Partly allowed

The Claim Manager v. Karlina

Karnataka HC10 Feb 2023MFA/2959/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a cross objection filed by claimants against an insurance company's appeal. The court modified the tribunal's award by enhancing compensation for death in a motor vehicle accident, rejecting arguments regarding vehicle classification and contributory negligence while applying recent Supreme Court guidelines for consortium and filial affection claims.

What did the court decide?

MFA No.2959/2018 dismissed; MFA CROB No.71/2018 allowed in part; compensation enhanced by Rs.3,71,600/- plus interest at 6% p.a.; insurance company directed to deposit within four weeks.

The Claim Manager Vs Karlina — Insurance | Karnataka HC (2023)

¶1

¶2

MFA No. 2959 of 2018 C/W MFA.CROB No. 71 of 2018

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 10^TH DAY OF FEBRUARY, 2023

¶5

PRESENT

¶6

THE HON'BLE MR JUSTICE K.SOMASHEKAR

¶7

AND

¶8

THE HON'BLE MR JUSTICE C M JOSHI

¶9

MISCELLANEOUS FIRST APPEAL NO. 2959 OF 2018 (MV-D)

¶10

C/W

¶11

MFA CROSS OBJECTION NO. 71 OF 2018(MV-D)

¶12

IN MFA NO. 2959 OF 2018

¶13

BETWEEN:

¶14

THE CLAIM MANAGER SRIRAMA GENERAL INSURANCE COMPANY LIMITED., S-5, 2-A, 2ND FLOOR, MUNISH CHAMBER, INFANTRY ROAD, BENGALURU, BY SHRIRAM GENERAL INSURANCE CO. LTD., 5/4, 3RD CROSS, S.V. ARCADE, Digitally signed BELAKANAHALLI MAIN ROAD, by T S NAGARATHNA OPP: BANNERAGHATTA MAIN ROAD, Location: High II M.B. POST,BANGALORE - 560 076, Court of BY ITS MANAGER. Karnataka

¶15

...APPELLANT

¶16

(BY SRI O.MAHESH., ADVOCATE)

¶17

AND:

¶18

1 . KARLINA AGED ABOUT 55 YEARS, W/O. SALVAMANI,

¶19

2 . SELVAMANI

¶20

AGED ABOUT 63 YEARS,

¶21

¶22

MFA No. 2959 of 2018 C/W MFA.CROB No. 71 of 2018

¶23

S/O. LATE BHAGYANATHA,

¶24

3 . THANGAMERRY AGED ABOUT 37 YEARS, W/O. ALPHOONES,

¶25

ALL ARE R/AT.KALLATHIPURA, LINGADAHALLI HOBLI, TARIKERE TALUK, CHITRADURGA DISTRICT - 577 501.

¶26

4 . B. J. CHETAHAN

¶27

AGED ABOUT 51 YEARS, S/O. B. P. JAGADHEESHAMURTHY, RESIDING AT BUKKAMBUDI, SHIVANI HOBLI, TARIKERE TALUK, CHITRADURGA DISTRICT - 577 501.

¶28

…RESPONDENTS

¶29

(BY SRI.RAJARAM SOORYAMBAIL, ADVCATE FOR R1 AND R2; R3 AND R4 SERVED UNREPRESENTED)

¶30

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.01.2018 PASSED IN MVC NO.15/2013 ON THE FILE OF SENIOR CIVIL JUDGE & PRL. JMFC., AND MMACT TARIKERE, AWARDING COMPENSATION OF RS.7,49,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

¶31

IN MFA CROB NO. 71 OF 2018

¶32

BETWEEN:

¶33

1 . SMT.KARLINA W/O. SALVAMANI, AGED ABOUT 50 YEARS,

¶34

2 . SELVAMANI S/O. LATE BHAGYANATHA,

¶35

3 - MFA No. 2959 of 2018 C/W MFA.CROB No. 71 of 2018

¶36

AGED ABOUT 58 YEARS,

¶37

3 . SMT.THANGAMERRY W/O. ALPHOONES, AGED ABOUT 32 YEARS,

¶38

ALL ARE R/AT.KALLATHIPURA, LINGADAHALLI HOBLI, TARIKERE TALUK, CHITRADURGA DISTRICT.

¶39

...CROSS-OBJECTORS

¶40

(BY SRI.RAJARAM SOORYAMBAIL., ADVOCATE)

¶41

AND:

¶42

1 . SRI.SHAFI @ SHAFIULLA, S/O. GAREBASHA SAB, AGED 32 YEARS R/A. BUKKAMUDI, SHIVANI HOBLI, TARIKERE TALUK, CHIKKAMAGALURU DISTRICT.

¶43

2 . SRI.B.J CHETHAN S/O. B.P. JAGADEESHAMURTHY AGED ABOUT 46 YEARS, BUKKAMUDI, SHIVANI HOBLI, TARIKERE TALUK, CHIKKAMAGALURU DISTRICT.

¶44

3 . SRI.RAMA GENERAL INSURANCE CO.LTD S-5, 2-A, 2^ND FLOOR, MUNISH CHAMBER. INFANTRY ROAD, BANGALORE.

¶45

…RESPONDENTS

¶46

(BY SRI.O.MAHESH, ADVOCATE FOR R3; SMT. KAVYASHRI G. S. ADV., FOR R2; R1 SERVED UNREPRESENTED)

¶47

4 - MFA No. 2959 of 2018 C/W MFA.CROB No. 71 of 2018

¶48

THIS M.F.A. CROB IS FILED UNDER SECTION 41 RULE 22 OF CPC A/W 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.01.2018 PASSED IN MVC NO.15/2013 ON THE FILE SENIOR CIVIL JUDGE & PRL. JMFC AND AMACT, TARIKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶49

THE APPEAL AND MFA CROB. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY C.M.JOSHI J., DELIVERED THE FOLLOWING:

¶50

JUDGMENT

¶51

Aggrieved by the judgment and award dated 03-01-2018 passed in MVC No.15/2013 by the learned Senior Civil Judge and Principal JMFC and Addl. MACT, Tarikere, the Insurance company preferred MFA No.2959/2018 and the petitioners/claimants have preferred MFA CROB.No.71/2018 seeking appropriate reliefs urging various grounds.

¶52

The parties are referred to as per their ranks before the Tribunal for the sake of convenience.

¶53

3. The brief facts are as below:

¶54

That the petitioner No.1 is the mother and petitioner No.2 is the father and petitioner No.3 is the sister of deceased Yesu @ Ambareesha @ Novel Yesu Raja. They filed a claim petition

¶55

5 - MFA No. 2959 of 2018 C/W MFA.CROB No. 71 of 2018

¶56

under Section 166 of the Motor Vehicles Act, 1988 (for short “the Act”) claiming compensation on account of the death of Yesu @ Ambareesha @ Novel Yesu Raja, contending that on 05.03.2012 the deceased had gone to Sydu Khan village to bring materials for his carpentry work. When he was going to Lingadahalli via Nandibattalu to Ballavara route on his motorcycle bearing No.KA 18/U-1350 on the left side of the road, at 11.00 AM, respondent No.1 being the driver of Canter lorry bearing No.KA-18/A-4617 came in high speed and negligent manner and dashed him and in the accident, Yesu suffered grievous injuries. The respondent No.1 fled away from the accident spot by leaving the lorry. The accident took place due to rash and negligent driving of respondent No.1. The respondent No.2 is the owner of the Canter lorry, which was insured with the 3^rd respondent.

¶57

The petitioners further contended that, deceased Yesu was the only earning member of his family. All the petitioners depended on the income of deceased. The deceased was doing the job of carpenter and earning Rs.15,000/- per month. Due to accident, the petitioners are left with no source of income to

¶58

¶59

MFA No. 2959 of 2018 C/W MFA.CROB No. 71 of 2018

¶60

lead their life. They are in financial difficulty and trouble in order to lead their life and hence, prayed to allow the petition.

¶61

On receipt of notice issued by the Tribunal, respondent No.1 to 3 appeared before the Tribunal through their counsel and respondents No.2 and 3 have filed their separate objections. The respondent No.1 did not file objections.

¶62

Respondent No.2 in his objections contended that the accident took place only on account of the rash and negligent driving on the part of the deceased. He has contended that the respondent No.1 was not driving the Canter vehicle at the time of accident and the charge sheet filed by the police against the respondent No.1 is false and respondent No.1 challenged the charge sheet filed by Lingadahalli police before the Hon'ble High Court of Karnataka in Criminal Petition No.2131/2016 and the case is pending before the Hon'ble High Court of Karnataka. He denied that the deceased was doing carpentry work and thereby earning Rs.15,000/- per month and that the interest claimed by the petitioner is excessive. He has

¶63

7 - MFA No. 2959 of 2018 C/W MFA.CROB No. 71 of 2018

¶64

contended that the petition is bad for non-joinder of necessary parties. Hence, he prayed to dismiss the petition.

¶65

Respondent No.3 in its objections admitted that it has issued insurance policy in respect of vehicle owned by respondent No.2. It has contended that the deceased was not having valid DL as on the date of the accident and driver of the Canter lorry No.KA-18/A-4617 was not holding valid and effective driving licence at the time of accident and he was not qualified for driving the canter lorry. It has further contended that the interest claimed by the petitioners is highly excessive and also denied the manner of accident and contended that the accident took place due to rash and negligent driving of deceased himself and the petitioners and police authorities have colluded with each other and managed to alter the nature of the incident and registered the case against the respondent No.1 even though there is no negligence on the part of the 1^st respondent in causing the accident. It has further contended that the accident was caused between two vehicles and there is a contributory negligence on the part of the deceased. He has contended that the petition is bad for non-joinder of necessary parties. Hence, prayed to dismiss the petition.

¶66

8 - MFA No. 2959 of 2018 C/W MFA.CROB No. 71 of 2018

¶67

On the basis of the above pleadings and contentions

¶68

of both the parties, the Tribunal framed necessary issues for its consideration.

¶69

Before the Tribunal, 1^st petitioner got examined herself as PW1 and got marked Exs.P1 to P10. Respondent No.2 examined himself as RW1 and respondent No.3 examined one witness as RW2 and got marked two documents as Exs.R1 and 2.

¶70

On hearing both the sides, the Tribunal allowed the petition in part, fastening the liability on the insurance company and awarded a sum of Rs.7,49,000/ - under different heads

¶71

as under:

¶72

Loss of dependency	Rs. 7,14,000/-
(Rs.3,500 x 12 x 17)
Funeral expenses	Rs. 15,000/-
Transportation of dead body	Rs. 5,000/-
Loss of Estate	Rs. 15,000/-
Total	Rs. 7,49,000/-

¶73

Aggrieved by the said judgment and award, both

¶74

the Insurance company and the petitioners are before this

¶75

9 - MFA No. 2959 of 2018 C/W MFA.CROB No. 71 of 2018

¶76

Court in MFA No.2959/2018 and cross objection No.71/2018 seeking appropriate reliefs.

¶77

The insurance company has approached this Court in MFA No.2959/2018 contending that the Tribunal failed to frame proper, relevant and necessary issues concerning the driver of the insured Canter vehicle had no valid driving licence authorizing him to drive a specific type or class of transport vehicles as required under law. It is also contended that the finding of the Tribunal on the issue of negligence is erroneous and the contributory negligence has not been considered by it properly. It is further contended that the documents clearly indicate that the alleged accident took place in a curve and the damages recorded in the IMV report establish that the deceased who was riding the motorcycle was greatly responsible for the alleged accident. It is also contended that the income of the deceased as a carpenter is assessed at a sum of Rs.5,000/- per month in the absence of any specific, cogent and corroborative evidence on record and the age of the deceased is taken as 30 years as against 33 years as available in the evidence and as such, the application of multiplier of 17 instead of 16 is improper and illegal. It is also contended that

¶78

10 - MFA No. 2959 of 2018 C/W MFA.CROB No. 71 of 2018

¶79

the vehicle involved was a medium goods vehicle and the licence of the driver discloses that he was authorized to drive a LMV non-transport car from 16.12.1997 to 15.012.2017 and LMV transport vehicle from 22.07.2010 to 21.07.2013 and the evidence of RW2 also discloses that he was not authorized to drive medium goods vehicle and therefore, the reasoning given by the Tribunal is improper and incorrect. Therefore, it is contended that the impugned judgment is not sustainable under law.

¶80

Per contra, the petitioners have approached this Court in MFA Crob.No.71/2018 contending that the quantum of compensation awarded by the Tribunal is arbitrary and unreasonable and considered the income of the deceased only at Rs.5,000/- per month, which is improper. It is also contended that the compensation awarded under the other heads is also abysmally low and incorrect and as such, the compensation needs to be reassessed by this Court.

¶81

On issuance of notice in MFA No.2959/2018, the petitioners, who are respondents 1 and 2 in the appeal, appeared before this Court through their counsel but

¶82

11 - MFA No. 2959 of 2018 C/W MFA.CROB No. 71 of 2018

¶83

respondents 3 and 4 though served with notice were unrepresented. In MFA Crob.No.71/2018, after service of notice respondent No.3 appeared before this Court, but respondents 1 and 2 though served with notice were unrepresented.

¶84

The appeal was admitted on 23.09.2022 and the records of the Tribunal have been secured.

¶85

We have heard learned counsel Sri. O. Mahesh, appearing for the Insurance Company and the learned counsel Sri Rajaram Sooryambail appearing for petitioners/claimants and perused the Tribunal records.

¶86

The first limb of argument by the learned counsel appearing for the Insurance Company is that the driver of the canter lorry bearing No.KA-18/A-4617 was having a driving licence to drive LMV Non-transport vehicle till 15.12.2017 and LMV transport vehicle till 21.07.2013. Therefore, he contends that the said driving licence was not valid to drive the vehicle, which is a medium goods vehicle. On this ground, he contends that the Tribunal erred in holding that the decision of the Hon’ble Apex Court in the case of Mukund Dewangan Vs.

¶87

12 - MFA No. 2959 of 2018 C/W MFA.CROB No. 71 of 2018

¶88

Oriental Insurance Company Limited¹ is applicable to the case on hand. The secondly learned counsel appearing for the insurance company has submitted that the spot and the damages occurred to the vehicle discloses that the accident happened while the deceased was negotiating a curve and he had dashed to the Canter vehicle. Therefore, the contributory negligence should have been considered by the Tribunal. The third prong of the argument by the learned counsel for the appellant-insurance company is that the compensation assessed by the Tribunal by adopting multiplier of 17 is incorrect.

¶89

Per contra, learned counsel appearing for the petitioners has vehemently contended that the ratio laid down in the case of Mukund Dewangan (cited Supra) is applicable to the case on hand and the income of the deceased should have been taken at Rs.7,000/- per month, since the deceased was a carpenter and he died in an accident of the year 2012. He also defended the adoption of multiplier of 17 by the Tribunal.

¶90

1 (2017) 14 SCC 663

¶91

13 - MFA No. 2959 of 2018 C/W MFA.CROB No. 71 of 2018

¶92

The provisions of Section 2(16) and 2(21) of the Act coupled with section 2 (23) of the Act makes it clear that the vehicles which have gross weight less than 7,500 kg are to be termed as Light Motor Vehicles and the vehicles with gross laden weight of more than 12,000 kg are to be termed as Heavy Goods Vehicles. The vehicles having gross laden weight in between 7,500 to 12,500 kg are to be termed as Medium Goods Vehicles. The perusal of the records discloses that the ARTO has been examined before the Tribunal as RW2. In the cross-examination he has stated that the un-laden weight of the vehicle belonging to the respondent No.2 is 4,590 kg, which is below 7,500 kg. Even though, the RC book mentions that it is a Medium Goods Vehicle in view of the fact that the un-laden weight of the vehicle was 4,590 kg, it is to be termed as Light Motor Vehicle only. There is no dispute in respect of the fact that the gross un-laden weight of the vehicle was less than 7,500/- kg and even though it is described as Medium Goods Vehicle, it cannot be brought under the purview of the Medium Goods Vehicle. The nomenclature of vehicle is immaterial when specification to term such vehicle to be either Medium Goods Vehicle or LMV is defined under the Act. Therefore, this

¶93

14 - MFA No. 2959 of 2018 C/W MFA.CROB No. 71 of 2018

¶94

argument by the learned counsel for the Insurance Company do not hold any ground.

¶95

The second prong of the argument by the learned counsel Sri. O. Mahesh is that the records reveal that there was contributory negligence on the part of the deceased. It is evident that the petitioners are solely relying upon the police papers in order to establish that the negligence was on the part of the driver of the Canter lorry or the Medium Goods Vehicle as contended by learned counsel appearing for the appellants. It is to be noted that even the respondent insurance company has not adduced any evidence to show that there was any contributory negligence on the part of the deceased. It is the case of the petitioners that the deceased was riding the motorcycle bearing No.KA-18/U-1350 on the left side of the road and then the Canter lorry bearing No.KA-18/A-4617 came in a high speed and dashed to the motorcycle of the deceased. After thorough investigation, charge sheet was filed against the driver of the Canter lorry. Evidently, the PW1 was not an eyewitness to the accident. Therefore, in order to establish that there was any contributory negligence on the part of the deceased, the appellant-insurance company could not have

¶96

15 - MFA No. 2959 of 2018 C/W MFA.CROB No. 71 of 2018

¶97

relied upon the evidence of PW1. It also squarely depend upon the police papers and therefore, unless it is shown that the police papers or the charge sheet filed by the Investigating Officer against the lorry driver is incorrect, it is not possible to infer that the deceased also contributed for the negligence. Simply because the accident had happened in a curve, it cannot be stated that there was contributory negligence on the part of the deceased also.

¶98

The learned counsel for the appellant-insurance company has pointed out that the respondent No.1 i.e. the driver of the Canter vehicle had filed a criminal petition No.2131/2016 before he Hon’ble High Court challenging the charge sheet. The outcome of the said criminal petition though not placed before the Court, a search on web-portal discloses that it has been dismissed for non-prosecution on 25.08.2016 itself. Therefore, the final report/charge sheet filed by the police against the respondent No.1 has become final and there is no reason to discard the same. When the police papers did not disclose that there was any contributory negligence on the part of the deceased, it is not in the mouth of the Insurance

¶99

16 - MFA No. 2959 of 2018 C/W MFA.CROB No. 71 of 2018

¶100

Company to agitate the matter in the absence of any eyewitness account.

¶101

The third contention is regarding the quantum of the compensation. The petitioners have also approached the Court in the form of cross-objection contending that the compensation awarded is meager and the notional income adopted by the Tribunal is incorrect. Obviously, the petitioners have not placed on record any cogent material in order to show the income of the deceased. By guess work, the Tribunal has adopted notional income of Rs.5,000/- per month in calculating the compensation under the head of loss of dependency. It is also pertinent to note that the Tribunal has not awarded any compensation under the head of loss of filial love and affection.

¶102

In paragraph 17 of the impugned judgment, the Tribunal noticed that the age of the deceased was 30 years as on the date of the accident and therefore, it adopted multiplier of 17 and has calculated the loss of dependency, by holding that he had father, mother and sister as dependants and as such, he was spending 50% of his income towards personal expenses.

¶103

17 - MFA No. 2959 of 2018 C/W MFA.CROB No. 71 of 2018

¶104

Learned counsel appearing for the insurance company contends that the deceased was aged 33 years instead of 30 years. It is pertinent to note that PW1 who happens to be the sister of the deceased has stated that the deceased was carpenter and was aged 30 years. A suggestion to her was made that the deceased at the time of the accident was aged 33 years but it was denied by her. Thus there is no material on record to show that the deceased was aged 33 years. Hence, we are unable to accept the argument of the learned counsel for the insurance company that the deceased was aged 33 years as on the date of the accident. Consequently, the adoption of multiplier of 17 by the Tribunal is to be upheld. Regarding the notional income of the deceased, it is relevant to refer to the decision of this Court in M.F.A.No.7404/2014 (Smt.mariyamma W/o.Sri late Hucchellappa and others Vs. Sri. Suyambulingam. V. S/o Sri M. Veerapathiram Nadar and others Disposed on 06.12.2022), wherein this Court has come to the conclusion that the guidelines issued by the KSLSA for settlement of cases before the Lok-Adalath are in general consonance with the Minimum Wages Act and therefore, no fault can be found to

¶105

18 - MFA No. 2959 of 2018 C/W MFA.CROB No. 71 of 2018

¶106

adopt those guidelines for the purpose of considering the notional income. As per the guidelines, the notional income for the year 2012 is Rs.7,000/- and therefore by adding 40% towards future prospects, it comes to Rs.9,800/-. Obviously, the deceased has left behind him his parents and a sister and therefore, his personal expenses had to be deducted to the extent of 50%. Thus, the loss of dependency is calculated as Rs.9,800 x 12 x 17 x 50% =Rs.9,99,600/-.

¶107

As noted supra, the Tribunal has not awarded any compensation under the head of loss of filial love and affection.

¶108

In a recent decision in the case of Rasmita Biswal and others Vs. Divisional Manager National Insurance Company Limited² the Hon’ble Apex Court has applied the enhancement of 10% in respect of the consortium, loss of estate and funeral expenses at an interval of every 3 years, as held in the case of Pranay Sethi . It was observed as below:

¶109

“6. In Pranay Sethi, this Court has awarded a total sum of Rs.70,000/- under conventional heads, namely, loss of estate, loss of consortium and funeral expenses. The said Judgment of the Constitution Bench was pronounced in the year 2017. Therefore, the claimants are entitled to 10% enhancement. Rs.16,500/- is awarded towards loss of

¶110

2 (2022) 2 SCC 767

¶111

19 - MFA No. 2959 of 2018 C/W MFA.CROB No. 71 of 2018

¶112

estate and conventional expenses and Rs.44,000/- is awarded towards spousal consortium. We do not find any reason not to apply the enhancement of 10% to the case on hand.”

¶113

Petitioner No.1 is the married sister of the deceased and therefore, she is not entitled for compensation under the head of loss of love and affection. Petitioner Nos.2 and 3 have lost their son and therefore, each of them are entitled for a sum of Rs.44,000/- towards loss of filial love and affection. So far as loss of estate and funeral expenses are concerned, the petitioners, in the light of the decision in the case of Rasmita Biswal (cited supra) are entitled for Rs.16,500/- each under the head of loss of estate and funeral expenses.

¶114

Thus, the compensation is reassessed as below:

¶115

Loss of dependency Rs.	9,99,600/-
Loss of consortium and loss of love and affection (petitioners 2 & 3 each Rs.44,000/-) Rs.	88,000/-
Funeral expenses Rs.	16,500/-
Loss of Estate Rs.	16,500/-
Total Rs.	11,20,600/-
Less: awarded by the Tribunal Rs.	7,49,000/-
Enhancement Rs.	3,71,600/-

¶116

20 -

¶117

MFA No. 2959 of 2018 C/W MFA.CROB No. 71 of 2018

¶118

Thus, in the light of the discussions made above,

¶119

we propose to enhance the compensation by a sum of Rs.3,71,600/- in addition to what has been granted by the Tribunal. Hence, we pass the following:

¶120

ORDER

¶121

(i) M.F.A.No.2959/2018 filed by the

¶122

Insurance Company is dismissed.

¶123

(ii) MFA CROB No.71/2018 filed by the petitioners is allowed in part.

¶124

(iii) The impugned judgment and award dated 03.01.2018 passed in MVC No.15/2013 by the Tribunal is modified by enhancing the compensation of Rs.3,71,600/- together with interest at 6% p.a. from the date of petition till the date of deposit.

¶125

(iv) The conditions of apportionment and deposit as ordered by the Tribunal remain unaltered.

¶126

(v) Insurance company is directed to deposit

¶127

the compensation amount together with interest within a period of four weeks from the date of receipt of the copy of this order.

¶128

MFA No. 2959 of 2018 C/W MFA.CROB No. 71 of 2018

¶129