Karnataka High Court
The Branch Manager vs Yeshoda on 21 February, 2024
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NC: 2024:KHC:7531
MFA No. 4245 of 2014
C/W MFA No. 728 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU R
DATED THIS THE 21ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 4245 OF 2014 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 728 OF 2014 (MV-D)
IN MFA No.4245/2014
BETWEEN:
1. SMT.YESHODA
W/O LATE SUNDARA NAIK
AGED ABOUT 46 YEARS
2. SATISH NAIK
S/O LATE SUNDARA NAIK
AGED ABOUT 27 YEARS
3. KUM SHASHIKALA
D/O LATE SUNDARA NAIK
AGED ABOUT 26 YEARS
Digitally ALL ARE RESIDENTS OF ANEBIDDE
signed by GONIBEEDU HOBLI
BHARATHI S
Location:
MUDIGERE TALUK
HIGH COURT CHIKMAGALUR DISTRICT 577 101
OF ...APPELLANTS
KARNATAKA
(BY SRI. VINOD GOWDA., ADVOCATE)
AND:
1. PRAVEEN @ PRADEEP @ PAPU
S/O PUTTASWAMYGOWDA @ KENCHEGOWDA
AGED ABOUT 32 YEARS
R/O KASKEBYLE VILLAGE
GONIBEEDU HOBLI
MUDIGERE TALUK 577 101
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MFA No. 4245 of 2014
C/W MFA No. 728 of 2014
2. S G DEVARAJA
S/O N GANGAPPA SHETTY
AGED ABOUT 44 YEARS
R/O GENDEHALLI
BELUR TALUK
HASSAN DISTRICT 570 101
3. THE BRANCH MANAGER
ORIENTAL INS CO LTD.,
BRANCH OFFICE
TAPCMS COMPLEX, K M ROAD
CHIKMAGALUR 577 101
4. CHINNAPPA
S/O RAJUVELU MOLIYAR
AGE MAJOR
R/O 5TH CROSS, VINOBHA NAGAR
SHIMOGA 578 201
...RESPONDENTS
(BY SRI. O MAHESH., ADVOCATE FOR R3
NOTICE TO R2 IS DISPENSED WITH
R1 AND R4 SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 23.10.2013 PASSED IN MVC
NO.521/2007 ON THE FILE OF THE 2ND ADDL.DISTRICT JUDGE,
CHIKMAGALUR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA No.728/2014
BETWEEN:
1. THE BRANCH MANAGER
ORIENTAL INSURANCE COMPANY LIMITED
BRANCH OFFICE, TAPCMS COMPLEX
K M ROAD, CHIKMAGALUR
BY THE DIVISIONAL MANAGER
ORIENTAL INSURANCE CO LTD
S S COMPLEX, SUBHASH SQUARE
HASSAN-573201
BY ITS MANAGER
...APPELLANT
(BY SRI. O MAHESH., ADVOCATE)
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MFA No. 4245 of 2014
C/W MFA No. 728 of 2014
AND:
1. YESHODA
W/O LATE SUNDARA NAIK
AGED ABOUT 46 YEARS
2. SATHISH NAIK
S/O LATE SUNDARA NAIK
AGED ABOUT 27 YEARS
3. KUM. SHASHIKALA
S/O LATE SUNDARA NAIK
AGED ABOUT 26 YEARS
ALL ARE R/O ANEDIBBE
GOBIBEEDU HOBLI
MUDIGERE TALUK-577132
4. PRAVEEN @ PRADEEP @ PAPU
S/O PUTTASWAMYGOWDA @ KENCHEGOWDA
AGED ABOUT 35 YEARS
R/O KASKEBYLE VILLAGE
GONIBEEDU HOBLI
MUDIGERE TALUK-577132
5. S G DEVARAJA
S/O N GANGAPPA SHETTY
AGED ABOUT 47 EYARS
R/O GENDEHALLI
BELUR TALUK-573115
HASSAN DISTRICT
6. CHINNAPPA MAJOR
S/O RAJUVELU MOLIYAR
R/O 5TH CROSS
VINOBHA NAGAR
SHIMOGA-577201
...RESPONDENTS
(R1, R2, R3, R6 ARE SERVED AND UNREPRESENTED
SERVICE OF NOTICE TO R5 IS HELD SUFFICIENT V/O DTD 29.9.2016
SERVICE OF NOTICE TO R4 IS HELD SUFFICIENT V/O DTD
17.11.2023)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 23.10.2013 PASSED IN MVC
NO.521/2007 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE,
MEMBER, MACT, CHICKMAGALUR, AWARDING COMPENSATION OF
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MFA No. 4245 of 2014
C/W MFA No. 728 of 2014
Rs.3,69,500/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.728/2014 is filed by the insurer and MFA
No.4245/2014 is filed by the claimants. In both the appeals
the judgment and award dated 23.10.2013 passed in MVC
No.521/2007 by the II Additional District Judge, Member,
MACT, Chickmagalur1, 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 Trial Court.
3. It is the case of the claimants that on the date of
accident i.e., 3.6.2007 when one Sundar Naik2 was returning
from work along with one Theerthaprasad in a motor cycle, a
lorry came in a high speed and hit the motor cycle in which the
deceased was riding as a pillion rider causing the accident in
question wherein, the deceased sustained grievous injuries and
succumbed to the same. Claiming compensation for the death
of the deceased, his wife and children filed a claim petition
Hereinafter referred to as the 'Tribunal'
Hereinafter referred to as the 'deceased'
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arraying the driver, owner and insurer of the lorry as
respondent Nos.1 to 3 respectively. The said respondents
entered appearance and filed their statement of objections.
Subsequently, respondent No.4 was impleaded as the RC owner
of the lorry. Claimant No.1 examined herself as PW.1. Exs.P1
to P4 were marked in evidence. The police official was
examined as RW.1, the representatives of the insurer as RWs.2
and 3. Exs.R1 to R8 were marked in evidence. The Tribunal by
its judgment and award dated 23.10.2013 allowed the claim
petition and awarded a compensation of `3,69,500/- together
with interest at 6% pa. Being aggrieved, the present appeals
are filed.
4. Learned counsel for the insurer assailing the
judgment and award passed by the Tribunal submits that the
charge sheet (Ex.R1) is filed under Section 302 of the Indian
Penal Code, 18603 and not under Section 304A of IPC. That
the insured vehicle was used for committing a murder, as a
result of which the accident has occurred. That the death of
the deceased not having arisen due to an accident, the
question of awarding compensation under the provisions of the
Hereinafter referred to as 'IPC'
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Motor Vehicle Act, 19884 does not arise. It is further contended
that the claimants have averred in the claim petition that the
income of the deceased is `6,000/- pm., and hence, the claim
petition under Section 163A of the Act was not maintainable by
the claimants. Hence, he seeks for allowing of the above
appeal and granting of the reliefs sought for. In support of his
contention, he relied on the following judgments:
i) United India Insurance Co.Ltd., & Ors., v.
Anitha & Ors.,5;
ii) Bangalore Metro Transport Corporation v.
Lakshmamma & ors.,6.
5. Per contra, learned counsel for the claimants
submits that the deceased was riding as a pillion rider in the
motor cycle and the murder that was sought to be committed
was of the rider of the motor cycle, namely, one
Theerthaprasad, and there was no intention to commit the
murder of the deceased who was riding as a pillion rider.
Hence, the finding of the Tribunal regarding the said aspect of
the matter is just and proper and not liable to be interfered
with. Further, he submits that the quantum of compensation
Hereinafter referred to as the 'Act'
ILR 2007 KAR 28
ILR 2007 KAR 4488
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awarded by the Tribunal is required to be enhanced. In support
of his contentions, he relies on the following judgments:
i) Sharabai & anr., v. P.Sahebkhan & ors.,7;
ii) Kurvan Ansari v. Shyam Kishore Murmu8.
6. The submissions of both the learned counsel have
been considered and the material on record including the
records of the Tribunal have been perused. The questions that
arise for consideration are:
i) Whether the findings recorded by the Tribunal on issue
No.1 as to the claimants proving that the death of the
deceased was as a result of a road traffic accident from the
use of the insured vehicle is just and proper?
ii) Whether the quantum of compensation awarded by the
Tribunal is required to be enhanced?
Re.Question No.(i)
7. The claimants have averred in the claim petition that
when the deceased was riding as a pillion rider on the motor
cycle, the offending lorry came and hit the motor cycle causing
the accident in question wherein the deceased sustained
2006 ACJ 229
2022 ACJ 166
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grievous injuries and succumbed to the same. The FIR (Ex.P1)
discloses that the same is filed under Section 302 r/w 34 of
IPC. The charge sheet is also filed under Section 302 of IPC.
8. PW.1 is claimant No.1 and she is not an eye witness
to the accident. RW.1 who is the investigating officer has
stated that one Theerthaprasad was the rider and the deceased
was the pillion rider and that the motor cycle belonged to the
rider. It is stated that after investigation, he filed a charge
sheet against the persons under Sections 302, 120B, 114 r/w
34 of the IPC. In the cross-examination, RW.1 has categorically
admitted that during the investigation, he found that there was
no enmity between the accused and the pillion rider who was
the deceased and the enmity was only between the accused
and the rider of the motor cycle - Theerthaprasad.
9. The Tribunal considering the said aspect of the matter,
upon a detailed appreciation of the oral and documentary
evidence, has recorded the following findings:
"12. Further on careful perusal of the charge sheet
and statements given by the first petitioner, her
daughter which are marked at Ex.R2 and R3 which
reveals that there was no ill will between the first
respondent and others with the deceased Sundar
Naik, there was a ill-will between the first
NC: 2024:KHC:7531
respondent and others with one Theerthaprasad
regarding issuance of cheque and other incidents.
As per the averments of the charge sheet, the first
respondent and other accused had an intention to
eliminate Theerthaprasad, they hatched a plan and
used the vehicle bearing No: KA 20/3327 and
committed murder of Threerthaprasad. It does not
indicate either from the charge sheet or from the
statement given to by the witnesses that the
accused in Sessions Case had an intention to
commit murder of deceased Sundar Naik. Their
intention was to eliminate Theerthaprasad. The
first and third petitioners have given re- statement
during the course of the investigation before police
in criminal case as per Ex R2 and R3 wherein they
have stated that the accused had intentionally
caused the death of Theerthaprasad by dashing
against the motor cycle on which the deceased
and Theerthaprasad were proceeding and there
was no ill-will between the deceased Sundar Naik
and the first respondent. It appears from the
police papers that the accused in Criminal case
had intention only to commit murder of
Theerthaprasad and not deceased Sundar Naik.
The deceased had died in the process of
committing murder of Theerthaprasad.
13. ......... RW1 has clearly stated in his evidence
that on investigation, he found that there was no
enmity between the accused and the pillion rider
Sundar Naik; there was only enmity between
Theerthaprasad and accused. On careful perusal of
the evidence of RW1, which clearly establishes
that the motor cycle bearing No: CNB 3327 and
lorry bearing No: KA 20/3327 were involved in the
accident and deceased met with an accident and
the accident occurred due to enmity between
accused and Theerthaprasad with intention to
eliminate Theerthaprasad; first respondent caused
the accident and during that process deceased
Sundar Naik met with accident and died at the
spot itself."
(emphasis supplied)
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10. Having regard to the aforementioned, it is clear that
the material on record indicate that there was no intention to
commit murder of the deceased and the intention was to
eliminate the rider of the motor cycle and in the said process,
in the accident caused, the deceased sustained injuries and
succumbed to the same. The Tribunal having considered the
said aspect of the matter, the appellant-insurer has failed in
demonstrating that the finding of the Tribunal is erroneous and
liable to be interfered with. Hence, question No.(i) framed for
consideration is answered in the affirmative.
Reg. Question No.(ii)
11. It is the contention of the learned counsel for the
appellant - insurer that the claim under Section 163A is not
maintainable having regard to the fact that the claimants have
averred the monthly income of the deceased as Rs.6,000/- pm.
12. In the case of United India Insurance Co.Ltd.,5
relied upon by the learned counsel for the insurer, a Division
Bench of this Court was considering a case wherein a claim
petition was initially filed under Section 166 of the Act and
subsequently converted into one under Section 163A of the Act.
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Thereafter the Tribunal recorded a finding that the income of
the deceased was `1,20,000/-. However, the income was
confined to `40,000/- pa., so as to consider the case within the
ambit of Section 163A of the Act. In the said factual situation,
this Court relying upon the judgment of the Hon'ble Supreme
Court in the case of Deepal Girishbhai Soni & ors., v.
United India Insurance Co.Ltd.,9 has upheld the contention
of the insurer and has held as follows:
"6. .... It is, therefore, clear from the above decision in law
that only persons whose annual income is upto Rs. 40,000/-
can take the benefit of Section 163-A and no other persons
and all other clients are required to be dealt with in terms of
Section XII of the Act. Such being the decision in law, the
Tribunal could not have allowed the petition as if it was under
Section 163-A by scaling down the annual income from Rs.
1,20,000/- to Rs. 40,000/- so as to bring the case within the
purview of Section 163A. As such, we find enough force in the
submission made by the learned counsel for the insurance
company and the Tribunal ought not to have allowed the
petition under Section 163-A. Therefore, the appeal No.
8622/2003 is concerned, on this score alone, the appeal filed
by the insurance company deserved to be allowed by setting
aside the order of the Tribunal. ......"
12.1 In the case of Bangalore Metro Transport
Corporation6 relied on by the learned counsel for the insurer,
a Division Bench of this Court was considering a fact situation
wherein the deceased was a sweeper and an employee of the
204 ACJ 934
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Corporation of City of Bangalore and the salary certificate was
produced which indicated his gross salary as in excess of
`40,000/- pa., and hence, held that a claim petition under
Section 163A of the Act is not maintainable.
13. The learned counsel for the claimants relied upon a
Division Bench judgment of this Court in the case of Sharabai7
wherein this Court considering a similar contention made by the
insurer and also referring to the judgment of the Hon'ble
Supreme Court in the case of Deepal Girishbhai Soni9 has
held as follows:
"6. Admittedly, the appellants-claimants made
application only under Section 163-A of the Act. The
argument of the learned Counsel for the Insurance
Company is that since in the said application it was
claimed by the claimants that the deceased was earning
yearly income of Rs. 1,00,000/- and since that income
is more than Rs. 40,000/-, the application filed by them
is not maintainable and that application ought to have
been treated as the one filed under Section 166 of the
Act and dealt with accordingly. This submission is not
acceptable to us for more than one reason. The pleading
of a party can never be placed on the pedestal of a law.
Simply because the claimants have under a wrong
perception or appreciation of the facts asserted a fact
which they cannot prove, that circumstance itself
without anything further has no legal efficacy to
determine the jurisdiction of the Motor Accidents Claims
Tribunal. The jurisdiction of the Motor Accidents Claims
Tribunal is determined by the law and not by pleading of
a party who invokes its jurisdiction. Be that as it may, it
is not a finding of the Motor Accidents Claims Tribunal
that the yearly income of the deceased was more than
Rs. 40,000/-. On appreciation of oral and documentary
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evidence, the Tribunal has recorded a finding that the
deceased was earning only Rs. 2,400/- per month. That
means that the deceased was earning Rs. 28,800/- per
annum. Therefore, we hold that the Tribunal had
jurisdiction to entertain the application filed by the
appellants-claimants under Section 163-A of the Act and
that in entertaining that application the Motor Accidents
Claims Tribunal has not committed any illegality as
contended by the learned Standing Counsel for the
Insurance Company."
(emphasis supplied)
14. In the present case, it is averred by the claimants
that the deceased was a coolie and doing mason work.
Although it is averred in the claim petition that the deceased
was earning `6,000/- pm., the Tribunal, considering the fact
that no documents have been produced to prove the income
has assessed the monthly income at `3,000/- pm.
15. It is forthcoming that the judgment of the Division
Bench of this Court in Sharabai7 arose from a similar fact
situation and hence, it is expedient that the ratio laid down by
this Court in the case of Sharabai7 be followed.
16. Learned counsel for the claimants further relied on
the judgment of the Hon'ble Supreme Court in the case of
Kurvan Ansari8 contending that the compensation under
conventional heads is required to be enhanced. It is
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forthcoming that in the case of Kurvan Ansari8 the Hon'ble
Supreme Court in a claim arising under Section 163A of the Act
has assessed the loss of consortium as `40,000/- each to the
claimants and awarded `15,000/- towards funeral expenses.
The said compensation is required to be awarded in the present
case also.
17. In the present case the claimants being the wife,
son and daughter are entitled to compensation under
conventional heads. Hence, loss of consortium is reassessed as
(`40,000/-x3) `1,20,000/-. Further, funeral expenses of
`15,000/- is awarded as against `2,000/- awarded by the
Tribunal.
18. The Tribunal has assessed the monthly income at
`3,000/-, deducted 1/3rd towards personal expenses and
applied the appropriate multiplier as 15 and assessed the loss
of dependency `3,60,000/-, which is just and proper.
19. In view of the aforementioned, the compensation is
reassessed as follows:
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Sl.No Compensation Amount Awarded by Amount awarded
Head the Tribunal (`) by this Court (`)
1 Loss of 360000.00 360000.00
dependency
2 Loss of 5000.00 120000.00
consortium
3 Funeral 2000.00 15000.00
expenses
4 Loss of estate 2500.00 0.00
Total 369500.00 495000.00
20. Accordingly, the Claimants are entitled to enhanced
compensation of (`4,95,000/- - `3,69,500/-) = `1,25,500/-
together with interest at 6% p.a., from date of petition till the
date of payment.
21. In view of the aforementioned, I pass the following
ORDER
i) MFA No.728/2014 filed by the insurer is
dismissed;
ii) MFA No.4245/2014 filed by the claimants is
allowed in part;
iii) The judgment and award dated 23.10.2013
passed in MVC No.521/2007 by the II Additional
District Judge, Member, MACT, Chickmagalur, is
modified to the extent stated hereinabove. In all
other respects, the judgment and award of the
Tribunal remains unaltered;
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iv) The appellants in MFA No.4245/2014 - claimants
are entitled to an enhancement of `1,25,500/-
together with interest @ 6% per annum from the
date of petition till the date of realization, in
addition the compensation awarded by the
Tribunal.
v) The amount deposited by the appellant in MFA
No.728/2014 - insurer be transmitted to the
Tribunal for disbursement to the claimants in
terms of the award of the Tribunal;
vi) The appellant in MFA No.728/2014 - insurer shall
deposit the balance compensation awarded by
the Tribunal as also the enhancement made by
this court together with accrued interest within a
period of eight weeks from the date of receipt of
a copy of this judgment;
vii) Registry to draw modified decree.
No costs.
SD/-
JUDGE
