Karnataka High Court
The Legal Manager vs Rathnamma on 15 December, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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MFA No. 8698 of 2018
C/W MFA No. 10242 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
MISCELLANEOUS FIRST APPEAL No.8698 OF 2018 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL No.10242 OF 2018 (MV-D)
IN M.F.A.No.8698/2018:
BETWEEN:
THE LEGAL MANAGER,
OMEG HDI GENERAL INSURANCE,
COMPANY LIMITED, MEGH HOUSE No.24,
PARK STREET, KOLKATTA-700 016.
REPRESENTED BY
SENIOR MANAGER,
Digitally PRESENTLY KNOWN AS MAGMA HDI
signed by
KIRAN GENERAL INSURANCE COMPANY LIMITED,
KUMAR R
2ND FLOOR, HMJC ROAD, NO.36, J.C.ROAD,
Location:
HIGH NEAR MEENARVA CIRCLE,
COURT OF BENGALURU-560 002.
KARNATAKA
...APPELLANT
(BY SRI. O.MAHESH., ADVOCATE (VC))
AND:
1. RATHNAMMA, AGE 46 YEAR
W/O H.SHIVARUDRAPPA,
2. VIJAYALAKSHMI, AGE 21 YEAR,
D/O H.SHIVARUDRAPPA,
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MFA No. 8698 of 2018
C/W MFA No. 10242 of 2018
3. ANUSHA, AGED 25 YEAR,
D/O H.SHIVARUDRAPPA,
4. H.SHIVARUDRAPPA,
AGE 55 YEARS,
S/O LATE HANUMANTHAPPA,
ALL ARE RESIDING AT
MACHENAHALLI VILLAGE,
KASABA HOBLI, HOSADURGA TALUK,
CHITRADURGA DISTRICT-577 501.
NOW AT PRESENTLY RESIDING AT
6TH CROSS, 3RD MAIN ROAD,
NEAR ROYAL APOLLO SCHOOL,
HEMAVATHI NAGAR,
HASSAN-573 201.
5. DHAREPPA UPPAR,
MAJOR, S/O YANKAPPA,
HOUSE No.7, VIJAYANAGARA COLONY,
SOLAPURA ROAD, BIJAPURA-586 103.
...RESPONDENTS
(BY SRI.O.MAHESH, ADVOCATE 9VC))
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED:25.07.2018
PASSED IN MVC No.1127/2016 ON THE FILE OF THE PRL.
SENIOR CIVIL JUDGE & CJM, MEMBER, ADDITIONAL MACT,
HASSAN, AWARDING COMPENSATION OF Rs.23,78,000/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
REALIZATION, ETC.
IN M.F.A.No.10242/2018:
BETWEEN:
1. RATHNAMMA
W/O H.SHIVARUDRAPPA, 46 YEARS,
2. VIJAYALAKSHMI
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MFA No. 8698 of 2018
C/W MFA No. 10242 of 2018
D/O H.SHIVARUDRAPPA, 21 YEARS,
3. ANUSHA, D/O H.SHIVARUDRAPPA,
25 YEARS,
4. H.SHIVARUDRAPPA,
S/O LATE HANUMANTHAPPA, 55 YEARS
ALL ARE R/O MACHENAHALLI VILLAGE,
KASABA HOBLI, HOSADURGA TALUK,
CHITRADURGA DISTRICT.
PRESENTLY R/O 6TH CROSS, 3RD MAIN ROAD,
NEAR ROAYL APOLLO SCHOOL,
HEMAVATHI NAGARA,
HASSAN CITY-573 201.
...APPELLANTS
(BY SMT.SHARADAMBA.A.R., ADVOCATE)
AND:
1. DHAREPPA UPPAR,
S/O YANKAPPA,
MAJOR HOUSE No.7,
VIJAYANAGARA COLONY,
SOLAPURA ROAD,
BIJAPAURA, CHITRADURGA.
2. OMEG HDI GENERAL INSURANCE CO., LTD.,
MEGH HOUSE, 24, PARK STREET,
KOLKATTA-700 016.
REPRESENTED BY SENIOR MANAGER,
OMEGA HDI GENERAL INSURANCE CO., LTD.,
2ND FLOOR, HMJC ROAD,
36 J.C. ROAD, MINERVA CIRCLE,
BENGALURU-560 002.
...RESPONDENTS
(BY SRI.O.MAHESH, ADVOCATE FOR R-2 (VC);
VIDE ORDER DATED:22.07.2022 NOTICE TO R-1 IS
DISPENSED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
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MFA No. 8698 of 2018
C/W MFA No. 10242 of 2018
DATED:25.07.2018, PASSED IN MVC No.1127/2016, ON THE
FILE O THE PRINCIPAL SENIOR CIVIL JUDGE & CHIEF JUDICIAL
MAGISTRATE, MEMBER, ADDITIONAL MACT, HASSAN, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 28.11.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
1. M.F.A. No.8698/2018 is by the insurer, while M.F.A.
No.10242/2018 is by the claimants.
2. On 21.03.2016, an accident occurred between a two-
wheeler driven by Shashikanth and by a Tipper Lorry. As a
result of this collision, Shashikanth sustained grievous
injuries and died on the spot. The parents and siblings of
the deceased Shashikanth consequently instituted claim
proceedings.
3. The said claim was contested by the insurer alone.
The owner of Tipper Lorry chose to remain absent and was
placed ex parte.
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4. The Tribunal, on consideration of the evidence,
concluded that an accident did occur on 21.03.2016 which
resulted in the death of Shashikanth and this accident had
occurred due to the rash and negligent driving of the
driver of the Tipper Lorry. The Trial Court, thereafter,
proceeded to assess the compensation that the claimants
were entitled to and concluded that they were entitled to a
sum of Rs.23,78,000/-. In arriving at the said sum, the
Tribunal considered the income of the deceased as
Rs.14,00,000/-.
5. The insurer is in appeal denying the accident and
contending that even if the accident did occur, it was
solely due to negligence on the part of the deceased
himself and therefore, fastening the liability on the insurer
was improper.
6. The Claimants are also in appeal contending that the
quantum of compensation awarded was inadequate.
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7. Learned counsel appearing for the insurer contended
that the accident occurred as a result of Shashikanth
hitting the rear portion of the Tipper Lorry and this was
proved by the IMV report and also the spot sketch, and
having regard to this fact, the finding of the Tribunal that
the accident occurred due to the negligence of the Tipper
Lorry was incorrect.
8. Learned counsel also sought to rely upon the
evidence of P.Ws.2, 3 and 4 to contend that during the
course of cross-examination, they had denied giving
statements to the police and they had also admitted that
though they were eye-witnesses, they had chosen not to
lodge a complaint and these facts indicated that the
accident was doubtful and at any rate, the negligence was
only on the part of the deceased.
9. As regards the compensation determined by the
Tribunal, learned counsel sought to contend that the
evidence of the deceased father himself indicated that the
petitioner had not received the honorarium of Rs.14,000/-
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from four months preceding the accident and therefore,
the Tribunal was in error in determining the monthly
income of the deceased at Rs.14,000/-. He also submitted
that since it was not in dispute that the deceased was a
bachelor, the Tribunal ought to have deducted 50%, but
the Tribunal had deducted only 1/4th towards personal
expenses of the deceased. He, therefore, submitted that
the appeal was required to be allowed and the claim
petition was required to be dismissed.
10. Learned counsel appearing for the claimants, on the
other hand, contended that the occurrence of the accident
cannot be in dispute, in view of the IMV report and also
because of the laying of a chargesheet against the driver
of the vehicle. She also contended that the evidence on
record clearly indicated that the occurrence of the accident
had been proved.
11. She sought to highlight the fact that even according
to the suggestion put to the deceased father, the accident
occurred when the two-wheeler hit the oncoming Tipper
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and this suggestion, by itself, proved that the assertion of
the learned counsel for the insurer that Shashikanth hit
the Tipper Lorry from behind, was incorrect. She also
submitted that since the IMV report and the sketch,
coupled with the fact that the police had charged the
driver of the Tipper Lorry for rash and negligent driving,
the Tribunal was perfectly justified in recording a finding
that the accident occurred only due to the negligence on
the part of the driver of the Tipper Lorry.
12. As far as compensation is concerned, she submitted
that the Tribunal was in error in determining the income of
the deceased at Rs.14,000/- per month, based on the
internship honorarium of Rs.14,000/- per month. She
submitted that the deceased was pursuing his final year in
veterinary science and the Certificate issued by the
College indicated that he was a brilliant student, who was
about to graduate in three months and therefore, he would
have secured a good job with a handsome salary of
Rs.50,000/- per month. She submitted that in light of the
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Certificate given by the Dean of the Veterinary College,
the determination of income at Rs.14,000/- per month
was extremely meager and the same was required to be
enhanced substantially.
13. As regards the occurrence of the accident and
negligence, the spot sketch Ex.P-6, IMV report Ex.P-7
leaves no room for doubt that an accident did occur on
21.03.2016. The further fact that the police registered an
FIR and after investigation, decided to charge the driver of
the Tipper Lorry of rash and negligent driving, conclusively
proves that the accident did occur.
14. As far as negligence is concerned, the spot sketch
which is produced at Ex.P-6 indicates that the two wheeler
was being driven on the Arakalgud - Hassan road and the
Tipper Lorry was trying to cross Arakalgud - Hassan road
from the mud road. The accident has occurred at the point
of the Tipper Lorry entering into the road and it is,
therefore, clear that it was the Tipper Lorry driver who
was responsible for the accident, inasmuch as he ought
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not to have crossed the road when there were vehicles
plying on the main road. The fact that the police have laid
a chargesheet against the driver of the lorry also affirms
the fact that negligence was on the part of the Tipper
Lorry driver.
15. It is not in dispute that the Tipper Lorry was insured
by respondent No.2 and therefore, the liability of the
insurer to pay the compensation on the accident and
negligence being established, cannot be in dispute.
16. The claimants also adduced the evidence of the co-
students of the deceased, who were traveling in a
motorcycle behind him, and both of them have clearly
stated that the accident occurred due to the negligence on
the part of the Tipper Lorry driver.
17. It is to be noticed here that the insurer did not make
any effort to examine the driver of the Tipper Lorry to
establish its contention that negligence was on the part of
the deceased. In light of these facts, the finding of the
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Tribunal that the accident occurred only due to the
negligence on the driver of the Tipper Lorry, cannot be
found fault with. Consequently, the appeal filed by the
insurer on the ground of negligence is dismissed.
18. As regards the compensation, the Tribunal has
determined the monthly income of the deceased at
Rs.14,000/- and the basis for this assessment is a
Certificate issued by the Dean of the Veterinary College,
which reads as follows -
"This is to certify that Mr.Shashikanth was the final
year student of Veterinary College, Hassan and met
with a fatal accident on 21.03.2016 in which he lost
his life.
He was a brilliant student pursuing internship
programme and was about to finish the graduation
in three months.
He was drawing an internship honorarium of
Rs.14,000/- per month. As he was a meritorious
student, after graduation he would have been
placed in a very good job with a minimum salary of
around fifty thousand rupees per month.
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His death is not only a loss to Veterinary
profession, but also huge financial loss to his family
members."
19. As could be seen from this Certificate, the Dean
stated that the deceased was drawing an internship
honorarium of Rs.14,000/- per month. He also gone on to
state that since the deceased was a meritorious student,
and after graduation, he would have secured a very good
job with a minimum salary of Rs.50,000/- per month. It is
clear that in light of this Certificate issued by the Dean of
the Veterinary College, the determination of monthly
income at Rs.14,000/- in respect of a student who was on
the verge of graduating and becoming a Veterinary Doctor
is extremely low.
20. Learned counsel for the claimant, in this appeal,
produced a Recruitment Notification issued by the
Department of Animal Husbandry and Fisheries,
Government of Karnataka, whereby applications were
called for the post of Veterinary Officers. This Notification
is dated 21.03.2018 and it indicates that a Veterinary
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Officer appointed by the Government in the year 2000 was
entitled to draw a salary in the pay scale of Rs.28,100 -
50,100/-. The petitioner has also produced a consolidated
amount payable from the Human Resource Management
System of the Government of Karnataka, in relation to a
Veterinary Officer working in the Department of Animal
Husbandry which indicates that as of April, 2018, a
Veterinary Officer would be drawing a basic salary of
Rs.52,650/- and take home a salary of Rs.57,150/-.
21. Learned counsel for the insurer, however, submits
that the Notification and the consolidated pay bill were
sought to be produced for the first time before this Court
and that too, without an application and therefore, the
same would have to be disregarded.
22. In my view, this submission is untenable. It is to be
kept in mind that a proceeding under the Motor Vehicles
Act in respect of a claim for compensation, is a proceeding
in which technicalities cannot deny the right of a claimant
from securing appropriate compensation. Learned counsel
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for the claimants has produced a Recruitment Notification
issued by the relevant Government Department and a
consolidated pay bill in respect of a Veterinary Officer
issued by the Governmental Department, to indicate the
probable income that the deceased would have earned,
had he survived and had been appointed by the
Government. If these two documents are read in
conjunction with the Certificate marked at Ex.P-10 issued
by the Dean of Veterinary College, Hassan, it becomes
apparent and clear that the deceased would have, in all
probability, secured a job which would entitle him in a
salary of at least Rs.50,000/-.
23. However, since the Notification and the consolidated
pay bill both are of the year 2018, and the accident
occurred in the year 2016, it would be appropriate to
determine the monthly income of the deceased at
Rs.40,000/-.
24. Since the deceased was a bachelor and was aged
about 22 years, 40% requires to be added to the monthly
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income towards future prospects, which would result in the
income being Rs.56,000/-. If 50% is deducted towards
personal expenses, his monthly income would be
Rs.28,000/-.
25. The income of the deceased for the purposes of
determining the loss of dependency would, thus, be
Rs.28,000/-.
26. As the deceased was aged 22 years, a multiplier of
'18' would have to be applied. Consequently, the claimants
would be entitled to a sum of Rs.60,48,000/-
(Rs.28,000/- x 12 x '18') towards "loss of dependency".
27. The claimants, being the parents and siblings of the
deceased, would each be entitled to a sum of
Rs.44,000/- towards "loss of consortium" i.e., in all
Rs.1,76,000/-, and they would also be entitled to a sum
of Rs.33,000/- under "conventional heads".
28. Thus, the claimants, in modification of the impugned
award, would be entitled to the following sums:
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Sl. Amount
Particulars
No. (In Rs.)
1. Loss of Dependency 60,48,000/-
2. Loss of Consortium 1,76,000/-
3. Conventional Heads 33,000/-
Total 62,57,000/-
29. Thus, the claimant would be entitled for a
compensation of Rs.62,57,000/- as against
Rs.23,78,000/- awarded by the Tribunal, along with
interest at the rate of 6% per annum from the date of
petition till its realization.
30. The Insurance Company is directed to deposit the
amount of compensation awarded, within a period of two
months from the date of receipt of a certified copy of this
judgment.
31. The apportionment of the amount shall be as per the
terms of the award of the Tribunal.
32. The amount in deposit, if any, shall be transferred to
the Tribunal forthwith.
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33. The appeal filed by claimants is, accordingly,
allowed in part.
Sd/-
JUDGE
HNM
