Karnataka High Court

The Branch Manager vs Smt. Latha on 10 October, 2023

Bench: C M Joshi

                                            -1-
                                                        NC: 2023:KHC:36878
                                                      MFA No. 5306 of 2017




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 10TH DAY OF OCTOBER, 2023

                                          BEFORE
                             THE HON'BLE MR JUSTICE C M JOSHI
                   MISCELLANEOUS FIRST APPEAL NO. 5306 OF 2017 (MV-D)
                   BETWEEN:

                   THE BRANCH MANAGER,
                   ORIENTAL INSURANCE CO. LTD.,
                   SHARADA COMPLEX, OPP: KSRTC
                   BUS STAND, P.B. ROAD,
                   CHITRADURGA.

                   BY
                   THE ORIENTAL INSURANCE CO. LTD.,
                   REGIONAL OFFICE, 2ND FLOOR,
                   SUMANGALA COMPLEX,
                   LAMINGTON ROAD,
                   HUBLI - 580 020.

                   BY ITS MANAGER.
                                                              ...APPELLANT
                   (By SRI O MAHESH, ADVOCATE-V/C)
Digitally signed
by T S             AND:
NAGARATHNA
Location: High     1 . SMT. LATHA,
Court of
Karnataka              AGED ABOUT 35 YEARS,
                       W/O. LATE SURESH.
                   2 . KUMARI IMPHANA,
                       MINOR,
                       AGED ABOUT 17 YEARS,
                       D/O. LATE SURESH,
                   3 . KUMARI CHANDANA,
                       MINOR,
                       AGED ABOUT 13 YEARS,
                       D/O. LATE SURESH,
                       RESPONDENT NO. 2 & 3 ARE
                       MINORS REPRESENTED BY THEIR MOTHER,
                       I.E., 1ST RESPONDENT SMT. LATHA,
                            -2-
                                     NC: 2023:KHC:36878
                                   MFA No. 5306 of 2017




    W/O. LATE SURESH.
4 . SMT. SOWBHAGYAMMA,
    AGED ABOUT 61 YEARS,
    W/O LATE MARIGOWDA.

    ALL ARE RESIDING AT,
    3RD CROSS, ZINC LINE,
    BHADRAVATHI.
5 . RANGASWAMY URS,
    AGED ABOUT 65 YEARS,
    KALARAJ URS,
    R/O. BEHIND PHAYAS COMPOUND,
    UNDEDASARAHALLI ROAD,
    CHIKAMAGALURU-577 101.
6 . SMT. SHARADA S R,
    AGED ABOUT 50 YEARS,
    W/O. GURUSIDDAPPA,
    R/O AT DODDAKURUBARAHALLI,
    CHIKKAMAGALURU-577 101.
                                        ...RESPONDENTS
(By SRI SHOWRI.H.R, ADVOCATE FOR R1 TO R4;
    R6 SERVED;
    NOTICE TO R5 D/W V/O DATED 25.11.2019.)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 01.02.2017 PASSED IN MVC
NO.765/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE AND ADDITIONAL MACT-12, BHADRAVATHI, AN AWARD
AMOUNT OF RS.14,72,760/- WITH INTEREST AT 7% P.A. FROM
THE   DATE   OF     PETITION   TILL   ITS  REALIZATION.

     THIS APPEAL HAVING BEEN HEARD THROUGH V/C AND
RESERVED   FOR   JUDGMENT   AND   COMING  ON   FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                      JUDGMENT

Being aggrieved by the Judgment and award dated

01.02.2017 passed in MVC No.765/2014 by the learned

NC: 2023:KHC:36878 MFA No. 5306 of 2017

Additional Senior Civil Judge and Additional MACT-12,

Bhadravathi, wherein a sum of Rs.14,72,760/- with

interest at 7% p.a. from the date of petition till its

realization has been awarded on account of the death of

one Suresh in the road traffic accident, the Insurance

Company is before this Court in appeal.

2. The petitioners who are the wife, minor children,

and mother of one Suresh have filed a claim petition

before the Tribunal claiming compensation contending

that, on 11.02.2014 at 7.30 p.m, while Suresh was riding

his bicycle to reach his house from Shivamogga to

Bhadravathi, near bypass cross, the respondent No.1

came by driving the school bus bearing No.KA-18/B-3513

in a rash and negligent manner from Shivamoga to

Bhadravathi and dashed to the cycle of the said Suresh.

As a result, Suresh fell down and sustained grievous

injuries and on the way to the hospital he succumbed to

injuries. The petitioners are entirely depending on the

income of the deceased Suresh and the death of Suresh

made the family members to undergo mental agony as

NC: 2023:KHC:36878 MFA No. 5306 of 2017

they lost the love and affection of deceased. It was the

further case of the petitioners that, deceased was working

at J.A.M. Pipes, Industrial Area, Nidige Post, Shivamogga

and was getting Rs.9,386/- per month as salary. The

accident has occurred due to rash and negligent driving of

the offending vehicle by the respondent No.1, respondent

No.2 is the owner and respondent No.3 is the insurer of

the said school bus and therefore, all the respondents are

jointly and severally liable to pay the compensation and

claimed the compensation of Rs.16,60,000/- with

interest.

3. On issuance of notice, the respondent Nos. 1 to 3

have appeared through their counsels and filed their

statement of objections.

4. The respondent Nos.1 and 2, the driver and

owner of the school bus denied the name, age,

occupation, monthly income, nature of injuries sustained,

period of treatment taken, etc. and contended that

accident was occurred due to negligence of the rider of

NC: 2023:KHC:36878 MFA No. 5306 of 2017

bicycle, i.e., deceased himself and not due to the

negligence of the respondent No.1 i.e, driver of the school

bus. Further, they contended that as on the date of the

accident, the respondent No.1 possessed valid driving

licence and the respondent No.2, being the owner of the

vehicle also possessed Registration Certificate, tax

particulars and insurance policy and therefore, respondent

No.3 being the insurer is liable to pay the compensation.

5. Further, the respondent Nos. 1 and 2 by filing

additional objection statement contended that on

11.2.2014 after getting repaired the bus in T.V.Sundaram

Iyengar and Sons Limited, Shivamoga ('TVS and sons' for

short) it was coming towards Chickmagalur near by-pass

road cross, the deceased came by riding his cycle in

negligent manner and dashed himself to the bus and that

the relatives of the deceased and the police colluded with

each other and straight away registered the case against

the bus driver and they have not violated any condition as

per the I.M.V.Act. Hence prayed to dismiss the petition.

NC: 2023:KHC:36878 MFA No. 5306 of 2017

6. The respondent No.3- Insurance Company denied

the petition averments and also disputed the quantum of

compensation claimed as exorbitant, unreasonable and

arbitrary. Further it has contended that as per the permit

issued to the school bus by the R.T.O., it was permitted

only to carry Sri Taralabalu Jagadguru Nursery and

Primary School children and staff from a particular place to

the school and to return without collecting any fair within

the local limits of Chickmagalur Taluk. But as per the FIR,

accident occurred on 11.2.2014 near B.H.Road, Biliki

Cross, Bhadravathi and hence, the respondent No.1 has

violated the conditions of the permit and therefore, it is

not liable to pay any compensation. The respondent No.1

being the driver and the respondent No.2 being the

owner are impleaded as accused persons in

C.C.2096/2014 and the 2nd respondent being the 2nd

accused in that case pleaded guilty and paid fine of

Rs.2,000/- and therefore, respondent Nos.1 and 2 are

liable to pay compensation if any awarded by the court

and it has also disputed the valid and effective driving

NC: 2023:KHC:36878 MFA No. 5306 of 2017

licence of the respondent No.1. Therefore, prayed to

dismiss the petition.

7. On the basis of the above pleadings, the Tribunal

framed appropriate issues and the petitioner No.4 was

examined as PW1, one witness as PW2 and Exs.P1 to P11

were marked in evidence. On behalf of respondents, three

witnesses were examined as RWs. 1 to 3 and Exs.R1 to

R12 were marked.

8. After hearing the arguments by both the sides, the

Tribunal awarded the compensation of Rs.14,72,760/-

fastening the liability on the insurance company under

different heads as below:

Loss of consortium Rs. 25,000/-

Transportation and funeral expenses Rs. 25,000/- Loss of love and affection Rs. 25,000/-

loss of dependency                    Rs.13,97,760/-
                 Total                Rs.14,72,760/-

9. Being aggrieved by the said judgment, respondent

No.3- Insurance Company has approached this Court in

appeal contending that, the Tribunal failed to consider the

contributory negligence on the part of the deceased

NC: 2023:KHC:36878 MFA No. 5306 of 2017

Suresh and that there was violation of the conditions of

the policy since the insured bus was being plied outside

the permitted area and also that the quantum of the

compensation is on the higher side without observing the

settled principles of law.

10. On issuance of notice, respondent Nos. 1 to 4

appeared through their counsel, notice to respondent No.5

is dispensed with vide order dated 25.11.2019 and

respondent No.6 served but remained unrepresented.

11. On admitting the appeal, the Tribunal records

have been secured. Heard the arguments by both the

sides and have perused the Tribunal records.

12. The learned counsel appearing for the appellant-

Insurance company has contended that the bus insured by

the appellant-Insurance Company was having permit for

being used within the Taluka limits of Chickmagaluru and

to carry the school children and staff from a particular

place to school and return back without collecting any

fare. Obviously, the accident had occurred on Shivamogga

NC: 2023:KHC:36878 MFA No. 5306 of 2017

- Bhadravathi road, which is beyond the Taluka limits of

Chickmagaluru and therefore, there is violation of

conditions of the policy. He submits that the respondent

No.2, though has adduced evidence, failed to establish

that the said vehicle was returning after the repairs at the

garage of TVS and sons at Shivamogga. It is submitted

that though the Tribunal holds that there is violation of

terms and conditions of the policy, has fastened the

liability on the Insurance Company. Secondly, he has

contended that the accident occurred at the edge of the

road near the median, which clearly suggest that the

deceased Suresh was riding his bicycle on the right side of

the road and as such has contributed for the negligence.

Thirdly, he submitted that the Tribunal has considered the

future prospects at 30% when the age of the deceased

was 40 years, which is erroneous. Hence, he has sought

for intervention of this Court on the question of liability as

well as the quantum of the compensation.

13. Per contra, the learned counsel appearing for

respondent Nos.1 to 4-petitioners contended that the

- 10 -

NC: 2023:KHC:36878 MFA No. 5306 of 2017

investigation papers clearly show that the driver of the bus

was negligent and since the deceased was not using any

motorized vehicle, no contributory negligence can be

attributed to him. He submits that the contentions of the

contributory negligence is bereft of the pleadings and as

such, the same is to be rejected. He submits that the

assessment of the compensation by the Tribunal is proper

and correct and as such, the appeal deserves to be

dismissed.

14. Section 66(3)(p) of the Motor Vehicle Act,

permit plying of the vehicle proceeding empty to any place

for the purpose of repair and return back and for such

movements the conditions of the permit would not apply.

The respondent Nos.1 and 2 who are the driver and owner

of the vehicle have taken a defence that the offending bus

was left at the garage of T.V. Sundaram Iyengar,

Shivamogga on 4-2-2014 and after repairs the driver was

taking back the same to Chickamagalur via Bhadravathi.

There were no passengers in the vehicle when the accident

- 11 -

NC: 2023:KHC:36878 MFA No. 5306 of 2017

took place. Therefore, they contend that the liability

fastened upon the respondent No.3 is correct.

15. The perusal of the documentary evidence show

that the driver of the vehicle was having a valid driving

licence to drive the passenger vehicle till 9-10-2018 as

evidenced by Ex.R2. The copy of the permit produced at

Ex.R5 discloses that the permit was valid till 27-8-2018 to

drive the vehicle within Chickamagalur Taluk Limits only.

The chargesheet filed against the bus driver show that the

accident occurred on the Shivamogga-Bhadravathi road

and the case was registered by Bhadravathi Traffic Police

Station. Therefore, the burden shifts to the respondent

Nos. 1 and 2 to establish that Rule 66 of the Motor

Vehicles Rules is applicable at the time of the accident.

16. In order to discharge this burden, the respondent

No.2 was examined as RW1 and an official of the T.V.S

and sons, Shivamogga, was examined as RW2. They rely

on the documents produced at Exs.R1 to R10.

- 12 -

NC: 2023:KHC:36878 MFA No. 5306 of 2017

17. The Head Master of respondent No.2 -

Institution, who is examined as RW1 states that on

4-2-2014, the said bus was kept for repairs at TVS and

sons, Shivamogga and after the repairs, it was returning

to Chickamagalur on 11-2-2014. While returning to

Chickamagalur, the accident occurred at Biliki Cross. She

states that deceased was shifted to the hospital in the said

bus itself. In the cross-examination, it is elicited that the

estimate of the expenses for the repairs of the bus would

be placed before the Managing Committee of the School

and it would be approved by them. The cross- examination

is mainly on the nature of the services rendered at TVS

and sons, Shivamogga. The cross- examination is also

about the route that has to be taken by the driver while

returning to Chickamagaluru. She admits that police had

filed the chargesheet against her for violation of the

conditions of the policy and she had pleaded guilty.

18. RW2-D. Ramesh, states that the vehicle was kept

for repairs on 4-2-2014 and it was returned on 11-2-2014

at about 6.00 p.m. In this connection, he has produced

- 13 -

NC: 2023:KHC:36878 MFA No. 5306 of 2017

the job card at Ex.R7, job order at Ex.R8 and invoices at

Exs.P9 and 10. He also identifies the letter issued by TVS

and Sons as per Ex.R4. Ex.R4 happens to be a letter

issued by TVS and sons wherein, it was stated that as per

the records the vehicle was received for service on

4-2-2014 and delivered on 11-2-2014. Ex.R7 is the

handwritten job order and it shows that vehicle was taken

in the garage on 4-2-2014 at 10.20 a.m. and the job was

completed on 9-2-2014 at 6.00 p.m. It is evident that

there are no such manipulations in respect of the date of

job completed. Ex.R8 is the job card and it shows that the

vehicle was taken in on 4-2-2014 and the promised date

of delivery was 4-2-2014 itself. However, the invoice at

Exs.R9 and R10 show that they are the credit bills dated

4-2-2014. These were generated at a later date i.e. on

28-2-2014. Therefore, these two documents are not of

much importance in the matter. According to RW2, after

the initial repairs, the vehicle was sent to paint shop and

there it was lying till 11-2-2014. The cross- examination of

- 14 -

NC: 2023:KHC:36878 MFA No. 5306 of 2017

RW2 show that they do not have any document to

establish that the vehicle was in the garage till 11-2-2014.

19. From the above evidence, it is clear that the

vehicle was in the garage till 9-2-2014 as depicted in

Ex.R7. The Tribunal came to the conclusion that there is

violation of the terms and conditions of the Policy and

Section 66(3)(p) of the Motor Vehicle Act, is not

applicable. The evidence on record shows that the vehicle

was fully repaired on 9-2-2014 and it is possible that the

delivery of the same was taken on 11-2-2014. In any

circumstance, the vehicle was in the garage till 9-2-2014

and as such, it probablise the contentions of the

respondent No.2 that the delivery was taken on

11-2-2014. The preponderance of probability that

emanates from Ex.R4 and the ocular evidence of RW2 is

not rebutted by any substantial evidence. Obviously, the

vehicle was empty at the time of the accident. Therefore,

there is nothing on record to show that the other

conditions of the permit were violated. There is a

plausible explanation by the respondent No.2 that the

- 15 -

NC: 2023:KHC:36878 MFA No. 5306 of 2017

vehicle was being taken back after the repairs. Hence, the

conclusions of the Tribunal that there was violation of the

permit are not sustainable in law. Therefore, without

referring to the decisions mentioned in para 36 and 37 of

the impugned judgment, this Court comes to the

conclusion that the liability has to be fastened upon the

respondent No.3- Insurance Company.

20. Coming to the question of contributory

negligence, it is to be noted that the deceased was riding

a bicycle. Obviously, he was on the right side of the road.

The driver of the bus had good view of the rider of the

bicycle. It is not the case of the respondent No.1 that the

rider has abruptly come on the road, in the line of motion

of the bus. Whenever, the driver of the vehicle is in the

view of a pedestrian or a cyclist, it become his bounden

duty to drive the vehicle in a cautious manner. Evidently,

the cyclist was hit from the backside. There is nothing

available on record which show that though the driver had

taken caution, there was an overtact by the rider of the

cycle and he was the author of his own accident. It is also

- 16 -

NC: 2023:KHC:36878 MFA No. 5306 of 2017

evident that the police have filed chargesheet against the

bus driver for negligent driving. Obviously, it was a four

lane road with a median. It is also evident that a few feet

away from the spot of the accident, there was Biliki cross

and as such, the bus driver could have very well

anticipated that the bicycle rider was taking a right turn.

Hence, I am unable to accept the contention of the

appellant-Insurance company that there was negligence

on the part of the rider of the bicycle.

21. Lastly, the learned counsel for the appellant has

contended that the future prospects adopted by the

Tribunal is erroneous. On the basis of the available

evidence, the Tribunal comes to the conclusion that the

income of the deceased Suresh was Rs.8,000/- per month

since the petitioners did not prove their contention that

the deceased was earning Rs.516/- per day by way of his

employment with JAM pipes. The Tribunal did not believe

the evidence of PW2, who only has issued a letter as per

Exs.P9 and 11. Therefore, no fault can be found with the

Tribunal in adopting the notional income.

- 17 -

NC: 2023:KHC:36878 MFA No. 5306 of 2017

22. The Tribunal has considered the future prospects

at 30%. The decision in the case of National Insurance

Company Limited vs. Pranay Sethi and others1, lays

down that the future prospects shall be 25% for the

persons who are self employed and 30% who are on

permanent job. Evidently, the PW2 has stated that the job

of the deceased was not permanent. Therefore, the future

prospects should have been considered by the Tribunal at

25%. So also, there being four dependants, the personal

expenses of the deceased is to be held at 1/4th. Hence, the

multiplicand would be Rs.10,000/- (8000/- + 2,000/-).

Hence, the loss of dependency is calculated as:

Rs.10,000/- x 12 x 15 x 3/4=13,50,000/-.

23. In addition to it, the Tribunal has also awarded a

sum of Rs.25,000/- each towards the transportation and

funeral expenses, loss of consortium, loss of love and

affection. Again, in view of the decision in the case of

AIR 2017 SC 5157

- 18 -

NC: 2023:KHC:36878 MFA No. 5306 of 2017

National Insurance Company Limited Vs.Pranay

Sethi and others (Supra), the petitioners are entitled for

compensation under the head of 'loss of filial love and

affection' to the extent of Rs.40,000/-. There has to be

two escalations in view of the directions contained in the

above constitutional Bench decision. Hence, the

compensation under the head of 'loss of filial love and

affection' would be Rs.48,400/-. Similarly, the

compensation under the head of 'loss of estate' and

'funeral expenses' would be Rs.18,150/- each.

24. Hence, the petitioners are entitled for a

compensation of Rs.14,34,700/- instead of

Rs.14,72,760/- as awarded by the Tribunal under the

following heads:

1. Towards loss of dependency Rs.13,50,000/-

2. Towards loss of love and affection Rs. 48,400/-

3. Towards funeral expenses Rs. 18,150/-

4. Towards loss of estate Rs. 18,150/-

     Total                                       Rs.14,34,700/-
                                - 19 -
                                             NC: 2023:KHC:36878
                                           MFA No. 5306 of 2017

25. There is no reason assigned by Tribunal to award

interest at 7% p.a. Hence the statutory interest of 6%

shall be paid on the compensation amount.

26. In view of the above, the appeal filed by the

appellant- Insurance Company deserves to be allowed in

part. Hence, the following:

ORDER

(i) The appeal filed by the Insurance Company is

allowed in part.

(ii) The impugned judgment and award passed by

the Tribunal is modified by awarding a sum of

Rs.14,34,700/- instead of Rs.14,72,700/- together with