Karnataka High Court
Smt. Shivamma vs Siddappaji on 24 November, 2023
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NC: 2023:KHC:42517-DB
MFA No.7531/2022
C/w MFA No.5383/2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE K.V.ARAVIND
MISCELLANEOUS FIRST APPEAL No.7531/2022 (MV-D)
C/w
MISCELLANEOUS FIRST APPEAL No.5383/2023 (MV-D)
MFA NO.7531/2022:
BETWEEN:
CHOLAMANDALAM MS GIC LTD.,
NO.125/116-Q, SAMPIGE ROAD
CHAMARAJANAGAR CITY - 571 313
ALSO AT 6TH FLOOR
GOLDEN HEIGHTS BUILDING
NEAR SUJATHA THEATER
RAJAJINAGAR, BENGALURU - 560 010
REP. BY ITS CHIEF CLAIMS MANAGER ...APPELLANT
Digitally signed
by PRABHU (BY SRI MURALIDHAR N, ADVOCATE)
KUMARA
NAIKA
Location: High AND:
Court of
Karnataka 1. SMT SHIVAMMA
W/O LATE NANJUNDA
AGED ABOUT 33 YEARS
2. S N ANJALI
D/O LATE NANJUNDA
AGED ABOUT 18 YEARS
3. SRINIVASA S N
S/O LATE NANJUNDA
AGED ABOUT 14 YEARS
R3 MINOR
REP. BY HIS NATURAL GUARDIAN
R1 BY NAME SMT SHIVAMMA
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MFA No.7531/2022
C/w MFA No.5383/2023
R1 TO R3 ARE R/AT SIDDAIAHNAPURA VILLAGE
CHAMARAJANAGARA TALUK & DISTRICT
KARNATAKA - 571127
4. SIDDAPPAJI
S/O LATE PUTTAIAH
AGED ABOUT 39 YEARS
R/AT SIDDAIAHNAPURA VILLAGE
CHAMARAJANAGARA TALUK & DISTRICT
KARNATAKA - 571 127 ...RESPONDENTS
(BY SRI M.R.HIREMATHAD, ADVOCATE FOR R1 & R2;
R3 MINOR REP.BY R1; R4 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT
AND AWARD DATED 01.06.2022 PASSED BY THE ADDITIONAL
SENIOR CIVIL JUDGE AND MACT, JMFC, CHAMARAJANAGARA IN
MVC NO. 182/2021 AWARDING COMPENSATION OF RS.
24,00,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF
PETITION TILL ITS REALIZATION.
MFA NO.5383/2023:
BETWEEN:
1. SMT SHIVAMMA
W/O LATE NANJUNDA
AGED ABOUT 34 YEARS
2. S N ANJALI
D/O LATE NANJUNDA
AGED ABOUT 19 YEARS
3. SRINIVASA S N
S/O LATE NANJUNDA
AGED ABOUT 14 YEARS
SINCE A3 IS MINOR
REP. BY HIS NATURAL GUARDIAN
MOTHER I.E. A1
ALL ARE R/AT SIDDAIAHNAPURA VILLAGE
CHAMARAJANAGARA TALUK &
DISTRICT- 517 313 ...APPELLANTS
(BY SRI M.R.HIREMATHAD, ADVOCATE)
AND:
1. SIDDAPPAJI
S/O LATE PUTTAIAH
AGED ABOUT 40 YEARS
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MFA No.7531/2022
C/w MFA No.5383/2023
R/AT SIDDAIAHNAPURA VILLAGE
CHAMARAJANAGARA TALUK
& DISTRICT- 517 313
2. THE MANAGER
CHOLAMANDALAM MS INSURANCE
COMPANY LIMITED
NO.125/116-Q, SAMPIGE ROAD
CHAMARAJANAGAR CITY - 517 313 ...RESPONDENTS
(BY SRI MURALIDHAR N, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH V/C/O DTD:12.09.2023)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT
AND AWARD DATED 01.06.2022 PASSED BY THE ADDITIONAL
SENIOR CIVIL JUDGE AND MACT, JMFC, CHAMARAJANAGARA, IN
MVC NO. 182/2021 PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR
FINAL HEARING, THIS DAY, K.S.MUDAGAL.J, DELIVERED THE
FOLLOWING:
JUDGMENT
Office objection raised in M.F.A.No.5383/2023 is
complied by correcting the name of respondent No.2 in the
cause title of the appeal memo.
2. Challenging the award in M.V.C.No.182/2021 on
the file of the Additional Senior Civil Judge and JMFC, MACT,
Chamarajanagar, the Insurer and the claimants have
preferred the above appeals.
3. For the purpose of convenience, the parties are
referred to henceforth according to their ranks before the
Tribunal.
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4. Claimant No.1 is the wife, claimant Nos.2 and 3
are minor children of the deceased Nanjunda. On 26.01.2021
at 2.00 p.m. when Nanjunda was traveling in Mahindra Jeeto
Goods vehicle bearing No.KA-10-A-1329 near
Chikkahole-Yellekatte Road within the jurisdiction of
Chamarajanagar East Police Station, he fell down from the
vehicle and suffered grievous injures. He was shifted initially
to JSS Hospital, Chamarajanagar. From there he was shifted
to JSS Hospital, Mysore. He succumbed to the injuries on
27.01.2021 at 5.00 a.m. in JSS Hospital, Mysore. At the
relevant time, respondent Nos.1 and 2 were the registered
owner and Insurer of the vehicle in question.
5. On the complaint against the driver of the
Mahindra Jeeto Goods vehicle bearing No.KA-10-A-1329, the
police on investigation filed the charge sheet against him. In
the charge sheet it was alleged that the driver of the said
vehicle, without properly closing the cabin door of the vehicle
drove the vehicle rashly and negligently, got into the ditch,
resultantly the door opened and Nanjunda was thrown out of
the vehicle. He suffered grievous injuries on his head and
ears and died.
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6. The claimants filed M.V.C.No.182/2021 against
the respondents contending that the deceased was traveling
in the said vehicle for loading tomatoes and the accident
occurred due to actionable negligence on the part of the
driver of the said vehicle. They further contended that
deceased was earning Rs.20,000/- to Rs.25,000/- per month
as loader and from agricultural work and they were
dependent on his income. They claimed compensation of
Rs.46,10,000/- on different heads from the respondents.
7. The respondents contested the petition denying
actionable negligence on the part of the driver of the vehicle
in question, age, occupation, income of the deceased and
their liability to pay compensation. They contended that the
deceased himself had not closed the cabin door properly and
the accident occurred due to his negligence only. Respondent
No.1 contended that the risk was covered by the policy
issued by respondent No.2. Whereas, respondent No.2
contended that the vehicle was being plied without permit,
fitness certificate and driving licence, therefore it is not liable
to indemnify the damages.
8. On the basis of the pleadings, the Tribunal
framed the relevant issues. To substantiate the claim of the
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claimants, claimant No.1 was examined as PW.1 and Exs.P1
to P26 were marked. The respondents did not adduce any
evidence.
9. The Tribunal on hearing the parties rejected the
contention of the respondents regarding negligence on the
part of the deceased himself. Relying on Exs.P1 to P9 the
charge sheet and other police records, the Tribunal held that
the accident occurred due to actionable negligence on the
part of the driver of the vehicle in question. The Tribunal
relying on Ex.P22 the aadhar card, considered the age of the
deceased as 40 years and notionally considered his income at
Rs.15,000/- per month, added 25% of the same by way of
future prospects, deducted 1/3rd out of the same for his
personal expenses, applied 15 multiplier and awarded
compensation of Rs.22,50,000/- on the head of loss of
dependency. The Tribunal in all awarded compensation of
Rs.24,00,000/- as per the table below:
Sl. Particulars Compensation
No. Amount in Rs.
1. Loss of dependency 22,50,000/-
2. Loss of consortium 1,20,000/-
3. Towards transportation of 15,000/-
dead body & funeral
expenses
4. Loss of estate 15,000/-
Total 24,00,000/-
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10. The Insurer has challenged the award both on the
ground of liability and quantum. The claimants have
challenged the award on the ground that the compensation
awarded is not just.
Analysis
11. There is no dispute that Nanjunda died while he
was traveling in the vehicle in question. It is also not
disputed that he was thrown out of the vehicle since the
cabin door opened when the vehicle was in motion.
Reg. Negligence:
12. The claimants contended that the driver of
Mahindra Jeeto Goods vehicle bearing No.KA-10-A-1329 had
not closed the door of the vehicle properly, whereas the
respondents claimed that Nanjunda himself had not closed
the door properly. Basically, it is the duty of the driver of the
vehicle to see that the doors of the vehicle are closed
properly before the vehicle starts moving, that too when
another person is traveling in the said vehicle. Further, on
the complaint that the driver of Mahindra Jeeto Goods vehicle
bearing No.KA-10-A-1329 was negligent, the police after
investigation filed the charge sheet holding that the driver of
the vehicle himself was rash and negligent. Such charge
sheet is prima facie proof of negligence on the part of the
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driver of the vehicle. To rebut that, the respondents did not
examine the driver of the said vehicle. Therefore the
presumption under Ex.P1 the charge sheet was not rebutted.
13. The Hon'ble Supreme Court in the judgment in
Raj Rani & Ors. v. Oriental Insurance Co. Ltd.1 relied on by
learned Counsel for the Insurer held that contributory
negligence ordinarily means failure of a person to use
reasonable care for the safety of either himself or his
property.
14. In the present case the duty of closing the cabin
door of the vehicle in question was basically on the driver of
the said vehicle for safety of himself and other inmates of the
vehicle. Therefore, the said judgment is not applicable to the
facts of the present case. For the aforesaid reasons, this
Court does not find any error in the findings of the Tribunal
that the accident occurred due to actionable negligence on
the part of the driver of Mahindra Jeeto Goods vehicle
bearing No.KA-10-A-1329.
Reg. quantum:
15. In the petition, the claimants contended that the
deceased was aged 40 years. To prove that they rely on the
(2009) 13 SCC 654
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postmortem report Ex.P2, Exs.P3 to P5 the records of JSS
Hospital and Ex.P22 the aadhar card of the deceased.
16. The respondents disputed that the deceased was
aged 40 years. Therefore the burden was on the claimants to
prove the same. The age mentioned in the documents
produced by the claimants was not consistent. In the
postmortem report, the age of the deceased was shown as
40 years. In the hospital records, his age was shown as 38
years. In Aadhar card his date of birth is shown as
01.01.1981 indicating that as on 2021 he was aged 40 years.
17. PW.1 in her cross examination unequivocally
admits that at the time of death of her husband, he was aged
42 years. Such admission was not clarified by re-examining
her. When PW.1 gave such admission, the burden was on the
claimants to clarify the correct age of the deceased. The
basis of the entry in Ex.P22 were not produced. Therefore the
Tribunal was not justified in considering his age as 40 years
as against clear admission of PW.1. Therefore the age of the
deceased has to be taken as 42 years.
18. The claimants though contended that the
deceased was earning Rs.20,000/- to 25,000/- per month as
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loader and agriculturist, they did not adduce any evidence in
proof of actual income of the deceased. Therefore the
Tribunal was justified in assessing his income notionally. The
accident took place in the year 2021. Considering the age of
the deceased, prevailing wage rates and cost of living during
2021, the Tribunal notionally assessed the income at
Rs.15,000/- which is just and reasonable.
19. The deceased had three dependants. Therefore,
the Tribunal following the judgment of the Hon'ble Supreme
Court in Sarla Verma v. Delhi Transport Corporation2 rightly
deducted 1/3rd from his income towards personal expenses.
Therefore his contribution to family comes to Rs.10,000/-
(Rs.15,000/- x 2/3).
20. Considering the age of the deceased and his
occupation as per the judgment of the Hon'ble Supreme
Court in National Insurance Company Limited vs. Pranay
Sethi3, 25% has to be superadded to his income and not
40% as considered by the Tribunal. 25% of Rs.10,000/-
comes to Rs.2,500/-. Therefore his monthly contribution to
family comes to Rs.12,500/- (Rs.10,000/- x 25% = 2,500/-).
AIR 2009 SC 3104
AIR 2017 SC 5157
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21. As per the judgment of the Hon'ble Supreme
Court in Sarla Verma's case referred to supra, the applicable
multiplier for his age is 14. Therefore, the compensation
payable on the head of loss of dependency comes to
Rs.21,00,000/- (Rs.12,500/- x 12 x 14).
22. The claimants being the wife and minor children
of the deceased were entitled to compensation on the head
of loss of consortium. As per the judgment of the Hon'ble
Supreme Court in Pranay Sethi's case referred to supra and
Magma General Insurance Company Ltd. v. Nanu Ram4, they
are entitled to compensation of Rs.40,000/- each with
escalation of 10% on the head of consortium which comes to
Rs.1,32,000/-.
23. As per the aforesaid judgments, the claimants are
entitled to compensation of Rs.15,000/- on the head of loss
of estate and Rs.15,000/- for funeral expenses and
transportation with escalation at 10%. The compensation
payable on the said heads comes to Rs.33,000/-.
24. Learned Counsel for the Insurer relying on the
judgment of the Hon'ble Supreme Court in Shri Ram General
2018 (18) SCC 130
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Insurance Co. Ltd. v. Bhagat Singh Rawat5 and submits that
on the conventional heads the claimants are entitled to
compensation of Rs.70,000/- only. Reading of the said
judgment shows that in that case, the Tribunal had awarded
Rs.50,000/- on the head of loss of love and affection and
Rs.40,000/- towards loss of consortium which in all comes to
Rs.90,000/-. Thus awarding compensation on the head of
consortium and again awarding compensation on the head of
love and affection amount to duplication. Therefore it was
held the claimants are entitled to compensation on
conventional heads as per the judgment of the Hon'ble
Supreme Court in Pranay Sethi's case referred to supra.
Therefore, the said judgment is not applicable to the facts of
the present case.
25. For the aforesaid reasons, the just compensation
payable to the claimants in this case is as follows:
Sl. Particulars Compensation
No. Amount in Rs.
1. Loss of dependency 21,00,000/-
2. Loss of consortium 1,32,000/-
3. Loss of estate & funeral 33,000/-
expenses
Total 22,65,000/-
2023 (2) TAC 713
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Reg. Liability:
26. Learned Counsel for the Insurer submits that the
deceased was an unauthorized passenger, therefore the
Insurer is not liable to indemnify the damages. First of all
such defence was not taken in the statement of objections
filed by the Insurer. The burden of proving breach of policy
condition would be on the Insurer. The Insurer did not lead
any evidence to show that the deceased was unauthorized
passenger. Therefore, said contention deserves no merit.
27. For the aforesaid reasons, the appeals deserve to
be allowed in part. Hence, the following:
ORDER
The appeals are partly allowed.
The award of the Tribunal is modified as follows:
(i) The claimants are entitled to compensation of
Rs.22,65,000/- with interest thereon at 6% p.a. from the
date of the petition till its realization.
(ii) Respondent No.2 being the Insurer shall deposit
the compensation before the Tribunal on adjusting the
compensation already deposited, if any, within four weeks
from the date of receipt of copy of this order.
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(iii) The award of the Tribunal with regard to
apportionment and investment is maintained.
(iv) Registry shall transmit the amount in deposit and
the trial Court records to the Tribunal forthwith.
(v) The Insurer has not paid costs of Rs.500/-. The
same shall be included in the award.
In view of disposal of the appeals, pending IAs if any
stood disposed of.
Sd/-
JUDGE
Sd/-
JUDGE
KSR
