M/S. Sbi General Insurance Co. Ltd vs Smt. Kurubara Varalakshmi @ G ...
2022 Latest Caselaw 1748 Kant

         IN THE HIGH COURT OF KARNATAKA,
                  DHARWAD BENCH

       DATED THIS THE 04TH DAY OF FEBRUARY 2022

                       PRESENT

        THE HON'BLE MR. JUSTICE S.G. PANDIT

                         AND

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

               MFA No.103749/2018 (MV)

BETWEEN:

M/S. SBI GENERAL INSURANCE
COMPANY LIMITED, BY ITS MANAGER,
KALBURGI HALMARK, DESHPANDE NAGAR,
PINTO ROAD, DESAI CROSS,
BESIDES HINDUSING BANK,
HUBBALLI-580028.
NOW REPRESENTED BY ITS
AUTHORISED SIGNATORY.
                                             ...APPELLANT
(BY SRI. SUBHAS J BADDI, ADVOCATE)

AND

1.    SMT. KURUBARA VARALAKSHMI
      @ G. VARALAKSHMI
      W/O. LATE SRI KURUBA KUBERAPPA
      @ G KUBERAPPA,
      AGED ABOUT 38 YEARS, OCC: HOUSEWIFE,

2.    SMT. NAGAMMA D/O. LATE KURUBA KUBERAPPA
      @ G KEBERAPPA,
      AGED ABOUT 23 YEARS, OCC: STUDENT,

3.    MR. KURUBA SHIVAPPA @ G SHIVAPPA
      S/O. LATE KURUBA
                           2



     [email protected] G KEBERAPPA,
     AGED ABOUT 21 YEARS, OCC: STUDENT,

4.   KURUBA LOKESH @
     G. LIKES S/O. LATE KURUBA
     KUBERAPPA @ G. KEBERAPPA,
     AGED ABOUT 20 YEARS, OCC: STUDENT,

     ALL ARE R/O. LINGAMMANAHALLI VILLAGE,
     D. HIREHAL MANDAL, RAYADURGA TALUK,
     NOW R/O. DOOR NO. 22, M. K. NAGAR,
     NEAR FIRE STATION, BALLARI - 583 104.

5.   SHRI B. B. GOVINDA GOUDA S/O. BASAVARAJU
     AGE:24 YEARS, OCC: DRIVER,
     R/O. #23, H BHAIRAPURA VILLAGE,
     HERAGU POST, DUDDA TALUKA,
     HASSAN - 573 118.

6.   SMT. HANUMANTHAMMA,
     AGE: ABOUT 47 YEARS,
     INSURANCE POLICYHOLDER OF THE LORRY
     BEARING NO KA-52-6116, R/O. NO.159,
     ARISHINAKUNTE, NELAMANGALA, BENGALURU,
     BENGALURU RURAL DISTRICT - 562 123.

7.    SRI BASAVARAJU G. G. S/O. GANGARUDRAIAH,
      AGE ABOUT 42 YEARS,
      R/O. BASAVESHWARA NAGAR,
      ARISHINAKUNTE, NELAMANGALA TALUK,
      BENGALURU RURAL DISTRICT - 562 123.
                                         ...RESPONDENTS
(BY SRI.S. M. KALWAD, ADVOCATE FOR R1-4,
 NOTICE TO R5 SERVED,
 NOTICE TO R6 & 7 DISPENSED WITH)

      THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT 1988 PRAYING TO SET ASIDE THE
JUDGEMENT AND AWARD DATED 09.08.2018, PASSED IN
M.V.C.NO.863/2016 ON THE FILE OF THE III MOTOR ACCIDENT
CLAIMS TRIBUNAL, BALLARI AND CONSEQUENTLY ALLOW THE
M.V.C.NO.863/2016, IN THE INTEREST OF JUSTICE AND
EQUITY.
                                    3



     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT,   COMING    ON  FOR   'PRONOUNCEMENT   OF
JUDGMENT', THIS DAY, ANANT RAMANATH HEGDE J.,
DELIVERED THE FOLLOWING:


                            JUDGMENT

a. Whether Tribunals under the Motor Vehicles Act, are bound to deduct monitory benefits flowing from the contract of personal insurance covering the loss arising out of motor vehicle accidents while awarding the compensation under the Motor vehicles Act 1988, in a third party claim?

b. Whether in the appeal filed by the insurer praying for reduction of compensation awarded by the Claims Tribunal, Court can enhance the compensation in favour of claimants in the absence of challenge to the disallowed claim in favour of claimants?

The above said questions in addition to the question

relating to contributory negligence and quantum of

compensation arise for consideration in the present appeal

filed by the insurer, wherein the insurer has questioned the

quantum of compensation awarded in favour of the

claimants.

2. The answer to question (a) is in the negative

i.e. to say, the monetary benefits flowing from personal

accidents coverage cannot be deducted in the

compensation awarded by the Claims Tribunal.

3. The answer to question (b) is in the affirmative

i.e. to say, the Court can enhance the compensation in

favour of the claimant in the appeal filed by the insurer

challenging quantum of compensation.

4. Factual background:

4.1 The unfortunate death of Kurubara Kuberappa

@ G.Kuberappa occurred on account of a collision between

lorry bearing registration No.KA-52/6116 and Hero Honda

Splendor on which Kurubara Kuberappa was proceeding.

The dependants of the deceased namely, his wife,

daughter and two sons filed a claim petition under Section

166 of the Motor Vehicles Act in MVC No.863/2016 on the

file of the III Motor Accident Claims Tribunal, Ballari with a

prayer to award compensation of Rs.44,80,000.00.

4.2 The petition is allowed in part awarding

compensation of Rs.24,37,500.00 along with interest at

the rate of 9% per annum. The compensation awarded is

apportioned in the ratio of 50:20:15:15 in favour of

petitioners No.1 to 4, respectively.

5. Respondent No.3-insurer being aggrieved by

the award of compensation is in appeal. Learned counsel

for the insurer has raised the following contentions in

support of his appeal:

(a) The rider of the bike who died in the accident is solely responsible for the accident;

(b) There was no negligence on the part of the driver of the lorry in causing the accident;

(c) The rider of the bike had no valid and effective licence to ride the bike;

(d) The monthly income of the deceased at Rs.15,000.00 assessed by the Tribunal is on the higher side and without any basis.

(e) 25% escalation in income while calculating loss towards future prospects is without any justification;

(f) In the absence of acceptable proof relating to the age of the deceased, the Tribunal committed an error in applying a multiplier of 14 and a multiplier of 13 should have been adopted;

(g) Petitioners No.2 to 4 were not dependent on the deceased and the Tribunal should have deducted 50% towards the personal expenditure of the deceased instead of detecting 1/4th;

(h) Award of interest at the rate of 9% per annum is on the higher side.

6. In addition to the above grounds, it is also

urged that the claimants have received Rs.90,000.00 from

the Banker of the deceased as compensation payable on

account of the policy of insurance with the banker and

prayed for deduction of Rs.90,000.00 from the

compensation to be determined by this Court.

7. Learned counsel appearing for the

respondents/claimants defending the judgement and

award passed by the Tribunal would raise the following

contentions.

7.1 The compensation paid to the

dependents in terms of the personal accident

cover attached to the bank account of the

deceased cannot be deducted from the

compensation payable under the provisions of

the Motor Vehicles Act, 1988.

7.2 The award passed by the Tribunal

denying the compensation in favour of children

of the deceased under the head of the

consortium is impermissible and children of the

deceased are entitled to Rs.40,000.00 each

towards consortium even though there is no

formal appeal filed by the claimants.

8. We have perused the records and gone

through the judgement and award passed by the Tribunal.

9. As far as the contention of the learned counsel

for the appellant, Sri. Subhas J Baddi relating to

contributory negligence, it is noticed that the Tribunal has

placed reliance on the charge sheet filed by the police. As

per the charge sheet, respondent No.1-driver is solely

responsible for the accident in question. The claim of the

insurer that the deceased who was riding the bike is

responsible for the accident is not supported by any

rebuttal evidence to rebut the presumption flowing from

the charge sheet at Ex.P.5. The tribunal in the absence of

any rebuttal evidence has given primacy to the charge

sheet and concluded that the accident in question has

occurred on account of rash and negligent driving of the

driver of the lorry. Thus, this Court is not persuaded to

take a different view from the view taken by the Tribunal

on the question of negligence.

10. As far as the contention of the appellant

insurer that the income of Rs.15,000.00 taken by the

Tribunal is on the higher side, this Court has gone through

the judgement of the Tribunal relating to the income of the

deceased. The Tribunal in the impugned judgement at

paragraph No.22 has taken his income at Rs.15,000.00 per

month. The claimants claimed the deceased to be an

agriculturist. The Tribunal has recorded a finding that 6.38

acres of land stood in the name of the deceased and it is

also the finding of the Tribunal that the land is dry.

However, no document is produced to show the income of

the deceased. In the absence of any proof relating to the

income of the deceased the chart prepared by the

Karnataka State Legal Services Authority would be a guide

to assess the income of the deceased. The accident is of

the year 2016. In terms of the chart referred above, the

income of the deceased even in the absence of any proof

would be Rs.8,750.00 per month. However, in this case, it

is to be noted that the deceased was holding 6.38 acres of

dry land. The land is still available for the dependants.

Thus, there is no loss of income as such from the land held

by the deceased. Nevertheless, this Court has to take note

of the fact that the deceased would have contributed his

labour to cultivate the land and on account of his death the

contribution towards labour is not available and that

amounts to pecuniary loss. Thus, this Court is of the view

that the income of the deceased should be taken at

Rs.12,000.00 per month. And the income taken at

Rs.15,000.00 per month by the Tribunal needs to be

interfered to the said extent.

11. The Tribunal has taken the age of the

deceased at 42. The insurer would urge that the age of the

deceased was 48. The birth certificate or any other

document to reveal the exact age of the deceased is not

produced before the Court. The postmortem report would

indicate that the deceased was aged 42 years. In the

absence of any other material to show that the deceased

was aged 48, this Court cannot find fault with the finding

of the Tribunal in taking the age of the deceased at 42.

The multiplier to be adopted in this case is '14' and the

same has been adopted by the Tribunal. The records would

also indicate that the deceased is survived by four

dependants. Thus, 1/4th is to be deducted towards the

personal expenditure of the deceased and considering his

age, 25% is to be added to the income assessed, towards

future prospects. Thus the loss of dependency would be,

Rs.12,000.00 (income per month) + Rs.3,000.00 (25% towards future prospects) = Rs.15,000.00

Rs.15,000 - 3,750 (1/4th deduction towards personal expenditure) = Rs.11,250 x 12 (months) x 14 (multiplier) = Rs.18,90,000.00

12. The contention relating to licence to ride the

vehicle not being possessed by the deceased is again not

established by the insurer. Even otherwise, not possessing

a driving licence itself would not constitute contributory

negligence in the absence of evidence to prove the

contributory negligence. Thus, the contention of the

insurer relating to contributory negligence has to be

rejected.

13. The Tribunal has awarded Rs.45,000.00

towards loss of consortium to wife and Rs.15,000.00 is

awarded under the head of loss of love and affection and

Rs.15,000.00 is awarded towards transportation of the

dead body and funeral expenses. The Tribunal has not

awarded compensation under the head of loss of estate

and also not awarded compensation on the head of loss of

consortium in favour of 3 children of the deceased. No

doubt the claimants have not filed any appeal against

rejection or reduction of a claim under the above-said

heads. However, in terms of the ratio laid down by the

Hon'ble Apex Court in Magma General Insurance

Company Limited Vs. Nanu Ram Alias Chuhru Ram

and Others reported in (2018) 18 SCC 130, the Tribunal

was bound to pass the award under the above-said heads

to the extent mentioned in the above-said judgement. This

Court is not helpless to award just compensation under

those heads in an appeal filed by the insurer seeking

reduction of compensation. The Motor Vehicles Act, 1988 is

benevolent legislation. The Courts and Tribunals while

dealing with the cases claiming compensation under the

Motor Vehicles Act, 1988, should also have a benevolent

approach to award just compensation to the victims of the

accident. Thus, even in cases where the appeal is before

the Court seeking reduction of compensation, in case the

Court finds that the compensation awarded is on the lower

side, especially on conventional heads, where the

compensation is to be awarded as per the fixed-rate

determined in the binding judgements of the Apex Court,

the Court dealing with appeal for reduction of

compensation can certainly award just compensation

applicable in terms of binding judgements of the Apex

Court notwithstanding there is no appeal or cross-objection

by the claimants. At the end of the day what ultimately

matters is the award for just compensation to the

dependents. This Court in the case of New India

Assurance Company Limited vs. Basappa and Others

[ILR 2021 KAR 1101 delivered by M.Nagaprasanna J]

has considered the position of law in this behalf, with

reference to various pronouncements of the Apex Court as

well as this Court, has held that Order 41 Rule 33 of Code

of Civil Procedure can be invoked to pass appropriate

award in favour of respondents in the appeal, even in the

absence of any appeal against the award by the

respondents.

14. Thus, the children of the deceased namely,

claimants No.2 to 4 before the Tribunal are entitled to

compensation of Rs.40,000.00 each under the head loss of

consortium. The claimant No.1-wife is awarded

Rs.45,000.00 under the head loss of consortium i.e.

modified and reduced to Rs.40,000.00 in terms of the ratio

laid down in National Insurance Company Limited Vs.

Pranay Sethi and Others reported in (2017) 16 SCC

680. Hence, the compensation payable would be,

Heads Amount in (Rs.) Loss of dependency 18,90,000.00 Loss of consortium to 1,60,000.00 claimants (Rs.40,000 x 4) Loss of love and affection 15,000.00 For transportation of dead 15,000.00 body and funeral expenditure Total 20,80,000.00

15. Next question which requires consideration is

whether Rs.90,000.00 is required to be deducted from the

compensation awarded by the Tribunal on account of the

fact that the dependants have received Rs.90,000.00 from

their banker on account of a separate contract of personal

accident coverage attached to the bank account as claimed

by the insurer?

16. This question has to be answered against the

appellant-insurer for the following reasons:

16.1. The liability to pay compensation to the

third party is the statutory liability imposed

under the provisions of the Motor Vehicles Act,

1988. The provisions of the Motor Vehicles Act

do not provide for any such deductions in

favour of the insurer. The expression "any

liability which may be incurred" found in

Section 147 (1) (i) of the Motor Vehicles Act,

1988 would mean entire liability arising out of

death or bodily injury or the damage to the

property of a third party to the extent specified

in Sub-section (2).

Sub-section (2) of Section 147 of the

Motor Vehicles Act as it stood at the time of

the accident would read as under:

"(2) Subject to the proviso to Sub-section (1), a policy of insurance referred to in Sub-section (1), shall cover any liability incurred in respect of an accident, up to the following limits, namely:

(a) save as provided in clause (b), the amount of liability incurred;

(b) in respect of damage to any property of a third party, a limit of Rs.6,000/-."

From the reading of the above-said

provision, it is apparent that the liability of the

insurer under the above said provision is the

liability incurred in respect of death or bodily

injury. The cap on the liability is fixed only in

respect of damage to the property. This

provision does not enable the insurer to claim

a deduction in respect of indemnity or

monetary benefits provided to the dependants

of the deceased or the person who suffered

injuries in a motor vehicle accident.

16.2. Even the admission relating to the

payment of Rs.90,000.00 in the cross-

examination is not clear as to whether the

compensation is paid on account of the death

of late Kuberappa or is it relating to the

damages payable to the motorbike belonging

to the deceased;

16.3. More than anything else the said

compensation if at all paid to the dependents

of the deceased, said payment is on account of

the contractual obligation of the said

insurer/banker with the account

holder/deceased to which present insurer is

not a party. The claimants are entitled to

compensation from the said separate insurance

policy on account of a separate premium paid

by the deceased. The benefit of indemnity

flowing from the separate contract of

insurance, to which the present insurer-

appellant is not a party, cannot be a ground for

the appellant to contend that its liability is to

be reduced to the extent of compensation

received in terms of a separate insurance

policy issued by another insurer. If the said

analogy is to be accepted, then even in cases

where the dependants of victims of fatal motor

vehicle accidents who receive financial benefits

by way of indemnity from life insurance

policies should forego the compensation

awarded by the Claims Tribunal to the extent

of financial benefits received under life

insurance policies. Such deductions are held to

be impermissible in Helen C. Rebelo (1999) 1

SCC 90. The benefit/indemnity arising out of

independent insurance policies cannot be taken

into consideration while determining

compensation payable under Motor Vehicles

Act and the same cannot be deducted from the

compensation determined by the Claims

Tribunal.

To put it differently, the indemnity

assured under the insurance policy attached to

the bank account of the deceased is available

to the policyholder/account holder or his

dependents. At any stretch of the imagination,

said contract of insurance cannot be construed

as having conferred an advantage to another

insurer who is not a party to the contract of

insurance and who has assured to indemnify

the claims under the Motor Vehicles Act 1988.

If the contention of the insurer is accepted, the

same amounts to covering the risk of a party

who is not a party to the contract of insurance.

Thus, the above said contention of the appellant has

no merit and has to be rejected.

17. As far as the exception taken to the award of

interest at the rate of 9% per annum on the compensation,

this Court finds justification in the contention raised by the

insurer that award of 9% per annum interest is on the

higher side. Given the present rate of interest awarded by

the nationalised banks which is hovering around 5% to 6%

per annum, the interest awarded on the compensation is

reduced from 9% to 6% per annum.

18. Hence, we pass the following:

ORDER

The appeal is allowed in part.

The judgment and award dated 09.08.2018 passed

in MVC No.863/2016 on the file of the III MACT, Ballari is

modified to the extent that the claimants are entitled to

compensation of Rs.20,80,000.00 as against

Rs.24,37,500.00 awarded by the Tribunal.

The compensation shall carry interest at the rate of

6% p.a. from the date of petition till realization.

Amount in deposit, if any, is to be transmitted to the

Tribunal forthwith.

Sd/-

JUDGE

Sd/-

JUDGE sh