Karnataka High Court
Sri Gajanana vs Sri A Ganeshan on 3 June, 2022
Bench: P.S.Dinesh Kumar, M G Uma
M.F.A No.9847/2012
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE, 2022
PRESENT
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
AND
THE HON'BLE MRS. JUSTICE M.G. UMA
M.F.A. No.9847 OF 2012 (MV-D)
BETWEEN :
1. SRI. ANANTH SHET
S/O SHANKAR
AGED ABOUT 52 YEARS
OCC: SERVICE
3RD MAIN, 4TH CROSS
PRESENTLY RESIDING AT
VINOBHANAGAR
DAVANAGERE-577 002
2. SMT. SADANA
W/O ANANTHASHET
AGED ABOUT 46 YEARS
OCC: HOUSEWIFE
PRESENTLY RESIDING AT
VINOBHANAGAR
DAVANAGERE-577 002 ... APPELLANTS
(BY SHRI. P.M. GOPI FOR
SHRI. P.M. SIDDAMALLAPPA, ADVOCATES)
AND :
1. SRI. A. GANESHAN
S/O ARUMUGAN
AGED ABOUT 48 YEARS
NO.39, II ROAD CROSS
M.F.A No.9847/2012
2
K.P.N. EXTN., BANGALORE
(OWNER OF LORRY BEARIANG
NO.KA-01/AC-5466)
2. THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE
COMPANY LTD., A.M.ARCADE
C.G.HOSPITAL ROAD
NEAR VIDYARTHI BHAVAN
DAVANAGERE-577 002
(INSURER OF LORRY BEARING
NO.KA-01/AC-5466)
3. SHRIKANTH K.R
S/O THIRTHAPPA
AGED ABOUT 50 YEARS
RESIDING AT NO.398/3
15TH CROSS, K.T.J.NAGAR
DAVANAGERE-577 002
DISTRICT DAVANAGERE
(OWNER OF CAR BEARING
NO.KA-29/M-2995)
4. THE DIVISIONAL MANAGER
NATIONAL INSURANCE
COMPANY LTD.,
DAVANAGERE-577 002
(INSURER OF CAR BEARING
REG.NO.KA-29/M-2995) ... RESPONDENTS
(BY SHRI. S.T. RAJASHEKAR, ADVOCATE FOR R2;
SMT. A.L. SARITHA, ADVOCATE FOR R3;
SHRI. S. SHRISHAILA, ADVOCATE FOR R4;
VIDE ORDER DTD.27.03.2017, NOTICE TO R1 HELD
SUFFICIENT)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 22.05.2012 PASSED IN MVC
NO.122/2011 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE,
MACT-III, DAVANAGERE, ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 29.03.2022 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, P.S.DINESH KUMAR J, PRONOUNCED THE
FOLLOWING:-
M.F.A No.9847/2012
3
JUDGMENT
This appeal seeking enhancement of compensation is
filed by the claimants in MVC No.122/2011 on the file of II
Additional District Judge and MACT-III, Davangere
challenging the common judgment and the award dated
May 22, 2012.
2. Brief facts of the case are, on March 26, 2010 six
passengers of a family were travelling in a Tata Indica Car
bearing registration No.KA-29-M-2995 from Chittur towards
Tirupati and collided against a lorry1 coming from opposite
side. In the accident, five inmates including the driver, died
on the spot and the remaining one was injured.
3. The car was insured by National Insurance
Company, respondent No.4 and lorry was insured by New
India Assurance Company Ltd., respondent No.2.
Bearing registration No. KA-01 AC-5466
M.F.A No.9847/2012
4. The appeal arises out of MVC 122/2011. The
Parents of deceased Ms. Prajwala have filed the instant
claim petition seeking compensation from the owners of
car, lorry and their respective insurers. The owner of the
lorry remained ex parte. The insurer of the lorry contested
the claim contending inter alia that the driver of the car
was wholly negligent as he was driving it in a rash and
negligent manner and dashed against the lorry coming from
the opposite side, while attempting to overtake a vehicle.
5. An abated charge-sheet has been filed against
Gururaja, the driver of the car, for offences punishable
under Sections 337 and 304-A of IPC.
6. The Tribunal has framed seven issues for its
consideration. Issues No. 1 and 3 are relevant and they
read as follows:
1. Whether petitioners prove that the deceased Priya was the
authorised passenger in Indica Car bearing No.KA-29-M-
2995 and that alleged accident was occurred on
26.3.2010 at about 8.00 a.m. near Sankampalle on
Thirupathi-Chittur road due to the rash and negligent
M.F.A No.9847/2012
driving of the said car as well as lorry bearing Reg.No.KA-
01-AC-5466 and that the deceased died due to accidental
injuries?
2. ........
3 Whether respondent No.4 proves that the deceased was
an unauthorised passenger in the said car and there are
violation of policy conditions, therefore, they are not liable
to pay any compensation?
7. Answering issue No.1 partly in the affirmative
and issue No.3 in the affirmative, Tribunal has awarded a
compensation of Rs.3,59,000/- payable with interest at 6%
per annum, holding the owner of the car solely liable to pay
the compensation. The claim petition against other
respondents has been dismissed.
8. Shri. P.M. Gopi, learned Advocate for the
claimants submitted that deceased Prajwala was doing
business and earning about Rs.10,000/- per month. He
argued that the Tribunal has erred in construing the annual
income as Rs.36,000/- without recording any reasons.
9. He further submitted that the legal
representatives of the driver of the car have filed MVC
M.F.A No.9847/2012
No.576/2010. By its judgment and award dated July 25,
2012, the Fast Track Court, Basavakalyan, Bidar has
awarded a compensation of Rs.2,31,000/- payable with
interest at 6% p.a. holding the owner and the insurer of the
car jointly and severally liable to pay the compensation.
That judgment has attained finality and the insurer of the
car has satisfied the award. Therefore, the Tribunal's
judgment absolving the insurer of the car, is untenable and
liable to be set-aside.
10. With the above submissions, he prayed for
allowing this appeal, to enhance the compensation and to
hold the insurers of the car and lorry liable to pay the
compensation.
11. Shri. S. Srishaila learned Advocate for the
insurer of the car and Shri. S.T. Rajashekar, learned
Advocate for the insurer of the lorry argued opposing this
appeal.
M.F.A No.9847/2012
12. We have carefully considered rival contentions
and perused the records.
13. In the light of the pleadings on record and the
arguments addressed at the bar, the following points arise
for consideration:
(a) Whether, the claimants are entitled for enhancement of
compensation?
(b) Who is liable to satisfy the award?
Re: Point (a)
14. Undisputed facts of the case are, in the accident
involving the lorry and the car, Prajwala, one of the inmates
of the car died in the accident.
15. Claimants are Prajwala's parents. They have
contended that she was earning Rs.10,000/- per month.
They have not produced any oral or documentary evidence
to substantiate their claim.
16. At the time of her death, Prajwala was aged 20
years. In the absence of any evidence with regard to the
M.F.A No.9847/2012
earning capacity of the deceased, this Court has been
consistently considering the earning capacity of an able-
bodied person in the year 2010 as Rs.5,500/-. It is settled
that 40% of the notional income will have to be added
towards future prospects. She was unmarried. Therefore,
50% of her income has to be deducted towards personal
expenditure. The applicable multiplier is 18.
17. The compensation towards loss of dependency is
computed as follows:
The monthly income with future prospects works out
to Rs.7,700/-(Rs.5,500+2,200) [by adding 40% towards
future prospects(Rs.5,500*40% = 2,200)]. After deducting
50%, it works out to Rs.3,850/- per month (7,700*50%).
The Annual income works out to Rs.46,200/-(Rs.3,850*12).
By applying 18 as multiplier, the loss of dependency works
out to Rs.8,31,600/- (Rs.46,200*18).
M.F.A No.9847/2012
18. An amount of Rs.40,000/- each is to be awarded
towards 'loss of consortium' to the father and mother of the
deceased.
19. The total compensation is re-computed as
follows:
Sl.No Description Amount
a. Loss of dependency
Rs. 8,31,600
sb. ADD: Loss of consortium
Rs.80,000
(40,000*2)
c. ADD: Conventional heads;
Rs.30,000
funeral expenses, etc.,
d. Total (a+b+c) Rs.9,41,600
e. LESS:Compensation awarded Rs.3,59,000
by the Tribunal (d-e)
Enhanced Compensation Rs.5,82,600
The total compensation works out to Rs.9,41,600/-.
20. The Tribunal has granted interest at the rate of
6% per annum. The rate of interest is just and appropriate
and the same is maintained.
21. Accordingly point (a) is answered in the
affirmative.
M.F.A No.9847/2012
Re: Point (b)
22. It was argued by learned Advocate for the
appellant that the accident has occurred entirely due to
negligence on the part of driver of the lorry. Records
disclose that an abated charge sheet has been filed against
the driver of the car. We have perused Ex.R1, the sketch of
the accident spot prepared by the Station House Officer of
Pakala Police Station. It shows that the car was moving
towards North and the lorry was coming from the opposite
side. In the sketch, the lorry is found at the extreme left
side in its lane. The only eye witness is P.W.1, Prashanth.
He has stated in his examination-in chief that both the car
and lorry were being driven in high speed and negligent
manner. He has admitted in the cross-examination that the
width of the road is 60 feet and lorry was coming on the left
side in its lane. This probablizes the defence taken by the
insurer of the lorry that accident has occurred due to the
negligence on the part of the cab driver.
M.F.A No.9847/2012
23. Learned Advocate for the claimants adverting to
Ex.R1 submitted that the sketch was prepared much later
after moving the car to the extreme right to clear the
traffic. There is no evidence on record to substantiate this
contention. Therefore, the finding recorded by the Tribunal
on this aspect, does not call for any interference. The
resultant position is, the accident is wholly attributable to
the negligence on the part of the driver of the car.
24. It was further argued by Learned advocate for the
claimants that the Tribunal has erroneously absolved the
insurer of the Car on the ground that the car was used for
'hire' or 'reward'. He submitted that there is no material on
record to show that the car was hired or any reward paid.
He argued that PW-1 has categorically stated in the cross
examination that the car belonged to his friend, respondent
No.3. We have perused the evidence of PW-1. He has
stated in his cross examination that the car belonged to his
friend, the third respondent. He has further stated that
third respondent was also using his car and he was using
M.F.A No.9847/2012
third respondent's car. There is no other material on record
to suggest that any 'reward' was paid. Therefore, in our
view the finding recorded by the tribunal that the insurer of
the car is not liable to indemnify the owner of the car is not
sustainable.
25. The Tribunal has also recorded a finding in para
44 of the judgment that the car had permit to carry five
persons including the driver and as per the evidence of PW-
1 and RW-1, eight persons were traveling and the same is
in violation of permit condition and breach of policy
condition. PW-1 in his cross examination has stated that
excluding the driver, seven persons were traveling. Out of
them, two were small children. It is settled that unless it is
demonstrated that excess passengers is the cause of the
accident, the insurer cannot avoid liability. (See Lakhmi
Chand vs. Reliance General Insurance)2. Except PW-1,
there are no other eye witnesses. PW-1 has stated in his
cross examination that he was sitting in the seat next to the
(2016) 3 SCC 100 (para 16)
M.F.A No.9847/2012
driver. There is no other material to show that the accident
has occurred due to excess passengers. On the other hand,
PW-1 himself has stated in his Examination in Chief that
both the car and lorry were driven in a rash and negligent
manner.
26. We have perused the Insurance Policy. We have
perused the Insurance Policy. It is a package policy and
covers four inmates and the owner/driver. In case of death
of an inmate, his legal representatives/claimant(s) shall be
entitled for Rs.1,70,000/- and legal representatives of
driver shall be entitled for Rs.2,00,000/-. Therefore, we are
of the view that the insurer of the car cannot avoid liability
to pay as per the terms of the policy.
27. The claim petition is filed by the legal
representatives of deceased Prajwala. Therefore, they shall
be entitled for Rs.1,70,000/.
M.F.A No.9847/2012
28. Accordingly point (b) is answered partly in the
affirmative.
29. So far as the contention with regard to
compensation awarded to the driver of the car is concerned,
it is to be noted that the said claim petition was filed under
Section 163A of the MV Act 1988. Therefore, the judgment
in driver's case does not lend any support to the case of
claimants herein.
30. In view of the above, following:
ORDER
(a) Appeal is allowed in part, holding that
claimants are entitled for a total compensation of
Rs.9,41,600/-. The enhanced compensation is
Rs.5,82,600/-.
(b) The owner of the car, respondent No.3 is liable
to pay the total compensation of Rs.9,41,600/- with interest
at 6% p.a. from the date of claim petition, till the day of
payment.
M.F.A No.9847/2012
(c) Out of the total compensation, Insurer,
respondent No.4 (National Insurance Co. Ltd.,) is liable to
pay a sum of Rs.1,70,000/- with 6% interest from the date
of the claim petition, till the date of payment, as per Policy
condition;
No costs.
Sd/-
JUDGE
Sd/-
JUDGE
SPS
