Karnataka High Court
The Claim Manager vs Sumalatha K H on 1 March, 2024
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MFA No.6128/2019
C/W MFA No.3164/2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
MISCELLANEOUS FIRST APPEAL NO.6128/2019 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.3164/2020 (MV-D)
M.F.A.NO.6128/2019
BETWEEN:
THE CLAIM MANAGER
ROYAL SUNDARAM GENERAL
INSURANCE COMPANY LIMITED
OFFICE VARALAKSHMI TOWERS
NO.2/319, RAJEEV GANDHI
KARAPAKKAM
CHENNAI - 600 097
BRANCH OFFICE
NO.133, 3RD FLOOR, SHIKA TOWERS
Digitally signed
by PRABHU RAMAVILASA ROAD
KUMARA MYSURU - 570 024
NAIKA
Location: High
Court of BY
Karnataka
THE REGIONAL MANAGER
ROYAL SUNDARAM ALLIANCE
INSURANCE CO. LTD.
SUBRAMANIAM BUILDING
II FLOOR, NO.1, CLUB HOUSE ROAD
ANNASALAI, CHENNAI-600 002
BY ITS MANAGER ...APPELLANT
(BY SRI. O MAHESH, ADVOCATE)
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MFA No.6128/2019
C/W MFA No.3164/2020
AND:
1. SUMALATHA K H
AGE 31 YEARS
W/O LATE RAJU S
2. KUM YASHASHWINI
MINOR
AGED ABOUT 13 YEAR
D/O LATE RAJU S
3. KUM DIKSHITHA
MINOR
AGED ABOUT 10 YEAR
D/O LATE RAJU S
RESPONDENTS NO.2 AND 3 ARE
MINORS, REPRESENTED BY THEIR
NATURAL GUARDIAN MOTHER
SUMALATHA K H 1ST RESPONDENT
ALL ARE R/AT POLICE HOUSING BOARD
HUNSUR TOWN
HUNSUR - 570 017
4. CHIKKANNA
S/O LATE RAMEGOWDA
AGED 48 YEARS
R/AT NO.977, PALAHALLI VILLAGE
SRIRANGAPATNA TALUK
MANDYA DISTRICT - 571 104 ... RESPONDENTS
(BY SRI.SYED ABDUL SABOOR, ADVOCATE FOR R1;
(R2 & R3 ARE MINORS REPTD. BY R1);
SRI.ASHOK KUMAR M.C., ADVOCATE FOR R4)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF M V ACT,1988 PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED 08.03.2019 PASSED IN MVC
NO.816/2016 ON THE FILE OF THE MEMBER, MACT, JUDGE,
ADDITIONAL COURT OF SMALL CAUSES, SENIOR CIVIL JUDGE,
MYSURU, AWARDING COMPENSATION OF RS.39,19,780/-WITH
INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL THE DATE
OF DEPOSIT.
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MFA No.6128/2019
C/W MFA No.3164/2020
M.F.A.No.3164/2020
BETWEEN:
1. SUMALATHA K H
AGED ABOUT 31 YEARS
W/O LATE RAJU S
2. KUM YASHASHWINI
AGED ABOUT 14 YEARS
D/O LATE RAJU S
3. KUM DIKSHITHA
AGED ABOUT 11 YEAR
D/O LATE RAJU S
APPELLANT NOS.2 AND 3 ARE
MINORS, REPRESENTED BY THEIR
LEGAL GUARDIAN AND MOTHER
SUMALATHA K H
ALL ARE R/AT POLICE HOUSING BOARD
HUNSUR TOWN
HUNSUR ... APPELLANTS
(BY SRI.SYED ABDUL SABOOR, ADVOCATE)
AND:
1. CHIKKANNA
S/O LATE RAMEGOWDA
AGED ABOUT 49 YEARS
AGRICULTURIST
R/AT NO.977, PALAHALLI VILLAGE
SRIRANGAPATNA TALUK
MANDYA DISTRICT - 571 104
2. ROYAL SUNDARAM GENERAL
INSURANCE COMPANY LIMITED
VARALAKSHMI TOWERS
NO.2/319, RAJEEV GANDHI
KARAPAKKAM
CHENNAI - 600 097
BRANCH OFFICE
NO.133, 3RD FLOOR, SHIKA TOWERS
RAMAVILASA ROAD
MYSURU - 570 024 ... RESPONDENTS
(BY SRI.ASHOK KUMAR M C, ADVOCATE FOR R1;
SRI.O.MAHESH, ADVOCATE FOR R2)
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MFA No.6128/2019
C/W MFA No.3164/2020
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION
173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED
08.03.2019 PASSED IN MVC NO.816/2016 ON THE FILE OF THE
MEMBER MACT, JUDGE, ADDITIONAL COURT OF SMALL CAUSES,
SENIOR CIVIL JUDGE,MYSURU, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS, COMING ON FOR FURTHER HEARING, THIS
DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
Heard.
2. Challenging the impugned judgment and award
dated 08.03.2019 in MVC No.816/2016 passed by the Judge,
Additional Court of Small Causes and MACT, Mysuru, claimants
have preferred MFA No.3164/2020 and the insurer has
preferred MFA No.6128/2019.
3. Claimant No.1 is the wife and claimant Nos.2 and 3
are the minor daughters of victim Raju.S. At the relevant time,
respondent No.1 was the registered owner and respondent
No.2 was the insurer of Ape Goods auto bearing No.KA-11-A-
9852. For the purpose of convenience, the parties are referred
to henceforth according to their ranks before the Tribunal.
4. On 11.07.2016 at 9.30 p.m when Raju.S was
proceeding on his Bike bearing registration No.KA-45-E-3934
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near Kothegala Gate on B.M road Hunusur within the limits of
Hunusur police station, the said motorcycle met with accident
involving Ape Goods auto bearing No.KA-11-A-9852. Due to the
injuries suffered in the accident, Raju S died at the spot. Raju.S
was working as Police Constable. Regarding the accident, his
colleague one Basappa B.K filed complaint as per Ex.P2 against
the driver of the Ape Goods auto before Hunusur Rural Police.
Based on the same, Hunusur Rural Police registered the FIR as
per Ex.P1 in Crime No.302/2016 against the driver of the Ape
Goods auto. On investigation, the said police filed charge sheet
as per Ex.P7 against the driver of the Ape Goods auto for the
offences punishable under Sections 279, 304A of the Indian
Penal Code,1860 (for short 'IPC') and under Section 187 of the
Motor Vehicles Act, 1988 (for short 'MV Act').
5. Claimants filed MVC No.816/2016 against the
respondents claiming that the accident and consequential death
of Raju S occurred due to actionable negligence on the part of
the driver of the Ape Goods auto. They further contended that
Raju was employed as police constable in Karnataka Police
Department and earning Rs.23,500/- per month and they were
solely dependent on his income. They claimed that respondent
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Nos.1 and 2 being the owner and insurer of the Ape Goods auto
are liable to pay the compensation of Rs.82,00,000/- together.
6. Respondent No.1 though appeared, did not contest
the matter. Respondent No.2/insurer alone contested the
petition denying the actionable negligence on the part of the
driver of the Ape Goods auto, age, occupation and income of
the deceased. Respondent No.2 further contended that, the
accident occurred due to the negligence of the victim himself
and also denied its liability to pay the compensation.
7. Before the Tribunal, claimant No.1 was examined as
PW.1 and on behalf of the claimants, Exs.P1 to P13 were
marked. The official of respondent No.2 was examined as RW.1
and on behalf of respondent No.2, the letter of authorization
and insurance policy were marked as Exs.R1 and R2
respectively.
8. The Tribunal relying on Exs.P1 to P7 police records
held that the accident occurred due to actionable negligence on
the part of the driver of Ape Goods auto. Relying on Ex.P9 to
P11 Aadhar card, driving licence and salary certificate
respectively, the Tribunal held that at the time of the accident,
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the deceased was aged 38 years and earning Rs.21,541/- per
month by way of salary. On deducting Professional Tax on the
same, the Tribunal considered his income at Rs.21,221/-,
added 50% to the same by way of future prospects, applied
'15' multiplier and deducted 1/3rd of the same for the personal
expenses of the deceased and awarded compensation of
Rs.38,19,780/- on the head of loss of dependency.
9. The Tribunal in all awarded compensation of
Rs.39,19,780/- on different heads as per the table below:
Sl. Particulars Compensation
No. awarded in Rs.
1. Loss of dependency 38,19,780/-
2. Loss of love and affection 30,000/-
3. Loss of Consortium 40,000/-
4. Loss of Estate 15,000/-
5. Transportation of dead body 15,000/-
and funeral expenses
Total 39,19,780/-
The said award is challenged in the above appeal by the insurer
and claimants as aforesaid.
10. Sri Syed Abdul Saboor, learned Counsel for
claimants submits that the compensation awarded on the head
of loss of dependency is on the lower side and the Tribunal
should have awarded compensation to the children also on the
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head of consortium. He further submits that the evidence
adduced by the claimants sufficiently shows the accident
occurred due to actionable negligence of the driver of the Ape
Goods auto. Thus, he seeks enhancement of the compensation.
11. Sri O Mahesh, learned Counsel for the insurer
submits that neither PW.1 nor the complainant were the
eyewitnesses to the incident. IMV report Ex.P4 shows that, the
accident occurred due to the negligence of the deceased
himself and at the time of accident, the deceased was not
wearing helmet. Therefore, the Tribunal was not justified in
holding that the accident occurred due to the actionable
negligence on the part of the driver of the Ape Goods auto. He
further submits that respondent No.1 and police respectively
have not complied with the provision of Sections 134(c) and
158(6) of MV Act. Therefore, the question of insurer rebutting
the evidence of the claimants regarding occurrence of the
accident does not arise. He further submits that the employer
was not examined to prove the salary income of the deceased.
Therefore, the compensation awarded on the head of loss of
dependency is unsustainable. Thus, he seeks dismissal of claim
petition.
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12. Though the first respondent/owner of the vehicle
had not contested the matter before the Tribunal, Sri Ashok
Kumar M.C, learned Counsel appearing for him before this
Court submits that there was no negligence on the part of the
driver of the Ape Goods auto, therefore, the award is
unsustainable.
13. Considering the submissions of both side and on
examination of the records, the points that arise for
determination are :
(i) Whether the finding of the Tribunal that the
accident and consequential death occurred due to actionable
negligence on the part of the driver of Ape Goods auto bearing
No.KA-11-A-9852 is sustainable?
(ii) Whether the compensation awarded under the
impugned award is just one?
Analysis
Point No.1/Negligence:
14. None of the parties disputed that on 11.07.2016 at
9.30 p.m. accident occurred near Kothegala Gate on B.M Road,
Hunusur Town involving motorcycle bearing No.KA.45-E-3934
and Ape Goods auto bearing No.KA.11-A-9852. It was also not
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disputed that due to injuries suffered in the accident Raju died
on the spot. The only dispute was with regard to the actionable
negligence on the part of the driver of the Ape Goods auto. It is
no doubt true that PW.1 and complainant were not the
eyewitnesses. However, after thorough investigation, on the
complaint against the driver of the Ape Goods, the charge
sheet as per Ex.P7 was filed against him for the offences
punishable under Sections 279, 304A of IPC and Section 187
of MV Act.
15. The proceedings before the MACT was a summary
proceeding. In such cases, the charge sheet filed on
investigation amounts to prima-facie proof of actionable
negligence on the part of the driver of the Ape goods, unless
the same is rebutted. It is no doubt true that the charge sheet
is not the conclusive proof. Under Section 114(e) of the Indian
Evidence Act, 1872 (for short 'the Evidence Act'), there is
presumption that official acts are duly performed. Therefore,
the charge sheet had the said presumption. By such
documents, claimants discharged their initial burden of proof.
Then the responsibility was on the respondent to rebut the
presumption under the said document that the accident
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occurred due to actionable negligence on the part of the driver
of the Ape Goods auto.
16. As rightly noted, respondent No.1 did not contest
the petition at all. Even the insurer did not choose to examine
the driver of the Ape goods auto to rebut the evidentiary value
of Exs.P1 to P7. IMV report Ex.P4 does not indicate that the
victim himself was rash and negligent. Insurer contended in his
written statement before the Tribunal that the deceased was
not holding valid driving licence and he was not wearing head
gear/helmet, therefore, he himself was responsible for the
accident. However, the plea with regard to the victim not
possessing driving licence was falsified by Ex.P10, the copy of
the driving licence. Neither the driver of the Ape Goods nor any
eyewitnesses were examined to prove that the victim was not
wearing helmet. Therefore, the Tribunal rightly rejected the
said claim also.
17. So far as the non-compliance of provision of
Sections 134(c) and 158(6) of the MV Act, before the Tribunal,
the insurer's own witnesses did not whisper about violation of
Section 158(6) of the MV Act or non-supply of charge sheet or
police records. So far as non-compliance of provision of Section
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134(c) of MV Act, if the insured did not furnish certificate etc.,
the insurer's remedy may be against him. Coverage of vehicle
under the insurance policy was not disputed before the
Tribunal, full opportunity was given to the insurer to contest
the matter. The evidence of RW.1 shows that by the time they
let in evidence they were in possession of all the records.
Therefore, said defence deserves no merit.
18. For the aforesaid reasons, the Tribunal was justified
in holding that the accident and consequential death of the
victim Raju was on account of actionable negligence on the part
of the driver of the Ape Goods auto bearing No.KA.11-A-9852.
Point No.2/quantum:
19. So far as the employment of the deceased in police
department, learned Counsel for respondent No.2 himself
suggested to PW.1 that on the death of Raju, PW.1 got gratuity
and other benefits amounting to Rupees 5-6 lakhs. He himself
suggested that though she got huge amount from the
department ,to make the exorbitant claim she deposed that she
received only Rupees 5-6 lakhs as terminal benefits. It was
further stated, her evidence that she is getting pension of
Rs.10,000/- per month was not disputed. She denied the
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suggestion that since her husband, complainant Basappa and
chargesheet witness Ravi belong to same department, all of
them together have filed false complaint.
20. Even in the evidence of RW.1 nothing was elicited
to disprove the employment of Mr.Raju in the police
department. Therefore, there is no reasons to disbelieve his
employment or his salary particulars Ex.P11. As per Ex.P11, in
the month preceding the date of accident, the salary drawn by
the victim was Rs.21,541/-. Out of that a sum of
Rs.100+100+125 were some allowances which were not the
part of the salary. Therefore, that has to be deducted. Further a
sum of Rs.200 has to be deducted towards professional tax as
statutory deduction. Thus, his annual salary comes to
(Rs.21,016x12)=Rs.2,52,192/-. Nothing was produced to show
that during the year 2016 the said annual income of the
deceased was within taxable limits. Therefore, the entire
income has to be taken for the purpose of computing the
compensation.
21. The deceased left behind him three dependants. In
view of the judgment of the Hon'ble Supreme Court in Sarla
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Varma and ors v. Delhi Transport Corporation and Anr1's case,
1/3rd has to be deducted towards his personal expenses.
Therefore, his contribution to the family comes to
(Rs.2,52,192x2/3)=Rs.1,68,128/-. As per the judgment of the
Hon'ble Supreme Court and having regard to the age of the
deceased, 50% has to be superadded to his income by way of
future prospects. Therefore, annual income comes to
(Rs.1,68,128+84,064)=Rs.2,52,192/-. As per the judgment of
the Hon'ble Supreme Court, the applicable multiplier to the age
of 38 is '15'. Therefore, compensation payable on the head of
loss of dependency come to Rs.2,52,192 x 15 = Rs.37,82,880/-
22. As per the judgments of the Hon'ble Supreme Court
in National Insurance Company Limited vs. Pranay Sethi2 and
Magma General Insurance Company Ltd. v. Nanu Ram3, the
compensation of Rs.40,000/- each is payable to the wife and
children with an escalation of 10% on the head of consortium.
The same comes to Rs.44,000 x 3 = Rs.1,32,000/-. As per the
judgment of the Hon'ble Supreme Court in Pranay Sethi's case
referred to supra, the compensation payable on the
conventional heads of loss of estate and funeral expenses is
AIR 2009 SC 3104
AIR 2017 SC 5157
2018 (18) SCC 130
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Rs.15,000/- each with escalation at 10% which comes to
(Rs.16,500+16,500)=Rs.33,000/-.
23. On awarding compensation on the head of
consortium, no other compensation is payable on the head of
love and affection. Therefore, the just compensation payable is
as follows:
Sl. Particulars Compensation
No. awarded in Rs.
1. Loss of dependency 37,82,880/-
2. Loss of Consortium 1,32,000/-
3. Loss of Funeral Expenses and 33,000/-
transportation charges
Total 39,47,880/-
Awarded by the Tribunal -39,19,780/-
Enhanced compensation 28,100/-
24. So far as the rate of interest, claimants are young
widow and minor children who lost their bread winner.
Considering the peculiar facts and circumstances and cost of
living at the relevant time, it cannot be said that the Tribunal
granting the interest at 9% was arbitrary. However, interest at
6% can be awarded on the enhanced compensation. Since the
insurance policy was in force, the insurer is liable to pay the
said compensation though the liability of the insurer and owner
is joint and several. Hence the following:
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ORDER
i) M.F.A. No.6128/2019 is dismissed.
ii) MFA No.3164/2020 is partly allowed.
iii) Claimants are awarded enhanced compensation of
Rs.28,100/- payable with interest at 6% per annum on the
same from the date of petition till it's realisation.
iv) Respondent No.2/insurer shall deposit the said
amount before the Tribunal within four weeks from the date
of receipt of copy of this order.
v) Registry shall transmit the amount in deposit and
TCRs to the Tribunal forthwith.
vi) The award of the Tribunal with regard to
apportionment and investment is maintained.
Sd/-
JUDGE
Sd/-
JUDGE
PKN
