Karnataka High Court
The Branch Manager vs Mallikarjun on 15 November, 2024
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
-1-
NC: 2024:KHC-K:8509-DB
MFA No. 202145 of 2022
C/W MFA No. 201311 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
M.F.A NO. 202145 OF 2022 (MV-D)
C/W
M.F.A NO. 201311 OF 2024
IN M.F.A No.202145 OF 2022
BETWEEN:
THE BRANCH MANAGER
UNITED INDIA INSURANCE CO., LTD.,
FIRST FLOOR, SANGAMA BUILDING
S.S.FRONT ROAD
VIJAYAPURA
...APPELLANT
(BY SRI. S.S. ASPALLI, ADVOCATE)
AND:
Digitally signed
by SHAKAMBARI
Location: HIGH 1. MALLIKARJUN
COURT OF S/O HANAMANTH CHAVAR @ CHYAVAR
KARNATAKA AGE: 61 YEARS, OCC:NIL
2. LAXMIBAI
W/O MALLIKARJUN CHAVAR @ CHYAVAR
AGE: 56 YEARS, OCC:NIL
3. MAHANANDA
W/O SIDDARAM CHAVAR
AGE:28 YEARS, OCC. HOUSEHOLD WORK
-2-
NC: 2024:KHC-K:8509-DB
MFA No. 202145 of 2022
C/W MFA No. 201311 of 2024
4. POOJA
D/O SIDDARAM CHAVAR
AGE:9 YEARS, M/G
SINCE MINOR U/G HER MOTHER
RESPONDENT NO.3
5. ARATI
D/O SIDDARAM CHAVAR
AGE: 8 YEARS
SINCE MINOR U/G OF RESPONDENT NO.3
ALL ARE R/O KUMASAGI -
IN SINDAGI TALUKA
DISTRICT VIJAYAPURA-586 128
6. PRASAD S.R
S/O RANGASWAMY S.R
AGE:41 YEARS, OCC:BUSINESS
R/O SHETTAHALLI, HULAHALLI (H)
TQ. NANJANGUD
DIST. MYSORE-571 301
...RESPONDENTS
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE
FOR R1 TO R5;
NOTICE TO R-6 IS SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT PRAYING TO
CALL FOR THE RECORDS IN MVC NO. 114/2021 ON THE FILE
OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL NO.XV
VIJAYAPUR DATED 21.05.2022 AND SET ASIDE THE JUDGMENT
AND AWARD DATED 21.05.2022 IN MVC NO.114/2021 PASSED
BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL NO.XV
VIJAYAPUR, BY ALLOWING THE ABOVE APPEAL IN THE
INTEREST OF JUSTICE AND EQUITY.
-3-
NC: 2024:KHC-K:8509-DB
MFA No. 202145 of 2022
C/W MFA No. 201311 of 2024
IN M.F.A No.201311 OF 2024
BETWEEN:
1. MALLIKARJUN
S/O HAMANATH CHAVAR @ CHYAVAR
AGE: 62 YEARS, OCC:NIL
2. LAXMIBAI
W/O MALLIKARJUN CHAVAR @ CHYAVAR
AGE: 57 YEARS, OCC:NIL
3. MAHANANADA
W/O SIDDARAM CHAVAR
AGE:29 YEARS
OCC. HOUSEHOLD WORK
4. POOJA
D/O SIDDARAM CHAVAR
AGE:10 YEARS
MINOR GUARDIAN BY APPELLANT NO.3
5. ARATI
D/O SIDDARAM CHAVAR
AGE: 09 YEARS
MINOR GUARDIAN BY APPELLANT NO.3
ALL ARE RESIDENT OF
KUMASAGI, TALUK: SINDAGI
DISTRICT:VIJAYAPURA-586 206
...APPELLANTS
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. PRASAD S.R
S/O RANGASWAMY S.R
AGE:42 YEARS
OCC:BUSINESS
RESIDENT OF SHETTAHALLI
HULAHALLI HOBLI
-4-
NC: 2024:KHC-K:8509-DB
MFA No. 202145 of 2022
C/W MFA No. 201311 of 2024
TALUK:NANJANGUD
DISTRICT: MYSORE-571 314
2. THE BRANCH MANAGER
UNITED INDIA INSURANCE
COMPANY LIMITED
1ST FLOOR, SANGAMA BUILDING
S.S.FRONT ROAD
VIJAYAPURA-586 101
...RESPONDENTS
(BY SRI. S.S. ASPALLI, ADVOCATE FOR R1;
VIDE ORDER DATED 31.07.2024 NOTICE
TO R1 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
ALLOW THIS APPEAL AND ENHANCE THE COMPENSATION AS
CLAIMED IN THE CLAIM PETITION BY MODIFYING THE
JUDGMENT AND AWARD DATED 21.05.2022 PASSED BY THE
COURT OF IV ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER,
MACT-XV, AT VIJAYAPURA, IN M.V.C.NO. 114/2021, IN THE
INTEREST OF JUSTICE AND EQUITY.
THESE MFAs HAVING BEEN RESERVED FOR JUDGMENT
COMING ON FOR PRONOUNCEMENT OF THIS DAY,
RAMACHANDRA D. HUDDAR J., DELIVERED/PRONOUNCED
THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
-5-
NC: 2024:KHC-K:8509-DB
MFA No. 202145 of 2022
C/W MFA No. 201311 of 2024
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)
These two appeals are filed by the respective
appellants challenging the common Judgment and Award
dated 21st May 2022 in MVC No. 114 of 2021 by the IV
Addl. Sr.Civil Judge and Member MACT-XV, Vijaypura.
2. MFA No.202145/2022 is filed by Respondent
No.2 in the claim petition challenging the judgment and
award on the question of quantum and liability, whereas,
MFA No.201311/2024 is filed by the claimants seeking
enhancement of compensation so awarded by the
Tribunal.
3. As both these cases arise out of a single
judgment, with the consent of both sides in both these
appeals, common arguments are heard and common
judgment is passed.
NC: 2024:KHC-K:8509-DB
4. Parties to these appeals are referred to with
reference to their rank before the Tribunal for the purpose
of convenience.
5. The claimants filed the claim petition under
Section 166 of the Motor Vehicles Act, 1988 (In short `the
MVC Act') claiming compensation on account of death of
one Siddaram Chawar in a road traffic accident. It is
stated by the claimants, that on 29-10-2020 at 8.30 p.m.
near Simi Lakshmi Temple, National Highway No.150(E),
Atanoor to Malbad Main Road in Afjalpur Taluk when the
deceased Siddarama was riding his motorcycle bearing
Regn. KA-28/R-3686, at that time, a car bearing Regn.
No.K-11/A2439 came in high speed, in a rash and
negligent manner and dashed to the motorcycle which the
deceased was riding. Because of the impact, the rider of
motor cycle i.e. deceased Siddarama sustained fatal
injuries and died on the spot. It is the case of the
claimants before the Tribunal that they have spent Rs.
40,000 towards funeral expenses. It is their claim that
NC: 2024:KHC-K:8509-DB
deceased was aged 28 years at the time of accident and
he was doing a transport business. From his self-
employment, he was earning Rs.40,000/- per month and
used to maintain his family. Petitioners are the parents,
wife and children of the deceased and because of untimely
death of deceased Siddarama, they have lost the earning
member of their family. Respondent No.1 being the owner
and Respondent no.2 being the insurer of the offending
vehicle are jointly and severally liable to pay the
compensation. Therefore, the claimants prayed to award
the compensation of Rs.50,00,000/- under all the various
heads.
6. Before the Tribunal, despite service of notice,
Respondent No.1 remained absent. Therefore, he was
placed ex-parte. Respondent No.2 being Insurance
Company, appeared and resisted the petition by filing
written objections. Except admitting the Insurance Policy
and its validity on the date of the accident, they denied all
the averments made in the claim petition. It is contended
that, the injuries were not the proximate cause of death of
NC: 2024:KHC-K:8509-DB
the deceased. Even his age, avocation, income also have
been denied by the Insurance Company instead, it is
contended that the accident has taken place because of
rash and negligent driving of the riding of the motorcycle
by the deceased. Thus, it was prayed by the Insurance
Company- R2 to dismiss the petition.
7. Based upon the rival pleadings of both the
parties, the learned Tribunal in all framed four relevant
issues. Claimant No3 i.e. wife of the deceased entered the
witness box as PW1 and got marked exhibits P1 to P13
and closed claimants evidence. One Irappa Dhanashetty
was examined as PW2 being the eyewitness to the said
accident. Respondent No.2 examined its Administrative
Officer as RW.1 and got marked Exs. R1 to R5 and closed
respondent's evidence.
8. The learned Tribunal on evaluation of the
evidence and on hearing the arguments, answered all the
issues in favor of the claimants and held that the
claimants are entitled for compensation as under:
NC: 2024:KHC-K:8509-DB
Sl. Head Amount
No. Rs.Ps.
1. Loss of dependency 29,45,352/-
2. Loss of Consortium 50,000/-
3. Loss of filial Love and Affection 50,000/-
4. Funeral Expenses and Obsequies 20,000/-
5. Loss to the Estate 10,000/-
TOTAL 30,75,352/-
Rounded off to
Rs.30,75,500/-
9. It is ordered by the Tribunal that the claimants
are entitled for in all R.30,75,500/- together with the
interest at the rate of rate of 6% p.a. from the date of
petition till its realization. With regard to the liability,
though the R2 has taken up a contention about the
violation of the policy conditions by the owner of the
vehicle, relying upon the judgment of the Hon'ble Apex
Court in Mukunda Devgan vs Oriental Insurance
Company Limited1, the Tribunal held that, it is the
Insurance Company who has to indemnify the
compensation. Fastening the primary liability on R1 being
(2017) 14 SCC 663
- 10 -
NC: 2024:KHC-K:8509-DB
the owner of the said offending vehicle, it ordered that R2
to deposit the compensation amount as awarded by the
Tribunal. This is how now both the appellants are before
this Court i.e. Insurance Company challenging the
judgment and award on the question of quantum as well
as the liability and claimants have preferred appeal
seeking enhancement of the compensation.
10. The learned counsel for the appellant-
Insurance Company with all force submits that from the
evidence placed on record by it through RW.1, it is proved
that there is violation of the policy conditions by the owner
of the said vehicle. He submits that Exs. R1 to R5 so
produced by the Insurance Company establish that though
the insurance policy of offending car was in force as on the
date of the accident, but, there is a violation of policy
conditions. He relies upon Page No.3 of the said Ex. R5
and submits that permit was surrendered and there is a
cancellation of the permit.
- 11 -
NC: 2024:KHC-K:8509-DB
11. On perusal of the records for the first time, he
has produced this document without taking up any specific
contention in the objection statement. This document is
not an authenticated document produced by the insurance
company as it does not bear the signature of any authority
to show that this document is a valid and admissible
document in evidence.
12. Relying upon this document, it is submitted that
there is a violation of the policy conditions. It is submitted
that whatever the compensation awarded by the Tribunal
is excessive and an exaggerated one. He prays to allow
the appeal and dismissed the petition filed by the
claimants.
13. As against this submission, the learned counsel
for the claimants submit that, the claimant was doing a
transport business and was earning Rs.40,000/- per
month from his self-employment. These claimants were
depending on the income of the deceased. The claimant
nos. 1 and 2 are parents, claimant no.3 is the wife and
- 12 -
NC: 2024:KHC-K:8509-DB
claimant nos. 4 and 5 are the children of the deceased.
Even they claim that, the deceased was an agriculturalist.
To that effect, RTC extract is also produced. The Adhaar
cards are produced by the claimants to show that they
were the dependents on the deceased. It is submitted
that, as the accident is proved, and because of the rash
and negligent driving of the car driver, said accident has
taken place. The Insurance Company cannot absolve the
liability to pay the compensation.
14. It is further submitted that, the award so
passed by the Tribunal is on lower side and the Tribunal
has not taken into consideration with regard to the loss of
consortium, funeral expenses though they have spent
more money towards the same. Therefore, it is submitted
that the compensation awarded be enhanced.
15. We have given our anxious consideration to the
arguments of both the side. In view of the rival
submissions of both the side, the only point that would
arise for our consideration is as to "whether the Tribunal is
- 13 -
NC: 2024:KHC-K:8509-DB
justified in awarding the compensation as awarded in the
impugned judgment and award or otherwise"
16. So far as accident is concerned, PW1 being
claimant No.3, wife of the deceased, has come before the
Tribunal and has spoken about the accident. She relies
upon Ex. P1 to P7 wherein the FIR/complaint shows that
because of the rash and negligent driving of the offending
vehicle, the said accident has taken place. Even the crime
detail form produced vide Ex.P4 shows that how the driver
of the offending car was rash and negligent in driving the
vehicle. The PM report shows that because of accidental
injuries, the deceased Sriddarama succumbed to the
injuries. The said accident has taken place not because of
any mechanical defects in the vehicle. The said driver of
the vehicle has been charge sheeted by the police. PW2
being the eyewitness to the said accident, has come
before the Tribunal and spoken before the Court about the
rash and negligent driving of the offending vehicle. If all
these factual features coupled with the documents are
- 14 -
NC: 2024:KHC-K:8509-DB
read together i.e. Exs.P1 to P7, they do demonstrate that
the said accident has taken place because of the rash and
negligent driving of the offending car as alleged by the
claimants. This fact is not denied by the Insurance
Company. Except the bald denial, there is no recital in its
written objections. Therefore, as rightly held by the
Tribunal, the claimants are able to prove that, because of
rash and negligent driving of the offending vehicle, the
said accident has taken place.
17. So, as far as award of compensation is
concerned, while assessing the compensation, the Tribunal
has taken into consideration the avocation of the deceased
as self-employed. It is observed by the Tribunal that
though deceased was aged 28 years and was earning
Rs.40,000/- as per the petition averments, but, to prove
the said fact, no documents are produced. Thus, it is held
that the claimants are unable to prove the total income of
Rs.40,000/- per month. Therefore, the Tribunal has taken
into consideration Rs.13,750/- as notional income as per
- 15 -
NC: 2024:KHC-K:8509-DB
the chart prepared by the Karnataka State Legal Authority.
Even the learned Tribunal has relied upon the judgment of
this Court in C.Poornima & Others vs. Gangadharappa
and another wherein this Court held that "in the absence,
of any credible evidence to establish the income of the
diseased victim, Court should assume the notional income
of the deceased victim as determined by the case,
Karnataka State Legal Services Authority". As per the
chart, as the accident is of the year 2020, in the absence
of any acceptable evidence from the claimants, the
Tribunal is right in assessing the notional income of the
deceased at Rs.13,750/- per month, thus, the same has to
be accepted.
18. The Tribunal, to assess the `loss of
dependency', has rightly taken the monthly income of the
deceased at Rs.13,750/- in the absence of proof of income
by relying upon the judgment in National Insurance
Company vs. Pranay Sethi3 and added 40% of it
2020(4) KCCR 3283
(2017)16 SCC 680
- 16 -
NC: 2024:KHC-K:8509-DB
towards future prospects and awarded a sum of
Rs.29,45,352/- under the head `Loss of Dependency'
which, in our opinion is proper. We do not find any factual
or legal error in calculating the loss of dependency at
Rs.29,45,352/-
19. Insofar as grant of compensation under
conventional heads, under the head `loss of consortium'
the Tribunal has awarded Rs.50,000/- which is required to
be modified keeping in view the Pranay Sethi case supra.
As there are 5 claimants i.e. parents, wife and children of
deceased, the Tribunal ought to have awarded Rs.40,000/-
to each claimant with 10% hike. Thus, it is awarded at
Rs.2,20,000/- (Rs.40,000/- x 5 + 10% hike). So far as
`filial love and affection', the Tribunal has awarded
Rs.50,000/- the same is kept undisturbed as the claimants
have lost the love and affection of the deceased. So far as
funeral expenses and loss of estate is concerned, as per
the judgment in Pranay Sethi's case, Rs. 15,000 each is
- 17 -
NC: 2024:KHC-K:8509-DB
to be awarded. The same is awarded. Thus, the claimants
are held entitled for compensation as under:
Sl. Heads Rs.
No
1 Loss of dependency 29,45,352-00
2 Loss of consortium 2,20,000-00
3 Loss of love and affection to 50,000-00
element
4 Loss of estate 15,000-00
5 loss of funeral expenses 15,000-00
TOTAL 32,45,352-00
rounded off to
Rs.32,45,500/-
20. Thus, the claimants are entitled to a total
compensation of Rs.32,45,352/- rounded off to
Rs.32,45,500/- as against Rs.30,75,500/-with interest at
the rate of 6% p.a. from the rate of petition till its
realization.
21. So, as far as liability is concerned, though the
appellant - Insurance Company has taken up a contention
with regard to the violation of the policy conditions and
relied upon Ex. R1 to R5, on scrupulous reading of Ex.R5,
it shows that it is not an authenticated document. Unless it
- 18 -
NC: 2024:KHC-K:8509-DB
is authenticated, it is not admissible in evidence. It cannot
be read in evidence at all though marked in evidence. It
does not bear the signature of any authority. In the
absence of same, Ex.R5 cannot be accepted. The learned
Tribunal while fastening the liability on the Insurance
Company has relied upon the judgment of Hon'ble Apex
Court in Mukunda Devgan supra and held that it is
Insurance Company who has to pay the compensation
under law of indemnity. We do not find any factual or legal
error committed by the Tribunal in fastening the liability
on the Insurance Company. Insurance Company admits
the issuance of the policy and on the date of the accident,
it was valid. If that is so, the Insurance Company cannot
be absolved from payment of liability.
22. Thus, the claimants are held entitled for
compensation of Rs.32,45,500/-together with interest at
the rate of 6% p.a together with interest from the date of
petition till realization. Consequently, MFA
No.201311/2024 filed by the Insurance Company is liable
- 19 -
NC: 2024:KHC-K:8509-DB
to be dismissed and MFA No.202145/2022 filed by the
claimants deserves to be allowed.
23. Accordingly, we pass the following:
ORDER
(i) MFA No.202145/2022 is dismissed and
MFA No.201311/2024 is allowed in-
part.
(ii) Claimants are held entitled for a total
compensation of amount of
Rs.32,45,352/- as against
Rs.30,75,500/- awarded by the Tribunal
together with interest @ 6% p.a. from the
date of petition till its realization, thereby
the enhanced compensation would be
Rs.1,69,852/-.
(iii) The judgment and award dated
21.05.2022 passed by the learned MACT
No.XV, Vijayapura is modified to the
extent that the compensation awarded at
Rs.30,75,500/- is enhanced by a sum of
Rs.1,70,000/-, thus fixing the total
compensation at Rs.32,45,500/- (Rupees
Thirty lakh forty five thousand five
hundred only).
- 20 -
NC: 2024:KHC-K:8509-DB
(iv) Respondent nos. 1 and 2 are jointly held
liable to pay the compensation. However,
Respondent No.2 to indemnify the said
compensation under law of indemnity. The
said compensation amount has to be
deposited by the Insurance Company
within four weeks from the date of receipt
of certified of copy of this judgment.
(viii) The rest of the order of the Tribunal with
respect to the apportionment of the
awarded amount, the terms regarding
deposit of the awarded amount and terms
regarding release of the amount awarded
shall remain unaltered.
Draw modified award accordingly.
Sd/-
(S.SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
SK
