Karnataka High Court
Reliance General Insurance ... vs Gangappa S/O. Chinnappa Saunshi on 4 August, 2022
Bench: H.P.Sandesh
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MFA No. 102868 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD
R
BENCH
DATED THIS THE 4TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 102868 OF
2014 (MV-D)
BETWEEN:
1. RELIANCE GENERAL INSURANCE
COMPANY LIMITED,
CTS #472-474, V.A. KALBURGI SQUARE,
DESAI CROSS, DESHPANDE NAGAR, HUBLI,
REPRESENTED BY THE AUTHORIZED SIGNATORY,
THE RELIANCE GENERAL INSURANCE
COMPANY LIMITED, BRANCH OFFICE,
CTS # 172/171, V.A. KALBURGI SQUARE,
DESAI CROSS, DESHPANDE NAGAR, HUBLI.
...APPELLANT
(BY SRI. S K KAYAKAMATH, ADVOCATE)
AND:
1. GANGAPPA S/O. CHINNAPPA SAUNSHI
AGE: 63 YEARS, OCC: RETIRED, R/O. BYAHATTI,
TALUK: HUBLI.
2. KAVTIA W/O. RAJALAKHAMANAGOUDA PATIL
AGE: 32 YEARS, OCC: SERVICE,
R/O. B. RALIKATTI, TALUK: HUBLI.
3. SANGEETA D/O. GANGAPPA SAUNSHI
AGE: 27 YEARS, OCC: STUDENT,
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MFA No. 102868 of 2014
R/O. BYAHATTI, TALUK: HUBLI.
4. SANTOSH S/O. GANGAPPA SAUNSHI
AGE: 23 YEARS, OCC: STUDENT,
R/O. BYAHATTI, TALUK: HUBLI
5. SHRIDEVI D/O. GANGAPPA SAUNSHI
AGE: 20 YEARS, OCC: STUDENT,
R/O. BYAHATTI, TALUK: HUBLI
6. SAVITA W/O. JAGADISH BILEBAL
AGE: 30 YEARS, OCC: HOUSEHOLD WORK
R/O. CHIKKANARTI, TALUK: KUNDAGL.
7. ASHFAQ S/O. DAWALSAB BEPARI
AGE: MAJOR, OCC: OWNER OF LORRY,
R/O. MYADAR ONI,
AT POST: KALAGHATAGI,
DIST: DHARWAD.
...RESPONDENTS
(BY SRI. S S BAWAKHAN, ADVOCATE FOR R1-R5,
NOTICES TO R6 & R7 SERVED)
THIS APPEAL IS FILED U/S 173(1) OF MV ACT 1988 AGAINST
THE JUDGMENT AND AWARD DATED 09.05.2014 PASSED IN MVC
NO.339/2012 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL
JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIM
TRIBUNAL HUBLI, AWARDING THE COMPENSATION OF
RS.5,91,600/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE
DATE OF PETITION TILL THE DATE OF REALIZATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR 'PRONOUNCEMENT OF JUDGMENT',
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 102868 of 2014
JUDGMENT
Though this appeal is listed for admission, with the
consent of both the parties, it is taken up for final
disposal.
2. The present appeal is filed by the insurance
company questioning the quantum of compensation
awarded in judgement and award passed in MVC
No.339/2012 on the file of I Additional Senior Civil Judge
and Additional MACT, Hubballi as well as not considering
the contributory negligence aspect.
3. Factual matrix of the case of the claimants
before the Tribunal is that on 12.04.2012 the Smt. Renuka
W/o Gangappa Saunshi was travelling in tempo towards
Hubballi to attend a marriage function and when the said
vehicle reached near Yamanur, at that time a lorry bearing
Reg.No.KA-25/C-19 came and dashed to the tempo from
opposite direction. As a result, the Renuka sustained
grievous injuries and immediately she was taken to PHC,
MFA No. 102868 of 2014
Navalgund, thereafter to KIMS Hospital, Hubballi and she
succumbed during the course of treatment on account of
accidental injuries. Hence, the claimants being the
dependants, laid a claim before the Tribunal.
4. In pursuance of the claim petition, notice was
ordered and respondent No.1 remained absent and
respondent No.2 was represented through counsel and
filed detailed statement of objections. The claimants in
order to substantiate their claim, have examined the
husband of deceased as PW.1 and also examined one
witness as PW.2 and got marked documents as Exs.P.1 to
P.6. On the other hand, the respondents have not led any
evidence.
5. The Tribunal after considering both the oral and
documentary evidence on record, allowed the claim
petition in part granting compensation of Rs.5,91,600/-
with interest at the rate of 6% p.a. against respondent
Nos.1 and 2.
MFA No. 102868 of 2014
6. Being aggrieved by the impugned judgment and
award, the present appeal is filed by the insurance
company contending that there is contributory negligence
on the part of the driver of the tempo in which the
deceased was travelling. Learned counsel appearing for
the insurance company also contended that the tempo has
been used for transporting the marriage party, as such the
charge sheet has been filed only against the driver of the
lorry. The Tribunal has swayed away by the charge sheet
and gave a finding to the effect that the accident has
occurred due to the negligence on the part of the driver of
the lorry alone, which is erroneous and hence it requires
interference since there is contributory negligence on the
part of the driver of the tempo also.
7. The other contention of the insurance company
is that the claim petition has been filed by the husband of
the deceased and major and married daughters of the
deceased. The claimant No.1 is a retired school teacher
and pensioner and major children cannot be called as
MFA No. 102868 of 2014
dependants upon their deceased parents. The Tribunal
instead of awarding compensation only under the head of
loss of estate, has awarded compensation under the head
of loss of dependency, which is erroneous.
8. The other contention of the insurance company
is that claimant No.1 is the husband of deceased who has
been examined as PW.1 and during his cross-examination
it is elicited that at the time of marriage he was aged
about 24-25 years and the age of his wife was 19 years.
That means the age gap between claimant No.1-husband
and deceased-wife was of six years and the accident has
occurred in the year 2012 and the witness has been
deposed in the year 2013. Witness has deposed in his
evidence that he was aged 64 years. If the said fact is
taken into consideration, the deceased was 57 years old as
on the date of accident. Hence, the multiplier would be 9
and not 13 as is adopted by the Tribunal.
9. Learned counsel for the appellant-insurance
company also in his argument relied upon the judgement
MFA No. 102868 of 2014
of the Hon'ble Apex Court in the case of Smt.Manjuri
Bera vs. The Oriental Insurance Company Limited
and Another passed in Civil Appeal No.1702/2007 dated
30.03.2007 and referring to this judgement, he would
submit that the married daughters are not dependents.
Counsel also relied upon the judgement of this Court
passed in MFA No.347/99 in the case of A.Manavalagan
vs. A.Krishnamurthy and Others, wherein also this
Court held about what would be the position if the
claimant legal heir is not a dependent and held that
question of awarding any amount under the head loss of
dependency would not arise as there was no financial
dependency.
10. Learned counsel referring to these two
judgements, would vehemently contend that the Tribunal
failed to take note of the fact that the married daughters
and major children are not dependants and hence they are
not entitled for compensation and hence, it requires
interference of this Court.
MFA No. 102868 of 2014
11. Further, learned counsel also contends that the
deduction made by the Tribunal at 1/5th is erroneous and
it ought to have been 1/4th considering the number of
dependants and hence it requires interference of this
Court.
12. Per contra, learned counsel for appearing for
the claimants would vehemently contend that the married
daughters are also entitled for compensation. In support of
his contention, he relied upon the judgement of the
Hon'ble Apex Court reported in MANU/SC/0028/2020 in
the case of National Insurance Company Limited vs.
Birender and Others and brought to the notice of this
Court that Hon'ble Apex Court in similar circumstances
held that even major legal representatives of deceased
have a right to apply for compensation and even major
married and earning sons of deceased being legal
representatives have a right to apply for compensation
and it would be the bounden duty of the Tribunal to
consider the application irrespective of the fact whether
MFA No. 102868 of 2014
the concerned legal representative was fully dependent on
the deceased and not to limit the claim towards
conventional heads only. Hence, the very contention of the
insurance company cannot be accepted.
13. Counsel also relied upon the judgement of the
Hon'ble Apex Court reported in (1987) 3 SCC 234 in the
case of Gujarat State Road Transport Corporation,
Ahmedabad vs. Ramanbhai Prabhatbhai and
Another, wherein the Apex Court held that brother of a
person who dies in any motor vehicle accident is entitled
to maintain a claim petition under Section 110-A of the
Motor Vehicles Act if he is the legal representative of the
deceased. It is further held that in an Indian family
brothers, sisters and brothers' children and sometimes
foster children live together and they are dependent upon
the bread-winner of the family.
14. Counsel also relied on the judgement of Kerala
High Court reported in ICL 2021 (8) Ker. 893 in the case
of United India Insurance vs. Shalumol dated
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MFA No. 102868 of 2014
25.08.2021, wherein it is discussed that in a petition under
Section 166 of Motor Vehicles Act whether dependency is a
relevant criterion in a claim petition or whether the
parents and married daughters entitled to claim
compensation as dependants of the deceased and held
that it would be preposterous to accept the contention of
the appellant that a 25 year old daughter would be no
longer dependent on 49 year old mother because she was
given in marriage. The bond between the mother and a
daughter is eternal, no matter how she old may be, some
times a girl just needs her mom. Even the dependency is a
relevant criterion to claim compensation for loss of
dependency, it does not mean financial dependency is the
'ark of covenant'. Dependency includes gratuitous service
dependency, physical dependency, emotional dependency,
psychological dependency, and so on and so forth, which
can never be equated in terms of the money.
15. Further, learned counsel would also contend
that the insurance company did not choose to examine
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MFA No. 102868 of 2014
any witness and now cannot contend that there was
contributory negligence and hence, the appeal is liable to
be dismissed.
16. Having heard the learned counsel for the parties
and on perusal of the material on record, the following
points would arise for consideration:
i. Whether the Tribunal has committed error in
not considering contributory negligence as
contended by the insurance company?
ii. Whether the Tribunal has committed error in
considering the major and married daughters
of the deceased as dependants?
iii. Whether the Tribunal has committed any
error in awarding higher compensation as
contended in the appeal?
iv. What order?
17. Regarding Point No.1: The main contention of
the insurance company is that the tempo in which the
deceased was travelling is a goods vehicle and she had
been to attend the marriage and while returning to her
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MFA No. 102868 of 2014
native the accident has occurred in the curve and hence,
contends that there is contributory negligence on the part
of the driver of the tempo in which the deceased was
travelling and hence the Tribunal ought to have taken
contributory negligence aspect into consideration. In order
to substantiate this contention first of all insurance
company has not examined the driver of the offending
vehicle, who is the right person to speak with regard to
negligence and insurance company also not even
examined the official witness of the insurance company to
substantiate the said contention.
18. In the cross-examination of PW.1 except
making the suggestion that the accident was occurred on
account of negligence of the driver of the vehicle in which
the deceased was travelling, nothing is elicited regarding
negligence is concerned. When the insurance company has
failed to elicit any negligence on the part of the driver of
the tempo in the evidence of PW.1 and also in the cross-
examination of PW.2, question of Tribunal coming to the
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MFA No. 102868 of 2014
conclusion of contributory negligence does not arise. Apart
from that, either the investigating officer or the driver of
the offending vehicle has been examined and I have
already pointed out that the right person to speak with
regard to the negligence on the part of the driver of the
vehicle in which the deceased was proceeding, nothing is
on record. Therefore, unless there is cogent evidence
before the Court with regard to negligence, question of
considering contributory negligence does not arise.
19. Apart from that, the claimants have relied upon
the FIR which is marked as Ex.P.1, wherein specific
allegation is made against the driver of the offending
vehicle and charge sheet is also filed against him which is
marked as Ex.P.3 and both oral and documentary evidence
is against the diver of the offending vehicle. When such
being the case and in the absence of any contra evidence
against the driver of the vehicle in which the deceased was
travelling, I do not find any force in the contention of the
learned counsel for insurance company and the contention
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MFA No. 102868 of 2014
that the deceased was travelling in a goods tempo cannot
be a ground to fasten the liability on the other vehicle
owner and insurance company since there is no material to
invoke contributory negligence. The Court has to see
whether the driver has contributed to an accident and the
same is not found in the case on hand. Hence, I answer
point No.1 in negative.
20. Regarding point Nos.2 & 3: Now coming to
the other two grounds which have been urged by the
insurance company are that the married daughters of the
deceased are not the dependants while claiming loss of
dependency and other contention is that in the cross-
examination of PW.1 it is elicited that the age difference
between claimant No.1-husband and deceased-wife is only
six years and he categorically admits that he was 64 years
when he was examined in the year 2013.
21. In support of contention of the appellant,
counsel has relied upon the judgement in the case of
Manavalagan supra. The said judgement is delivered on
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MFA No. 102868 of 2014
17.04.2004. No doubt, this Court held that loss of
dependency to be taken while quantifying the
compensation on the head of loss of dependency. Per
contra, counsel for the claimants relied upon the
judgement in the case of Birender supra and the Apex
Court decided the said matter on 13.01.2020, wherein
categorically held that it is settled by now that legal
representatives of the deceased have a right to apply for
compensation. It is further observed that even the major
married and earning sons of the deceased being legal
representatives have a right to apply for compensation
and it would it would be the bounden duty of the Tribunal
to consider the application irrespective of the fact whether
the concerned legal representative was fully dependent on
the deceased and not to limit the claim towards
conventional heads only. In view of the principles laid
donw in Birender's case, judgement in Manavalagan's
case of this Court is not applicable to the case on hand as
contended by learned counsel for insurance company.
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MFA No. 102868 of 2014
22. No doubt learned counsel for insurance
company also relied upon judgement in Manjuri Bera
decided on 30.03.2007, wherein the Apex Court discussed
earlier the contention taken by married daughter and the
same was rejected as she is not dependent. But in view of
recent judgement in Birender, the Apex Court discussed
in detail regarding the word 'legal representatives of the
deceased' and considering an application under Section
166(1) of Motor Vehicles Act and the judgement in
Manjuri Bera is also taken note of by the Apex Court and
held that even the major married and earning sons of the
deceased being legal representatives have a right to apply
for compensation irrespective of the fact whether legal
representative was fully dependant on the deceased and
not to limit the claim towards conventional heads only.
Hence, the said contention of insurance company cannot
be accepted in view of Birender's case.
23. The Apex Court in the said judgement further
held even married sons are also entitled for compensation.
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MFA No. 102868 of 2014
This Court also cannot make any discrimination whether
they are married sons or married daughters and hence,
very contention that married daughters of deceased are
not entitled for compensation cannot be accepted and the
Court has to take note of the rationale behind in coming to
the conclusion of even married sons and major sons are
eligible to claim compensation and hence the married
daughters also entitle for compensation on all the heads
and not to limit only for conventional heads.
24. Counsel for respondents/claimants also relied
upon a judgement of Kerala High Court in the case of
Shalumol supra. In paragraph Nos.50 and 51 of the said
judgement, Kerala High Court also held that bond between
the mother and daughter is eternal and further observed
that even if the dependency is relevant criterion to claim
compensation for loss of dependency, it does not mean
financial dependency is the 'ark of the covenant'.
Dependency includes gratuitous service dependency,
physical dependency, emotional dependency,
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MFA No. 102868 of 2014
psychological dependency so on and so forth, which can
never be equated in terms of the money.
25. Having considered the principles laid down in
the judgements referred to supra, this Court has taken
note of recent judgement of the Apex Court in Birender,
wherein it is held that even married sons are entitled for
compensation not only on conventional heads but also on
loss of dependency. Hence, the very contention of the
appellant-insurance company cannot be accepted.
26. This Court also would like to rely upon the
judgement of the Division Bench of this Court in MFA
No.118/2018 dated 26.03.2021, wherein also this Court
by relying upon the judgement in Birender, held that
even married sons are also entitled for compensation not
only on conventional head but also on loss of dependency.
27. The other contention of the insurance company
is that 13 multiplier adopted by the Tribunal is erroneous
and in order to substantiate the said contention except
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MFA No. 102868 of 2014
eliciting answers from cross-examination of PW.1 that
deceased might have six years younger to him, nothing is
on record and the Court has to take note of the age of the
deceased based on documentary evidence. On perusal of
material on record, the claimants have relied on Ex.P.4-
postmortem report, wherein age of the deceased is
mentioned as 48 years and in order to controvert the said
age, respondents have not placed any material before the
Tribunal and also not even examined any witnesses.
28. No doubt I have already pointed out that an
answer is elicited from the mouth of PW.1 regarding age
difference and when the documentary evidence is available
before the Court, the documentary evidence prevails
against oral evidence and doctor who conducted
postmortem has categorically mentioned the age of
deceased as 48 years and hence, very contention of
insurance company that Tribunal ought to have taken 9
multiplier and not 13 cannot be accepted.
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MFA No. 102868 of 2014
29. The Tribunal based on the Ex.P.4-postmortem
report and while giving reasons also in the order it is
mentioned that in order to prove the age of the deceased,
the claimants have produced Ex.P.4 which shows the age
as 48 years and also taken note of charge sheet which is
marked as Ex.P.3, wherein also age of the deceased is
mentioned as 48 years as on the date of accident. Hence,
the Tribunal has taken the age of deceased as 48 years as
on the date of accident and to rebut the said material, no
other evidence has been placed before the Tribunal by the
respondents. Hence, the said contention also cannot be
accepted.
30. It is also important to note that while assessing
loss of dependency, the Tribunal has taken note of Ex.P.6
which is warranty card regarding purchase of durby sewing
machine. The Tribunal has taken the income of the
deceased as Rs.4,500/- and deducted 1/5th of the income
towards personal expenses considering husband,
daughters and also sons as dependants and the very
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MFA No. 102868 of 2014
contention that the Tribunal ought to have deducted 1/4th
of the income cannot be accepted. Apart from that future
prospects also has not been considered by the Tribunal
while calculating loss of dependency and no appeal is filed
by the claimants as against the quantum of compensation
and having taken note of this aspect into consideration, I
do not find any force in the contention of learned counsel
for insurance company that exorbitant compensation has
been awarded by the Tribunal. Hence, I answer point
Nos.2 and 3 in the negative.
31. Regarding point No.4: In view of the
discussions made above, I pass the following:
ORDER
Appeal is dismissed. No cost.
Sd/-
JUDGE
SH
