The Manager vs Manjunath
2021 Latest Caselaw 6363 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 17TH DAY OF DECEMBER, 2021

                       BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

          M.F.A NO. 8047 OF 2016(MV-D)
                       C/W
          M.F.A NO.5889 OF 2016(MV-D)
IN MFA NO.8047/2016
BETWEEN:

1. MANJUNATH
S/O NARASHIMAIAH,
AGED ABOUT 40 YEARS

2. BHARATH
S/O MANJUNATH,
AGED ABOUT 11 YEARS,

BOTH ARE R/AT NO.158, HOSAHALLI,
GOLLARAPALYA, MAGADI MAIN ROAD,
VISHWANEEDAM POST, BANGALORE-91.

3. HANUMANTHAIAH
S/O LATE VENKATARAMANAIAH,
AGED ABOUT 51 YEARS,
R/AT HONNAPURA VILLAGE,
KARALAMANGALA POST,
MANGADI TALUK, RAMANAGARAM DISTRICT.

THE APPELLANT NO.2 IS MINOR,
HENCE REPRESENTED BY NATURAL
GUARDIAN FATHER NAMELY, MANJUNATH.
                                       ..APPELLANTS
(BY SRI.SHRIPAD V SHASTRI, ADVOCATE)
                          2



AND:

1. THE MANAGER
SHRIRAM GEN.INS. CO. LTD.,
SNS CORNER BUILDING,
3RD FLOOR, OPPOSITE TO BOWRING HOSPITAL,
SHIVAJINAGAR, BANGALORE-27
(INSURER OF OFFENDED VEHICLE
EACHER CANTER BEARING REG.NO.KA.19.C.4720)

2. MR.MOHAMMED HANEEF
S/O HASSAN BEARY,
NO.2-42, LACHIL,
ANGADI HOUSE POST, BAJPE, ADYAPADY,
MANGALORE DISTRICT-575001

                                      ...RESPONDENTS

(BY SRI.O MAHESH, ADVOCATE FOR R1)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 16.06.2016 PASSED
IN MVC NO.3086/2015 ON THE FILE OF THE XXI
ADDITIONAL SENIOR CIVIL JUDGE AND XIX ACMM,
MEMBER-MACT, BENGALURU, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

IN MFA NO.5889/2016
BETWEEN:

THE MANAGER
SHRIRAM GENERAL INSURANCE CO LTD
S.N.S.CORNER BUILDING, 3 FLOOR,
OPPOSITE TO BOWRING HOSPITAL
SHIVAJI NAGAR, BANGALORE-27
BY
SHRIRAM GENERAL INSURANCE CO LTD.,
5/4, 3RD CROSS, S.V.ARCADE,
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BELAKANAHALLI MAIN ROAD
OPP: BANNERGHATTA MAIN ROAD
II M.B.POST, BANGALORE-560 076
BY ITS MANAGER
                                      ...APPELLANT
(BY SRI.O MAHESH, ADVOCATE)

AND:

1. MANJUNATH
S/O NARASHIRNAIAH
AGED ABOUT 40 YEARS

2. BHARATH
S/O MANJUNATH
AGED ABOUT 11 YEARS,
BOTH R/A NO.158,
HOSAHALLI, GOLLARAPALYA
MAGADI MAIN ROAD, VISHWANEEDAM POST
BANGALORE-91

2ND RESPONDENT IS MINOR
BY HIS F/G MANJUNATH

3. HANUMANTHAIAH
S/O LATE VENKATARAMANAIAH
AGED ABOUT 52 YEARS
R/A HONNAPURA VILLAGE
KARALAMANGALA POST
MAGADI TALUK, RAMANAGAR DIST-571511

4. MR.MOHAMMED HANEEF
S/O HASSAN BEARY
NO.2-42, LACHIL, ANGADI HOSUE POST
BAJPE, ADYAPADY
MANGALORE DIST-575001
                                    ...RESPONDENTS
(BY SRI.SHRIPAD V SHASTRI, ADVOCATE FOR R1-R3;
SRI.B.LETHIF, ADVOCATE FOR R4)
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     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED: 16.06.2016 PASSED
IN MVC NO.3086/2015 ON THE FILE OF THE 21ST
ADDITIONAL SMALL CAUSE JUDGE & 19TH ACMM,
MEMBER, MACT, BENGALURU, AWARDING COMPENSATION
OF RS.14,56,000/- WITH INTEREST AT 6% P.A. FROM THE
DATE OF PETITION TILL THE DEPOSIT.

     THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 26.11.2021, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                    JUDGMENT

The claimants as well as the Insurance Company

have filed appeals questioning the judgment and

award passed in MVC.No.3086/2015. The claimants

have preferred an appeal in MFA.8047/2016 seeking

enhancement whereas the Insurance Company has

preferred an appeal in MFA.5889/2016 questioning the

quantum of compensation awarded.

2. For the sake of convenience, the parties

are referred to as per their rank before the Tribunal.

3. The claimants filed a claim petition in

MVC.3086/2015 contending that on 16.07.2015 at

about 12.30 p.m., the wife of first appellant namely

Manjula alias Manjamma along with her friend namely

Jayamma were travelling in Ape Autorickshaw on

Magadi Road near Honnapura Village Kere and at that

juncture, the driver of the offending canter came with

a high speed in a rash and negligent manner and

while attempting to overtake the vehicle on extreme

side of the road dashed against the autorickshaw. The

wife of first claimant as well as her friend Manjamma

were severely injured and succumbed to the injuries

on the spot. The claimants filed claim petition

claiming compensation of Rs.20 lakhs contending that

the deceased was hardly 34 years, she was hale and

healthy and working as a Helper at Wardrobe

Solutions and earning Rs.10,000/- p.m.

The first respondent-Insurance Company

contested the proceedings and stoutly denied the

entire averments made in the claim petition. The first

respondent further contended that the driver of the

offending canter did not have valid and effective

driving licence. It was also contended that the driver

of the auto was negligent and the accident occurred

due to the negligence of the driver of the auto and on

these grounds, sought for dismissal of the claim

petition.

The Tribunal having assessed oral and

documentary evidence was of the view that the

appellants have failed to prove the income of the

deceased. The Tribunal in the absence of income

proof has notionally assessed the income of the

deceased at Rs.9,000/- and by adding 50% towards

future prospects has assessed the income of the

deceased at Rs.13,500/- and by deducting 50%

towards personal expenses and adopting the multiplier

of 16 has awarded Rs.12,96,000/- towards loss of

dependency and Rs.1,60,000/- under conventional

heads. The Tribunal in all has awarded a sum of

Rs.14,56,000/- with interest at the rate of 6% per

annum from the date of petition till the date of

realisation.

Being aggrieved by the same, the present

appeals are preferred both by the claimants and the

Insurance Company.

4. Learned counsel appearing for claimants

would vehemently argue and contend before this

Court that even in absence of income proof, the

Tribunal ought to have assessed the notional income

of the deceased at Rs.10,000/- per month having

regard to the date of accident, age of the deceased

and the occupation. He would also question the finding

of the Tribunal in deducting 50% towards personal

expenses since the deceased was married and her

husband, minor son and father were her dependants

and further, the compensation awarded under

conventional heads is on the lower side. On these set

of grounds, he would submit that there is scope for

enhancement and therefore, warrants interference at

the hands of this Court.

5. Per contra, learned counsel appearing for

the Insurance Company would vehemently argue and

contend before this Court that Rule 235 of the

Karnataka Motor Vehicle Rules, 1989(for short "KMV

Rules, 1989") is not complied and therefore, in the

absence of driver of offending vehicle, the question of

negligence cannot be decided. He would also submit

to this Court that the claim petition is liable to be

dismissed for non-joinder of proper and necessary

parties. His contention is that since two vehicles are

involved in the accident, the driver and owner of the

auto ought to have been arrayed as parties. He would

also seriously dispute the dependency of first claimant

and also dispute the income of the deceased assessed

by the Tribunal at Rs.9,000/- per month and on these

set of grounds submits that the claim petition is liable

to be dismissed as not maintainable.

6. Heard the learned counsel for appellants-

claimants and learned counsel for respondent-

Insurance Company.

7. Regarding negligence:

7(a) The Insurance Company has raised

grounds that even if claimants have failed to array the

driver of the offending vehicle as a party, Rule 235 of

the KMV Rules, 1989 mandates on Tribunal to issue

notice to the owner/driver of the vehicles which are

involved in the accident calling upon them to tender

evidence in regard to negligence. The Insurance

Company has also contended that the claim petition is

bad for non-joinder of proper and necessary parties

since the owner of the autorickshaw is not arrayed as

a party.

7(b)The question as to whether driver is a

necessary party has been dealt in catena of

judgments. In a claim petition seeking compensation,

the driver of the offending vehicle is not a necessary

party. This issue as to whether the driver is a

necessary party or not would not detain this Court for

long in the light of the judgment rendered by the

Division Bench of this Court in M/s.Patel Roadways,

Ahmedabad and another .vs. Manish Chohotalal

Thakkar and others1. The Division Bench while

examining the identical issue was of the view that

Section 168(1) of the Act requires notice should be

2000(3) KCCR 2253

given to the insurer. The division bench was of the

view that there is no specific requirement that notice

should be given to the driver. The division bench held

that the question as to whether the driver is to be

impleaded or not is left to the discretion of the

claimants and therefore, was of the view that driver is

not a necessary party in a claim against the owner

and the insurer.

7(c)The next ground that is urged before this

Court is that since two vehicles are involved in the

accident, the claim petition is bad for non-joinder of

autorickshaw also cannot be acceded to. The

claimants by producing copy of the FIR at Ex.P1,

mahazar at Ex.P3, rough sketch at Ex.P4 and charge

sheet at Ex.P19 have succeeded in establishing the

negligence of the driver of the offending canter. The

Tribunal has taken holistic view of the investigation

reports and has rightly answered issued No.1 in the

affirmative holding that the claimants have succeeded

in establishing the negligence of the driver of the

canter vehicle. On perusal of the records, I would find

that Insurance Company has not led any rebuttal

evidence to rebut the documentary evidence placed by

the claimants. Therefore, I do not find any infirmities

in the findings recorded by the Tribunal on Issue No.1.

8. In regard to quantum:

The Tribunal in the absence of income proof has

notionally assessed the income of the deceased at

Rs.9,000/- and by adding 50% has assessed the

income of the deceased at Rs.13,500/- and awarded

Rs.12,96,000/- towards loss of dependency. On re-

appreciation of the oral and documentary evidence,

this Court would find that the Tribunal erred in adding

50% towards future prospects. If the age of the

deceased was 35, as on the date of the accident, then

40% has to be added towards future prospects. In the

absence of income proof, this Court is of the view that

the notional income of the deceased assessed at

Rs.9,000/- is just and proper and by adding 40%

towards future prospects, the income of the deceased

is notionally assessed at Rs.12,600/-. Since there are

two dependants, the Tribunal has erred in deducting

50% towards personal expenses, which ought to have

been 1/3rd. Therefore, deducting 1/3rd towards

personal expenses, the income is assessed at

Rs.8,400/- and applying the multiplier of 16, the

compensation payable under the head of loss of

dependency is re-determined at Rs.16,12,800/-

(Rs.8,400x12x16).

Under conventional heads, by applying the

principles laid down by the Apex Court in the case of

Magma General Insurance vs Nanu Ram & Ors.2

a sum of Rs.1,10,000/- is awarded to claimants 1 and

2018 ACJ 2782

2. Thus, the total compensation re-determined comes

to Rs.17,22,800/- as against Rs.14,56,000/- awarded

by the Tribunal.

9. In the result, the appeal filed by the

claimants in MFA.No.8047/2016 is allowed and the

appeal filed by the Insurance Company in

MFA.No.5889/2016 is dismissed. The impugned

judgment and award dated 16.6.2016 passed in

MVC.No.3086/2015 by the XXI Additional Small

Causes Judge and XIX ACMM and Member, MACT, is

modified holding that the appellants are entitled to

enhanced compensation of Rs.2,66,800/- with interest

at the rate of 6% per annum from the date of petition

till its realisation.

Sd/-

JUDGE

*alb/-.