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2022 Supreme(Online)(Kar) 32126
MFA.No.6013/2018
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.6013/2018 (MV-D)
BETWEEN:
THE CLAIM MANAGER
SHRIRAM GENERAL INSURANCE
COMPANY LIMITED, E-8,
RIICO INDUSTRIAL AREA
SITAPURA, JAIPUR
RAJASTHAN 3 302 022
BY SHRIRAM GENERAL INSURANCE
COMPANY LIMITED
NO.5/4, 3RD CROSS, S.V.ARCADE
BELAKANAHALLI MAIN ROAD
OPP:BANNERAGHATTA MAIN ROAD
II M.B.POST, BANGALORE 3 560 076
BY IT9S MANAGER
& APPELLANT
(BY SRI O.MAHESH, ADVOCATE (VC))
AND:
1.
SMT.ARCHANA M
AGE 31 YEARS
W/O LATE MURUGESH @ MURUGESAN
2.
MASTER MANOJ M , MINOR
AGED ABOUT 11 YEARS
S/O LATE MURUGESH @ MURUGESAN
MFA.No.6013/2018
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3.
MASTER DEEKSHESH M, MINOR
AGED ABOUT 8 YEARS
S/O LATE MURUGESH @ MURUGESAN
4.
BABY VAISHNAVI M, MINOR
AGED ABOUT 3 YEARS
D/O LATE MURUGESH @ MURUGESAN
5.
SRI.RAMLINGAM
AGED ABOUT 70 YEARS
S/O LATE SRI.DHANKODI
6.
SMT.POWNAMMAL
AGE 56 YEARS
RESPONDENT NOS.2 TO 4 ARE
MINORS BY N/G MOTHER
SMT.ARCHANA
RESPONDENTS 1 TO 4
R/AT NO.4, 3RD MAIN, 3RD CROSS
NEAR ABBAIAH NAIDU STUDIO,
NAIDU LAYOUT, BANGALORE SOUTH
SUBRAMANYAPURA
BENGALURU 3 560 061
RESPONDENT NO.5 AND 6 ARE
R/AT NO.234/1, 2B CROSS
9TH MAIN, BSK 3RD STAGE
ITAMADU, BANGALORE 3 560 085
7.
SRI.SYED BUDAN
MAJOR
W/O MOHAMMED ALI
R/AT NO.152, 2ND CROSS
4TH MAIN GUTHAL
MANDYA DISTRICT 3 571 401 ... RESPONDENTS
(BY SRI A.S.GIRISH, ADVOCATE FOR C/R1 TO R4 &
R5 & R6;
(R2 TO R4 ARE MINORS REPRESENTED BY C/R1);
R-7 NOTICE TO DISPENSED WITH V/O DATED
03.12.2018)
MFA.No.6013/2018
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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
24/04/2018, PASSED IN MVC NO.5873/2016, ON THE FILE
OF THE IX ADDITIONAL SMALL CAUSES JUDGE & XXXIV
ACMM., COURT OF SMALL CAUSES, MEMBER, MACT-7,
BENGALURU,
AWARDING
COMPENSATION
OF
RS.18,84,400/- ALONG WITH FUTURE INTEREST AT THE
RATE OF 9% P.A. FROM THE DATE OF PETITION TILL
REALIZATION OF ENTIRE AMOUNT.
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
The present appeal is filed by the Insurance
Company challenging the judgment and award dated
24.04.2018 passed in MVC.No.5873/2016 by the IX
Addl. Small Causes and Addl. MACT, Bangalore,
(SCCH-7) on the ground of contributory negligence as
well as on the quantum of compensation.
Brief facts of the case are as under:
On 25.07.2016 at about 11.20 pm., when
Murugesh @ Murugesan was riding his motor cycle on
Dr.Vishnuvardhan road from south to north direction
at extreme left side of the road, the driver of Eicher
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lorry No.KA-14-a-6467 came in a rash and negligent
manner and dashed against the motor cycle. Due to
which, he thrown out to the left side of the road and
his head was crashed to electric pole and he
succumbed to the injuries. The claimants being the
dependents of the deceased filed a claim petition
under Section 166 of M.V.Act., claiming compensation
before the Tribunal. The Tribunal has partly allowed
the claim petition and awarded compensation of
Rs.18,84,400/- with interest at 9% p.a., from the date
of petition till its realization.
Regarding rash and Negligence:
Learned
Counsel for
the
appellant-
Insurance Company submitted that, in the present
case, the deceased has also contributed negligence
towards the accident and it is because of the
deceased only, the accident has caused. It is
submitted that the driver of the Eicher Lorry bearing
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Reg.No.KA-14-A-6467 was turning the lorry to the
right side by giving signal. At that time, the deceased
had hit the Eicher lorry. Therefore, submitted that the
deceased himself is fully responsible for the accident.
Further submitted that the driver of the lorry has been
charge sheeted by the Investigation Officer, but he
was
acquitted
before
the
Court
of
Magistrate.
Therefore, submitted that the driver of the lorry was
not rash and negligent.
Further submitted that the complainant is
not examined before the Court. Therefore, arises
doubt with regard to the evidence of P.W.2 and
suspected the complaint-Ex.P.2. Therefore, submitted
that the Tribunal has committed error in fastening the
entire negligence of the part of the driver of the Eicher
lorry.
Further submitted that there is no proof
regarding income of the deceased either to prove his
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income as Rs.25,000/- per month or Rs.9,000/- per
month as held by the Tribunal. Therefore, challenged
the quantum of compensation. Hence, on these two
grounds, as discussed above, the Insurance Company
prays to allow the appeal by setting aside the
judgment and award passed by the Tribunal.
On the other hand, learned counsel for the
respondents/claimants submitted that as per the
complaint-Ex.P.2 and spot sketch-Ex.P.4 resulting in
filing of the charge sheet against the driver of the
lorry proves the fact that the driver of the lorry was
rash and negligent in driving the same. Therefore, the
driver of the lorry has been correctly charge sheeted.
Therefore,
submitted
that
the
claimants
have
produced sufficient evidence before the Tribunal to
prove the rash and negligent driving by the driver of
the Eicher lorry, which was correctly held by the
Tribunal. Therefore, prays to dismiss the appeal.
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Further submitted that on the quantum of
compensation, the Tribunal has committed error in
taking notional income at Rs.9,000/- per month,
which is on the lesser side and also the Tribunal has
awarded compensation under the head loss of
consortium, which is also on the lesser side. Although,
the claimants have not preferred an appeal, but
following the judgment of the Hon9ble Supreme Court,
compensation may be enhanced. Hence, prays to
dismiss the appeal filed by the Insurance Company.
8.
In the present case, it is stated in the
complaint that on 25.07.2016 at about 11:20 p.m.,
when the deceased Murugesh @ Murugesan was riding
his motor cycle on Dr.Vishnuvardhan Road from South
to North direction at extreme left side of the road in
front of J.K.Vision Care, at that time, the driver of the
Eicher lorry bearing Reg.No.KA-14-A-6467 came from
oppos
