Sriram General Insurance Company ... vs Vanajakshi
2021 Latest Caselaw 1196 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 19TH DAY OF JANUARY 2021

                            PRESENT

       THE HON'BLE MR. JUSTICE ALOK ARADHE

                             AND

  THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY

                 M.F.A. NO.6270 OF 2016
                             C/W
             M.F.A. NO.1878 OF 2017 (MV-D)
M.F.A. NO.6270 OF 2016
BETWEEN:

SRIRAM GENERAL INSURANCE COMPANY LIMITED
NO.E-8, EPIR R.I.I.C.O.,
SEETHAPURA, JAIPURA
RAJASTHAN STATE-302 022
REPRESENTED BY THE DIVISIONAL MANAGER
SRIRAM GENERAL
INSURANCE COMPANY LIMITED
NO.32, 3RD FLOOR, N & S
COMMERCIAL PLAT NO.48
HOSPITAL ROAD, NEAR KAMATH HOTEL
SHIVAJINAGAR, BANGALROE-560 001.

NOW AT:

SHRIRAM GENERAL INSURANCE CO. LTD.,
5/4, 3RD CROSS, S.V. ARCADE
BELAKANAHALLI MAIN ROAD
OPP: BANNERGHATTA MAIN ROAD
II M.B. POST, BANGALROE-560 076
BY ITS MANAGER.
                                             ... APPELLANT
(BY MR. O. MAHESH, ADV.,)
                              2



AND:

1.     VANAJAKSHI, AGE 39 YEAR
       W/O LATE GURUSHANTHA B.T.

2.     SHARATH, AGE 23 YEAR
       S/O LATE GURUSHANTHA B.T.

3.     NISARGA, AGE 16 YEAR
       D/O LATE GURUSHANTHA B.T.

       RESPONDENT NO.3 IS MINOR
       BY M/G RESPONDENT NO.1

       ALL ARE RESIDING AT
       NISARGA NILAYA
       VIVEKANAGARA, NEW GANAPATHI
       TEMPLE ROAD, HASSAN-573201.

4.     UMESH, MAJOR
       S/O TIMMEGOWDA, NO.4
       MALLDADEVARAPURA
       MUKUNDURU VILLAGE AND POST
       KATTAYA HOBLI, HASSAN TALUK 573201.

5.     K.S. RASHMI, MAJOR
       W/O DARSHAN A
       NO.9/27, YOGINARAYANA NIVASA
       5TH MAIN ROAD, GANESHA BLOCK
       SULTHAN PALYA, R.T.NAGAR
       BENGALURU 560032.

6.     THE CLAIM MANAGER
       NATIONAL INSURANCE CO. LTD.,
       NO.10, PLAT NO.101-106
       NO.1 BMC HOUSE, KANNAGAT PLACE
       NEW DELHI 110001.

       REP. BY THE DIVISIONAL MANAGER
       NATIONAL INSURANCE CO. LTD.,
       SHRI MANJUNATHA COMPLEX
       OLD BUS STAND ROAD, HASSAN-573201.
                                            ... RESPONDENTS
(BY MR. GIRISH B. BALADARE, ADV., FOR R1 & R2
        R3 IS MINOR REP. BY R1
                              3



   MR. CHETHAN B, ADV., FOR R4
   MR. A.N. KRISHNASWAMY, ADV., FOR R6
V/O DTD:10-10-2017 NOTICE TO R5 IS HELD SUFFICIENT)

                            ---

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.05.2016 PASSED IN MVC NO.1504/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL MACT, HASSAN, AWARDING A COMPENSATION OF 72,33,687,98/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

M.F.A. NO.1878 OF 2017 BETWEEN:

1. VANAJAKSHI W/O LATE GURUSHANTHA AGED ABOUT 39 YEARS.

2. SHARATH S/O LATE GURUSHANTHA AGED ABOUT 23 YEARS.

3. NISARGA D/O LATE GURUSHANTHA AGED ABOUT 16 YEARS.

3RD APPELLANT HEREIN IS BEING MINOR REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER IS IST APPELLANT HEREIN.

ALL ARE R/AT NISARGA NILAYA VIVEKANAGARA NEW GANAPATHI TEMPLE ROAD HASSAN -573201.

... APPELLANTS

(BY MR. GIRISH B. BALADARE, ADV.,)

AND:

1. SRI RAM GENERAL INSURANCE CO. LTD., NO.E-8, EPIR, R.I.IC.O.

SEETHAPURA, JAIPURA RAJASTHAN STATE-302022.

REPRESENTED BY THE DIVISIONAL MANAGER SRI RAM GENERAL INSURANCE CO LTD., NO.32, 3RD FLOOR, N & S COMMERCIAL PLAT NEAR KAMATH HOTEL SHIVAJINAGARA, BENGALURU-560001.

2. UMESH S/O THIMMEGOWDA AGED ABOUT 30 YEARS R/AT NO.4, MALLADEVAPURA VILLAGE AND POST KATTAYA HOBLI HASSAN TALUK AND DISTRICT-573201.

3. K S RASHMI W/O DARSHAN A AGED ABOUT 28 YEARS R/AT YOGINARAYANA NIVASA 5TH MAIN ROAD, GANESH BLOCK SULTHAN PALYA, R.T.NAGAR BENGLURU-560032.

4. THE NATIONAL INSURANCE CO. LTD., NO.10, PLAT NO.101-106 NO.1, BMC HOUSE, KANNAGAT PLACE NEW DELHI-1110001.

... RESPONDENTS (BY MR. O. MAHESH, ADV., FOR R1 R2 SERVED)

---

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.05.2015 PASSED IN MVC NO.1504/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL MACT, HASSAN, PARTLY ALLOWING

THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THESE M.F.As. COMING ON FOR ADMISSION, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

M.F.A.No.1878/2017 has been filed by the claimant

seeking enhancement of the amount of compensation,

whereas M.F.A.No.6270/2016 has been filed by the insurance

company being aggrieved, by the judgment dated

13.05.2016 passed by the Motor Accidents Claims Tribunal

(hereinafter referred to as 'the Tribunal' for short). Since,

both these appeals preferred under Section 173(1) of the

Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act'

for short) arise out of the same accident as well as same

judgment passed by the Tribunal, they were heard together

and are being decided by this common judgment.

2. Facts leading to filing of these appeals briefly

stated are that on 05.04.2014 at about 9.00 p.m. deceased

Gurushantha BT was proceeding as an inmate in a car

bearing Registration No.KA-04-MN-2163. When the reached

near Kallenahalli Cross, a lorry bearing registration No.KA-

03-C-3172, which was being driven by its driver in a rash

and negligent manner and in a high speed, came from the

opposite direction, dashed against the car in which the

deceased was traveling. As a result of the accident, the

deceased sustained grievous injuries and succumbed to the

same.

3. The claimant thereupon filed a petition under

Section 166 of the Act inter alia on the ground that at the

time of accident, the deceased was aged about 48 years and

was working as a Kannada Lecturer at Presidency UES

College, Hassan and was getting a salary of Rs.47,024/- per

month. It was further pleaded that the accident took place

solely on account of rash and negligent driving of the

offending lorry by its driver. The claimant claimed

compensation to the tune of Rs.1,37,10,000/- along with

interest.

4. The insurance company filed written statement in

which, inter alia, it was pleaded that the claim petition was

bad for non joinder of necessary parties. It was also pleaded

that the driver of the car was also negligent in causing the

accident. The age, avocation and income of the deceased

was also denied and it was pleaded that the claim of the

claimants is exorbitant and excessive.

4. The Claims Tribunal on the basis of the pleadings

of the parties, framed the issues. The claimants in order to

prove their case examined Vanajakshi (PW1), Nanjegowda

(PW2), Reesamma Aagasti (PW3), Dr.Gangu Hiral S (PW4)

and got exhibited documents viz., Ex.P1 to Ex.P38. The

respondent examined one witness viz., Ganapathi S as RW1

and got exhibited document viz., Ex.R1. The Claims Tribunal

vide impugned judgment inter alia held that the accident

took place on account of rash and negligent driving of the

offending lorry by its driver, as a result of which the

deceased sustained grievous injuries and succumbed to the

same. It was further held that the claimant is entitled to

compensation to the tune of Rs.72,33,687/- along with

interest at the rate of 8% per annum from the date of

petition till realization. In the aforesaid factual background,

these appeals have been filed.

5. Learned counsel for the insurance company

submitted that the Tribunal erred in not appreciating that one

Chandregowda who has filed the Ex.P2 Complaint has not

been examined by the claimants to prove the manner of

accident. It is further submitted that Tribunal erred in not

attributing negligence on the part of the driver of the car

when Ex.P5 Spot Mahazhar as well as Ex.P7 and Ex.P8 IMV

Reports indicate that the driver of the car was also negligent

in causing the accident. It is also submitted that Tribunal

erred in assessing the compensation under the head 'loss of

dependency' by not deducting Rs.21,000/- per month from

the income of the deceased when PW1 Vanajakshi has clearly

stated in her evidence that she was drawing a pension of

Rs.21,000/- per month which was also confirmed by the

evidence of the employer of the deceased. It is also urged

that the Tribunal erred in making an addition to the extent of

30% to the income of the deceased towards future prospects

instead of 25% in the absence of pleading and evidence of

employer to that effect.

6. On the other hand, learned counsel for the claimant

submitted that Ex.P1 FIR, Ex.P2 Complaint as well as Ex.P4

Chargesheet have been filed against the driver of the

offending lorry. It is further submitted that the insurance

company has not adduced any evidence to prove its plea of

contributory negligence. It is also submitted that the Tribunal

erred in deducting Rs.31,844.30/- per annum from the

income of the deceased towards income tax. It is also urged

that the deceased was employed as a Kannada Lecturer in a

government aided college and an addition to the tune of 30%

to the income of the deceased towards future prospects is

justified. It is further urged that the sums awarded under the

heads 'loss of consortium' and 'funeral expenses' are on the

lower side and deserves to be enhanced suitably. Learned

Counsel for Respondent No.6 in MFA 6270/2016 submitted

that the amount of compensation awarded by the Tribunal is

just and proper and does not call for any interference.

7. We have considered the submissions made by

learned counsel for the parties and have perused the record.

The Supreme Court in 'MANGALA RAM VS. ORIENTAL

INSURANCE CO.', (2018) 5 SCC 656 has held that the

proceeding under the Act has to be decided on the basis of

preponderance of probabilities and claimant is not required to

prove the accident beyond reasonable doubt. It is well settled

in law that when an accident happens through the combined

negligence of two persons, he alone is liable to the other who

had the last opportunity of avoiding the accident by

reasonable care, and who then knew or ought to have known

of the danger caused by the other's negligence. [See:

SALAMOND ON THE LAW OF TORTS, TWELFTH EDITION

1957 PAGE 439-441]. The general rule is that the vehicle

should be driven at a speed which enables the driver to stop

within the limits of his vision and failure to do this will almost

always result in the driver being held, in whole or in part,

responsible for the collision. [See: CLERK AND LINDSELL

ON TORTS, ELEVENTH EDITION, 1954 PAGES 368-370].

It is equally well settled legal proposition that burden of

proving negligence lies on the person who alleges it. The

Supreme Court in 'MUNICIPAL CORPORATION OF

GREATER BOMBAY VS. LAKSHMAN IYER AND ORS.' AIR

2003 SC 4182 held that the crucial question in case of

contributory negligence is whether either party could by

reasonable care, have avoided the consequences of other's

negligence. The finding with regard to contributory

negligence has to be recorded on the basis of proper

consideration of the pleadings and legal evidence adduced by

both the parties and the same cannot be based merely on

police records. [See: 'MINUROUT VS. SATYA

PRADYUMNA MOHAPATRA', (2013) 10 SCC 695 AND

'SARALA DEVI VS. ROYAL SUNDARAM ALLIANCE

INSURANCE CO. LTD.,', (2014) 15 SCC 450]. It is well

settled in law that burden to prove breach of duty on the part

of the victim lies on the insurance company and the

insurance company has to discharge the burden. [SEE:

'USHA RAJ KHOWA VS. PARAMOUNT INDUSTRIES',

(2009) 14 SCC 71].

8. From perusal of the record it is evident that PW1

viz., the wife of the deceased is not an eye witness.

However, PW2 viz., Nanjegowda is an eye witness who in

clear terms has stated as to manner of the accident. It has

further been stated by him that the accident occurred on

account of rash and negligent driving by the driver of the

offending lorry. Nothing to the contrary could be elicited from

him in the cross examination. The Tribunal has further found

that the manner of accident as stated by PW3 is corroborated

by spot sketch Ex.P5 as well as IMV reports at Ex.P7 and

E.P8, which discloses that the car has sustained heavy

damage to front portion while the offending lorry has dented

front bumper, fuel tank etc. The Tribunal, therefore, on the

basis of meticulous appreciation of evidence on record has

recorded a finding that the driver of the offending lorry was

negligent in driving the lorry, as a result of which the

accident took place in which the deceased sustained injuries

and succumbed to the same. It is pertinent to mention here

that insurance company has neither examined the driver of

the lorry nor adduced any documentary evidence to prove

their version of manner of accident. For the aforementioned

reasons, we affirm the finding recorded by the Claims

Tribunal with regard to negligence.

9. Now we may advert to the quantum of

compensation, which is payable to the claimant. Ex.P23

Salary Certificate discloses that the deceased was drawing a

gross salary of Rs.47,024/- per month out of which the

allowable deductions are Rs.200/- per month towards

professional tax and Rs.2,653/- per month towards income

tax as rightly determined by the Tribunal. The contention

raised by the learned counsel for the insurance company that

the amount of pension being drawn by the wife of the

deceased should be deducted from the monthly income of

the deceased, does not deserve acceptance in view of the law

laid down by the Supreme Court in LAL DEI VS HIMACHAL

ROAD TRANSPORT LAWS (SC) 2007 8 15 where it has

been held that the family pension paid to the family cannot

be deducted while calculating the compensation awarded to

the claimants. Therefore, the income of the deceased is

assessed at Rs.44,171/- per month.

10. In view of law laid down by the constitution bench

of Supreme Court in 'NATIONAL INSURANCE COMPANY

LTD V. PRANAY SETHI', AIR 2017 SC 5157, 30% of the

amount has to be added on account of future prospects as

the deceased was in permanent employment at a

Government aided college as evident from the evidence of

PW3 Reesamma Aagasti as well as Ex.P23 Pay Slip. Therefore

the income of the deceased would be Rs.59,234/- per month

Since, the number of dependants is 3, 1/3rd of the amount

has to be deducted towards personal expenses. Thus, the

monthly dependency works out to Rs.38,282/-. Taking into

account the age of the deceased, which was 48 years at the

time of accident, multiplier of '13' has to be adopted.

Therefore, the claimant is held entitled to a sum of

(Rs.38,282x12x13) i.e., Rs.59,71,992/- on account of loss of

dependency.

11. In view of laid down by the Supreme Court in

'MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM

& ORS.' (2018) 18 SCC 130, which has been subsequently

clarified by the Supreme Court in 'UNITED INDIA

INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.'

IN CIVIL APPEAL NO.2705/2020 DECIDED ON

30.06.2020 each of the claimant's are entitled to a sum of

Rs.40,000/- on account of loss of consortium and loss love

and affection. Thus, the claimants are held entitled to

Rs.1,20,000/-. In addition, claimants are held entitled to

Rs.30,000/- on account of loss of estate and funeral

expenses. Thus, in all, the claimants are held entitled to a

total compensation of Rs.61,21,992/-. Since the accident is

of the year 2014, the prevailing rate of interest for the year

2014 in respect of fixed deposits for one year in nationalized

banks being 8.5%, the aforesaid amounts of compensation

shall carry interest at the rate of 8.5% from the date of filing

of the petition till the realization of the amount of

compensation. To the aforesaid extent, the judgment passed

by the Claims Tribunal is modified.

In the result, M.F.A No.6270/2016 is dismissed and

M.F.A No.1878/2017 is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

ss