RELIANCE GENERAL INSURANCE v. SHARADHAMMA M R

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 01.03.2018 PASSED IN MVC NO.354/2017 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MACT, HASSAN PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION. MFA No.7537/2018: BETWEEN: RELIANCE GENERAL INSURANCE COMPANY LIMITED HASSAN BRANCH OFFICE 1ST FLOOR, KRUTIKA ARCADE N.R.CIRCLE, HOLENARASIPURA ROAD HASSAN ALSO AT RELIANCE GENERAL INSURANCE COMPANY LIMITED EAST WING, 5TH FLOOR, NO.28 CENTENARY BUILDING, M.G.ROAD BENGALURU – 560 001 NOW REP. BY MANAGER LEGAL …APPELLANT (BY SRI ASHOK N PATIL, ADVOCATE) AND:

SHARADHAMMA M R W/O LATE PAPEGOWDA AGED ABOUT 48 YEARS

AKSHITHA S P D/O LATE PAPEGOWDA AGED ABOUT 22 YEARS

ARPITHA S P D/O LATE PAPEGOWDA - 3 - NC: 2024:KHC:46318-DB MFA No.1589/2019 C/w MFA No.7537/2018 AGED ABOUT 20 YEARS ALL ARE R/AT SHANKARANAHALLI VILLAGE KATTAYA HOBLI HASSAN TALUK

K S VENKATESH S/O SANNAYALAIAH KOWSHIKA BARE KOWSHIKA POST SHANTHIGRAMA HOBLI HASSAN TALUK …RESPONDENTS (BY SMT.KAVITHA H C, ADVOCATE FOR R1 TO R3; SRI VIJAY KUMAR T, ADVOCATE FOR R4) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 01.03.2018 PASSED IN MVC NO.354/2017 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE & ADDITIONAL MACT, HASSAN, AWARDING COMPENSATION OF RS.22,02,760/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION. THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL ORAL JUDGMENT (PER: HON'BLE MRS JUSTICE K.S.MUDAGAL) These appeals arise out of judgment and award in M.V.C.No.354/2017 on the file of II Additional District & Sessions Judge and Additional MACT, Hassan.

2. Appellants in M.F.A.No.1589/2019 were claimant Nos.1 to 3 and the respondents therein were the respondents in M.V.C.No.354/2017 before the Tribunal. For the purpose of - 4 - NC: 2024:KHC:46318-DB MFA No.1589/2019 C/w MFA No.7537/2018 convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

3. Claimant No.1 is the wife and claimant Nos.2 and 3 are the children of the deceased Papegowda. On 16.12.2016 at 11.30 a.m. when Papegowda was traveling in his motorcycle bearing Registration No.KA-13-L-8713 with one Harish as pillion rider, near Namratha Hitech Nursery, Kithanegadi, Haasan-Holenarasipura Road, Bolero Jeep bearing registration No.KA-13-B-4885 hit the said motorcycle and caused the accident. Papegowda died at the spot due to the injuries suffered. Even pillion rider suffered injuries.

4. Regarding the accident, on the complaint of pillion rider Harisha.G as per Ex.P2, Goruru police registered first information report as per Ex.P1 in Crime No.173/2016 of their police station against the driver of Bolero Jeep bearing No.KA-13-B-4885. On investigation, charge sheet as per Ex.P7 was filed against the said driver for the offences punishable under Sections 279, 337, 304A of IPC and Section 187 of the Motor Vehicles Act, 1988. At the time of accident, respondent Nos.1 and 2 were the registered owner and insurer of the offending Bolero Jeep. - 5 - NC: 2024:KHC:46318-DB MFA No.1589/2019 C/w MFA No.7537/2018

Claimants filed M.V.C.No.354/2017 contending that at the time of the accident, Papegowda was working as PDO in Karle Grama Panchayat and he was earning salary of Rs.30,150/- per month. They were all depending on his income. They claimed that due to his death, they have suffered damages to the tune of Rs.50,00,000/- and sought compensation from respondent Nos.1 and 2 accordingly.

Respondent Nos.1 and 2 contested the petition denying occurrence of the accident, actionable negligence on the part of the driver of Bolero Jeep, age, occupation, income of the deceased and their liability to pay the compensation.

To substantiate their case, the claimants got examined PWs.1 and 2 and got marked Exs.P1 to P11. No evidence was adduced on behalf of the respondents.

The Tribunal on hearing the parties by the impugned judgment and award, relying on the police investigation records and evidence of PW.2 the eyewitness held that the accident occurred due to actionable negligence on the part of the driver of Bolero Jeep. Further the Tribunal considering the income of the deceased at Rs.29,830/- per month, his age as 53 years, deducting 1/3rd from his income - 6 - NC: 2024:KHC:46318-DB MFA No.1589/2019 C/w MFA No.7537/2018 for personal expenses, applying 7 multiplier awarded compensation of Rs.16,70,480/- on the head of loss of dependency. While awarding compensation on the head of loss of dependency, the Tribunal calculated salary income applying split multiplier. The Tribunal in all awarded compensation of Rs.22,02,760/- on different heads as per the table below: 1 Loss of dependency 2 Loss of love and affection 3 Cremation expenses 4 Loss of consortium 5 Transportation of dead body Total 21,47,760.00 20,000.00 20,000.00 10,000.00 5,000.00 22,02,760.00

Challenging the said award, the claimants have preferred M.F.A.No.1589/2019 and the Insurer has preferred M.F.A.No.7537/2018.

Smt. Kavitha H.C., learned Counsel claimants submits that the Tribunal was in error in deducting GIS from the income of the deceased and applying split multiplier. She further submits that the compensation awarded on the head of consortium and other conventional heads is on the lower side. - 7 - NC: 2024:KHC:46318-DB MFA No.1589/2019 C/w MFA No.7537/2018

In support of her submissions, she relies on the following judgments: (i) R.Valli v. Tamil Nadu State Transport Corporation Limited.1

To meet the contention of the Insurer that the deceased was not wearing helmet and he has contributed for his death in the accident, she relies on the judgment of the Hon’ble Supreme Court in Mohammed Siddique v. National Insurance Company Ltd.2

Sri Ashok N.Patil, learned Counsel for the Insurer submits that at the time of the accident, the deceased was not wearing helmet, therefore he died due to head injury. Had he worn the helmet, he would have averted head injury, therefore he is guilty of contributory negligence. He submits that the income considered by the Tribunal, multiplier applied and the compensation awarded on other heads is just one.

Considering the submissions of both side and examining the materials on record, the questions that arise for determination of the Court are: (i) Whether the finding of the Tribunal that the accident and consequential death of Papegowda ORDER M.F.A.No.7537/2018 is hereby dismissed. M.F.A.No.1589/2019 is hereby allowed in part. - 13 - NC: 2024:KHC:46318-DB MFA No.1589/2019 C/w MFA No.7537/2018 The claimants are entitled to enhanced compensation of Rs.6,90,119/- with interest thereon at 6% p.a. from the date of petition till the date of deposit. Respondent No.2 deposit enhanced compensation before the Tribunal on adjusting the amount, already deposited if any, within four weeks from the date of receipt of copy of this order. The award of the Tribunal with regard to apportionment and investment is maintained. Amount in deposit, if any, and the trial Court records shall be transmitted to the Tribunal forthwith. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE KSR List No.: 1 Sl No.: 30