Karnataka High Court
The Branch Manager vs Ashwini on 13 September, 2023
Bench: H T Prasad
-1-
NC: 2023:KHC:33237
MFA No. 8302 of 2018
C/W MFA No. 5162 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 8302 OF 2018 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 5162 OF 2021(MV)
IN MFA 8302/2018
BETWEEN:
THE BRANCH MANAGER
RELIANCE GENERAL INSURANCE
COMPANY LTD,
N.R.CIRCLE, HOLENARASINPURA ROAD
KRITHIKA ARCADE
HASSAN-573 201
NOW REP BY ITS MANAGER
RELIANCE GENERAL INSURANCE
COMPANY LTD
Digitally signed
NO.28, CENTENARY BUILDING
by EAST WING, 5TH FLOOR, M.G.ROAD
DHANALAKSHMI BENGALURU-01.
MURTHY
...APPELLANT
Location: High
Court of (BY SRI. PRADEEP B., ADVOCATE)
Karnataka
AND:
1. ASHWINI
W/O CHANDAN
AGED ABOUT 23 YEARS.
2. KARIAIAH
S/O LATE MARIAIAH
AGED ABOUT 47 YEARS.
-2-
NC: 2023:KHC:33237
MFA No. 8302 of 2018
C/W MFA No. 5162 of 2021
3. PRAMILA
D/O KARIAIAH
AGED ABOUT 37 YEARS.
4. CHIATRA
D/O KARIAIAH
AGED ABOUT 22 YEARS.
5. CHETHAN
S/O KARIAIAH
ALL ARE R/AT KOMMANAHALLI VILLAGE
DUDDA HOBLI, HASSAN-573201.
6. MANJAPPA
S/O NANJAPPA
S.DEVALAPURA VILLAGE
DUDDA HOBLI
HASSAN DISTRICT-573201.
...RESPONDENTS
(BY SRI.H J ANANDA., ADVOCATE FOR R1 TO R5:
NOTICE TO R6 SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 06/02/2018,
PASSED IN MVC NO.888/2016, ON THE FILE OF THE 2ND
ADDITIONAL SENIOR CIVIL JUDGE AND MACT, HASSAN,
AWARDING COMPENSATION OF RS.10,44,400/- WITH
INTEREST AT 8% P.A., FROM THE DATE OF PETITION TILL
REALIZATION.
IN MFA 5162/2021
BETWEEN:
1. SMT.ASHWINI
W/O LATE CHANDAN
AGED ABOUT 26 YEARS.
-3-
NC: 2023:KHC:33237
MFA No. 8302 of 2018
C/W MFA No. 5162 of 2021
2. SRI KARIAIAH
S/O LATE MARIAIAH
AGED ABOUT 50 YEARS.
3. SMT.PRAMILA
D/O KARIAIAH
AGED ABOUT 40 YEARS.
4. CHIATRA
D/O KARIAIAH
AGED ABOUT 25 YEARS.
5. CHETHAN
S/O KARIAIAH
AGED ABOUT 35 YEARS
ALL ARE R/AT KOMMANAHALLI VILLAGE
DUDDA HOBLI, HASSAN TALUK
HASSAN-573201.
... APPELLANTS
(BY SRI. H J ANANDA, ADVOCATE)
AND:
1. SRI MANJAPPA
S/O NANJAPPA, MAJOR
S.DEVALAPURA VILLAGE
DUDDA HOBLI
HASSAN ATLUK & DISTRICT-573201.
2. MANAGER
RELIANCE GENERAL INSURANCE
COMPANY LIMITED
N R CIRCLE, HOLENARASIURA ROAD
KRUTHIKA ARCADE
HASSAN-573201.
...RESPONDENTS
(BY SRI.B.PRADEEP., ADVOCATE FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED: 13.09.2023)
-4-
NC: 2023:KHC:33237
MFA No. 8302 of 2018
C/W MFA No. 5162 of 2021
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 06/02/2018,
PASSED IN MVC NO.888/2016, ON THE FILE OF THE 2ND
ADDITIONAL SENIOR CIVIL JUDGE AND MACT, HASSAN,
PARTLY ALLOWING THE CLAIM PEITTION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.8302/2018 is filed by the Insurance
Company, whereas MFA No.5162/2021 is filed by the
claimants under Section 173(1) of the Motor Vehicles Act,
(for short, 'the Act') being aggrieved by the judgment and
award dated 06.02.2018 passed by the Senior Civil Judge
and Motor Accident Claims Tribunal, Hassan (for short,
'the Tribunal') in MVC No.888/2016. Since the challenge is
to the same judgment, both the appeals are clubbed
together, heard and common judgment is being passed.
2. Facts giving rise to the filing of the appeals briefly
stated are that on 02.02.2016 at about 12.30 p.m. the
deceased Chandan was proceeding at the left side of the
road near Dyavalapura cross. At that time, a tractor/trailer
bearing registration No.KA-43/T-1014/1015 which was
NC: 2023:KHC:33237
MFA No. 8302 of 2018
C/W MFA No. 5162 of 2021
being driven in a rash and negligent manner, dashed
against the deceased from the backside. As a result of the
aforesaid accident, the deceased sustained grievous
injuries and succumbed to the injuries.
3. The claimants filed a petition under Section 166
of the Act seeking compensation for the death of the
deceased along with interest.
4. On service of summons, the respondent Nos.1
and 2 appeared through counsel and filed separate written
statements in which the averments made in the petition
were denied. The age, occupation and income of the
deceased are denied. It was pleaded that the petition itself
is false and frivolous in the eye of law. It was further
pleaded that the accident was due to negligence of the
deceased himself. It was further pleaded that the quantum
of compensation claimed by the claimants is exorbitant.
Hence, he sought for dismissal of the petition.
5. On the basis of the pleadings of the parties, the
Claims Tribunal framed the issues and thereafter recorded
NC: 2023:KHC:33237
MFA No. 8302 of 2018
C/W MFA No. 5162 of 2021
the evidence. The claimants, in order to prove their case,
examined claimant No.1 as PW-1 and another witness as
PW-2 and got exhibited documents namely Ex.P1 to
Ex.P10. On behalf of respondents, two witnesses were
examined as RW-1 and RW-2 and got exhibited documents
namely Ex.R1 to Ex.R4. The Claims Tribunal, by the
impugned judgment, inter alia, held that the accident took
place on account of rash and negligent driving of the
offending vehicle by its driver, as a result of which, the
deceased sustained injuries and succumbed to the injuries.
The Tribunal further held that the claimants are entitled to
a compensation of Rs.10,44,400/- along with interest at
the rate of 8% p.a. and directed the Insurance Company
to deposit the compensation amount along with interest.
Being aggrieved, these appeals have been filed.
6. The learned counsel for the Insurance Company
has raised the following contentions:
(i) Firstly, the insurer himself was driving the
offending vehicle. Since he did not have the driving
NC: 2023:KHC:33237
MFA No. 8302 of 2018
C/W MFA No. 5162 of 2021
licence, the claimants have implicated the driver
Manjashetti to make false claim against the Insurance
Company.
(ii) Secondly, even the investigator of the Insurance
Company has recorded the statement of the claimant No.1
in the compact disc wherein she has categorically stated
that the insured himself was driving the tractor at the time
of the accident. Therefore, it is very clear that to make a
false claim they have implicated the driver. Since the
insured has violated the policy conditions, Insurance
Company is not liable to pay the compensation.
(iii) Thirdly, to prove their case the Insurance
Company has filed an application for additional documents
to produce the compact disk. Without giving any
reasoning, the Tribunal has rejected the application.
(iv) Fourthly, even though the claimants claim that
the deceased was earning Rs.20,000/- per month, the
same is not established by the claimants by producing
NC: 2023:KHC:33237
MFA No. 8302 of 2018
C/W MFA No. 5162 of 2021
documents. Therefore, the Tribunal has rightly assessed
the income of the deceased notionally.
(v) Fifthly, the compensation awarded by the
Tribunal under the conventional heads is on the higher
side.
(vi) Sixthly, claimant Nos. 2 to 5 are majors and
they were not depending upon the income of the
deceased. The Tribunal instead of deducting 50% towards
personal expenses has deducted 1/3rd towards personal
expenses of the deceased.
(vii) Lastly, in view of the law laid down by a Division
Bench of this Court in the case of MS.JOYEETA BOSE
AND OTHERS vs. VENKATESHAN.V AND OTHERS
(MFA 5896/2018 and connected matters disposed of
on 24.8.2020), the rate of interest awarded by the
Tribunal at 8% p.a. is on the higher side. Hence, he
sought for allowing of the appeal filed by the Insurance
Company and dismissing the appeal filed by the claimants.
NC: 2023:KHC:33237
MFA No. 8302 of 2018
C/W MFA No. 5162 of 2021
7. On the other hand, learned counsel appearing for
the claimants has raised the following contentions:
(i) Firstly, after service of summons Insurance
Company has appeared through counsel and filed written
statement, but they have not taken the contention that
the insured was driving the tractor at the time of the
accident.
(ii) Secondly, the investigator of the Insurance
Company has recorded the evidence of the claimant No.1
in the compact disk, but she is not an eyewitness to the
accident. Therefore, her evidence cannot be considered.
The Tribunal after considering the evidence on record has
rightly held that the charge sheeted driver was driving the
vehicle and he was negligent in causing the accident.
(iii) Thirdly, the claimants claim that the deceased
was earning Rs.20,000/- per month. But the Tribunal is
not justified in taking the monthly income of the deceased
as only Rs.6,000/-.
- 10 -
NC: 2023:KHC:33237
MFA No. 8302 of 2018
C/W MFA No. 5162 of 2021
(iv) Fourthly, as per the law laid down by the
Hon'ble Supreme Court in the case of NATIONAL
INSURANCE CO. LTD. vs. PRANAY SETHI AND
OTHERS reported in AIR 2017 SC 5157, 40% of the
income has to be added towards future prospects.
(v) Fifthly, as per the law laid down by the Hon'ble
Supreme Court in the case of MAGMA GENERAL
INSURANCE CO. LTD. Vs. NANU RAM reported in 2018
ACJ 2782, each of the claimants are entitled for
compensation of Rs.40,000/- under the head of 'loss of
love and affection and consortium'. Hence, he prays for
allowing the appeal filed by the claimants and dismissal of
the appeal filed by the Insurance Company.
8. Heard the learned counsel for the parties and
perused the judgment and award and the original records.
9. The case of the claimants is that on 02.02.2016
at about 12.30 p.m. the deceased Chandan was
proceeding at the left side of the road near Dyavalapura
cross. At that time, a tractor/trailer bearing registration
- 11 -
NC: 2023:KHC:33237
MFA No. 8302 of 2018
C/W MFA No. 5162 of 2021
No.KA-43/T-1014/1015 which was being driven in a rash
and negligent manner, dashed against the deceased from
the backside. As a result of the aforesaid accident, the
deceased sustained grievous injuries and succumbed to
the injuries.
10. After service of notice before the Tribunal, the
insurance company was represented by a counsel and filed
written statement, nowhere they have taken a contention
that the insured was driving the tractor. For the first time,
they have taken the said contention without any
supporting materials. Even the investigator of the
Insurance Company has recorded the statement of
claimant No.1, since claimant No.1 is not an eyewitness to
the accident, her statement cannot be considered. The
Tribunal, on the basis of the evidence of the parties and
the materials available on record has rightly held that
Manjashetti was driving the vehicle at the time of the
accident and he was negligent in causing the accident.
- 12 -
NC: 2023:KHC:33237
MFA No. 8302 of 2018
C/W MFA No. 5162 of 2021
There is no error in the finding recorded by the Tribunal in
respect of negligence is concerned.
Re.quantum:
11. The claimants claim that deceased was earning
Rs.20,000/- per month. But they have not produced any
documents to prove the income of the deceased. In the
absence of proof of income, the notional income has to be
assessed. As per the guidelines issued by the Karnataka
State Legal Services Authority, for the accident taken
place in the year 2016, the notional income of the
deceased has to be taken at Rs.9,500/- p.m. To the
aforesaid income, 40% has to be added on account of
future prospects in view of the law laid down by the
Constitution Bench of the Supreme Court in 'PRANAY
SETHI' (supra). Thus, the monthly income comes to
Rs.13,300/-. The Tribunal has rightly deducted 1/3rd of
the income of the deceased towards personal expenses
and remaining amount, i.e., Rs.8,867/- has to be taken as
his contribution to the family. The deceased was aged
- 13 -
NC: 2023:KHC:33237
MFA No. 8302 of 2018
C/W MFA No. 5162 of 2021
about 24 years at the time of the accident and multiplier
applicable to his age group is '18'. Thus, the claimants are
entitled to compensation of Rs.19,15,272/-
(Rs.8,867*12*18) on account of 'loss of dependency'.
12. In addition, the claimants are entitled to
compensation of Rs.15,000/- on account of 'loss of estate'
and compensation of Rs.15,000/- on account of 'funeral
expenses'. Claimant No.1, wife of the deceased is entitled
for compensation of Rs.40,000/- under the head of 'loss of
spousal consortium'.
13. In view of the law laid down by the Supreme
Court in the case of 'MAGMA GENERAL INSURANCE'
(supra), claimant Nos.2 and 3, parents of the deceased
are entitled for compensation of Rs.40,000/- each under
the head of 'loss of filial consortium'.
14. Thus, the claimants are entitled to the following
compensation:
- 14 -
NC: 2023:KHC:33237
MFA No. 8302 of 2018
C/W MFA No. 5162 of 2021
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 19,15,272
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Filial consortium 80,000
Total 20,65,272
15. In the result, I pass the following order:
(i) The appeals are allowed in part. The judgment of
the Claims Tribunal is modified.
(ii) The claimants are entitled to a total
compensation of Rs.20,65,272/- as against Rs.10,44,400/-
awarded by the Tribunal.
(iii) In view of the law laid down by a Division Bench
of this Court in the case of JOYEETA BOSE (supra), the
rate of interest awarded by the Tribunal is reduced from
8% p.a. to 6% p.a.
- 15 -
NC: 2023:KHC:33237
MFA No. 8302 of 2018
C/W MFA No. 5162 of 2021
(iv) The Insurance Company is directed to deposit
the compensation amount along with interest from the
date of filing of the claim petition till the date of
realization, within a period of six weeks from the date of
receipt of copy of this judgment.
(v) In view of the order dated 13.09.2023 passed by
this Court, the claimants are not entitled for interest for
the delayed period of 679 days in filing the appeal.
(vi) The amount in deposit is ordered to be
transferred to the Tribunal forthwith.
(vii) In view of disposal of the appeals, all the
pending applications do not survive for consideration.
Sd/-
JUDGE
CM
