Karnataka High Court
Sri Hanumanthappa vs Hdfc Ergo General Ins Co Ltd on 16 June, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.1205 OF 2021(MV)
C/W
MFA No.1803 OF 2021(MV)
IN MFA 1205/2021
BETWEEN:
HDFC ERGO GENERAL
INSURANCE CO.LTD.,
BY ITS BRANCH MANAGER
1ST FLOOR, H M GENEVA HOUSE
NO.14 CUNNINGHAM ROAD
BENGALURU-560052.
REP BY ITS SENIOR MANAGER LEGAL
NO.25/1 2ND FLOOR
BUILDING NO.2
SHANKARNARAYANA BUILDING
M G ROAD,BANGALORE-560001.
...APPELLANT
(BY SRI.D VIJAYAKUMAR, ADV.)
AND
1. SRI HANUMANTHAPPA
S/O SUNKAPPA
AGED ABOUT 63 YEARS.
2
2. SMT NARASAMMA
W/O HANUMANTHAPPA
AGED ABOUT 45 YEARS.
3. JHANSI RANI
D/O HANUMANTHAPPA
AGED ABOUT 27 YEARS
ALL ARE R/AT PUJAPPA BUILDING
8TH CROSS, PEENYA 7TH STAGE
BENGALURU-560058.
4. M/S SPT SPORTS MANAGEMENT P. LTD.
REP. BY ITS MANAGER
AMIT K SARAN
S/O A B SARAN
R/AT NO.10 SPORTS HOUSE
1ST MAIN, 1ST BLOCK
KORAMANGALA
BENGALURU-560034.
...RESPONDENTS
(BY. SRI.SPOORTHY HEGDE N., ADV. FOR R1 TO R3:
SRI. T.H. NARAYANA, ADV. FOR R4)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:01.12.2020, PASSED IN MVC NO.6464/2013,
ON THE FILE OF THE XIII-ADDITIONAL JUDGE, COURT
OF SMALL CAUSES AND MEMBER OF MACT,
BENGALURU (SCCH-15), AWARDING COMPENSATION
OF RS.7,12,040/- WITH INTEREST AT THE RATE OF 6
PERCENT P.A., FROM THE DATE OF THE CLAIM
PETITION TILL ITS REALIZATION. (SINCE 30 PERCENT
CONTRIBUTORY NEGLIGENCE OF THE DECEASED HAS
3
BEEN DEDUCTED OUT OF TOTAL COMPENSATION OF
RS.10,17,200/-).
IN MFA 1803/2021
BETWEEN:
1. SRI HANUMANTHAPPA
S/O SUNKAPPA
AGED ABOUT 63 YEARS.
2. SMT NARASAMMA
W/O HANUMANTHAPPA
AGED ABOUT 45 YEARS.
3. JHANSI RANI
D/O HANUMANTHAPPA
AGED ABOUT 27 YEARS
ALL ARE R/AT PUJAPPA BUILDING
8TH CROSS, PEENYA 7TH STAGE
BENGALURU-560058.
...APPELLANTS
(BY SRI.SPOORTHY HEGDE N., ADV.)
AND
1. HDFC ERGO GENERAL
INSURANCE CO.LTD.,
BY ITS BRANCH MANAGER
1ST FLOOR, H M GENEVA HOUSE
NO.14 CUNNINGHAM ROAD
BENGALURU-560052.
2. M/S SPT. SPORTS MANAGEMENT P. LTD.
4
REP. BY ITS MANAGER
AMIT K SARAN
S/O A B SARAN
R/AT NO.10 SPORTS HOUSE
1ST MAIN, 1ST BLOCK
KORAMANGALA
BENGALURU-560034.
...RESPONDENTS
(BY. SRI.D.VIJAYA KUMAR, ADV. FOR R1:
SRI. T.H. NARAYANA, ADV. FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:01.12.2020, PASSED IN MVC NO.6464/2013,
ON THE FILE OF THE XIII-ADDITIONAL JUDGE, COURT
OF SMALL CAUSES AND MEMBER OF 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 1205/2021 is filed by the Insurance
Company and MFA 1803/2021 is filed by the claimants
under Section 173(1) of the Motor Vehicles Act, 1988
(hereinafter referred to as 'the Act', for short) being
aggrieved by the judgment dated 1.12.2020 passed
by the Motor Accident Claims Tribunal, Bengaluru in
MVC 6464/2013.
2. Facts giving rise to the filing of the appeals
briefly stated are that on 6.6.2013 at about 9.00 a.m.,
when the deceased Narasimhamurthy being the rider
of motorcycle bearing registration No.KA-04-HK-7956
was proceeding towards Bengaluru after attending
relative's marriage on the left side of the road on NH-
7, when he reached near Sree Sai Priya Restaurant,
Bagepalli Taluk, Chikkaballapur District, at that time,
a car bearing registration No.KA-01-ME-5807 which
was being driven in a rash and negligent manner,
dashed against the motorcycle of the deceased from
behind. As a result of the aforesaid accident, the
deceased sustained grievous injuries and he was
shifted to M.S.Ramaiah hospital and succumbed to the
injuries on 14.6.2013.
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 respondent
No.1 appeared through counsel and filed written
statement in which the averments made in the
petition were denied. It was pleaded that the petition
itself is false and frivolous in the eye of law. The
mandatory provisions of Section 134(c) and 158(6) of
MV Act are not complied. It was further pleaded that
the claim petition is bad for non-joinder of necessary
parties. The deceased was not holding valid driving
licence as on the date of accident. The liability is
subject to terms and conditions of the policy. Hence,
he sought for dismissal of the petition.
The respondent No.2 appeared through counsel
and filed written statement in which the averments
made in the petition were denied. It was pleaded that
the petition itself is false and frivolous in the eye of
law. It was further pleaded that the accident was due
to the rash and negligent riding of the motorcycle by
the deceased himself. The age, occupation and income
of the deceased are denied. It was further pleaded
that the quantum of compensation claimed by the
claimants is exorbitant. 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.2 as PW-1,
Mr.Umashankar, Manager of the deceased as PW-2,
Mr.Chandra.N., eyewitness to the accident as PW-3
and Mr.T.C.Shivakumar, Investigating Officer as PW-
4 and got exhibited documents namely Ex.P1 to
Ex.P8. On behalf of respondents, two witnesses were
examined as RWs-1 and 2 and got exhibited
documents namely Ex.R1 to Ex.R4. The Claims
Tribunal, by the impugned judgment, inter alia, held
that the accident took place on account of contributory
negligence. The Tribunal further held that after
deducting 30% negligence on the part of the
deceased, the claimants are entitled to a total
compensation of Rs.712,040/- along with interest at
the rate of 6% p.a. and directed the Insurance
Company to deposit the said compensation amount
along with interest. Being aggrieved, these appeals
have been filed.
6. Mr.D.Vijayakumar, learned counsel for the
Insurance Company has raised the following
contentions:
Re: Negligence
The accident occurred due to sole negligence of
the deceased himself. He was riding the motorcycle on
the national highway without following the traffic rules
and immediately he has taken U-Turn to go to the
other side of the highway to the petrol bunk to fill
petrol. Hence, the accident has occurred. He further
contended that the car was proceeding from
Bangalore to Hyderabad. The motorcycle was coming
from Hyderabad to Bangalore. In a junction, the
deceased/rider of the motorcycle took U-turn and
suddenly entered the other side of the highway to
cross the road to go to the petrol bunk to fill the
petrol. When the deceased suddenly took U-turn and
entered the other side of the highway, near the
divider, even though the driver of the car, who was
proceeding on the highway has made efforts to control
the vehicle, since the deceased entered the highway
suddenly, he tried to control the car, but he could not
control and dashed the motorcycle. It is very clear
from the sketch that the deceased entered to the main
road, took U-turn in the road junction and reached 10
feet from the divider. The Tribunal failed to consider
this aspect of the matter. He further contended that
even RW-1, who is the owner of the car was an
inmate of the car and he has categorically stated that
the deceased himself was negligent in causing the
accident. He has not been cross examined by the
claimants. Even when the matter was remanded back
to the Tribunal for fresh consideration giving
opportunity to the claimants to cross examine RW-1,
the claimants have not chosen to cross examine RW-
1. Therefore, the Tribunal has not properly considered
the evidence of RW-1. He further contended that it is
very clear from Rule 12 of the Rules of the Road
Regulations, 1989 that 'no driver shall take a 'U' turn
where 'U' turn is specially prohibited and on busy
traffic road. If a 'U' turn is allowed the driver shall
show signal by hand as for a right turn, watch in the
rear view mirror and turn when safe to do so'. In the
case on hand, without observing the car proceeding
on the national highway, the deceased took U turn
suddenly. Hence, the deceased himself is negligent in
causing the accident. The police after investigation
have filed charge sheet against the deceased. There is
no negligence on the part of the driver of the car. He
further contended that it is not in dispute that the
deceased was taking U-turn and entered the other
side of the highway and it is not in dispute that the
deceased took U turn to go to the petrol bunk on the
either side of the highway to fill the petrol. It is
admitted fact that he was crossing the road. The
Tribunal has not considered this aspect of the matter.
Hence, the Tribunal has erred in holding that the
driver of the car has contributed to the accident to the
extent of 70%.
Re: Quantum of compensation:
Firstly, the claimants claim that the deceased
was earning income of Rs.16,000/- per month and
Rs.3,000/- as Petrol allowances by working as
plumber in the company and produced Ex.P-7 and
Authorization letter Ex.P-8 and examined the manager
of the company as PW-2. They have not produced any
document to show that he was receiving the salary of
Rs.16,000/- p.m. and also did not produce any bank
statement to support the same. In the absence of
proof of income, the Tribunal has rightly assessed the
notional income at Rs.6,000/- p.m.
Secondly, the age and avocation of the
deceased, the overall compensation awarded by the
Tribunal is on the higher side. Hence, he prays for
allowing the appeal filed by the Insurance Company.
7. On the other hand, the learned counsel for
the claimants has raised the following counter-
contentions:
Re: Negligence
The accident occurred due to rash and negligent
driving of the car by its driver. The driver of the car
was driving the same at a high speed and in a rash
and negligent manner. Even though he was
approaching the divider, he has not made any effort to
slow down the vehicle. He contended that even as per
Rule 8 of the Rules of the Road Regulations, 1989,
'Caution at road junction: the driver of a motor vehicle
shall slow down when approaching at a road
intersection, a road junction, pedestrian crossing or a
road corner, and shall not enter any such intersection,
junction or crossing until he has become aware that
he may do so without endangering the safety of
persons thereon'. The driver of the car has not
slowed down the vehicle. The same is evident from
the sketch wherein it discloses that there is tyre mark
of the car to the distance of 40 feet. Even as per the
evidence of PW-4, Investigating Officer, wherein he
has admitted that there is tyre mark of the car from
the distance of 40 feet. Therefore, it is clear that the
driver of the car was proceeding at a high speed and
he has not made any effort to avoid the accident. The
width of the road is 60 feet and the accident occurred
just 10 feet away from the divider and there was 50
feet space available for the car towards left side of the
road. If the driver of the car had taken caution, he
could have avoided the accident by taking the vehicle
to the left side of the road. The driver of the car was
not in a position to control the vehicle, since he was
proceeding at a high speed. The driver of the car is
alone negligent in causing the accident. He further
contended that the driver of the car has not been
examined. The Tribunal has not properly appreciated
the evidence on record and has wrongly held that the
deceased has contributed to the accident to the
extent of 30%.
Re: Quantum of compensation
Firstly, the claimants claim that the deceased
was working as a plumber in the company and earning
Rs.16,000/- per month and Rs.3000/- as Petrol
allowances and produced experience certificate Ex.P-7
and Authorization letter Ex.P-8 and examined the
manager of the company. But the Tribunal is not
justified in taking the monthly income of the deceased
as merely as Rs.6,000/-.
Secondly, as per the law laid down by the
Hon'ble Supreme Court in the case of NATIONAL
INSURANCE CO. LTD. -v- PRANAY SETHI AND
OTHERS [AIR 2017 SC 5157], in case the deceased
was self-employed or on a fixed salary, an addition of
40% of the established income towards 'future
prospects' should be the warrant where the deceased
was below the age of 40 years. The same has been
rightly considered by the Tribunal.
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], claimant No.3 is also entitled for
compensation of Rs.40,000/- under the head of 'loss
of love and affection'. Hence, he prays for allowing the
appeal filed by the claimant.
8. The learned counsel for the owner of the
car has adopted the contentions of the learned
counsel for the Insurance Company. He contended
that the car was insured with Insurance Company and
if this court holds that the insured is liable to pay
compensation, then the Insurance Company shall
indemnify the insured.
9. Heard the learned counsel for the parties
and perused the records.
RE: NEGLIGENCE
10. The case of the claimants is that on
6.6.2013 at about 9.00 a.m., when the deceased
Narasimhamurthy being the rider of motorcycle
bearing registration No.KA-04-HK-7956 was
proceeding towards Bengaluru after attending relative
marriage on the left side of the road on NH-7, reached
near Sree Sai Priya Restaurant, Bagepalli Taluk,
Chikkaballapur District, at that time, a car bearing
registration No.KA-01-ME-5807 which was being
driven in a rash and negligent manner, dashed against
the motorcycle of the deceased from behind. As a
result of the aforesaid accident, the deceased
sustained grievous injuries and he was shifted to
M.S.Ramaiah hospital and succumbed to the injuries
on 14.6.2013.
To prove the case, the claimants have examined
claimant No.2 as PW-1, Mr.Umashankar, Manager of
the company as PW-2, Mr.N.Chandra, eye witness to
the accident as PW-3 and Mr.T.C.Shivakumar,
Investigating Officer as PW-4.
PW-1 in her evidence has reiterated the
averments made in the claim petition. PW-3,
Mr.Chandra, eye witness to the accident in his
evidence has deposed that on 6.6.2013, when the
deceased Narasimhamurthy after attending relative's
marriage was proceeding on another motorcycle
towards Sunkalamma Temple to offer pooja along with
deceased in a separate motorcycle, when he reached
near Sri Sai Priya restaurant on NH-17 road, due to
shortage of fuel, the deceased took U turn and he
stood at the edge of the divider in his separate
motorcycle and when the deceased was taking U Turn,
suddenly the car bearing registration No.KA-01-ME-
5807 came from Bangalore side in a rash and
negligent manner and dashed to the motorcycle, due
to which, he fell down and sustained injuries and
succumbed to injuries. It is very clear from evidence
of PW-3 that he has admitted that he was standing on
the side of the spot of accident and deceased took U-
Turn to go to the petrol bunk situated on the other
side of the highway and car was coming from
Bangalore side. He denied that the accident took place
on account of rash and negligent riding of the
motorcycle by the deceased. The have also examined
PW-4, Mr.T.C.Shivakumar, Investigating Officer, who
has stated in his evidence that he has received the
complaint on 6.6.2013 and registered the case against
the driver of the car. Later they conducted spot
mahazar and seized both the vehicles involved in the
accident and requested the RTO to examine both the
vehicles and to give report and he completed the
arrest procedure and the accused driver Vishwas
Saran was enlarged on bail. PW-4 has admitted that
as per the sketch, on the spot of the accident, there is
tyre mark to the distance of 40 feet, which reflects the
speed of the car. After thorough investigation, the
police have filed charge sheet against the deceased.
The Insurance Company has examined the
owner of the car as RW-2 and he was the inmate of
the car at the time of the accident. He has denied that
the accident occurred due to rash and negligent
driving of the car by its driver. He has deposed that
the driver of the car was holding valid driving licence
as on the date of accident. The claimants have not
cross-examined RW-2.
In support of oral evidence, the claimants have
produced Ex.P-1 to 8. As per Ex.P-3, spot sketch, the
width of the road is 60 feet and the accident occurred
just 10 feet away from the divider and there was 50
feet space available on the left side of the road. It is
not the case of respondent that there was so many
vehicles moving on the left side of the road and there
is no chance for taking the car towards the left side. It
is very clear from the sketch that the deceased stood
at the edge of the divider and was taking U Turn and
was crossing the road to reach the petrol bunk
situated on the other side of the road. The accident
occurred 10 feet from the edge of the divider.
11. Rule 8 of the Rules of the Road Regulations
1989 reads as follows:
Caution at road junction: The driver of a
motor vehicle shall slow down when approaching
at a road intersection, a road junc-tion,
pedestrian crossing or a road corner, and shall
not enter any such intersection, junction or
crossing until he has become aware that he may
do so without endangering the safety of persons
thereon.
It is very clear from the above Rule that the driver of
the motorvehicle shall slow down the vehicle when he
is approaching at a road intersection, junction, road
corner.
Rule 12 of the Rules of the Road Regulations
1989 reads as follows:
Taking U' turn. No driver shall take a U'
turn where U' turn is specially prohibited and on
busy traffic road. If a U' turn is allowed the
driver shall show signal by hand as for a right
turn, watch in the rear view mirror and turn
when safe to do so.
It is very clear from the above said rule that if a driver
is allowed to take U turn, he has to show signal by
hand and watch on both sides of the road and
cautiously take turn.
12. It is very clear from the evidence of the
parties and spot mahazar, spot sketch, IMV report,
the driver of the car was proceeding at a high speed
and in a rash and negligent manner and has not made
any effort to slow down the car. Even the deceased
was taking U turn without following the rules and
vehicles proceedings on National Highway and
negligently took U-turn to go to the other side of the
road to fill petrol in the petrol bunk.
From the above discussions and considering the
oral evidences of the parties and materials available
on record such as spot sketch, mahazar and IMV
report, I am of the considered opinion that both the
driver of the car as well as deceased have equally
contributed to the accident to the extent of 50% each.
RE: QUANTUM OF COMPENSATION
13. The claimants claim that the deceased was
working as a plumber in a company and earning
Rs.16,000/- per month and Rs.3,000/- as Petrol
allowances and produced experience certificate Ex.P-7
and Authorization letter Ex.P-8 and examined the
manager of the company. They have not produced
any document to show that he was receiving the
salary of Rs.16,000/- p.m. and did not produce any
supporting document such as bank statement. 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 2013, the notional
income of the deceased has to be taken at Rs.8,000/-
p.m.
To the aforesaid income, 40% has to be added
on account of future prospects in view of the law laid
down by the Constitution Bench of the Supreme Court
in 'PRANAY SETHI' (supra). Thus, the monthly
income comes to Rs.11,200/-. Since the deceased
was a bachelor, it is appropriate to deduct 50% of the
income of the deceased towards personal expenses
and remaining amount has to be taken as his
contribution to the family. The deceased was aged
about 23 years at the time of the accident and
multiplier applicable to his age group is '18'. Thus,
the claimants are entitled to compensation of
Rs.12,09,600/- (Rs.11,200*12*18*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'.
In view of the law laid down by the Supreme
Court in the case of 'MAGMA GENERAL
INSURANCE' (supra), claimant No.1 and 2, parents
of the deceased are entitled for compensation of
Rs.40,000/- each under the head of 'loss of filial
consortium'.
14. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 12,09,600
Funeral expenses 15,000
Loss of estate 15,000
Loss of filial consortium 80,000
Total 13,19,600
Less: 50% negligence 6,59,800
on the part of the
deceased
Balance 6,59,800
15. 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.6,59,800/- as against
Rs.7,12,040/- awarded by the Tribunal.
The Insurance Company is directed to deposit
the compensation amount along with interest at 6%
p.a. from the date of filing of the claim petition till the
date of realization, within a period of six weeks from
the date of receipt of copy of this judgment.
The amount in deposit is ordered to be
transferred to the Tribunal forthwith.
The Tribunal is directed to release the
compensation amount in favour of the claimants after
due verification.
Sd/-
JUDGE
DM
