THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 23.07.2019 PASSED IN M.V.C.NO.2805/2017 ON THE FILE OF THE II ADDITIONAL JUDGE AND XXVIII ACMM, COURT OF SMALL CAUSES, MACT, BENGALURU (SCCH-13), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI

&

HON'BLE MS. JUSTICE TARA VITASTA GANJU

ORAL JUDGMENT

(PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU)

1. The present appeal seeks to challenge the judgment and award dated 23.07.2019 in M.V.C.No.2805/2017 passed by the II Additional Judge & XXVIII ACMM, Court of Small Causes, Bengaluru (hereinafter referred to as the ‘Impugned Award’). By the Impugned Award, the learned Tribunal has awarded compensation to the appellants/claimants in a sum of Rs.10,32,800/- along with interest at the rate of 6% per annum from the date of petition till deposit of the amount in the Tribunal.

2. The Appeal though listed for admission, with the consent of the learned Counsel for the parties, is taken up for final hearing and disposal today itself.

3. The Appeal has been filed by the appellants/claimants. Notice to respondent No.1/owner was dispensed with by order dated 22.03.2021 passed by this Court. The appeal has been contested by the appellants/claimants and learned Counsel for respondent No.2/Insurance Company.

4. Briefly the facts of the case are that on 05.10.2016 the deceased Mani was travelling in a motorcycle bearing Registration No.KA-05-EM-7596 as a pillion rider. The motor cycle was being ridden by one Mr. Manjunath on D.B.Pura – C.B.Pura Road. When they reached near Muddunayakanapalya cross, a motorcycle bearing Registration No.KA-43-R-4918 came from the opposite direction with a high speed in a rash and negligent manner and collided with the motorcycle that the deceased was travelling on. As a result of the collision, the rider, pillion rider/the deceased fell down from the motorcycle and sustained grievous injuries. After the accident, they were shifted to Doddaballapura Government Hospital and thereafter admitted to NIMHANS Hospital, Bengaluru for further treatment. The deceased however, succumbed to his injuries on 10.10.2016.

4.1. A claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘M.V.Act’ for short) was filed by the wife, two daughters and minor son of the deceased contending that at the time of the accident, the deceased was working as a stone mason worker and earning about Rs.30,000/- per month.

4.2. Although the service was effected on both owner and Insurance Company, the claim petition was contested only by respondent No.2/Insurance Company before the learned Tribunal. Since none appeared for the owner of the vehicle, he was accordingly placed ex parte before the Tribunal.

4.3. Based on the pleadings of the parties, the following issues were framed by the learned Tribunal:

“(i) Whether the petitioners prove that they are the LRs./dependants of deceased Mani?

(ii) Whether petitioners prove that deceased Mani died in road traffic accident occurred on 5.10.2016 at about 8.10 near Muddunayakanapalya Cross, D.B.Pura-C.B.Pura Road due to rash and negligent riding by the rider of motorcycle bearing Regn.No.KA 43 R 4918?

(iii) Whether the petitioners prove that they are entitle for compensation as claimed? If so, to what extent and from whom?

(iv) What order or award?”

4.4. The appellants/claimants examined claimant No.1 as PW.1 and marked the documents as Exs.P1 to P18. They also examined the Medical record Officer at NIMHANS hospital as PW.3 and got marked Ex.P10/OPD Book and Ex.P18/Case sheet. On behalf of respondent No.2, RW.1 the Police Inspector who investigated the case and RW.2 the Legal Manager of respondent No.2/Insurance company were examined by respondent No.2/Insurance Company who proved