Karnataka High Court

Smt Bhagyalakshmi @ Bhagyashree vs J M Raghu on 12 August, 2025

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                                                MFA No. 6116 of 2013


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               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 12TH DAY OF AUGUST, 2025

                                      BEFORE
                         THE HON'BLE MR. JUSTICE C M JOSHI
              MISCELLANEOUS FIRST APPEAL NO. 6116 OF 2013 (MV-D)
             BETWEEN:
                SMT BHAGYALAKSHMI @ BHAGYASHREE
                AGED ABOUT 26 YEARS
                W/O LATE SOMASEKAR @
                M S SHAMASUNDAR
                RESIDING AT 2126, CH 12/1
                ASHOKAPURAM, 2ND CROSS
                MYSORE 570008
                                                         ...APPELLANT
             (BY SRI. K.S.MANOJ, ADV. FOR
                 MR. H MUJTABA, ADVOCATE)

             AND:
             1. J M RAGHU
Digitally       AGED ABOUT 44 YEARS
signed by       S/O JAVARAYAPPA
NANDINI R
                RESIDING AT NO.1154/A
Location:
HIGH COURT      RAVEENDRA ROAD
OF              ASHOKANAGAR, MANDYA
KARNATAKA
                (R C OWNER OF THE LORRY KA-07-2844)
             2. ICICI LOMBARD GEN.INS.CO.LTD.,
                NO.89, 2ND FLOOR, S V R COMPLEX
                HOSUR MAIN ROAD, MADIVALA
                BENGALURU 5600
                (INSURER OF THE LORRY
                NO.KA-07-2844)
                POLICY NO.3003/A/564 33638/00/800
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                                   MFA No. 6116 of 2013


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3.   DEVARAJ S/O DODDAMARIKALAIAH
     AGED ABOUT 37 YEARS
     RESIDING AT BYRAPATNA VILLAGE
     MALLUR HOBLI, CHANNAPATTANA TALUK
     RAMANAGARA DISTRICT 5710501
     (R C OWNER OF THE AUTO RICKSHAW NO.KA 42 -
     4195)
4.   TATA AIG GENERAL INS CO LTD.,
     NO.69, 2ND FLOOR, J P & DEVI JAMBUKESHVARA
     ARCADE, MILLERS ROAD
     BENGALURU 560052
     (INSURER OF THE AUTO RICKSHAW NO.KA 42-4195)
     POLICY NO.015074803000
5.   M S SHIVALINGAIAH
     S/O SIDDAIAH (DRAMA MASTER)
     RESIDING AT DODDAMALLUR VILLAGE & POST
     CHANNAPATTANA TALUK
     RAMANAGAR DISTRICT 5710501
     (SINCE DEAD BY LRS)
6.   M S KUMAR
     AGED ABOUT 38 YEARS
     S/O LATE M S SHIVALINGAIAH
     RESIDING AT
     DODDAMALLUR VILLAGE POST
     CHANNAPATTANA TALUK
     RAMANAGARA DISTRICT 5710501
7.   M S SIDDAPPA
     AGED ABOUT 36 YEARS
     S/O LATE M S SHIVALINGAIAH
     RESIDING AT
     DODDAMALLUR VILLAGE POST
     CHANNAPATTANA TALUK
     RAMANAGARA DISTRICT 5710501
8.   M S ANANDI @ ANANDA
     AGED ABOUT 34 YEARS
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                                       MFA No. 6116 of 2013


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     S/O LATE M S SHIVALINGAIAH
     RESIDING AT
     DODDAMALLUR VILLAGE POST
     CHANNAPATTANA TALUK
     RAMANAGARA DISTRICT 5710501
9.   MISS POORNIMA M S
     AGED ABOUT 28 YEARS
     D/O LATE M S SHIVALINGAIAH
     C/O MUDDAYYA M
     DOOR NO.27, K S P T S SILK FARM POST
     CHANNAPATTANA
     RAMANAGARA DISTRICT 5710501


                                            ...RESPONDENTS
(BY SRI. B C SHIVANNE GOWDA, ADV. FOR R2,
     SRI Y.P.VENKATAPATI, ADV. FOR R4,
     R5(b) & (c) ARE DISPENSED WITH,
     R1, R3, R5(A) & R5(D) ARE SERVED UNREPRESENTED)



      MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 6.3.2013 PASSED IN MVC NO.
4980/2010 ON THE FILE OF THE II ADDL. SMALL CAUSES
JUDGE    AND   XXVIII   ACMM     AND   MACT,   BANGALORE,
(SCCH.NO.13), PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION      AND     SEEKING      ENHANCEMENT      OF
COMPENSATION.



      THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                         MFA No. 6116 of 2013


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CORAM:    HON'BLE MR. JUSTICE C M JOSHI


                      ORAL JUDGMENT

Heard the learned counsel appearing for the

appellant and the learned counsel appearing for the

respondents.

2. Even though the appeal is slated for admission,

by consent of both sides, it is taken up for final disposal.

3. The petitioner, who is the appellant before this

Court was the wife of one Somasekhar, who died in the

road traffic accident. It is the case of the appellant that on

27.02.2010 at about 8.00 p.m., the deceased Somasekhar

was an inmate of auto rickshaw bearing No.KA-42-4195

along with other passengers. On Bengaluru-Mysore Road,

Doddamallur near Saibaba Mandir side, Channapattana, a

lorry bearing No.KA-07-2844 stopped suddenly without

indication and as a result, the driver of the auto rickshaw

could not control his vehicle and dashed to the lorry from

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behind. As a result, the deceased Somasekhar and other

passengers sustained grievous injuries and the deceased

was immediately taken to the Government Hospital,

Channapattana and later while he was being shifted to

Bengaluru, he succumbed to the injuries. Thereafter, the

petitioner and the parents of the deceased performed the

last rituals of the deceased. The petitioner contends that

the accident was due to the negligence of both the drivers

and that the deceased was working in a juice shop,

earning Rs.7,174/- p.m. as wages and the petitioner has

lost her husband at young age and as such, she is entitled

for compensation.

4. On issuance of notice, respondent Nos.1 and 3

who are the owners of the lorry and the auto rickshaw did

not appear and therefore, they were placed ex-parte.

5. Respondent No.2, who is the insurer of the lorry

and respondent No.4, who is the insurer of the auto

rickshaw appeared and resisted the petition. They arrested

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that the drivers of their vehicles were not negligent and

inter alia contended that the compensation claimed by the

petitioner is highly exorbitant, imaginary and untenable.

Respondent No.4, who is the insurer of auto rickshaw

contended that the driver of auto rickshaw had allowed

more than the permitted number of passengers in the said

auto rickshaw. Therefore, there is violation of terms and

conditions of the permit and also the policy. Inter alia both

the insurance companies denied that the drivers had

violated the conditions of the policy and the liability be

fastened upon the owners of the vehicle.

6. On the basis of the above contentions, the

Tribunal framed appropriate issues.

7. Though the parents of the deceased were

arrayed as respondent Nos.5 and 6, both of them died

during the pendency of the petition before the Tribunal.

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8. The petitioner was examined as PW.1, one

witness examined as PW.2 and got marked the documents

as Exs.P1 to P16. The official of respondent No.4-

Insurance Company was examined as RW.1 and got

marked the documents as Exs.R1 to R3.

9. After hearing the arguments, the Tribunal

awarded a sum of Rs.10,78,056/- under the following

heads:

           PARTICULARS                 AMOUNT
    Loss of income/dependency        Rs.10,33,056-00
    Loss of consortium                  Rs.10,000-00
    Loss of estate                      Rs.10,000-00
    Loss of love and affection          Rs.10,000-00
    Transportation    &    funeral
                                        Rs.15,000-00
    expenses
               TOTAL               Rs.10,78,056-00

10. It also held that the negligence on the part of

the auto rickshaw driver was to the extent of 60% and

that of lorry driver was 40%. However, there being

violation of the permit, it observed that the insurer of the

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auto rickshaw is to be absolved from paying compensation

and fastened the liability on the owner of the auto

rickshaw i.e., respondent No.3. Being aggrieved by the

quantum of compensation amount, the petitioner is before

this Court in appeal.

11. On service of notice, respondent Nos.2 and 4

have appeared though their counsel.

12. The Tribunal records were secured and

arguments were heard.

13. Learned counsel appearing for the

petitioner/appellant submits that the Tribunal erred in not

considering the future prospects of the deceased and

therefore, the quantum of compensation awarded by the

Tribunal is on the lower side. It was contended that the

loss of estate, love and affection etc., are also on the

lower side. Therefore, there is a need for reassessment of

the compensation.

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14. Learned counsel appearing for respondent No.2

the insurer of the lorry submits that the negligence to the

extent of 40% fastened upon the lorry driver is

unsustainable since he had no role to play in the accident.

He contended that apportionment of the negligence among

respondent Nos.1 and 3 is incorrect and consequently, the

liability should have been fastened upon the auto rickshaw

driver only. He also defends the quantum of the

compensation awarded by the Tribunal.

15. Learned counsel appearing for respondent No.4

would submit that the Tribunal has rightly absolved

respondent No.4 from paying any compensation in view of

the driver of the auto rickshaw violating the permit

conditions. It is submitted that the violation of the permit

conditions is a fundamental breach of the policy and

therefore, the Tribunal is justified in absolving the liability

on respondent No.4.

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16. It is relevant to note that the factual matrix of

the case is not in dispute insofar as the auto rickshaw

driver while driving the same dashed to a lorry, which was

going at the front. There is material on record which

shows that the lorry driver had abruptly stopped the

vehicle at the center of the road.

17. A perusal of the police papers would show that

the FIR was registered against both drivers of the vehicles.

The charge sheet was also filed by the Investigating

Agency against both the drivers. In that view of the mater,

the contention that there was no contributory negligence

on the part of the lorry driver is not sustainable and the

same is appropriately dealt by the Tribunal.

18. The records also reveal that the auto rickshaw

driver had allowed about 11 passengers in the said auto

rickshaw. The investigation papers, especially FIR disclose

the same. On this count, the Tribunal held that the permit

conditions were violated by the auto rickshaw driver and

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therefore, it held that the policy conditions being violated,

the insurance company is not liable to pay the

compensation to the petitioner. In that view of the matter,

the entire liability is fastened upon respondent Nos.1 to 3

jointly and severally. However, inter se negligence

between respondent Nos.1 and 3 are held at 40 : 60.

19. It is pertinent to note that the deceased-

Somasekhar who was traveling in the auto rickshaw had

no role to play in the accident and as such, it is the case of

the composite negligence as far as the petitioner is

concerned. Under these circumstances, the liability of

respondent Nos.1 to 3 should be joint and several, but the

Tribunal came to the conclusion that respondent No.3 is

liable to pay the compensation of 60%. Though the said

apportionment of the compensation at 40% : 60% cannot

be faulted since there was a greater role on the part of the

auto rickshaw driver to exercise the caution while driving

the same. Under these circumstances, the inter se

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contributory negligence among respondent Nos.1 and 3

cannot be faulted with.

20. It is pertinent to note that the violation of the

permit conditions cannot fully absolve the insurance

company from paying the compensation amount. The

judgment of the Hon'ble Apex Court in the case of AMRIT

PAUL SINGH & ANR. VS. TATA AIG GENERAL INSURANCE

CO. LTD. & ORS.1 is clear in this aspect. It was held that

the violation of the terms and conditions of the policy do

not observe the insurance company from paying

compensation but it would be at liberty to recover the

same from the owner of the vehicle. Hence, the Tribunal

erred in absolving the liability of respondent No.4.

21. Coming to the quantum of the compensation

amount, it is not in dispute that the deceased was aged

about 25 years at the time of the accident and he was

working in juice center. The records produced by the

(2018)7 SCC 558

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petitioner at Ex.P16 and the salary certificate produced at

Ex.P10 clinchingly show that deceased-Somasekar was

continuously attending the juice center and owner of the

juice center had maintained the wage register. Therefore,

the Tribunal is justified in accepting Ex.P10.

22. However, it is pertinent to note that the

Tribunal has deducted the taxes from the salary of the

deceased. Ex.P10 shows that the gross salary of the

deceased was Rs.7,174/- and after deduction of provident

fund of Rs.396/- and ESI of Rs.69/-, his net salary was

Rs.6,701/-.

23. Obviously, there is no deduction which is shown

in respect of professional tax. The provident fund and ESI

were only contributions and therefore, they could not have

been deducted from the gross salary, which was

considered by the Tribunal. Therefore, by deducting

Rs.200/- towards professional tax from his salary of

Rs.7,174/-, the net salary would be Rs.6,974/- p.m.

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24. It is worth to note that in view of the judgment

of the Hon'ble Apex Court in the case of NATIONAL

INSURANCE CO. LTD VS PRANAY SETHI & OTHERS2, reported

in (2017) 16 SCC 680 the future prospects has to be

added at 40% and as such, the effective multiplicand

would be Rs.9,764/-. Hence, 'loss of dependency' is

calculated as Rs.9,764 x 12 x 18 x 2/3 = Rs.14,06,016/-

by adopting a multiplier of '18' for the age of 25 years and

deducting 1/3rd towards his personal expenses.

25. Again, in view of the judgment of the Hon'ble

Apex Court in the case of PRANAY SETHI (Supra), 10%

escalation has to be awarded to the 'loss of consortium,

funeral expenses and loss of estate'. Hence, the petitioner

is also entitled for a sum of Rs.52,000/- under the head

of 'loss of consortium', Rs.19,500/- towards 'loss of

estate' and Rs.19,500/- towards 'funeral expenses'. In

all, the petitioner is entitled for a total sum of

Rs.14,97,016/-.

(2017) 16 SCC 680

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26. As noted supra, respondent Nos.1 and 2 are

jointly and severally liable to pay 40% of the

compensation amount and respondent Nos.3 and 4 jointly

and severally are liable to pay remaining 60% of the

compensation amount along with interest to the petitioner.

27. It is pertinent to note that in view of the

violation of the permit conditions, respondent No.4 is at

liberty to recover the same from respondent No.3.

Hence, the appeal deserves to be allowed-in-part. Hence,

the following:

ORDER

i. The appeal is allowed-in-part.

ii. The petitioner is entitled for total sum of Rs.14,97,016/- along with interest at the rate of 6% p.a. from the date of petition, till its deposit.

iii. Respondent Nos.1 and 2 are jointly and severally liable at 40% of the compensation

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amount to the petitioner and respondent Nos.3 and 4 are jointly and severally liable to pay the compensation of remaining 60% to the petitioner.