Karnataka High Court
The Branch Manager vs Smt. Saraswathi on 25 June, 2025
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MFA No. 2706 of 2017
C/W MFA.CROB No. 80 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 2706 OF 2017 (MV-D)
C/W
MFA CROSS OBJECTION NO. 80 OF 2022 (MV-D)
IN MFA No. 2706/2017
BETWEEN:
THE BRANCH MANAGER
THE ORIENTAL INSURANCE CO LTD
BRANCH OFFICE AT SHETTARAGADDE COMPLEX,
COURT ROAD, THIRTHAHALLI,
REPRESENTED BY ITS DEPUTY MANAGER,
REGIONAL OFFICE, 2ND FLOOR,
SUMANGALA COMPLEX,
LAMINGTON ROAD,
HUBLI - 580020
...APPELLANT
(BY SRI. SRINIVASA K N, ADVOCATE)
Digitally AND:
signed by
NIRMALA 1. SMT. SARASWATHI
DEVI
W/O LATE SUNDRESH
Location: AGED ABOUT 27 YEARS
HIGH COURT
OF
2. SMT SHARADA
KARNATAKA
W/O LOKAPPA
AGED ABOUT 62 YEARS
3. SRI LOKAPPA
S/O LATE SIDDAPPA
AGED ABOUT 67 YEARS
ALL ARE R/AT HORABYLU HEDDUE POST,
THIRTHAHALLI TALUK
SHIMOGA DISTRICT - 577413
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MFA No. 2706 of 2017
C/W MFA.CROB No. 80 of 2022
HC-KAR
4. SRI LAKSHMISHA K M
S/O MOHAN K C
AGED ABOUT 45 YEARS
R/AT HEDDUR , HEDDUR POST,
THIRTHAHALLI TALUK
SHIMOGA DISTRICT - 577413
(OWNER OF TEMPO - XL -- MINI LORRY)
5. SRI DHANANJAYA
S/O MANJAPPA GOWDA K
AGED ABOUT 57 YEARS
R/AT HEDDUR , HEDDUR POST,
THIRTHAHALLI TALUK
SHIMOGA DISTRICT - 577413
(OWNER OF TEMPO - XL -- MINI LORRY)
...RESPONDENTS
(BY SRI. P N HARISH, ADVOCATE FOR R1
SRI. RAKSHIT JOIS, ADVOCATE FOR R5
R2 TO R4 ARE SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 07.12.2016 PASSED IN MVC
NO.591/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
J.M.F.C AND ADDITIONAL M.A.C.T., THIRTHAHALLI, AWARDING
COMPENSATION OF RS.8,62,000/- WITH INTEREST AT 6% P.A.
FROM THE DATE OF THE PETITION TILL THE DATE OF DEPOSIT AND
ETC.
IN MFA.CROB NO. 80/2022
BETWEEN:
SARASWATHI
W/O LATE SUNDRESH
AGED ABOUT 32 YEARS
R/AT HORABYLU HEDDUR POST,
THIRTHAHALLI TALUK
SHIMOGA DISTRICT - 577413
...CROSS OBJECTOR
(BY SRI. P N HARISH, ADVOCATE)
AND:
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MFA No. 2706 of 2017
C/W MFA.CROB No. 80 of 2022
HC-KAR
1. LAKSHMISHA K M
S/O MOHAN K C
MAJOR IN AGE
R/AT HEDDUR , HEDDUR POST,
THIRTHAHALLI TALUK
SHIMOGA DISTRICT - 577413
2. DHANANJAYA
S/O MANJAPPA GOWDA K
AGED ABOUT 62 YEARS
R/AT HEDDUR , HEDDUR POST,
THIRTHAHALLI TALUK
SHIMOGA DISTRICT - 577413
(OWNER OF TEMPO - XL -- MINI LORRY)
3. THE BRANCH MANAGER
THE ORIENTAL INSURANCE CO LTD
BRANCH OFFICE AT SHETTARAGADDE
COMPLEX, COURT ROAD,
THIRTHAHALLI TALUK - 577413
SHIVAMOGGA DISTRICT
4. SHARADA
W/O LOKAPPA
AGED ABOUT 67 YEARS
R/AT HORABYLU HEDDUR POST,
THIRTHAHALLI TALUK
SHIVAMOGA DISTRICT - 577413
5. LOKAPPA
S/O LATE SIDDAPPA
AGED ABOUT 72 YEARS
R/AT HORABYLU HEDDUR POST,
THIRTHAHALLI TALUK
SHIMOGA DISTRICT - 577413
...RESPONDENTS
(BY SRI. K N SRINIVAS, ADVOCATE FOR R3
SRI. RAKSHITH, ADVOCATE FOR R5
NOTICE TO R1, R2 & R4 IS DISPENSED WITH
V/O DTD 11.06.2025 )
THIS MFA CROB IS FILED UNDER ORDER 41 RULE 22 R/W
U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 14.12.2016 PASSED IN MVC NO. 591/2015 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND JMFC, AMACT,
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MFA No. 2706 of 2017
C/W MFA.CROB No. 80 of 2022
HC-KAR
THIRTHAHALLI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION AND ETC.
THIS APPEAL AND MFA CROB, COMING ON FOR ADMISSION,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE C.M. POONACHA
ORAL JUDGMENT
The above appeal and cross-objection call in question,
challenging the judgment and award dated 07.12.2016 passed
by the Senior Civil Judge and JMFC and AMCT, Thirthahalli1.
Hence, they are taken up together for consideration.
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 are that the
claimant is claiming compensation for the death of the
deceased in a road traffic accident dated 18.01.2013, the wife
and parents of the deceased filed a claim petition arraying the
owner, driver and insurer of the mini lorry in which the
deceased was traveling, at the time of the accident as
respondent Nos.1 to 3 in the claim proceedings. The Tribunal
Hereinafter referred as to 'Tribunal'
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partly allowed the claim petition and awarded total
compensation of `8,62,000/- together with interest at the rate
of 6% per annum. The insurer was directed to pay
compensation awarded. Being aggrieved, the insurer has filed
the present appeal and the claimants have filed the cross-
objection.
4. Heard submissions of learned counsel
Sri KN Srinivasa appearing for the appellant / insurer and
learned counsel Sri PN Harish appearing for cross-objectors /
claimants.
5. It is a contention of learned counsel for the insurer
that the appellant was a gratuitous passenger traveling in the
insured vehicle, which was a mini lorry. Hence, the insurer is
not liable to pay the compensation awarded. It is further
contended that the claimants have averred in the claim petition
that the deceased was working as a conductor cum loader in
the insured vehicle, that the risk of the conductor not being
covered under the policy of the insurance, the insurer is not
liable to pay the compensation awarded. It is further contended
that the deceased himself was responsible for causing accident
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in question, as when he was in the process of spitting gutka, he
lost control and fell down and the driver of the insured vehicle
was not responsible for causing the accident in question.
6. Per contra, learned counsel for the claimants
justifies the finding of negligence and liability passed by the
Tribunal as just and proper. However, in support of the cross-
objection, learned counsel for the claimants contended that the
income assessed by the Tribunal is on the lower side as well as
the compensation awarded on other conventional heads is
required to be enhanced.
7. The submissions of both the learned counsels 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 finding of the Tribunal on liability is
erroneous and liable to be interfered with?
ii. Whether the compensation awarded by the Tribunal
is liable to be enhanced?
Reg. question (i):-
8. The claimants in the claim petition have specifically
averred that the deceased was traveling in the insured vehicle
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as conductor cum loader. It is further specifically averred that
the deceased was traveling in the insured vehicle for
distribution of food items in the school.
9. The owner and driver i.e., respondent Nos.1 and 2
before the Tribunal have filed statement of objections wherein
it is averred that the deceased was traveling as a loader/helper
and he was engaged on a temporary basis for loading and
unloading the goods being carried in the insured lorry. The
insurer (respondent No.3 before the Tribunal) has filed
statement of objections, averring, inter-alia that there was no
employee and employer relationship between the deceased and
the owner of the insured vehicle. It is further averred that the
deceased was traveling as a gratuitous passenger and the
insurer is not liable to pay the compensation awarded.
10. The claimant No.1 was examined as PW.1 and the
other occupant of the insured vehicle was examined PW.2. No
oral evidence was adduced by the respondents before the
Tribunal. The policy of insurance has been marked as Ex.R1.
11. The Tribunal while appreciating the contentions put
forth by the insurer that the deceased himself was responsible
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for causing the accident in question, since the accident
occurred when the deceased was spitting gutka, has recorded
the following findings:
"16. ......... As far as the manner of the accident is
concerned, even if it to be assumed the deceased was
spitting in Gutka at the time of the accident it does not
amount to such a negligent act which can result in an
accident unless it is corroborated by the negligent
driving of the driver of the lorry and negligence in not
properly locking the door. Hence the contention that
the accident took place only because the deceased was
spitting Gutka can not be accepted. On the other hand
in the chargesheet it is the contention taken that since
the driver suddenly applied the brake the deceased
was thrown out and succumbed to the injuries."
(emphasis supplied)
12. Further, while considering the contentions of the
insurer that the deceased was a gratuitous passenger, the
Tribunal has recorded the following findings:
"17. In addition as far as the relation of employee and
employer is concerned, respondent No.1 has stated
that he was working as loader cum helper and the
plaintiff has stated that he was working as conductor
no doubt the deceased and the complainant are
neighbours and it is also possible the deceased was
travelling on way to his house however on perusal of
the insurance policy it is a public carrier policy and the
vehicle is a goods vehicles and admitted that it was
proceeding with food items to school children and there
was any no other employee except the driver and
conductor and deceased in the said vehicle. Hence
certainly the deceased was acting as loader cum helper
in the vehicle as it was supplying food items for
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children and hence he was travelling as an employee
and not as a gratuitous passenger at the time of the
accident. Hence respondent No.3 being the insurer is
liable to indemnify the owner of the vehicle."
(emphasis supplied)
13. It is forthcoming with regard to the manner of
occurrence of the accident, the Tribunal has rightly held that in
the absence of the insurer demonstrating that the driver
himself was not in any manner negligent in causing the
accident, merely because, the deceased is alleged to have been
spitting gutka is not a ground to hold that the deceased himself
was negligent in causing the accident.
14. With regard to the contention of the insurer that the
deceased was a gratuitous passenger. it is relevant to note that
the claimants in the claim petition have specifically averred that
the deceased was a conductor cum loader. Further, at para
No.9 of the claim petition it is specifically averred that the
deceased was traveling in the insured vehicle as a loader for
distribution of food items. The owner and driver of the vehicle
had filed a statement of objection wherein it is averred that the
deceased was traveling in the insured vehicle as a loader, to
enable distribution of food items. It is further relevant to note
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that the insured vehicle was a mini lorry and the seating
capacity including driver was three. It is forthcoming from the
records that apart from the driver there were two other persons
traveling in the vehicle that is the deceased and PW.2.
15. The insurer has not examined any witness or
adduced any evidence with regard to its contentions regarding
liability. The Tribunal has rightly appreciated the material
available on record and held that the deceased was traveling in
the insured vehicle as a loader cum helper and has held that
the insurer was liable to pay the compensation.
16. The appellant - insurer has failed in demonstrating
that the finding of the Tribunal on negligence is in any manner
erroneous and liable to be interfered with by this Court in the
present appeal. Hence, question (i) framed for consideration is
answered in the negative.
Reg. Question (ii):-
17. The deceased was aged 27 years as on the dated of
the accident and the Tribunal has rightly applied the multiplier
'17'.
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18. It is averred that the deceased was a loader and
unloader. However, no documents have been produced to
demonstrate the income of the deceased. The Tribunal has
assessed the income of the deceased at `4,500/- per month.
Having regard to the date of the accident, it is just and proper
that the income of the deceased be re-assessed as `8,000/- per
month.
19. The Tribunal has rightly deducted 1/3rd towards
personal expenses in terms of the Hon'ble Supreme Court in
the case of SARALA VERMA (SMT) AND OTHERS V/S
DELHI TRANSPORT CORPORATION AND ANOTHER2.
Future prospects at 40% is required to be awarded in terms of
the Hon'ble Supreme Court in the case of NATIONAL
INSURANCE COMPANY LTD V/S PRANAY SETHI AND
ORS3, as against 50% awarded by the Tribunal. Hence, loss of
dependency is re-assessed as (`8,000/- + 40% - 1/3 X 12 X
17) =`15,23,268/- as against `6,12,000/-.
"(2009) SCC 121"
"(2017)16 SCC 680"
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20. Loss of consortium is required to awarded in terms
of judgment of the Hon'ble Supreme Court in the case of
MAGMA GENERAL INSURANCE COMPANY V/S NANU
RAM ALIAS CHUBRU RAM AND ORS4, at `40,000/-
together with increment at 10% every three years. Hence, 20%
increment is to be applied and the claimants are entitled to loss
of consortium of (`48,000 X 3) = `1,44,000/- as against
`50,000/- awarded by the Tribunal.
21. The funeral expenses and loss of estate is required
to be awarded at `15,000/- each together with increment at
20%. Accordingly, the compensation at `18,000/- each is
awarded towards the same as against `25,000/- each awarded
by the Tribunal.
22. In view of the compensation having been awarded
on all conventional heads, the compensation towards love and
affection of `1,50,000/- awarded by the Tribunal is set aside.
23. In view of the aforementioned, the compensation
re-assessed is as follows:
"(2018)18 SCC 130"
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Sl.No Compensation Head Amount Amount awarded
Awarded by the by this Court (`)
Tribunal (`)
1 Towards loss of 612000.00 1523268.00
dependency
2 Towards loss of 50000.00 144000.00
consortium
3 Towards loss of love and 150000.00 00.00
affection
4 Towards loss of estate 25000.00 18000.00
5 Towards funeral 25000.00 18000.00
expenses
Total 862000.00 1703268.00
24. Accordingly, question (ii) framed for consideration
is answered in the affirmative. The claimants are entitled to
enhanced compensation of (`17,03,268/- - `8,62,000/-)
`8,41,268/-.
25. In view of the aforementioned, the following:
ORDER
i) The appeal is dismissed;
ii) The Cross-objection is allowed in part;
iii) The judgment and award dated 07.12.2016 passed
by the Senior Civil Judge and JMFC and AMCT,
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Thirthahalli, is hereby modified to the extent stated
herein. In all other respects, the judgment and
award of the Tribunal shall remain unaltered;
iv) The claimant Nos.1 to 3 are entitled to an enhanced
compensation of `8,41,268/- together with interest
at 6% per annum from the date of the petition till
its realization in addition to the compensation
awarded by the Tribunal. Having regard to the
order dated 11.06.2025 passed in
MFA Crob.No.80/2022 the claimants shall not be
entitled interest on the enhanced compensation for
the delay period of 901 days in filing the cross-
objection.
v) The amount in deposit in MFA No.2706/2017
together with the records be transmitted to the
Tribunal for disbursement in terms of the award of
the Tribunal;
vi) The appellant - insurer in MFA No.2706/2017 shall
deposit the balance compensation together with
accrued interest within a period of six weeks;
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vii) Upon such deposit, the compensation together with
interest accrued thereupon is to be disbursed to the
claimants in terms of the judgment and award of
the Tribunal;
viii) The Registry to draw the modified award
accordingly.
No costs.
In view of the disposal of the above appeal, pending
interlocutory application/s does not survive for consideration
and stands disposed of.
Sd/-
(C.M. POONACHA)
JUDGE
PNV
