Karnataka High Court
Bajaj Allianz General Insurance ... vs Smt.Meenakshi on 18 January, 2022
Bench: M.G.S. Kamal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MFA NO.6216/2014
C/W
MFA NO.313/2015 (MV)
IN MFA NO.6216/2014:
BETWEEN:
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
M.G. PALACE, GOPI CIRCLE,
SHIMOGA
(POLICY NO.OG-12-1710-1811-00000031)
VALIDITY: 16-10-2011 TO 15-11-2012)
BY ITS MANAGER,
BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LTD.,
4TH FLOOR, GOLDEN HEIGHTS, NO.1/2,
59TH "C" CROSS, 4TH M-BLOCK,
RAJAJINAGAR,
BANGALORE- 560 010. ...APPELLANT
(BY SRI. P.B.RAJU, ADVOCATE)
AND:
1. SMT. MEENAKSHI
W/O. LATE HANUMANTHAPPA
AGED ABOUT 41 YEARS,
R/O. HASUDI VILLAGE,
SHIMOGA TALUK -577201.
2
2. YASHODA,
D/O. LATE HANUMANTHAPPA
AGED ABOUT 22 YEARS,
R/O. HASUDI VILLAGE,
SHIMOGA TALUK-577201.
3. BASAMMA
W/O. GADI THIMMA BHOVI,
AGED ABOUT 67 YEARS,
R/O. HASUDI VILLAGE,
SHIMOGA TALUK.
4. A.N. LAKSHMINARASIMHA
S/O. NAGABHUSHANA PURANIK
R/O. HASUDI VILLAGE,
SHIMOGA TALUK
(OWNER OF TRACTOR & TRAILER
REG.NO.KA/TA-1378/1379).
5. RAMESHA
S/O. THIPPAIAH
AGED ABOUT 38 YEARS,
R/O. VEERABHADRA COLONY,
HASUDI POST, SHIMOGA TALUK
(DRIVER OF TRACTOR & TRAILER
REG.NO.KA-14/TA-1378/1379)
(FDL.NO.1111/09/10 DATED
03.07.2009 TO 13.07.2021).
... RESPONDENTS
(BY SRI. R. KIRAN, ADVOCATE FOR R1,
R2, R3, R4 & R5 SERVED)
THIS MISCELLANEOUS FIRST APPEAL NO.6216/2014
IS FILED UNDER SECTION 173(1) OF THE MV ACT AGAINST
THE JUDGEMENT AND AWARD DATED:02.07.2014 PASSED
IN MVC NO.168/2012 ON THE FILE OF THE I ADDITIONAL
DISTRICT JUDGE, ADDITIONAL MACT, SHIMOGA, AWARDING
COMPENSATION OF RS.4,22,500/- WITH INTEREST @ 8%
P.A. FROM THE DATE OF PETITION TILL PAYMENT.
3
IN MFA NO.313/2015:
BETWEEN:
1. SMT. MEENAKSHI
W/O. LATE HANUMANTHAPPA
AGED ABOUT 42 YEARS
RESIDING AT VEERABHADRA COLONY
HASUDI VILLAGE, SHIMOGA TALUK,
SHIMOGA DISTRICT-577222.
2. YASHODA
D/O. HANUMANTHAPPA
AGED ABOUT 23 YEARS
RESIDING AT VEERABHADRA COLONY
HASUDI VILLAGE,
SHIMOGA TALUK,
SHIMOGA DISTRICT-577222.
3. SMT. BASAMMA
W/O. GADI THIMMA BHOVI
AGED ABOUT 68 YEARS
HASUDI VILLAGE,
SHIMOGA TALUK,
SHIMOGA DISTRICT-577222. ... APPELLANTS
(BY SRI. R.KIRAN, ADVOCATE)
AND:
1. A.N. LAKSHMINARASIMHA
S/O. NAGABUSHANA PURANIK
AGED ABOUT 39 YEARS,
RESIDING AT HASUDI VILLAGE
SHIVAMOGGA TALUK
SHIVAMOGGA DISTRICT-577222
OWNER OF TRACTOR & TRAILER
REGISTRATION NO.
KA-14 TA-1378, 1379
2. RAMESHA
S/O. THIPPAIAH
AGED ABOUT 39 YEARS,
VEERABHADRA COLONY
4
HASUDI POST
SHIVAMOGGA TALUK-577222.
3. BAJAJ ALLIANZE GENERAL INSURANCE CO. LTD.,
MG PALACE, GOPI CIRCLE
SHIVAMOGGA - 577201.
(POLICY NO.OG-12-1710-1181-00000031).
... RESPONDENTS
(BY SRI.P.B.RAJU, ADVOCATE FOR R3, R-1 & R-2 SERVED)
THIS MISCELLANEOUS FIRST APPEAL NO.313/2015 IS
FILED UNDER SECTION 173(1) OF THE MV ACT AGAINST
THE JUDGEMENT AND AWARD DATED:02.07.2014 PASSED
IN MVC NO.168/2012 ON THE FILE OF THE I ADDITIONAL
DISTRICT JUDGE, ADDITIONAL MACT, SHIMOGA, PARTLY
ALLOWING THE CLAIM PETITIONER FOR COMPENSATION
AND SEEKING ENHANCMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION
THROUGH VIDEO CONFERENCE THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.6216/2014 is filed by the appellant-
Insurance Company while MFA No.313/2015 is filed by
the appellants/claimants aggrieved by the Judgment
and award dated 02.07.2014 passed in MVC
No.168/2012 on the file of I Addl. District Judge and
A.M.A.C.T., Shimoga.
2. Brief facts leading upto filing of these
appeals are that on 24.11.2011 at about 2.45 p.m., one
Kumaraswamy was proceeding on his motorcycle
bearing Registration No.KA-17/S-2368 from Hasudi
village towards Malligenahalli along with a pillion rider
namely, one Shashikumar when they were proceeding
on the left hand side of the road of Veerabhadra colony
village toward Machenahalli a Tractor and Trailor
bearing Registration No.KA-14/TA-1378/1379 driven by
its driver - the respondent No.2 in rash and negligent
manner came from opposite direction and dashed
against the motorcycle of the deceased. Due to the
impact, Kumaraswamy sustained grievous injuries. He
was shifted to Nanjappa Hospital and later to Kasturba
Hospital, Manipal and he succumbed to the injuries
during treatment.
3. Thereupon, the claimants being mother,
sister and grandmother of the deceased filed claim
petition under Section 166 of MV Act, seeking
compensation of `18,50,000/- (Rupees Eighteen Lakhs
fifty thousand only) on the premise that the deceased
was aged about 23 years, working as an agriculturist
cum employee earning `8,550/- (Rupees Eight thousand
five hundred fifty only) per month. That the accident in
question was caused on account of rash and negligent
driving of the Tractor and Trailor by its driver-
respondent No.2, resulting in the death of
Kumaraswamy. That the said Kumaraswamy was
contributing his earnings to the family and untimely
death of the deceased caused financial and emotional
distress to the family. Since the Tractor and Trailor was
insured with respondent No.3-Insurance company,
compensation was sought against the respondents
jointly and severally.
4. On service of notice, respondent Nos.1 and
2 appeared through their counsel and filed separate
statements of objections. Respondent Nos.1 and 2
contended that the Tractor and Trailor were being
driven by respondent No.2, who was holding valid
driving license. That there was no fault or negligence on
the part of respondent No.2 and the accident had
occurred on account of rash and negligent riding of the
motorcycle by the deceased. That as the Tractor and
Trailor were insured with respondent No.3-Insurance
Company, compensation sought is not liable to be paid.
Hence, sought for dismissal of the petition against
them.
5. Respondent No.3-Insurance company
admitted that there was Policy coverage in respect of
the Tractor and Trailor however, disputed the claim of
the claimants. It was contended that respondent No.2
was not negligent and the accident in question had
occurred on account of negligence on the part of the
deceased Kumaraswamy, who had come in contact with
the right side wheel of the Trailor and hence sought for
dismissal of the claim.
6. Based on the pleading, Tribunal framed
issues and recorded evidence.
7. Appellant/claimant-1 examined herself as
P.W.-1, Shashikumar-pillion rider of the motorbike
involved in the accident examined himself as P.W.-2
another witness Surendra Nayar was examined as P.W.-
3 and marked documents Ex.P1 to P-27. One Sri.Anish
Baskar was examined as R.W.1 on behalf of the
respondents and marked 3 documents Ex.R-1 to R-3.
8. On appreciation of pleadings and material
evidence, Tribunal held that the accident in question
had occurred due to contributory negligence on the part
of deceased Kumaraswamy who was riding the
motorcycle as well as on the part of respondent No.2-
driver of the Tractor and Trailor and consequently held
that the claimants are entitled for total compensation of
`4,22,500/- (Rupees Four lakhs twenty two thousand
five hundred only) with interest @ 8 % per annum from
the date of petition till full payment and directed
respondent No.3-Insurance Company to deposit the
entire compensation amount within 3 months from the
date of Order.
9. Being aggrieved by the aforesaid Judgment
and award, Insurance Company is before this Court in
MFA No.6216/2014 while the claimants are before this
Court in MFA No.313/2015.
10. Sri.P.B.Raju, learned counsel for the
appellant-Insurance Company, reiterating the grounds
urged in the appeal memorandum submitted that;
(a) the challenge in the present appeal in MFA
No.6216/2014 is limited only to the extent of quantum
of compensation determined by the tribunal.
(b) that the Tribunal grossly erred in assessing
the income of the deceased based on Ex.P.-22- salary
certificate, wherein the deceased said to have been
earning `3,990/- (Rupees Three thousand nine hundred
ninety only) per month. That the tribunal further erred
in assessing the income of the deceased at `8,000/-
(Rupees Eight thousand only) per month on the premise
that the deceased, who died at an young age, and had
he lived long would have earned double the income.
That such an assessment is not permissible under law.
(c) that claimant No.3-Basamma, being the
grandmother of the deceased cannot be considered to
be dependent for the purpose of determination of
compensation.
(d) that the award of interest @ 8 % by the
tribunal is on the higher side and the same is to be
reduced to 6%. Hence seeks for allowing of the appeal.
11. Sri.R.Kiran, learned counsel for the
claimants/appellants in MFA No.313/2015 submits that;
(a) that the tribunal grossly erred in fixing and
attributing negligence at 50% on the deceased in the
absence of any acceptable material evidence on record.
(b) that the Tribunal erred in not taking into
consideration Ex.R-1-sketch of the spot depicting the
width of the road which was about 12 feet. That the
Tribunal has not appreciated the fact that the vehicle
involved in the accident was a Trailer which is generally
broader than the Tractor, occupying substantial portion
of the road leaving hardly any space for the deceased
Kumaraswamy to pass through in such a narrow road.
(c) that the tribunal without taking this aspect of
the matter has erroneously attributed contributory
negligence to the extent of 50% on the deceased
Kumaraswamy resulting in miscarriage of justice.
(d) that the Tribunal has only taken into
consideration the income of the deceased from salary
and has not considered the income from his agricultural
activities. The deceased was earning monthly income of
`8,545/- (Rupees Eight thousand five hundred forty five
only) from salary and agriculture activities.
(e) that the Tribunal has not awarded any
amount towards future prospects and also under the
conventional heads. Hence he seeks for allowing the
appeal.
12. Heard learned counsel for the parties.
13. On consideration of rival submissions, points
that arise for consideration are:
"1. Whether the Tribunal is justified
in assessing the contributory negligence
and attributing 50% thereof on the
part of the deceased Kumaraswamy under
facts and circumstances?
2. Whether the claimants are
entitled for enhancement of
compensation?"
14. The accident in question that occurred on
24.01.2011 involving the motorcycle ridden by
deceased Kumaraswamy and the Tractor and Trailer
driven by respondent No.2, belonging to respondent
No.1 resulting in the death of Kumaraswamy is not in
dispute.
15. P.W.2 Shashikumar, who was the pillion
rider is the eye-witness to the accident. In his evidence
he has narrated the instance of the accident. Perusal of
his affidavit reveal that the deceased Kumaraswamy
was riding the motorcycle on the left side of the road at
Veerabhadra colony village, Shimoga and the 2nd
respondent-driver of the Tractor and Trailor came from
the opposite direction. The right side wheel of the
Trailer had hit the motorcycle causing the accident and
resulted injuries to the deceased as well as P.W.2 the
pillion rider. The aforesaid deposition suggests that the
deceased had almost passed through the Tractor and
portion of Trailor. The accident appears to have
occurred when the motorcycle had reached near the
right side wheel of the Trailer. The aforesaid deposition
read in conjunction with the spot sketch at Ex.R-1
further reveal that the width of the road is 12 feet and
the Tractor being on the right side (which is on the left
hand side of its direction towards Hasudi village) cannot
be said to have been on the wrong side of the road. As
noted above, the motorcycle ridden by the deceased
had passed through the Tractor and portion of the
Trailor, it cannot be accepted that the driver of the
Tractor had driven the tractor in a rash and negligent
manner contributing the entire negligence on his part.
16. The Apex court in the case of MUNICIPAL
CORPORATION OF GREATER BOMBAY VS. SHRI
LAXMAN IYER AND ANOTHER reported in 2003 AIR
SCW 5505 at para 6 has held as under:
"6. The negligence is omission of
duty caused either by an omission to do
something with a reasonable man guided
upon those considerations, who ordinarily by
reason of conduct of human affairs would do
or oblige to, or by doing something which a
prudent or reasonable man would not do.
Negligence does not always mean absolute
carelessness, but want of such a degree of a
care as is required in particular
circumstances. Negligence is failure to
observe, for the protection of the interest of
another person, the degree of care,
precaution and vigilance which the
circumstances justly demand, whereby such
other person suffers injury. The idea of
negligence and duty are strictly correlative.
Negligence means either subjectively a
careless sate of mind, or objectively careless
conduct. Negligence is not an absolute term,
but is a relative one; it is rather a
comparative term. No absolute standard can
be fixed and no mathematically exact
formula can be laid down by which
negligence or lack of it can be infallibly
measured in a given case. What constitutes
negligence varies under different conditions
and in determining whether negligence
exists in a particular case, or whether a
mere act of course of conduct amounts to
negligence, all the attending and
surrounding facts and circumstances have to
be taken into account. It is absence of care
according to circumstances. To determine
whether an act would be or would not be
negligent, it is relevant to determine if any
reasonable man would foresee that the act
would cause damage or not. The omission to
do what the law obligate or even the failure
to do anything in a manner, mode or
method envisaged by law would equally and
per se constitute negligence on that part of
such person. In a case of contributory
negligence, the crucial question on which
liability depends would be whether either
party could, by exercise of reasonable care,
have avoided the consequence of others
negligence whichever party could have
avoided the consequence of others
negligence would be liable for the accident".
17. The facts of the present case and the
material evidence more particularly the evidence of
P.W.-2 suggests that deceased Kumaraswamy who was
riding the motorcycle could have been more cautious in
avoiding the accident as he had almost passed through
the Tractor and portion of the Trailor. On holistic
reading of the material evidence available on record, the
assessment of the contributory negligence made by the
Tribunal attributing at the driver of the offending tractor
and the deceased at 50% each cannot be found fault
with. Therefore, the same is maintained. The point No.1
raised above is answered accordingly.
18. Adverting to the issue with regard to
quantum of compensation, the Tribunal has taken into
consideration the salary certificate produced by the
claimants at Ex.P-24, wherein, the income of the
deceased is shown as `3,990/- (Rupees Three thousand
nine hundred ninety only). Though the Tribunal has
assessed the notional income as `8,000/- (Eight
thousand only) on the premise that the deceased was
aged about 23 years and his income would have
doubled if he had lived full life, as rightly submitted by
the learned counsel for the Insurance Company, the
said approach is not appropriate. However, as submitted
by the learned counsel for the claimants, that the
deceased apart from earning income from salary was
also earning income from his agricultural activities. This
aspect of matter has not been adverted to by the
Tribunal. However, no material evidence has been
produced by the claimants regarding income of the
deceased from his agricultural activities. This Court in
the absence of material evidence with regard to the
income of the victims of a road traffic accident takes
into consideration the chart prepared by Karnataka
State Legal Service Authority. As per the chart, the
notional income of the victims of the road traffic
accident of the year 2011, is fixed at `6500/- (Rupees
Six thousand five hundred only). In the instant case, the
accident is of the year 2011 and since there are no
material evidence produced by the claimants with
regard to the income of the deceased from his
agricultural activities, the notional income of the
deceased is taken as `6500/- (Rupees Six thousand five
hundred only) per month.
19. As per the law laid down by the Apex Court
the in case of NATIONAL INSURANCE CO. LTD.
VS. PRANAY SETHI AND OTHERS reported in AIR
2017 SC 5157, considering the age of deceased as 23
years at the time of death, 40% of the aforesaid
income is added towards future income. Thus, income of
the deceased would be `6500+`2600=`9100. Deceased
was a bachelor, therefore, 50% income is deducted
towards personal and living expenses. Taking into
consideration the age of the deceased appropriate
multiplier would be 18. Calculated as above, the loss of
dependency would be 4,550x12x18 = `9,82,800/-
(Rupees Nine lakhs eighty two thousand eight hundred
only).
20. In view of the law laid down by the Apex
Court in the case of MAGMA GENERAL INSURANCE
CO. LTD. -vs- NANU RAM reported in 2018 ACJ
2782, clarified in the case of UNITED INDIA
INSURANCE COMPANY LIMITED VS. SATHINDER
KAUR @ SATHWINDER KAUR & OTHERS - 2020
SCC ONLINE SC 410. Claimant No.1 being mother,
claimant No.2 being sister of the deceased are entitled
`40,000/- (Rupees Forty thousand only) each towards
loss of love and affection. In addition, claimants are
entitled for `15,000/- (Rupees Fifteen thousand only)
towards funeral expenses and Rs.15000/- towards loss
of estate. Tribunal has awarded `50,000/- (Rupees Fifty
thousand only) towards the medical expenses incurred
by the claimants towards treatment of the deceased
before his death. The same is retained. The claimants
are thus held entitled for total compensation of
`11,42,800/- (Rupees Eleven lakhs forty two thousand
eight hundred only). As detailed hereunder:
Heads By Tribunal By this Court
Loss of Consortium 25,000/- 15,000/-
Medical and Ambulance 50,000/- 50,000/-
expenditure
Love and affection 25,000/- 80,000/-
Travelling and funeral 25,000/- 15,000/-
expenses
Loss of dependency 7,20,000/- 9,82,800/-
Total 8,45,000/- 11,42,800/-
50% of total amount 4,22,500/- 5,71,400/-
21. Since, the tribunal has attributed 50% of
negligence in causing the accident on the part of
deceased- Kumaraswamy which is confirmed by this
Court as hereinabove, out of the aforesaid amount of
compensation of Rs.11,42,800/- (Rupees Eleven lakhs
forty two thousand eight hundred only), claimants are
entitled for Rs.5,71,400/- (Rupees Five lakhs seventy
one thousand four hundred only). The interest awarded
@ 8% per annum by the Tribunal is reduced to 6% p.a.
Further, claimants are entitled for enhanced
compensation of Rs.5,71,400/- (Rupees Five lakhs
seventy one thousand four hundred only) with interest
@6% from the date of petition till full payment.
Insurance Company shall deposit the aforesaid amount
within a period of 8 weeks from the date of receipt of
the copy of the order. The point No.2 is answered as
accordingly.
ORDER
(1) MFA No. 6216/2014 filed by appellant-
insurance company and MFA No.313/2015
filed by appellant-claimants are partly
allowed.
(2) The Judgment and award dated
02.07.2014 passed in MVC No.168/2012 by
the I Addl. District Judge and A.M.A.C.T.,
Shimoga is modified accordingly.
(3) The claimants are entitled for total
compensation of `5,71,400/- (Rupees Five
lakhs seventy one thousand four hundred
only)@ 6% per annum from the date of
petition till payment after deducting the
amount if any, already paid.
(4) Respondent No.3-Insurance Company,
shall deposit the compensation amount
within a period of 8 weeks from the date of
receipt of the copy of this order.
Name of Smt H.R.Renuka, learned counsel for
respondent No.3 is deleted.
Sd/-
JUDGE
GVP
