Karnataka High Court

Krishnappa vs Shriram General Insurance Co Ltd on 2 December, 2021

Bench: H T Prasad

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 2ND DAY OF DECEMBER 2021

                     BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

           MFA NO.5785 OF 2019(MV)
                     C/W
           MFA NO.4732 OF 2019 (MV)

IN MFA 5785/2019
BETWEEN:

THE CLAIM MANAGER
SHRIRAM GENERAL INSURANCE
COMPANY LIMITED., NO.5,
II FLOOR, MONARCH CHAMBER
INFANTRY ROAD, BENGALURU.

BY SHRIRAM GENERAL INSURANCE
CO. LTD., 5/4, 3RD CROSS,
S.V.ARCADE, BELAKANAHALLI
MAIN ROAD, OPP: BANNERAGHATTA
MAIN ROAD, II M.B.POST
BANGALORE - 560 076.
                                    ...APPELLANT
(BY SRI. O. MAHESH, ADV.)

AND

1.    KRISHNAPPA
      AGE 58 YEARS
      S/O LATE HOTTE MALLAIAH.
                        2



2.   SMT. RUKMINAMMA
     AGE 49 YEARS
     W/O KRISHNAPPA.

     BOTH ARE RESIDING AT
     MALLAYANAPALYA, MAGADI TALUK
     SOLUR HOBLI, RAMANAGARA
     DISTRICT - 571 511.

3.   MR. ANJANAPPA
     MAJOR, S/O LATE KEMPAHANUMAIAH
     GEJJAGADAPALYA VILLAGE
     MARIKUPPE POST, SOLUR HOBLI
     BENGALURU - 560 023.
                                 ...RESPONDENTS

(BY SRI.P. SHIVAKUMAR, ADV. FOR R1 & R2
 R3 SERVED.)

     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST     THE     JUDGMENT     AND     AWARD
DATED:05.04.2019 PASSED IN MVC NO.2765/2018
ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSE
JUDGE, MACT, BENGALURU (SCCH-17) AWARDING
COMPENSATION OF RS.18,44,400/- WITH INTEREST
AT 7.5% P.A., FROM THE DATE OF PETITION TILL ITS
REALIZATION.

IN MFA NO.4732/2019
BETWEEN:

1.   KRISHNAPPA
     AGE 58 YEARS,
     S/O LATE HOTTE MALLAIAH,
                         3



2.    SMT. RUKMINAMMA
      AGE 49 YEARS,
      W/O KRISHNAPPA,

      BOTH ARE RESIDING AT
      MALLAYANAPALYA, MAGADI TALUK,
      SOLUR HOBLI, RAMANAGARA
      DISTRICT - 571 511.
                                   ...APPELLANTS
(BY SRI.SHIVAKUMAR P. ADV.)

AND

1.    SHRIRAM GENERAL INSURANCE
      COMPANY LIMITED., NO.5,
      II FLOOR, MONARCH CHAMBER
      INFANTRY ROAD, BENGALURU.

2.    SRI. ANJANAPPA
      MAJOR, S/O LATE KEMPAHANUMAIAH,
      GEJJAGADAPALYA VILLAGE,
      MARIKUPPE POST, SOLUR HOBLI
      BENGALURU - 560 023.
                                  ...RESPONDENTS
(BY SRI.O. MAHESH, ADV. FOR R1;
    VIDE ORDER DATED 2.12.2021,
    NOTICE TO R2 DISPENSED WITH)

    THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST     THE     JUDGMENT     AND    AWARD
DATED:05.04.2019 PASSED IN MVC NO.2765/2018
ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSES
JUDGE, MACT, BENGALURU (SCCH-17) PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
                               4




     THESE MFAS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                     JUDGMENT

MFA 5785/2019 is filed by the Insurance

Company and MFA 4732/2019 is filed by the claimants

under Section 173(1) of the Motor Vehicles Act, 1988

(hereinafter referred to as 'the Act', for short) have

been filed by the claimants being aggrieved by the

judgment dated 5.4.2019 passed by the Motor

Accident Claims Tribunal, Bangalore in MVC

2765/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 17.5.2018, the deceased

Mahesha was proceeding on motorcycle bearing

registration No.KA-03-EL-1219 on Girijapura Road,

heading towards Mallayanapalya from Motaganahalli,

at that time, Tractor and Trailer bearing registration

No.KA-40-J-5721 & 5720 which was being driven in a

rash and negligent manner, dashed against the

motorcycle. As a result of the aforesaid accident, the

deceased sustained grievous injuries and succumbed

to the injuries.

3. The claimants filed a petition under Section

166 of the Act seeking compensation for the death of

the deceased along with interest.

4. On service of summons, the respondents

appeared through counsel and filed written statement

in which the averments made in the petition were

denied. It was pleaded that the petition itself is false

and frivolous in the eye of law. Respondent No.1 has

pleaded that mandatory provisions of Section 134(C)

and 158(6) of MV Act has not been complied with. The

manner of accident and involvement of vehicle is

denied. The accident was not due to the rash and

negligent driving of the offending vehicle. The accident

took place on account of rash and negligent riding of

the motorcycle by the deceased himself. The driver of

the offending vehicle did not possess valid driving

licence as on the date of the accident. The liability is

subject to terms and conditions of the policy. The age,

occupation and income of the deceased are denied. It

was further pleaded that the quantum of

compensation claimed by the claimants is exorbitant.

Hence, he sought for dismissal of the petition.

The respondent No.2 contended that the vehicle

is duly insured with the Insurance Company and

hence the Insurance Company is liable to pay

compensation

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants, in order to

prove their case, examined claimant No.1 as PW-1

and another witness as PW-2 and got exhibited

documents namely Ex.P1 to Ex.P17. On behalf of

respondents, one witness was examined as RW-1 and

got exhibited documents namely Ex.R1. The Claims

Tribunal, by the impugned judgment, inter alia, held

that the accident took place on account of rash and

negligent driving of the offending vehicle by its driver,

as a result of which, the deceased sustained injuries

and succumbed to the injuries. The Tribunal further

held that the claimants are entitled to a compensation

of Rs.18,44,400/- along with interest at the rate of

7.5% p.a. and directed the Insurance Company to

deposit the compensation amount along with interest.

Being aggrieved, this appeal has been filed.

6. The learned counsel for the Insurance

Company has raised the following contentions:

Re: Negligence

Firstly, the finding of the Tribunal on issue of

negligence as well as involvement of insured vehicle in

alleged accident suffer from many infirmity and

illegality as it failed to notice following facts which

demonstrated mala fides of the claimants as well as

creation of police investigation reports with co-

operation of insured to make unrighteous claim

against insurer.

Secondly, PW-1 examined was admittedly not a

eye witness and there was no positive material

evidence to prove either manner of alleged accident

as well as who was responsible and negligent and the

extent or degree of negligence of rider and driver

when two vehicles were claimed to have been

involved.

Thirdly, complaint, Exhibit P-2 was by one Mr.

Vasanth Kumar, rider of Motor cycle and brother of

deceased imputing negligence to driver of Tempo

travel and he was not examined and so also another

alleged charge sheet eye witness Mr. Narasimhaiah to

prove involvement as well as negligence aspect.

Fourthly, the spot Mahazar and spot sketch were

prepared as per say of complainant to suit the claim

to be made and even otherwise these exhibits were

not proved as required under law since they were

neither primary or secondary evidence and had no

evidentiary value what so ever to rely upon them.

Fifthly, rider of Motorcycle very strangely was

not hurt in the alleged accident though stated to have

been dashed from front and only pillion rider said to

have been injured seriously. The first person to be

injured would be rider unless rider has come in

contact with insured vehicle from a side instead of

head on collision.

Sixthly, respective damages of both vehicles

recorded in Exhibit P-5, IMV report, would indicate

that theory of claimant was only with view to implicate

insured vehicle and further Exhibit P-7, PM Report

would also lend support that manner of alleged

accident was distorted to protect negligent act of rider

of Motor Cycle on which deceased was admittedly a

pillion rider.

Seventhly, the Tribunal has failed to consider

negligence of rider of motor cycle and an act of

producing his D.L. as exhibit P-17 and not examining

him clearly demonstrate malafaides of claimants which

is a clear attempt hide true facts.

Re: Quantum of compensation

Firstly, the Tribunal even otherwise, grossly

erred in allowing Rs.18,14,400/- under the head of

loss of dependency holding income of deceased at

Rs.12,000/- P.m. and further adding 40% towards

future prospects when admittedly deceased was still a

student without any income unilaterally ignoring the

fact that claimants would have to wait for many long

years for likely contribution by deceased which also

depend on several facts and developments in his life.

Secondly, the Tribunal, at the most, in the

circumstances of claim should have considered

notional income of deceased at Rs.10,000/- per month

and contribution of Rs.5,000/- per month after

deduction of 50% towards his personal expenses

being a bachelor.

Thirdly, he further contended that the interest

awarded by the Tribunal at 7.5% p.a. on the

compensation amount is on the higher side. Hence, he

prays for allowing the appeal filed by the Insurance

Company.

7. On the other hand, the learned counsel for

the claimants has raised the following counter-

contentions:

Firstly, the claimants have contended that the

accident occurred due to rash and negligent driving of

the tractor-trailer. Immediately after the accident, the

rider of the motorcycle lodged a complaint against the

driver of the tractor. The police have filed FIR and

after thorough investigation have filed charge sheet

against the driver of the tractor. As per the sketch and

mahazar and evidence of PW-1, it is very clear that

the driver of the tractor was negligent in causing the

accident and he had driven the same in rash and

negligent manner. To disprove the case of the

claimants, the respondent has not examined the

driver of the tractor and except producing the

Insurance policy, no other document is produced. The

driver of the tractor has not given any complaint

against the rider of the motorcycle. The Tribunal

considering the materials available on record has

rightly held that the driver of the tractor was negligent

in causing the accident.

Quantum of compensation:

Firstly, the claimants claim that the deceased

was aged about 21 years at the time of the accident

and he was studying in II B.Com and he was a

meritorious student and produced Ex.P-11 to 13 to

show that he was a distinction student. Considering

the same, the Tribunal is not justified in taking the

monthly income of the deceased as merely as

Rs.12,000/-.

Secondly, as per the law laid down by the

Hon'ble Supreme Court in the case of NATIONAL

INSURANCE CO. LTD. -v- PRANAY SETHI AND

OTHERS [AIR 2017 SC 5157], in case the deceased

was self-employed or on a fixed salary, an addition of

40% of the established income towards 'future

prospects' should be the warrant where the deceased

was below the age of 40 years. The same has been

rightly considered by the Tribunal.

Thirdly, as per the judgment of the Hon'ble

Supreme Court in the case of MAGMA GENERAL

INSURANCE CO. LTD. -V- NANU RAM reported in

2018 ACJ 2782, each of the claimants are entitled

for compensation of Rs.40,000/- under the head of

'loss of love and affection and consortium'.

Fourthly, the compensation awarded by the

Tribunal under the conventional heads is on the lower

side. Hence, he prays for allowing the appeal filed by

the claimants.

8. Heard the learned counsel for the parties

and perused the records.

RE: NEGLIGENCE

9. The case of the claimants is that on

17.5.2018, the deceased Mahesha was proceeding on

motorcycle bearing registration No.KA-03-EL-1219

ridden by Vasanthkumar on Girijapura Road, heading

towards Mallayanapalya from Motaganahalli, at that

time, Tractor and Trailer bearing registration No.KA-

40-J-5721 & 5720 which was being driven in a rash

and negligent manner came in opposite direction to

the extreme right side and dashed against the

motorcycle. As a result of the aforesaid accident, the

deceased sustained grievous injuries and succumbed

to the injuries.

The claimants to prove the case have examined

claimant No.2 as PW-1 and produced 17 documents.

10. Under the Motor Vehicles Act in the claim

petition before the Claims Tribunal the standard of

proof is much below than what is required in a

criminal case as well as in the civil case. No doubt,

before the Tribunal, there must be some material on

the basis of which the Tribunal can arrive or decide

things necessary to decide for awarding

compensation, but the Tribunal is not expected to take

or to adopt a nicety of a civil or criminal case. After

all it is a summary enquiry and it is the legislation for

the welfare of the Society. The proceedings under the

Motor Vehicles Act are not akin to the proceedings

under civil rules. Hence, strict rules of evidence are

not required to be followed in this regard. In the case

of MANGLA RAM -v- ORIENTAL INSURANCE

COMPANY LIMITED (2018) 5 SCC 656, the Hon'ble

Apex Court has held as hereinbelow:

"25. In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the

evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied."

11. PW-1, the claimant in her deposition has

reiterated the averments made in the claim petition.

She has stated that the accident occurred due to rash

and negligent driving of the tractor by its driver. The

driver came to the extreme right side and dashed to

the motorcycle. To prove the case, the claimants have

produced, FIR, complaint, mahazar, sketch, IMV

report, PM report. The owner of the offending vehicle

has been made as party before the Tribunal and he

has filed written statement denying the accident. He

has not denied that the vehicle was not involved in the

accident. He has contended that his vehicle is covered

with valid insurance policy. Therefore, from the

evidence of PW-1 and written statement of owner of

the offending vehicle and materials available on

record, it is clear that there is no dispute regarding

occurrence of accident and involvement of the

offending vehicle in the accident and death of the

deceased Mahesha.

In respect of negligence is concerned,

immediately after the accident, the rider of the

motorcycle has lodged the complaint against the

driver of the tractor as per Ex.P-2. The police has

registered FIR as per Ex.P-1 against the driver of the

tractor. The police has drawn mahazar as per Ex.P-3

and sketch as per Ex.P-4. As per the sketch and

mahazar, the place of accident is a road proceeding

from Motaganahalli towards Varadenahalli from North

to South. The motorcycle was proceeding from

Motaganahalli towards Varadenahalli from North to

South and the tractor was proceeding from

Varadenahalli to Motaganahalli from South to North.

The width of the road is 20 feet. The accident spot is

extreme east side. As per the evidence of PW-1 and

complaint, FIR, mahazar, sketch, the driver of the

tractor came to the extreme right side towards east

direction and dashed to the motorcycle. Therefore, it

is very clear from the above documents that the driver

of the tractor was driving the vehicle in the rash and

negligent manner and came towards extreme right

side of the road and dashed to the motorcycle.

To disprove the version of the claimants, the

owner of the tractor has not lodged any complaint

against the rider of the motorcycle, Even the written

statement of the owner of tractor, he has not

specifically denied that their vehicle was not involved

in the accident. The driver of the tractor has not given

any complaint against the rider of the motorcycle and

he has not challenged the charge sheet filed against

him before any court of law. The respondent-

Insurance Company has examined RW-1, officer of the

Insurance Company and he has just denied the

accident. No other witness has been examined to

disprove the case of the claimants.

Therefore, it is clear from FIR, complaint,

mahazar, sketch, charge sheet and IMV report that

the driver of the tractor was negligent in causing the

accident. Hence, I am of the opinion that the Tribunal

has rightly answered issue No.1 in the affirmative.

There is no error in the finding of the Tribunal

regarding negligence.

QUANTUM OF COMPENSATION:

12. The claimants claim that the deceased was

aged about 21 years at the time of the accident and

he was studying in II year B.Com and he was a

meritorious student and produced Exs.P-11 to 13 to

show that he was a distinction student. The Apex

Court in the case of Kajal -v- Jagdish Chand and Ors.

(Civil Appeal No.735/2020 disposed 5.2.2020) has

held that even for a student, who is a non earning

member, the income as to be assessed as per the

Minimum Wages Act and claimants are entitled for

future prospects. Therefore, in view of the said

decision and considering the age and educational

background of the deceased, the Tribunal has rightly

taken notional income of the deceased at Rs.12,000/-

p.m.

To the aforesaid income, in view of the law laid

down by the Constitution Bench of the Supreme Court

in 'PRANAY SETHI' (supra), the Tribunal has rightly

added 40% towards future prospects. Further, the

Tribunal considering that the deceased was a bachelor

has rightly deducted 50% of the income of the

deceased towards personal expenses and applied

correct multiplier of '18' and has rightly awarded

compensation of Rs.18,14,400/- under the head of

'loss of dependency'.

In addition, the Tribunal has rightly awarded

Rs.15,000/- on account of 'loss of estate' and

Rs.15,000/- on account of 'funeral expenses'..

In view of the law laid down by the Supreme

Court in the case of 'MAGMA GENERAL

INSURANCE' (supra), claimants, parents of the

deceased are entitled for compensation of Rs.40,000/-

each under the head 'loss of filial consortium' .

13. Thus, the claimants are entitled to the

following compensation:

          Compensation under              Amount in
             different Heads                 (Rs.)
         Loss of dependency                 18,14,400
         Funeral expenses                      15,000
         Loss of estate                        15,000
         Loss of Filial consortium             80,000
                         Total             19,24,400

14. In respect of awarding interest on the

compensation amount, in view of the Division Bench

decision of this in the case of Ms.Joyeeta Bose and

others -v- Venkateshan.V and others (MFA

5896/2018 and connected matters disposed of

on 24.8.2020), the interest granted by the Tribunal

at the rate of 7.5% p.a. on the compensation amount

is reduced to 6% p.a.

15. In the result, both the appeals are

disposed of. The judgment of the Claims Tribunal is

modified.

The claimants are entitled to a total