Karnataka High CourtThe Claim Manager vs Smt. Onteddu Eswari on 28 November, 2022Author:H.T. Narendra PrasadBench:H.T. Narendra Prasad-1-\n                                                    MFA No. 369 of 2019\n\n\n\n\n                                               C/W MFA No. 5227 of 2018\n\n\n\n\n                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n\n                     DATED THIS THE 28TH DAY OF NOVEMBER, 2022\n\n                                      BEFORE\n\n                   THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD\n\n                  MISCELLANEOUS FIRST APPEAL NO. 369 OF 2019 (MV-D)\n                                        C/W\n             MISCELLANEOUS FIRST APPEAL NO.5227 OF 2018(MV-D)\n\n             IN MFA 369/2019\n             BETWEEN:\n\n             1.    SMT. ONTEDDU ESWARI.\n                   W/O LATE ONTENDDU VIJAYA RAGHAVA REDDY,\n                   AGED ABOUT 33 YEARS.\n\n             2.    MASTER ONTEDDU PUNANJAN SAI REDDY,\n                   S/O LATE ONTEDDU VIJAYA RAGHAVA REDDY,\nDigitally          AGED ABOUT 10 YEARS\nsigned by C\nMALATHI      3.    KUM ONTEDDU MANASHWINI REDDY,\n                   D/O LATE ONTEDDU VIJAYA RAGHAVA REDDY,\nLocation:\n                   AGED ABOUT 04 YEARS,\nHigh Court\nof Karnataka       APPELLANT Nos. 2 & 3 ARE MINORS\n                   REPRESENTED BY THEIR GUARDIAN\n                   AND MOTHER APPELLANT NO.1.\n\n             4.    SRI ONTEDDU RAMALINGA REDDY\n                   S/O ONTEDDU CHINNAPPA REDDY\n                   AGED ABOUT 56 YEARS\n                             -2-\n                                          MFA No. 369 of 2019\n\n\n\n\n                                  C/W MFA No. 5227 of 2018\n\n\n\n     ALL ARE R/AT NO.12-2-732\n     JESUSNAGAR, ANANTHPURA\n     ANDRA PRADESH-515001.\n     TEMPORARILY RESIDING AT\n     MALLASANDRA VILLAGE,\n     NADAVATHI POST,\n     KADUGODI (VIA),\n     BENGALURU-560067.\n\n                                                ...APPELLANTS\n\n(BY SRI. GURUDEV PRASAD K T., ADVOCATE)\n\nAND:\n\n1.   MR. SHIVAKUMAR,\n     S/O RUDRAPPA,\n     RAJESHWARI MANOR,\n     NO.109, B BLOCK SY.NO.54,\n     NEAR AYYAPPA SWAMY TEMPLE,\n     YELLECHENAHALLI,\n     BENGALURU-560062.\n\n2.   ROYAL SUNDARAM ALLIANCE\n     INSURANCE CO LIMITED\n     NO.30, III FLOOR, JNR CITY CENTRE,\n     RAJRAM MOHAN ROY ROAD,\n     SAMPANGIRAMNAGAR,\n     BENGALURU-560027.\n     REPRESENTED BY ITS MANAGER.\n\n                                             ...RESPONDENTS\n\n(BY SRI.M. JAGADEESH.,ADVOCATE FOR R1:\nSRI. O. MAHESH, ADVOCATE FOR R2)\n                            -3-\n                                      MFA No. 369 of 2019\n\n\n\n\n                                 C/W MFA No. 5227 of 2018\n\n     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT\nAGAINST THE JUDGMENT AND AWARD DATED 19/04/2018,\nPASSED IN MVC NO.1428/2017, ON THE FILE OF THE V\nADDITIONAL SMALL CAUSES JUDGE & XXIV ACMM., MEMBER,\nMACT, (SCCH-20), MAYO HALL UNIT, BENGALURU, PARTLY\nALLOWING THE CLAIM PETITION FOR COMPENSATION AND\nSEEKING ENHANCEMENT OF COMPENSATION.\n\n\nIN MFA 5227/2018\nBETWEEN\n\nTHE CLAIM MANAGER,\nROYAL SUNDARAM ALLIANCE\nINSURANCE COMPANY LIMITED,\nNO.30, III FLOOR KJNR CITY CENTRE,\nRAJRAM MOHAN ROY ROAD,\nSAMPANGIRAMANAGAR,\nBANGALORE-560027.\nBY ITS MANAGER\n\n                                             ...APPELLANT\n\n(BY SRI. O MAHESH, ADVOCATE)\n\nAND\n\n1.    SMT. ONTEDDU ESWARI,\n      AGED ABOUT 32 YEARS\n      W/O LATE ONTEDDU VIJAYA RAGHAVA REDDY.\n\n2.    MASTER ONTEDDU PUNANJAN SAI REDDY,\n      S/O LATE ONTEDDU VIJAYA RAGHAVA REDDY,\n      AGED ABOUT 9 YEARS.\n\n3.    KUM ONTEDDU MANASHWINI REDDY,\n      D/O LATE ONTEDDU VIJAYA RAGHAVA REDDY,\n      R2 AND R3 ARE MINORS REPRESENTED BY\n      M/G RESPONDENT NO.1 ONTEDDU ESWARI.\n                                 -4-\n                                           MFA No. 369 of 2019\n\n\n\n\n                                      C/W MFA No. 5227 of 2018\n\n4.     ONTEDDU RAMALINGA REDDY\n       S/O.CHINNAPPA REDDY,\n       AGED ABOUT 55 YEARS,\n       ALL ARE RESIDING AT NO.12-02-732,\n       JESUSNAGAR, ANANTHPUR\n       ANDHRA PRADESH-515001.\n\n5.     MR SHIVAKUMAR,\n       MAJOR,\n       S/O RUDRAPPA,\n       R/O RAJESWARI MANOR,\n       NO.109, B BLOCK, SY.NO.54,\n       NEAR AYYAPPA SWAMY TEMPLE,\n       YELLECHENAHALLI,\n       BANGALORE-560062.\n\n                                               ...RESPONDENTS\n\n(BY SRI.GURUDEVA PRASAD, ADVOCATE FOR R1 TO R4:\nSRI. M. JAGADEESHA, ADVOCATE FOR R5 )\n\n       THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT\nAGAINST THE JUDGMENT AND AWARD DATED:19.04.2018\nPASSED IN MVC NO.1428/2017 ON THE FILE OF THE V\nADDITIONAL SCJ AND XXIV ACMM, MEMBER - MACT, MAYO\nHALL      UNIT,     BENGALURU,        [SCCH-20],     AWARDING\nCOMPENSATION OF RS.15,70,000/- WITH INTEREST @ 9%\nP.A.   FROM   THE   DATE   OF    PETITION TILL     REALIZATION.\n\n\n       THESE APPEALS, COMING ON FOR FINAL HEARING, THIS\nDAY, THE COURT DELIVERED THE FOLLOWING:\n                                 -5-\n                                              MFA No. 369 of 2019\n\n\n\n\n                                        C/W MFA No. 5227 of 2018\n\n\n                             JUDGMENTMFA No.369/2019 is filed by the claimants whereas\n\nMFA No.5227/2018 is filed by the Insurance Company\n\nunderSection 173(1)of the Motor Vehicles Act, (for short,\n\n'the Act') being aggrieved by the judgment and award\n\ndated 19.04.2018 passed by the Motor Accident Claims\n\nTribunal & V Addl. Judge, SCCH-20, Mayo Hall Unit,\n\nBengaluru in MVC No.1428/2017. Since the challenge is to\n\nthe     same     judgment,   both     the   appeals   are   clubbed\n\ntogether, heard and common judgment is being passed.2.     Facts giving rise to the filing of the appeals\n\nbriefly stated are that on 25.01.2017 at about 11.50 p.m.,\n\nthe deceased Vijaya Raghava Reddy was crossing the\n\nKempapura cross, Bellary road, near Kirloskar business\n\npark.        At that time, a car bearing registration No. KA-\n\n05/MK-8846 which was being driven in a rash and\n\nnegligent manner, dashed against the deceased.                As a\n\nresult of the aforesaid accident, the deceased sustained-6-MFA No. 369 of 2019C/W MFA No. 5227 of 2018grievous injuries and succumbed to the injuries on the\n\nnext day.3. The claimants filed a petition underSection 166of\n\nthe Act seeking compensation for the death of the\n\ndeceased along with interest.4.    On service of summons, the respondent Nos.1\n\nand   2    appeared   through   counsel   and    filed   written\n\nstatements in which the averments made in the petition\n\nwere denied.     The age, occupation and income of the\n\ndeceased are denied. It was pleaded that the petition itself\n\nis false and frivolous in the eye of law.       It was further\n\npleaded that the accident was due to the negligence of the\n\ndeceased himself. It was further pleaded that the liability\n\nis subject to terms and conditions of the policy. It was\n\nfurther pleaded that the quantum of compensation claimed\n\nby the claimants is exorbitant.     Hence, they sought for\n\ndismissal of the petition.-7-MFA No. 369 of 2019C/W MFA No. 5227 of 20185.    On the basis of the pleadings of the parties, the\n\nClaims Tribunal framed the issues and thereafter recorded\n\nthe evidence. The claimants, in order to prove their case,\n\nexamined claimant No.1 as PW-1 and got exhibited\n\ndocuments    namely     Ex.P1     to   Ex.P22.   On   behalf     of\n\nrespondents, two witnesses were examined as RW-1 and\n\nRW-2 and got exhibited documents namely Ex.R1 to\n\nEx.R3. The Claims Tribunal, by the impugned judgment,\n\ninter alia, held that the accident took place on account of\n\nrash and negligent driving of the offending vehicle by its\n\ndriver, as a result of which, the deceased sustained\n\ninjuries and succumbed to the injuries.           The Tribunal\n\nfurther   held   that   the   claimants    are   entitled   to   a\n\ncompensation of Rs.15,70,000/- along with interest at the\n\nrate of 9% p.a. and directed the Insurance Company to\n\ndeposit the compensation amount along with interest.\n\nBeing aggrieved, these appeals have been filed.-8-MFA No. 369 of 2019C/W MFA No. 5227 of 20186.   Sri O.Mahesh, the learned counsel for the\n\nInsurance Company has raised the following contentions:Firstly, the deceased was crossing the Bellary road\n\nwhich is highway and a heavy traffic road where there was\n\nno zebra crossing/pedestrian crossing.Secondly, it is very clear from Ex.P5 IMV report that\n\nthe driver of the offending vehicle has applied the brake to\n\navoid the accident.    Due to that, the rear side of the\n\nvehicle has been damaged. The vehicle coming behind the\n\noffending vehicle dashed to the offending vehicle and front\n\nportion of that vehicle is also damaged.    Therefore, in a\n\nhighway which is a heavy traffic road, the deceased has\n\nattempted to cross the road and the driver of the\n\noffending vehicle has made his best efforts to stop the\n\nvehicle. Since it is a highway he could not stop the vehicle\n\nimmediately and hence the accident occurred.        But the\n\nTribunal has failed to consider the contributory negligence\n\non the part of the deceased also in causing the accident.-9-MFA No. 369 of 2019C/W MFA No. 5227 of 2018Thirdly, the deceased was not an illiterate person, he\n\nwas the owner of two cars, he was aware that a pedestrian\n\ncannot be allowed to cross where there was no zebra\n\ncrossing.    As per Ex.P3 - sketch it is very clear that he\n\nwas crossing the road after jumping the fence. This aspect\n\nof the matter is also not considered by the Tribunal.Fourthly, even the Insurance Company has examined\n\nthe officer of the Insurance Company as RW-1.               He has\n\ncategorically stated that the deceased was jumping from\n\nthe grills from the service road and entered the main road.\n\nTherefore,      it   is   very   clear   that   the   deceased   has\n\ncontributed to the accident. But the Tribunal has erred in\n\nholding that the driver of the car alone is negligent in\n\ncausing the accident.Fifthly,        even though the claimants claim that the\n\ndeceased was earning Rs.50,000/- per month, the same is\n\nnot established by the claimants by producing documents.- 10 -MFA No. 369 of 2019C/W MFA No. 5227 of 2018Therefore, the Tribunal has rightly assessed the income of\n\nthe deceased notionally.Sixthly, on appreciation of oral and documentary\n\nevidence and considering the age and avocation of the\n\ndeceased, the overall compensation awarded by the\n\nTribunal is on the higher side.Lastly, in view of the law laid down by a Division\n\nBench of this Court in the case ofMS.JOYEETA BOSE\n\nAND OTHERS vs.           VENKATESHAN.V AND OTHERS(MFA 5896/2018 and connected matters disposed of\n\non 24.8.2020), the rate of interest awarded by the\n\nTribunal at 9% p.a. is on the higher side. Hence, he\n\nsought for allowing of the appeal filed by the Insurance\n\nCompany.7. On the other hand, Sri Gurudeva Prasad, learned\n\ncounsel appearing for the claimants has raised the\n\nfollowing contentions:- 11 -MFA No. 369 of 2019C/W MFA No. 5227 of 2018Firstly, the accident occurred due to the negligence\n\nof the driver of the car, the deceased was crossing the\n\nroad slowly and carefully and when he reached near\n\nfootpath, the driver of the car came in a rash and\n\nnegligent manner and dashed against the deceased. It is\n\nvery clear from the sketch - Ex.P3 that the accident\n\noccurred on the edge of the road, i.e., footpath.Secondly, as per the evidence of RW-2 who is the\n\ninvestigating officer, the accident took place on the\n\nfootpath.   Therefore, it is very clear from the sketch and\n\nevidence of RW-2 and PW-1 that the accident occurred on\n\nthe foot path. Therefore, the Tribunal has rightly held that\n\nthe driver of the car was negligent in causing the accident.Thirdly,   to   disprove      the    case    of   the   claimant\n\nInsurance Company has not examined the driver of the car\n\nwho is the best witness to say the manner of the accident.\n\nEven the police have registered FIR against the driver of\n\nthe car and after thorough investigation have filed the- 12 -MFA No. 369 of 2019C/W MFA No. 5227 of 2018charge sheet. Therefore, it is very clear that the driver of\n\nthe car alone is negligent in causing the accident.Fourthly, the claimants claim that the deceased was\n\nearning Rs.50,000/- per month by working as a driver.\n\nBut the Tribunal is not justified in taking the monthly\n\nincome of the deceased as only Rs.10,000/-.Fifthly, as per the lawlaid down bythe Hon'ble\n\nSupreme Court in the case ofNATIONAL INSURANCE\n\nCO. LTD. vs. PRANAY SETHI AND OTHERSreported in\n\nAIR 2017 SC 5157, since the deceased was aged about\n\n38 years 40% has to be considered for addition of future\n\nprospects instead of 25% considered by the Tribunal.Sixthly, even though there are four claimants who\n\nwere depending upon income of the deceased, the\n\nTribunal has erred in considering deduction of 1/3rd\n\ntowards personal expenses of the deceased instead of\n\n1/4th.- 13 -MFA No. 369 of 2019C/W MFA No. 5227 of 2018Lastly, as per the judgment of the Hon'ble Supreme\n\nCourt in the case ofMAGMA GENERAL INSURANCE CO.\n\nLTD. Vs. NANU RAMreported in 2018 ACJ 2782, each\n\nof   the      claimants    are   entitled    for    compensation   of\n\nRs.44,000/- under the head of 'loss of love and affection\n\nand consortium'.          Hence, he prays for dismissal of the\n\nappeal.8.     Heard the learned counsel for the parties and\n\nperused the judgment and award and the original records.9.     The case of the claimants is that on 25.01.2017\n\nat about 11.50 p.m., the deceased was crossing the\n\nKempapura cross, Bellary road, near Kirloskar business\n\npark.        At that time, a car bearing registration No. KA-\n\n05/MK-8846 which was being driven in a rash and\n\nnegligent manner, dashed against the deceased.                   As a\n\nresult of the aforesaid accident, the deceased sustained\n\ngrievous injuries and succumbed to the injuries on the\n\nnext day.- 14 -MFA No. 369 of 2019C/W MFA No. 5227 of 201810. To prove their case claimant No.1 has been\n\nexamined as PW-1 and produced 22 documents.           PW-1\n\nhas reiterated the statement made in the claim petition.\n\nShe further stated that immediately after the accident a\n\ncase has been registered against the driver of the car,\n\npolice have registered FIR against the driver of the car as\n\nper Ex.P1 and after thorough investigation have filed\n\ncharge sheet as per Ex.P8. Ex.P3 is the sketch produced\n\nby the claimants, Ex.P4 is the spot mahazar which\n\ncorroborates the place of the accident and the course of\n\nvehicle causing the accident. The road is a two way and\n\nthere is a median in between. The road being straight was\n\nproceeding in Bangalore - Bellary highway from north\n\ndirection - Yelahanka and south is Kempapura. The\n\ndeceased was crossing the road from east to west. As per\n\nthe sketch - Ex.P3 the accident occurred at the edge of\n\nthe road in a footpath and RW1 in his evidence has stated\n\nthat the accident occurred on the footpath. On perusal of\n\nEx.P3 - sketch, Ex.P4 - spot mahazar, evidence of PW1 -- 15 -MFA No. 369 of 2019C/W MFA No. 5227 of 2018first claimant and RW2 who is the investigating officer it is\n\nvery clear that the accident has occurred on the footpath.11. By looking into the IMV report it is seen that the\n\ndriver of the car was at a high speed that he could not\n\napply the brake immediately. Therefore, he was negligent\n\nin causing the accident.     To disprove the case of the\n\nclaimants the respondent has not examined the driver of\n\nthe car who is the best witness to speak about the\n\naccident.   Under those circumstances, the Tribunal after\n\nconsidering the sketch - Ex.P3, spot mahazar - Ex.P4 and\n\nconsidering the evidence of PW1 and also FIR, IMV report\n\nhas rightly held that the driver of the car is negligent in\n\ncausing the accident and rightly answered issue No.1 in\n\nthe affirmative.Re.quantum:12. The claimants claim that deceased was earning\n\nRs.50,000/- per month and produced driving licence,\n\nexcept that they have not produced any document like- 16 -MFA No. 369 of 2019C/W MFA No. 5227 of 2018bank statement to state that he has income of Rs.50,000/-\n\nper month. Under those circumstances,                the notional\n\nincome has to be assessed. As per the guidelines issued by\n\nthe Karnataka State Legal Services Authority, for the\n\naccident taken place in the year 2017, the notional income\n\nof the deceased has to be taken at Rs.11,000/- p.m. To\n\nthe aforesaid income, 40% has to be added on account of\n\nfuture prospects in view of the lawlaid down bythe\n\nConstitution Bench of the Supreme Court in'PRANAY\n\nSETHI' (supra).       Thus, the monthly income comes to\n\nRs.15,400/-. In the evidence of PW-1 she has stated that\n\nall the claimants were depending upon the income of the\n\ndeceased.     Since    there    are     four   dependents,   it   is\n\nappropriate to deduct 1/4th of the income of the deceased\n\ninstead of 1/3rd deducted by the Tribunal towards personal\n\nexpenses of the deceased          and remaining amount, i.e.,\n\nRs.11,550/- has to be taken as his contribution to the\n\nfamily.The deceased was aged about 38 years at the\n\ntime of the accident and multiplier applicable to his age- 17 -MFA No. 369 of 2019C/W MFA No. 5227 of 2018group is '15'.     Thus, the claimants are entitled to\n\ncompensation of Rs.20,79,000/- (Rs.11,550*12*15) on\n\naccount of 'loss of dependency'.In    addition,   the   claimants      are   entitled   to\n\ncompensation of Rs.16,500/- on account of 'loss of estate'\n\nand compensation of Rs.16,500/- on account of 'funeral\n\nexpenses'. Claimant No.1, wife of the deceased is entitled\n\nfor compensation of Rs.44,000/- under the head of 'loss of\n\nspousal consortium'.In view of the lawlaid down bythe Supreme Court in\n\nthe case of'MAGMA GENERAL INSURANCE' (supra),\n\nclaimant Nos.2 and 3, children of the deceased are entitled\n\nfor compensation of Rs.44,000/- each under the head of\n\n'loss of parental consortium' and claimant No.4, father of\n\nthe deceased is entitled for compensation of Rs.44,000/-\n\neach under the head of 'loss of filial consortium'.Claimants have produced the ambulance bill as per\n\nEx.P20 amounting to Rs.12,570/-.         Hence, the claimants- 18 -MFA No. 369 of 2019C/W MFA No. 5227 of 2018are entitled to compensation of Rs.12,570/- under the\n\nhead 'medical expenses'.10.     Thus, the claimants are entitled to the following\n\ncompensation:Compensation under             Amount in\n               different Heads                (Rs.)\n\n            Loss of dependency                20,79,000\n\n            Funeral expenses                     16,500\n\n            Loss of estate                       16,500\n\n            Loss of spousal                      44,000\n            consortium\n\n            Loss of Parental                     88,000\n            consortium\n\n            Loss of Filial consortium            44,000\n\n            Medical expenses                     12,570\n\n                             Total           23,00,570The claimants are entitled to a total compensation of\n\nRs.23,00,570/- as against Rs.15,70,000/- awarded by the\n\nTribunal.- 19 -MFA No. 369 of 2019C/W MFA No. 5227 of 2018In view of the lawlaid down bya Division Bench of\n\nthis Court in the case ofJOYEETA BOSE(supra), the\n\nrate of interest awarded by the Tribunal is reduced from\n\n9% p.a. to 6% p.a.\n\n\n      Accordingly, both the appeals are disposed of.\n\n\n      The Insurance Company is directed to deposit the\n\ncompensation amount along with interest @ 6% p.a. from\n\nthe date of filing of the claim petition till the date of\n\nrealization, within a period of six weeks from the date of\n\nreceipt of copy of this judgment.The amount in deposit is ordered to be transferred to\n\nthe Tribunal forthwith.Sd/-JUDGE\n\n\n\n\nCMList No.: 2 Sl No.: 41