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2023 Supreme(Online)(Kar) 38147
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF APRIL, 2023 BEFORE THE HON’BLE MR JUSTICE N S SANJAY GOWDA MISCELLANEOUS FIRST APPEAL NO.7635 OF 2018(MV-D)
C/W MFA CROSS OBJECTION NO. 33 OF 2019(MV-D)
IN MFA 7635/2018 BETWEEN:
ORIENTAL INSURANCE COMPANY LIMITED DIVISONAL OFFICER-II TP HUB MAIN ROAD MUSLIM HOSTEL COMPLEX SARASWATHIPURAM, MYSURU HEREIN REPRESENTED BY THE REGIONAL OFFICE NO.44/45 LEO SHOPPING COMPLEX RESIDENCY ROAD BANGALORE-560 025 BY ITS DEPUTY MANAGER …APPELLANT Digitally signed by PANKAJA S Location:
HIGH (BY SRI. H C VRUSHABHENDRAIAH., ADVOCATE)
COURT OF KARNATAKA AND:
1. SMT. NETHRAVATHI W/O LATE T R ASHOK
31 YEARS.
2. MANYA D/O LATE T R ASHOK AGED 10 YEARS
3. MADAN S/O LATE T R ASHOK
7 YEARS R2 AND R3 ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER SMT NETHRAVATHI R1
4. SMT LALITHA W/O LATE RAMEGOWDA AGED ABOUT 56 YEARS ALL ARE R/AT THORANOOR VILLAGE AND POST KUSHALNAGAR HOBLI SOMVARPET TALUK
5. B.MAHADEVAPPA SINCE DEAD BY HIS L.R.
SMT. SUNANDAMMA W/O LATE B MAHADEVAPPA R/AT NO.110 BEERAMBAHALLI VILLAGE N BEGUR POST ANTHARASANTHE HOBLI H.D.KOTE TALUK MYSUR DISTRICT.
6. DIVISIONAL CONTROLLER KARNATAKA STATE ROAD TRANSPORT CORPORATION RURAL DIVISION BANNIMANTAP, MYSURU-570 001.
7. SANNASWAMY S/O JAVARAPPA AGED ABOUT 39 YEARS R/AT THORENNOR VILLAGE AND POST SOMAVARPET TALUK
8. UNITED INDIA INSURANCE COMPANY LTD., DIVISIONAL OFFICE T P HUB, BALLAL CIRCLE CHAMARAJAPURAM MYSURU …RESPONDENTS (BY SMT. SUMANA KEDILYA.,ADVOCATE FOR SRI. PADMANABHA KEDILAYA, ADVOCATE FOR R1 TO R4:
SRI. SHARATH S BELAGAVI, ADVOCATE FOR R5:
SRI. S.T. NAIK, ADVOCATE FOR R6:
SRI. L. SREEKANTA RAO, ADVOCATE FOR R8:
R7 IS PLACED EXPARTE V/O DATED: 27.03.2023 R2 AND R3 ARE MINORS REPRESENTED BY R1)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:13.06.2018 PASSED IN MVC NO.140/2014 ON THE FILE OF THE JUDGE, ADDITIONAL SMALL CAUSES, SENIOR CIVIL JUDGE, MACT, MYSURU, AWARDING COMPENSATION OF RS.18,57,000/- WITH INTEREST AT 6% P.A. FORM THE DATE OF PETITION TILL ITS REALIZATION FROM RESPONDENTS NO.1 & 2.
IN MFA CROB 33/2019 BETWEEN:
1. SMT. NETHRAVATHI W/O LATE T R ASHOK
31 YEARS.
2. MANYA D/O LATE T R ASHOK AGED 11 YEARS
3. MADAN S/O LATE T R ASHOK
8 YEARS CROSS OBJECTORS No. 2 AND 3 ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER SMT NETHRAVATHI CROSS OBJECTOR No.1
4. SMT LALITHA W/O LATE RAMEGOWDA AGED ABOUT 56 YEARS ALL ARE R/AT THORANOOR VILLAGE AND POST KUSHALNAGAR HOBLI SOMVARPET TALUK ...CROSS OBJECTORS (BY SMT. SUMANA KEDILAYA, ADVOCATE FOR SRI. PADMANABHA KEDILAYA V., ADVOCATE)
AND
1 B.MAHADEVAPPA SINCE DEAD BY HIS L.R.
SMT. SUNANDAMMA W/O LATE B MAHADEVAPPA R/AT NO.110 BEERAMBAHALLI VILLAGE N BEGUR POST ANTHARASANTHE HOBLI H.D.KOTE TALUK MYSUR DISTRICT.
2. ORIENTAL INSURANCE CO LTD., DIVISIONAL OFFICE-II, T P HUB I MAIN ROAD, MUSLIM HOSTEL COMPLEX SARASWATHIPURAM MYSORE DISTRICT-571114.
3 DIVISIONAL CONTROLLER KARNATAKA STATE ROAD TRANSPORT CORPORATION RURAL DIVISION BANNIMANTAP, MYSURU-570 001.
4 SANNASWAMY S/O JAVARAPPA AGED ABOUT 39 YEARS R/AT THORENNOR VILLAGE AND POST SOMAVARPET TALUK
5 UNITED INDIA INSURANCE COMPANY LTD., DIVISIONAL OFFICE T P HUB, BALLAL CIRCLE CHAMARAJAPURAM MYSURU.
…RESPONDENTS (BY SRI. H.C VRUSHABENDRAIAH, ADVOCATE FOR R2 SRI. S.T. NAIK, ADVOCATE FOR R3 NOTICE TO R1 & R4 AE DSPENSED WITH SRI. P.B. RAJU, ADVOCATE FOR R5)
THIS MFA CROB IS FILED UNDER ORDER 41 RULE 22 READ WITH SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:13.06.2018 PASSED IN MVC NO.140/2014 ON THE FILE OF THE JUDGE, ADDITIONAL SMALL CAUSES, SENIOR CIVIL JUDGE, MACT, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL AND CROSS OBJECTION, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
1. The insurer of the motorcycle bearing No.KA-45-S- 1105 as well as the claimants have filed this appeal and cross objection, respectively, challenging the judgment and award of the Tribunal, on the ground of negligence as well as quantum of compensation.
2. It is the case of the insurer of the motorcycle that if the driver of the KSRTC bus, who was examined as RW-3 had driven the bus carefully by following the rules and regulations, the accident would not have occurred. In the light of the evidence, it is contended that certain amount of negligence has to be attributed on the part of the driver of the bus.
3. The learned counsel for the claimants, however, contends that the accident occurred when the motorcycle bearing No.KA-12-K-3288, in which the deceased was traveling as a pillion rider was hit by another motorcycle bearing No.KA-45-S-1105, which was coming from behind and when both the motorcycles were overtaking the bus, which clearly indicated that the accident occurred because of the negligence of the rider of the motorcycle, which was insured by the appellant herein. It is also contended that the charge sheet has been laid against the rider of the motorcycle, who hit the motorcycle from behind, in which the deceased was traveling as a pillion rider and therefore, the Tribunal was justified in attributing negligence only on the part of the rider of motorcycle bearing No.KA-45-S- 1105. Further, it is contended that the sums awarded by the Tribunal are inadequate and requires to be enhanced.
4. It is not in dispute that the accident occurred when two motorcycles were overtaking the KSRTC bus. The evidence on record indicates that the motorcycle, which was insured by the appellant herein hit the motorcycle, in which the deceased was traveling as a pillion rider from behind, as a result of which, the deceased fell down and the bus ran over him. It is not in dispute that the charge sheet has been laid against the rider of the motorcycle bearing No.KA-45-S-1105. Therefore, in the facts and circumstances of the case, the finding of the Tribunal that the rider of the motorcycle bearing No.KA- 45-S-1105 was negligent in causing the accident and insurer of the said motorcycle was liable to pay compensation, cannot be found fault with. Hence, the appeal filed by the appellant-insurer is liable to be dismissed.
5. In so far as quantum of compensation is concerned, the Tribunal on assessment of oral and documentary evidence has awarded a total compensation of Rs.18,57,000/-.
6. In order to arrive at the loss of dependency, the Tribunal has determined the monthly income, notionally at Rs.7,500/-. As there is no credible evidence to ascertain the actual monthly income, it would be appropriate and prudent to adopt the monthly income determined by Karnataka State Legal Services Authority, which, for the accident of the year 2014, would be Rs.8,500/-.
7. Since the deceased was aged 33 years, 40% requires to be added to the monthly income towards future prospects, which would result in the income to be Rs.11,900/-. The claimants are wife, two children and mother of the deceased. Therefore, 1/4th of the income has to be deducted towards personal expenses of the deceased instead of 1/3rd deducted by the Tribunal. Hence, the income of the deceased for the purposes of determining the loss of dependency would thus be Rs.8,925/-
8. As the deceased was aged 33 years, a multiplier of '16' would have to be applied. Consequently, the claimants would be entitled to a sum of Rs.17,13,600/- (8,925 x
12 x 16) towards “loss of dependency”.
9. The claimants being the wife, two children and mother of the deceased, they would each be entitled to a sum of Rs.44,000/- towards “loss of consortium” i.e., in all Rs.176,000/- and they would also be entitled to a sum of Rs.33,000/- under the “conventional heads”.
10. The sum of Rs.403,000/- awarded by the Tribunal towards 'medical expenses' is based on medical bills produced by the claimants and hence, the same
