Karnataka High Court

Sri S Rangappa vs Smt Narasamma on 5 July, 2022

Bench: H T Prasad

                        1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 5TH DAY OF JULY 2022

                      BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

          MFA No.5867 OF 2019(MV)
                   C/W
          MFA No.4823 OF 2019(MV)

IN MFA No.5867/2019
BETWEEN

1.   SRI S RANGAPPA
     S/O ANJANAPPA
     AGED ABOUT 70 YEARS
     R/O SOMPURA, GANGALAGUNTTE POST
     MADUGIRI TALUK
     TUMKUR DISTRICT.

2.   SRI KESHAVAMURTHY
     S/O S RANGAPPA
     AGED ABOUT 37 YEARS
     R/O SOMPURA, GANJALAGUNTTE POST
     MADUGIRI TALUK
     TUMKUR DISTRICT.

     (NO.1 TO ABOVE ARE THE LR'S HEIRS OF
     SMT. GANGAMMA WHO
     DIED DURING THE PENDENCY
     OF THE CLAIM PETITION
                                   ...APPELLANTS
(BY SRI.NAGARAJA K., ADV.)
                        2




AND

1.    SMT NARASAMMA
      W/O LATE VENKATARAMANAPPA
      AGED ABOUT 62 YEARS
      R/O MALLIGONDANAHALLI
      RAMOHALLI POST
      KENGERI HOBLI
      BENGALURU SOUTH TALUK
      BENGALURU-560060.

2.    SMT MANJAMMA
      D/O LATE VENKATARAMANAPPA
      AGED ABOUT 30 YEARS
      R/O RAMOHALLI POST
      KENGERI HOBLI
      BENGALURU SOUTH TALUK
      BENGALURU-560060.

3.    SMT VENKATALAKSHMAMMA
      D/O LATE VENKATARAMANAPPA
      W/O MUNIRAJU G M
      AGED ABOUT 52 YEARS
      R/O GEJJEGADAHALLI VILLAGE
      DASANAPURA HOBLI
      SHIVAPURA POST
      BENGALURU NORTH TALUK.

4.    SRI MURTHI M
      S/O LATE VENKATARAMANAPPA
      AGED ABOUT 47 YEARS
      R/O NO.1171
      4TH MAIN ROAD
      14TH CROSS, M.C.LAYOUT
      VIJAYANAGARA, BENGALURU NORTH
      BENGALURU-560040.
                      3




5.   SRI GOVINDA RAJU
     S/O LATE VENKATARAMANAPPA
     AGED ABOUT 39 YEARS
     R/O MALLIGONDANAHALLI
     RAMOHALLI POST
     KENGERI HOBLI
     BENGALURU SOUTH TALUK
     BENGALURU-560060.

6.   SRI MANJUNATHA
     S/O LATE VENKATARAMANAPPA
     AGED ABOUT 37 YEARS
     R/O MALLIGONDANAHALLI
     RAMOHALLI POST
     KENGERI HOBLI,
     BENGALURU SOUTH TALUK
     BENGALURU-560060.

7.   SRI SRINIVASA
     S/O LATE VENKATARAMANAPPA
     AGED ABOUT 34 YEARS
     R/O MALLIGONDANAHALLI
     RAMOHALLI POST
     KENGERI HOBLI
     BENGALURU SOUTH TALUK
     BENGALURU-560060.

8.   UNITED INDIA INSURANCE
     COMPANY LIMITED
     REP BY ITS REGIONAL MANAGER
     REGIONAL OFFICE, 6TH FLOOR
     KRUSHI BHAVAN
     NEAR HUDSON CIRCLE
     NRUPATHUNGA ROAD
     BENGALURU-560001.
                                ...RESPONDENTS
                        4




(BY SRI.SHRIKANTH B., ADV. FOR R1 TO R7:
SRI. K.N. SRINIVASA, ADV. FOR R8)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED11.04.2019 PASSED IN MVC NO. 1363/2017
ON THE FILE OF THE XIII ADDITIONAL JUDGE, COURT
OF SMALL CAUSES & MEMBER OF MACT, BENGALURU,
AWARDING COMPENSATION OF RS.3,10,000/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION
TILL REALIZATION.

IN MFA No.4823/2019
BETWEEN

1.   NARASAMMA
     W/O LATE VENKATARAMANAPPA
     AGED ABOUT 62 YEARS

2.   MANJAMMA
     D/O LATE VENKATARAMANAPPA
     AGED ABOUT 30 YEARS

     BOTH ARE R/O MALLIGONDANAHALLI
     RAMOHALLI POST
     KENGERI HOBLI
     BENGALURU SOUTH TALUK
     BENGALURU-560060.

3.   VENKATALAKSHMAMMA
     D/O LATE VENKATARAMANAPPA
     W/O MUNIRAJU G M
     AGED ABOUT 52 YEARS
     R/O GEJJEGADAHALLI VILLAGE
     DASANAPURA HOBLI
                         5




     SHIVAPURA POST
     BENGALURU NORTH TALUK-562162

4.   SRI MURTHI M
     S/O LATE VENKATARAMANAPPA
     AGED ABOUT 47 YEARS
     R/O NO.1171
     4TH MAIN ROAD
     14TH CROSS, M.C.LAYOUT
     VIJAYANAGARA, BENGALURU NORTH
     BENGALURU-560040.

5.   SRI GOVINDA RAJU
     S/O LATE VENKATARAMANAPPA
     AGED ABOUT 39 YEARS

6.   SRI MANJUNATHA
     S/O LATE VENKATARAMANAPPA
     AGED ABOUT 37 YEARS

7.   SRI SRINIVASA
     S/O LATE VENKATARAMANAPPA
     AGED ABOUT 34 YEARS

     APPELLANT Nos.5 TO7 ARE
     R/O MALLIGONDANAHALLI
     RAMOHALLI POST
     KENGERI HOBLI
     BENGALURU SOUTH TALUK
     BENGALURU-560060.

                                 ... APPELLANTS
(BY SRI. SRIKANTH B., ADV.)
                           6




AND:

1.     SMT. GANGAMMA
       W/O S. RANGAPPA
       SINCE DEAD BY HER LR'S
       SRI S RANGAPPA
       AGED ABOUT 62 YEARS

2.     SRI KESHAVAMURTHY
       S/O S RANGAPPA
       AGED ABOUT 37 YEARS
       R/O SOMPURA,
       GANJALAGUNTTE POST
       MADUGIRI TALUK
       TUMKUR DISTRICT.

3.     UNITED INDIA INS. CO. LTD.,
       REPRESNTED BY ITS
       REGIONAL MANAGER
       REGIONAL OFFICE
       6TH FLOOR,
       KRUSHI BHAVAN
       NEAR HUDSON CIRCLE
       NRUPATHUNGA ROAD
       BENGALURU-560 001.

                                     ...RESPONDENTS

(BY SRI. K.NAGARAJA, ADV. FOR R1 & R2:
SRI. K.N. SRINIVASA, ADV. FOR R3)

    THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 11.04.2019 PASSED IN MVC NO.1363/2017
ON THE FILE OF THE XIII ADDITIONAL JUDGE, COURT
                                  7




OF SMALL CAUSES AND MEMBER, MACT, BENGALURU
(SCCH-15) PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

     THESE MFAs COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

MFA 5867/2019 is filed by the owner of the

offending vehicle and MFA 4823/2019 is filed by the

claimants under Section 173(1) of Motor Vehicles Act,

1988 (hereinafter referred to as 'the Act') being

aggrieved by the judgment dated 11.4.2019 passed

by MACT, Bengaluru in MVC 1363/2017.

2. Facts giving rise to the filing of the appeals

briefly stated are that on 10.2.2017 when the

deceased Venkataramanappa was proceeding as a

pillion rider on motorcycle bearing registration No.KA-

42-R-0539 from Malligondanahalli towards Magadi on

Magadi-Bengaluru Road, near Devamachohalli Bus

stop, at that time, a private bus bearing registration

No.KA-06-D-2799 which was being driven in a rash

and negligent manner, dashed against the motorcycle

of the deceased. As a result of the aforesaid accident,

the deceased sustained grievous injuries and

succumbed to the injuries.

3. The claimants filed a petition under Section

166 of the Act seeking compensation for the death of

the deceased along with interest.

4. On service of summons, the respondents

appeared through their respective counsel and filed

written statements in which the averments made in

the petition were denied.

Respondent No.1 has pleaded that offending

vehicle was insured with the Insurance Company and

policy was valid. The driver of the bus was having

valid driving licence as on the date of accident. It was

further pleaded that the accident was due to the rash

and negligent riding of the motorcycle by its rider. The

bus was taken for repair without any passengers to

the garage at Magadi-Bengaluru road, where the

accident occurred. Hence, he sought for dismissal of

the petition.

Respondent No.2 has pleaded that the liability is

subject to terms and conditions of the policy. The

driver of the offending vehicle did not possess valid

driving licence as on the date of the accident. The

accident occurred due to rash and negligent riding of

the motorcycle by its rider. The bus was not having

valid permit and FC as on the date of accident. Hence,

he sought for dismissal of the petition.

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

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants, in order to

prove their case, examined claimant No.1 as PW-1

and got exhibited documents namely Ex.P1 to Ex.P16.

On behalf of respondents, three witnesses were

examined as RWs-1 to 3 and got exhibited documents

namely Ex.R1 to Ex.R9. 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, as a result of

which, the deceased sustained injuries and succumbed

to the injuries. The Tribunal further held that the

claimants are entitled to a compensation of

Rs.3,10,000/- along with interest at the rate of 6%

p.a. and directed the owner of the offending vehicle to

deposit the compensation amount along with interest.

Being aggrieved, this appeal has been filed.

6. Mr.Nagaraja.K., learned counsel for the

owner of the offending bus has contended that the

bus is covered with valid insurance policy and they

have route permit to ply the vehicle within the

jurisdiction of Tumkur district. The bus was taken to

Bengaluru for repair and on the way, it met with an

accident and deceased Venkataramanappa, who was

proceeding on the motorcycle as a pillion rider died in

the said accident. During the pendency of the claim

petition, Smt.Gangamma died and her legal

representatives were brought on record and they have

filed written statement. They have taken a specific

contention that the driver of the bus had taken the

bus for repair to garage at Magadi-Bengaluru road

without any passengers and when the bus was

proceeding, at that time, the accident occured. Inspite

of their specific plea, the Tribunal has not framed any

issue regarding the said point. Since the bus was

covered with valid insurance policy, RW-2 has not

adduced any evidence in support of the said point.

The Tribunal only on the basis that RW-2 has not

adduced any evidence in his chief examination and

nothing has been mentioned in the police records that

the bus was taken for repair to Bengaluru, has erred

in holding that the insured has violated the policy

conditions and accordingly exonerated the Insurance

Company from liability and directed the owner of the

offending vehicle to pay compensation. Hence, he

sought for allowing the appeal filed by the owner of

the offending vehicle.

7. Mr.Shrikanth.B., learned counsel for the

claimants has raised the following contentions:

Liability:

Since the offending bus was covered with valid

insurance policy, in respect of third party risk is

involved, if this Court comes to the conclusion that the

bus had no valid permit and the insured has violated

policy conditions, the Insurance Company shall be

directed to pay compensation with liberty to recover

the same from the owner of the offending vehicle. In

support of his contention, he has relied upon the

decision the Apex Court in the case of AMRUT PAUL

SINGH AND ANOTHER V. TATA AIG GENERAL

INSURANCE COMPANY LIMITED AND OTHERS [(2018)

7 SCC 558], in the case of RANI -V- NATIONAL

INSURANCE COMPANY LTD. (2018) 8 SCC 492

wherein it is held that if there is no valid permit, the

Insurance Company is not liable to pay the

compensation. But, however, Insurance Company has

to pay compensation to the claimants and recover the

same from the insured. He has further relied upon Full

Bench decision of this Court in the case of NEW INDIA

ASSURANCE CO. LTD. BIJAPUR vs. YALLAVVA AND

ANOTHER' ILR 2020 Kar.2239.

Quantum of compensation:

Firstly, the claimants claim that the deceased

was aged about 67 years at the time of the accident

and he was earning Rs.15,000/- per month by doing

agricultural work. But the Tribunal is not justified in

taking the monthly income of the deceased as merely

as Rs.8,000/-.

Secondly, the claimants are wife, sons and

daughters of the deceased and they are entirely

depending on the income of the deceased. The

Tribunal instead of deducting 1/3rd of the income

towards personal expenses has wrongly deducted

50%.

Thirdly, as per the judgment of the Hon'ble

Supreme Court in the case of MAGMA GENERAL

INSURANCE CO. LTD. -V- NANU RAM [2018 ACJ

2782], each of the claimants are entitled for

compensation of Rs.40,000/- under the head of 'loss

of love and affection and consortium'.

Fourthly, considering the age and avocation of

the deceased, the overall compensation awarded by

the Tribunal is on the lower side. Hence, he prays for

allowing the appeal filed by the claimants.

8. Mr.K.N.Srinivasa, learned counsel for the

Insurance Company has raised the following counter-

contentions:

Liability:

It is not in dispute that the offending bus was

covered with valid insurance policy. He contended that

the insured has violated the permit conditions. Since

there is violation of policy conditions, the Insurance

Company is not liable to pay compensation. He further

contended that the route permit for the bus is to ply

within the jurisdiction of Tumkur. But, the bus was

plied beyond the route permit. Further, the insured

has failed to establish that the bus was taken for

repair without passengers and he has not produced

any materials to that effect. Since the insured has

violated the policy conditions, the Insurance Company

is not liable to pay compensation. Therefore, the

Tribunal has rightly exonerated the Insurance

Company from liability.

Quantum of compensation:

Firstly, even though the claimants claim that the

deceased was earning Rs.15,000/- per month, the

same is not established by the claimants by producing

documents. Therefore, the Tribunal has rightly

assessed the income of the deceased notionally.

Secondly, the claimants are wife, major sons and

married daughters of the deceased. They are not

depending on the income of the deceased. Therefore,

the Tribunal has rightly deducted 50% of the income

of the deceased towards personal expenses.

Thirdly, on appreciation of oral and documentary

evidence and considering the age and avocation of the

deceased, the overall compensation awarded by the

Tribunal is just and reasonable. Hence, he prays for

dismissal of both the appeals.

9. Heard the learned counsel for the parties

and perused the records.

10. It is not in dispute that deceased

Venkataramanappa died in the road traffic accident

occurred due to rash and negligent driving of the

offending vehicle by its driver.

LIABILITY:

It is also not in dispute that the offending bus

was covered with valid insurance policy issued by the

respondent-United Insurance Company Limited. The

owner of the offending vehicle has filed additional

statement of objections and has taken a specific

contention that as on the date of accident, the driver

of the bus had taken the bus to garage at Magdi-

Bengaluru Road for getting it repaired without

passengers in the bus. At that time, the accident has

taken place. The Tribunal has not framed any issue

regarding the violation of the route permit. The

Tribunal has given a finding only on the ground that

RW-2 has not taken such defence in chief examination

and there is no whisper in the police records regarding

the bus taken for repair to Bengaluru. Even though

they have taken a specific contention in the written

statement, there is no issue framed by the Tribunal on

that point.

Under the circumstances, I am of the opinion

that the matter requires to be remanded to the

Tribunal for framing issue in respect of the defence

taken by the owner of the offending vehicle. The

Tribunal is required to frame issue on that point by

giving opportunity to both the parties to adduce

additional evidence and produce additional documents

and thereafter, decide whether there is any violation

of route permit which amounts to violation of policy

conditions. Hence, the matter is remanded to the

Tribunal for deciding on the said aspect.

QUANTUM OF COMPENSATION:

11. The claimants claim that deceased was

earning Rs.15,000/- per month. But they have not

produced any documents to prove the income of the

deceased. In the absence of proof of income, the

notional income has to be assessed. As per the

guidelines issued by the Karnataka State Legal

Services Authority, for the accident taken place in the

year 2017, the notional income of the deceased has to

be taken at Rs.11,000/- p.m.

The claimants are wife, 4 major sons and 2

married daughters of the deceased. They are not

depending on the income of the deceased. Therefore,

the Tribunal has rightly deducted 50% of the income

of the deceased towards personal expenses. The

deceased was aged about 67 years at the time of the

accident and multiplier applicable to his age group is

'5'. Thus, the claimants are entitled to compensation

of Rs.3,30,000/- (Rs.11,000*12*5*50%) on account

of 'loss of dependency'.

In addition, the claimants are entitled to

compensation of Rs.15,000/- on account of 'loss of

estate' and compensation of Rs.15,000/- on account

of 'funeral expenses'. Claimant No.1, wife of the

deceased is entitled for compensation of Rs.40,000/-

under the head of 'loss of spousal consortium'.

In view of the law laid down by the Supreme

Court in the case of 'MAGMA GENERAL

INSURANCE' (supra), claimant Nos.2 to 7, children of

the deceased are entitled for compensation of

Rs.40,000/- each under the head of 'loss of parental

consortium'.

Thus, the claimants are entitled to the following

compensation:

          Compensation under                    Amount in
             different Heads                      (Rs.)
         Loss of dependency                        330,000
         Funeral expenses                           15,000





        Loss of estate                          15,000
        Loss of spousal                         40,000
        consortium
        Loss of Parental                       240,000
        consortium
                       Total                   640,000

12. In the result, the appeals are disposed of.

The judgment of the Claims Tribunal is modified.

The claimants are entitled to a total

compensation of Rs.640,000/- as against

Rs.310,000/- awarded by the Tribunal along with

interest at 6% p.a. from the date of filing of the claim

petition till the date of realization.

In respect of payment of compensation to the

claimants is concerned, since the offending bus is

covered with valid insurance policy, the Insurance

Company is directed to deposit the entire

compensation amount with interest as determined by