Karnataka High Court
Sri. K Ramachandra Murthy vs Raghavendra @ Raghavendra Reddy on 14 December, 2023
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MFA No. 3154 of 2019
C/W MFA No. 5232 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 3154 OF 2019 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 5232 OF 2019 (MV-D)
IN M.F.A. NO. 3154 OF 2019
BETWEEN:
RAGHAVENDRA @ RAGHAVENDRA REDDY,
S/O CHANDRASHEKHAR REDDY,
AGED ABOUT 47 YEARS,
R/AT KARADAGURU VILLAGE,
SRINIVASASANDRA POST,
BANGARPET TALUK,
KOLAR DISTRICT-563 114.
PRESENTLY R/AT 'MURALI NILAYA'
4TH MAIN, KALAPPA REDDY MAIN ROAD,
AGRAHARA LAYOUT,
Digitally signed
by YALAHANKA, BANGALORE-560 064.
VIJAYALAKSHMI
BN ...APPELLANT
Location: High
Court of
(BY SRI GOWTAMDEV C. ULLAL, ADVOCATE [PH])
Karnataka
AND:
1. SRI. K. RAMACHANDRA MURTHY,
S/O LATE KRISHNAPPA,
AGED ABOUT 60 YEARS.
2. SMT. N.RATHNA,
W/O RAMACHANDRA MURTHY,
AGED ABOUT 48 YEARS.
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MFA No. 3154 of 2019
C/W MFA No. 5232 of 2019
3. VINOD R.
S/O RAMACHANDRA MURTHY,
AGED ABOUT 27 YEARS,
ALL ARE RESIDING AT:
NO.903, 4TH MAIN, 9TH CROSS,
AGRAHARA LAYOUT,
YELAHANKA, BANGALORE-560064.
4. IFFCO-TOKIO GENERAL INSURANCE CO. LTD.,
REGD.OFFICE: IFFCO SADAN,
C1 DIST. CENTRE, SAKET,
NEW DELHI-11007.
REGIONAL OFFICE AT
SAI RANGA BUILDING,
5TH CROSS, T.G.EXTENSION,
HOSAKOTE, BANGALORE RURAL,
BANGALORE-562114.
...RESPONDENTS
(BY SRI B. PURANDARA, ADVOCATE FOR R1 TO R3 [PH];
SRI. MURALIDHAR NEGAVAR, ADVOCAT FOR R4 [PH])
THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED 18.01.2019, PASSED IN MVC
NO.5969/2017, ON THE FILE OF IX ADDITIONAL SMALL
CAUSES JUDGE & XXXIV ACMM, COURT OF SMALL CAUSES
AND MEMBER, MACT-7, BENGALURU, AWARDING
COMPENSATION OF RS.12,39,600/- ALONG WITH FUTURE
INTEREST AT THE RATE OF 6% P.A, FROM THE DATE OF
PETITION TILL REALIZATION OF ENTIRE AMOUNT.
IN M.F.A. NO 5232 OF 2019
BETWEEN
1 . SRI K.RAMACHANDRA MURTHY,
S/O LATE KRISHNAPPA,
AGED ABOUT 60 YEARS,
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MFA No. 3154 of 2019
C/W MFA No. 5232 of 2019
2 . SMT.N.RATHNA,
W/O RAMACHANDRA MURTHY,
AGED ABOUT 50 YEARS.
3. VINOD R,
S/O RAMACHANDRA MURTHY,
AGED ABOUT 29 YEARS.
ALL ARE RESIDING AT NO.903,
4TH MAIN, 9TH CROSS,
AGRAHARA LAYOUT,
YELAHANKA,
BANGALORE-560064.
...APPELLANTS
(BY SRI BOPANNA B, ADVOCATE)
AND:
1 . RAGHAVENDRA @ RAGHAVENDRA REDDY,
S/O CHANDRASHEKHAR REDDY,
AGED ABOUT 47 YEARS,
R/O KARADAGURU VILLAGE,
SRINIVASASANDRA POST,
BANGARPET TALUK,
KOLAR DISTRICT-563 114.
PRESENTLY R/AT "MURALI NILAYA",
4TH MAIN, KALAPPA REDDY MAIN ROAD,
AGRAHARA LAYOUT,
YALAHANKA, BANGALORE-64,
(RC OWNER OF THE FERGUSON TRACTOR
BEARING NO.KA-08-T-5831)
2 . IFFCO-TOKIO GENERAL INSURANCE
COMPANY LTD.,
REGD.OFFICE: IFFCO SADAN,
C1 DIST:CENTRE, SAKET,
NEW DELHI-110017.
REGIONAL OFFICE AT
SAI RANGA BUILDING,
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MFA No. 3154 of 2019
C/W MFA No. 5232 of 2019
5TH CROSS, T.G.EXTENSION,
HOSAKOTE, BANGALORE RURAL,
BANGALORE-562 114.
...RESPONDENTS
(BY SRI GOWTHAMDEV C. ULLAL, ADVOCATE FOR R1;
SRI MURALIDHAR NEGAVAR, ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED 18.01.2019 PASSED IN
MVC.NO.5969/2017 ON THE FILE OF THE IX ADDITIONAL
SMALL CAUSES JUDGE AND XXXIV ACMM, COURT OF SMALL
CAUSES, MEMBER, MACT-7, BENGALURU, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMENSATION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY THROUGH VIDEO CONFERENING AT
KALABURAGI, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals arise out of the judgment and award
passed in MVC.No.5969/2017 by the learned IX Addl.
Small Causes and Addl. MACT., Bangalore, (SCCH-7)
dated 18.01.2019, whereby, the Tribunal awarded a
compensation of Rs.12,39,600/- and fastened the liability
on the owner of the vehicle.
2. The factual matrix of the case made out by the
petitioners before the Tribunal is that the petitioner Nos.1
and 2 are the parents of the deceased Ananda and the
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petitioner No.3 is brother of the deceased. It was
contended that on 27.08.2017 at about 12.30 p.m., when
the deceased Ananda was proceeding along with his friend
by name Nagaraju sitting adjacent to him in the Tractor-
cum-Water Tanker, the said Nagaraju drove the same in
rash and negligent manner and suddenly applied the
brake, resulting in the deceased Ananda falling down on
the road and the wheel of the Tractor running over him,
causing injuries to him. It was stated that the deceased
Ananda was immediately shifted to Regal Hospital,
Hegdenagara, where he was declared brought dead.
Immediately after the accident, at about 4.00 p.m., the
petitioner No.3-Vinod, filed a complaint before the
jurisdictional Police, who registered a case and
investigated the matter. It was contended that the
deceased Ananda was aged 24 years at the time of the
accident and he was earning his livelihood by working as a
driver on his own Tata Indica Car and his income was
Rs.20,000/- per month. It is contended that the
petitioners were depending on the earning of the deceased
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and therefore, they are entitled for the compensation from
the owner and insurer of the said Tractor-cum-Water
Tanker.
3. On issuance of notice, the respondent Nos.1
and 2 appeared before the Tribunal and filed their written
statements. The respondent No.1, who is the owner of the
Tractor contended that the Tractor was insured with the
respondent No.2 and the policy was in force as on the date
of the accident. It was stated that there was negligence
on the part of the deceased Ananda and he was in
drunken condition at the time of the alleged accident and
as such contributory negligence has to be considered by
the Tribunal. Inter-alia it was also contended that the
compensation claimed is highly exorbitant, imaginary and
untenable and therefore, the respondent No.1 be absolved
from the liability.
4. Respondent No.2-Insurance Company contended
that though the Tractor was covered by the policy issued,
the terms and conditions of the policy were violated and
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that it was an 'Act only' policy. It was contended that the
terms and conditions of the policy as required under
Sections 134(C) and 158(6) of Motor Vehicles Act were
violated and that the deceased being a gratuitous
passenger on the said vehicle, insurer is not liable to pay
the compensation to the petitioners. It is contended that
the Tractor was not at all meant for the travel by
passenger and that the driver of the Tractor was not
having a valid driving licence. Therefore, it was contended
that respondent No.3 be absolved of liability to pay any
compensation.
5. On the basis of the above pleadings, the
Tribunal framed necessary issues and the petitioner No.2
was examined as PW.1 and Exs.P1 to Ex.P6 were marked.
The respondent No.2 examined its official as RW.1 and
Ex.R1-Insurance Policy was marked.
6. After hearing the arguments by both the sides,
the Tribunal proceeded to award a compensation of
Rs.12,39,600/- and fastened the liability on the
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respondent No.1-owner of the Tractor and absolved the
liability on respondent No.2. The Tribunal held that the
policy was 'act only' policy and also that there was
violation of the terms and conditions of the policy as the
deceased was an unauthorized passenger over the said
vehicle.
7. Being aggrieved by the said judgment and
award, the respondent No.1-owner of the vehicle has
approached this Court in appeal MFA.No.3154/2019
assailing the liability being fastened upon him. The
petitioners have approached this Court in appeal in
MFA.No.5232/2019 contending that the compensation
awarded by the Tribunal is on the lower side and the same
needs to be enhanced.
8. On issuance of notices, the respondents in both
the appeals have appeared. The Trial Court records have
been secured.
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9. The arguments by the learned counsel for the
appellants in both the cases and the arguments by learned
counsel for the Insurance Company are heard.
10. The learned counsel appearing for the
appellant-owner of the Tractor in MFA.No.3154/2019
submits that the policy was in force as on the date of the
accident and the deceased was drunk and he came and sat
by the side of the driver as mentioned in the charge sheet.
It is contended that the deceased could not have sat by
the side of the driver and therefore, there is contributory
negligence on the part of the deceased. It was also
contended that the deceased in fact had come across the
motion of the Tractor and sufficient opportunity was not
granted to the appellant to lead evidence before the
Tribunal. It is also alternatively contended that an order
of pay and recovery may be considered in view of the
decision in the case of NATIONAL INSURANCE CO. LTD.
VS. SWARAN SINGH1. Learned counsel for the insured
(2004) 3 SCC 297
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has also relied on the decision in the case of
PRAMODKUMAR RASIKBHAI JHAVERI VS KARMASEY
KUNVARGI TAK & OTHERS2 and MUNICIPAL
CORPORATION OF GREATER BOMBAY VS. LAXMAN
IYER AND ANOTHER3. The facts and circumstances in
both these decisions are totally different and they are not
concerning the use of the Tractor and therefore, they
cannot be made applicable to the case on hand. The other
judgments relied will be considered in the following
paragraphs.
11. Learned counsel appearing for the
claimants/petitioners contended that the FIR and the
chargesheet categorically mentioned that the deceased
was on the Tractor driven by its driver and the vehicle
owned by respondent No.1. He submits that the cross-
examination of the PW.1 show that while climbing the
Tractor the accident had happened. It is submitted that
the deceased was working a driver and the Tribunal
2002 (6) SCC 455
2003 (8) SCC 731
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considers the notional income of the deceased at
Rs.8,000/- which is meager and the notional income
commensurate to the year 2017 should have been
considered by the Tribunal. He submits that there was no
negligence on the part of the deceased and therefore, the
Tribunal was right in fastening the actionable negligence
on the owner.
12. Learned counsel appearing for the Insurance
Company contends that the Tribunal has rightly considered
the fact that the policy was an 'act only policy' and
therefore, it did not cover the occupant of the vehicle,
even if it is permitted. Secondly, he contends that the
Tractor is meant for only one person to be seated and it
could not have accommodated another passenger. The
Tractor was not attached with any Trailer, but it was a
Tanker and therefore, there is fundamental breach of the
conditions of the policy and as such, the Tribunal has
rightly absolved the Insurance Company from paying any
compensation.
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13. In the light of the above submissions, the
points that arise for consideration are :
i) Whether the Tribunal was justified in
absolving the liability of the insurer as there
was fundamental breach of conditions of the
policy?
ii) Whether there was contributory negligence on
the part of the deceased?
iii) Whether the quantum of the compensation
awarded by the Tribunal is just and
reasonable?
Re. Point No.1:
14. It is relevant to note that the deceased Ananda
died in the road traffic accident on 27.08.2017 and
immediately after the accident the FIR was registered is
not in dispute. So also that fact the respondent No.1 was
the owner of the Tractor and the Tractor was insured with
the respondent No.2 is also not in dispute. Therefore, the
question is whether there was violation of the terms and
conditions of the policy.
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15. The perusal of the FIR and the chargesheet
produced at Exs.P1 and P5 show that after investigation
the Investigating Officer had filed the chargesheet against
the driver of the Tractor. It was stated in the FIR that the
deceased Ananda was sitting by the side of the driver i.e.,
Nagaraju. It was stated that the Tractor-cum-Water
Tanker was driven in negligent manner and the brakes
were applied suddenly and therefore, Ananda fell down
and the Tractor run over him. In the chargesheet at Ex.P5
it is stated that the driver Nagaraju had allowed the
deceased Ananda to sit by his side and due to sudden
application of the brakes, the deceased Ananda had fallen
and the Tractor run over him. The spot sketch produced
at Ex.P6 also show that the Tractor was being driven on
the left side of the Thirumenahalli main road. The perusal
of the testimony of the PW.1 show that he is not an
eyewitness to the accident, but it is elicited in the cross-
examination that she came to know that Ananda was
sitting by the side of the driver of the Tractor. She has
denied the suggestion that the deceased tried to claim the
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Tractor and then he fell down. It was suggested that there
was contributory negligence on the part of the deceased
and such suggestion has been denied. The other
suggestions that he was not earning anything etc., are
denied by her.
16. Except the evidence of the PW1, there is no
other evidence adduced on the part of the petitioners.
17. The above evidence on record clearly shows
that the deceased was traveling by the side of the driver
on the Tractor. Obviously, the Tractor is meant for
traveling by only one person and it has to be construed
that the deceased was sitting by the side of the driver on
the mudguard. Though the learned counsel for the
respondent No.1-owner of the Tractor has contended that
there was contributory negligence on account of the
deceased consuming alcohol, the PM report produced at
Ex.P2 show that there was no traces of the alcohol in the
stomach of the deceased. Therefore, the contributory
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negligence on the part of the deceased on account of he
consuming alcohol is not established.
18. The learned counsel for the appellant-owner
submits that the deceased was the driver by profession as
contended by the petitioners and he was well aware that
he should not traveled on the Tractor and such negligent
traveling on the Tractor would itself amount to a
contributory negligence. In this regard, he relies on the
decision in the case of SMT. SHIVLEELA AND OTHERS
VS. KARNATAKA STATE ROAD TRANSPORT
CORPORATION, BY MANAGING DIRECTOR,
BANGALORE4. In this decision, a Division Bench of this
Court was considering a case where certain passengers
were traveling on the roof top of the bus and the said bus
had met with an accident. It was held that the passenger
takes a risk by traveling in breach of law and he must
share the consequences flowing there from. It was
observed that though there is a duty cast on the driver
ILR 2003 Kar. 3602
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and conductor the public carriage passenger vehicle, at
the same time a passenger who is traveling on the roof
top could not have been prevented by the driver and the
conductor and therefore, it fastened a contributory
negligence to the extent of 50% on the passenger who
was traveling on the roof top. Learned counsel would
submit that in a case on hand also, the deceased Ananda
being a driver with valid driving licence, knew that he
could not travel on the mudguard of the Tractor and it was
violation of the Motor Vehicle Rules and therefore,
contributory negligence has to be considered by this
Court.
19. On a careful perusal of the above submissions,
it is evident that the petitioners have specifically
contended that the deceased was working as a driver on
his Indica Car and he was earning Rs.20,000/- per month.
Therefore, it has to be presumed that the deceased was
aware of the Motor Vehicle Rules and he could not have
traveled on the side of the driver Nagaraju. Hence, there
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cannot be any doubt that there was also certain degree of
contributory negligence on the part of the deceased. In
the considered opinion of this Court, such contributory
negligence has to be held to be 25%.
Re. oint No.2:
20. The second question that arise is whether there
is violation of the terms and conditions of the policy. The
copy of the policy produced at Ex.R1 shows that it is only
policy and no premium was paid in respect of the inmate
of the vehicle. Obviously, the sitting capacity was one and
therefore, there could not have been provision for the
inmate. Therefore, the decision of the Apex Court in the
case of NATIONAL INSURANCE COMPANY LIMITED
VS. BALAKRISHNAN AND ANOTHER5, is applicable and
the inmate of the vehicle is not covered when it is liability
only the policy. The fundamental breach of the conditions
of the policy cannot be a ground to say that the Insurance
AIR 2013 SC 473
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Company should be directed to pay and recover the same
from the owner of the vehicle.
21. Learned counsel appearing for the owner of the
vehicle relies on the decision in the case of SHIVAWWA
AND ANOTHER V/S BRANCH MANAGER, NATIONAL
INSURANCE COMPANY LTD. AND ANOTHER6. In this
decision, it was held that even assuming that the
Insurance Company is not liable to pay the compensation
awarded, the insurer would still be liable to pay the
compensation amount in the first instance with liberty to
recover the same from the vehicle owner. The Apex Court
had relied on the decision in the case of SWARAN
SINGH(Supra). It is to be noted that the said case was
emanating from a circumstance that the deceased was a
traveler in the Trailer. Though a feeble contention was
raised that the deceased was standing on the connector
between the Trailer and Tractor when the accident
happened, that was not accepted by the Apex Court and
2018 (5) SCC 762
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the view taken by the Tribunal was upheld. The deceased
was found to be a loader in the said Tractor and the
purpose of the usage of the vehicle was for agricultural
purpose. Therefore, the Apex Curt fastened the liability on
the insurance company.
22. In the case on hand, the deceased was not
traveling as representative of the goods. It is not the case
of the petitioners that that deceased-Ananda was taking
the water for his use. No where such a contention is either
taken by the petitioners or by the insured. Under these
circumstances, the above decision cannot be applied to
the case on hand.
23. The decision of a Full Bench of this Court in the
case of GADHILINGAPPA AND ANOTHER VS.
K.GULEPPA AND OTHERS7, considers the question of
passenger in the Tractor elaborately and it was concluded
as below:
ILR 2021 Kar 3377 : AIR 2021 Kar 102
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"23. The Apex Court has reiterated that a tractor could
lawfully accommodate only one person, namely, the
driver. The Apex Court categorically held that the
appellant in the said case had travelled in the tractor as a
passenger even though the tractor could accommodate
only one person namely the driver. It was categorically
held that the insurer was not liable to indemnify the
owner of the tractor for the liability of a passenger
travelling on the tractor. Hence, in view of the dictum of
the Apex Court referred above, the liability of a person
sitting on the mud-guard of a tractor is not required to be
covered by statutory insurance policy, as contemplated by
sub-Section (1) of Section 147 of the M.V. Act.
XXXXXXX
33. Hence, in view of the decisions of the Apex Court
in the case of V. Chinnamma, Shivaraj and Darshana
Devi, (supra) and the analysis made above, we have no
manner of doubt that a liability of a person working either
on the ploughing or crushing machines attached to the
tractor and who is travelling on the mud-guard of the
tractor is not required to be covered by the statutory
insurance as contemplated under sub-Section (1) of
Section 147 of the M.V. Act."
24. In view of the above, it is clear that the
Insurance Company cannot be fastened with the liability
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either to pay entirely or to pay and recover the
compensation amount. Hence, the contention of the
learned counsel appearing for the insured cannot be
accepted."
25. Point No.3: Coming to the quantum of
compensation as contended by the learned counsel
appearing for the petitioners, it is not in dispute that the
deceased was a driver and aged 24 years, but the income
of the deceased as claimed by the petitioners was not
proved. The petitioners contended that the deceased was
earning Rs.20,000/- per month, but there is no cogent
evidence which would prove the income. Therefore, the
Tribunal held that the notional income has to be
considered and held same to be Rs.8,000/-. By adding
40% towards the future prospects and by applying the
principles laid down in the case of NATIONAL INSURANCE
COMPANY LIMITED VS. PRANAY SETHI AND OTHERS8, it
awarded the compensation amount.
AIR 2017 SC 5157
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26. It is relevant to note that the guidelines issued
by the Karnataka State Legal Services Authority for the
purpose of the settlement disputes before the Lok-Adalath
prescribed a notional income of Rs.11,000/- for the year
2017. In umpteen number of decisions, this Court has
held that the notional income prescribed by the KSLSA is
in general conformity with the wages fixed under the
Minimum Wages Act. Therefore, the notional income of the
deceased Ananda has to be taken at Rs.11,000/- per
month. By adding 40% towards the future prospects, the
effective multiplicand would come to Rs.15,400/-.
Therefore, the 'loss of dependency' is calculated as
Rs.15,400/- x 12 x 18 x 50% = Rs.16,63,200/- by
adopting a multiplier '18' and deducting 50% towards the
personal expenses of the deceased.
27. Further, under the conventional heads, a sum
of Rs.40,000/- with 10% escalation at three years has to
be considered and it comes to Rs.48,400/-. Similarly the
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compensation under the head of 'funeral expenses' and
'loss of estate' would be to the tune of Rs.18,150/- each.
28. Therefore, the total compensation entitled by
the petitioners would be Rs.17,47,900/-. In view of the
above said discussions, the petitioners are entitled for
75% of the compensation amount as the remaining 25%
has to be deducted towards the contributory negligence of
the deceased. Hence, by deducting 25% which amounts
to Rs.4,36,975/-. The petitioners would be entitled for a
total compensation of Rs.13,10,925/- as below:
1 Loss of dependency Rs.16,63,200/-
2 Conventional heads Rs.48,400/-
3 Funeral expenses Rs.18,150/-
4 Loss of estate Rs.18,150/-
Total Rs.17,47,900/-
After deduction of 25% Rs.13,10,925/-
contributory negligence
Less awarded by the Tribunal Rs.12,39,600/-
Enhancement Rs.71,325/-
29. In view of the aforesaid reasons, both the
appeals deserve to be allowed in part. Hence, the
following:
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ORDER
Both the appeals are allowed in part.
It is held that the deceased has contributed
25% towards the contributory negligence.
The compensation is assessed at
Rs.17,47,900/- and after deducting the contributory
negligence, petitioners are entitled for a sum of
Rs.13,10,925/- instead of Rs.12,39,600/- awarded
by the Tribunal.
Respondent No.1-owner of the vehicle is held
liable to pay compensation amount along with
interest at the rate of 6% from the date of petition
till its deposit before Tribunal.
The amount in deposit, if any is ordered to be
transmitted to the Tribunal.
Sd/-
JUDGE
SMP
