Karnataka High Court
Hemalatha vs Bajaj Allianz General Insurance ... on 14 December, 2023
-1-
NC: 2023:KHC:45597-DB
MFA No.6154/2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE K V ARAVIND
MISCELLANEOUS FIRST APPEAL NO.6154/2019 (MV-D)
BETWEEN:
1. HEMALATHA @ HEMA @ HEMAVATHI
W/O RENUKAPPA
AGED ABOUT 38 YEARS
2. RENUKAPPA @ RENUKA
S/O LATE BORAIAH
AGED ABOUT 45 YEARS
3. HONAMMA
S/O LATE BORAIAH
AGED ABOUT 55 YEARS
ALL ARE R/AT NO.73, 1ST MAIN
1ST CROSS, PIPELINE ROAD
SANJEEVININAGARA, SUNKADAKATTE
BENGALURU NORTH TALUK
BENGALURU - 560 091 ...APPELLANTS
Digitally
signed by K S (BY SRI HEMANTHA.B FOR SRI LAKSHMIKANTH, ADVOCATES)
RENUKAMBA
Location: AND:
High Court of
Karnataka 1. BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD.
GOLDEN HIGHTS, 4TH FLOOR
NO.1/2, 59TH 'C' CROSS
RAJAJINAGARA, 4TH 'M' BLOCK
BENGALURU - 560 010
2. PRAVEEN K R, S/O RAMESH S
MAJOR, R/AT NO.25, 1ST FLOOR
1ST MAIN, 1ST CROSS
KAMAKSHIPALYA
BENGALURU - 560 079 ...RESPONDENTS
(BY SRI A N KRISHNA SWAMY, ADVOCATE FOR R1;
NOTICE TO R2 SERVED VIDE ORDER DATED 04.10.2023)
-2-
NC: 2023:KHC:45597-DB
MFA No.6154/2019
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED 23.03.2016 PASSED BY THE
MEMBER, MACT, XVI ADDITIONAL JUDGE, COURT OF SMALL
CAUSES, BENGALURU IN MVC NO.4912/2016 PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
DICTATION THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:
JUDGMENT
Challenging the award in M.V.C.No.4912/2016 passed
by the MACT, XVI Additional Judge, Court of Small Causes,
SCCH-14, Bangalore, the claimants in the said case have
preferred this appeal.
2. The appellants were claimant Nos.1 to 3 and the
respondents were respondent Nos.1 and 2 in MVC
No.4912/2016 before the Tribunal. For the purpose of
convenience, the parties are referred to henceforth according
to their ranks before the Tribunal. Claimant Nos.1 & 2 are the
mother and father and claimant No.3 is paternal grandmother
of deceased Chethan.
3. On 26.03.2015 at 7.15 p.m. when Chethan was
traveling in Bajaj Pulsur motorcycle bearing No.KA-41-EC-
8329 along with its rider Arun Kumar near Mayaganahalli
Double road within the limits of Ramanagar Traffic Police
NC: 2023:KHC:45597-DB
Station, said motorcycle met with accident. Initially injured
Chethan and rider Arun Kumar were shifted to Rajarajeshwari
Hospital and from there Chethan was shifted to Nimhans
Hospital. He succumbed to the injuries in Nimhans Hospital.
At the relevant time, respondent Nos.1 and 2 were the
insurer and registered owner of motorcycle bearing No.KA-
41-EC-8329.
4. Regarding the incident, one Chenniganna the
relative of the deceased filed complaint before Ramanagar
Traffic Police Station alleging that the rider of the motorcycle
rode the vehicle rashly and negligently so as to endanger the
human life and suddenly applied the brake, consequently
both the rider and the pillion rider fell down and suffered
grievous injuries causing death of Chethan. Based on said
complaint, Ramanagar Traffic Police registered the first
information report as per Ex.P1 in Crime No.46/2015 against
the rider of the motorcycle. On investigation, the police filed
the charge sheet as per Ex.P2 (which is also marked as
Ex.R6) against the rider of the motorcycle for the offences
punishable under Sections 338, 279, 304A of IPC and Section
181 of the Indian Motor Vehicles Act, 1988 alleging that the
accused therein rode the vehicle without driving license in
NC: 2023:KHC:45597-DB
rash and negligent manner and caused the accident and
consequential death.
5. The claimants filed M.V.C.No.4912/2016 against
the respondents contending that the accident occurred due to
actionable negligence on the part of the rider of the
motorcycle. They contended that the deceased was aged 19
years and was earning Rs.8,000/- per month and they were
all depending on his income. They further contended that
respondent Nos.1 and 2 being the Insurer and the owner of
the vehicle are liable to pay the compensation of
Rs.40,00,000/- to them as damages due to death of Chethan.
6. Respondent No.2 did not contest the petition.
Respondent No.1 alone contested the petition denying
occurrence of the accident, actionable negligence on the part
of the rider of the motorcycle, age, occupation, income of the
deceased and its liability to pay the compensation. Though
respondent No.1 admitted that the policy issued by it was in
force and covered the risk of the said vehicle, contended that
there was breach of policy condition, there by it was absolved
of its liability.
NC: 2023:KHC:45597-DB
7. To substantiate their claim, the claimants
examined claimant No.1 as PW.1 and got marked Exs.P1 to
P16. On behalf of respondent No.1, its Officer was examined
as RW.1 and Exs.R1 to R6 were marked.
8. The Tribunal on hearing the parties and relying on
Ex.P1 the First Information Report, Ex.P2 charge sheet and
other evidence on record held that the accident occurred due
to actionable negligence on the part of the rider of the
motorcycle. The Tribunal relying on Ex.P15 SSLC Marks Card,
assessed the age of the deceased at 20 years, notional
income at Rs.6,000/- per month, deducted ½ of the same for
his personal expenses, added 40% to the income by way of
future prospects, applied 18 multiplier and awarded
compensation of Rs.9,07,200/- on the head of loss of
dependency.
9. The Tribunal in all awarded compensation of
Rs.9,37,200/ with interest at 9% per annum on different
heads as per the table below:
Sl. Particulars Compensation
No. Amount in Rs.
1. Loss of dependency 9,07,200/-
2. Transportation of dead body and 15,000/-
funeral expenses
3. Loss of estate 15,000/-
Total 9,37,200/-
NC: 2023:KHC:45597-DB
10. The Tribunal relying on Ex.R6 and oral evidence
on record held that the insurer has proved its defence that
the vehicle was ridden by unauthorized person without
driving license, thereby there is fundamental breach of policy
condition and the insurer is not liable to pay the
compensation. Thus, the Tribunal fastened the liability to pay
compensation to respondent No.2 the registered owner of the
vehicle.
11. Claimants have challenged the said award
questioning adequacy of compensation and exoneration of
the insurer from the liability.
12. Sri Hemanth.B., learned Counsel for the claimants
submits that the notional income assessed by the Tribunal is
on the lower side and there was no justification to reject the
evidence of the claimants that the deceased was earning
Rs.10,000/- per month. He further submits that the
compensation awarded on other heads is also on the lower
side. He submits that the insurance policy was in force and
the victim was third party. As per the judgments of the
Hon'ble Supreme Court the insurer is liable to pay the
compensation and recover the same from respondent No.2.
NC: 2023:KHC:45597-DB
13. In support of his contentions, he relies on the
following judgments:
(i) Pappu v. Vinod Kumar Lamba1
(ii) Bishan Devi v. Surbakshi Singh2
(iii) Shamanna v. Oriental Insurance Co.Ltd.3
(iv) IFFCO Tokio General Insurance Co. v. Geeta
Devi4
(v) National Insurance Company Ltd. v. Swaran
Singh5
14. Sri A.N.Krishnaswamy, learned Counsel for
respondent No.1 justifies the award on the ground that
respondent No.2 had permitted unauthorized person to ride
the vehicle without driving license. Therefore, there is
fundamental breach of insurance policy condition and the
insurer is not liable to pay the compensation. He
distinguishes the judgments relied on by learned Counsel for
the claimants on the ground that those judgments are
applicable only in cases where there is driving license and
that was not valid.
(2018) 3 SCC 208
(1980) 1 SCC 273
(2018) 9 SCC 650
Spl.L.P.(C)No.19992/2023 DD 30.10.2023
(2004) 3 SCC 297
NC: 2023:KHC:45597-DB
15. On consideration of the submissions of the parties
and on examination of the records, the questions that arise
for determination of this Court are:
1. Whether the compensation awarded by the
Tribunal under the impugned award is just
one?
2. Whether the Tribunal was justified in
exonerating the Insurer and fastening the
liability to respondent No.2 - the owner of the
vehicle?
Analysis
Reg. Point No.1:
16. The findings of the Tribunal that on 26.03.2015 at
7.15 p.m., while traveling on motorcycle No.KA-41-EC-8329
as pillion rider, accident took place at Mayaganahalli double
road, due to actionable negligence on the part of the rider of
the said vehicle and consequently died, is not challenged by
the respondents. It is also not disputed that respondent No.2
was the registered owner of the said vehicle.
17. The claimants contended that the deceased was
earning Rs.8,000/- p.m. from his employment as office boy in
DCB HR Solutions. But during the course of examination of
PW.1, it was contended that deceased was earning
NC: 2023:KHC:45597-DB
Rs.10,000/- p.m. To prove the said employment and income,
they relied on Exs.P10 and P11 - the alleged appointment
letter and salary slips respectively. The authors of those
documents were not examined. Therefore, the Tribunal
rightly held that the documents were not proved and
assessed the income notionally.
18. The Tribunal assessed the income notionally at
Rs.6,000/- p.m. The accident took place in the year 2015.
The deceased was aged 20 years and had passed SSLC.
Considering his age, qualification, prevailing wage rate in
2015 and cost of living, the notional income assessed by the
Tribunal is at Rs.6,000/- p.m. is on the lower side.
Reasonably, it can be assessed at Rs.9,000/- p.m.
19. As the deceased was bachelor, as per the
judgment of the Hon'ble Supreme Court in the case of Sarla
Verma v. Delhi Transport Corporation6, 50% of his income
has to be deducted for his personal expenses. Therefore, his
monthly income comes to Rs.4,500/- p.m.
20. Having regard to the age and occupation of the
deceased and the judgment of the Hon'ble Supreme Court in
AIR 2009 SC 3104
- 10 -
NC: 2023:KHC:45597-DB
the case of National Insurance Company Limited vs. Pranay
Sethi7, 40% has to be super-added to the income of the
deceased by way of future prospects. Therefore, his monthly
contribution to his family comes to Rs.6,300/-
(Rs.4,500+1800). The applicable multiplier is 18. Therefore,
compensation payable on the head of loss of dependency
comes to Rs.13,60,800/- (Rs.6,300 x 12 x18).
21. In the light of judgments of the Hon'ble Supreme
Court in the case of Magma General Insurance Company
Limited Vs. Nanu Ram8 and Pranay Sethi's case referred to
supra, claimant Nos.1 and 2 being the parents of the
deceased are entitled to the compensation of Rs.40,000/-
each on the head of loss of consortium with escalation at
10%. Claimant No.3 being the paternal grandmother and
had her living children, is not entitled to compensation on the
head of loss of consortium. Therefore, compensation payable
on the head of loss of consortium comes to Rs.88,000/-
(Rs.44,000 x 2).
22. Similarly, as per the judgment of Hon'ble
Supreme Court in Pranay Sethi's case referred to supra, on
the conventional heads of funeral expenses and loss of
AIR 2017 SC 5157
(2018) 18 SCC 130
- 11 -
NC: 2023:KHC:45597-DB
estate, they are entitled for compensation of Rs.15,000/- +
Rs.15,000/- respectively with escalation of 10%, which
comes to (Rs.16,500 x 2) Rs.33,000/-. Therefore, the just
compensation payable is as follows:
Sl. Particulars Compensation
No. Amount in Rs.
1. Loss of dependency Rs.13,60,800/-
2. Consortium Rs. 88,000/-
3. Conventional head, funeral Rs. 33,000/-
expenses and loss of estate
TOTAL Rs.14,81,800/-
Less: Awarded by the Tribunal Rs. 9,37,200/-
Enhanced Compensation Rs.5,44,600/-
23. The enhanced compensation carries interest at
the rate of 6% p.a.
Reg. Liability:
24. There is no dispute that at the time of accident,
the offending vehicle was covered with Ex.R2 the insurance
policy, issued by respondent No.1. Section II(1)(i) of Ex.R2
shows that policy covers the risk of occupants of the vehicle
also. Policy contains the condition that it covers the risk
provided the person driving the vehicle holds an effective
driving license at the time of accident and is not disqualified
from holding or obtaining such a license. It also contains
condition that the insured will not be indemnified if the
vehicle is used or driven otherwise than in accordance with
the schedule.
- 12 -
NC: 2023:KHC:45597-DB
25. The charge sheet Ex.P2 produced by the
claimants themselves shows that on investigation, police
charge sheeted the rider of the vehicle in addition to the
offence under Section 338, 279 and 304A of IPC for the
offence under Section 181 of MV Act. Column No.17 of the
charge sheet says that the accused/rider - Arun @ Arun
Kumar rode the vehicle without driving license. Section 181
of MV Act makes an act of driving of a motor vehicle in
contravention of Sections 3 and 4 of the MV Act. Section 3 of
the MV Act prohibits a person from driving a motor cycle in
any public place unless he holds an effective driving license.
26. Learned Counsel for the appellants/claimants
contended that respondent No.1 - insurer has not proved its
defence that the rider of the motor cycle was not holding the
driving license. He claims that respondent No.1 should have
examined the RTO to prove the said fact. The burden of
respondent No.1 proving its contention that the rider of
offending vehicle rode the same without license arises if there
was a dispute with regard to the same. Ex.P2 - the charge
sheet relied on by the claimants themselves states that the
vehicle was driven without driving license. Thereby there is
an admission in the evidence of claimants themselves
- 13 -
NC: 2023:KHC:45597-DB
regarding rider riding the vehicle without the license. The
Hon'ble Supreme Court in the judgment in Oriental
Insurance Company Limited Vs. Premlata Shukla9, in the
similar context held that if a party produces a document and
once the same is proved, he cannot seek to rely one part of
the documents and ignore the other parts of the document.
Such party cannot be permitted to approbate and reprobate
together as such document forms part of the evidence in the
case. As per Section 58 of the Evidence Act, the admitted fact
need not be proved. Having regard to the aforesaid
judgment, there is no merit in the contention of the learned
counsel for the appellants that the trial Court should not have
relied on Ex.P2 with regard to the driving license unless and
respondent No.1 examined RTO.
27. Learned Counsel for the appellants relied on the
judgment of the Hon'ble Supreme Court in the case of
Swaran Singh's, Pappu's, and Shamanna's cases referred to
supra, to contend that, even if there is no driving license the
insurer is liable to pay the damages to the claimants and
recover the same from the owner of the vehicle. Those
judgments referred to the principle of pay and recovery in
(2007) 13 SCC 476
- 14 -
NC: 2023:KHC:45597-DB
case of breach of policy condition for disqualification of the
driver to hold the license or holding of an invalid driving
license. They did not relate to a case of no driving license at
all.
28. Learned counsel for the appellants/claimants
relied on Bishan Devi's case referred to supra to contend that
even in case of no license also, the insurer is liable. Plain
reading of the said judgment shows that in that case it was
held that the insurer had failed to prove its defence that
vehicle was driven by a person without license. In the
present case the defence of the insurer that the offending
vehicle was driven by a person having no license and the
same is proved. Therefore, the said judgment is not
applicable to the facts of the present case.
29. Respondent No.2 - the owner of the vehicle
neither contested the petition by filing written statement nor
adduced any evidence claiming that he did not consciously
permit Arun Kumar to ride the vehicle. Arun Kumar rode the
vehicle without driving license was not impeached by him
thereby the Tribunal was justified in holding that respondent
No.2 permitted operating of the vehicle by an unauthorized
person. The said act of respondent No.2 amounts to
- 15 -
NC: 2023:KHC:45597-DB
fundamental breach of policy condition within the meaning of
Section of 149(2)(a)(ii) of the MV Act. Therefore, the
Tribunal was justified in exonerating the insurer on the
ground that there is fundamental breach of policy condition.
Therefore, the appeal succeeds only with regard to the
enhancement of the compensation. Hence, the following:
ORDER
The appeal is partly allowed. The impugned order of the
Tribunal is modified as follows:
(i) Respondent No.2 is hereby directed to pay the
enhanced compensation of Rs.5,44,600/- to the claimants
with interest thereon at 6% p.a. from the date of petition till
its realization.
(ii) The dismissal of the claim petition against
respondent No.1 is hereby confirmed.
(iii) The order of the Tribunal with regard to the
apportionment and investment is maintained.
Sd/-
JUDGE
Sd/-
JUDGE
KSR,VBS
