Karnataka High Court
The Manager vs Jayalakshmamma on 14 December, 2023
-1-
NC: 2023:KHC:45563
MFA No. 6530 of 2017
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. 6530 OF 2017 (MV-D)
BETWEEN:
THE MANAGER,
M/S. THE ORIENTAL INSURANCE COMPANY LIMITED,
SUBHASH SQUARE, NANJAPPA COMPLEX, HASSAN,
THROUGH ITS REGIONAL OFFICE,
NO.44/45, LEO SHOPPING COMPLEX,
RESIDENCY ROAD,
BANGALORE-560025
REPRESENTED BY ITS REGIONAL MANAGER.
...APPELLANT
(BY SRI B S UMESH, ADVOCATE)
AND:
1. JAYALAKSHMAMMA,
W/O JOGIAH,
AGED ABOUT 57 YEARS.
Digitally signed
by
VIJAYALAKSHMI 2. JOGAIAH,
BN S/O HANUMAIAH,
Location: High
Court of AGED ABOUT 62 YEARS.
Karnataka
BOTH ARE R/AT:
ANKAPURA VILLAGE,
KATTAYA HOBLI,
HASSAN TALUK AND DISTRICT-573 120.
3. C R VENKATESH,
S/O LATE C B RAJANNA,
NO.90, BEHIND SRIRAMA MANDIRA,
EAST DIVISION,
HOLENARASIPURA ROAD,
-2-
NC: 2023:KHC:45563
MFA No. 6530 of 2017
CHANNAPATTANA,
HASSAN-573 201.
...RESPONDENTS
(BY SRI B ROOPESHA, ADVOCATE FOR R1 & R2;
R3 SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 02.01.2017 PASSED IN MVC
NO.1414/2015 ON THE FILE OF THE II ADDITIONAL DISTRICT
AND SESSIONS JUDGE AND ADDITIONAL MACT, HASSAN,
AWARDING COMPENSATION OF RS.9,21,000/- WITH INTEREST
AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF
PAYMENT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY THROUGH VC AT KALABURAGI, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Being aggrieved by the judgment and award dated
02-01-2017 passed in MVC No.1414/2015 by the learned
II Additional District and Sessions Judge and Additional
MACT, Hassan, whereby a sum of Rs.9,21,000/- with
interest at 6% p.a. from the date of petition till its
payment has been awarded as compensation on account
of the death of one Ananthkumar in the road traffic
accident that occurred on 27-4-2015, the Insurance
Company has approached this Court in appeal.
NC: 2023:KHC:45563
2. The petitioners who are the parents of the
deceased Ananthkumar filed a claim petition before the
Tribunal claiming compensation on account of the death of
their son contending that on 27.04.2015 at about 6.50
p.m., their son, Ananthkumar was proceeding on his
Motorbike bearing registration No.KA.13.ED.7933 in front
of Aruna Residency, Hassan - Holenarasipura Road,
Hassan, the driver of Crane bearing registration
No.KA.03.MH.6527 came in a rash and negligent manner
and dashed against the Motorbike belonging to
Ananthkumar. As a result, their son Ananthkumar fell
down from the Motorbike and the wheel of the said
Motorbike passed on his body, thereby, he sustained
grievous injuries all over the body and immediately, he
was shifted to Government Hospital, Hassan, but, the
doctor told that, he died on the way to hospital. The
petitioner further contended that, the accident occurred
due to rash and negligent driving of Crane bearing
registration No.KA.03.MH.6527 by its driver, they have
NC: 2023:KHC:45563
spent Rs.1,50,000/- towards the transportation of dead
body, obsequies and funeral expenses.
3. It was further contended that prior to the
accident, the deceased Ananthkumar was hale and healthy
and earning Rs.25,000/- per month by working at
TeamLease Service Private Limited, Bangalore; in addition,
he was also doing agricultural work; he was the only bread
earner of their family and due to his untimely death, the
petitioners had lost his love and affection. Respondent
No.1 is the owner and respondent No.2 is the insurer of
Crane bearing registration No.KA.03.MH.6527, are jointly
or severally liable to pay the compensation.
4. On issuance of summons, respondents No.1 and
2 appeared before the Tribunal through their respective
counsels and filed their written statement.
5. Respondent No.1 being the owner of Crane
bearing registration No.KA.03.MH.6527 resisted the
petition by contending that the petition is not maintainable
NC: 2023:KHC:45563
either in law or on facts. He denied the age, income and
occupation of the deceased Ananthkumar and that the
petitioners are his legal heirs. He also denied the mode of
accident, the date, time, place and cause of accident and
that petitioners have spent Rs.1,50,000/- towards the
transportation of dead body, funeral and obsequies
expenses. He further contended that, the said Crane
bearing registration No.KA.03.MH.6527 was duly insured
with second respondent and the policy was in force as on
the date of accident.
6. Respondent No.2 being the Insurance Company
of the vehicle resisted the petition by denying the age,
income, occupation of the deceased Ananthkumar and the
petitioners are the legal heirs and they are dependants of
deceased Ananthkumar. Apart from reiterating the
contentions taken by the respondent No.1, it further
submitted that the petitioner and respondent No.1 by
colluding each other, created the false documents and the
NC: 2023:KHC:45563
accident was due to negligence of the Motorbike rider and
therefore, prayed to dismiss the petition with costs.
7. The Tribunal on the basis of the above
pleadings, framed appropriate issues and petitioner No.1
examined herself as PW.1 and examined the eyewitness as
PW.2 and Exs.P1 to P9 were marked in evidence. The
officer of the Insurance Company was examined as RW.1
and Exs.R1 to R6 were marked in evidence.
8. The Tribunal after hearing the learned counsel
for both the parties and considering the oral and
documentary evidence on record, fastened the liability on
respondent Nos.1 and 2 jointly and severally and directed
them to pay the compensation of Rs.9,21,000/- under
different heads as below:
Loss of dependency Rs.8,16,000/-
Loss of estate Rs. 40,000/-
Loss of love and affection Rs. 40,000/-
Transportation of dead body Rs. 25,000/-
and funeral expenses
Total Rs.9,21,000/-
NC: 2023:KHC:45563
9. Aggrieved by the said judgment and award, the
Insurance Company has approached this Court in appeal.
10. On issuance of notice, respondent Nos.1 and 2
have appeared before this Court through their counsel.
Despite service of notice, respondent No.3 remained
unrepresented.
11. On admitting the appeal, the Tribunal records
have been secured and heard the arguments by both the
sides.
12. Learned counsel appearing for the appellant-
Insurance Company submitted that the intimation sent by
the hospital to the Police, which is produced by the
appellant herein at Ex.R2 showed that a body of unknown
person, aged about 40 years was brought to the hospital
on the afternoon of 27-4-2015. Therefore, he contends
that the evidence of PW.2 and the narrative of the
petitioners is false and the crane owned by the respondent
No.1 (respondent No.3 in the appeal) had caused the
NC: 2023:KHC:45563
accident cannot be accepted. He also submits that there
were no damages to the vehicle, as per the IMV report
produced at Ex.P5 and the crane could not have driven in
high speed so as to overtake a two wheeler. He also
submits that the theory put forth by PW.2 that the crane
was driven in high speed and it overtook two wheeler is
highly improbable and there was a delay in filing the
complaint by one day, which goes to the root of the case.
He contends that panchanama of the spot do not mention
the blood stains on the tyres of the crane and therefore, it
running over the body of the deceased is improbable. He
contends that the name of Hanumegowda, who had
informed the name and address to the hospital authorities,
as spoken by PW.2, is not reflected in the police intimation
as per Ex.R2. Therefore, he contends that the vehicle has
been falsely implicated in the case in order to make
unlawful gain.
13. Per contra, learned counsel appearing for the
petitioners (respondent Nos.1 and 2 herein) contended
NC: 2023:KHC:45563
that the accident had occurred at about 6.50 p.m., seen
by PW.2 and Hanumegowda and they arranged the
deceased to be shifted to the hospital where he was
declared brought dead and they informed the complainant,
who is the brother of the deceased, he came to the
hospital and then informed his parents and lodged the
complaint at 9.00 a.m. on the next day. He also pointed
out that the PM report as well as the Inquest Report show
the tyre mark on the body of the deceased and non-
mentioning of the name of the deceased in the Police
intimation as per Ex.R2 will not be of much importance.
Inter-alia, he also contended that the compensation
awarded by the Tribunal is on the lower side and the
provisions of Order XLI Rule 33 of CPC be invoked and
adequate, just and reasonable compensation be awarded
to the petitioners. He points out that the salary certificate
was not properly appreciated by the Tribunal and future
prospects were also not considered by the Tribunal.
- 10 -
NC: 2023:KHC:45563
14. Having heard the learned counsels for both the
sides, the points that would arise for consideration are:
(i) Whether the Tribunal erred in considering a
claim petition which was fraudulent?
(ii) Whether there are grounds to invoke order
41 Rule 33 of CPC to enhance the
compensation?
Re.Point No.1
15. The complaint and FIR-Ex.P1 shows that the
complaint was lodged by the brother of the deceased at
about 9.00 a.m. on 28-4-2015. It was stated that on
27-4-2015 while he was working in the canteen, the
former Panchayat President Hanumegowda called him and
informed that his brother Ananthakumar, while driving the
motorcycle bearing No.KA.13.ED.7933 at about 6.50 p.m.
on Holenarasipura Road at Hassan near Aruna Residency,
the driver of the Crane No.KA.03.MH.6527 drove the same
in high speed and in negligent manner, overtook the bike
- 11 -
NC: 2023:KHC:45563
on which Hanumegowda was traveling and dashed to the
bike of Ananthakumar from the rear, resulting in the
accident. The tyres of the crane run over the deceased. It
is also stated that the said Ananthakumar was shifted to
Government Hospital, Hassan, in an ambulance and on the
way he has died. On receiving the information, the
complainant went to the hospital and found that the body
was kept in the mortuary. Later, he informed his parents
about the accident and lodged the complaint.
16. The Police registered the case and during
investigation, the spot mahazar was conducted as per
Ex.P2 on 28-4-2015. In the said mahazar, it was stated
that the bike as well as the crane were on the road and
the bike had damages at the front as well as at the back,
whereas, there were no damages to the crane. The PM
report at Ex.P3 shows that there was a patterned tyre
mark measuring 35 x 14 cms at lower abdomen. The
Inquest Report produced at Ex.P4 also show that there
were tyre mark on the abdomen of the deceased. The IMV
- 12 -
NC: 2023:KHC:45563
report produced at Ex.P5 shows that there were no
damages on both the vehicles. The chargesheet is
produced at Ex.P6 arraying the driver of the crane as an
accused.
17. PW2- Janardhana, happens to be the person
who was riding the motorcycle with Hanumegowda as the
pillion rider. He states that the crane overtook his two
wheeler and dashed to the motorcycle of the deceased
near Arun Residency. When the deceased fell down from
the motorcycle, the tyre of the crane run over the body of
the deceased. Then he and Hanumegowda identified the
injured as Ananthakumar of their village and he was
shifted to the hospital, where he was declared to be
brought dead. Obviously, he informed the complainant,
who in turn informed his parents and lodged the complaint
on the next day at 9 am. In the cross-examination, it is
elicited that Hanumegowda is known to the villagers and
the name and address of the deceased was informed to
the hospital authorities by Hanumegowda. He denies that
- 13 -
NC: 2023:KHC:45563
if the name and address of the deceased was given to
Hospital authorities, they would not have mentioned that it
was body of an unknown person.
18. A careful perusal of the above oral and
documentary evidence on record would show that except
the discrepancy in Ex.R2 that the body brought to the
hospital was that of an unknown person and a probability
the crane could not have overtook a two wheeler, there
are no other circumstances which appear to be doubtful.
Obviously, PW.2 saying that Hanumegouda informed the
hospital authorities does not get any support, as
Hanumegouda is not examined.
19. The delay in filing the complaint by a few hours
cannot in itself be a ground to hold that there is false
implication of the crane insured by the appellant.
Obviously, the accident had occurred at 6.50 p.m. and
then the body was shifted to the hospital by PW.2 and
Hanumegowda through an ambulance and they also
visited the hospital on their two wheeler. The said
- 14 -
NC: 2023:KHC:45563
Hanumegowda informed the complainant, who in turn
informed his parents who were at Ankapura village and
thereafter, he had lodged the complaint at 9.00 a.m. It is
evident that the inquest mahazar was also prepared
between 9.00 a.m. to 12 noon. Obviously, Police had acted
on the basis of the death intimation as per Ex.R2.
Therefore, the discrepancy in Ex.R2 that the body was that
of an unknown person do not lead to a presumption that
the vehicle was falsely implicated. It is also a fact that the
blood stain on the tyre of the crane was not mentioned in
the spot and seizure mahazar. These aspects cannot be a
reason to totally disbelieve the accident. PW.2 has stated
that the body was shifted to the hospital in the ambulance.
It is not known on what source of information the hospital
authorities had inferred that it was the body of an
unknown person.
20. In Ex.R2-the death intimation, the time of such
intimation is not mentioned. However, the word
'afternoon' is tick marked. There is no option as 'night' or
- 15 -
NC: 2023:KHC:45563
'evening'. Therefore, this Court is unable to accept the
contention that the accident might have happened much
earlier to 6.50 p.m. Moreover, there is no material on
record to show that Ex.R2 produced by the Insurance
Company was with reference to the body of the deceased
Ananthkumar. Except the oral testimony of RW.1, it would
be difficult to find nexus between Ex.R2 and the PM report
at Ex.P4, for, it mention approximate age of the body as
29 years. Ex.R2 pertains to the body of a person aged
about 40 years. Therefore, I am unable to appreciate the
contention of the appellant herein.
21. The learned counsel appearing for the appellant
also placed reliance on the decision in the case of SMT.
ARATHY AND ANOTHER VS. S.M. UMESHA AND
ANOTHER1, wherein a coordinate Bench of this Court had
rejected the claim on the ground that the complaint was
filed after the delay of 1 ½ months and the delay of 1 ½
months was not explained by any cogent reasons.
MFA No.7025/2011 DD on 9-11-2015
- 16 -
NC: 2023:KHC:45563
Therefore, the said decision cannot be applied to the facts
of the present case.
22. He also relied on the decision in the case of
NEW INDIA ASSURANCE COMPANY LIMITED VS.
JAGADEESH REDDY AND ANOTHER2, which also refers
to a case wherein, the rider claimed to be a pillion rider in
a self made accident. Obviously, the facts are different and
there cannot be a ratio in that regard.
23. Similarly, the decision in the case of THE
MANAGER, ORIENTAL INSURANCE COMPANY
LIMITED VS. PARAMESHA AND OTHERS3 pertains to a
vehicle implicated after 11 days of the accident and the
MLC record show fall from vehicle.
24. He also relied on the decision in the case of
BAJAJ ALLIANZ GENERAL INSURANCE COMPANY
LIMITED VS. B.C. KUMAR AND ANOTHER4, wherein, a
MFA No.962/2007 DD on 12-03-2009
MFA No.6030/2017 & Con.Matter DD 3-1-2023
2010 ACJ 1667
- 17 -
NC: 2023:KHC:45563
coordinate Bench of this Court observing as many as five
discrepancies, held that it was a case of false implication.
Obviously, it is the case of filing the complaint with 1½
months delay and is in no way relevant to the facts of the
present case.
Re. Point No.2
25. Adverting to the contentions of the petitioners,
he relied on the decision in the case of NATIONAL
INSURANCE COMPANY LIMITED, MOODBIDRI
BRANCH,MANGALURU TALUK VS. ALWIN LOBO AND
ANOTHER5, wherein, a coordinate Bench of this Court had
invoked the provisions of Order XLI Rule 33 of CPC to
enhance the compensation from Rs.11,39,340/- to
Rs.44,92,140/- in an appeal filed by the Insurance
Company.
26. It is settled principles of law that an Appellate
Court can invoke the provisions of Order XLI Rule 33 of
2023(1) Kar.L.J. 702
- 18 -
NC: 2023:KHC:45563
CPC, if it is found that injustice is caused to the victim or
the deceased while awarding the compensation.
27. In the case on hand, respondent Nos.1 and 2/
claimants have made a submission for enhancement of the
compensation. A perusal of the evidence on record would
show that though a pay slip is produced by them as per
Ex.P7 showing the gross income at Rs.15,060/- per
month, the author of the document was not examined.
No-doubt, certain Record of Rights have been produced
showing the name of the petitioners as owners of the
agricultural lands, there is no specific document to show
that the deceased also owned the lands. The Tribunal has
considered the basic pay of the deceased as mentioned in
Ex.P7 and held the monthly income of the deceased at
Rs.8,000/- per month. I do not find any injustice being
caused to the petitioners since the guidelines issued by the
Karnataka State Legal Services Authority for settlement of
disputes before the Lok Adalat prescribe a notional income
of Rs.8,500/- for the year 2015. However, the Tribunal has
- 19 -
NC: 2023:KHC:45563
failed to consider the future prospects at 40% of the
notional income. Hence, 'future prospects' need to be
considered as laid down in the case of NATIONAL
INSURANCE COMPANY LIMITED VS. PRANAY SETHI
AND OTHERS6. Therefore, by taking the notional income
at Rs.8,500/- and after adding future prospects at 40%,
the multiplicand would be Rs.11,900/-. Hence, 'loss of
dependency' is calculated as Rs.11,900/- X 12 X 17 X 50%
= Rs.12,13,800/-. The compensation awarded by the
Tribunal under the remaining conventional heads does not
require any enhancement by this Court. As a consequence,
the petitioners would be entitled for an enhancement of
Rs.3,97,800/- in addition to the compensation awarded by
the Tribunal.
28. In view of the aforesaid reasons, the appeal
filed by the Insurance Company deserves to be dismissed
and by invoking Order XLI Rule 33 of CPC, an additional
AIR 2017 SC 5157
- 20 -
NC: 2023:KHC:45563
sum of Rs.3,97,800/- need to be awarded by this Court to
the petitioners. Hence, the following:
ORDER
The appeal filed by the appellant-Insurance
Company is dismissed.
The petitioners are also entitled for a sum of
Rs.3,97,800/-, in addition to the compensation
awarded by the Tribunal along with interest 6%
per annum from the date of petition till deposit.
The order of the Tribunal regarding
apportionment and fixed deposit remain
unaltered.
The amount which is in deposit before this
Court shall be transmitted to the Tribunal
forthwith.
Sd/-
JUDGE
tsn*
