Karnataka High Court
The Reliance General Insurance ... vs Smt Shobha on 31 May, 2022
Bench: B.Veerappa, K S Hemalekha
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R
MFA No. 2179 of 2018
C/W MFA No. 2325 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MAY, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K. S. HEMALEKHA
MISCELLANEOUS FIRST APPEAL NO.2179 OF 2018 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO.2325 OF 2018 (MV)
IN MFA No.2179/2018:
BETWEEN:
1. THE RELIANCE GENERAL
INSURANCE COMPANY LTD.,
EAST WING , 5TH FLOOR, NO.28,
CENTENARY BUILDING , M. G. ROAD,
BENGALURU 560001.
NOW REPRESENTED BY
MANAGER LEGAL.
...APPELLANT
(BY SRI. ASHOK N PATIL., ADVOCATE)
AND:
Digitally signed by
GAVRIBIDANUR
SUBRAMANYA
1. SMT. SHOBHA,
GUPTA SREENATH W/O LATE CHANDRAPPA @ CHANDRA,
Location: High Court
of Karnataka AGED ABOUT 38 YEARS,
2. CHANDRA @ CHANDRAPPA,
S/O LATE CHIKKAKUNTAIAH,
AGED ABOUT 49 YEARS,
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MFA No. 2179 of 2018
C/W MFA No. 2325 of 2018
BOTH ARE R/AT KAVANAPURA VILLAGE,
KAILANCHA HOBLI,
RAMANAGARA TALUK,
RAMANAGARA DISTRICT-571511.
3. HARISH K. C.,
S/O CHOLURAPPA
R/AT KEMPANAHALLI VILLAGE
MAYAGANAHALLI POST,
RAMANAGARA TALUK,
RAMANAGARA DISTRICT-571511.
...RESPONDENTS
(BY SRI. T. P. VIVEKANANDA, ADVOCATE FOR R1 AND R2;
R3 IS SERVED, BUT UNREPRESENTED)
****
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 30.12.2017 PASSED IN MVC NO.217/2017 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC,
ADDITIONAL MACT, CHANNAPATTANA, AWARDING
COMPENSATION OF RS.12,04,000/- WITH INTEREST AT 6%
P.A. FROM THE DATE OF PETITION TILL THE DATE OF
DEPOSIT.
IN MFA No.2325/2018:
BETWEEN:
1. SMT. SHOBHA
W/O.CHANDRAIAH @ CHANDRAPPA,
AGED ABOUT 38 YEARS,
2. CHANDRAIAH @ CHANDRAPPA,
AGED ABOUT 49 YEARS,
S/O. LATE. CHIKKAKUNTAIAH,
BOTH ARE RESIDING AT
KAVANAPURA VILLAGE,
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MFA No. 2179 of 2018
C/W MFA No. 2325 of 2018
KAILANCHA HOBLI,
RAMANAGARA TALUK,
RAMANAGARA DISTRICT.
...APPELLANTS
(BY SRI VIVEKANANDA T. P., ADVOCATE)
AND:
1. HARISH K. C.,
MAJOR,
S/O. CHOLURAPPA,
R/AT KEMPANAHALLI VILLAGE,
MAYAGANAHALLI POST,
RAMANAGARA TALUK,
RAMANAGARA DISTRICT.
2. THE RELIANCE GENERAL INSURANCE
COMPANY LTD.,
NO. 28, EAST WING,
5TH FLOOR, CENTENARY BUILDING,
M.G. ROAD,
BENGALURU 560001.
...RESPONDENTS
(BY SRI ASHOK N. PATIL, ADVOCATE FOR R2;
VIDE ORDER DATED 31.05.2022 NOTICE TO R1 IS DISPENSED
WITH)
*****
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 30.12.2017 PASSED IN MVC NO.217/2017 ON
THE FILE OF THE SENIOR CIVIL JUDGE & J.M.F.C. &
ADDITIONAL MACT., CHANNAPATTANA, RAMANAGARA
DISTRICT, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR
ADMISSION THIS DAY, B.VEERAPPA J., DELIVERED THE
FOLLOWING:
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C/W MFA No. 2325 of 2018
JUDGMENT
MFA No.2179/2018 is filed by the Insurance Company for
reduction of the compensation and MFA No.2325/2018 is filed
by the claimants for enhancement of compensation. These
appeals are filed against the common Judgment & Award dated
30th December 2017 made in MVC No.217/2017 on the file of
the Senior Civil Judge & JMFC & Addl. MACT, Channapatna,
awarding total compensation of Rs.12,04,000/- with interest at
6% per annum from the date of petition till the date of deposit.
2. It is the case of the claimants, who are father and
mother of the deceased - Darshan that on 17.3.2017 at 6.00
a.m. when the deceased Darshan was proceeding in the Hero
Honda Passion motorcycle bearing Registration No.KA-42.M-
1492 near Honganuru lake bund, Channapatna-Honganuru
road, at that time the driver of the lorry bearing Registration
No.KA-42-6491 came from Channapatna side in high speed and
rash and negligent manner and dashed against the deceased
Darshan's vehicle and caused accident, as a result the
deceased Darshan dashed to another motorcycle and he fell
MFA No. 2179 of 2018
C/W MFA No. 2325 of 2018
down and the wheel of the lorry ran over him and he sustained
grievous injuries on his head and all over the body and died at
the spot. It is further case of the claimants that the deceased
was 20 years at the time of the accident and he was working in
Toyota company and earning Rs.12,000/- per month and the
claimants lost love and affection and earning member of the
family. Therefore, the claimants sought for total compensation
of Rs.40,00,000/-.
3. Inspite of service of summons, respondent/owner of
the vehicle remained absent and he was placed exparte before
the Tribunal. The respondent No.2/Insurance company in MFA
No.2325/2018 filed the written statement denying the
averments made in the claim petition. The 2nd respondent
/Insurance company though admitted that the policy of the
offending vehicle was in force as on the date of the accident,
has contended that the liability is subject to terms and
conditions of the policy. It is further contended that driver of
the offending vehicle did not possess valid and effective Driving
Licence as on the date of the accident. Therefore, sought for
dismissal of the claim petition.
MFA No. 2179 of 2018
C/W MFA No. 2325 of 2018
4. Based on the aforesaid pleadings, the Tribunal framed
following two issues for consideration:
"1. Whether the petitioners prove that Sri
Darshan C succumbed in the Road Traffic
Accident that occurred on 17.03.2017 at
about 6.00 a.m. near Honganuru lake,
Honganuru village, Channapatna which was
due to rash and negligent driving of Tipper
Lorry bearing No.KA-12.6491 by it's driver?
2. Whether the petitioners are entitled for
compensation? If so how much and from
whom?"
5. In order to prove their case, claimant No.1 examined
herself as PW.1 and got marked 14 documents as per Ex.P1 to
Ex.P14. The Insurance Company has neither adduced any
evidence nor got marked any documents on its behalf.
6. Considering both the oral and documentary evidence
on record, the Tribunal answered Issue Nos.1 and 2 in the
affirmative holding that the claimants proved that the deceased
Darshan succumbed in the road traffic accident that occurred
on 17.3.2017 at about 6.00 a.m. near Honganuru lake,
MFA No. 2179 of 2018
C/W MFA No. 2325 of 2018
Honganuru village, Channapatna, which was due to rash and
negligent driving of Tipper Lorry bearing No.KA-12-6491 by its
driver and the claimants entitled for compensation.
Accordingly, the Tribunal awarded total compensation of
Rs.12,04,000/- with interest at 6% per annum from the date
of petition till the date of deposit. Hence, MFA No.2179/2018 is
filed by the Insurance Company for reduction of compensation
and MFA No.2325/2018 is filed by the claimants for
enhancement of compensation.
7. We have heard the learned counsel for the parties to
the lis.
8. Sri Ashok N. Patil, learned counsel for the Insurance
company contended with vehemence that the Tribunal
proceeded to award total compensation of Rs.12,04,000/- with
interest at 6% per annum erroneously without considering the
material on record in the proper perspective. He contended
that the Tribunal erred in taking the income of the deceased at
Rs.7,000/-, without there being any proof of income and also
erred in adding 50% towards future prospects instead of 40%,
MFA No. 2179 of 2018
C/W MFA No. 2325 of 2018
ignoring the law declared by the Hon'ble Supreme Court in the
case of National Insurance company Limited -vs- Pranay
Sethi and others {(2017)16 SCC 680} and thereby the
compensation of Rs.11,34,000/- awarded under the head of
'loss of dependency' is erroneous and contrary to the material
on record and cannot be sustained. He further contended that
10% of the total compensation ought to have been deducted
towards contributory negligence as the deceased was not
wearing helmet at the time of the accident as mandated under
Section 129 of the Motor Vehicles Act. In support of his
contention, he relied upon the dictum of Madras High Court in
the case of M/s United India Insurance Company -vs- M.
Ravikumar, wherein the Coordinate Bench of Madras High
Court deducted 10% of the total compensation from the total
compensation as the injured therein was not wearing the
helmet as mandated under Section 129 of the Motor Vehicles
Act. Therefore, he sought for reduction of the compensation by
allowing the appeal filed by the Insurance Company and
dismiss the appeal filed by the claimants.
MFA No. 2179 of 2018
C/W MFA No. 2325 of 2018
9. Per contra, Sri Vivekananda T.P., learned counsel
appearing for the claimants contended that the Tribunal erred
in taking monthly income of the deceased at Rs.7,000/-,
ignoring the evidence of the claimant No.1 (PW.1), who has
stated on oath that the injured was working in Toyota company
and earning Rs.12,000/- per month and though the claimants
produced the salary certificates as per Ex.P8 and Ex.P9, the
Tribunal disbelieved the same on the ground that the author of
the said documents has not been examined. In the absence of
proof of avocation and income of the deceased, in all fairness,
the Tribunal ought to have invoked the guidelines issued by the
Karnataka State Legal Services Authority and taking into
consideration that the accident occurred on 17.3.2017, notional
income ought to have been taken at Rs.11,000/- per month by
the Tribunal. Hence, the claimants are entitled for enhanced
compensation towards 'loss of dependency'.
10. Learned counsel for the claimants further contended
that the admittedly the accident occurred due to the rash and
negligent driving of Tipper Lorry bearing No.KA-42-6491.
There is a specific adverse finding by the Tribunal against driver
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C/W MFA No. 2325 of 2018
of the offending vehicle. The same is evidenced by the
material documents - Ex.P1/FIR and Ex.P4/charge sheet.
Therefore, there cannot be deduction of 10% towards
contributory negligence as contended by the learned counsel
for the Insurance Company by mere not wearing Helmet as
contemplated under Section 129 of the Motor Vehicles Act, in
terms of the judgment of the Madras High Court relied upon by
learned counsel for the Insurance company. At the most, it is
violation of the provisions of the Motor Vehicles Act and the
competent authority could have imposed penalty. The facts in
the judgment of Madras High Court differ from the facts of the
present case. Therefore, he sought for enhancement of
compensation by allowing the appeal filed by the claimants and
to dismiss the appeal filed by the Insurance Company.
11. In view of the aforesaid rival contentions urged by
the learned counsel for the parties, the points that would arise
for our consideration in these appeals are:
i) Whether the Insurance company has made out
a case for reduction of the compensation in the
facts and circumstances of the case ?
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MFA No. 2179 of 2018
C/W MFA No. 2325 of 2018
ii) Whether the claimants have made out a case
for enhancement of compensation in the facts
and circumstances of the present case ?
12. We have given our anxious consideration to the
arguments advanced by the learned counsel for the parties and
perused the entire original records carefully.
13. The relationship between the parties is not in dispute.
It is not in dispute that Sri Darshan C, aged about 19 years died
in the road traffic accident that occurred on 17.3.2017 due to
the rash and negligent driving of the driver of Tipper Lorry
bearing Registration No.KA.42.6491 near Honganuru lake bund,
Channapatna-Honganuru road. The same is evidenced by the
material documents - Ex.P1/FIR and Ex.P4/charge sheet.
Admittedly, lodging of the FIR and filing of the charge sheet are
not challenged either by the owner of the vehicle or the
Insurance Company. Thereby, the death of the deceased
Darshan, aged about 19 years was due to the rash and
negligent driving on the part of driver of the Tipper lorry, is
proved.
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MFA No. 2179 of 2018
C/W MFA No. 2325 of 2018
14. It is specifically stated by PW.1, who is mother of the
deceased that the deceased was working in Toyota company
and earning Rs.12,000/- per month and she has produced
salary slips as per Ex.P8 and Ex.P9. The Tribunal recorded a
finding that the claimants have not examined the author of the
said documents and as such they cannot be relied upon. In
the absence of clear proof of avocation and income of the
deceased, the Tribunal taken the notional income at Rs.7,000/-
per month. The Tribunal has ignored the fact that in the
absence of income proof, in all fairness the Tribunal should
have taken the notional income as per the chart prepared by
the Karnataka State Legal Services Authority for the relevant
year. Admittedly, the accident occurred on 17.3.2017 and as
per the chart prepared by the KSLSA, the notional income of
the deceased has to be taken at Rs.11,000/- per month.
15. Sri Ashok N. Patil, learned counsel for the Insurance
Company rightly contended that the Tribunal was not justified
in taking 50% as future prospects and the claimants are
entitled for addition of only 40% towards future prospects as
held by the Hon'ble Supreme Court in Pranay Sethi case. The
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MFA No. 2179 of 2018
C/W MFA No. 2325 of 2018
monthly income of the deceased was Rs.11,000/- and on
addition of 40% towards future prospects, total monthly income
would be Rs.15,400/- (Rs.11,000/- plus Rs.4,400/-). Since the
deceased was a bachelor, 50% has to be deducted towards
personal and living expenses, in view of the dictum of the
Hon'ble Supreme Court in the case of Sarla Verma (Smt.)
and others -vs- Delhi Transport Corporation and Another
reported in (2009)6 SCC 121. Therefore the actual income of
the deceased would be 7,700/- (Rs.15,400/- minus Rs.7,700/-).
Considering the age of the deceased, the multiplier applicable
would be 18. Therefore, 'loss of dependency' for the claimants
would be Rs.16,63,200/- (Rs.7,700/- x 12 x 18).
16. The Hon'ble Supreme Court time and again including
in the case of Pranay Sethi and subsequent judgments held
that under the head of 'love and affection', each claimant is
entitled to Rs.40,000/-. In the present case, there are two
claimants and therefore, they are entitled to Rs.80,000/-
in total (i.e., Rs.40,000/- each). The compensation awarded
under the heads of 'loss of estate' and 'transportation of dead
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MFA No. 2179 of 2018
C/W MFA No. 2325 of 2018
body and funeral expenses' is just and proper and the same is
left undisturbed. Therefore, the claimants are entitled to total
compensation of Rs.17,73,200/- and the enhanced
compensation would come to Rs.5,69,200/- (Rs.17,73,200/-
minus Rs.12,04,000/-).
17. Learned counsel for the insurance company
contended that the deceased was not wearing the helmet at
the time of the accident as mandated under the provisions of
Section 129 of the Motor Vehicles Act and therefore 10% has to
be deducted from the total compensation, in terms of the
judgment of the Coordinate Bench of Madras High Court in the
case of M/s United India Insurance Company -vs- M.
Ravikumar in C.M.A. No.1739/2016 and connected matters
decided on 27th June 2018. In the said case, Madras High
Court has come to the conclusion that the accident occurred
due to the negligence on the part of the driver of the car, but
proceeded to hold that since the rider of two wheeler did not
wear the helmet, it is the duty of the Court to order certain
amount of penalties for non-compliance of provisions of the Act,
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MFA No. 2179 of 2018
C/W MFA No. 2325 of 2018
thereby the Division Bench ordered to deduct 10% of the
amount from the total compensation awarded due to non
wearing the helmet by the injured.
18. In view of the contentions raised by the learned
counsel for the Insurance company and the law declared by the
Coordinate Bench of the Madras High Court, it is relevant to
consider the provisions of Section 129 of the Motor Vehicles
Act, 1988 as it stood before the amendment, which reads as
under:
129. Wearing of protective headgear.--Every
person driving or riding (otherwise than in a side
car, on a motor cycle of any class or description)
shall, while in a public place, wear [protective
headgear conforming to the standards of Bureau of
Indian Standards]:
Provided that the provisions of this section shall not
apply to a person who is a Sikh, if he is, while
driving or riding on the motor cycle, in a public
place, wearing a turban:
Provided further that the State Government may,
by such rules, provide for such exceptions as it may
think fit.
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MFA No. 2179 of 2018
C/W MFA No. 2325 of 2018
Explanation.--"Protective headgear" means a
helmet which,--
(a) by virtue of its shape, material and
construction, could reasonably be expected to
afford to the person driving or riding on a
motor cycle a degree of protection from injury
in the event of an accident; and
(b) is securely fastened to the head of the wearer
by means of straps or other fastenings
provided on the headgear.
19. By careful perusal of the aforesaid provisions, it
clearly depicts that every person driving or riding (otherwise
than in a side car, on a motor cycle of any class or description)
shall, while in a public place, wear protective headgear
conforming to the standards of Bureau of Indian Standards;
provided that the provisions of this section shall not apply to a
person who is a Sikh, if he is, while driving or riding on the
motor cycle, in a public place, wearing a turban: Provided
further that the State Government may, by such rules, provide
for such exceptions as it may think fit. As per Explanation to
Section 129 of the Motor Vehicles Act, "Protective headgear"
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MFA No. 2179 of 2018
C/W MFA No. 2325 of 2018
means a helmet which, (a) by virtue of its shape, material
and construction, could reasonably be expected to afford to the
person driving or riding on a motor cycle a degree of protection
from injury in the event of an accident; and (b) is securely
fastened to the head of the wearer by means of straps or other
fastenings provided on the headgear. The procedure
contemplates that non-wearing Helmet, is not a ground to
deny the compensation.
20. The fact remains that the accident occurred due to
the rash and negligent driving of driver of the offending vehicle
i.e., lorry bearing Registration No.KA-42.6491. The charge
sheet filed against the driver of the offending vehicle, is not
challenged either by the owner or the insurance company.
Admittedly, in the present case, the vehicle ran over the
deceased, who was riding the motorcycle. There is nothing
on record to show wrongful act on the part of the deceased or
that the deceased contributed to the accident. In the absence
of any contra evidence or the documents produced to prove
that the accident occurred due to the negligence of the
deceased, question of deducting 10% towards contributory
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MFA No. 2179 of 2018
C/W MFA No. 2325 of 2018
negligence as contended by the learned counsel for the
insurance company relying upon the judgment of the Madras
High Court, does not arise. The facts in the judgment of
Madras High Court are different from the facts of this case.
21. Admittedly in the present case, the Insurance
Company has not adduced any evidence nor produced any
contra material to prove that there was any negligence on the
part of the deceased and it is also not the case of the
Insurance Company that because of non-wearing helmet, the
accident occurred. In the absence of the same, the
contention of the learned counsel for the Insurance Company
that 10% of the total compensation has to be deducted for
non-wearing of helmet, cannot be accepted. Simply because
the deceased was not wearing a helmet and violated Section
129 of the Motor Vehicles Act, it cannot be said that he
contributed to the accident. Merely driving the two wheeler
without wearing the helmet itself cannot be treated as
contributory negligence and this Court cannot come to a
conclusion that the same was the reason for the accident. At
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C/W MFA No. 2325 of 2018
the most, it is violation of rule and the competent authority
could have imposed penalty.
22. In view of the aforesaid reasons, the Insurance
Company has not made out any ground for reduction of the
compensation awarded to the claimants. However, the
Insurance Company has made out a case for addition of 40 %
towards future prospects instead of 50% while computing
compensation towards 'loss of dependency'.
23. For the reasons stated above, we answer the 1st
point raised in these appeals in the negative holding that the
Insurance Company has not made out a case for reduction of
the compensation and the 2nd point is answered in the
affirmative holding that the claimants have made out a case
for enhancement of compensation in the facts and
circumstances of the case.
24. On re-assessment of the entire oral and
documentary evidence on record, we are of the considered
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C/W MFA No. 2325 of 2018
opinion that the claimants are entitled for compensation under
different heads as under:
Sl. Compensation Head Amount of compensation
awarded
No.
1 Loss of Dependency Rs.16,63,200=00
2 Loss of love and affection Rs. 80,000=00
4 Loss of estate Rs. 15,000=00
5 Transportation of dead body Rs. 15,000=00
and funeral expenses
Total Rs.17,73,200=00
25. In all, the claimants are entitled to total
compensation of Rs.17,73,200/- as against Rs.12,04,000/-
awarded by the Tribunal. Thus, the claimants are entitled to
enhanced compensation of Rs.5,69,200/-.
26. For the reasons stated above, we pass the
following:
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MFA No. 2179 of 2018
C/W MFA No. 2325 of 2018
ORDER
i) The Miscellaneous First Appeal are allowed
in part.
ii) The impugned Judgment & Award passed by
the Tribunal is hereby modified. The
claimants are entitled to total compensation
of Rs.17,73,200/- as against Rs.12,04,000/-
awarded by the Tribunal.
iii) The enhanced compensation of
Rs.5,69,200/- shall carry interest at the rate
of 6% per annum from the date of petition till
the date of deposit.
iv) The apportionment, release of enhanced
compensation amount shall be as per the
impugned judgment & Award of the Tribunal.
v) The Respondent No.2/Insurance company in
MFA No.2325/2018 shall deposit the
enhanced compensation within a period of
four weeks from the date of receipt of
certified copy of this judgment with
proportionate interest.
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C/W MFA No. 2325 of 2018
vi) The Registry is directed to return the trial
Court Records forthwith.
Office is directed to draw the Award accordingly.
SD/-
JUDGE
SD/-
JUDGE
GSS
