Partly allowed

Smt T P Manjula v. Sri Venkatesh

Karnataka HC2 Nov 2020MFA/477/2017

Case brief

AI extract

What is this about?

A Division Bench of the Karnataka High Court modified the award in a motor accident case where the deceased was a police officer. The court increased the driver's negligence to 70% against 30% for the deceased and enhanced conventional heads to Rs. 1.9 lakh. The claimants were awarded Rs. 31,31,800 after applying contributory negligence.

What did the court decide?

Compensation fixed at Rs. 31,31,800 after applying 30% contributory negligence; interest reduced to 6% p.a.

Smt T P Manjula Vs Sri Venkatesh — Insurance | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 02^ND DAY OF NOVEMBER, 2020

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PRESENT

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THE HON'BLE MRS. JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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MFA.NO.8332 OF 2016(MV-D) C/W MFA.NO.477 OF 2017(MV-D)

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IN MFA.NO.8332 OF 2016

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BETWEEN:

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THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO. LTD., III PARTY HUBB, MAHALAKSHMI COMPLEX M.G. ROAD

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BANGALORE-560 001 REGIONAL OFFICE, III PARTY HUB MAHALAXMI CHAMBERS M.G. ROAD BANGALORE-560 001

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BY ITS MANAGER

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....APPELLANT

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(BY SRI. O. MAHESH, ADVOCATE)

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AND:

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1 . T. P. MANJULA AGED ABOUT 43 YEARS W/O. LATE K.M. SUBRAMANYA

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2 . KUM. K.S. KAVYA AGED ABOUT 24 YEARS D/O. LATE K.M. SUBRAMANYA

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3 . MASTER K.S. SUMAN AGED ABOUT 21 YEARS D/O. LATE K.M. SUBRAMANYA

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4 . SMT. MUNIVENKATAMMA AGED ABOUT 80 YEARS W/O. LATE CHIKKA MUNIHUCHAIAH

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RESPONDENTS 1 TO 3 R/AT NO.5, 4TH BLOCK KAVERI SANKEERNA ADUGODI POLICE QUARTERS BANGALORE - 560 023

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RESPONDENT NO.4 R/AT KAKOLU VILLAGE HESARAGHATTA HOBLI BANGALORE NORTH TALUK BANGALORE-560 088

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5 . SRI. VENKATESH MAJOR, S/O. B. THIMMAIAH CHAMUNDESHWARI NILAYA CHIKKABANAVARA HESARAGHATTA MAIN ROAD BANGALORE-560 088

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….RESPONDENTS

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(BY SRI. SRIPAD .V SHASTRI, ADVOCATE FOR R1 TO R4

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V/O DATED 31.10.2018, NOTICE TO R5 IS DEEMED TO BE COMPLETED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:16.09.2016 PASSED IN MVC NO.3829/2012 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, COURT OF SMALL CAUSES, BENGALURU, AWARDING A COMPENSATION OF RS.33,15,000/- WITH INTEREST @ 9% P.A FROM THE DATE OF THE PETITION TILL THE DATE OF DEPOSIT.

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IN MFA.NO.477 OF 2017

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BETWEEN:

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1 . SMT. T P MANJULA W/O LATE K.M.SUBRAMANYA AGED ABOUT 44 YEARS,

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2 . KUM.K.S.KAVYA D/O LATE K.M.SUBRMANYA AGED ABOUT 25 YEARS

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3 . MASTER K.S.SUMAN S/O LATE K.M.SUBRAMANYA AGED ABOUT 22 YEARS

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4 . SMT.MUNIVENKATAMMA W/O LATE CHIKKA MUNIHUCHAIAH AGED ABOUT 82 YEARS

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APPELLANT NO.1 TO 3 ARE NO.5, 4TH BLOCK, KAVERI SANKEERNA ADUGUDI POLICE QUARTERS BANGALORE

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APPELLANT NO.4 IS R/AT KOKOLU VILLAGE

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HESARAGHATTA HOBLI BANGALORE NORTH TALUK BANGALORE-560 088 (BY SRI. SRIPAD .V SJASTRO, ADVOCATE)

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....APPELLANTS

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AND:

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1 . SRI VENKATESH MAJOR S/O B.THIMMAIAH CHAMUNDESHWARI NILAYA CHIKKABANAVARA HESARAGHATTA MAIN ROAD BANGALORE-560 088 2 . THE DIVISIONAL MANAGER M/S. NEW INDIA ASSURANCE III PARTY HUBB MAHALAKSHMI COMPLEX M.G.ROAD BANGALORE-560 001

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….RESPONDENTS

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(BY SRI. O. MAHESH, ADVOCATE FOR R2, NOTICE TO R1 IS SERVED AND UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:16.09.2016 PASSED IN MVC NO.3829/2012 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENCHANCEMENT OF COMPENSATION.

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THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The claimant as well as the Insurance company have filed appeals challenging the judgment and award dated 16.9.2016 passed in MVC.No.3829/2012 by the III Additional Senior Civil Judge and Motor Accident Claims Tribunal, Bengaluru. The insurance company has preferred appeal in MFA.8332/2016 questioning the liability, negligence as well as the quantum whereas the claimants have also preferred the appeal in MFA.No.477/2017 questioning the negligence as well as quantum.

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For the sake of convenience, the parties are referred as per their rank before the Tribunal.

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3. The facts of the case are as under:

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The case of the claimants is that the husband of first

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claimant namely K.M. Subramanya, was proceeding in Innova car bearing Regn.No.KA-04-MC-8094 on 23.5.2012 from Rajanukunte towards Kakolu village. At about 4.15

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p.m. when he reached the Dibbur gate, the driver of the offending Canter goods vehicle bearing Regn.No.KA-42348 came in a rash and negligent manner and dashed against the car. The claimants further contended that on account of collision, the said Subramanya sustained grievous injuries and succumbed to the injuries on the spot. They further contended that the deceased was hale and healthy and was working as Police Inspector at Doddaballar and drawing salary of Rs.28,974/- per month. They were totally dependant on the income of the deceased and having lost the bread earner, they filed claim petition claiming compensation of Rs.1,50,00,000/with interest and cost.

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On receipt of notice, the first respondent-owner of the offending lorry contested the proceedings by filing the written statement. The first respondent specifically contended that the accident occurred on account of sole negligence on the part of the deceased himself. The first respondent further contended in the written statement that

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the vehicle is duly insured with the second respondent and the policy was in force as on the date of the accident and as such the second respondent being insurer is liable to indemnify and pay compensation to the claimants, if any, granted by the Tribunal.

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The second respondent-Insurance Company on receipt of notice contested the proceedings and stoutly denied the entire averments made in the claim petition. They took the plea that the petition is bad for non-joinder of necessary parties, as the owner and insurer of Innova car are not arrayed as parties. As on the date of the accident, the driver of the offending lorry did not possess effective driving licence. The Insurance company also contended that the offending lorry did not possess valid fitness certificate to ply on the road and as such the insurance company is not liable to indemnify the first respondent. On these set of defence, the second respondent sought for dismissal of the claim petition.

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Based on the pleadings, the Tribunal framed the following issues:

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1. Whether the petitioners prove that the Motor vehicle's accident which occurred on 23.05.2012 at about 4.15 p.m. near Dibbur gate, Rajanukunte Madure Road, Bangalore North Taluk was due to rash and negligent driving of Canter Goods vehicle bearing Reg.No.KA-42-348 by its driver and in the said accident, the deceased K.M.

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Subramanya succumbed to the injuries?

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2. Whether the petitioners are entitled for compensation? If so, how much and from whom?

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3. What order or award?

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The claimants in support of their contentions

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examined the first claimant as P.W.1 and examined two independent witnesses as P.Ws.2 and 3 and in support of ocular evidence produced documentary evidence vide Exs.P1 to P23. The first respondent-owner examined himself as R.W.1 and got marked Exs.R2 to R7. The second respondent-Insurance Company got one of its official examined as R.W.2 and driver of the alleged canter

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as R.W.3 and the Superintendent of RTO Office, Yelahanka, as R.W.4 and got marked Exs.R1 and R8 to 29.

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The Tribunal while examining Issue No.1 has meticulously adverted to the documentary evidence placed on record by both the parties. The Tribunal having examined Exs.P3 and 4 which is the spot panchanama and hand sketch and has come to the conclusion that the accident has occurred on the middle of the road and the spot where the accident has taken place is a straight road. Further taking note of the MVA report as per Ex.P5, the Tribunal has come to the conclusion that both the deceased as well as the driver of the offending vehicle contributed to the accident and has proceeded to attribute the negligence on the deceased and the driver of the offending vehicle in the ratio of 25:75.

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The Tribunal while determining compensation has relied on Exs.P10 and P18 and has assessed the income of the deceased at Rs.28,975/- and after deducting Rs.200/towards P.F., the salary of the deceased is taken at

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Rs.28,725/-. Thus, the annual income of the deceased is assessed at Rs.3,45,300/-. By deducting Rs.6,695/towards tax, the income of the deceased is assessed at Rs.3,38,305/- per annum. Further deducting 1/4^th towards personal expenses, by adding 30% towards future prospects and applying the multiplier of 13, the Tribunal has awarded Rs.42,84,000/- under the head of loss of dependency. Under conventional heads, a sum of Rs.1,35,000/- is awarded and thus, in all, the Tribunal has awarded a sum of Rs.44,19,000/- with interest at the rate of 9% per annum from the date of petition till its realization. Being aggrieved by the same, both the claimants as well as the Insurance Company have preferred these appeals.

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Heard the learned counsel for the claimants as well as the Insurance company and perused the pleadings of the parties and reassessed the entire oral and documentary evidence on record.

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Insofar as the question regarding negligence is

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concerned, the second respondent-Insurance Company is seriously disputing the negligence attributed by the Tribunal on the driver of the offending lorry whereas the claimants are also seriously disputing the negligence attributed to the deceased. On meticulous examination of the spot sketch, it is clearly evident that it is the head on collision on the middle of the road. Admittedly, the spot where the accident has taken place is a straight road and both the drivers had no problem in sighting the vehicles coming from the opposite direction. The deceased being Police Officer was also expected to follow the traffic rules. On meticulous examination of the spot sketch as per Ex.P4, it is forthcoming that the right wheel of the offending lorry has crossed the notional median whereas the Innova car which was driven by the deceased is found on the middle of the road. The deceased as well as the offending lorry had enough space on their respective sides to avoid accident. Since, the offending lorry is found beyond the notional median, we are of the view that the

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negligence needs to be re-fixed at 70% on the driver of the offending lorry. The deceased was driving the Innova car was also at fault. The Innova car is also found lying in the middle of the road and the impact of collision is on the middle of the road. In that view of the matter, negligence needs to be re-fixed on the deceased at 30%..

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For the reasons stated supra, the negligence arrived at by the Tribunal is slightly modified by fixing it in the ratio of 70:30 as against 75:25 arrived at by the Tribunal.

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Insofar as quantum is concerned, we find that

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the Tribunal has taken note of salary certificate and having regard to the age of the deceased has rightly added 30% of the income of the deceased towards future prospects. In that view of the matter, the compensation determined under the head of loss of dependency is in accordance with law and based on material evidence on record and the same does not warrant interference. There is neither scope for reduction as contended by the Insurance

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Company or enhancement as contended by the claimants. On the conventional heads, the Tribunal has awarded 1,35,000/-. We find that the amount awarded under the conventional heads is on the lower side. By relying on the dictum laid down by the Apex Court in Pranay Sethi’s case [2017 ACJ 2700] and 2020 SCC ONLINE SC 720 [NEW INDIA ASSURANCE COMPANY LIMITED V/S. SOMWATI AND OTHERS] we would award Rs.1,90,000/- under conventional heads i.e. Rs.40,000/- each to claimants 1 to 4 towards spousal consortium, parental consortium and filial consortium respectively and Rs.30,000/- towards loss of estate and funeral expenses. Hence, compensation redetermined by this Court comes to Rs.44,74,000/- as against Rs.44,19,000/- awarded by the Tribunal. Out of the said amount, 30% is deducted towards the contributory negligence attributed on the deceased, which works out to Rs.44,74,000x30/100=Rs.31,31,800/-. Hence, the claimants are held entitled to total compensation of Rs.31,31,800/- as against Rs.33,15,000/-

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awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till its realization.

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Insofar as liability is concerned, the counsel for

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the insurance company has vehemently argued that the vehicle involved in the accident did not possess fitness certificate and hence, the Insurance Company is not liable. However, on meticulous examination of the provisions of Sections 149(2)(a) of M.V.Act, 1988, we would find that the absence of fitness certificate is not a defence available under the said Section so as to exonerate the Insurance Company from satisfying the compensation. Though R.W.4 has admitted that the vehicle did not possess fitness certificate, absence of fitness certificate not being a ground available under Section 149 (2)(a) of the Act, the question of pay and recovery cannot be ordered. The Division Bench of this Court in MFA.No.6621/2006 and connected matter disposed of on 18.09.2007 has held that absence of fitness certificate cannot a ground to deny compensation to claimants. Admittedly, the policy of the offending vehicle

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involved in the accident was in force. If the Insurance Company has issued a policy by receiving premium without verifying as to whether the owner of the vehicle has secured fitness certificate or not, the Insurance Company is estopped from raising defence in that regard. Even otherwise, the dispute in regard to absence of fitness certificate cannot be urged as a ground to avoid the liability and the same is not at all contemplated under Section 149(2)(a) of the M.V.Act, 1988. Accordingly, the contention of the Insurance Company in this regard is negatived.

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9. Hence, the following:

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ORDER

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i) The appeal filed by the claimants in MFA.No.477/2017 is dismissed and the appeal filed by the Insurance Company in MFA.No.8332/2016 is partly allowed.

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ii) The total compensation awarded by the Tribunal is modified and enhanced to

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Rs.44,74,000/as against Rs.44,19,000/awarded by the Tribunal. However, in view of 30% of contributory negligence attributed on the deceased, the claimants are entitled for compensation of Rs.31,31,800/- as against Rs.33,15,000/- with interest at the rate of 6% per annum from the date of the claim petition till its realization.

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iii) The insurance company shall deposit the reassessed total compensation determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.

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