The Manager vs B Shivakumar
2021 Latest Caselaw 579 Kant

                               1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 11TH DAY OF JANUARY 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                              AND

     THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY

                  M.F.A. NO.1688 OF 2015
                              C/W
              M.F.A. NO.2056 OF 2016 (MV-D)
M.F.A. NO.1688 OF 2015
BETWEEN:

THE MANAGER
SHRIRAM GENERAL INS. CO. LTD.,
NO.8/5, 3RD FLOOR
MONARCH COMPLEX
INFANTRY ROAD
BANGALORE-01
NOW REP. BY THE LEGAL MANAGER
SHRIRAM GENERAL INS. CO. LTD.,
NO.5/4, 3RD FLOOR, S.V. ARCADE
BELEKALHALLI MAIN ROAD
OPP. BANNARUGHATTA ROAD
LIMB POST, BANGALORE-76.
                                              ... APPELLANT
(BY MR. B. PRADEEP, ADV.,)

AND:

1.     B. SHIVAKUMAR
       S/O LATE BASAPPA
       AGED ABOUT 45 YEARS.
                              2



2.   MASTER ABISHEIK
     S/O SHIVAKUMAR
     NOW AGED ABOUT 16 YEARS.

3.   KUMARI DIVYA
     D/O SHIVAKUMAR
     NOW AGED ABOUT 16 YEARS.

4.   KUMARI CHANDANA @ PARVATHI
     D/O SHIVAKUMAR
     NOW AGED ABOUT 10 YEARS.

     RESPONDENT NO.2 TO 4 ARE MINORS
     REP BY THEIR FATHER AS NATURAL GUARDIAN
     R/AT VINAYAKA NAGARA, 7TH CROSS
     RAMANAGARA.

5.   SMT. PUTTAMMA
     W/O GANGADHARAIAH @ RANGAIAH
     MAJOR, DRUSTESWARA EXTENSION
     CHELUR POST, GUBBI TALUK
     TUMKUR DISTRICT.
                                            ... RESPONDENTS
(BY MR. K. SHANTHARAJ, ADV., FOR R1 TO R4
           R5 NOTICE HELD SUFFICIENT)

                            ---

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.03.2014 PASSED IN MVC NO.519/2010 ON THE FILE OF THE PRINCIPAL SENIOR JUDTE & CJM, ADDITIONAL MACT, RAMANAGARA, AWARDING COMPENSATION OF RS.4,85,800/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

M.F.A. NO.2056 OF 2016 BETWEEN:

1. B. SHIVAKUMAR S/O LATE BASAPPA AGED ABOUT 46 YEARS.

2. MASTER ABISHEIK

S/O B SHIVAKUMAR AGED ABOUT 17 YEARS.

3. KUM. DIVYA D/O B SHIVAKUMAR AGED ABOUT 14 YEARS.

4. KUM. CHANDANA @ PARVATHI D/O B SHIVAKUMAR AGED ABOUT 11 YEARS.

APPELLANTS 2 TO 4 ARE MINORS REPRESENTED BY NATURAL GUARDIAN AND FATHER FIRST APPELLANT

ALL ARE RESIDING AT VINAYAKANAGAR, 7TH CROSS RAMANAGARA-562159.

... APPELLANTS (BY MR. SHANTHARAJ K, ADV.,)

AND:

1. SMT. PUTTAMMA W/O GANGADHARAIAH @ RANGAIAH AGE MAJOR RESIDING AT DRUSTESWARA EXTENSION, CHELUR POST GUBBI TALUK TUMKUR DISTRICT-572216.

2. SRIRAM GENERAL INSURANCE COMPANY LTD REPRESENTED BY ITS MANAGER NO.8/5, 3RD FLOOR MONARCH CHURCH INFANTRY ROAD BANGALORE 560001.

... RESPONDENTS (BY MR. B. PRADEEP, ADV., FOR R2 V/O DTD:18.03.2016 NOTICE TO R1 IS D/W)

---

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.03.2014 PASSED IN MVC NO.519/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM AT RAMANAGARA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

COMMON JUDGMENT

M.F.A.No.2056/2016 has been filed by the

claimants seeking enhancement of the amount of

compensation, whereas, M.F.A.No.1688/2019 has been

filed by the insurance company under Section 173(1) of

the Motor Vehicles Act, 1988 (hereinafter referred to as

'the Act', for short) against the judgment dated

03.03.2014 passed by the Motor Accident Claims

Tribunal. Since, both the appeals arise out of the same

accident and from the same judgment, they were heard

together and are being decided by this common

judgment.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 04.02.2010, the deceased

Nandamma was standing by the side of the road. At that

time, a Tata 407 vehicle (hereinafter referred to as 'the

offending vehicle' for short) bearing Registration No.

KA-28-4800, which was being driven by its driver in a

rash and negligent manner, came from the opposite

direction and dashed against the deceased. As a result

of the aforesaid accident, the deceased sustained

grievous injuries and succumbed to the same.

3. The claimants thereupon filed a petition

under Section 166 of the Act claiming compensation on

the ground that the deceased was aged about 35 years

at the time of accident and was engaged in tailoring

work and was earning a sum of Rs.10,000/- per month.

It was further pleaded that accident took place solely on

account of rash and negligent driving of the offending

vehicle by its driver. The claimants claimed

compensation to the tune of Rs.20,00,000/- along with

interest.

4. The insurance company filed written

statement, in which the mode and manner of the

accident was denied. It was also pleaded that the driver

of the offending vehicle did not hold a valid and effective

driving license at the time of accident and that the

liability of the insurance company, if any, would be

subject to the terms and conditions of the insurance

policy. 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.

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

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant No.1 examined

himself as PW-1 and got exhibited documents namely

Ex.P1 to Ex.P12. The respondents neither adduced any

oral evidence nor any documentary evidence. 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. It

was further held, that as a result of aforesaid accident,

the deceased sustained injuries and succumbed to the

same. The Tribunal further held that the claimants are

entitled to a compensation of Rs.4,85,800/- along with

interest at the rate of 6% per annum. Being aggrieved,

these appeals have been filed.

6. Learned counsel for the claimants submitted

that the Tribunal grossly erred in assessing the income

of the claimant as Rs.3,600/- per month and the same

ought to have been assessed at Rs.10,000/- per month

in view of the decision of the Supreme Court in

KEERTHI AND ANR. VS. ORIENTAL INSURANCE CO

LTD 2021 SCC Online SC 3. It is further submitted

that the Tribunal has erred in not making an addition to

the tune of 40% to the income of the deceased on

account of future prospects in view of the law laid down

by the Supreme Court in 'NATIONAL INSURANCE

COMPANY LIMITED Vs. PRANAY SETHI AND

OTHERS' AIR 2017 SC 5157. It is also submitted that

the Tribunal erred in deducting 1/3rd from the income of

the deceased towards personal expenses when the

number of dependents on the income of the deceased is

4. It is also 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.

7. On the other hand, learned counsel for the

insurance company submitted that the Tribunal has not

dealt with issue with regard to the driver of the

offending vehicle, not possessing a valid and effective

permit to ply the offending vehicle on the route where

the alleged accident occurred and that in view of such

breach of policy conditions by the insured, the insurance

company be directed to pay the compensation at the

first instance with liberty to recover the same from the

owner of the offending vehicle in view of full bench

decision of this court in NEW INDIA ASSURANCE CO.

LTD. VS. YALLAVVA 2020 (2) AKR 484. It is further

submitted that the no evidence has been adduced by the

claimant to prove the income of the deceased before the

Tribunal and that the Tribunal has rightly taken the

income of the deceased notionally at Rs.3,600/- per

month. It is further submitted that the compensation

granted by the Tribunal is just and proper and does not

call for any interference on the aforesaid ground.

8. We have considered the submissions made

by learned counsel for the parties and have perused the

record. It is well settled in law that the burden to prove

the defenses raised by the insurer under Section 149(2)

of the Act, is upon the insurer alone. The insurer, must

by leading evidence, has to prove that the breach of

policy conditions by the insured is a fundamental breach

which contributed to the occurrence of the accident in

order to avoid its liability to pay the compensation.(SEE:

SHAMANNA AND ORS. VS. THE DIVISIONAL

MANAGER, THE ORIENTAL INSURANCE CO. LTD.

AND ORS. AIR 2018 SC 3726 AND NATIONAL

INSURANCE CO. LTD. V. SWARAN SINGH AND ORS.

(2004) 3 SCC 297). In the instant case, the Tribunal

has fastened the liability to pay the compensation upon

the insurance company on the ground that the insurance

company has accepted the issuance of policy in respect

of the offending vehicle. It is pertinent to note here, that

the insurance company has neither produced any oral

nor any documentary evidence to prove that the

offending vehicle did not have any valid and effective

permit to ply the route. Therefore, the insurance

company cannot be absolved of the liability to pay the

compensation.

9. Now, we may advert to the quantum of

compensation. Admittedly, the claimants have not

produced any evidence with regard to the income of the

deceased. Therefore, the income of the deceased is to

be assessed as per the guidelines issued by the

Karnataka Legal Services Authority. Since, accident is of

the year 2010, notional income of the deceased is

assessed at Rs.5,500/- per month.

10. In view of the law laid down by the

Constitution Bench of the Supreme Court in 'NATIONAL

INSURANCE COMPANY LIMITED Vs. PRANAY SETHI

AND OTHERS' AIR 2017 SC 5157, 40% of the amount

has to be added on account of future prospects. Thus,

the monthly income comes to Rs.7,700/-. Since, the

number of dependents is 4, therefore, 1/4th of the

amount has to be deducted towards personal expenses

and therefore, the monthly dependency comes to

Rs.5,775/-. Taking into account the age of the deceased

which was 35 years at the time of accident, the

multiplier of '16' has to be adopted. Therefore, the

claimants are held entitled to (Rs.5,775x12x16) i.e.,

Rs.11,08,800/- 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.1,60,000/-. 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.15,43,667/-. Since the accident is of the year 2010,

the prevailing rate of interest for the year 2010 in

respect of fixed deposits for one year in nationalized

banks being 6%, the aforesaid amounts of compensation

shall carry interest at the rate of 6% from the date of

filing of the petition till the realization of the amount of

compensation. The amount in deposit, if any, shall be

transmitted to the Tribunal for disbursement to the

plaintiffs. To the aforesaid extent, the judgment passed

by the Claims Tribunal is modified.

Accordingly, the appeals are disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

ss