Partly allowed

M R Sharadhamma v. K S Venkatesh

Karnataka HC14 Nov 2024MFA/1589/2019

Case brief

AI extract

What is this about?

In Motor Vehicle Claim appeal, the High Court of Karnataka held that contributory negligence of the deceased for not wearing a helmet was unsustainable without direct nexus to the accident. The Court found the Tribunal erroneous in applying a split multiplier and allowed the appeal in part, enhancing compensation based on Supreme Court precedents.

What did the court decide?

Enhanced compensation of Rs.6,90,119/- with interest at 6% p.a. awarded to claimants; insurer's appeal dismissed.

M R Sharadhamma Vs K S Venkatesh — Motor Accident Claims | Karnataka HC (2024)

¶1

NC: 2024:KHC:46318-DB MFA No.1589/2019 C/w MFA No.7537/2018

¶2

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 14^TH DAY OF NOVEMBER, 2024

¶5

PRESENT

¶6

THE HON'BLE MRS JUSTICE K.S.MUDAGAL

¶7

AND

¶8

THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL No.1589/2019 (MV-D) C/w

¶9

MISCELLANEOUS FIRST APPEAL No.7537/2018 (MV-D) MFA No.1589/2019:

¶10

BETWEEN:

¶11

M R SHARADHAMMA W/O LATE PAPEGOWDA AGED ABOUT 49 YEARS

¶12

AKSHITHA S P D/O LATE PAPEGOWDA AGED ABOUT 23 YEARS

¶13

ARPITHA S P D/O LATE PAPEGOWDA AGED ABOUT 21 YEARS

¶14

Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

¶15

ALL ARE R/AT SHANKARANAHALLI VILLAGE KATTAYA HOBLI

¶16

HASSAN TALUK -573 201 …APPELLANTS

¶17

(BY SMT.KAVITHA H C, ADVOCATE)

¶18

AND:

¶19

K S VENKATESH S/O SANNAYALAIAH KOWSHKA BARE, KOWSHIKA POST SHANTHIGRAMA HOBLI HASSAN TALUK – 573 201 (OWNER OF BOLERO BEARING NO.KA.13.B.4885)

¶20

¶21

NC: 2024:KHC:46318-DB MFA No.1589/2019 C/w MFA No.7537/2018

¶22

RELIANCE GENERAL INSURANCE

¶23

COMPANY LIMITED BRANCH OFFICE, 1^ST FLOOR KRUTIKA ARCADE N.R.CIRCLE, HOLENARASIPURA HASSAN – 573 201 POLICY NO.1408262334003440

¶24

VALID 26.06.2016 TO 25.06.2017 …RESPONDENTS

¶25

(BY ASHOK N PATIL, ADVOCATE FOR R2;

¶26

NOTICE TO R1 DISPENSED WITH V/O DATED 31.08.2021)

¶27

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 01.03.2018 PASSED IN MVC NO.354/2017 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MACT, HASSAN PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION.

¶28

MFA No.7537/2018:

¶29

BETWEEN:

¶30

RELIANCE GENERAL INSURANCE COMPANY LIMITED HASSAN BRANCH OFFICE 1^ST FLOOR, KRUTIKA ARCADE N.R.CIRCLE, HOLENARASIPURA ROAD

¶31

HASSAN

¶32

ALSO AT RELIANCE GENERAL INSURANCE COMPANY LIMITED EAST WING, 5^TH FLOOR, NO.28 CENTENARY BUILDING, M.G.ROAD BENGALURU – 560 001

¶33

NOW REP. BY MANAGER LEGAL …APPELLANT

¶34

(BY SRI ASHOK N PATIL, ADVOCATE)

¶35

AND:

¶36

SHARADHAMMA M R W/O LATE PAPEGOWDA AGED ABOUT 48 YEARS

¶37

AKSHITHA S P D/O LATE PAPEGOWDA AGED ABOUT 22 YEARS

¶38

ARPITHA S P D/O LATE PAPEGOWDA

¶39

3 - NC: 2024:KHC:46318-DB MFA No.1589/2019 C/w MFA No.7537/2018

¶40

AGED ABOUT 20 YEARS ALL ARE R/AT SHANKARANAHALLI VILLAGE KATTAYA HOBLI HASSAN TALUK

¶41

K S VENKATESH S/O SANNAYALAIAH KOWSHIKA BARE KOWSHIKA POST SHANTHIGRAMA HOBLI HASSAN TALUK …RESPONDENTS

¶42

(BY SMT.KAVITHA H C, ADVOCATE FOR R1 TO R3; SRI VIJAY KUMAR T, ADVOCATE FOR R4)

¶43

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 01.03.2018 PASSED IN MVC NO.354/2017 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE & ADDITIONAL MACT, HASSAN, AWARDING COMPENSATION OF RS.22,02,760/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

¶44

THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶45

CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND

¶46

HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

¶47

ORAL JUDGMENT

¶48

(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

¶49

These appeals arise out of judgment and award in M.V.C.No.354/2017 on the file of II Additional District & Sessions Judge and Additional MACT, Hassan.

¶50

Appellants in M.F.A.No.1589/2019 were claimant Nos.1 to 3 and the respondents therein were the respondents in M.V.C.No.354/2017 before the Tribunal. For the purpose of

¶51

4 - NC: 2024:KHC:46318-DB MFA No.1589/2019 C/w MFA No.7537/2018

¶52

convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

¶53

Claimant No.1 is the wife and claimant Nos.2 and 3 are the children of the deceased Papegowda. On 16.12.2016 at 11.30 a.m. when Papegowda was traveling in his motorcycle bearing Registration No.KA-13-L-8713 with one Harish as pillion rider, near Namratha Hitech Nursery, Kithanegadi, Haasan-Holenarasipura Road, Bolero Jeep bearing registration No.KA-13-B-4885 hit the said motorcycle and caused the accident. Papegowda died at the spot due to the injuries suffered. Even pillion rider suffered injuries.

¶54

Regarding the accident, on the complaint of pillion rider Harisha.G as per Ex.P2, Goruru police registered first information report as per Ex.P1 in Crime No.173/2016 of their police station against the driver of Bolero Jeep bearing No.KA-13-B-4885. On investigation, charge sheet as per Ex.P7 was filed against the said driver for the offences punishable under Sections 279, 337, 304A of IPC and Section 187 of the Motor Vehicles Act, 1988. At the time of accident, respondent Nos.1 and 2 were the registered owner and insurer of the offending Bolero Jeep.

¶55

5 - NC: 2024:KHC:46318-DB MFA No.1589/2019 C/w MFA No.7537/2018

¶56

Claimants filed M.V.C.No.354/2017 contending

¶57

that at the time of the accident, Papegowda was working as PDO in Karle Grama Panchayat and he was earning salary of Rs.30,150/- per month. They were all depending on his income. They claimed that due to his death, they have suffered damages to the tune of Rs.50,00,000/- and sought compensation from respondent Nos.1 and 2 accordingly.

¶58

Respondent Nos.1 and 2 contested the petition denying occurrence of the accident, actionable negligence on the part of the driver of Bolero Jeep, age, occupation, income of the deceased and their liability to pay the compensation.

¶59

To substantiate their case, the claimants got examined PWs.1 and 2 and got marked Exs.P1 to P11. No evidence was adduced on behalf of the respondents.

¶60

The Tribunal on hearing the parties by the impugned judgment and award, relying on the police investigation records and evidence of PW.2 the eyewitness held that the accident occurred due to actionable negligence on the part of the driver of Bolero Jeep. Further the Tribunal considering the income of the deceased at Rs.29,830/- per month, his age as 53 years, deducting 1/3^rd from his income

¶61

6 - NC: 2024:KHC:46318-DB MFA No.1589/2019 C/w MFA No.7537/2018

¶62

for personal expenses, applying 7 multiplier awarded compensation of Rs.16,70,480/- on the head of loss of dependency. While awarding compensation on the head of loss of dependency, the Tribunal calculated salary income applying split multiplier. The Tribunal in all awarded compensation of Rs.22,02,760/- on different heads as per the

¶63

table below:

¶64

1	Loss of dependency	21,47,760.00
2	Loss of love and affection	20,000.00
3	Cremation expenses	20,000.00
4	Loss of consortium	10,000.00
5	Transportation of dead body	5,000.00
	Total	22,02,760.00

¶65

Challenging the said award, the claimants have preferred M.F.A.No.1589/2019 and the Insurer has preferred M.F.A.No.7537/2018.

¶66

Smt.Kavitha H.C., learned Counsel for the claimants submits that the Tribunal was in error in deducting GIS from the income of the deceased and applying split multiplier. She further submits that the compensation awarded on the head of consortium and other conventional heads is on the lower side.

¶67

7 - NC: 2024:KHC:46318-DB MFA No.1589/2019 C/w MFA No.7537/2018

¶68

In support of her submissions, she relies on the

¶69

following judgments:

¶70

(i) R.Valli v. Tamil Nadu State Transport Corporation Limited.¹

¶71

To meet the contention of the Insurer that the deceased was not wearing helmet and he has contributed for his death in the accident, she relies on the judgment of the Hon’ble Supreme Court in Mohammed Siddique v. National Insurance Company Ltd.²

¶72

Sri Ashok N.Patil, learned Counsel for the Insurer submits that at the time of the accident, the deceased was not wearing helmet, therefore he died due to head injury. Had he worn the helmet, he would have averted head injury, therefore he is guilty of contributory negligence. He submits that the income considered by the Tribunal, multiplier applied and the compensation awarded on other heads is just one.

¶73

Considering the submissions of both side and examining the materials on record, the questions that arise for determination of the Court are:

¶74

(i) Whether the finding of the Tribunal that the accident and consequential death of Papegowda

¶75

1 (2022) 5 SCC 107

¶76

2 (2020) 3 SCC 57

¶77

8 - NC: 2024:KHC:46318-DB MFA No.1589/2019 C/w MFA No.7537/2018

¶78

occurred solely due to actionable negligence on the part of the driver of Bolero Jeep bearing No.KA-13B-4885 is sustainable?

¶79

(ii) Whether compensation awarded by the Tribunal is just one?

¶80

Analysis

¶81

Reg. Negligence:

¶82

The contention of the claimants that Papegowda was working as PDO and when he was traveling with complainant Harisha on his motorcycle bearing No.KA-13-L8713 as rider, there was accident involving Bolero Jeep bearing No.KA-13-B-4885, consequently, Papegowda died is not disputed. To prove negligence on the part of the driver of the said Bolero Jeep, the claimants relied on the evidence of PW.2 eyewitness and Exs.P1 to P7 i.e. first information report, complaint, inquest mahazar, crime detail form, spot cum seizure mahazar, IMV report and charge sheet respectively.

¶83

To rebut the said evidence, nothing was produced by the respondents nor the driver of the said jeep was examined. Before this Court for the first time it is contended that Papegowda was not wearing helmet, but no such contention was taken before the Tribunal in the complaint Ex.P2 by Harish or in the charge sheet such allegations are

¶84

9 - NC: 2024:KHC:46318-DB MFA No.1589/2019 C/w MFA No.7537/2018

¶85

found. On thorough investigation, the police have filed charge sheet against the driver of the said jeep, imputing entire negligence to him. Under the circumstances, without any pleadings and evidence, it is not open for the insurer to contend for the first time before this Court that the victim himself has contributed for occurrence of the accident and his death.

¶86

Hon’ble Supreme Court in Mohammed Siddique’s case referred to supra held that negligence on the part of the victim must have direct nexus with the accident and the death. In that case, it was held that victims being triple riders on the motorcycle itself does not make them guilty of contributory negligence, at the most, that would make them guilty of violation of law and it was held that unless it is proved that, that has contributed to the occurrence of the accident, contributory negligence cannot be imputed to the victim. Therefore, the contention that there was contributory negligence deserves no merit.

¶87

Reg. Quantum:

¶88

The evidence of PWs.1 and 2 and salary certificate Ex.P9, Ex.P7 charge sheet, Ex.P3 inquest mahazar show that at the time of the accident, the deceased was working as PDO.

¶89

10 - NC: 2024:KHC:46318-DB MFA No.1589/2019 C/w MFA No.7537/2018

¶90

As per driving licence Ex.P8, the date of birth of Papegwoda was 06.08.1963, therefore as on the date of his death, deceased was aged 53 years. Considering his age and the judgment of this Court in M.F.A.No.25007/2012 C/w M.F.A.No.25650/2012 DD 20.01.2014, the Tribunal applied split multiplier. But, Hon’ble Supreme Court in R.Valli’s case referred to supra has held that applying two multipliers is clearly erroneous and runs contrary to the judgment of the Hon’ble Supreme Court in National Insurance Company Ltd., v. Pranay Sethi³ , whereunder the judgment of the Hon’ble Supreme Court in Sarla Verma v. Delhi Transport Corporation⁴ is confirmed. Therefore the Tribunal was in error in applying split multiplier.

¶91

The salary slip of the deceased shows that his monthly income was Rs.30,150/-. Out of that the Tribunal ought to have deducted only the professional tax and not the Group Insurance claim. On such deduction his salary comes to (Rs.30,150/- - Rs.200/- =) Rs.29,950/-.

¶92

In view of the judgment of the Hon’ble Supreme Court in Pranay Sethi’s case referred to supra, having regard

¶93

3 (2017) 16 SCC 680

¶94

4 (2009) 6 SCC 121

¶95

11 - NC: 2024:KHC:46318-DB MFA No.1589/2019 C/w MFA No.7537/2018

¶96

to the age of the deceased and his permanent employment, 15% to the salary of the deceased has to be super added as future prospects. 15% of Rs.29,950/- comes to Rs.4,492.50 rounded off to Rs.4,493/-. Thus, his monthly income comes to (Rs.29,950/- + Rs.4,493/- =) Rs.34,443/- and his annual income comes to (Rs.34,443x12=) Rs.4,13,316/-. The deduction of income tax for the relevant period comes to Rs.41,331.6/- rounded off to Rs.41,332/-. Therefore his annual income after deduction of income tax comes to (Rs.4,13,316/- - Rs.41,332/-=) Rs.3,71,984/-. Deceased had three dependants. Therefore 1/3^rd has to be deducted from his income. Hence his contribution to family would be (Rs.3,71,984 x 2/3^rd =) Rs.2,47,989 p.a. The applicable multiplier is 11. Therefore the compensation payable on the head of loss of dependency is Rs.2,47,989 x 11= Rs.27,27,879/-.

¶97

As per the judgments of the Hon'ble Supreme Court in Pranay Sethi’s case referred to supra and Magma General Insurance Company Ltd., v. Nanu Ram⁵ the claimants are entitled to compensation of Rs.40,000/- each on the head of consortium with escalation of 10% which would be 5 (2018) 18 SCC 130

¶98

12 - NC: 2024:KHC:46318-DB MFA No.1589/2019 C/w MFA No.7537/2018

¶99

Rs.1,32,000/-. As per the judgment of the Hon'ble Supreme

¶100

Court in Pranay Sethi’s case referred to supra , the claimants are entitled to compensation of Rs.15,000/- on the head of

¶101

loss of estate and Rs.15,000/- for funeral expenses and transportation with escalation at 10%. Therefore the just

¶102

compensation payable is as follows:

¶103

Sl. No.	Particulars		Compensation awarded in Rs.
1.	Loss of dependency		27,27,879/-
2.	Loss of consortium		1,32,000/-
3.	Loss ofestate		16,500/-
4.	Funeral expenses transportationcharges	&	16,500/-
	Total		28,92,879/-
	Less awarded by Tribunal	the	22,02,760/-
	Enhancement		6,90,119/-

¶104

The enhanced compensation shall carry interest at

¶105

6% per annum. Respondent No.2 being the Insurer is liable

¶106

to pay the compensation. For the aforesaid reasons, the appeal of the insurer is liable to be dismissed and the appeal of the claimants deserves to be allowed in part. Hence, the

¶107

following:

¶108

ORDER

¶109

M.F.A.No.7537/2018 is hereby dismissed.

¶110

M.F.A.No.1589/2019 is hereby allowed in part.

¶111

13 -

¶112

NC: 2024:KHC:46318-DB MFA No.1589/2019 C/w MFA No.7537/2018

¶113

The claimants are entitled to enhanced compensation of Rs.6,90,119/- with interest thereon at 6% p.a. from the date of petition till the date of deposit.

¶114

Respondent No.2 shall deposit the enhanced compensation before the Tribunal on adjusting the amount, already deposited if any, within four weeks from the date of receipt of copy of this order.

¶115

The award of the Tribunal with regard to apportionment and investment is maintained.

¶116

Amount in deposit, if any, and the trial Court records shall be transmitted to the Tribunal forthwith.

¶117

Sd/(K.S.MUDAGAL) JUDGE

¶118

Sd/(VIJAYKUMAR A. PATIL) JUDGE

¶119

KSR

¶120

List No.: 1 Sl No.: 30

M R Sharadhamma v. K S Venkatesh

Case brief

What is this about?

What did the court decide?

M R Sharadhamma v. K S Venkatesh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Lohith B Vs Sri M Gunyappa

The Manager Vs Sri. Goorappa @ Dodda Goorappa

Smt Bhuvaneshwari T S Vs Sri Prasanna Kumar R

Dr Sabeel Ahmed @ Motu Doctor Vs National Investigating Agency

Krishna Moolya Vs Shivaraj J.K.

Sri Hiriyanna Rao Vs Sri Esskaybee Developer Pvt. Ltd.