Disposed

Hdfc Ergo General Insurance Co. Ltd., v. Sri Hanumanthappa

Karnataka HC16 Jun 2022MFA/1205/2021

Case brief

AI extract

What is this about?

The High Court disposed of cross appeals against an award by the Motor Accident Claims Tribunal, modifying the compensation amount to Rs. 6,59,800/- after determining 50% contributory negligence on the deceased's part.

What did the court decide?

Compensation awarded to claimants is modified to Rs. 6,59,800/-; Insurance Company directed to deposit amount with interest.

Hdfc Ergo General Insurance Co. Ltd., Vs Sri… — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JUNE 2022

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BEFORE

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THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD

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MFA No.1205 OF 2021(MV) C/W MFA No.1803 OF 2021(MV)

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IN MFA 1205/2021 BETWEEN:

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HDFC ERGO GENERAL INSURANCE CO.LTD., BY ITS BRANCH MANAGER 1^ST FLOOR, H M GENEVA HOUSE NO.14 CUNNINGHAM ROAD BENGALURU-560052. REP BY ITS SENIOR MANAGER LEGAL NO.25/1 2ND FLOOR BUILDING NO.2 SHANKARNARAYANA BUILDING M G ROAD,BANGALORE-560001.

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...APPELLANT

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(BY SRI.D VIJAYAKUMAR, ADV.)

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AND

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1 . SRI HANUMANTHAPPA S/O SUNKAPPA AGED ABOUT 63 YEARS.

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2 . SMT NARASAMMA W/O HANUMANTHAPPA AGED ABOUT 45 YEARS.

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3 . JHANSI RANI D/O HANUMANTHAPPA AGED ABOUT 27 YEARS

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ALL ARE R/AT PUJAPPA BUILDING 8^TH CROSS, PEENYA 7^TH STAGE BENGALURU-560058.

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4 . M/S SPT SPORTS MANAGEMENT P. LTD. REP. BY ITS MANAGER AMIT K SARAN S/O A B SARAN R/AT NO.10 SPORTS HOUSE 1^ST MAIN, 1^ST BLOCK KORAMANGALA BENGALURU-560034.

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…RESPONDENTS

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(BY. SRI.SPOORTHY HEGDE N., ADV. FOR R1 TO R3: SRI. T.H. NARAYANA, ADV. FOR R4)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:01.12.2020, PASSED IN MVC NO.6464/2013, ON THE FILE OF THE XIII-ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER OF MACT, BENGALURU (SCCH-15), AWARDING COMPENSATION OF RS.7,12,040/- WITH INTEREST AT THE RATE OF 6 PERCENT P.A., FROM THE DATE OF THE CLAIM PETITION TILL ITS REALIZATION. (SINCE 30 PERCENT CONTRIBUTORY NEGLIGENCE OF THE DECEASED HAS

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BEEN DEDUCTED OUT OF TOTAL COMPENSATION OF RS.10,17,200/-).

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IN MFA 1803/2021 BETWEEN:

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1 . SRI HANUMANTHAPPA S/O SUNKAPPA AGED ABOUT 63 YEARS.

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2 . SMT NARASAMMA W/O HANUMANTHAPPA AGED ABOUT 45 YEARS.

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3 . JHANSI RANI D/O HANUMANTHAPPA AGED ABOUT 27 YEARS

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ALL ARE R/AT PUJAPPA BUILDING 8^TH CROSS, PEENYA 7^TH STAGE BENGALURU-560058.

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...APPELLANTS

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(BY SRI.SPOORTHY HEGDE N., ADV.)

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AND

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HDFC ERGO GENERAL INSURANCE CO.LTD., BY ITS BRANCH MANAGER 1^ST FLOOR, H M GENEVA HOUSE NO.14 CUNNINGHAM ROAD BENGALURU-560052.

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2 . M/S SPT. SPORTS MANAGEMENT P. LTD.

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REP. BY ITS MANAGER AMIT K SARAN S/O A B SARAN R/AT NO.10 SPORTS HOUSE 1^ST MAIN, 1^ST BLOCK KORAMANGALA BENGALURU-560034.

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…RESPONDENTS

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(BY. SRI.D.VIJAYA KUMAR, ADV. FOR R1: SRI. T.H. NARAYANA, ADV. FOR R2)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:01.12.2020, PASSED IN MVC NO.6464/2013, ON THE FILE OF THE XIII-ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER OF MACT, BENGALURU (SCCH-15), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE MFAs COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA 1205/2021 is filed by the Insurance

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Company and MFA 1803/2021 is filed by the claimants under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) being aggrieved by the judgment dated 1.12.2020 passed

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by the Motor Accident Claims Tribunal, Bengaluru in MVC 6464/2013.

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Facts giving rise to the filing of the appeals

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briefly stated are that on 6.6.2013 at about 9.00 a.m., when the deceased Narasimhamurthy being the rider of motorcycle bearing registration No.KA-04-HK-7956 was proceeding towards Bengaluru after attending relative’s marriage on the left side of the road on NH7, when he reached near Sree Sai Priya Restaurant, Bagepalli Taluk, Chikkaballapur District, at that time, a car bearing registration No.KA-01-ME-5807 which was being driven in a rash and negligent manner, dashed against the motorcycle of the deceased from behind. As a result of the aforesaid accident, the deceased sustained grievous injuries and he was shifted to M.S.Ramaiah hospital and succumbed to the injuries on 14.6.2013.

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3. The claimants filed a petition under Section

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166 of the Act seeking compensation for the death of the deceased along with interest.

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On service of summons, the respondent No.1 appeared through counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. The mandatory provisions of Section 134(c) and 158(6) of MV Act are not complied. It was further pleaded that the claim petition is bad for non-joinder of necessary parties. The deceased was not holding valid driving licence as on the date of accident. The liability is subject to terms and conditions of the policy. Hence, he sought for dismissal of the petition.

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The respondent No.2 appeared through counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that

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the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident was due to the rash and negligent riding of the motorcycle by the deceased himself. The age, occupation and income of the deceased are denied. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant. Hence, he sought for dismissal of the petition.

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5. On the basis of the pleadings of the parties,

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the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.2 as PW-1, Mr.Umashankar, Manager of the deceased as PW-2, Mr.Chandra.N., eyewitness to the accident as PW-3 and Mr.T.C.Shivakumar, Investigating Officer as PW4 and got exhibited documents namely Ex.P1 to Ex.P8. On behalf of respondents, two witnesses were examined as RWs-1 and 2 and got exhibited

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documents namely Ex.R1 to Ex.R4. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of contributory negligence. The Tribunal further held that after deducting 30% negligence on the part of the deceased, the claimants are entitled to a total compensation of Rs.712,040/- along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit the said compensation amount along with interest. Being aggrieved, these appeals have been filed.

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Mr.D.Vijayakumar, learned counsel for the Insurance Company has raised the following contentions:

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Re: Negligence

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The accident occurred due to sole negligence of the deceased himself. He was riding the motorcycle on the national highway without following the traffic rules

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and immediately he has taken U-Turn to go to the other side of the highway to the petrol bunk to fill petrol. Hence, the accident has occurred. He further contended that the car was proceeding from Bangalore to Hyderabad. The motorcycle was coming from Hyderabad to Bangalore. In a junction, the deceased/rider of the motorcycle took U-turn and suddenly entered the other side of the highway to cross the road to go to the petrol bunk to fill the petrol. When the deceased suddenly took U-turn and entered the other side of the highway, near the divider, even though the driver of the car, who was proceeding on the highway has made efforts to control the vehicle, since the deceased entered the highway suddenly, he tried to control the car, but he could not control and dashed the motorcycle. It is very clear from the sketch that the deceased entered to the main road, took U-turn in the road junction and reached 10

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feet from the divider. The Tribunal failed to consider this aspect of the matter. He further contended that even RW-1, who is the owner of the car was an inmate of the car and he has categorically stated that the deceased himself was negligent in causing the accident. He has not been cross examined by the claimants. Even when the matter was remanded back to the Tribunal for fresh consideration giving opportunity to the claimants to cross examine RW-1, the claimants have not chosen to cross examine RW1. Therefore, the Tribunal has not properly considered the evidence of RW-1. He further contended that it is very clear from Rule 12 of the Rules of the Road Regulations, 1989 that ‘ no driver shall take a 'U' turn where 'U' turn is specially prohibited and on busy traffic road. If a 'U' turn is allowed the driver shall show signal by hand as for a right turn, watch in the rear view mirror and turn when safe to do so’. In the

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case on hand, without observing the car proceeding on the national highway, the deceased took U turn suddenly. Hence, the deceased himself is negligent in causing the accident. The police after investigation have filed charge sheet against the deceased. There is no negligence on the part of the driver of the car. He further contended that it is not in dispute that the deceased was taking U-turn and entered the other side of the highway and it is not in dispute that the deceased took U turn to go to the petrol bunk on the either side of the highway to fill the petrol. It is admitted fact that he was crossing the road. The Tribunal has not considered this aspect of the matter. Hence, the Tribunal has erred in holding that the driver of the car has contributed to the accident to the

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extent of 70%.

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Re: Quantum of compensation:

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Firstly, the claimants claim that the deceased was earning income of Rs.16,000/- per month and Rs.3,000/- as Petrol allowances by working as plumber in the company and produced Ex.P-7 and Authorization letter Ex.P-8 and examined the manager of the company as PW-2. They have not produced any document to show that he was receiving the salary of Rs.16,000/- p.m. and also did not produce any bank statement to support the same. In the absence of proof of income, the Tribunal has rightly assessed the notional income at Rs.6,000/- p.m.

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Secondly, the age and avocation of the deceased, the overall compensation awarded by the Tribunal is on the higher side. Hence, he prays for allowing the appeal filed by the Insurance Company.

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7. On the other hand, the learned counsel for

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the claimants has raised the following countercontentions:

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Re: Negligence

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The accident occurred due to rash and negligent driving of the car by its driver. The driver of the car was driving the same at a high speed and in a rash and negligent manner. Even though he was approaching the divider, he has not made any effort to slow down the vehicle. He contended that even as per Rule 8 of the Rules of the Road Regulations, 1989, ‘ Caution at road junction: the driver of a motor vehicle shall slow down when approaching at a road intersection, a road junction, pedestrian crossing or a road corner, and shall not enter any such intersection, junction or crossing until he has become aware that he may do so without endangering the safety of persons thereon’. The driver of the car has not

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slowed down the vehicle. The same is evident from the sketch wherein it discloses that there is tyre mark of the car to the distance of 40 feet. Even as per the evidence of PW-4, Investigating Officer, wherein he has admitted that there is tyre mark of the car from the distance of 40 feet. Therefore, it is clear that the driver of the car was proceeding at a high speed and he has not made any effort to avoid the accident. The width of the road is 60 feet and the accident occurred just 10 feet away from the divider and there was 50 feet space available for the car towards left side of the road. If the driver of the car had taken caution, he could have avoided the accident by taking the vehicle to the left side of the road. The driver of the car was not in a position to control the vehicle, since he was proceeding at a high speed. The driver of the car is alone negligent in causing the accident. He further contended that the driver of the car has not been

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examined. The Tribunal has not properly appreciated the evidence on record and has wrongly held that the deceased has contributed to the accident to the extent of 30%.

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Re: Quantum of compensation

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Firstly, the claimants claim that the deceased was working as a plumber in the company and earning Rs.16,000/- per month and Rs.3000/- as Petrol allowances and produced experience certificate Ex.P-7 and Authorization letter Ex.P-8 and examined the manager of the company. But the Tribunal is not justified in taking the monthly income of the deceased as merely as Rs.6,000/-.

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Secondly, as per the law laid down by the Hon’ble Supreme Court in the case of NATIONAL

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INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], in case the deceased was self-employed or on a fixed salary, an addition of

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40% of the established income towards ‘future prospects’ should be the warrant where the deceased was below the age of 40 years. The same has been rightly considered by the Tribunal.

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Thirdly, as per the judgment of the Hon’ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. –V- NANU RAM [2018 ACJ 2782] , claimant No.3 is also entitled for compensation of Rs.40,000/- under the head of ‘loss of love and affection’. Hence, he prays for allowing the appeal filed by the claimant.

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The learned counsel for the owner of the car has adopted the contentions of the learned counsel for the Insurance Company. He contended that the car was insured with Insurance Company and if this court holds that the insured is liable to pay compensation, then the Insurance Company shall indemnify the insured.

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9. Heard the learned counsel for the parties

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and perused the records.

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RE: NEGLIGENCE

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The case of the claimants is that on 6.6.2013 at about 9.00 a.m., when the deceased Narasimhamurthy being the rider of motorcycle bearing registration No.KA-04-HK-7956 was proceeding towards Bengaluru after attending relative marriage on the left side of the road on NH-7, reached near Sree Sai Priya Restaurant, Bagepalli Taluk, Chikkaballapur District, at that time, a car bearing registration No.KA-01-ME-5807 which was being driven in a rash and negligent manner, dashed against the motorcycle of the deceased from behind. As a result of the aforesaid accident, the deceased sustained grievous injuries and he was shifted to M.S.Ramaiah hospital and succumbed to the injuries on 14.6.2013.

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To prove the case, the claimants have examined claimant No.2 as PW-1, Mr.Umashankar, Manager of the company as PW-2, Mr.N.Chandra, eye witness to the accident as PW-3 and Mr.T.C.Shivakumar, Investigating Officer as PW-4.

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PW-1 in her evidence has reiterated the averments made in the claim petition. PW-3, Mr.Chandra, eye witness to the accident in his evidence has deposed that on 6.6.2013, when the deceased Narasimhamurthy after attending relative’s marriage was proceeding on another motorcycle towards Sunkalamma Temple to offer pooja along with deceased in a separate motorcycle, when he reached near Sri Sai Priya restaurant on NH-17 road, due to shortage of fuel, the deceased took U turn and he stood at the edge of the divider in his separate motorcycle and when the deceased was taking U Turn, suddenly the car bearing registration No.KA-01-ME-

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5807 came from Bangalore side in a rash and negligent manner and dashed to the motorcycle, due to which, he fell down and sustained injuries and succumbed to injuries. It is very clear from evidence of PW-3 that he has admitted that he was standing on the side of the spot of accident and deceased took U- Turn to go to the petrol bunk situated on the other side of the highway and car was coming from Bangalore side. He denied that the accident took place on account of rash and negligent riding of the motorcycle by the deceased. The have also examined PW-4, Mr.T.C.Shivakumar, Investigating Officer, who has stated in his evidence that he has received the complaint on 6.6.2013 and registered the case against the driver of the car. Later they conducted spot mahazar and seized both the vehicles involved in the accident and requested the RTO to examine both the vehicles and to give report and he completed the

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arrest procedure and the accused driver Vishwas Saran was enlarged on bail. PW-4 has admitted that as per the sketch, on the spot of the accident, there is tyre mark to the distance of 40 feet, which reflects the speed of the car. After thorough investigation, the police have filed charge sheet against the deceased.

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The Insurance Company has examined the owner of the car as RW-2 and he was the inmate of the car at the time of the accident. He has denied that the accident occurred due to rash and negligent driving of the car by its driver. He has deposed that the driver of the car was holding valid driving licence as on the date of accident. The claimants have not cross-examined RW-2.

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In support of oral evidence, the claimants have produced Ex.P-1 to 8. As per Ex.P-3, spot sketch, the width of the road is 60 feet and the accident occurred just 10 feet away from the divider and there was 50

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feet space available on the left side of the road. It is not the case of respondent that there was so many vehicles moving on the left side of the road and there is no chance for taking the car towards the left side. It is very clear from the sketch that the deceased stood at the edge of the divider and was taking U Turn and was crossing the road to reach the petrol bunk situated on the other side of the road. The accident occurred 10 feet from the edge of the divider.

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Rule 8 of the Rules of the Road Regulations 1989 reads as follows:

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Caution at road junction: The driver of a motor vehicle shall slow down when approaching at a road intersection, a road junc-tion, pedestrian crossing or a road corner, and shall not enter any such intersection, junction or crossing until he has become aware that he may do so without endangering the safety of persons thereon.

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It is very clear from the above Rule that the driver of the motorvehicle shall slow down the vehicle when he is approaching at a road intersection, junction, road corner.

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Rule 12 of the Rules of the Road Regulations

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1989 reads as follows:

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Taking U' turn. No driver shall take a U' turn where U' turn is specially prohibited and on busy traffic road. If a U' turn is allowed the driver shall show signal by hand as for a right turn, watch in the rear view mirror and turn when safe to do so.

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It is very clear from the above said rule that if a driver is allowed to take U turn, he has to show signal by hand and watch on both sides of the road and cautiously take turn.

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It is very clear from the evidence of the parties and spot mahazar, spot sketch, IMV report,

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the driver of the car was proceeding at a high speed and in a rash and negligent manner and has not made any effort to slow down the car. Even the deceased was taking U turn without following the rules and vehicles proceedings on National Highway and negligently took U-turn to go to the other side of the road to fill petrol in the petrol bunk.

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From the above discussions and considering the oral evidences of the parties and materials available on record such as spot sketch, mahazar and IMV report, I am of the considered opinion that both the driver of the car as well as deceased have equally contributed to the accident to the extent of 50% each.

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RE: QUANTUM OF COMPENSATION

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The claimants claim that the deceased was working as a plumber in a company and earning Rs.16,000/- per month and Rs.3,000/- as Petrol allowances and produced experience certificate Ex.P-7

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and Authorization letter Ex.P-8 and examined the manager of the company. They have not produced any document to show that he was receiving the salary of Rs.16,000/- p.m. and did not produce any supporting document such as bank statement. In the absence of proof of income, the notional income has to be assessed. As per the guidelines issued by the Karnataka State Legal Services Authority, for the accident taken place in the year 2013, the notional income of the deceased has to be taken at Rs.8,000/p.m.

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To the aforesaid income, 40% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in ‘PRANAY SETHI’ (supra). Thus, the monthly income comes to Rs.11,200/-. Since the deceased was a bachelor, it is appropriate to deduct 50% of the income of the deceased towards personal expenses

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and remaining amount has to be taken as his contribution to the family. The deceased was aged about 23 years at the time of the accident and multiplier applicable to his age group is ‘18’. Thus, the claimants are entitled to compensation of Rs.12,09,600/- (Rs.11,2001218*50%) on account of ‘loss of dependency’.

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In addition, the claimants are entitled to compensation of Rs.15,000/- on account of ‘loss of estate’ and compensation of Rs.15,000/- on account of ‘funeral expenses’.

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In view of the law laid down by the Supreme Court in the case of ‘MAGMA GENERAL

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INSURANCE’ (supra), claimant No.1 and 2, parents of the deceased are entitled for compensation of Rs.40,000/- each under the head of ‘loss of filial consortium’.

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Thus, the claimants are entitled to the

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following compensation:

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Compensation under different Heads	Amount in (Rs.)
Loss of dependency	12,09,600
Funeral expenses	15,000
Loss of estate	15,000
Loss of filial consortium	80,000
Total	13,19,600
Less:50% negligence on the part of the deceased	6,59,800
Balance	6,59,800

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In the result, the appeals are disposed of . The judgment of the Claims Tribunal is modified.

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The claimants are entitled to a total compensation of Rs.6,59,800/- as against Rs.7,12,040/- awarded by the Tribunal.

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The Insurance Company is directed to deposit the compensation amount along with interest at 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment.

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The amount in deposit is ordered to be

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transferred to the Tribunal forthwith.

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The Tribunal is directed to release the

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compensation amount in favour of the claimants after due verification.

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Sd/JUDGE

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