Karnataka High Court
M/S National Insurance Company Limited vs Smt Sujatha on 9 July, 2025
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MFA No. 1492 of 2017
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 1492 OF 2017 (MV-D)
BETWEEN:
M/S NATIONAL INSURANCE COMPANY LIMITED
SRINIVASA MARKET COMPLEX,
NO. 1974, CINEMA ROAD,
DODDABALLAPURA
BENGALURU RURAL DISTRICT - 561203
NOW REP BY ITS REGIONAL OFFICE
SHUBHARAM COMPLEX,
M G ROAD,
BENGALURU - 560001
REP BY ITS AUTHORIZED SIGNATORY
...APPELLANT
(BY SRI. K S LAKSHMINARASAPPA, ADVOCATE FOR
SRI. A M VENKATESH, ADVOCATE)
AND:
Digitally 1. SMT SUJATHA
signed by
W/O LATE S B NAGABHUSHANA
NIRMALA
DEVI AGED ABOUT 53 YEARS
Location: 2. DEEPTHI
HIGH S/O LATE S B NAGABHUSHANA
COURT OF AGED ABOUT 26 YEARS
KARNATAKA
BOTH ARE R/AT NO 198
ASHIRWADA NILAYA
SOMESHWARA LAYOUT 8TH CROSS,
DODDABALLAPURA 561203
3. G SIDDALINGAIAH
S/O G GANGAMUTHAIAH
MAJOR,
R/AT SHANTHINAGAR
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MFA No. 1492 of 2017
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DODDABALLAPURA TOWN 561203
...RESPONDENTS
(BY SRI. S D N PRASAD, ADVOCATE FOR R1 & R2
R3 IS SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 30.07.2016 PASSED IN MVC
NO.15/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC,
DODDABALLAPUR, AWARDING COMPENSATION OF RS.27,72,164/-
WITH INTEREST AT 6% P.A. FROM THE DATE OF ACCIDENT TILL
REALIZATION AND ETC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE C.M. POONACHA
ORAL JUDGMENT
The present appeal is filed by the insurer under Section
173(1) of the Motor Vehicles Act, 19881, calling in question the
judgment and award dated 30.7.2016 passed in MVC
No.15/2012 by the Court of the Senior Civil Judge and JMFC,
Doddaballapur2.
2. For the sake of convenience, the parties herein are
referred as per their rank before the Tribunal.
3. The relevant facts in a nutshell leading to the
present appeal are that the wife and daughter of the deceased
filed a claim petition contending, inter alia that on 26.01.2012
Hereinafter referred to as 'Act of 1988'
Hereinafter referred to as 'Tribunal'
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when the deceased was walking on the left side of the road, a
motorcycle being driven by its rider in a rash and negligent
manner, came in a high speed from the opposite direction and
hit the deceased causing the accident in question wherein, the
deceased sustained grievous injuries and succumbed to the
same on the same day in the hospital.
4. Claiming compensation for the death of the
deceased, the claimants filed a claim petition arraying the
owner and insurer of the motorcycle as respondent Nos.1 and 2
respectively. The owner of the vehicle entered appearance
before the Tribunal. However did not file any statement of
objections. The insurer, who was respondent No.2 before the
Tribunal, filed a statement of objections denying the
averments made in the claim petition. It is further contended
that the deceased was also negligent in causing the accident
and the case was one of contributory negligence.
5. Claimant No.1 examined himself as PW.1. Exs.P1
to P15 have been marked in evidence. No oral or documentary
evidence has been adduced on behalf of the respondents. The
Tribunal vide its judgment and award dated 30.7.2016 held
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that the deceased had contributed in causing the accident to an
extent of 15%. Accordingly, the quantum of compensation to
the extent of 85% was assessed at ₹27,72,164/- together with
interest at 6% p.a. Being aggrieved, the insurer has filed the
present appeal.
6. Learned counsel Sri K.S.Lakshminarasappa
appearing for learned counsel Sri A.M.Venkatesh for the
appellant/insurer vehemently contends that the finding of
negligence at 15% on the deceased is erroneous and that the
Tribunal ought to have attributed more negligence on the
deceased. It is further contended that the quantum of
compensation assessed is on the higher side, inasmuch as the
income tax has not been deducted.
7. Per contra, learned counsel Sri S.D.N.Prasad,
appearing for respondent Nos.1 and 2/claimants contends that
the assessment of contributory negligence at 15% is erroneous
and that the Tribunal ought to have held that the rider of the
insured motorcycle was entirely negligent in causing the
accident in question. That the quantum of compensation
awarded is on the lower side.
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8. Responding to the contentions put forth by the
learned counsel for the claimants, learned counsel for the
insurer contends that the claimants not having filed any cross
objection or an independent appeal, it is not open to the
claimants to question the finding of the Tribunal on negligence
or to seek for enhancement of the quantum of compensation.
9. The submissions of the learned counsels for the
parties 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 claimants/respondent Nos.1 and 2 are
entitled to question the finding of negligence and/or the
quantum of compensation in the present appeal filed by
the insurer without filing any separate appeal/cross
objection in that regard?
ii. Whether the finding of the Tribunal on negligence is
erroneous and liable to be interfered with?
iii. Whether the quantum of compensation is just and
proper?
Re. question No.(i):
10. While it is the contention of the learned counsel for
the insurer that without filing an appeal/cross objection, in an
appeal filed by the insurer, it is not open for the claimants to
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assail the finding of negligence or to seek for enhancement of
the quantum of compensation, learned counsels for the
claimants would contend that even without an independent
appeal/cross objection, finding of negligence could be assailed
and also seek that the quantum of compensation be enhanced.
11. It is relevant to note that a two judge Bench of
the Hon'ble Supreme Court in the case of Ranjana Prakash v.
Divisional Manager3, held, inter alia, that the High Court
cannot enhance the compensation in an appeal filed by the
owner/insurer without an independent appeal/cross objection.
However, a three judge Bench of the Hon'ble Supreme Court in
the case of Surekha v. Santosh4 held as follows:
"2. By now, it is well-settled that in the matter of
insurance claim compensation in reference to the motor
accident, the court should not take hypertechnical
approach and ensure that just compensation is awarded
to the affected person or the claimants."
(emphasis supplied)
12. A Division Bench of this Court in the case of The
Divisional Manager v. Smt.Deepa & Ors.,5, following the
2012 AIR SCW 848
(2021) 16 SCC 467
Judgment dated 29.10.2022 passed in MFA No.103732/2017 (Dharwad Bench)
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judgment of the Hon'ble Supreme Court in the case of
Surekha9 held that even if there is no independent appeal by
the claimant, the Court has to award 'just compensation' if the
claimants are entitled to the same.
13. It is also relevant to note that various coordinate
Benches of this Court while referring to the power of the
appellate Court under Order XLI Rule 33 of the Code of Civil
Procedure, 19086 have held that the appellate Court is entitled
to enhance the compensation in an appeal filed by the insurer
without an appeal/cross objection filed by the claimant in that
regard.
14. It is also a settled proposition of law that while
adjudicating a claim petition under the provisions of the Act of
1988, the Tribunal/Court is required to award just
compensation and hence is entitled to award a higher
compensation than what has been sought for by the claimants
in the claim petition.
Hereinafter referred to as 'CPC'
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15. In the case of Saurav Jain v. M/s. ABP
Design7, the Hon'ble Supreme Court was considering a
situation as to whether a challenge could be raised to an
adverse finding before the appellate Court without a cross
objection. While considering the said question, the Hon'ble
Supreme Court has held as follows:
"29. It is apparent from the amended provisions of Order
41 Rule 22CPC and the above authorities that there are
two changes that were brought by the 1976 Amendment.
First, the scope of filing of a cross-objection was
enhanced substantively to include objections against
"findings" of the lower court; second, different forms of
raising cross-objections were recognised. The amendment
sought to introduce different forms of cross-objection for
assailing the findings and decrees since the amendment
separates the phrase "but may also state that the finding
against him in the court below in respect of any issue
ought to have been in his favour" from "may also take
any cross-objection to the decree" with a semi colon.
Therefore, the two parts of the sentence must be read
disjunctively. Only when a part of the decree has been
assailed by the respondent, should a memorandum of
cross-objection be filed. Otherwise, it is sufficient to raise
a challenge to an adverse finding of the court of first
instance before the appellate court without a cross-
objection."
(emphasis supplied)
16. In view of the discussion made above, having
regard to the legal position as held by the Hon'be Supreme
Court in the case of Surekha9, as well as the Division Bench of
AIR 2021 SC 3673
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this Court in the case of Deepa10 is required to be followed,
also keeping in mind the power of the appellate Court under
Order XLI Rule 33 of the CPC as well as the legal position as
held by the Hon'ble Supreme Court in the case of Saurav
Jain13, it is required to be held that even in an appeal filed by
the insurer, it is open for this Court to enhance the
compensation, if the same is assailed in the course of oral
arguments by the claimants. Such an interpretation is required
to be made also keeping in mind the fact that the Act of 1988 is
a beneficial legislation. It is also required to be noted that the
finding of negligence has been assailed by the insurer and the
submissions made on behalf of the claimants with regard to the
said finding, to the extent the same is detrimental to the
claimants are also required to be considered and adjudicated
upon.
17. In view of the settled legal position as noticed
above, question No.(i) framed for consideration is answered in
the affirmative.
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Re. question No.(ii).
18. Although the insurer who was respondent No.2
before the Tribunal has contended in the statement of
objections with regard to negligence on the part of the
deceased, it is relevant to note that the insurer has not
produced any oral or documentary evidence. The claimants
have examined PW.1 and have produced various documents
including charge sheet (Ex.P25) (wrongly shown as Ex.P10 in
the judgment of the Tribunal) as well as spot sketch (Ex.P27)
(wrongly shown as Ex.P6 in the judgment of the Tribunal), in
support of their case. It is relevant to note here that the
charge sheet has been filed against the rider of the motorcycle.
Although, the insurer has taken a specific defence, it has not
adduced any oral or documentary evidence to demonstrate that
the deceased had also contributed in causing the accident in
question. The Tribunal, while appreciating the contentions put
forth by the parties, had noticed that the deceased had crossed
a major portion of the road and a short distance was left for
him to reach the other side of the road. Hence, the Tribunal has
held that there was contributory negligence on the part of the
deceased to an extent of 15%. It is relevant to note here that a
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perusal of the sketch (Ex.P27) demonstrates that the spot of
the accident was in a corner of the road, which was towards the
right side of the rider of the motorcycle. Hence, it is clear that
the rider of the motorcycle had come towards his wrong side,
wherein the accident had occurred. The Tribunal has not
noticed that the police authorities, after investigation have filed
a charge sheet against the rider of the motorcycle. In the
absence of the insurer having examined any eye-witness or
having produced any other material to demonstrate that the
investigation carried out was in any manner faulty or
erroneous, the finding of the Tribunal attributing negligence to
an extent of 15% on the deceased is erroneous and liable to be
interfered with. Having regard to the material available on
record, more particularly the fact that the charge sheet has
been filed against the rider of the motorcycle and there being
no other material on record to counter the police documents, it
is just and proper that it be held that the rider of the
motorcycle was entirely negligent in causing the accident.
Hence question No.(ii) is answered partly in the affirmative.
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Re. question No.(iii):
19. The Tribunal has recorded a finding that the
deceased was aged 58 years as on date of accident and has
applied the multiplier of 9, which is just and proper.
20. It was averred in the claim petition that the
claimant was a Headmaster at B.S.A School and was earning a
monthly income at ₹48,000/- and had income from agriculture.
To demonstrate that the deceased was working at B.S.A School
as a Headmaster, the salary certificate (Ex.P8) has been
produced as also Ex.P7, which is a consolidated chart
demonstrating the details/particulars of the salary of the
deceased together with the various components including
dearness allowance, House Rent Allowance, etc. It is
forthcoming from Ex.P8 that, the school where the deceased
was working was a Government aided school. The Tribunal
considering the same has recorded a finding that the salary of
the deceased as a Headmaster was ₹40,170/- and from the
said amount, Professional Tax of ₹200/- was required to be
deducted and assessed the monthly income at ₹39,970/-.
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21. The Tribunal has further noticed that in support of
the contention that the claimant was an agriculturist, RTCs
(Ex.P24) (wrongly shown as Exs.P12 to P15 in the judgment of
the Tribunal) have been produced and accordingly, the income
of the claimant towards the supervision charges of the
agricultural operations was assessed at ₹5,000/- p.m.
22. It is forthcoming that while the income of the
deceased was assessed at ₹39,970/-, income tax towards the
same has not been deducted. Hence, the annual income of the
deceased as a Headmaster is (₹39970/-x12) ₹4,79,640/-. If
the rate of income tax for the financial year 2011-12 is taken
into consideration, income tax of ₹49,920/- is required to be
deducted from the annual income of ₹4,79,640/-. Further, if
the agricultural income of (₹5,000/-x12) ₹60,000/- is added,
the total annual income of the deceased is reassessed as
(₹4,29,720/- + ₹60,000/-) ₹4,89,720/-. 10% is required to be
added towards future prospects having regard to the judgment
of the Hon'ble Supreme Court in the case of National
Insurance Co.Ltd., v. Pranay Sethi8 and 1/3rd is required to
be deducted towards personal expenses since the deceased
AIR 2017 SC 5157
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was married and is survived by two dependents, who are his
wife and daughter who are the claimants. Hence, the loss of
dependency is re-assessed as (₹4,89,720/- + 10% - 1/3x9)
₹32,32,152/-.
23. Loss of consortium is required to be awarded to the
claimants, who are the wife and daughter in terms of the
judgment of the Hon'ble Supreme Court in the case of Magma
General Insurance Co.Ltd., v. Nanu Ram9 at ₹40,000/-
each with escalation at 20%. Accordingly, the loss of
consortium is re-assessed as (₹48,000/-x2) ₹96,000/-.
24. The compensation towards loss of estate and
funeral expenses is also required to be awarded at ₹15,000/-
each together with escalation at 20%. Accordingly, the
compensation towards the same is re-assessed as ₹18,000/-
each.
25. In view of the compensation awarded on
conventional heads, the compensation awarded by the Tribunal
would stand accordingly modified.
(2018) 18 SCC 130
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26. Accordingly, the quantum of compensation is re-
assessed as follows:
Sl.No Compensation Amount Awarded by the Amount awarded by
Head Tribunal (`) this Court (`)
1 Loss of 2752164.00 3232152.00
dependency
2 Loss of estate 10000.00 18000.00
3 Loss of 10000.00 96000.00
consortium
4 Funeral 0.00 18000.00
expenses
Total 2772164.00 3364152.00
27. Accordingly, the claimants are entitled to enhanced
compensation of (`33,64,152/- - `27,72,164/-) = `5,91,988/-
and same is rounded off to `5,92,000/-.
28. Hence, question No.(iii) framed for consideration is
answered in the Negative.
29. In view of the aforementioned, the following:
ORDER
i) The appeal is disposed of;
ii) The judgment and award dated 30.7.2016 passed
in MVC No.15/2012 by the Court of the Senior Civil
Judge and JMFC, Doddaballapur, is modified to the
extent stated herein. In all other respects, the
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judgment and award of the Tribunal remains
unaltered;
iii) The claimants are entitled to enhanced
compensation of `5,92,000/- with interest at 7%
pa., from the date of petition till date of payment;
iv) The amount deposited by the appellant in the above
appeal together with records be transmitted to the
Tribunal for disbursement in terms of the award of
the Tribunal;
v) The insurer shall deposit the balance compensation,
together with accrued interest within a period of six
weeks;
vi) The Registry to draw the modified award
accordingly;
No costs.
Sd/-
(C.M. POONACHA)
JUDGE
BS/ND
