reported in 2009 ACJ 1298, the appropriate multiplier would be 18, out of the total income 50% is to be deducted towards the personal expenses of the deceased. Hence, loss of dependency would be Rs.41,01,048/- (Rs.3,25,480/- + 40% x 18 x ½). There are two dependents, and therefore claimants are entitled for Rs.80,000/- (Rs.40,000 x 2) towards loss of consortium. Claimants are also entitled for Rs.15,000/- each towards loss of estate and for funeral expenses. Hence, the claimants are entitled for total compensation of Rs.42,11,048/- as against Rs.47,58,200/-, with interest at the rate of 6% per annum from the date of petition till realisation and to this extent the appeal preferred by the Insurance Company in MFA 2055 of 2017, on quantum, is liable to be allowed and MFA Cross Objections 46 of 2019 filed by the claimants is liable to be dismissed.
Insofar as quantum of compensation in MFA 2056 of 2017 (MVC No.504/2013) is concerned, as on the date of accident, injured Swagath was aged about 23 years and working as an Engineer. Pursuant to the accident, he suffered injury and
18 as per the disability certificate at Exhibit P45 so also perusal of the testimony of the Doctor would indicate that the claimant suffered disability of 6% to the whole body. From the records, it is found that the claimant was selected as a Junior Computer Programmer by District Co-ordinator and District programmer of, BRC, T.N. Pura, of Invensis Technologies Pvt Ltd. However, it is further revealed from the records that the claimant has continued in employment even after accident and therefore, the claimant is not entitled for compensation under loss of future income. Taking into account the injuries sustained by the claimant as per Exhibits P44 and P48, the award made by the Tribunal on pain and suffering, medical expenses, loss of income during the laid-up period and towards future medical expenses, conveyance, food and nutrition, do not call for any enhancement. However, the Tribunal ought to have awarded compensation towards disability and amenities, taking into consideration the injuries sustained by the claimant and therefore, the claimant is entitled for Rs.1,00,000/- towards disability and Rs.50,000/- towards loss of amenities. Hence, we have re-assessed the quantum of compensation and the
19 claimant is entitled for total compensation of Rs.5,21,100/- as against Rs.5,65,500/- awarded by the Tribunal and to this extent the appeal preferred by the Insurance Company is to be allowed in part.
Insofar as award of compensation in MFA.2057 of 2017 connected with MFA.Crob.123 of 2017 (MVC No.505 of 2013) is concerned, the claimant-V.Sathyajeet (PW4) deposed that he is an Engineer by profession working in a private establishment and drawing a salary of Rs.15,000/- per month. He produced the disability certificate issued by the Doctor as per Exhibit P164 which reveals that he suffered loss of physical function of left lower limb to an extent of 22% and therefore, the disability to the whole body would be 7.3%. The Tribunal, taking into consideration the educational qualification of the claimant, who is a Mechanical Engineer, assessed the income at Rs.15,000/- per month and the same is accepted in this appeal also. The claimant was aged about 24 years as on the date of accident and in terms of law declared by the Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT
20 CORPORATION AND ANOTHER reported in 2009 ACJ 1298, the appropriate multiplier would be 18. Hence, the loss of future income would be Rs.2,36,520/- (Rs.1,80,000/- x 18 x 7.3%). Award of compensation towards pain and suffering and loss of income during laid up period is just and proper. However, Tribunal has not awarded any compensation towards loss of amenities and attendant charges and therefore, having regard to the testimony of the PW4 and Exhibit P65, we are of the considered view that the claimant is entitled for Rs.50,000/- towards loss of amenities and Rs.20,000/- towards attendant and conveyance charges. Hence, the claimant is entitled for Rs.4,71,500/- as against Rs.4,01,500/- awarded by the Tribunal.
Hence we pass the following: O R D E R i) Miscellaneous First Appeals No.2055 and 2056 of 2017 are allowed in part; ii) The total compensation awarded by the Tribunal in MVC No.301 of 2013 is modified and reduced to Rs.42,11,048/- (Rupees forty two lakh eleven thousand forty eight only) as against Rs.47,58,200/-,
21 with interest at the rate of 6% per annum from the date of claim petition till its realisation; iii) The total compensation awarded by the Tribunal in MVC No.504 of 2013 is modified and reduced to Rs.5,21,500/- (Rupees five lakh twenty one thousand five hundred only) as against Rs.5,65,500/-, with interest at the rate of 6% per annum from the date of claim petition till its realisation; iv) MFA Crob.123 of 2017 is partly allowed; v) The total compensation awarded by the Tribunal is modified and enhanced to Rs.4,71,500/- (Rupees four lakh seventy one thousand five hundred only) as against Rs.4,01,500/- with interest at the rate of % per annum from the date of claim petition till its realisation; vi) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement, remains intact; vii) The Insurance Company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order;
22 viii) The modified compensation amount shall be apportioned and disbursed in terms of the order of Tribunal; ix) If any amount is transferred to the account of the claimants in excess, the same shall be refunded to the Insurance Company, after due identification in accordance with law; x) Miscellaneous First Appeal No.2057 of 2017 filed by the United India Insurance Company Limited; and MFA Crob.46 of 2019 filed by the claimants stand dismissed; xi) Draw modified award accordingly; xii) The Registry shall transfer the amount in deposit with original records to the jurisdictional Tribunal forthwith; xiii) In view of the disposal of the appeal, pending IAs, if any, stand disposed of.
Sd/- JUDGE
Sd/- JUDGE UN/lnn