Partly allowed

The Branch Manager v. Smt B L Chudamani

Karnataka HC4 Dec 2024MFA/417/2023

Case brief

AI extract

What is this about?

Motor accident claim arising from the death of a motorcyclist in a collision with a TATA Winger car. The insurer's appeal against the negligence finding was dismissed; the claimant's appeal was partly allowed, enhancing compensation from Rs.12,22,400/- to about Rs.51,79,200/- after admitting additional income evidence.

What did the court decide?

Enhanced compensation of Rs.39,56,800/- with 6% p.a. interest granted to claimant No.1; insurer directed to deposit within six weeks; insurer's appeal dismissed.

The Branch Manager Vs Smt B L Chudamani — Insurance | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF DECEMBER, 2024 PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL AND

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THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.417/2023 (MV-D)

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C/W

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MISCELLANEOUS FIRST APPEAL NO.7718/2022 (MV-D)

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MFA NO.417/2023:

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BETWEEN:

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THE BRANCH MANAGER ICICI LOMBARD GIC LTD. NO.121, THE ESTATE BUILDING 9^TH FLOOR, DICKENSON ROAD M G ROAD, BANGALORE – 560 042 …APPELLANT

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(BY SRI PRADEEP B, ADVOCATE)

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AND:

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

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SMT B L CHUDAMANI W/O C S SESHADRI PRASAD AGED ABOUT 65 YEARS R/AT KYATHASANDRA KYATHASANDRA, TUMKUR – 572 104

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JAISHANKAR S MAJOR R/AT NO.36, 10^TH CROSS VASANTHAPPA BLOCK 6^TH MAIN, GANGANAGAR BANGALORE - 560 032

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PUTTASWAMY K A R/AT NO.127, B G ROAD BASAVA NAGAR

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BANGALORE -560 033 (EXPARTE) 4. S NATARAJ S/O VENKATAPPA AGED ABOUT 42 YEARS R/AT NO.02, 3^RD MAIN ROAD 5^TH CROSS, RAMAKRISHNA NAGAR BANGALORE -560 078 (EXPARTE)

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SMT PALLAVI SOMAYAJI W/O A K SOMAYAJI NO.4, PLOT NO.4, NO.502 SHANTHI APARTMENT JAYANAGAR, 9^TH BLOCK BANGALORE -560 069 ... RESPONDENTS

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(BY SRI C.R.RAVISHANKAR, ADVOCATE FOR R1; NOTICE TO R2 TO R5 DISPENSED WITH V/O DTD: 28.06.2023)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 19.09.2022 PASSED IN MVC NO.5061/2015 ON THE FILE OF THE C/C XXII ADDITIONAL SMALL CAUSES JUDGE AND ACMM, MEMBER, MACT, BENGALURU (SCCH24), AWARDING COMPENSATION OF RS.12,22,400/WITH INTEREST AT 6% P.A.

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MFA NO.7718/2022:

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BETWEEN:

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SMT. B L CHUDAMANI AGED ABOUT 65 YEARS W/O LATE C.S. SESHADRI PRASAD R/AT KYATHASANDRA TUMKUR – 572 104 … APPELLANT

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(BY SRI C.R.RAVISHANKAR, ADVOCATE)

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AND:

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SRI JAISHANKAR S R/AT NO.36, 10^TH CROSS VASANTHAPPA BLOCK

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6^TH MAIN ROAD, GANGA NAGAR BANGALORE - 560 032 (OWNER OF VEHICLE NO.KA-04-C-8494)

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SRI PUTTASWAMY K.A R/AT NO.127, B.G. ROAD BASAVA NAGAR BANGALORE - 560 033

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SRI S. NATARAJ S/O SRI VENKATAPPA AGED ABOUT 42 YEARS R/AT NO.2, 3^RD MAIN ROAD 5^TH CROSS, RAMAKRISHNA NAGAR BANGALORE - 560 078 (DRIVER OF VEHICLE)

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ICICI LOMBARD GENERAL INSURANCE CO. LTD. REP. BY ITS MANAGER NO.121, THE ESTATE BUILDING 9^TH FLOOR, DICKENSON ROAD M.G. ROAD, BANGALORE - 560 042 (INSURER OF TATA WINGER CAR NO. KA-04-C-8494 POLICY NO.3004/6809393902/B00 VALIDITY 09-01-2014 TO 08-01-2015)

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SMT. PALLAVI SOMAYAJI W/O SRI. A.K. SOMAYAJI NO.4, PLOT NO.4, NO.502 SHANTHI APARTMENT JAYANAGARA, 9^TH BLOCK BANGALORE - 560 069 …RESPONDENTS

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(BY SRI B.PRADEEP, ADVOCATE FOR R4; NOTICE TO R1 TO R3 & R5 D/W V/O DATED 25.11.2022)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 19.09.2022 PASSED IN MVC NO.5061/2015 ON THE FILE OF THE C/C XXII ADDITIONAL SMALL CAUSES JUDGE AND ACMM, MEMBER, MACT, BENGALURU (SCCH-24), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT AND ORDERS ON I.A.NO.1/2022 (PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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These appeals arise out of award in M.V.C.No.5061/2015 on the file of XXII Additional Small Causes Judge & Additional Chief Metropolitan Magistrate, MACT, Bangalore.

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Appellant in M.F.A.No.7718/2022 was claimant No.1, her husband was claimant No.2 and respondent Nos.1 to 5 were respondent Nos.1 to 5 in M.V.C.No.5061/2015. Parties are referred to henceforth according to their ranks before the Tribunal.

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Claimants are the parents of the deceased Ganesh. On 30.01.2014 at about 11.45 p.m. when Ganesh was proceeding on his motorbike bearing Registration No.KA02/HU-6649 near Dalmia Junction, 15^th Cross, J.P.Nagar, Bangalore, accident took place involving the car bearing Registration No.KA-04-C-8494 and alleged Dio Honda vehicle

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bearing Registration No.KA-05/EF-6213. In the accident, Ganesh suffered fatal injuries. He was shifted to Manipal Hospital, Bengaluru. From there he was shifted to BGS Hospital, Bangalore. He succumbed to the injuries on 03.02.2014 at 5.15 p.m. At the time of the accident, respondent Nos.1, 3 and 4 were the registered owner, driver and insurer of car bearing Registration No.KA-04-C-8494. It was alleged that respondent Nos.2 and 5 were alleged rider and registered owner of motorbike bearing Registration No.KA-05/EF-6213.

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Claimants filed M.V.C.No.5061/2015 contending that the accident and consequential death of Ganesh occurred due to rash and negligent driving of the car by its driver and they were all depending on the income of the deceased, he was earning Rs.66,400/- per month, they spent Rs.8,00,000/towards medical expenses etc. and respondents are liable to pay compensation of Rs.50,00,000/-.

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Respondent Nos.2, 3 and 5 did not contest the petition. Though respondent Nos.1 and 4 appeared before the Tribunal, only respondent No.4 filed its statement of objections and contested the matter. Respondent No.4 denied

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occurrence of the accident due to actionable negligence on the part of the driver of the car bearing No.KA-04/C-8494, age, occupation, income of the deceased and its liability to pay the compensation. It contended that on investigation the police filed ‘C’ report and car driver was exonerated. They further contended that the deceased himself was drunk and riding the motorcycle and was responsible for the accident, if any. Therefore respondent No.4 sought dismissal of the petition.

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In support of their claim, claimant No.2 was examined as PW.1, got examined PWs.2 to 4 and got marked Exs.P1 to P21. On behalf of respondent No.4, though RW.1 was examined, he did not tender himself for crossexamination. Therefore his evidence was discarded. Another official of respondent No.4 was examined as RW.1 and insurance policy was got marked as Ex.R1. During pendency of the petition, claimant No.2 died, survived by claimant No.1.

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The Tribunal on hearing the parties, by the impugned judgment and award held that the accident occurred due to actionable negligence on the part of the driver of the car bearing No.KA-04-C-8494. The Tribunal considered the income of the deceased at Rs.8,500/-, added 40% of the

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same by way of future prospects, deducted ½ towards personal expenses of the deceased, applied 16 multiplier and awarded compensation of Rs.11,42,400/- on the head of loss of dependency. The Tribunal in all awarded compensation of

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Rs.12,22,400/- on different heads as follows:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Loss of dependency	11,42,400/-
2.	Transportation, funeral expenses	20,000/-
3.	Loss of estate	20,000/-
4.	Loss of consortium	40,000/-
	Total	12,22,400/-

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Insurer has challenged the said award in M.F.A.No.417/2023 questioning the finding regarding actionable negligence on the part of the driver of the car. Claimant No.1 has preferred M.F.A.No.7718/2022 questioning adequacy of compensation.

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Before this Court the claimant filed I.A.No.1/2022 to adduce additional evidence regarding proof of income of the deceased. The same is opposed on the ground that it is belatedly filed and documents produced are not authenticated documents.

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Sri B.Pradeep, learned Counsel for the Insurer relying on the police records Exs.P1 to P7 and P9 and other evidence on record submits that as per the said records, it was rider of Dio Honda bearing Registration No.KA-05/EF6213 who hit the vehicle of the deceased Ganesh, resultantly, he was tossed and fell on other side of the road, crossing the road median and came under the wheels of the insured car, which was proceeding in its lane on other side of the road. There was absolutely no negligence on the part of driver of the car bearing No.KA-04/C-8494. He submits that it was the car driver who took the victim to the hospital and filed the complaint. Despite such material, the Tribunal was in error in relying on the stray entry about involvement of the car in the accident and fastening liability to the driver of the said car. He further submits that the compensation awarded by the Tribunal is just one.

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Sri C.R.Ravi Shankar, learned Counsel for the claimant submits that all the police records came into existence based on the information furnished by respondent No.3/driver of the car. The evidence on record shows that the victim was unconscious, so to save himself, respondent No.3

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has falsely set up another motorcycle bearing No.KA-05/EF6213 which during investigation was found to be non-existent. Whereas, information given before the doctor at the first instance implicated respondent No.3 and his car. Though he claimed that he admitted the victim to the hospital, he did not reveal his name at the first instance in the hospital. The said facts and circumstances show that respondent No.3 has orchestrated the involvement of another vehicle to save himself and he did not choose to contest the petition denying negligence on his part. Under the circumstances, the Tribunal was justified in fastening actionable negligence to respondent No.3. So far as quantum of compensation, he submits that during the course of evidence, claimant No.2 died and claimant No.1 bereaved mother and widow could not produce income tax returns and examine the employer. Therefore I.A.No.1/2022 is filed to adduce additional evidence. Even otherwise, victim being a BE graduate, was being employed in the organization shown in Ex.P13/salary slip was not denied. Therefore the Tribunal should have relied on the said documents. The evidence now sought to be adduced viz., Form No.16, income tax returns and bank statement are

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reliable documents. This Court can rely on the same and reassess the income. The Tribunal was in error in not accepting Ex.P13 in assessing compensation.

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On considering the submissions of both side and on examining the material on record, the questions that arise for determination are:

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(i) Whether the finding of the Tribunal that respondent No.3 driving car bearing registration No.KA-04/C-8494 rashly and negligently caused fatal injuries to Ganesh who was riding on his motorbike bearing Registration No.KA-02-HU-6649 leading to his death is sustainable?

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(ii) Whether I.A.No.1/2022 in M.F.A.No.7718/2022 deserves to be allowed?

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

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Reg. Negligence:

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The claimant's contention is that when Ganesh

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was riding motorcycle bearing No.KA-02/HU-6649 near Dalmia junction, J.P.Nagar, Bengaluru, driver of TATA Winger car bearing No.KA-04/C-8494 hit the motorcycle and ran over Ganesh leading to his death. Therefore, there was actionable

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negligence on the part of driver of TATA Winger car bearing No.KA-04/C-8494. Respondent Nos.3 and 4 also did not dispute that Ganesh was run over by TATA Winger car bearing No.KA-04/C-8494 and died. But their contention was that when Ganesh was proceeding on his motorcycle bearing No.KA-02/HU-6649, respondent No.2-rider of motorcycle No.KA-05/EF-6213 hit Ganesh’s motorcycle from the hind side. Due to the impact, Ganesh was tossed onto the other side of the road and the oncoming car bearing No.KA-04/C8494 ran over him, but the said car driver was not rash and negligent. It is contented that complaint was registered against rider of motorcycle bearing No.KA-05/EF-6213 and on investigation, police have filed 'C' report saying that motorcycle No.KA-05/EF-6213 does not exist, whereas one Scooty bearing No.KA-05/EF-6213 exists. Even that vehicle was not in road worthy condition and was scrapped before the accident.

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Regarding the accident, it was respondent No.3 who filed the complaint before the police putting up the story of another two-wheeler dashing Ganesh's motorcycle and he being tossed from the said motorcycle in front of his car and

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was run over, etc. In the complaint, he himself states that he admitted the victim in Malathi Manipal Hospital. If the things were as stated in the complaint by respondent No.3, while admitting the patient in Malathi Manipal Hospital, he should have given his name as attendant. Soon after the accident, in Ex.P20-the medico-legal certificate, the name of the attendant is not forthcoming and at 11.30 p.m. in Malathi Manipal Hospital, the attendant had given the history that victim suffered injuries while riding two-wheeler. Medical records show that victim was unconscious when he was taken to the hospital. In Ex.P21-the case sheet at 12.00 a.m. on 31.01.2014 history is recorded as RTA while travelling in twowheeler hit by a four-wheeler . At the earliest point of time in the hospital, history was given imputing occurrence of the accident to four-wheeler. There was no whisper of presence of another two-wheeler.

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It is also to be noted that in the complaint-Ex.P2, respondent No.3 stated that the deceased was drunk while riding the motorcycle. But in the medical records nothing is forthcoming to show that victim was under the influence of alcohol when he was brought to the hospital. The time of the

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accident is stated as 11.30 p.m. before the doctor. In the FIR/complaint, it is stated that the accident occurred on 30.01.2014 at 23.45 p.m. In Ex.P2-complaint, the date 30.01.2014 is interpolated. Further, Ex.P1 shows that FIR was registered on 31.01.2014 at 1.00 a.m. Production of certified copy of the FIR would have shown when the FIR was delivered to the Magistrate and whether really it was registered at 1.00 a.m. Materials on record show that respondent No.3-driver of the car, at the earliest point of time in the hospital, gave two versions. First one being the victim meeting with an accident while riding the motorcycle and second one being that he was hit by four-wheeler. But for the first time in his complaint, he comes up with the theory of victim being hit by another two-wheeler, being tossed in front of his vehicle, falling in front of car bearing No.KA-04/C-8494 and the victim being drunk. That goes to show that all was not well with respondent No.3.

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The spot sketch and spot mahazar show that the whole story was narrated by respondent No.3 before the Investigating Officer. Having done so, respondent No.3 did not contest the claim petition before the Tribunal. The insurer

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also did not examine respondent No.3 to prove that the accident occurred in the way narrated in the complaint/FIR. On overall assessment of the evidence, only available irresistible inference is that respondent No.3 to escape his liability, has orchestrated the involvement of Honda Dio bearing No.KA-05/EF-6213 which was ultimately found to be non-existent. It is settled position of law that FIR/charge sheet are not conclusive proof and the evidence has to be holistically examined. The Tribunal on judicious appreciation of the evidence, rightly held that the accident occurred due to actionable negligence of respondent No.3/driver of TATA Winger car bearing No.KA-04/C-8494. No illegality or perversity is found in the said finding.

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Reg. Quantum:

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The Tribunal, based on date of birth of victim shown in Ex.P11/copy of Aadhaar card has considered the age of the deceased as on the date of accident as 31 years. There is no serious dispute about the same. Claimant contended that at the time of accident deceased was working as Senior Software Specialist in Streamline Health Care Solution Pvt. Ltd. and earning salary of Rs.66,400/- p.m. To prove that,

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they relied on Ex.P13-salary slip and Ex.P12-achievement letter. To prove the employment and the said salary, unfortunately the claimants did not examine the employer and the author of Ex.P13. The Tribunal, referring to the evidence of PW-1 that he had no knowledge of the IT returns of the deceased and due to non production of the IT returns or bank statement of the deceased, notionally considered his income at Rs.8,500/- p.m.

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Claimant filed I.A.No.1/2022 in MFA No.7718/2022

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seeking leave to produce the following documents:

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1.	Offer Letter of employment of S. Ganesh dated 26.06.2012.	the decea	sed Sri.
2.	Achievement Letter with Annexure.	Revised	Salary
3.	Income tax Returns of the Ganesh.	deceased	Sri. S.
4.	Bank Account Passbook.
5.	Educational Certificates/Mark deceased Sri. S. Ganesh.	s Card	of the
6.	Convocation Certificate.

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The insurer or the other adversaries of the claimant have not filed any objections to the said records. In the affidavit filed in support of the application, claimant No.1mother of the deceased stated that deceased was having custody of all personal documents and claimants were not aware of the whereabouts of those documents. Therefore,

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they could not produce the same and they were also in trauma of the death of their son. It is material to note that claimant No.2-father of the deceased, at the time of filing of claim petition was aged 67 years and claimant No.1 was aged 58 years. Claimant No.2 died during the pendency of the petition soon after his evidence was over. The claim petition was disposed of on 19.09.2022. Further, documents at Sl.No.3 consists of income tax returns of the deceased for the assessment year 2012-13 and Form No.16 issued by his employer on 06.07.2014. Claimant has also produced statement of account of the deceased in Axis Bank. Since Form No.16 which relates to the above said period is not disputed and that corroborates Ex.P13, the same can be taken into consideration. As per the said Form No.16, the annual income of the deceased was Rs.4,70,162/-. Out of that, Rs.15,155/- was deducted towards tax and professional tax of Rs.2,400/- p.m. has to be deducted (Rs.15,155 + Rs.2,400 =) Rs.17,555/-. Therefore, his net annual income comes to (Rs.4,70,162 – Rs.17,155 =) Rs.4,52,607. Having regard to the nature of employment, age of the deceased and judgment of Hon'ble Supreme Court in National Insurance Co.Ltd.

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Vs. Pranay Sethi and others¹ , 40% has to be superadded to his income by way of future prospects which comes to (Rs.4,52,607 x 40% =) Rs.1,81,043. Therefore, his gross income would be Rs.4,52,607 + 1,81,043 = Rs.6,33,650/-. As the deceased was bachelor, as per the judgment of the Hon'ble Supreme Court in Sarla Verma & Ors. vs. Delhi Transport Corporation & another² , 50% has to be deducted towards his personal expenses and applicable multiplier is 16. Therefore, the compensation payable under the head of loss of dependency comes to (Rs.6,33,650 x 50%= Rs.3,16,825/- x 16 =) Rs.50,69,200/-.

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As per the judgment of the Hon'ble Supreme Court in Pranay Sethi’s case referred to supra and Magma General Insurance Company Ltd. v. Nanu Ram³ , each of the claimants are entitled to compensation of Rs.40,000/under the head loss of consortium. As per the judgment of the Hon'ble Supreme Court in Pranay Sethi's case referred to supra, claimants are entitled to compensation of Rs.15,000/- + Rs.15,000/- under the heads of loss of estate

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1 AIR 2017 SC 5157

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2 2009 (6) SCC 121

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3 2018 (18) SCC 130

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and funeral expenses. Therefore, just compensation payable

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is as follows:

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Sl.	Particulars	Amount (Rs.)
No.
1	Loss of dependency	50,69,200/-
2	Loss of consortium	80,000/-
3	Loss of estate	15,000/-
4	Funeral expenses and transportation of dead body	15,000/-
	Total	51,79,200/-
	Awarded by Tribunal	12,22,400/-
	Enhanced compensation	39,56,800/-

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It is no doubt true that the claimants had sought compensation of Rs.50,00,000/-. However, it is settled law that irrespective of the claim made in the claim petition, what is to be awarded is the just compensation even if the claim is on the lower side. Since claimant No.2 died during the pendency of appeal, whatever rights or estate had accrued to him devolves on claimant No.1, the sole surviving claimant. Therefore, she is entitled to enhanced compensation of Rs.39,56,800/- with interest at 6% p.a. from the date of petition till its realization. There is no dispute that respondent Nos.1 and 4 being the registered owner and insurer are liable to pay the said compensation. Respondent No.4 being the

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insurer is liable to indemnify the damages. Hence, the following:

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ORDER

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i. MFA Nos.417/2023 is hereby dismissed.

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ii. MFA No.7718/2022 is allowed-in-part.

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iii. I.A.No.1/22 in MFA No.7718/2023 is partly

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allowed.

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iv. The surviving claimant i.e. claimant No.1 in MVC No.5061/2015 is entitled to enhanced compensation of Rs.39,56,800/- with interest thereon at 6% p.a. from the date of petition till its realization.

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v. Respondent Nos.1 and 4 are jointly and severally liable to pay the said compensation.

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vi. Respondent No.4 being the insurer shall deposit the enhanced compensation with accrued interest before the Tribunal, within six weeks from the date of receipt of copy of this order.

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vii. On such deposit, the Tribunal shall invest 50% of the enhanced compensation in Fixed Deposit for a period of 3 years in any Nationalised or Scheduled bank of the choice of

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