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mrrsn 11:15 me 13*" um! g.L1:;ti4.sji',.'i'eds;[i"?«..«
PRE3EfiT 'VV_
me I-IOWBLE MR. Jv.51'1%£:E _V§(.s.V,
_
"ms uorrms HR. Jusrfiffi eowm
M:sce=,gaanerms«.Ta§=f;rst %'_&pi:ae a 'i N'oé.S'€§23...(Z§FA;004 mv)
Misceilaifiéciifi-3..First .A'b-be-.aTNo.?'v$5'7 CF 2904 ( MV)
In flFA N6;:"'58§v_.§_ gkéigf
Shashikaié .wio sate kmtisiiknaj
Aged about 25 years; ' " "
Byrapagizraa. Vmag-e, "
V. £han'rnzpa§nav%_Taiuk,' ---------- --« "
Bangéioré Ru_ra:_ District.
_ _ V . Appeilant
my C; 'Pfitfééwamy, Adv. )
« 'Q N I, .
- ":1; Réfnegowda,
' E3/G.=Shfvaixngegcwda,
"Clo Puttaswarny (KEB)
Rarayanagowdara Beedhi,
' V' R.§(. Gate, Channapatna,
Bangalore Rural District.
" "3angva_I'£:re; ..
2. The Orientai Insurance Co. L.td.,
Branch effice,
DAB--2, No.232/19'
Pavitra South Avenue, 1
9"' Main, 3"" Block,
Jayanagar, Bangfaoredl. ,
Represented by the Managef;-~... . V . "
".4. Respondents
(By Sri. AM. Venkatesh; AQv.,_«”f§’f’VAt{2{
This Appeal is flied unaersemh 1;k’234:1 ) of MV Act
against the judgment a:nd”vas:§zard..§iated 3’3i”;3.2004 passed ~
in MVC No.3762,’2Q(§1 on th__e–.fiIe”4of’tfi*e..IX1 Additiona! Judge
and Member,4_.!*1ACT-?,~.Ca_ur?; efiiifmafi. Causes, Bangalore
(SCCHJ), :’par.f£y “””ai!owEfir:g” the”, ‘claim petition for
cempensationuahdilsgeking V_és1han_;gn31ent of compensation.
The Orientai i’rssg1ran’ceACoVrflpany Ltd.,
Branch; 0fi”i.t:e, ‘ ~ .
‘V
Adm§n.£strat§Vs__ Gffiter,
V ” The fifiienizéisi. Iiifiurance Company Ltd.,
_ R§:gionai’* Office,
” ‘V V. ‘M’.G., .R_’oad;’
Ba nga%€;_re.
Appeiiant
%ij% (wsrs. A.M. Venkatesh, Adv. )
“[AN D:
1. Shashikaia W/o iate Krishna,
Aged about 23 years,
Rio Byrapatna Village,
Channapatna Tafuk, «
Bangaiore Rural District.
2. Sri. Ramegowda,
S/o Shivalingegowda, –
Major, C/o Puttaswa.n”{y (i(EB;}V. ” ‘
Narayanagowdara Beed h’i,”-.5′
R.|(. Gate, Channapa.tn.a,’–. ‘ _A
Bangalore Rs,njav!._District._”V.«: .
i V . Respondents
(By Sri. Pufia.s$i§é;{ny;”.Ad§;_fof ‘Fi1) f.
These A;::oe.a#s_are% ‘f”¥i,_e£!. under Section 1?3(1) of MV
Act against the’ j Lzdgme1t” and award dated 31.3.2004
passed in._M’VC No.3«7é2}’20i31 and 376212001 respectiveiy
on the fileef the % AAdd§.t~iLona! Judge and Member, MAC’?
7,. Court of Smaii” Causes, Bangalore (SCCH-7), partly
al|o_w3i:,ng_ MSIC 3′}*’52,{2DO1 for compensation and seeking
‘enVhancément.A§ of compensation, and awarding
corr:pVen$ati’o«n “cf Rs.2,51,000/- with interest at 5% PA. In
owe 37521V2oo2.oon~
Th..ése”‘;appeais coming on for admission, this day,
V!Si’i;UGO!’ALA eowm, 3., delivered the foliowingz
,2UQGM§flT
with consent of the iearned counsel appearing on
» both sides, the appeais are heard for final disposai.
\/
5
2. Appeuant in MFA 5823/2004 was the.–.4:§etit’érotteert’ ‘
MVC 3762/2001 on the file of MACT1; eangetege.%epge:.enttt& ”
in MFA 7567/2004 was the 2″” res;:51encéfeTn~t irr ._
petition. Both the appea’.ee<"\a.re d'i'recteq '-.aQ:eihs'E 'the A A
common judgment dated 3;1t.,3V;f;;w:{)O'4~.._ ano"'tr2e..veeparate
award passed in the' iiiétitiofi, wherein,
Rs.2,61,000/- wéiceintereet' Aai§vea'eie¢;t favour of the
peuuonea _~3
3:;VV"i5orrA..trhe corttiehience, parties win he
referredxeto 4–v\rit:'teVV"f:V!A.=A+'j1"'@:bre–!3e:':A3\t~:~.~-to their rank in the ciaim
petition,
facts necessary for consideration and
d'i'5|5'o.sei""e meals are:
“TheVi.ori’ 22.2.2001, deceased Krishna and others,
.ttteree..4_treVveliing in a Maxi Cab bearing Rw.No.KA 05 A
B.M.Road, Channapatna. whiie proceeding on
VT -jethe 7″‘ Cress, Kuvempu Hagar, B.M.Road, Chzmnapatne,
” the driver of the Maxi Cab having driven the vehicie in a
rash and negiigent manner, dashed againsfimedian stone.
4
Due to the impact, the vehicle toppled
sustained injuries. Injured Krishna was taigeri-..to~ K ‘
hospitai, but did not respond and
claim petition under Section_.1_66 oiitiie. i.Mt:\i.i,flict,”
claiming compensation on act:otiiit of” the ‘riressiivstistaineo
due to the death of her’:m.;sba’nti_ t’he””seit’i motor
vehicie accident. Responoeritiiihes ex parte and
the Insurance§.CotnVpan§r_A However, it
aomitteci that hes. respect of the said
vehicieirend eeiicy was vaiid from 26.2.2000
to 2s.2.2ooi.ri it ‘ctirite5tj:e tit’iiat, there is no liability to pay
the »’oomeenseti’onV;’ es there was no actionable negligence.
aiso that the deceased Krishna was the driver
Atof t-h_e.1v¢eiii§.2ie»x.et””the time of accident and was responsible
V it _ for the efizieent and hence, it is not liable to pay the award
” ” _”‘amoisnt;”*’ .
it On the basis of the pieadings of the parties, the
it -triiounai framed the foiiowing issues: R
Z-
(1) Whether the petitioner provestna£”f.d:her
husband sustained injuries
occurred on 22.2.20O1″‘at—-aAbofdt V’
Road in front of 7’5TCi*’.§$_s”sv,
Channapatna, Benqgeiorei’Rerai.VVAi)’is£i*i§:f”‘doe to” ‘
rasn andv,neoIigentV:A’fd’_ri$iing dfiifiiewfidnver of
maxi cab ‘and died in the
hQsp:E_w? , x
proves that she is
V ” entii:ied’i«ior.4V§o-nn;:ensation? If so, what amount
Lent:
” whet’ drd-er?
‘iA6-.ef8efoEeV*:’the tribunai, petitioner deposed as PW.1.
Exs;.P1 id have been marked in her evidence. The
Jciaiments/petitioners in MVC 3762 and 3763/2001,
‘d_e’;:oAsed as Pws.2 and 3. In their evidence Exs.P14 to P19
wrseve been marked. On behaif of the 2″‘
V respondentllnsurance Company, one Mohan Raj, working
as Assistant Divisional Manager deposed Ks RW.:1. Exs.R1
/.
no
to R22 have been marked. Considering the
raised by both sides and the.:ev:a4ence”%ah’lll’crecergjV, then.
tribunal has aliowed the claim petition”
favour of the petitioner ‘covriepeneeti.on .Vof-.:R’;:}2′;51:,000i~l’
with interest at 6% M. frorr:——t4lfi’e.d’e.te or jaetitiorl.
7. We have heard iearned counsel
for the petitionerjapgjreilelnt e.ndViSrlV A.isitvVenkatesh, learned
counsei .re$rro’nde’etf§nsurance Company and
perused tne?lr_*ecoArd. –. .’
Vlctiicttaewamy, learned counsel for the
ajfigoelilent/petitien.er.~contended that, the tribunal has not
‘ -;.”proApve4ri=5r:v’af5p..reciated the oral and documentary evidence
” .ohl’recori*;l;_a:rid has committed a material error and iliegaiity
holdieo that there was 40% negligence on the part of
2 ‘the deceased in causing the accident and in awarding only
6l§°/o of the compensation in favour of the petitioner.
Learned counsei contended that the tribune: has not taken
into consideration the fact that, the owner who was the
driver of the vehicle was charge sheeted by the police for
8
the accident in question, which is evident from E_r».i_?”$i._:’_a.nd
by not properiy noticing the same, there is a .
and iilegality committed by the tnbunai,;resuiitgn§*finnot *
awarding the fail compensation an1o;,jint§’to’»tn’e::’petitien’er_gA
Learned counsel contende;i’*–~.V..that,=- tithe i”.:ijL::_antLiVrré Vern’
compensation arnount deterrni:n:ec_1_ by time is iow
and that there is no e.né_ r;ea_sé$njai):’i’e.,taward passed by
the tribunai. tearnedir’cou~n$ei”t;onteni3eti.v”tnat the tribunal
has not cornpensation payable
under theinieatisc,tines;:ot___depen’dency, toss of consortium
ane ha’s._n”ot awar}cieci”‘—a:n’y””sum under the head ‘funeral
experises.’ ‘V ~-
_ ‘v9_.ePer’:contre, Sri A.M.Veni<atesn, learned ceunsei for
'tn.e" in MFA 561/2004 i.e._. the Insurance
Cornpanfiyhveontended that, the tribunal has committed errer
fine, iiiegaiity in awarding the compensation amount and
theiding the Insurance Company its be iiataie to pay the
' compensation dwpite the fact that the accident has
occurred due to the rash and negligent driving of the
i
4/.'
vehicie by the deceased nimseif. Learned._":coujnsei
contended that, though the tribunal has neid
has occurred due to the deceased.A_r§.imseiif;'._itxizasg
committed a material iiiegality in 'thattne.tciai'n}ie.nt~._
is entitted to compensation. 'unearned counsei uk:o'n'tended ''
that, the petition having'. been"'fi-led finder section 166 of
the Act, it is incumbent oni_:fWtne claimant to
plead and proyeitnie the record of the
case on t:on*§e':*'.out' that, the deceased
himseifiwas was" instrumental in causing the
accident, 'was his own death and his L.Rs.,
are entitied"toe_ny compensation under the provisions
»o:f'ti3e .£tctoend.tne petition is not rnaintainabie. He further
Hcontend'ed"_"Ltnet;.'v the impugned judgment is not based on
g proiionreesoning and proper appreciation of pieadings,
evuienoe, documents produced and the finding is perverse
d and is iiabie to be interfered with.
10. Considering the contentions and record of the
case, the points that arise for our consideration are:
f.
19
(1) Whether the petitioner has provee.””inat;’.;*
husband Krishna sustained inj£J.Fi:é5.in.A_i.the %roa:dA
traffic accident that on
to the rash and>i.negiig4’ent’*drivin§.”.i_b§(“ti1e’–dr;vveifi
of the Maxi Cab Mbeanng Rea;ric§’KA$as§A–2481V
and succtinsbed_«’to’:t’i1:ei.iniuries?
(2) Whether trig the tribunai is
jusi:«i.a;I¥1d rea sona V. I
Point V t 4% V
wn«ii_eVV”a’nswering issue No.1 has
held ti*:at,«’.tne– on record substantiates the
factthat,tneVVpetitioi’ie?”‘§ias proved issue No.1. Stiii it has
proceeded to hVoid”‘tnat the deceased Krishna was driver of
time of accident and contriouted to the
‘accident”‘a:n=d has proceeded to hold that, though he
conttiotited to the accident, it cannot be said that the L.Rs.
Vare”A_«not entities to any compensation. it has heid that, by
‘attributing 40% negiigence on the part of the deceased in
causing the accident, £055 of dependency couid be awarded
at Rs.2,4S,,0fiO_f- by awarding 66% T the compensation.
/..
12
testified that, the accident has taken piece doeeo.’
and negligent driving of the Maxi Cab
having lost the control, the vehicle:A4hes”‘.to;o_pi–ed–..en’dV,her
husband who was a passenger锑i.n”-the _=:eiiio’ie:, ir*iai1in¢_}g
sustained bleeding injuries aiiiajover th”e..o:od’§1, shifted
to Government Hos’,-ni_te.i, andviiatyer he was
shifted to Victoria =”~e%r;»i)_’i.iiance, where he
succumbed ?t’o’theVinj:i.;riesi.”; her, Channapatna
police ‘no.11i2oo: against the
driver him before the
jurisdildigoénai has produced the police
regards reiterate the aecident which have been marked as
to’~i-‘{_7. Inmhéer cross examination she has admitted
I :Vth__ai;} ‘vtvi§e.VV’i:iVi.ijegvers informed her regarding the accident and
she s’aw-,tA«:”‘her husband at Victoria Hospital after the
.Aa;ccide»n:i:. She has deposed that she does not know
i’-giresgiondent No.1 Rernegowda and that she has not given
= ..—-evidence in criminei case iodged against respondent No.1
Ramegowda. She has further deposed that on the date of
accident, her husband was going V Channepetna to
(“Q3
1.3
nurchase neuseneid articles. From her evieenceé,.i..if4*i.é.’:’eieer« x
that, she was not present at the scene of accident,’
took mace and she is net an eye,:’t:iii9e:;;; iaiitneesfi
there is not much materiai in her evidence te_–v_i;nen;4
wno was driving the said venicice”‘~and.”vv’ae_ ‘iaeee ‘cease
for accident. Howevei*,~..V_ceri§:a’i’n ‘ihiaitifie-.stete«d’V’ny”Vv:ner are
reievani: to be noticed. VAccni*d§i’n;g her deceased
husband did not had
driving iicenéee’f,.to:A’u§iye;e3–ij–$heaeniea the suggestion
that a case’ against her husband as
the drivef”‘of the caused the accident. A
sugvgesiiidn rnaee~~t9_____ner that her deceased husband was
wVni’~i<ing._as% ciilfnfer under Ramegowda and caused accident,
t'n.e'V.Maxi Cab, has been denied by her. Since
g evici'ence.pf"i3.W.1 is not of much assistance ta decide as to
"Ljwirno-.igvae" driving the venicie at the time of' accident, since
— snexveas not an eye/direct witness to the incident, we have
” “tee examine the evidence of P.W.2, the petitioner I claimant
in 1*/NC 3′?63/2001, who undisputediy was a passenger in
the Maxi Cab at the time of accident. \’
/’
,-..a
16
accepted, in View of the availability of the direct evidence
of PW2, who was aiso injured in the very accident itseif.
The claim petition flied by PW2 in MVC 3763/2ao1Va»'”nas
been allowed in part, wherein he has stated
suffered pain and agony and 3055 due
sustained by him in the motor .a;¢:aea§;e%aTna
awards passed in we 3763i2{!{_)1 a}a’a_ 3:252/2im1A’ ‘I’€’3a’v”.”i’:l.’i.G’.V
to the same accident have becafnefinal. ‘in: saigiaiaim
petitiona” aiéo”; ‘eiairtaants therein was that,
the vehiefie was dr;i$t.’e9éj;:._i*’ae_:I:*ii\,{‘za:nd negligently by the driver
of Maxi. Cab ancI_’i1:.wvasAnat’~’fheir case therein that deceased
V’ ‘*:(risi£ea was qrivinfi the’ vehicle.
.;-‘V1a?..,::V’:*(fieesi;i’ering the evidence of PW1, PW2 am: RW1
and in tae’!igi’§ai of the charge-sheet flied by the police as
“”~._ f:a-erjEx;F*v?A:’on Ramegowda, the owner and driver of the
a..’v’ehir:3:e, it has to be new that the accident has occurred on
2_2i2.2DO1 because of the rash and negiigent driving as!’ the
evehicie by Ramegowda. Hence we answer point No.1 in
the affirmative.
17
Point Nag:
18. PW}. has deposed that néi iausbézna;’é{“thé_i:i§9t1锑*.
of accident was 25 years of age, w_a:s;.V_IA.1a1e ‘vh4:-.~aii’:§.§w} ”
was a hard working agricuitu’e*i§t,. hoctIcu ficuri%stVAV”‘a’fid’ Was
damg ‘diary farming am’ wa§”‘enaf{f’nViViig_A Rs.’5;O0Of- pm.
which he was contr1but’iHg;AV ft)?§’ha.c: hi§§.;§tenance of his
family comp1’i*.§§nfiVV()f hifnsgélfgi children (1)
KavyaggvagetixA’飒2*Q1zt 55 y-§;’ar.$, (2) Shwetha, aged about 3
years, arm 4(3) about 2 years. She has
prod;§ced..rat§cn ;;’a’rd Es<.Pé, RTC of the iand Exs. P10 and
E
é 11,' ""§néfitri§§u;j:ai haicmassessed the monthiy inccme of the
ai}ecesse;§;c«v..;;;'V".cg§~;3,oo0;– ;).m. or Rs.36,0G0,f– p.a. by
' _ noii'€inaféct that the RTC discioses that the deceased
tfiefiwner of 20 games of land at Rucirakshipura
c, 'vj}cia-gé. Without the income of atieast Rs.3,000/- p.m. the
..:i<.=-c:ce:«:ser£ coutd not have been maintained himseif, his wife
and 3 minor children. The record discloses that he was an
agriculturist. Since there is :19 material on the basis at
fl
19
awarded 60% of the amount as compensatien. VVir’éev=..?.¢_4o’r”
our finding on point No.1 rabm,r “–,there:”foevin§: rso ‘j’
contributory negligence on the §)a|*E’.of tne_goAece’aeeud’–~ens
the deceased being not resaorasibie ‘she and
since he has not caused .vrtfie”Ve.§ecr:1″dent in”‘qu’estion, the
petitioner and her chiiegien be awarded the
compensation’ iofjRs.¥§,0$;€!i’aG,i¥’;~: . ‘V _’ ‘ I
‘=~.Tne”.:.j:v{ion_n«ai”*vnar§fiwairdeo Rs.1G,00£i/’- towards
loss’–,of banbdHRs–.6,G00/- towards transportation
of cieodi bodyr Jsthe minor children were not
Err,-;.piea.dedo “:oV_V’aVrnovunt has been awarded under the head
‘.’_lvov§a,.%;r.éA”«.affection’. Though learned counsel for the
._ ‘s§e§it’i’o:n’er eoritenoeo that, no amount has been seoarateiy
awareedvtowards funerai and oosequies ceremonies, in our
A. ‘opinion the amount of Rs.6,GOG,f- which nas been awarded
the tribunal under the head ‘transportation of dead
body’ inciudes the amount awarciabie under the head
‘funerai and obsequies ceremonies’. The tritmnai has
awarded just and reasonabie compenftion. The tribune!
-f’
I u
20
has only committed an error in _
compensation by attributing 40?/§.,, »_negiigen::.e_~»oi:o: ‘-thee’
deceased, which was without 1′:i,ror::er..:’ a’pn_re¢i’etitrne-.._«eff
evidence on record and tnerei_i$~,en iiiegaiity inietnmflerj in
that regard. Considering tne_i:”‘ege*~._»and.” i«neo_mefi of the
deceased, the just anti reesonebi.e:voo’nj*;ie’n.sation which the
petitioner is entitied to tie’a~é§ierded__ie’.’F§.e}i;23i,000i~. Point
No.2 is answei*ed
ivriutuiie fiiedibyv the Insurance Company
(MFA 7557/e2oo4;)igdissnissed and the apnea! filed by the
claimant VSE%23-;%’2ViiJii4) is aiiowed in part. The
‘JV”-..corrn:ierieatévo.n paS_}a*i3’ie’ by the Insurance Company to the
e._.a”‘;:Vi¢;’V3eii-‘v1:”r*:’i_’.:V:i«.~:'”determined at Rs.4,24,oooi–, which shaii carry
intereste.atié§6; p.a. from the date of petition tin the date or
depositV7__A’1-The Insurance Company is directed to deposit the
amount within a period of 3 months from today.
eéfter the amount is deposited, the tribunal is hereby
directed to deposit in any Nationalised Bank a sum of
Rs.1,00,DOO/- each, with proportionate ‘Eterest, in the
/L