Karnataka High Court
Hdfc Ergo Gen.Ins.Co.Ltd vs Channamma And Anr on 21 July, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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MFA No. 201497 of 2018
C/W MFA No. 201496 of 2018
MFA No. 201561 of 2018
HC-KAR AND 1 OTHER
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
MISCL. FIRST APPEAL NO. 201497 OF 2018 (MV-D)
C/w.
MISCL. FIRST APPEAL NO. 201496 OF 2018
MISCL. FIRST APPEAL NO. 201561 OF 2018
MISCL. FIRST APPEAL NO. 201562 OF 2018
IN M.F.A.NO.201497/2018
BETWEEN:
1. HANMANTH
S/O KAREPPA,
AGE: 28 YEARS,
OCC: LABOUR,
2. AISHWARYA
D/O HANMANTH,
Digitally signed AGE: 07 YEARS,
by RAMESH OCC: STUDENT,
MATHAPATI
Location: HIGH
3. NAGAMMA
COURT OF
KARNATAKA D/O HANMANTH,
AGE: 05 YEARS,
OCC: NIL.,
4. NAGESH
D/O HANMANTH,
AGE: 03 YEARS,
OCC: NIL,
APPELLANT NO.2 TO 4 ARE MINORS
U/G OF THEIR NATURAL FATHER
THE APPELLANT NO.1
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MFA No. 201497 of 2018
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MFA No. 201561 of 2018
HC-KAR AND 1 OTHER
ALL ARE R/O: H.NO.1-10-156,
NASAR JUNG AREA,
CHITTAPUR, DIST: KALABURAGI.
...APPELLANTS
(BY SRI SANJEEV PATIL, ADVOCATE)
AND:
1. SANTOSH
S/O TIPPANNA,
AGE: MAJOR,
OCC: OWNER OF TRACTOR AND TRAILER,
R/O: DIGGAON ROAD,
K.CHITTAPUR, TQ: CHITTAPUR,
DIST: KALABURAGI - 585 211.
2. HDFC ERGO GENERAL INSURANCE CO. LTD.,
1ST FLOOR, VIRUPAKSHA KRUPA,
OPP: KIMS MAIN GATE,
RB ROAD, VIDYA NAGAR, HUBLI - 580 009.
...RESPONDENTS
(BY SMT PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
V/O/D 05.06.2025 NOTICE TO R1 IS HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO MODIFY THE IMPUGNED JUDGMENT AND AWARD
DATED 14.06.2018, PASSED BY THE SENIOR CIVIL JUDGE AND
M.A.C.T., CHITTAPUR, IN FILE BEARING M.V.C.NO.209/2017 BY
ENHANCING THE COMPENSATION, IN THE INTEREST OF JUSTICE
AND EQUITY.
IN M.F.A.NO.201496/2018
BETWEEN:
CHANNAMMA
W/O HANMANTH,
AGE: 29 YEARS,
OCC: NOW NIL,
R/O NASAR JUNG AREA,
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MFA No. 201497 of 2018
C/W MFA No. 201496 of 2018
MFA No. 201561 of 2018
HC-KAR AND 1 OTHER
WARD NO.7, CHITTAPUR,
DIST: KALABURAGI.
...APPELLANT
(BY SRI SANJEEV PATIL, ADVOCATE)
AND:
1. SANTOSH
S/O TIPPANNA,
AGE: MAJOR,
OCC: OWNER OF TRACTOR AND TRAILER,
R/O: DIGGAON ROAD,
K.CHITTAPUR, TQ: CHITTAPUR,
DIST: KALABURAGI - 585 211.
2. HDFC ERGO GENERAL INSURANCE CO. LTD.,
1ST FLOOR, VIRUPAKSHA KRUPA,
OPP: KIMS MAIN GATE,
RB ROAD, VIDYA NAGAR,
HUBLI - 580 009.
...RESPONDENTS
(BY SMT PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
NOTICE TO R1 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
14.06.2018, PASSED BY THE SENIOR CIVIL JUDGE AND M.A.C.T.,
CHITTAPUR, IN FILE BEARING M.V.C.NO.210/2017 BY ENHANCING
THE COMPENSATION, IN THE INTEREST OF JUSTICE AND EQUITY.
IN M.F.A.NO.201561/2018
BETWEEN:
HDFC ERGO GENERAL INSURANCE CO. LTD.,
1ST FLOOR, VIRUPAKSHA KRUPA,
OPP: KIMS MAIN GATE,
RB ROAD, VIDYA NAGAR, HUBLI - 580 009.
...APPELLANT
(BY SMT PREETI PATIL MELKUNDI, ADVOCATE)
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MFA No. 201497 of 2018
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HC-KAR AND 1 OTHER
AND:
1. CHANNAMMA W/O HANMANTH,
AGE: 29 YEARS, OCC: NOW NIL,
R/O NASAR JUNG AREA,
WARD NO.7, TQ: CHITTAPUR,
DIST: KALABURAGI - 585 101.
2 SANTOSH
S/O TIPPANNA,
AGE: MAJOR,
OCC: OWNER OF TRACTOR AND TRAILER,
R/O: DIGGAON ROAD,
K.CHITTAPUR, TQ: CHITTAPUR,
DIST: KALABURAGI - 585 101.
...RESPONDENT
(BY SRI SANJEEV PATIL, ADVOCATE FOR R1;
NOTICE TO R2 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO SETTING ASIDE THE IMPUGNED JUDGMENT AND
AWARD DATED 14.06.2018 IN M.V.C.NO.210/2017 PASSED BY THE
SENIOR CIVIL JUDGE AND M.A.C.T., AT CHITTAPUR, IN THE
INTEREST OF JUSTICE AND EQUITY.
IN M.F.A.NO.201562/2018
BETWEEN:
HDFC ERGO GENERAL INSURANCE CO. LTD.,
1ST FLOOR, VIRUPAKSHA KRUPA,
OPP: KIMS MAIN GATE,
RB ROAD, VIDYA NAGAR, HUBLI - 580 009.
(NOW REPRESENTED BY
AUTHORIZED SIGNATORY, BANGALORE)
...APPELLANT
(BY SMT PREETI PATIL MELKUNDI, ADVOCATE)
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MFA No. 201497 of 2018
C/W MFA No. 201496 of 2018
MFA No. 201561 of 2018
HC-KAR AND 1 OTHER
AND:
1. HANMANTH
S/O KAREPPA,
AGE: 28 YEARS,
OCC: LABOUR,
R/O: H.NO.1-10-156,
NASAR JUNG AREA,
CHITTAPUR,
DIST: KALABURAGI - 585 101.
2. AISHWARYA
D/O HANMANTH,
AGE: 07 YEARS,
OCC: STUDENT, MINOR,
3. NAGAMMA
D/O HANMANTH,
AGE: 05 YEARS,
OCC: NIL., MINOR,
4. NAGESH
D/O HANMANTH,
AGE: 03 YEARS, MINOR,
OCC: NIL,
APPELLANT NO.2 TO 4 ARE MINORS
U/G OF THEIR NATURAL FATHER
THE RESPONDENT NO.1
ALL ARE R/O: H.NO.1-10-156,
NASAR JUNG AREA,
CHITTAPUR, DIST: KALABURAGI - 585 101.
...RESPONDENTS
(BY SRI SANJEEV PATIL, ADVOCATE FOR R1 to r4;
R2 TO R4 ARE MINOR REPRESENTED BY R1;
NOTICE TO R5 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO SETTING ASIDE THE IMPUGNED JUDGMENT AND
AWARD DATED 14.06.2018 IN M.V.C.NO.209/2017 PASSED BY THE
SENIOR CIVIL JUDGE AND M.A.C.T., AT CHITTAPUR, IN THE
INTEREST OF JUSTICE AND EQUITY.
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MFA No. 201497 of 2018
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HC-KAR AND 1 OTHER
THESE MISCELLANEOUS FIRST APPEALS HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON 14.07.2025, THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI
C.A.V. JUDGMENT
Challenging common judgment and award dated
14.06.2018 passed by Senior Civil Judge and MACT, Chittapur
('tribunal' for short) in MVCs no.209/2017 and 210/2017, these
appeals are filed by claimants as well as insurer.
2. While insurer has filed MFA no.201561/2018
challenging award in MVC no.210/2017 and MFA
no.201562/2018 challenging award in MVC no.209/2017;
claimants have filed MFA no.201496/2018 challenging award in
MVC no.210/2017 and MFA no.201497/2018 against award in
MVC no.209/2017.
3. Smt.Preeti Patil Melkundi, learned counsel for
appellant-insurer submitted in claim petition, it was stated that
at 11.20 a.m., on 06.01.2016, Yallamma and Channamma were
traveling in tractor-trailer Chassis no.MVTM/31419117262,
Engine no.391354SUM12592 and trailer chassis
no.BT.3T15/2015, after loading stones for construction of
boundary wall. Near Gaudti Hotel, Chittapur, its driver drove it
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in rash and negligent and in zig-zag manner and applied brakes
suddenly, due to which it turned turtle and caused accident.
Due to stones falling on them, Yallamma died on spot, while
Channamma sustained grievous injuries. Despite taking
treatment, Channamma did not recover fully and sustained
permanent physical disability/loss of earning capacity. Due to
same, she filed MVC no.210/2017. Likewise, husband and
children of Yallamma filed MVC no.209/2017 against owner and
insurer of tractor and trailer.
4. On service of notice, owner did not appear and was
placed ex-parte. Insurer opposed claim petitions denying age,
occupation and income of deceased/injured, apart from alleging
violation of terms and conditions of policy. Claim was also
opposed as being exorbitant.
5. Based on pleadings, tribunal framed issues, and
recorded evidence. Claimant no.1 in MVC no.209/2017
examined himself as PW-1 and got marked Exs.P1 to P7, while
in MVC no.210/2017, claimant examined herself and
Dr.Rajendra Kothari as PWs-1 and 2 and got marked exhibits P-
1 to P-13. In both cases, insurer examined it's Law Officer as
RW.1 and got marked Exs.R1 and R2.
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6. On consideration, tribunal passed separate awards,
holding accident occurred due to rash and negligent driving of
tractor-trailer by its driver leading to death of Yallamma and
claimant-Channamma sustaining permanent physical disability,
resulting in loss of earning capacity and insurer being liable to
pay compensation as follows:
In MVC no.209/2017
1. Loss of dependency Rs.8,64,000/-
2. Towards love and affection Rs.25,000/-
3. Towards transportation of dead Rs.10,000/-
body
4. Towards funeral expenses Rs.25,000/-
Total Rs.9,24,000/-
In MVC no.210/2017
1. Towards pain and suffering Rs.25,000/-
2. Towards medical expenses Rs.07,000/-
3. Towards diet and attendant Rs.10,000/-
charges
4. Towards loss of future earnings Rs.1,50,919/-
5. Loss of income during treatment Rs.10,000/-
period
Total Rs.2,02,919/-
Rounded off Rs.2,03,000/-
7. Aggrieved, these appeals were filed. It was firstly
submitted as per Ex.P3-Charge Sheet, driver of insured tractor-
trailer was prosecuted for offences punishable under Sections
279, 338 and 304-A of IPC read with Sections 3 and 181 of
Motor Vehicles Act, indicating thereby that driver of insured
vehicle was not holding valid and effective driving licence as on
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date of accident. It was further contended, as per police
investigation records, both Yallamma and Channamma were
unauthorized passengers traveling in goods vehicle, whose risk
was not covered under insurance policy. Therefore, fastening of
liability on Insurer was not justified.
8. On quantum, it was submitted, tribunal had
considered facts and circumstances in proper perspective in
both cases and awarded just compensation and therefore, there
was no scope for enhancement. It was submitted,
compensation in MVC no.210/2017, was in fact excessive and
called for reduction as tribunal had awarded sum of
Rs.1,50,990/- towards 'loss of future earnings' even though
claimant had sustained only depressed fracture of left maxillary
sinus and subluxation of carom clavicular, which would not lead
to any functional disability. On said grounds, sought for
allowing Insurer's appeals.
9. On other hand, Sri Sanjeev Patil, learned counsel
for claimants opposed Insurer's appeals and pressed claimants'
appeals for enhancement.
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10. It was submitted, since victims of motor vehicle
accident in present case were third parties to contract of
insurance, Insurer could not avoid liability against them, by
relying upon Full Bench decision of this Court in New India
Assurance Co. Ltd. v. Yallavva, reported in 2020 SCC
OnLine Kar 1660 and of Hon'ble Supreme Court in Pappu
and others v. Vinod Kumar Lamba reported in (2018) 3
SCC 208. It was submitted, Insurer could at best, seek for
modification of award to one of pay and recovery.
11. On quantum, in MVC no.209/2017 it was submitted,
deceased Yallamma was 31 years of age, working as labourer
and stated to be earning Rs.9,000/- per month. But, Tribunal
assessed it at Rs.6,000/-. It was submitted, Tribunal erred in
not awarding appropriate compensation under Conventional
heads.
12. In MVC no.210/2017, it was submitted, claimant
was 28 years of age, working as labourer and earning
Rs.9,000/- per month. But, Tribunal assessed it at Rs.6,000/-.
It was submitted, claimant had sustained fracture of medial and
lateral wall of left maxillary sinus and fracture of left zygotic
bone. Despite same, award of Rs.25,000/- towards 'pain and
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suffering' was on lower side. Even award of Rs.10,000/-
towards 'loss of income during laid-up period' was also
inadequate and sought enhancement. It was lastly submitted,
Tribunal had erred in not awarding any amount towards 'loss of
amenities'.
13. Heard learned counsel for parties, perused
judgment and award and records.
14. From above, occurrence of accident involving
insured vehicle leading to death of Yallamma and permanent
physical disability sustained by Channamma are not in dispute.
Points that would arise for consideration are:
"1. Whether tribunal was justified in holding insurer
liable to pay compensation?
2. Whether assessment of compensation by tribunal
calls for modification?"
Reg. Point no.1:
15. Bare perusal of Ex.P3 - Charge sheet would
indicate that driver of tractor-trailer was prosecuted for driving
motor vehicle without holding valid and effective driving licence
apart from causing accident due to rash and negligent driving.
Exs.P1 and P2 - FIR and complaint would indicate that both
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victims i.e., Yallamma and Channamma were traveling in
loaded tractor-trailer when it met with accident. Ex.R2 -
Insurance policy would cover risk of owner, driver upto Rs.2
Lakhs and limited liability as per IMT-28 in respect of paid
driver/conductor/cleaner. However, it's seating capacity is
shown as '1' only. Therefore, victims would be unauthorized
passengers. But, in view of decision in Yallavva's case (supra),
Insurer would be liable to pay compensation to claimants in
first instance and thereafter recover same from insured.
16. Similar position would avail even in case driver of
insured vehicle were not holding valid licence, in view of ratio in
Pappu's case (supra).
17. Point no.1 is therefore, partly affirmative as above.
Reg. Point no.2 in MVC no.209/2017:
18. Insofar as monthly income, it is stated that
deceased Yallamma was 31 years of age working as agricultural
coolie and earning Rs.9,000/- per month. However, same was
not substantiated with specific material. In absence, tribunal
was justified it notionally. But notional income for period of
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accident i.e., 2016 being Rs.8,750/- as adopted by Karnataka
State Legal Services Authority for settlement of cases before
Lok Adalath, tribunal was not justified in taking it at Rs.6,000/-.
It has to be considered at Rs.8,750/- per month.
19. Claimants are husband and three minor children of
deceased. Tribunal rightly deducted 1/4th towards personal
expenses and applied correct multiplier of 16. But, failed to add
future prospects to monthly income. As per decision in
National Insurance Company Limited v. Pranay Sethi and
others, reported in (2017) 16 SCC 680 since deceased was
31 years of age and self-employed, 40% has to be added as
future prospects. Thus, computation of loss of dependency
would be as follows:
[(Rs.8,750/- + 40%) - 1/4th ] x 12 x 16 = Rs.17,64,000/-
20. Apart from above, claimant no.1 would be entitled
for spousal consortium and claimants no.2 to 4 would be
entitled for parental consortium of Rs.40,000/- each i.e.,
Rs.1,60,000/-. In addition, they would be entitled for
Rs.15,000/- towards loss of estate and Rs.15,000/- towards
funeral expenses. Award of compensation towards love and
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affection and transportation of dead body would not be
justified. Further as per decision of Hon'ble Supreme Court in
case of Pranay Sethi's (supra), 10% escalation has to be
added for every three years to award under conventional
heads. Since six years have lapsed after decision of Pranay
Sethi's case (supra), 20% has to be added towards escalation
which would be Rs.38,000/-. Thus, total compensation would
be:
In MVC no.209/2017
1. Loss of dependency Rs.17,64,000/-
2. Loss of consortium in total Rs.1,60,000/-
3. Loss of estate Rs.15,000/-
4. Funeral expenses Rs.15,000/-
5. Escalation Rs.38,000/-
Total Rs.19,92,000/-
Reg. Point no.2 in MVC no.210/2017:
21. Insofar as monthly income, Channamma was stated
to be 28 years of age working as agricultural coolie and earning
Rs.9,000/- per month. However, same was not substantiated
with specific material. In absence, tribunal was justified it
notionally. But notional income for period of accident i.e., 2016
being Rs.8,750/- as adopted by Karnataka State Legal Services
Authority for settlement of cases before Lok Adalath, tribunal
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was not justified in taking it at Rs.6,000/-. It has to be
considered at Rs.8,750/- per month.
22. As observed by tribunal by referring to Ex.P5-
wound certificate, claimant sustained three grievous injuries.
However, none of them were fractural injuries. But tribunal
noted Ex.P11-X-ray report showing evidence of old fracture of
medial and lateral wall of left maxillary sinus and left zygotic
bone. Taking note of same, award of Rs.25,000/- towards pain
and suffering would appear inadequate and stands enhanced to
Rs.35,000/-.
23. Tribunal awarded Rs.7,000/- towards medical
expenses against bills produced. Since there is re-
imbursement, there would be no scope of enhancement.
Tribunal awarded Rs.10,000/- towards diet, attendant and
conveyance for inpatient period of 5 days. Same appears to be
just and proper and no enhancement. Normally, fractures take
about three months to heal. Considering, same as lay-off,
claimant is awarded Rs.26,250/-.
24. PW.2 examined claimant and assessed disability of
37%. Perusal of Ex.P10-disability certificate would reveal
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assessment of permanent physical disability is based on CT
scan of brain and X-ray reports. But, Ex.P11-X-ray report of
skull does not reveal any evidence of abnormality. Moreover,
PW.2-Dr.Rajendra Kothari, is a Surgeon and not Neuro-Surgeon
or Psychiatrist. He has also referred to X-ray report and opined
claimant had sustained 30% disability due to fracture of skull
and 10% due to subluxation of acromo-clavicular. He has
however not given particulars of basis of assessment such as
extent of restriction of movement etc. Therefore, assessment
appears exaggerated and requires moderation. Normally, even
fracture of clavicle does not result in loss of earning capacity.
Under such circumstances, assessment of functional disability
at 12.3% by tribunal would appear excessive and not supported
by material on record. Assumption of 1/3rd limb disability as
whole body disability would not either be proper or justifiable.
Taking note of nature of injuries sustained, 5% loss of earning
capacity can be considered. Since claimant was 28 years of
age, multiplier applicable would be 17. Thus, future loss of
income would be:
Rs.8,750/- x 5% x 12 x 17 = Rs.89,250/-.
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25. Tribunal has not awarded any compensation
towards loss of amenities. Taking note of small extent of
disability caused, it would be appropriate to award Rs.15,000/-
towards same.
26. Thus, total compensation would be:
In MVC no.210/2017
1. Towards pain and suffering Rs.35,000/-
2. Towards medical expenses Rs.07,000/-
3. Towards diet and attendant Rs.10,000/-
charges
4. Towards loss of future earnings Rs.89,250/-
5. Loss of income during treatment Rs.26,250/-
period
6. Loss of amenities Rs.15,000/-
Total Rs.1,82,500/-
27. Point no.2 in therefore answered partly in
affirmative as above. Consequently, following:
ORDER
i. Insurer's appeal in MFAs no.201561/2018 and
MFA no.201562/2018 are allowed in part,
only insofar as liability wherein liberty is
reserved to it to pay compensation to
claimants and thereafter recover it from
insured/owner.
ii. Claimants' appeal in MFA no.201497/2018 is
allowed in part. Claimant's appeal in MFA
no.201496/2018 is dismissed.
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iii. Judgment and award dated 14.06.2018 passed
by Senior Civil Judge and MACT, Chittapur in
MVC no.209/2017, Claimants in MVC
no.209/2017 are held entitled for total
compensation of Rs.19,92,000/- as against
Rs.9,24,000/- awarded by Tribunal with
interest at 6% per annum from date of petition
till payment, from insurer.
iv. Respondent-insurer is directed to deposit
enhanced compensation before Tribunal within
a period of six weeks.
v. Claimant in MVC no.210/2017 is held entitled
for total compensation of Rs.1,82,500/- as
against Rs.2,03,000/- awarded by Tribunal
with interest at 6% per annum from date of
petition till payment, from insurer.
vi. Amount in deposit in both insurer's appeals are
ordered to be transmitted to tribunal for
payment.
Sd/-
(RAVI V HOSMANI)
JUDGE
AV/msr
