Karnataka High Court
S. Mahadevappa vs New India Assurance Co. Ltd on 6 February, 2024
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MFA No. 813 of 2013
C/W MFA No. 5946 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 813 OF 2013 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 5946 OF 2013 (MV)
IN M.F.A.No.813/2013:
BETWEEN:
1. NEW INDIA ASSURANCE CO. LTD.
REPRESENTED BY ITS MANAGER
3RD CROSS, R P ROAD,
NANJANGUD CITY,
REPRESENTED BY
NEW INDIA ASSURANCE CO LTD,
M G ROAD, BANGALORE.
...APPELLANT
(BY SRI. R JAIPRAKASH., ADVOCATE)
Digitally
signed by AND:
BHARATHI S
Location:
HIGH COURT 1. SRI S MAHADEVAPPA
OF
KARNATAKA S/O LATE SUBBANNA,
AGED ABOUT 45 YEARS,
2. SRI M VIVEKKUMAR
B/N MAHADEVAPPA,
AGED ABOUT 18 YEARS,
1ST RESPONDENT IS THE HUSBAND
2ND RESPONDENT IS THE SON OF
ONE SUDHA, BOTH ARE
R/A NO.7325, BEHIND KHB COLONY
THOMAS LAYOUT, NANJANGUD-571 003.
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MFA No. 813 of 2013
C/W MFA No. 5946 of 2013
3. SRI PUNITKUMAR
S/O NAGARAJ SETTY
AGED ABOUT 27 YEARS
BEGUR VILLAGE, BEGUR HOBLI
GUNDLUPET TALUK-571 004.
4. SRI BALAKRISHNA
S/O B V SETTY
AGED ABOUT 45 YEARS
MAIN ROAD, BEGUR
GUNDLUPET TALUK-571 004.
...RESPONDENTS
(BY SRI. KALYAN BASAVARAJ., ADVOCATE FOR R1 & R2;
R-3 SERVED AND UNREPRESENTED;
SRI.THYAGARAJA.K.R., ADVOCATE FOR R-4)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 24.9.2012
PASSED IN MVC NO. 131/2010 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND MACT, NANJANGUD, AWARDING A
COMPENSATION OF RS. 7,45,508/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL DEPOSIT.
IN M.F.A.No.5946/2013:
BETWEEN:
1. S.MAHADEVAPPA,
S/O LATE SUBBANNA,
AGED ABOUT 43 YEARS,
2. M.VIVEK KUMAR,
S/O S.MAHADEVAPPA,
AGED ABOUT 16 YEARS,
SINCE MINOR,
REPRESENTED BY HIS
FATHER AND NATURAL
GUARDIAN, S.MAHADEVAPPA,
BOTH THE APPELLANT ARE
R/AT No.7325, KHB COLONY,
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MFA No. 813 of 2013
C/W MFA No. 5946 of 2013
THOMAS LAYOUT,
NANJANGUD-577 117.
...APPELLANTS
(BY SRI. M.SUHAS GOWDA, ADVOCATE FOR
SRI. MUNIYAPPA., ADVOCATE)
AND:
1. NEW INDIA ASSURANCE CO. LTD.,
REPRESENTED BY ITS MANAGER,
3RD CROSS, R.P.ROAD,
NANJANGUD CITY,
REP. BY NEW INDIA ASSURANCE CO.LTD.,
M.G.ROAD, BANGALORE-577 020.
2. PUNITKUMAR,
S/O NAGARAJ SETTY,
AGED ABOUT 25 YEARS,
BEGUR VILLAGE,
BEGUR HOBLI, GUNDLUPET TALUK,
PIN : 576 106.
3. BALAKRISHNA,
S/O B.V.SETTY,
AGED ABOUT 47 YEARS,
MAIN ROAD, BEGUR,
GUNDLUPET TALUK,
PIN : 576 106.
...RESPONDENTS
(BY SRI. R.JAIPRAKASH, ADVOCATE FOR R-1;
R-2 SERVED AND UNREPRESENTED;
SRI. THYAGARAJ K.R., ADVOCATE FOR R-3)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 24.9.2012
PASSED IN MVC NO. 131/2010 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND MACT, NANJANGUD, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
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MFA No. 813 of 2013
C/W MFA No. 5946 of 2013
THESE APPEALS, COMING ON FOR FURTHER
SUBMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
1. MFA No.813/2013 is filed by the insurer and MFA
No.5946/2013 is filed by the claimant. In both the appeals
the judgment and award dated 24.09.2012 passed in
MVC.No.131/2010 by the Senior Civil Judge, MACT,
Nanjangud1 is under challenge. Hence, both the appeals
are taken up together for consideration.
2. For the sake of convenience, the parties herein are
referred to as per their rank before the Tribunal.
3. It is the case of the claimants that on 01.06.2010,
one Sudha2 hereinafter referred to as deceased along with
her husband the claimant No.1 were traveling in a TATA
Sumo vehicle from Begur to Bengaluru to attend a
marriage function of a near relative and when the vehicle
was moving on the Ooty-Bengaluru road at about 3.00
Hereinafter referred as 'Tribunal'.
Hereinafter referred to as deceased.
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p.m. the driver of the vehicle drove the same in a rash
and negligent manner, causing the accident in question, as
result of which the deceased sustained grievous injuries
and succumbed to the same. The husband and minor son
of the deceased filed a claim petition claiming
compensation for the death of the deceased arraying the
driver, owner and insurer of the TATA sumo vehicle as
respondent Nos.1 to 3. The respondent No.3 - insurer
entered appearance before the Tribunal and contested the
claim of the claimants specifically contending, inter alia,
that the deceased along with her husband and others had
hired the insured vehicle and were traveling as passengers
and hence the insurer is not liable to pay the
compensation.
4. The claimant No.1 was examined as PW-1 and a
witness Nanjappa was examined as PW-2, Exs.P.1 to
Ex.P.13 were marked in evidence. The representative of
the insurer was examined as RW-1. Exs.R.1 to Ex.R.3
were marked in evidence. The Tribunal upon appreciation
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of oral and documentary evidence on record allowed the
claim petition and awarded a total compensation of
`7,45,508/- together with interest at 6% per annum and
directed the respondent No.3 - insurer to deposit the
compensation awarded. Being aggrieved, the present
appeals are filed.
5. Learned counsel for the insurer assailing the
judgment of the Tribunal vehemently contends that in the
complaint lodged by Nanjappa (Ex.P.2) it is specifically
stated that the vehicle was taken on hire. He further
submits that the PW-1 in his cross-examination has also
specifically stated that he has hired the vehicle. Having
regard to the same, the Tribunal has erred in fastening the
liability on the insurer to pay the compensation awarded.
In support of these contentions, he relies on the following
judgments :
i. Oriental Insurance Co. Ltd. v. Premlata Shukla and
Others3;
2007 ACJ 1928.
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ii. New India Assurance Co. Ltd., Kolhapur v. Gurunath
S/o.Bhimarao More and Another4; and
iii. New India Assurance Co. Ltd. v. Naba Kumar Mondal
and Another.5
6. Per contra, learned counsel for claimants justifies the
award of the Tribunal and submits that both PW-1, who
was traveling along with the deceased as well as the
complainant, who was examined as PW-2. That PW-2 has
specifically stated that the statement in the complaint that
the vehicle was taken on hire was not stated by him and
has been erroneously entered by the police authorities. It
is further contended that PW-1 has not admitted in his
cross-examination regarding the vehicle taken for hire and
if his entire testimony is read, he has specifically said that
they were travelling together for the purpose of attending
a wedding. Hence he submits that the finding of the
Tribunal fastening the liability on the insurer is just and
proper. He further submits that compensation awarded by
2018 (2) AKR 837.
2006 ACJ 238.
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the Tribunal is on the lower side and the same requires to
be enhanced.
7. The submissions of both the learned counsels have
been considered and the material on record have been
perused. The questions that arise for consideration are:
i. Whether the finding of the Tribunal fastening of the
liability on the insurer is just and proper?
ii. Whether the compensation awarded by the Tribunal
requires to be enhanced?
Re-question No.(i) :
8. The claimants in the claim petition have averred that
the claimant No.1 and the deceased were traveling in the
insured vehicle to attend a marriage function of a near
relative. The complaint - Ex.P-2 has been lodged by one
Nanjappa. It is stated in the complaint that the vehicle
has been taken for hire. The names of the other persons
who were traveling in the vehicle have also been stated in
the complaint. It is further noticed that the owner of the
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vehicle Balakrishna (respondent No.2) was also traveling
in the vehicle at the time of the accident.
9. P.W.1, in his testimony, has specifically stated that
they have not taken the vehicle for hire and that they
were traveling for the purpose of attending the wedding of
a near relative. Although in one sentence, in the cross-
examination, he admits that the vehicle has been taken for
hire, however, if the entire cross-examination is read
together, P.W.1 has repeatedly on various occasions
denied the fact that the vehicle has been taken for hire.
10. P.W.2, who is the complainant, has deposed in his
testimony that the vehicle has not been taken for hire.
P.W.2 has been cross-examined in detail. However, there
is nothing in cross-examination which impeaches the
testimony adduced by him in his examination-in-chief.
11. The insurer has examined its representative as
R.W.1 and he has stated that the claimant was traveling
as a gratuitous passenger. The Investigating Officer, who
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has recorded the statement of the complainant has not
been examined.
12. Learned counsel for the insurer vehemently contends
that the complainant having specifically stated in the
complaint and that subsequently only for the purpose of
claiming compensation has retracted from the statement
made in the complaint and has given evidence before this
Court. He further contends that having regard to the
judgment of the Hon'ble Supreme Court in the case of
Premlata Shukla (supra), the statement made in the
complaint would be binding on the claimants, since it is
the claimants who have produced the FIR and the
complaint and the said documents of the complainant itself
demonstrate that the vehicle was taken for hire. That the
insurer was erroneously fastened with the liability.
13. The Hon'ble Supreme Court in the case of Premlata
Shukla (supra) has held as follows -
"13. However, the factum of an accident could
also be proved from the first information report. It is
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also to be noted that once a part of the contents of
the document is admitted in evidence, the party
bringing the same on record cannot be permitted to
turn round and contend that the other contents
contained in the rest part thereof had not been
proved. Both the parties have relied thereupon. It was
marked as an Exhibit as both the parties intended to
rely upon it.
14. Once a part of it is relied upon by both the
parties, the learned Tribunal cannot be said to have
committed any illegality in relying upon the other part,
irrespective of the contents of the document been
proved or not. If the contents have been proved, the
question of reliance thereupon only upon a part
thereof and not upon the rest, on the technical ground
that the same had not been proved in accordance with
law, would not arise.
15. A party objecting to the admissibility of a
document must raise its objection at the appropriate
time. If the objection is not raised and the document
is allowed to be marked and that too at the instance
of a party which had proved the same and wherefor
consent of the other party has been obtained, the
former in our opinion cannot be permitted to
turnround and raise a contention that the contents of
the documents had not been proved and, thus, should
not be relied upon.
(emphasis supplied)
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14. It is relevant to note that in the said case the Hon'ble
Supreme Court has held that the claimants having relied
upon the document i.e., FIR produced by them for the
purpose of proving the factum of the accident cannot
object to a statement in the very same document and
contend that the contents of the documents had not been
proved.
15. In the present case, although the claimants have
produced the FIR, the complainant has been examined as
P.W.2. Although in the complaint, statement of one
Nanjappa is recorded that the insured vehicle was taken
for hire, the said Nanajappa has been examined as P.W.2
who has deposed in his testimony that the vehicle has not
been taken for hire. PW-1 has also deposed that the
vehicle has not been taken for hire.
16. Apart from producing the FIR and complaint as
Exs.P-1 and 2, no other material is produced by the
insurer to contend that the vehicle has been taken for hire.
The insurer having raised a specific ground that the
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vehicle has been taken for hire and that the same
constitutes a breach of the terms and conditions of the
policy of the insurance, nodoubt having regard to the
statement made in the complaint, the initial presumption
would lie in its favour. However, having regard to the fact
that the claimant No.1 has been examined P.W.1, who was
traveling along with the deceased, as well as the
complainant has been examined as P.W.2, both the said
witnesses having specifically deposed that the vehicle was
not taken for hire, it cannot be held that the insurer has
proved its defence of violation of terms and conditions of
the policy of the insurance by merely continuing to rely on
the statement of the complainant, at Ex.P-2, without
adducing any other material on record.
17. In the judgment relied upon by the learned counsel
for the insurer in the case of New India Assurance Co.
Ltd. v. Naba Kumar Mondal and Another6, a Division
Bench of the Calcutta High Court has held that a person
2006 ACJ 238.
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travelling in the offending vehicle as a gratuitous
passenger and the vehicle having been insured exclusively
for carrying passengers for hire or reward, the insurer is
not liable to pay the compensation awarded since there is
a breach in the terms and conditions of the policy of the
insurance. The legal proposition in the said judgment is
not disputed. However, the same is wholly in-applicable
to the facts of the present case.
18. The judgment in the case of New India Assurance
Co. Ltd., Kolhapur v. Gurunath S/o.Bhimarao More
and Another7, rendered by a Co-ordinate Bench of this
Court relied upon by the counsel for the insurer is with
regard to a case wherein the Tribunal having recorded that
a private vehicle was used for carrying fare paying
passengers, and the Tribunal having ordered the insurer to
pay the compensation and recover the same from the
owner, this Court set aside the order of pay and recovery
and has held that the insurer is entitled to escape from its
2018 (2) AKR 837.
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liability. The said judgment is also wholly inapplicable to
the facts of the present case.
19. Since the insurer has failed to prove that there was
violation of the terms and conditions of the policy, in view
of the aforementioned discussion, the question No.(i) is
answered in the negative.
Re-question No.(ii) :
20. The deceased is aged about 38 years. Hence, the
appropriate multiplier would be '15'. The deceased is
stated to be carrying on tailoring and agricultural work.
The Tribunal has assessed the income of the deceased at
Rs.4,500/- per month, since there was no document to
prove the income. Having regard to the fact that no
documents have been produced to prove the income, the
income of the deceased is required to be assessed as
notional income as per the chart followed for settlement of
claims, at Lok-Adalath conducted by the Legal Service
Authority and having regard to the date of the accident,
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the income is required to be re-assessed at `5,500/- per
month.
21. Towards 'Loss of future prospects' 40% is required to
be added to the monthly income and having regard to the
judgment of the Hon'ble Supreme Court in the case of
National Insurance Company Ltd. v. Pranay Sethi
and Others8 1/3rd is required to be deducted towards
personal expenses. Hence, the monthly income for the
purpose of assessment of 'loss of dependency' is
calculated as:
`5,500 - 1/3rd = `3,667 + `1,467 (40% of `3,667) = `5,133/-
22. Hence the 'loss of dependency' is assessed as
`9,23,940/- (`5136 x 12 x '15').
23. The claimants are entitled to 'loss of consortium' of
`40,000/- each, having regard to the judgment of the
Hon'ble Supreme Court in the case of Magma General
Insurance Company Limited v. Nanu Ram and
(2017)16 SCC 680.
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Others9. Hence, a sum of `80,000/- is liable to be
awarded towards 'loss of consortium' to the claimants.
24. A sum of `15,000/- is required to be awarded towards
'loss of estate' and 'funeral expenses'. The award of
`1,73,108/- towards 'medical expenses' is required to be
upheld.
25. Accordingly, the total compensation under various
heads is re-assessed as follows:
Sl.No. Heads Amount awarded Amount
by the Tribunal awarded by this
(`) Court (`)
1. Loss of dependency 5,40,000/- 9,23,940/-
2. Loss of consortium - 80,000/-
3. Loss of estate - 15,000/-
4. Medical expenses 1,73,108/- 1,73,108/-
5. Loss of income 400/- -
6. Funeral expenses 10,000/- 15,000/-
7. Transportation 2,000/- -
expenses
Total 7,45,508/- 12,07,048/-
2018 ACJ 2782.
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26. Hence, the claimant is entitled for enhanced
compensation of `4,61,540/- (`12,07,048 - `7,45,508)
together with interest at 6% per annum.
27. In view of the aforementioned, the following:
ORDER
i) M.F.A. No.813/2013 filed by the insurer
is dismissed;
ii) M.F.A. No.5946/2013 filed by the
claimants is allowed in part;
iii) The judgment and award dated
24.09.2012 passed in MVC.No.131/2010
on the file of the Senior Civil Judge,
MACT, Nanjangud, is modified only to
the extent of holding that the claimants
are entitled to the enhanced
compensation of `4,61,540/- together
with interest at 6% per annum in
addition to the compensation awarded
by the Tribunal from the date of petition
till its realization;
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iv) The amount in deposit in M.F.A.
No.813/2013 shall be transmitted to the
Tribunal for disbursement in terms of
the award of the Tribunal.
v) The insurer, who is the appellant in
M.F.A. No.813/2013 shall deposit the
balance compensation as awarded by
the Tribunal as well as this Court
together with accrued interest within a
period of eight weeks from the date of
receipt of a copy of this judgment;
vi) After deposit, the compensation with
accrued interest shall be disbursed to
the claimants in terms of the award of
the Tribunal;
vi) The Registry to draw the modified award
accordingly.
vii) No costs.
Sd/-
JUDGE
HNM-AMA
