Karnataka High Court
The Manager vs Smt. Jayanthi (Jayanthi) on 29 May, 2025
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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MFA No. 2414/2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2025
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
MISCELLANEOUS FIRST APPEAL NO.2414/2022 (MV-D)
BETWEEN:
THE MANAGER
UNITED INDIA INSURANCE CO. LTD.
M C ROAD, MANDYA
DO-II, NO.2912
SRI VENKATESHWARA PLAZA
1ST MAIN, SARASWATHIPURAM
MYSORE - 570 001
REPRESENTED BY
THE REGIONAL MANAGER
6TH FLOOR, KRUSHI BHAVAN
NRUPATHUNGA ROAD
HUDSON CIRCLE
BENGALURU - 560 001 ...APPELLANT
Digitally
signed by (BY SMT.MANJULA N TEJASWI, ADVOCATE)
ROOPA R U
Location: AND:
High Court
of Karnataka 1. SMT.JAVANTHI (JAYANTHI)
W/O LATE SRIRAMA
AGED ABOUT 46 YEARS
2. SANDEEP KUMAR
S/O LATE SRIRAMA
AGED ABOUT 27 YEARS
3. BHARATH GOWDA
S/O LATE SRIRAMA
AGED ABOUT 23 YEARS
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MFA No. 2414/2022
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4. CHIKKEGOWDA
S/O LATE KEMPA @ YADACHA
AGED ABOUT 75 YEARS
(R4 DELETED AS PER THE ORDER OF THIS COURT
DATED 28.01.2025)
5. SMT SHANKARAMMA
W/O CHIKKEGOWDA
AGED ABOUT 70 YEARS
R1 to R5 R/O AT
BEVUKAL KOPPALU VILLAGE
HOBLI:DUDDA
MANDYA TALUKA, MANDYA
6. GALAPPA S/O RAMAIAH
MAJOR
R/AT MARIGOWDANAHALLI
RAMOHALLI POST
KENGERI HOBLI, BANGALORE
(OWNER OF QUALIS BG NO. KA-02-AA-1786)
7. STATE GOVERNMENT OF KARNATAKA
REP.BY ITS CHIEF SECRETARY
VIDHANA SOUDHA
AMBEDKAR VEEDI
BANGALORE - 560001
8. SUPERINTENDENT POLICE
MANDYA DISTRICT
MANDYA
9. INSPECTOR GENERAL OF POLICE
JALAPURI, MYSORE CITY
MYSORE - 570 001 ... RESPONDENTS
(BY SRI. SHARATH GOWDA G B, ADVOCATE FOR R1 TO R3 & R5;
R6 TO R9 ARE SERVED AND UNREPRESENTED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD DATED 01.04.2021 PASSED IN MVC NO.731/2016 ON
THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, C/C
II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MANDYA,
AWARDING TOTAL COMPENSATION OF RS.37,05,552/- WITH
INTEREST AT 8 PERCENT P.A. FROM THE DATE OF PETITION TILL
REALIZATION.
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MFA No. 2414/2022
HC-KAR
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN
RESERVED FOR JUDGMENT ON 16.04.2025, COMING ON FOR
PRONOUNCEMENT THIS DAY, K.S.MUDAGAL. J., DELIVERED THE
FOLLOWING:
CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
HON'BLE MR JUSTICE M.G.S. KAMAL
CAV JUDGMENT
(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)
Challenging the award in MVC No.731/2016 passed by II
Addl. Senior Civil Judge & JMFC, Mandya respondent No.2/the
Insurer in the said case has preferred this appeal.
2. Appellant was respondent No.2, respondent Nos.1
to 5 were claimants No.1 to 5, respondent No.6 was respondent
No.1 and respondent Nos.7 to 9 were respondents Nos.3 to 5 in
MVC No.731/2016 before the Tribunal. For the purpose of
convenience, the parties are referred to henceforth according to
their ranks before the Tribunal.
3. Claimant No.1 is the wife, claimant Nos.2 and 3 are
the children and claimant Nos.4 and 5 are the parents of
deceased Sriram a police constable. On 27.10.2015 at 10.30
a.m. Sriram and his colleague one Nanjunda were deployed on
the duty of tracing the accused in a criminal case. Therefore,
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they had engaged Toyota car bearing No.KA-02/AA 1786 from
K.M.Doddi and came to Malavalli. When the car was
proceeding near the land of one Anwar within the limits of
Kirugavalu Police station, driver of the car drove the same in
rash and negligent manner so as to endanger human life, lost
control over the car and hit the road side tree. Consequently
Sriram who was sitting by the side of the driver suffered
grievous injuries. He was shifted to Apollo Hospital, Mysuru.
On 04.11.2015 at 7.30 a.m. when he was under treatment, he
succumbed to the injuries.
4. At the relevant time, respondent Nos.1 and 2 were
the owner and Insurer of Toyota car bearing No.KA 02 AA
1786. Respondent Nos.3 to 5 were the employer, Supervisor
and immediate higher officer of the deceased.
5. Claimants filed MVC No.731/2016 initially against
respondent Nos.1 and 2 contending that deceased Sriram was
earning Rs.26,000/- per month and they were all depending on
his income. They contended that due to his untimely death
they have suffered emotional and financial loss and claimed
compensation of Rs.90,00,000/- from respondent Nos.1 and 2.
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6. Subsequently respondent Nos.3 to 5 were
impleaded in the case. Respondent No.1, 3 to 5 did not contest
the matter. Respondent No.2 alone contested the matter
denying actionable negligence on the part of driver of the car,
age, occupation and income of the deceased and its liability to
pay the compensation. Respondent No.2 further contended
that the policy issued by it was Act Policy only, therefore, the
risk of the victim was not covered. The Tribunal on framing
necessary issues recorded the evidence of the parties.
7. On behalf of the claimants, claimant No.1 was
examined as PW.1 and other inmate of the car/eye witness was
examined as PW2 and Exs.P1 to P9 were marked. On behalf of
respondent No.2 its Officer was examined RW.1 and Exs.R1 and
R2 were marked.
8. Tribunal on hearing the parties by the impugned
judgment and award held that the accident and consequent
death of Sriram occurred due to the actionable negligence on
the part of driver of Toyota Car No.KA 02 AA 1786. Tribunal
relying on Ex.P9 salary certificate assessed his salary at
Rs.27,350/- per month, his age at 46 years, added 25% to his
income by way of future prospects, deducted one third from his
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income towards his personal expenses, applied 13 multiplier
and awarded compensation of Rs.35,55,552/- on the head of
loss of dependency. Tribunal in all awarded compensation of
Rs.37,05,552/- on different heads as follows:
Sl. Heads Amount in
No. Rs.
1 Loss of Dependency 35,55,552/-
2 Loss of Consortium 40,000/-
3 Loss of Parental Consortium to 40,000/-
(Rs. 20,000/each)
4 Loss of Filial Consortium to 40,000/-
(Rs. 20,000/each)
5 Loss of estate 15,000/-
6 Funeral expenses 15,000/-
TOTAL 37,05,552/-
9. Tribunal rejected the contention of Insurer
regarding its liability. In that regard the Tribunal relied on the
judgment of the Hon'ble Supreme Court in Shamanna & ors vs.
The Divisional Manager, The Oriental Insurance Co. Ltd & ors1
and judgment of this Court in MFA No.30131/2010 and directed
the Insurer to pay the compensation amount with interest at
8% p.a. from the date of petition till its realization. The Insurer
has challenged the said award questioning only the liability of
the Insurer and rate of interest awarded.
(2018)9 SCC 650
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Submissions of Smt.Manjula N.Tejaswi, learned counsel for
the appellant :
10. The policy in question was Act policy. The issue is
referred to the larger bench of the Hon'ble Supreme Court in
Mohana Krishnan vs. K.Balasubramaniyam & ors2, therefore the
judgment in Shamanna's case cannot be applied. She submits
that if the Insurance policy is private car policy, the Insurer is
not liable to pay the compensation and the interest awarded is
on the higher side.
11. In support of her submissions, she relies on the
following judgments:
i) The Branch Manager, New India Assurance Co.Ltd vs.
Mahadev Pandurang Patil and another3
ii) National Insurance Co. Ltd vs. Balakrishnan & anr4
iii) United India Insurance Co. Ltd vs. Shravankumar and
others5
Submissions of Sri G.B.Sharath Gowda, learned counsel for
the claimants:
12. Though the matter is referred to the larger bench,
there is no order that pending matters shall not be decided.
The Hon'ble Supreme Court in the matter under reference itself
2 Spl.Leave to Appeal No.3433/2020
3 ILR 2012 KAR 1841
4 LAWS(SC) 2012-11-20
5 2023 ACJ 2569
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has ordered for release of the amount in deposit. Therefore,
there is no bar to proceed with the matter. The policy Ex.R1
clearly shows that the Insurer has recovered premium for the
personal accident of the owner. Since the victim was permitted
by the owner, he steps into the shoes of the owner and is
covered under the risk of personal accident. The clause
regarding limits of liability, shows that the risk of occupant of
the car was not excluded. RW.1 has admitted the collection of
additional premium and the policy covered all risk except own
damage claim. RW.1 himself has admitted that the victim was
public servant on duty and Government servants come under
the definition of third party. The rate of interest awarded is
just one and seeks dismissal of the appeal.
13. On considering the submissions of both side and the
material on record, the questions that arise for consideration of
the Court are:
i) Whether the Tribunal was justified in fastening the
liability against the Insurer ?
ii) Whether the Tribunal was justified in awarding
interest at 8% p.a.
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Reg. Liability:
14. In this case Insurer is not challenging the quantum
of compensation or the finding of the Tribunal on the issue of
negligence. Only the issue of Insurer's liability under the
contract is in question. Insurer contended that the policy
issued was only Act policy, therefore, that does not involve the
risk of the occupant. The burden of proving its defence that
the victim/occupant of the car in question was not a third party
and his risk was not covered, was on the Insurer. To prove its
defence the Insurer relied on Ex.R.1 the copy of the policy and
the evidence of RW.1/Administrative Officer of respondent
No.2/the Insurer.
15. It is not disputed that at the time of the accident
the policy Ex.R.1 was in force. Ex.R1 is titled as "private car
liability only policy". Ex.R.1 shows that respondent No.2 has
collected premium of Rs.4,931/- towards basic third party risk,
Rs.100/- towards compulsory Personal Accident for owner
driver, Rs.50/- towards LL to paid driver IMT 28 thereby the
policy covered the risk of third party as well as personal
accident of the owner. Section 145(g) of the Motor Vehicles
Act, 1988 defines the third party as follows:
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"(g) third party includes the Government."
There is no dispute that at the time of the accident the victim/a
Government servant was traveling in the insured car in
discharge of his official duty. Though RW.1 in his chief
examination contended that the policy did not cover the risk of
the victims who were traveling in the car, in his cross
examination unequivocally admits that as per the policy
Government is the third party and the Government servants
are covered under the term Government.
16. RW.1 also admitted that the policy covered all
claims except the OD (own damage) claims. He further admits
that OD claims in the policy cover the damage to the vehicle
only. He admits that they have received additional premium.
But, he tried to justify saying that additional premium for
owner applies only if the owner was the driver. Admittedly at
the time of the accident, the victim was a public/Government
servant and he was traveling in the car to perform his public
duty. Therefore, as per the admission of RW.1 himself he
becomes a third party and for third party risk, the premium
was collected. Therefore, none of the judgments in Mahadev
and Shravan Kumar's case and other judgments relied by the
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Insurer are applicable to the facts of the present case. It is
also material to note that though the Insurer is fighting the
case and only challenged its liability, since 10 years, it did not
even produce the entire insurance policy under Ex.R.1 which is
copy of the policy. In Ex.R1/the copy of the policy, page No.3
of the document is missing. There is no explanation for such
omission. When the document is incomplete, the Insurer
cannot rely on the part which it claims to have favourable
clause in it.
17. The other contention of the learned counsel for the
appellant/Insurer regarding the liability of the Insurer in Act
policies towards third party/occupant is that Mohana Krishnan's
case is referred to larger bench of the Hon'ble Supreme Court
which is pending consideration. However, there is no interim
stay for disposal of the matters pending before the other
Courts. Further the Hon'ble Supreme Court by order dated
11.09.2020 granted liberty to the claimant to withdraw the
amount. In this matter the accident occurred in the year 2015,
since 10 years the matter is pending and the claimants who are
the widow, children and aged parents of the deceased have not
received any compensation so far. Therefore, there are no
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grounds to defer the matter unduly. Thus the finding of the
Tribunal that the Insurer is liable to compensate damages does
not warrant any interference.
Reg. Interest:
18. Under the impugned award the Tribunal has
granted interest at 8% per annum on the compensation
amount. It is no doubt true that the Tribunal has not assigned
any reasons for awarding interest at 8% p.a. However, Section
34 of CPC empowers the Court to award interest at such rate as
the Court deems reasonable to be paid on the principal sum
adjudged from the date of the suit till the date of decree with
further interest not exceeding 6% p.a. In the present case the
Insurer without producing the complete copy of the Insurance
policy and despite the unequivocal admissions of RW.1 that the
deceased being the government servant was also covered
under the third party, dragged the claimants to this appeal on
the ground of its liability and kept this matter pending for about
3 years. The appellant did not even permit the claimants to
withdraw the amount in deposit. Due to such conduct of the
appellant, the claimants have suffered for all these years
without receiving a penny towards compensation. Therefore,
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this Court does not find any ground to interfere with the rate of
interest awarded by the Tribunal payable from the date of
petition till the date of this judgment. In view of Section 34 of
CPC for delay, if any, in depositing compensation, the interest
is payable at the rate of 6% p.a. Hence the following:
ORDER
The appeal is dismissed with costs throughout.
Transmit the amount in deposit and the TCRs to the
Tribunal forthwith.
Sd/-
(K.S.MUDAGAL)
JUDGE
Sd/-
(M.G.S. KAMAL)
JUDGE
AKC
