MRS PREMA S v. M/S BHARTI AXA GENERAL

(BY SRI. PRADEEP B., ADVOCATE) ...APPELLANT - 3 - NC: 2026:KHC:22070-DB MFA No. 3561 of 2016 C/W MFA No. 2650 of 2016 HC-KAR AND:

1. SMT. PREMA S., W/O. LATE RAJENDRA @ RAJANNA, NOW AGED ABOUT 51 YEARS,

2. MR. SANTHOSH KUMAR, S/O. LATE RAJENDRA @ RAJANNA, AGED ABOUT 27 YEARS, BOTH APPELLANTS ARE R/AT: ALAKPAL BUILDING, NETHRAVATHI EXTENSION, BEHIND K.R. PURAM MARKET, K.R. PURAM, BANGALORE - 560 036, PERMANENT ADDRESS: R/AT NO. 22, I,SANNAKALLUBEEDI, DEVANAHALLI, BANGALORE RURAL.

3. M/S. UNITED TRAVELS, NO.31, NANDIDURGA ROAD, J.C. NAGAR, BANGALORE - 560 016. (BY SRI. A.K.BHAT, ADVOCATE FOR R1 AND R2; SRI.K.T. GURUDEVA PRASAD, ADVOCATE FOR R3) ...RESPONDENTS THE AGAINST THIS MFA IS FILED UNDER SECTION 173(1) OF MV AWARD ACT, DATED:09.10.2015 PASSED IN MVC NO.3686/2013 ON THE FILE OF THE XX ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, BANGALORE(SCCH-22), AWARDING COMPENSATION OF Rs.4,11,000/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION. JUDGMENT AND THESE APPEALS ARE COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - NC: 2026:KHC:22070-DB MFA No. 3561 of 2016 C/W MFA No. 2650 of 2016 HC-KAR CORAM: HON'BLE MR. JUSTICE D K SINGH HON'BLE MR. JUSTICE T.M.NADAF ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE T.M. NADAF) These two appeals being MFA.No.3561/2016 and MFA No.2650/2016 by Claimants as well as Insurer, calling in question the Judgment and Award dated 09.10.2015 in MVC.No.3686/2013 passed by the Motor Accident Claims Tribunal, XX Additional Small Causes Judge, Bangalore, (SCCH-22)1. The claimant's are in appeal on contributory negligence as well as quantum and the Insurer is on liability.

2. The parties are referred to as per their rankings before the Tribunal.

3. The brief facts leading to filing of these two appeals are as under: 1 'Tribunal' for short - 5 - NC: 2026:KHC:22070-DB MFA No. 3561 of 2016 C/W MFA No. 2650 of 2016 HC-KAR In an accident occurred on 25.03.2013 at about

04.10 p.m., while the deceased was sleeping below the bus bearing Reg.No.KA-52-3547 inside the WIPRO campus parking area, the driver of the bus drove the same in the reverse direction without observing the deceased. Due to the impact, he sustained injuries all over the body, immediately, he was taken to WIPRO Health Centre and after first aid shifted to Sparsh hospital, where he was declared to be dead while on transit. The deceased was stated to be working as a Driver and was earning Rs.9,700/- per month. The claimants accordingly, filed the claim petition for the untimely demise of the deceased as they have lost financial support of the family.

4. In response to the notice, the owner of the Bus remained absent and was placed Ex-parte. Respondent No.1 appeared through its counsel and filed written statement denying the claim petition, but admitted the - 6 - NC: 2026:KHC:22070-DB MFA No. 3561 of 2016 C/W MFA No. 2650 of 2016 HC-KAR insurance policy issued against the Bus and taken a specific contention that the liability is subject to terms and conditions of the policy, inter-alia taking the ground of driving licence. With this sought to dismiss the claim petition.

5. The Tribunal after completion of pleadings, framed in all three issues. The first and second issues being on the negligence aspect as well as the driving licence of the driver of the Insured bus and third issue is with respect to entitlement.

6. The Tribunal answered issue No.1 partly in the affirmative, holding that the driver of the bus as well as the deceased both are responsible in contributing to the accident and held that the contributory negligence is at the ratio of 60:40 i.e., 60% on the driver of the offending vehicle and 40% on the deceased since he was sleeping beneath the bus near the wheels. - 7 - NC: 2026:KHC:22070-DB MFA No. 3561 of 2016 C/W MFA No. 2650 of 2016 HC-KAR

7. So far as issue No.2 regarding the driving license is concerned, the Tribunal has held that the Insurer neither produced any substantial evidence in support of the claim, nor the police have filed charge sheet invoking the provisions of Motor Vehicles Act, 1988, with respect to the driving licence. In these circumstances, answered issue No.2 against the Insurer and awarded a sum of Rs.6,85,000/- and directed the respondent No.1-Insurer to deposit 60% of the said amount which comes to Rs.4,11,000/- along with 8% interest from the date of petition till its realization. It is this Judgment and Award passed by the Tribunal is called in question both by Claimants and the Insurer on contributory negligence, quantum and on liability respectively.

8. Heard Sri.Pradeep.B, learned counsel appearing for the Insurer in both the appeals and Sri.A.K.Bhat, learned counsel appearing for the Claimants in both the appeals and Sri.K.T.Gurudeva Prasad, learned counsel appearing for the Insured. - 8 - NC: 2026:KHC:22070-DB MFA No. 3561 of 2016 C/W MFA No. 2650 of 2016 HC-KAR

9. Sri.Pradeep, with all the vehemence submits that the document produced along with the application seeking production of additional documents I.e., the printout of the driving licence extract pertaining to the driver of the bus, submits that the driving license bearing No.KA04 20000005188, so far as transport is concerned, was valid from 23.01.2010 to 22.01.2013 with badge No.202BUS, was not renewed subsequent to expiry, the Insurer is not liable to pay the compensation and on this short point, he sought to allow the appeal filed by the Insurer and set aside the liability fastened on the insurer, further sought to reduce the interest from 8% to 6%, as no exceptional case made out for higher rate of interest.

10. In contrast, Sri.A.K.Bhat, submits that in view of the law laid down by the Supreme Court in the case of PAPPU DEO YADAV VS. NARESH KUMAR AND OTHERS2, when the claim is by third party, the Insurer is 2 (2022) 13 SCC 790 - 9 - NC: 2026:KHC:22070-DB MFA No. 3561 of 2016 C/W MFA No. 2650 of 2016 HC-KAR primarily liable to pay the compensation and with liberty to recover the same from the owner of the vehicle, since the accident has occurred prior to the amendment.

11. Sri.K.T.Guruprasad, not seriously disputed the document produced with the application.

12. So far as quantum is concerned, Sri.A.K.Bhat, with all vehemence submits that the deceased was also working as a Driver. The Driving license particulars of the deceased was produced and marked as Ex.P10. The accident was occurred in the year 2013. In that view of the matter, the Tribunal ought to have considered the income as per the contention of the claimants to the extent of Rs.9,700/- instead of Rs.7,000/- as considered by it. In that view of the matter, the income required to be considered in the presence of driving licence and 10% is required to be added to the existing income, for the purpose of calculation of loss of dependency after - 10 - NC: 2026:KHC:22070-DB MFA No. 3561 of 2016 C/W MFA No. 2650 of 2016 HC-KAR deducting admissible deductions towards personal expenses.

13. He further submits that claimants are also entitled for 10% escalation on the conventional heads, immediately after completion of 3 years from 2017 and as such they are entitled for 2 terms of 3 completed years and entitled for 20% of escalation on the conventional heads. Further, he submits that the compensation awarded under the conventional head is meager and sought to award appropriate compensation. So far as contributory negligence is concerned Sri.A.K.Bhat, placing reliance on the Rules of the Road Regulations, 1989 especially Rule 31, which prescribes restriction on driving backwards, causing a duty on the driver to satisfy himself before driving backwards, that the same may not result in danger or undue inconvenience to any person and sought to set aside the contributory negligence fastened on the deceased, sought to allow the appeal and enhance the compensation. - 11 - NC: 2026:KHC:22070-DB MFA No. 3561 of 2016 C/W MFA No. 2650 of 2016 HC-KAR

14. Having considered the rival submissions, the following points would arise for our consideration: "1. Whether the appellant-insurer has made out any case to allow the application filed under Order 41 Rule 27 of CPC?

2. Whether the claimants have made out any case to set aside the contributory negligence fastened on the deceased?

3. Whether the claimants have made out any case for enhancement of compensation?"

15. Our answer to the above point for consideration are as under: Point No.1- Affirmative, Point No.2- Partly-in-Affirmative, Point No.3- Partly-in-Affirmative, for the following: REASONS

16. POINT NO.1: Both the claimants as well as the owner of the vehicle are not in serious dispute with the - 12 - NC: 2026:KHC:22070-DB MFA No. 3561 of 2016 C/W MFA No. 2650 of 2016 HC-KAR application. Since the application as well as document are not in serious dispute by the appellant as the said document is very much required the proper adjudication coming within the meaning of Order 41 Rule 1(b), the application is allowed and the document is taken on record. In view of the DL extract the license of the driver was not in force, having expired prior to accident. However, in the light of law laid down in PAPPU DEO YADAV Supra, the insurer is primarily liable to pay compensation with liberty to recover the same from the owner.

17. So far as interest at 8% p.a., granted by the Tribunal, neither the claimant nor the insured are in dispute with the legal position on the fact that in the absence of the exceptional case made out, the higher rate of interest, in general is not awarded. In that view of the matter, we find force in the argument of Sri.B.Pradeep and reduce the interest from 8% to 6%, accordingly the appeal - 13 - NC: 2026:KHC:22070-DB MFA No. 3561 of 2016 C/W MFA No. 2650 of 2016 HC-KAR filed by the Insurer is allowed-in-part, both on absolute liability to pay compensation and interest as well.

18. POINT NO.2: So far as the contributory negligence is concerned, having gone through the entire reasons of the trial Court, we have found that the Trial Court has properly held that there is contributory negligence on the part of deceased. In circumstances a highly technical argument placing reliance on Rule 31 of the Rules of the Road Regulations, 1989, cannot be countenanced. In the case on hand, the deceased was sleeping beneath the bus. In that view of the matter, the negligence of the deceased has contributed to the untoward incident resulting in his death. However, considering the facts and circumstances of the case, we reduce the contributory negligence from 40% to 25%, to that extent the point for consideration is answered partly in affirmative. - 14 - NC: 2026:KHC:22070-DB MFA No. 3561 of 2016 C/W MFA No. 2650 of 2016 HC-KAR

19. POINT NO.3: Admittedly, the accident had occurred in 2013. The income for the year 2013 as fixed by the Karnataka State Legal Services Authority, for the year 2013 is at Rs.8,000/- p.m. But the said amount is fixed in respect of unskilled labour. The police records as well as the driving license produced by the claimants clearly show that the deceased was a driver which is not seriously disputed and denied by the insurer and taking into consideration of the year of accident, the claim of the claimant that the deceased was earning Rs.9,700/- cannot be said to be exorbitant or higher. In that view of the matter, we consider the income at Rs.9,700/- p.m. In terms of the settled position of law, the deceased was within the age limit of 50 to 60 years i.e., 52 years as on the date of death, 10% required to be added to the existing income which would be Rs.9,700+10%= Rs.10,670/- and after deducting the personal expenses at the rate of 1/3rd, the balance comes to Rs.7,113/-, that would be the loss of income per month and annually the - 15 - NC: 2026:KHC:22070-DB MFA No. 3561 of 2016 C/W MFA No. 2650 of 2016 HC-KAR same comes to Rs.85,356/- and applying '11' as multiplier, the same comes to Rs.9,38,916/-, that would be the loss of dependency to the family. The claimants are also entitled for a sum of Rs.80,000/- towards loss of consortium and Rs.15,000/- each under the head loss of estate and funeral expenses and also entitled for 20% of escalation on conventional heads. Accordingly, claimants are entitled for re-determined compensation which is as under: Sl. No. Heads Compensation awarded by the Tribunal In Rs. By this Court In Rs.

1. Loss of dependency 6,20,000-00

2. Loss of consortium 10,000-00 9,38,916-00 (85,356 x 11) 80,000-00 (40,000x2) - 15,000-00 15,000-00 22,000-00 10,000-00 25,000-00 20,000-00 -

4. 5. 6. love and Loss of affection Funeral expenses Loss of estate 20% escalation (for two terms of three completed years on conventional heads) TOTAL ROUNDED OFF 6,85,000-00 10,70,916-00 10,71,000-00 - 16 - NC: 2026:KHC:22070-DB MFA No. 3561 of 2016 C/W MFA No. 2650 of 2016 HC-KAR

20. The claimants are entitled for a re-determined compensation of Rs.10,71,000/- which shall carry interest at the rate of 6% from the date of petition till its realization.

21. The respondent No.1-Bharati AXA General Insurance Co. Ltd., shall deposit 75% of re-determined compensation along with 6% p.a., before the Tribunal.

22. For the foregoing reasons, we proceed to pass the following: i. ii. ORDER Both the appeals are allowed-in-part. The appeal by the insurer is allowed both on absolute liability and interest as well. The Insurer is primarily liable to pay 75% re- determined compensation with 6% p.a., from the date of petition till realisation, by modifying the judgment and award dated

09.10.2015, by the Tribunal. HC-KAR iii. iv. - 17 - NC: 2026:KHC:22070-DB MFA No. 3561 of 2016 C/W MFA No. 2650 of 2016 The amount in deposit shall be transmitted to the concerned Tribunal for disbursement. The appeal by the claimants is allowed, reducing the contributory negligence from 40% to 25% on the deceased and are entitled re-determined compensation Rs.10,71,000/- by modifying the judgment

09.10.2015 MVC.No.3686/2013 passed by the Motor Accident Claims Tribunal, XX Additional Small Causes Judge, Bangalore, (SCCH-22). v. The respondent No.1-insurance company shall primarily deposit 75% of the re-determined compensation along with interest at 6% per annum from the date of petition till its realization, before the concerned Tribunal within six weeks from the date of receipt of copy of this order, with liberty to recover the same from the insured. - 18 - NC: 2026:KHC:22070-DB MFA No. 3561 of 2016 C/W MFA No. 2650 of 2016 HC-KAR vi. Upon deposit, entire amount shall be released favour of the claimants on proper identification. vii. No order as to cost. In view of disposal of these appeals, pending interlocutory applications, if any, does not survive for consideration, accordingly they are disposed of. Sd/- (D K SINGH) JUDGE Sd/- (T.M.NADAF) JUDGE PK List No.: 1 Sl No.: 22 ct-vn