Karnataka High Court

The Divisional Manager vs Gangamma on 4 January, 2023

Bench: K.S.Mudagal, Anil B Katti

                                          M.F.A.No.7209/2021
                                      C/w M.F.A.No.2206/2021

                              1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF JANUARY 2023

                         PRESENT

        THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
                             AND
         THE HON'BLE MR.JUSTICE ANIL B KATTI

     MISCELLANEOUS FIRST APPEAL No.7209/2021 (MV-D)
                          C/w
     MISCELLANEOUS FIRST APPEAL No.2206/2021 (MV-D)


M.F.A.No.7209/2021:

BETWEEN:

1.     SMT.GANGAMMA
       W/O LATE PRASADAPPA
       AGED ABOUT 40 YEARS

2.     SMT.MAHADEVAMMA
       M/O LATE PRASADAPPA
       AGED ABOUT 80 YEARS

3.     SRI UMESHASWAMY
       S/O LATE PRASADAPPA
       AGED ABOUT 23 YEARS

4.     SRI GEEVAN KUMAR
       S/O LATE PRASADAPPA
       AGED ABOUT 15 YEARS
       MINOR REP. BY HIS MOTHER
       APPELLANT NO.1

       ALL ARE R/AT NO.98, KUMBAR
       KOPPAL, MYSURU - 570 004             ...APPELLANTS

(BY SRI H.V.BHANUPRAKASH, ADVOCATE)
                                              M.F.A.No.7209/2021
                                         C/w M.F.A.No.2206/2021

                               2


AND:

1.     SRI KRISHNA RAJ
       S/O LATE SHIVARAJU
       AGED ABOUT 37 YEARS
       R/AT NO.167, PADUVARHALLI
       MYSURU - 570 006
       (DRIVER-CUM-OWNER OF BAJAJ
        TEMPO TRAX KA-20/6005)

2.     THE DIVISIONAL MANAGER
       HDFC ERGO GENERAL INSURANCE CO. LTD.,
       2ND FLOOR, 25/1, BUILDING NO.2
       SHANKARANARAYANA BUILDING
       M.G.ROAD, BENGALURU - 560 001
       (INSURER OF BAJAJ TEMPO
        TRAX KA-20/6005)                    ...RESPONDENTS

(BY SRI B.PRADEEP, ADVOCATE FOR R2;
    NOTICE TO R1 DISPENSED WITH V/O DTD: 04.01.2022)

       THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT
AND AWARD DATED 05.02.2021 PASSED BY THE PRINCIPAL JUDGE,
COURT OF SMALL CAUSES AS A PRESIDING OFFICER, MACT,
MYSURU IN MVC NO.730/2017.


M.F.A.NO.2206/2021:

BETWEEN:

THE DIVISIONAL MANAGER
HDFC ERGO GIC LTD.
2ND FLOOR, 25/1, BUILDING NO.2
SHANKARANARAYANA BUILDING
M.G.ROAD, BENGALURU - 560 001                   ...APPELLANT

(BY SRI B.PRADEEP, ADVOCATE)
                                                M.F.A.No.7209/2021
                                           C/w M.F.A.No.2206/2021

                             3



AND:

1.     GANGAMMA
       W/O LATE PRASADAPPA
       AGED ABOUT 40 YEARS

2.     SMT.MAHADEVAMMA
       M/O LATE PRASADAPPA
       AGED ABOUT 80 YEARS

3.     UMESHASWAMY
       S/O LATE PRASADAPPA
       AGED ABOUT 23 YEARS

4.     SRI.GEEVAN KUMAR
       S/O LATE PRASADAPPA
       AGED ABOUT 15 YEARS

       SINCE R4 IS MINOR
       WILL BE REPRESENTED BY HIS
       MOTHER/NATURAL GUARDIAN I.E.,
       GANGAMMA R1

       ALL ARE R/AT NO.98, KUMBAR KOPPAL
       MYSURU - 570 004

5.     KRISHNARAJ
       S/O LATE SHIVARAJU
       AGED ABOUT 37 YEARS
       R/AT NO.167, PADUVARHALLI
       MYSURU                                 ...RESPONDENTS

(BY SRI.H.V.BHANUPRAKASH, ADVOCATE FOR R1 TO R3;
     R4 IS MINOR REP. BY R1;
     NOTICE TO R5 IS DISPENSED WITH V/O DTD: 04.01.2023)

       THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED 05.02.2021 PASSED BY THE
PRINCIPAL JUDGE, COURT OF SMALL CAUSES AS A PRESIDING
                                                           M.F.A.No.7209/2021
                                                      C/w M.F.A.No.2206/2021

                                     4


OFFICER,    MACT,    MYSURU     IN       MVC    NO.730/2017     AWARDING
COMPENSATION OF RS.10,77,500/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL ITS REALIZATION.


      THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR
ADMISSION     THIS   DAY,   K.S.MUDAGAL             J.,   DELIVERED    THE
FOLLOWING:


                            JUDGMENT

Aggrieved by the award dated 05.02.2021 in

M.V.C.No.730/2017 on the file of MACT and Principal Judge

Court of Small Causes, Mysuru, the claimants have preferred

M.F.A.No.7209/2021 and the Insurer has preferred

M.F.A.No.2206/2021.

2. For the purpose of convenience, the parties will be

referred to henceforth according to their ranks before the

Tribunal.

3. Claimant No.1 is the wife, claimant No.2 is the

mother and claimant Nos.3 and 4 are the children of the

deceased Prasadappa. On 13.02.2016 at 1.30 p.m. when

Prasadappa was traveling on motorcycle bearing Engine

Chassis No.MBLH10BTFHL00203 as pillion rider along with M.F.A.No.7209/2021 C/w M.F.A.No.2206/2021

Guru @ Guruprasad within the limits of Sampigipura village,

Bajaj Tempo Trax bearing Registration No.KA-20-6005 hit the

motorcycle and caused accident. Due to the injuries suffered

in the accident, both rider and the pillion rider suffered

injuries. Prasadappa succumbed to the injuries on the same

day in the hospital. At the relevant time respondent Nos.1 and

2 were the registered owner and the Insurer of the said tempo

trax at the relevant time.

4. The claimants filed M.V.C.No.730/2017 before the

Tribunal claiming that they were all dependent on the income

of the deceased Prasadappa, due to his death they have

suffered damages. They claimed damages of Rs.45,70,000/-

from the respondents.

5. Respondent No.1 did not contest the petition.

Respondent No.2 Insurer alone contested the petition denying

rashness and negligence on the part of respondent No.1,

occurrence of the accident, age, occupation and income of the

deceased and its liability to pay compensation. Respondent

No.2 claimed that the accident occurred due to rash and M.F.A.No.7209/2021 C/w M.F.A.No.2206/2021

negligent driving of the motorcycle and also claimed that

tempo trax in question did not had any permit to operate the

vehicle, therefore it is not liable to pay the compensation.

6. To substantiate their claim, the claimants

examined claimant No.1 as PW.1 and got marked Exs.P1 to

P9, Officer of respondent No.2 was examined as RW.1 and

Exs.R1 to R8 were marked.

7. The Tribunal on hearing both side by the

impugned award granted compensation of Rs.10,77,500/- to

the claimants. The Tribunal relying on Exs.P1 to P4 and Ex.P9

held that the accident occurred due to rash and negligent

driving of the vehicle by respondent No.1. The Tribunal further

held that respondent No.2 has failed to prove that respondent

No.1 was not possessing permit to operate tempo trax vehicle.

The Tribunal assessing the income of the deceased at

Rs.6,000/- per month and age at 48 years, added 25% of the

income by way of future prospects and deducted 1/4th of the

income towards personal expenses, applying multiplier 13 M.F.A.No.7209/2021 C/w M.F.A.No.2206/2021

awarded total compensation of Rs.10,77,500/- under different

heads which are as follows:

           Sl.          Particulars                    Amount
           No.                                          in Rs.
           1. Compensation towards loss                1,60,000/-
               of consortium
           2. Towards Estate                             15,000/-
           3.    Towards Transportation and              25,000/-
                 funeral expenses
           4.    Towards loss of dependency            8,77,500/-
                                        Total      10,77,500/-

8. As already stated, aggrieved by the quantum of

compensation, the claimants have preferred the appeal and

questioning the liability, the Insurer has preferred the appeal.

9. Though insurer contended that the accident

occurred due to rashness and negligence on the part of the

driver of the motorcycle in question, as rightly observed by

the Tribunal, charge sheet was filed only against respondent

No.1/driver cum owner of the tempo trax vehicle. Therefore

the Tribunal was justified in accepting the evidence of PW.1

and Exs.P1 to P4 and P9 to come to the conclusion that the M.F.A.No.7209/2021 C/w M.F.A.No.2206/2021

accident occurred due to rashness and negligence on the part

of respondent No.1.

10. So far as respondent No.1 not possessing permit

to operate the vehicle, Insurer relied on the evidence of RW.1

and Exs.R1 to R8. Respondent No.1 owner of the vehicle did

not appear and contest the contention of the claimants or

respondent No.2-Insurer. Ex.R6 the notice issued by Insurer

calling upon respondent No.1 to produce the permit and other

documents was not complied. Further Ex.R3 deposition of RTO

in MVC No.241/2016 showed that there was no permit for the

tempo trax vehicle.

11. In the cross-examination of RW.1, the claimants

did not deny the genuineness of Exs.R1 to R8. Respondent

No.1 who should have denied those documents did not contest

the matter, therefore inference can be drawn that he

conceded to those documents. Under the circumstances, the

Tribunal was not justified in holding that the Insurer has failed

to prove that the vehicle had no permit. In fact it was for

respondent No.1 to prove that the vehicle had permit which he M.F.A.No.7209/2021 C/w M.F.A.No.2206/2021

failed to do it. Though the finding of the Tribunal is incorrect,

however, that itself will not take away the liability of the

Insurer to pay the compensation to the claimants.

12. The Hon'ble Supreme Court in the judgment in

Amrit Paul Singh vs. Tata AIG General Insurance Company

Ltd in similar circumstances held that the Insurer is liable to

pay compensation to the claimants and entitled to recover the

same from the owner and driver.

13. So far as the quantum of compensation, the

accident occurred on 13.02.2016. As per postmortem report

Ex.P5 the age of the victim was 48 years. The claimants

though claimed that the income of the deceased was

Rs.30,000/- per month did not produce any proof of actual

income. Therefore, notional income has to be taken. Having

regard to the age of the deceased and the date of the

accident, income of Rs.6,000/- considered by the Tribunal is

on the lower side. The same should have been considered at

Rs.9,500/- per month.

AIR 2018 SC 2662 M.F.A.No.7209/2021 C/w M.F.A.No.2206/2021

14. Having regard to the judgment in National

Insurance Company Limited vs. Pranay Sethi2 amount of 25%

has to be added to the said income of Rs.9,500/-. Out of that

1/4th has to be deducted towards personal expenses of the

deceased as he had four dependents. The applicable multiplier

is 13. Therefore, compensation payable under the head loss of

dependency is Rs.13,89,375/- (Rs.9,500+2375=11875x¾=

8906 x 12 x 13= 13,89,375/-).

15. The claimants being wife, mother and children of

the deceased were entitled to consortium of Rs.40,000/- each.

In view of the judgment of the Hon'ble Supreme Court in

Pranay Sethi's case referred to supra escalation of 10% has

to be added to the same. Therefore they are entitled to

consortium of Rs.1,76,000/-.

16. Under the conventional heads like loss of estate,

funeral expenses, the claimants were entitled to Rs.30,000/-

with addition of 10% to the same. Under the said head, they

AIR 2017 SC 5157 M.F.A.No.7209/2021 C/w M.F.A.No.2206/2021

are entitled for Rs.33,000/-. Therefore just compensation

payable is as follows:

            Sl.         Particulars                   Amount
            No.                                        in Rs.
             1 Loss of dependency                    13,89,375/-
             2    Loss of consortium                  1,76,000/-
             3    Loss of funeral expenses              33,000/-
                  and loss of estate
                      Total Compensation            15,98,375/-

17. Respondent No.2 Insurer is liable to pay the same

to the claimants and recover that from respondent No.1 driver

cum owner of the Tempo Trax vehicle. The award requires to

be modified accordingly. Hence the following:

ORDER

(i) M.F.A.No.7209/2021 and M.F.A.No.2206/2021 are

partly allowed.

(ii) The claimants/appellants in M.F.A.No.7209/2012

are entitled to compensation of Rs.15,98,375/-

with interest thereon at 6% per annum from the

date of petition till the date of realization

(iii) Insurer i.e. appellant in M.F.A.No.2206/2021 shall

pay the said compensation within six weeks from M.F.A.No.7209/2021 C/w M.F.A.No.2206/2021

the date of this award and recover the same from

respondent No.1 i.e. owner of Tempo Trax bearing

No.KA-20-6005.