Partly allowed

Krishnegowda v. Manu C D

Karnataka HC3 Jul 2023MFA/6243/2017

Case brief

AI extract

What is this about?

The High Court handled two miscellaneous first appeals against a motor vehicle accident compensation award. Reaffirming the relationship between the deceased and owner, the Court recalculated compensation based on higher notional income guidelines, reducing the total award from Rs. 14,59,000 to Rs. 13,69,900.

What did the court decide?

Impugned award modified; compensation reduced to Rs. 13,69,900 with interest; insurance company's appeal partly allowed; claimants' appeal dismissed.

Krishnegowda Vs Manu C D — Insurance | Karnataka HC (2023)

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NC: 2023:KHC:22871 MFA No. 6243 of 2017 C/W MFA No. 22 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C M JOSHI

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MISCELLANEOUS FIRST APPEAL NO. 6243 OF 2017 (MV-D)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 22 OF 2017 (MV-D)

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IN M.F.A. NO. 6243 OF 2017

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BETWEEN:

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KRISHNEGOWDA, S/O MOODALEGOWDA, AGED ABOUT 48 YEARS.

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DEVAMMA, W/O KRISHNEGOWDA,

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AGED ABOUT 43 YEARS.

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Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

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PURUSHOTHAMA, S/O KRISHNEGOWDA, AGED ABOUT 23 YEARS.

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ALL ARE RESIDING AT: CHIKKAGANGAVADI VILLAGE, DUDDA HOBLI, MANDYA TQ, MANDYA DISTRICT 571 410.

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…APPELLANTS

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(BY SRI SREENIVASAN M Y, ADVOCATE THROUGH VC)

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AND:

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MANU C D, S/O DEVARAJU C S,

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NC: 2023:KHC:22871 MFA No. 6243 of 2017 C/W MFA No. 22 of 2017

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AGED ABOUT 28 YEARS, R/AT: CHIKKAGANGAVADI VILLAGE, DUDDA HOBLI, MANDYA TQ, MANDYA DISTRICT 571 410.

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SRIRAM GENERAL INSURANCE CO. LTD., R/P BY BRANCH MANAGER, 2ND FLOOR, MONARCH CHAMBERS, OPP INFANTRY HALL, INFANTRY ROAD, BANGALORE 560 001.

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…RESPONDENTS

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(BY SRI O MAHESH, ADVOCATE FOR R2; R1 SERVED AND UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.10.2016 PASSED IN MVC NO.943/2014 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A. NO 22 OF 2017

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BETWEEN:

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1 . THE LEGAL MANAGER, SRIRAM GENERAL INSURANCE COMPANY LIMITED, 2ND FLOOR, MONARCH CHAMBERS, OPP:INFANTRY HALL, INFANTRY ROAD BANGALORE-560 001.

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NOW AT SHRIRAM GENERAL INSURANCE CO. LTD., 5/4, 3RD CROSS, S V ARCADE, BELAKANAHALLI MAIN ROAD, OPP:BANNERGHATTA MAIN ROAD, II M B POST,

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NC: 2023:KHC:22871 MFA No. 6243 of 2017 C/W MFA No. 22 of 2017

BANGALORE-560 076.

BY ITS MANAGER

...APPELLANT

(By SRI O MAHESH, ADVOCATE)

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AND:

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1 . KRISHNEGOWDA, S/O MOODALEGOWDA, AGED ABOUT 48 YEARS.

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2 . SMT. DEVAMMA, W/O KRISHNEGOWDA, AGED ABOUT 43 YEARS.

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3 . PURUSHOTHAMA, S/O KRISHNEGOWDA, AGED ABOUT 23 YEARS.

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ALL ARE R/A: CHIKKAGANGAVADI VILLAGE, DUDDA HOBLI, MANDYA TALUK, MANDYA DISTRICT-571 401.

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4 . MANU C D,

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S/O DEVARAJU C S, AGED ABOUT 28 YEARS, R/A CHIKKAGANGAVADI VILLAGE, DUDDA HOBLI, MANDYA TALUK & DISTRICT- 571 401.

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…RESPONDENTS

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(By SRI M Y SREENIVASAN, ADVOCATE FOR R1 TO R3 THROUGH VC; R4 SERVED AND UNRPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.10.2016 PASSED IN MVC NO.943/2014 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, & CJM, MANDYA, AWARDING COMPENSATION OF

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4 - NC: 2023:KHC:22871 MFA No. 6243 of 2017 C/W MFA No. 22 of 2017

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Rs.14,59,000/- WITH INTEREST @ 9% PA.. FROM THE DATE OF PETITION TILL REALIZATION.

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THESE APPEALS COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA No.6243/2017 preferred by the petitioners and

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MFA No.22/2017 preferred by the Insurance Company are directed against the judgment and award in MVC No.943/2014 passed by the learned I Additional Senior Civil Judge and CJM and MACT, Mandya, on 13-10-2016 whereby a sum of Rs.14,59,000/- has been awarded as compensation on account of the death of one Manju C.K. in the road traffic accident.

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2. Brief facts of the case:

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The petitioners who are the parents of the deceased C.K.Manju, have filed a claim petition before the Tribunal

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seeking compensation contending that the deceased was working as a loader and unloader under respondent No.1

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in his Ape Goods vehicle bearing Reg. No. KA-11/A-4085 and on 26.04.2014 when the deceased had gone in the

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vehicle on the direction of the respondent No.1 from Basaralu to Chikkagangavadi village to unload manure

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bags, the driver of the ape goods vehicle drove the same in a rash and negligent manner, the vehicle turned turtle at about 3.00 p.m near the land of Sri Bettegowda of Maralakere. The driver of the goods Ape vehicle ran away from the spot after the accident and another person who

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was on the motor cycle saw the accident and he extricated the deceased from the vehicle and shifted him to hospital and later lodged the complaint to the police.

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The deceased was initially admitted to Vikram hospital, Mandya and was referred to Apollo hospital at Mysuru and Narayana Hrudayalaya, Mysuru. But the treatment proved

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to be futile and he succumbed to the injuries on 27.04.2014. A sum of Rs.50,000/- is claimed to have been spent towards the treatment. It was further contended that, the deceased was aged about 18 years at the time of

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the accident and had an income of Rs.6,000/- p.m. The respondent No.1 is the owner of the vehicle and the respondent No.2 is the insurer and the contract of

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NC: 2023:KHC:22871 MFA No. 6243 of 2017 C/W MFA No. 22 of 2017

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insurance was in force as on the date of the accident and therefore, the respondents are liable to pay the compensation.

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On issuance of notice by the Tribunal, respondent

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Nos. 1 and 2 appeared through their counsel and filed their objections.

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The respondent No.1 admits that he is the owner of the vehicle in question and that minimum wages were paid to the deceased and the case registered in Cr.No.61/ 2014 is also admitted. It is also contended that the vehicle was validly insured with respondent No.2 and as on the date of the accident, the contract of insurance was in force. The driver of the auto had a valid and effective driving licence as on the date of the accident and therefore, the liability has to be fastened against respondent No.2.

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The respondent No.2 in the written statement contended that on the date of the accident the deceased

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was traveling as an unauthorised passenger in the goods auto and the respondent No.1 had allowed a passenger to travel in the goods vehicle which is in contravention of the terms and conditions of the policy and there was no such relationship between the deceased and respondent No.1 as employee and employer. Therefore, there was violation of the conditions of the policy and also that the vehicle was not having a valid fitness certificate and permit as on the date of the accident and therefore, there was violation of the conditions of the policy. It was also contended that the compensation claimed by the petitioners is highly exorbitant, imaginary and untenable in law and hence, respondent No.2 has to be absolved from the liability.

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On the basis of the pleadings of the parties, the Tribunal framed appropriate issues. The petitioners got examined two witnesses as PWs 1 and 2 and Exs.P1 to P13 were marked. Respondent No.1 was examined as RW2

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NC: 2023:KHC:22871 MFA No. 6243 of 2017 C/W MFA No. 22 of 2017

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and one Mohan Kumar was examined as RW1 and Exs.R1

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to R6 were marked in evidence.

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After hearing the arguments by both the sides, the Tribunal held that respondent No.2 Insurance

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Company is liable to pay the compensation to the extent

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of Rs.14,59,000/- under the following heads:

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Loss ofdependency	Rs.14,04,000/-
Loss of love and affection (Rs.20,000/- eachto petitioner Nos. 1and2)	Rs. 40,000/-
Funeralexpenses	Rs. 10,000/-
Transportation charges	Rs. 5,000/-
Total	Rs.14,59,000/-

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While coming to such a conclusion, the Tribunal held

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that the notional income of the deceased was Rs.6,500/per month and adding 50% towards future prospects and deducting 50% towards personal expenses and applied the multiplier of 18.

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Being aggrieved by the same, the petitioners have approached this Court in MFA No.6243/2017 contending that the Tribunal has erred in appreciating the notional income of the deceased and the Insurance Company has approached this Court in MFA No.22/2017 contending that

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the Tribunal has not appreciated the evidence on record in the proper perspective and that the MLC register extract, other documents and also regarding the capacity of the Goods Ape Vehicle; the evidence regarding the relationship between the respondent No.1 and the deceased were not properly considered by the Tribunal.

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On issuance of notice in both the appeals, the owner of the vehicle did not appear. The petitioners have appeared through their counsel and Insurance Company has appeared through its counsel.

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The learned counsel appearing for the Insurance

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Company has contended that the Col.No.5 of the claim petition has been left blank and the relationship of employee and employer was not mentioned in it. He contends that the photographs produced by the petitioners show that the vehicle was not carrying the manure, but it was carrying some planks and as such, the deceased cannot be a loader of the manure. He contends that the seating capacity of the vehicle was only one and it was a

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10 - NC: 2023:KHC:22871 MFA No. 6243 of 2017 C/W MFA No. 22 of 2017

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goods Auto and as such, there was violation of the conditions of the policy. He also contends that the wound certificate shows that the deceased was a passenger in the said vehicle and there is absolutely no documentary evidence available on record to show that deceased was an employee under respondent No.1 and the entire contention that the deceased was a loader has been cooked up at the later point of time in order to fasten liability on the Insurance company. Inter-alia, he also contends that the permit, FC etc., are not produced and therefore, fastening of the liability on the insurance company is totally erroneous.

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Adverting to the quantum, he contends that the Tribunal has failed to appreciate that respondent No.1 could have produced documentary evidence in order to prove the wages of the deceased and therefore, the Tribunal has also erred in holding the notional income of the deceased at Rs.6,500/- even though the petitioner states that it was Rs.6,000/- per month.

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Per contra, learned counsel appearing for the petitioners contend that even though the column No.5 of the claim petition has been left blank. The page No.4 of the claim petition clearly mentions that he was working as the loader and unloader in the Ape Goods vehicle under the respondent No.1 and getting salary of Rs.6,000/- per month. He further contend that prior to the issuance of the wound certificate by Narayana Hrudayala Hospital, deceased has been shifted to Vikram Hospital and then to Apollo Hospital, Mysuru and therefore, whatever mentioned in the wound certificate i.e. Ex.P11 was based on the previous history. He also submits that the word "passenger" in usual parlance used by the hospitals include even a 'loader' or 'cleaner' in the vehicle since it was only for the purpose of recording history which is relevant for the purpose of hospital. Therefore, he contends that no fault can be found with Ex.P11. He also points out that Rule 100 of Karnataka Motor Vehicle Rules provides for carrying three loaders in a vehicle on a specified unladden weight and therefore, when the policy

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NC: 2023:KHC:22871 MFA No. 6243 of 2017 C/W MFA No. 22 of 2017

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12 -

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produced by the respondent No.2 clearly mentions that seating capacity was 1 + 1 and that includes the employee of the owner, the liability fastened on respondent No.2 is sustainable under law.

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Adverting to the quantum, he submits that notional income should have been considered by the Tribunal and there is no bar for taking higher income based on the Minimum Wages Act. Therefore, he seeks reassessment of the compensation.

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The perusal of the claim petition show that the contentions of employee and employer was specifically taken by the petitioners in petition in page No.4 as pointed out by the learned counsel for petitioners. Therefore, this argument by the learned counsel Sri O. Mahesh for insurance Company is not sustainable.

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The perusal of the police papers produced at Exs.P1 to P13 show that immediately after the accident, the complainant by name Dhananjay saw the said accident and he had extricated the deceased from the auto and

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13 - NC: 2023:KHC:22871 MFA No. 6243 of 2017 C/W MFA No. 22 of 2017

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shifted the deceased to the hospital. The accident had happened at about 3.00 p.m. and the complaint was

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lodged by him on the next day evening. It is relevant to note that the complaint also mention that deceased was shifted to Vikram Hospital, thereafter, he was shifted to Mysuru Apollo Hospital and thereafter, to Narayana Hurdayalaya hospital and then he was brought back to General Hospital at Mandya. Even then, the deceased did not survive and he died at 4.00 p.m on 27-4-2014. Therefore, the delay in filing the complaint is sufficiently

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explained by him and there cannot be any doubt that the accident had occurred wherein Manjunatha died. The matter was investigated by the police and ultimately, they filed the chargesheet against the driver of the goods Ape Vehicle as per Ex.P13. During the investigation, the Investigating Officer has come across the information that the deceased was working as loader in the said goods vehicle. Moreover, Ex.P11 issued by Narayana Hrudayala

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hospital mentions that the deceased was admitted to the hospital with the history of road traffic accident (goods)

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NC: 2023:KHC:22871 MFA No. 6243 of 2017 C/W MFA No. 22 of 2017

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auto ape turtle at around 2.30 to 3.00 p.m. on 26-4-2014

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and exact place is not known but it was between Muthegeri and Chikkagangavadi road, Mandya Taluk and the injured was a passenger in that auto. This information recorded in the Ex.P11 discloses that it was based on the information provided by the same person who has accompanied him to the hospital. This can be related to the averments in the complaint. Evidently, the complainant Dhananjaya at the time of filing of the complaint did not have the information about the employee and employer relationship and he simply mention that deceased who was in the auto was extricated from the vehicle and shifted to the hospital. Therefore, much importance cannot be attributed to Ex.P11 to hold that the deceased was either of gratuitous passenger or otherwise. Moreover, the investigation papers clearly mentions that the deceased was the loader in the said goods auto.

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The next contention of the learned counsel for

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the Insurance company that the policy did not cover the loader even though the provisions of Rule 100 of Karnataka Motor Vehicles Rules provide for taking three loaders or coolies in the said goods vehicle. He contends that the provision of Rule 100 of the Karnataka Motor Vehicles Rules are violative of the Motor Vehicles Act. I am unable to accept this contention of the learned counsel for the Insurance Company, for the simple reason that, the provisions of the Act provide for entering into the contractual obligation between the insurance company and the insured. The Act do not provide for either taking a loader or cleaner. It is pertinent to note that the policy produced by the insurance company at Ex.P6 show that the additional premium of Rs.50/- was paid in respect of the employees of the owner of the vehicle. Count is also mentioned as one, for owner and driver, the additional premium of Rs.100/- was paid by the insured. When the policy clearly mention that a sum of Rs.50/- was paid in respect of the employee of the insured, the insurance

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company has no voice to say that the policy did not cover an employee. Therefore, this argument of the learned counsel appearing for insurance company is in the face of his own document Ex.R6. Therefore, this contention is rejected.

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The next contention of the learned counsel for the Insurance Company is that the relationship of employee and employer has not been proved. It is evident that respondent No.1 is examined as RW2 before the Tribunal. He in his categorical statement states that the deceased was his employee. Very conspicuously, insurance company has not cross examined RW2 and it has not put any suggestions to the insured that deceased was not his employee. Therefore, the insurance company cannot contend that the deceased was not an employee in the light of not cross examining RW2. So also, it is necessary to note that the official of respondent No.2 i.e. RW1 in the cross-examination has admitted that the Insurance cover as per the policy includes the loader also.

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Therefore, the contention of the insurance company regarding the liability has no merits and the same is liable to be rejected and accordingly, it is rejected.

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So far as quantum is concerned, it is trite law

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that the Tribunal has the powers to grant just and reasonable compensation to the claimants. There are several decisions of the Apex Court which lay down that even though the claim is to the lesser extent, the Tribunal has the powers to grant higher compensation in order to give substantial justice to the parties having regard to the

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fact that the legislation is beneficial to the society. Therefore, the claim of the petitioners that the deceased was earning Rs.6,000/- per month only cannot be a cap on the jurisdiction of the Tribunal.

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The Tribunal has taken the income of the deceased at Rs.6,500/- per month. It is necessary to note that the guidelines issued by KSLSA for the purpose of settlement of disputes before the Lok Adalat, prescribe the notional income of Rs.8,500/- per month for the year

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In catena of decisions, this Court has held that the guidelines issued by KSLSA are in general conformity with the wages fixed under the Minimum Wages Act. Therefore, the notional income of the deceased has to be taken at Rs.8,500/- per month considering the fact that he

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was aged about 18 years, but he had to work as a labourer for the exigencies of his family. It has also come in the evidence that, the deceased had studied PUC. Under these circumstances, the ends of justice would be met if the notional income of the deceased is taken at Rs.8,500/- per month. By adding 40% towards future prospects, the multiplicand would be Rs.11,900/- (8,500/+ 3400). Hence, by adopting the multiplier of 18, the compensation is calculated under the head of loss of dependency as: 11,900/- X 12 X 18 X 50% = 12,85,200/-.

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In addition to that, petitioners are also entitled for a sum of Rs.48,400/- under the head of loss of love and affection, Rs.18,150/- towards funeral expenses and Rs.18,150/- towards loss of estate. Thus the petitioners

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are entitled for total compensation of Rs.13,69,900/-

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under the following heads:

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Loss ofdependency	Rs. 12,85,200/-
Loss of love and affection	Rs. 48,400/-
Loss ofestate	Rs. 18,150/-
Funeral expenses	Rs. 18,150/-
Total	Rs. 13,69,900/-

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Thus, the petitioners are entitled for a sum of Rs.13,69,900/- instead of Rs.14,59,000/- together with interest.

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For the foregoing reasons, the appeal filed by the

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insurance company deserves to be allowed in part and the appeal filed by the petitioners deserves to be dismissed. Hence, the following:

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ORDER

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(i) The appeal filed by the Insurance Company in MFA No.22/2017 is allowed in part.

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(ii) The appeal filed by the claimants in MFA No.6243/2017 is dismissed.

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(iii) The impugned judgment and award passed by

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the Tribunal is modified by awarding a sum of

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Rs.13,69,900/- as compensation instead of Rs.14,59,000/together with interest at 9% p.a. from the date of petition till its realization.

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(iv) The rest of the conditions impugned by the Tribunal regarding fixed deposit and etc., remain unaltered.

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(v) The amount in deposit in MFA No.22/2017 shall

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be transmitted to the Tribunal forthwith.

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Sd/JUDGE

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tsn*

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List No.: 1 Sl No.: 107

Krishnegowda v. Manu C D

Case brief

What is this about?

What did the court decide?

Krishnegowda v. Manu C D

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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