Karnataka High Court

The Manager vs Thanu Singh And Ors on 7 December, 2021

Bench: M.G.S.Kamal

                          1




         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 07TH DAY OF DECEMBER, 2021

                       BEFORE

        THE HON'BLE MR.JUSTICE M.G.S.KAMAL

              MFA No.200658/2018 (MV)
                        C/W
              MFA No.200652/2018 (MV)

MFA 200658/2018

BETWEEN

THE MANAGER
RELIANCE GENERAL INSURANCE CO. LTD.,
RELIANCE CENTER 19, WALCHAND HIRACHAND
MARG, BELLARD ESTATE MUMBAI, REP.
BY ITS: DIVISIONAL MANAGER,
3RD FLOOR, ASIAN PLAZA, TIMMAPURI CIRCLE,
MAIN ROAD, KALABURAGI REPRESENTED BY
AUTHORISED OFFICER
                                        ...APPELLANT

(BY SRI SUBHASH MALLAPUR, ADVOCATE)

AND

1.     THANU SINGH     S/O KASHINATH PAWAR,
       AGE: 44 YEARS, OCC: LABOUR,
       R/O SINDHOL TANDA, TQ & DIST: BIDAR

2.     ASHWINI D/O THANU SINGH PAWAR
       AGE: 16 YEARS, OCC: STUDENT
                           2




3.     ARVIND S/O THANU SINGH PAWAR
       AGE: 14 YEARS, OCC: STUDENT
       BOTH MINORS U/G OF R-1

4.     MD. FEROZ KHAN S/O ABDUL MAZEDKHAN
       AGE: MAJOR, OCC: BUSINESS,
       R/O H.NO. 5-2-84 GOLE KHANA,
       DIST: BIDAR
                                    ...RESPONDENTS

(BY SRI BASAVARAJ R. MATH, ADVOCATE FOR R1 TO R3;
R4 SERVED)

      THIS MFA FILED U/S 173(1) OF MV ACT, PRAYING
THAT THIS HON'BLE COURT MAY BE PLEASED TO, ALLOW
THE ABOVE APPEAL AND CONSEQUENTLY BE PLEASED TO
SET    ASIDE   THE   JUDGMENT   AND   AWARD   DATED
13.10.2017 PASSED THE II ADDL. SENIOR CIVIL JUDGE
AND JMFC, BIDAR IN MVC NO.412/2015, IN THE INTEREST
OF JUSTICE AND EQUITY.


MFA NO.200652/2018

BETWEEN

1.     THANU SINGH S/O KASHINATH PAWAR,
       AGE: 45 YRS, OCC: LABOUR

2.     ASHWINI D/O THANUSING PAWAR
       AGE: 17 YRS, OCC: STUDENT

3.     ARVIND S/O THANUSINGH PAWAR
       AGE: 15 YRS, MINOR OCC: STUDENT,
       BOTH MINORS U/G OF THEIR FATHER
       CLAIMANT NO.1, ALL ARE R/O SINDHOL
                           3




      TANDA, TQ & DIST: BIDAR-585401
                                         ...APPELLANTS

(BY SRI BASAVARAJ R. MATH, ADVOCATE)

AND

1.    MD. FEROZ KHAN S/O ABDUL MAZEDKHAN,
      AGE: MAJOR, OCC: BUSINESS,
      R/O H.NO.5-2-84 GOLE KHANA,
      DIST: BIDAR-585401

2.    THE MANAGER
      RELIANCE GENERAL INSURANCE COMPANY
      LTD., RELIANCE CENTRE, 19
      WALCHAND HIRACHAND MARG,
      BELLARD ESTATE MUMBAI, REP. BY
      ITS DIVISIONAL MANAGER, DIVISION
      OFFICER, 3RD FLOOR ASIAN PLAZA,
      TIMMAPURI CIRCLE, MAIN ROAD,
      KALABURAGI-585102
                                      ...RESPONDENTS

(BY SRI SUBHASH MALLAPUR, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)

     THIS MFA FILED U/S 173(1) OF MV ACT, PRAYING
THAT THIS HON'BLE COURT MAY BE PLEASED TO, CALL
FOR RECORDS AND MODIFY THE IMPUGNED JUDGMENT
AND AWARD DATED 13.10.2017 PASSED BY THE II ADDL.
SENIOR   CIVIL   JUDGE   AND   JMFC,   BIDAR,   IN   MVC
NO.412/2015, IN THE INTEREST OF JUSTICE AND EQUITY.


      THESE APPEALS ARE COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
                                 4




                        JUDGMENT

MFA No.200652/2018 is filed by the claimants and

MFA No.200658/2018 is filed by the insurance company

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

short 'M. V. Act') against the judgment and order dated

13.10.2017 passed in MVC No.412/2015 on the file of the

II Additional Senior Civil Judge and JMFC at Bidar (for

short 'Tribunal').

2. The parties shall be referred to as per their

rankings before the Tribunal.

3. Brief facts leading up to filing of these appeals

are that one Nirmalabai, who was working as a labour and

after her work, while she was proceeding near Murarji

Desai School by walk on the side of the road, at that time,

a lorry bearing registration No.KA-38/7345 driven by its

driver in high speed, in a rash and negligent manner, came

from behind and dashed to said Nirmalabai. Due to which,

she fell down and sustained grievous injuries on his hips,

back side of her head, chest, forehead and on vital parts of

the body. Immediately, she was admitted to Prayavi

Hospital, Bidar and from there she was referred for higher

treatment to the Hospital at Hyderabad. But, on the way

to hospital, she succumbed to the injuries near

Sangareddy.

4. Thereupon, the claimants being the husband

and children of the deceased filed a claim petition under

Section 166 of the M. V. Act claiming compensation of

`34,00,000/- with interest at 18% per annum on the

premise that the deceased was aged about 32 years and

was earning `5,00/- per day i.e., `15,000/- per month by

working as a labour and out of the said income, she was

maintaining her family. That untimely death of the

deceased on account of the accident in question has

caused financial and emotional distress to the claimants.

Hence, sought for compensation.

5. Despite service of notice, respondent No.1

remained absent and was placed exparte. Respondent

No.2 - insurance company appeared through its counsel

and filed written statement denying the mode and manner

of the accident. It also denied the age, occupation and

income of the deceased. It was contended that the

accident in question had occurred due to the negligence on

the part of the deceased herself. It is also contended that

respondent No.1 had violated the terms and conditions of

the policy by not intimating about the accident to the

insurance company. It is further contended that the

compensation claimed by the claimants is exorbitant and

excessive. Hence, it is contended that insurance company

is not liable to pay any compensation as respondent No.1

is not having valid and effective licence and thus sought

for dismissal of the claim petition.

6. Based on the pleadings, the Tribunal framed

issues and recorded evidence. Claimant No.1 being the

husband of the deceased examined himself as PW.1 and

exhibited 8 documents as Exs.P1 to P8. On behalf of the

respondents, one Prabakar has been examined as RW.1

and exhibited two documents as Exs.R1 and R2.

7. On appreciation of the evidence, the Tribunal

held that the death of the deceased was on account of the

accident, which occurred due to rash and negligent driving

by the driver of the lorry in question. Consequently, held

that the claimants being the husband and children of the

deceased are entitled for total compensation of

`8,58,000/- together with interest at 6% per annum from

the date of petition till its realization and directed the

respondent No.2 - insurance company to pay the

compensation within 30 days from the date of the

judgment. Aggrieved by the same, the appellant -

insurance company has filed MFA No.200658/2018

questioning the liability to pay the compensation while the

appellants/claimants have filed MFA No.200652/2018

seeking enhancement of the compensation.

8. Heard the learned counsel for the parties and

perused the records.

9. The learned counsel for the

appellants/claimants Sri Basavaraj R. Math reiterating the

grounds urged in the appeal memorandum submits that

the Tribunal has erred in assessing the income of the

deceased at `6,000/- per month even while she was

earning `5,00/- per day as a labour. He further submits

that the Tribunal has erred in not awarding future

prospects as per the law laid down by the Apex Court in

the case of NATIONAL INSURANCE COMPANY LTD. VS.

PRANAY SETHI [(2017) 16 SCC 680] and the

compensation awarded under conventional heads is also

on the lower side. Hence, sought for enhancement of the

compensation.

10. On the other hand, the learned counsel for the

appellant - insurance company Sri Subhash Mallapur

submits that the Tribunal has erred in not appreciating the

fact that the accident had occurred on account of

negligence on the part of the deceased herself. He further

submits that Ex.P5, the spot panchanama, establish that

the accident has taken place in the middle of the road,

which indicate that the deceased herself was negligent and

careless while walking on the road. Thus, the Tribunal as

per Ex.P5, ought to have applied the theory of res ipso

loquitor in the present case. He also submitted that the

Tribunal has not taken into consideration that the driver of

the lorry has violated the terms and conditions of the

policy as there was no permit to the lorry. As regards

enhancement of compensation is concerned, he submits

that the Tribunal has awarded just compensation and it

does not call for any interference. Hence, sought for

allowing of his appeal by dismissing the appeal filed by the

claimants.

11. On a thoughtful consideration of the arguments

made by the learned counsel for the parties, the following

points would arise for consideration:

"Whether the claimants have made out a case of enhancement of the compensation and whether the appellant - insurance company has made out a case for interference with the finding of the Tribunal?"

12. The accident in question resulting in the death

of the deceased is not in dispute. The death of the

deceased on account of the accident is also not in dispute.

Though, it is contended on behalf of the claimants that the

deceased was earning `15,000/- per month from her

labouring work, no material evidence has been placed on

record. This Court in the absence of any acceptable

evidence takes into consideration the chart prepared by

the Karnataka State Legal Services Authority, wherein, the

income of the victims of the road traffic accident for the

year 2015 is fixed at `8,000/- per month. In the instant

case, the accident had occurred on 05.05.2015 and the

claimants have not produced any acceptable evidence with

regard to the income of the deceased, as such, the income

of the deceased needs to be notionally assessed at

`8,000/- per month instead of `6,000/- per month

assessed by the Tribunal. The deceased was 32 years old

at the time of the accident and in view of the law laid down

by the Apex Court in the case of PRANAY SETHI (Supra),

40% of the assessed income needs to be added towards

future prospects. Considering the age of the deceased, the

proper multiplier applicable is '16'. There are three

dependents, as such 1/3rd needs to be deducted towards

personal and living expenses of the deceased. Thus, the

compensation towards loss of dependency computed would

be `14,33,664/-. [`8,000/- + 40% (3,200) = `11,200/-.

`11,200/- - 1/3rd (towards personal expenses) = `7,467 x

12 x 16 (multiplier) = `14,33,664/-].

13. In view of the law laid down by the Apex Court

in the case of MAGMA GENERAL INSURANCE COMPANY

LIMITED VERSUS NANU RAM ALIAS CHUHRU RAM

AND OTHERS [2018) 18 SCC 130], which clarified in

the subsequent judgment of the Apex Court in the case of

UNITED INDIA INSURANCE CO. LTD., VS. SATINDER

KAUR @ SATWINDER KAUR & ORS. [2020 SCC

ONLINE SC 410], the claimants being the dependents of

the deceased are entitled for `40,000/- each under the

heads of loss of spousal and filial consortium. In addition,

the claimants are entitled for compensation of `15,000/-

towards loss of estate and `15,000/- towards funeral

expenses. The Apex Court in the case of PRANAY SETHI

(Supra) at paragraph No.52 of its judgment held that in a

span of every three years, there shall be enhancement of

compensation at 10% under conventional heads. In the

case on hand, the appeal is of the year 2018, if thus

calculated, the enhancement under conventional is to be

taken at 10%. The compensation towards loss of estate

and towards funeral expenses is calculated at `30,000/-

and 10% of the same is `3,000/-. As also, the

compensation towards loss of consortium is calculated at

`1,20,000/- and 10% of the same is `12,000/-. Thus, the

enhancement under the conventional heads for three years

is `15,000/-.

14. In view of the above, the claimants would be

entitled for the following modified compensation as under:

      Heads             By Tribunal      By this Court

Loss of Dependency      `7,68,000/-      `14,33,664/-

Towards loss of filial, `50,000/-        `1,20,000/-
spousal and parental
consortium
(40,000x3)
Loss of estate          `20,000/-        `15,000/-

Funeral expenses        `20,000/-        `15,000/-

As per the judgment                      `15,000/-
of the Apex Court in
the case of PRANAY
SETHI (Supra), 10%
of the conventional
heads
Total                `8,58,000/-         `15,98,664/-

15. Thus, the claimants are entitled for total

compensation of `15,98,664/- instead of `8,58,000/-

awarded by the Tribunal. In view of the above, the point

No.1 raised is answered accordingly.

16. Adverting to point No.2 regarding the Tribunal

fastening liability on the appellant - insurance company. It

is submitted on behalf of the insurance company that there

was violation of the terms and conditions of the policy as

the vehicle in question did not have permit.

17. Though it is submitted that the accident had

occurred on account of contributory negligence on the part

of the deceased, the insurance company has not offered

any cogent evidence in this regard. Though Ex.P5 reveal

that the accident has taken on the middle of the road, the

same cannot be taken as a conclusive proof of the

accident. The insurance company, which is claiming that

there was violation of terms and conditions of policy and

contributory negligence on the part of the deceased, ought

to have led cogent evidence establishing that the accident

in question had occurred on account of negligence on the

part of the deceased.

18. The learned counsel for the appellant -

insurance company submits that the vehicle in question did

not have permit to ply at the area where the accident took

place. The violation of the terms of the policy is a matter

of fact, which has to be established by leading cogent

evidence. Though it is contended that the vehicle did not

have permit, no other independent evidence has been

adduced by the Insurance Company to show that the

vehicle in question having no permit. Breach of the terms

and conditions of the policy and proof of the same is the

bounden duty of the insurance company, which is claiming

exoneration from the liability from payment of

compensation. Since the appellant - insurance company

has not discharged its duty by leading independent cogent

evidence, the submission in that regard are not

sustainable. The reasoning given by the Tribunal with

regard to fixing of the liability requires no interference. In

the light of the aforesaid aspect of the matter, point No.2

raised above is answered accordingly. Hence, the

following:

ORDER

i. The appeal filed by the

appellants/claimants in MFA

No.200652/2018 is allowed in part.

ii.    The appeal filed by the insurance

company      in    MFA   No.200658/2018      is

dismissed.


iii.   The judgment and award passed

by the Tribunal in MVC No.412/2018 is

modified.


iv.    The        appellants/claimants     are