Karnataka High Court

The Branch Manager vs Smt. Shruthi on 4 January, 2021

Author: S.Sujatha And M.I.Arun

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF JANUARY, 2021

                         PRESENT

          THE HON'BLE MRS.JUSTICE S.SUJATHA

                             AND

           THE HON'BLE MR. JUSTICE M.I.ARUN

      M.F.A.No.62/2018 C/w. M.F.A.No.438/2018 (MV)

IN MFA No.62/2018:
BETWEEN :
THE BRANCH MANAGER
NEW INDIA ASSURANCE CO. LTD.,
BRANCH OFFICE, P.B. ROAD
CHITRADURGA-577541
[REP. BY ITS DIVISIONAL MANAGER].              ...APPELLANT

                (BY SRI SANMATHI.E.I., ADV.)

AND :
1.      SMT.SHRUTHI
        W/O LATE BHEEMESH
        AGED ABOUT 24 YEARS
        HOUSEWIFE.

2.      KEERTHANA
        D/O LATE BHEEMESH
        AGED ABOUT 6 YEARS

3.      KISHORE
        D/O LATE BHEEMESH
        AGED ABOUT 5 YEARS

[THE RESPONDENT Nos.2 & 3 ARE
MINORS REP. BY FIRST RESPONDENT
BEING NATURAL GUARDIAN]
                        -2-



4.   SMT.DEVAMMA
     W/O LATE BEERAPPA
     AGED ABOUT 66 YEARS

ALL ARE R/AT LAKSHMISAGARA VILLAGE
CHITRADURGA-577541.

5.   INSTANT TRANSPORT
     SOLUTION PVT. LTD.,
     ITS HOUSE No.72/2,
     KAPASHERA BIJWASAN ROAD
     NEAR BHARATHI PETROL PUMP
     NEW DELHI-110037.                   ...RESPONDENTS

     (BY SRI SHANKAR GOUD.G., ADV. FOR C/R-1 TO 4;
           R-2 & R-3 ARE MINORS, REP. BY R-1;
V/O. DATED 04.01.2021, NOTICE TO R-5 IS DISPENSED WITH.)

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
30.10.2017 PASSED IN MVC No.779/2016 ON THE FILE OF THE
2ND ADDITIONAL SENIOR CIVIL JUDGE & JMFC, CHITRADURGA,
AWARDING COMPENSATION OF Rs.15,02,000/- WITH INTEREST
9% P.A., FROM THE DATE OF FILING THE PETITION TILL THE
REALIZATION.

IN MFA No.438/2018:
BETWEEN :
1.   SMT.SHRUTHI
     W/O LATE BHEEMESH
     AGED ABOUT 25 YEARS
     HOUSEWIFE.

2.   KEERTHANA
     D/O LATE BHEEMESH
     AGED ABOUT 7 YEARS

3.   KISHORE
     D/O LATE BHEEMESH
     AGED ABOUT 6 YEARS
                            -3-

[THE PETITIONER Nos.2 & 3 ARE
MINORS REP. BY THEIR MOTHER
AS NATURAL GUARDIAN]

4.      SMT.DEVAMMA
        W/O LATE BEERAPPA
        AGED ABOUT 67 YEARS

ALL ARE R/AT LAKSHMISAGARA VILLAGE
CHITRADURGA TALUK-577541.                       ...APPELLANTS

               (BY SRI SHANKAR GOUD.G., ADV.]

AND :
1.      INSTANT TRANSPORT
        SOLUTION PVT. LTD.,
        HOUSE No.72/2,
        KAPASHERA BIJWASAN ROAD
        NEAR BHARATH PETROL PUMP
        NEW DELHI-110037.

2.      THE BRANCH MANAGER
        NEW INDIA ASSURANCE CO. LTD.,
        BRANCH OFFICE, P.B. ROAD
        CHITRADURGA-577541.                   ...RESPONDENTS

          [BY SRI SANMATHI.E.I., ADV. FOR R-2;
 V/O DATED 04.01.2021, NOTICE TO R-1 IS DISPENSED WITH].

        THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT    AGAINST   THE   JUDGMENT     AND   AWARD   DATED
30.10.2017 PASSED IN MVC No.779/2016 ON THE FILE OF THE
II ADDITIONAL SENIOR CIVIL JUDGE & JMFC, CHITRADURGA,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

        THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, S. SUJATHA, J., DELIVERED THE FOLLOWING:
                         -4-


                    JUDGMENT

Both the insurer as well as the claimants have

preferred the appeals challenging the judgment and

award dated 30.10.2017 passed in MVC No.779/2016

on the file of the II Additional Senior Civil Judge and

JMFC, Chitradurga ['Tribunal' for short].

2. The claimants instituted the petition under

Section 166 of the Motor Vehicles Act, 1988 claiming

compensation for the death of Bheemesh in the road

traffic accident.

3. It was averred in the claim petition that on

04.05.2016 at about 9.30 p.m., when the deceased was

traveling in his motorcycle from Lakshmisagara village

to K.Ballekatte Gate as a rider, when he was taking U-

turn, at that time a lorry bearing registration No.HR-55-

T-7574 [offending vehicle] driven by its driver in a rash

and negligent manner has dashed to the hind portion of

the motorcycle. Due to which, he sustained fatal

injuries and died at the spot.

4. It was contended that the deceased was aged

about 30 years and was earning Rs.15,000/- per month

by doing mason work. Due to untimely death of the

deceased, the claimants are suffering loss of

dependency etc.,

5. After service of notice, the owner as well as

the insurer appeared through their respective counsel

and filed objections denying the petition averments. The

respondent No.1 - owner of the offending vehicle

contended that the offending vehicle was insured with

the respondent No.2 and the policy was in force as on

the date of accident. Hence, liability if any, has to be

discharged by the respondent No.2.

6. The defence set up by the insurer was that

the owner has violated the terms and conditions of the

policy by entrusting his lorry to a person who had no

valid and effective driving licence at the time of the

accident. The deceased was negligent in driving the

motorcycle; the compensation claimed by the petitioner

is exorbitant, however, the liability is subject to terms

and conditions of the policy. Accordingly, on these

grounds sought for dismissal of the petition.

7. On the basis of the pleadings, the following

issues were framed:

1. Whether the petitioners prove that, they are legal heirs of the deceased Bheemesh S/o Late Beerappa?

2. Whether the petitioners prove that, deceased Bheemesh S/o Late Beerappa died due to injuries sustained in the road traffic accident occurred on 04.05.2016 at about 9.30 p.m., near Kaxmisagara Gate NH-4 road, Chitradurga Taluk, due to rash and negligent driving of driver of lorry bearing Reg. No.HR- 55-T-7574 by its driver?

3. Whether the petitioners are entitled for compensation? If so, how much and from whom?

4. What order or award?

8. The widow of the deceased was examined as

PW1 and got marked Ex.P1 to P14. The appellant-

insurer got examined its Senior Assistant as RW-1 and

got marked Ex.R1 and R2.

9. On appreciation of oral and documentary

evidence, the Tribunal allowed the petition in part

holding that the claimants are entitled to compensation

of Rs.15,02,000/- with interest at 9% p.a., from the

date of filing the petition till its realization, fastening the

liability on the appellant-insurer to pay the

compensation within 30 days from the date of the order.

10. Being aggrieved, the insurer has preferred

MFA No.62/2018 challenging the negligence as well as

the quantum of compensation as exorbitant, whereas

the claimants have preferred MFA No.438/2018 seeking

enhancement of compensation contending that the

quantum of compensation awarded by the Tribunal is

inadequate.

11. Learned counsel for the appellant-insurer

argued that the Tribunal grossly erred in determining

the notional income of the deceased at Rs.8,000/- in the

absence of any material evidence. It was submitted that

the compensation awarded under the different heads is

excessive. Learned counsel submitted that the Tribunal

failed to appreciate the manner of accident in the

backdrop of the sketch at Ex.R2 which clearly

establishes that the accident has occurred in the middle

of the road and the deceased was driving his two

wheeler in the middle of the road. The burden of proving

the negligence of the driver of the offending vehicle has

not been discharged by the claimants to get

compensation. Learned counsel referring to the

application [I.A-1/2020] filed for amendment of the

appeal memorandum, submitted that there was

contributory negligence on the part of the deceased

which has not been properly appreciated by the

Tribunal while adjudicating the issue of negligence.

12. Per contra, learned counsel appearing for the

claimants argued that the police records would

manifestly make it clear that the accident in question

occurred only due to the sole negligence of the driver of

the offending vehicle. No contributory negligence could

be attributed on the part of the deceased having regard

to the material evidence on record. The Tribunal on

profuse analysis of the material evidence has rightly

held that the sole negligence of the driver of the

offending vehicle was the cause for the accident and the

same requires to be confirmed by this Court. It was

further argued that the quantum of compensation

- 10 -

awarded by the Tribunal is meager and the same

requires to be enhanced substantially.

13. Having heard the learned counsel for the

parties and perusing the records, the points that arise

for our consideration are:

1. Whether the Tribunal was justified in fixing the negligence on the part of the driver of the offending vehicle for the cause of the accident?

2. Whether the quantum of compensation awarded by the Tribunal is just and proper?

Re. Point No.1:

14. Ex.P1 to P4 and P6 - the police documents

as well as Ex.P9 - IMV report would indicate that the

Investigating Officer has conducted the investigation

and the charge sheet was filed against the driver of the

offending vehicle for the offences punishable under

Sections 279 and 304[A] of IPC. The burden of proving

the contributory negligence on the part of the deceased

- 11 -

shifts on the insurance company. It is trite that in order

to prove the contributory negligence, substantial

evidence is sine qua non inasmuch as whether the

deceased could have by exercise of reasonable care,

avoided the consequence of the accident. The negligent

act or omission of the deceased has to be proximate on

the immediate cause of death resulting from the

accidental injuries. Indeed such an act or omission on

the part of the deceased which materially contributed to

the accident has to be proved by tendering evidence.

The police records especially the spot sketch at Ex.R2

would indicate that the accident has occurred at the

intersection of the road when the deceased was

attempting to take a U-turn. In the absence material

evidence to demonstrate the negligence contributed by

the deceased, it cannot be held that there was omission

on the part of the deceased to take due care and he

contributed for the accident. It is well settled that in the

accident involving two vehicles of different category i.e.,

- 12 -

the heavier vehicle - lorry and the light motor vehicle -

motorcycle more care and caution has to be taken by

the driver of the heavier vehicle especially at the

intersection of the road where the possibility of vehicles

moving from different directions is probable.

15. Considering these aspects, on re-

appreciation of ocular and documentary evidence, we do

not find any flaw in the finding of the Tribunal in fixing

the sole negligence on the part of the driver of the

offending vehicle for causing the accident. Accordingly,

we dismiss the I.A-1/2020 filed by the appellant-

insurer.

Re. Point No.2:

16. The evidence on record would indicate that

the deceased was working as a mason. Though it was

averred that the deceased was earning Rs.20,000/-

p.m., in the absence of any cogent evidence to establish

the same, we deem it appropriate to determine the

- 13 -

income of the deceased as per the chart of the

Karnataka Legal Services Authority. In terms of the

same, we deem it appropriate to fix the monthly income

of the deceased at Rs.9,500/-. Adding 40% towards

future prospects of Rs.3,800/-, the total monthly

income of the deceased would be Rs.13,300/-. Applying

the multiplier of 16 since the deceased was aged about

30 years at the time of the accident, deducting 1/4th

towards personal and living expenses, the loss of

dependency would work out to Rs.19,15,200/- [13,300

x 12 x 16 x ¾].

17. In terms of the ruling of the Hon'ble Apex

Court in National Insurance Company Limited Vs.

Pranay Sethi and others ((2017)16 SCC 680) and New

India Assurance Company Limited V/s. Somwati

and Others 2020 [SCC ONLINE SC 720], the claimants

are entitled to compensation of Rs.1,90,000/- under the

conventional heads viz., Rs.40,000/- towards loss of

spousal consortium; Rs.80,000/- towards parental

- 14 -

consortium [Rs.40,000/- each to the child]; Rs.40,000/-

towards loss of filial consortium; Rs.15,000/- towards

funeral expenses and Rs.15,000/- towards loss of estate.

18. For the reasons aforesaid, the total

compensation awarded by the Tribunal is re-assessed

as under:

Sl.No.             Particulars             Amount [in Rs.]
  1.           Loss of dependency               19,15,200/-
          Loss of Parental Consortium
  2.                                                80,000/-
         [Rs.40,000/- each to the child]
  3.        Loss of Filial Consortium              40,000/-
  4.       Loss of Spousal Consortium              40,000/-
  5.              Loss of Estate                   15,000/-
  6.            Funeral expenses                   15,000/-
                   Total                        21,05,200/-

However, having regard to the fall in the rate of

interest in the banks and to maintain uniformity in the

order as this Court is consistently awarding interest at

the rate of 6% p.a., in identical circumstances, we deem

it appropriate to modify the rate of interest from 9% to

6% p.a. Accordingly, the appeal filed by the insurer is

allowed only as far as the interest is concerned.

- 15 -

Thus, the claimants shall be entitled to total

compensation of Rs.21,05,200/- with interest at the

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

till the date of realization.