Karnataka High Court
Smt Manjula vs V.M.Mohan on 9 September, 2022
Bench: Rajendra Badamikar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
MFA NO.9117/2018(MV)
C/W
MFA CROB NO.48/2019(MV)
IN MFA NO.9117/2018:
BETWEEN:
SHRIRAM GENERAL INSURANCE CO. LTD.
NO.S-5, ILL FLOOR,MONARCH CHAMBERS
INFANTRY ROAD, BANGALORE-560 001
BY SHRIRAM GENERAL INSURANCE CO. LTD.
5/4, 3RD CROSS, S.V. ARCADE
BELAKANAHALLI MAIN ROAD
OPP: BANNERAGHATTA MAIN ROAD
II M.B. POST, BANGALORE-560 076
BY IT'S MANAGER
... APPELLANT
(BY SRI. O. MAHESH, ADVOCATE)
AND:
1. SMT. MANJULA
W/O LATE SUDHAKAR BABU
AGED ABOUT 31 YEARS
2. S. CHANDANA
AGED 12 YEARS
D/O LATE SUDHAKAR BABU
3. S. DEEKSHITHA
AGED 8 YEARS
D/O LATE SUDHAKAR BABU
4. S. ANGEL
AGED 4 YEARS
2
D/O LATE SUDHAKAR BABU
RESPONDENTS NO.2 TO 4 ARE MINORS
REPRESENTED BY N/G MOTHER
1ST RESPONDENT
5. MUNICHANNAPPA
AGED 66 YEARS
S/O DODDA CHANNAPPA
6. SARASWATHAMMA
AGED 61 YEARS
W/O MUNICHANNAPPA
ALL R/A NO.147
BHAKTHARAHALLI VILLAGE & POST
JANGAMAKOTE HOBLI, SIDLAGHATTA TQ.
CHIKKABALLAPURA DISTRICT-562 101
7. V.M. MOHAN, MAJOR
S/O MARIYAPPA
R/AT VEEREGOWDANA DODDI
HAROHALLI HOBLI
KANAKAPURA TALUK
RAMANAGARA DISTRICT-571 511
... RESPONDENTS
(BY SRI. K. VISHWANATHA, ADVOCATE FOR R1 TO R6;
R7 SERVED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED:
18.08.2018, PASSED IN MVC NO.3471/2017 ON THE FILE
OF THE VII ADDITIONAL SCJ & XXXII ACMM, MEMBER,
MACT-3, BENGALURU, AWARDING COMPENSATION OF
Rs.15,82,000/- WITH INTEREST AT 8% P.A. FROM THE
DATE OF PETITION TILL DEPOSIT.
*************
IN MFA CROB NO.48/2019:
BETWEEN:
1. SMT. MANJULA
W/O LATE SUDHAKAR BABU
AGED ABOUT 32 YEARS
3
2. S. CHANDANA
D/O LATE SUDHAKAR BABU
AGED ABOUT 13 YEARS
3. S. DEEKSHITHA
D/O LATE SUDHAKAR BABU
AGED ABOUT 9 YEARS
4. S. ANGEL
D/O LATE SUDHAKAR BABU
AGED ABOUT 6 YEARS
APPELLANTS NO. 2 TO 4 ARE MINORS
REPRESENTED BY NATURAL
GUARDIAN MOTHER -1ST APPELLANT.
5. MUNICHANNAPPA
AGED ABOUT 67 YEARS
S/O DODDA CHANNAPPA
6. SARASWATHAMMA
AGED ABOUT 62 YEARS
W/O MUNICHANNAPPA
ALL ARE R/A NO.147
BHAKTHARAHALLI VILLAGE & POST
JANGAMAKOTE HOBLI
SIDLAGHATTA TALUK
CHIKKABALLAPURA DISTRICT
... CROSS OBJECTORS
(BY SRI. VISHWANATHA .K, ADVOCATE)
AND:
1. V.M. MOHAN, MAJOR
S/O MARIYAPPA
R/AT VEEREGOWDANA DODDI
HAROHALLI HOBLI
KANAKAPURA TALUK
RAMANAGARA DISTRICT
2. SRIRAM GENERAL INSURANCE
COMPANY LTD., NO.S-5, III FLOOR
MONARCH CHAMBERS, INFANTRY ROAD
4
BENGALURU-560 001
BY ITS MANAGER
... RESPONDENTS
(BY SRI. O. MAHESH, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA CROB IN MFA NO.9117/2018 PASSED
U/O.41 RULE 22 OF CPC, R/W SEC.173(1) OF MV ACT,
AGAINST THE JUDGMENT DATED: 18.08.2018, PASSED IN
MVC NO.3471/2017 ON THE FILE OF THE VII ADDITIONAL
SCJ & XXXII ACMM, MEMBER, MACT-3, BENGALURU,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MFA AND MFA-CROB HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 24.08.2022,
COMING ON FOR 'PRONOUNCEMENT OF JUDGMENT' THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The MFA No.9117/2018 is filed under Section
173(1) of Motor Vehicles Act, 1988 (for short, 'MV Act')
and MFA CROB No.48/2019 is filed under Order 41 Rule
22 of CPC read with Section 173(1) of MV Act,
challenging the judgment and award dated 18.08.2018
passed by the VII Additional Small Causes Judge and
XXXII ACMM, Court of Small Causes Court and MACT-
III, Bengaluru (for short, 'Tribunal').
2. For the sake of convenience, the parties
herein are referred with the original ranks occupied by
them before the Tribunal.
3. MFA No.9117/2018 is filed by the Insurance
Company challenging the liability, while MFA-CROB
No.48/2019 is filed by the claimants seeking
enhancement of compensation awarded by the Tribunal.
4. The brief factual matrix leading to the case is
that, on 04.06.2017 the deceased Sudhakar Babu, after
completing his work at Bengaluru was proceeding to his
residence in Jangamakote by driving Autorikshaw
bearing No.KA.53.A.8128 and at about 2.00 a.m. when
he reached near Kurubarakunte Forest Farm, a Lorry
bearing No. KA.41.A.4095, was moving in front of his
Autorikshaw, with high speed and in rash and negligent
manner and suddenly the driver of the lorry without
giving any signal or indication, applied break in the
middle of the road, as a result, the Autorikshaw dashed
to the lorry and the Autorikshaw turtle down and badly
damaged. The deceased Sudhakar Babu sustained fatal
injuries and immediately he was shifted to Vijayapura
Government Hospital and thereafter, he was shifted to
NIMHANS at Bengaluru, wherein he succumbed because
of the injuries sustained by him in the said accident. It
is also asserted that the deceased was aged about 38
years and earning Rs.15,000/- per month by running
Autorikshaw. Due to the death of the deceased, the
claimants being the widow, minor children and parents
of the deceased have lost the bread-earner in the
family. According to the claimants, the accident in
question is caused because of actionable negligence on
the part of the driver of the offending lorry. Respondent
No.1 is the owner and Respondent No.2 is the Insurer
of the offending lorry. Hence, the claimants have filed
claim petition under Section 166 of the MV Act,
claiming compensation of Rs.40.00 Lakhs.
5. The respondents have put-in their
appearance before the Tribunal and denied the mode,
occurrence and manner of accident as alleged, including
the age, occupation and income of the deceased. It is
contended that the driver of the offending vehicle was
driving the lorry carefully by observing traffic rules and
the deceased did not possess the valid and effective
Driving Licence, and he drove the Autorikshaw in rash
and negligent manner and dashed to the lorry moving
ahead, and on these grounds, they disputed the liability.
Respondent No.2/Insurance Company though has
admitted the coverage of insurance of the offending
vehicle, has contended that, the coverage of liability is
subject to the terms and conditions of the policy. Hence,
respondents have sought for dismissal of the claim
petition.
6. The Tribunal after assessing the oral as well
as documentary evidence, has awarded compensation of
Rs,15,82,000/- with interest at 8% per annum from the
date of petition till realization, by fastening liability on
respondents No.1 & 2 jointly and severally. Being
aggrieved by this judgment and award, the Insurance
Company has filed MFA No.9117/2018 challenging the
liability as well as quantum of compensation, while MFA
CROB No.48/2019 is filed by the claimants seeking
enhancement of compensation awarded by the Tribunal.
7. Heard the learned counsels appearing for the
claimants as well as Insurance Company. Perused the
records.
8. Learned counsel for the appellant/Insurance
Company would contend that, considering the evidence
of PW.2, who claims to be an eyewitness to the accident
that, the Autorikshaw was moving at a distance of 20
feet and the deceased running the Autorikshaw at the
speed of 30 to 40 Kms. Even if this version is accepted,
the learned counsel contends that, there is violation of
Regulation-23, as sufficient distance was not maintained
by the deceased. He would also contend that there is
no compliance of Section 134(c) and 158(6) of MV Act.
He would further contend that, at least minimum 42
feet distance was required to be maintained by the
deceased and it was not maintained. If the version
regarding applying break abruptly is accepted, there are
no tire marks seen on the road, which was evident from
the spot-mahazar and evidence given by PW.2, and
hence, the claim is not sustainable.
9. Learned counsel would further contend that,
the Tribunal has committed an error in taking income of
the deceased at Rs.8,000/- per month unilaterally and
as per the Minimum Wages Act, the monthly income of
the deceased is required to be taken at Rs.6,429/- and
if 40% of which is added towards future prospects, then
his income would be Rs.9,000/- and out of which, 1/4th
is required to be deducted. Hence, he would contend
that the compensation awarded under the head of Loss
of Dependency is on higher side. He would also contend
that rate of interest awarded at 8% per annum is also
on higher side and seeks for reduction of
compensation, and also sought for fixing contributory
negligence on the deceased.
10. Per contra, learned counsel for
appellants/claimants would contend that the Tribunal
has taken the notional income at Rs.8,000/-, but, as
per Lok-Adalat Chart, the notional income is required to
be taken at Rs.11,000/- per month. He would also
contend that, proper compensation was not awarded
under the head of Loss of Consortium. He also
contends that, there is no issue of contributory
negligence on the part of the deceased, as the records
disclose that the driver of the offending vehicle was
chargesheeted; the accident has occurred in the middle
of road; the driver of the offending Lorry was also not
examined and RW.1 is not an eyewitness to the
accident. Hence, he would contend that there is no
question of reduction of compensation and seeks for
enhancement of compensation.
11. Having heard the arguments of the learned
counsels appearing on both sides and perusing the
records placed on record, it is evident that there is no
dispute that the offending vehicle was insured with
Respondent No.2/Insurer. The main contention of the
learned counsel for the Insurance Company is that,
there is non-compliance of provisions of Sections 134(c)
and 158(6) of the MV Act. But, merely because there is
non-compliance of the said provisions, the claimants
cannot be deprived for compensation, for which they are
entitled. Admittedly, the offending vehicle was duly
insured and there is no issue of Driving Licence. The
Autorikshaw, which was driven by the deceased
smashed the lorry from rear end. The main contention
of the learned counsel is that, the driver of Autorikshaw
did not maintain safe distance. But, at the same time,
it is to be noted here that both the vehicles were
moving in the same direction one after another at 2.00
'O' Clock in midnight. PW.2 claims to be an eyewitness
to the incident and his evidence discloses that
Autorikshaw was moving at the speed of 30 to 40 Kms.
and the lorry was moving in high speed, and he would
also contend that there was a distance of 20 feet
between the lorry and autorikshaw. If it is assumed
that Autorikshaw was moving at the speed of 20 to 30
Kms., and if there is gap of 20 feet, the accident would
not have occurred as asserted by the claimants. Hence,
prima facie it is evident that Autorikshaw was also
moving in speed and failed to maintain safe distance.
But, at the same time, the evidence of PW.2 clearly
discloses that the driver of lorry stopped the vehicle
abruptly. The prosecution papers also disclose that the
driver of offending lorry was also prosecuted in this
regard and it is also evident that, the he has not
challenged his prosecution. Much arguments have been
advanced by the learned counsel for Respondent
No.2/Insurance Company that there were no break
marks on the road and if suddenly breaks are applied,
due to friction between tire and road, the tyre marks
are bound to found on the road. No doubt, this
possibility cannot be ruled-out in this kind of accidents.
At the same time, the same formula cannot be applied
to all such cases, as circumstances varies, because, in
the night hours when the driver was driving the vehicle
without any indication or signal, and if he applies breaks
suddenly and stops the vehicle, there is also possibility
of one vehicle hitting that vehicle from back side. No
evidence is placed to show that the driver of the
offending vehicle has taken all precautions before
stopping the vehicle in the middle of the road.
12. The learned counsel has also invited the
attention of the Court to scientific research regarding
maintaining distance of 42 feet between two vehicles
moving one after another. In the instant case, both the
vehicles in question were moving speedily one after
another and the driver of lorry moving ahead has
suddenly and abruptly applied break without any
indication, which has resulted in accident.
13. Considering the facts and circumstances of
this case and after appreciating the oral as well as
documentary evidence, the contributory negligence to
the extent of 20% can be attributed to the deceased,
who is also responsible for cause of accident and the
negligence on the part of driver of offending vehicle, for
cause of accident in question can be attributed to an
extent of 80%.
14. The Tribunal has taken the notional income
of the deceased at Rs.8,000/-. The learned counsel for
the appellant/Insurance Company would contend that
the Tribunal has erred in taking the monthly income at
Rs.8,000/-. He would contend that, in the absence of
any specific, cogent, conclusive and corroborative
material evidence in that regard, as per the notification
of Minimum Wages Act, 2011, the minimum wage of
Rs.6,429/- ought to be taken. Even for considering
minimum wage, it is to be noted here that the deceased
was not a labourer, but he is a driver, running
Autorikshaw. As the deceased being a skilled person
and was working as driver of Autorikshaw, the said
ground cannot be considered and as such the provision
in Notification of Minimum Wages Act cannot be made
applicable to this case. Though the learned counsel for
appellant/Insurance Company has asserted that the
Notification of Minimum Wages Act is to be taken into
consideration, but the said notification was also not
placed on record by him. Even otherwise, considering
inflation in cost of living, the Minimum Wages also
increased and more over, since the deceased was the
driver, he cannot be equated with a daily wage
labourer. The Tribunal has taken the notional income at
Rs.8000/-. But, however, admittedly, the accident has
occurred in the year 2017. This Court is consistently
taking the notional income at Rs.11,000/- in respect of
accidents occurred during the year 2017. This is an
average income needs to be taken by the Court based
on Lok-Adalat chart, when no other material evidence is
placed by the learned counsel for the
appellant/Insurance Company to take a different view.
Under such circumstances, the income of the deceased
is required to be taken at Rs.11,000./- per month.
15. Admittedly, the deceased was aged bout 38
years and hence, in view of the decision of Hon'ble
Apex Court in case of National Insurance Company
Limited Vs. Pranay Sethi and Others [(2017) 16
SCC 680], 40% of income is required to be added to
the income. Hence, the monthly income would be
Rs.15,400/- (Rs.11,000x40%). Since there are six
dependents, 1/4th of his income is required to be
deducted towards personal expenses. Considering the
age of deceased, the multiplier '15' is applicable.
Hence, the loss of Dependency would works out to
Rs.20,79,000/- (Rs.15,400x12x15x3/4) and hence, the
claimants are entitled for Rs.20,79,000/- under this
head
16. As per the decisions of Hon'ble Apex Court in
Satinder Kaur @ Satwinder Kaur & Ors. v. United
India Insurance Co. Ltd. reported in AIR 2020 SC
3076 and in Magma General Insurance Company
Limited vs. Nanu Ram Alias Chuhru Ram and
others reported in (2018) 18 SCC 130, each of the
claimants are entitled for Rs.40,000/- under the head of
Loss of Consortium and hence, the claimants would be
entitled for Rs 2,40,000/- (Rs.40,000x6) under this
head.
17. Further the claimants would be entitled for
Rs.15,000/- under the head of loss of estate and
Rs.15,000/- under the head of Funeral Expenses.
Hence, the claimants-Cross objectors would be entitled
for total revised compensation of Rs. 23,49,000/-
under the following heads:-
Sl. Particulars Amount (RS.)
No.
1 Loss of dependency 20,79,000/-
2 Funeral expenses 15,000/-
3 Loss of estate 15,000/-
4 Loss of consortium 2,40,000/-
(Rs.40,000 x3)
Total 23,49,000/-
Award of Tribunal 15,82,000/-
18. In the facts and circumstances, as stated
above, the deceased has contributed to the accident in
question to the extent of 20% and as such, the
claimants are required to forego 20% of compensation
amount, for which they are not entitled, and as such,
20% of amount to be deducted from total
compensation. After deducting 20%,
appellants/claimants would be entitled for total
compensation of Rs.18,79,200/- (Rs.23,49,000-
Rs.4,69,800)
19. At the same time, it is also important to
note here that the Tribunal has awarded interest at the
rate of 8% per annum, which appears to be on higher
side. This Court is consistently awarding interest at the
rate of 6% per annum. No special circumstances are
forthcoming for awarding higher rate of interest.
20. Under these circumstances, the interest
required to be reduced to 6% per annum only. As such,
the appeal filed by the Insurance Company in MFA
No.9117/2018 needs to be allowed-in-part, so far it
relates to rate of interest and contributory negligence
on the part of the deceased, while MFA-CROB
No.48/2019 needs to be allowed in part. Accordingly, I
proceed to pass the following:
ORDER
i. The MFA CROB No.48/2019 filed by the
Cross-objectors/claimants is allowed-in-part.
The impugned judgment and award dated
18.08.2018 passed by the VII Additional SCJ
and XXXII ACMM, Court of Small Causes and
MACT-III, Bengaluru, in MVC No.3471/2017, is
modified.
iv) The Cross-objectors/claimants are held
entitled for total compensation of
Rs.18,79,200/-(Rs.23,49,000-Rs.4,69,800)
as against Rs.15,82,000/- awarded by the
Tribunal.
ii. The enhanced compensation of
Rs.2,97,200/- shall carry interest at the rate
of 6% p.a. from the date of petition till its
realisation.
iii. Respondent No.2-Insurer is directed to deposit
enhanced compensation with interest accrued
thereon, within six weeks from the date of this
judgment.
iv. The deposit, apportionment and disbursement
in respect of claimants, shall be as per the
order of the Tribunal.
v. Simultaneously, the MFA No.9117/2018
filed by the Respondent No.2/Insurance
Company is allowed-in-part, so far as it
relates to interest portion only, by reducing
the interest from 8% to 6% per annum
awarded by the Tribunal in MVC No.3471/2017
and also in respect of contributory negligence
at 20% on the part of the deceased.
The statutory deposit made by the
appellant/Insurance Company in MFA No.9117/2018
shall be transmitted to the concerned Tribunal.
Sd/-
JUDGE
KGR*
CT:NR
