M/S National Insurance Company Limited Vs Smt Sujatha

M/S NATIONAL INSURANCE COMPANY LIMITED SRINIVASA MARKET COMPLEX, NO. 1974, CINEMA ROAD, DODDABALLAPURA BENGALURU RURAL DISTRICT - 561203 NOW REP BY ITS REGIONAL OFFICE SHUBHARAM COMPLEX, M G ROAD, BENGALURU - 560001 REP BY ITS AUTHORIZED SIGNATORY

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…APPELLANT

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(BY SRI. K S LAKSHMINARASAPPA, ADVOCATE FOR SRI. A M VENKATESH, ADVOCATE)

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AND:

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Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA

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SMT SUJATHA

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W/O LATE S B NAGABHUSHANA AGED ABOUT 53 YEARS

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DEEPTHI

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S/O LATE S B NAGABHUSHANA AGED ABOUT 26 YEARS BOTH ARE R/AT NO 198 ASHIRWADA NILAYA SOMESHWARA LAYOUT 8TH CROSS, DODDABALLAPURA 561203

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G SIDDALINGAIAH S/O G GANGAMUTHAIAH MAJOR, R/AT SHANTHINAGAR

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NC: 2025:KHC:25253 MFA No. 1492 of 2017

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HC-KAR

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DODDABALLAPURA TOWN 561203

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…RESPONDENTS

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(BY SRI. S D N PRASAD, ADVOCATE FOR R1 & R2 R3 IS SERVED AND UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.07.2016 PASSED IN MVC NO.15/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, DODDABALLAPUR, AWARDING COMPENSATION OF RS.27,72,164/WITH INTEREST AT 6% P.A. FROM THE DATE OF ACCIDENT TILL REALIZATION AND ETC.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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The present appeal is filed by the insurer under Section 173(1) of the Motor Vehicles Act, 1988¹ , calling in question the judgment and award dated 30.7.2016 passed in MVC No.15/2012 by the Court of the Senior Civil Judge and JMFC, Doddaballapur² .

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For the sake of convenience, the parties herein are referred as per their rank before the Tribunal.

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The relevant facts in a nutshell leading to the present appeal are that the wife and daughter of the deceased filed a claim petition contending, inter alia that on 26.01.2012

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1 Hereinafter referred to as ‘Act of 1988’

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2 Hereinafter referred to as ‘Tribunal’

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HC-KAR

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when the deceased was walking on the left side of the road, a motorcycle being driven by its rider in a rash and negligent manner, came in a high speed from the opposite direction and hit the deceased causing the accident in question wherein, the deceased sustained grievous injuries and succumbed to the same on the same day in the hospital.

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Claiming compensation for the death of the deceased, the claimants filed a claim petition arraying the owner and insurer of the motorcycle as respondent Nos.1 and 2 respectively. The owner of the vehicle entered appearance before the Tribunal. However did not file any statement of objections. The insurer, who was respondent No.2 before the Tribunal, filed a statement of objections denying the averments made in the claim petition. It is further contended that the deceased was also negligent in causing the accident and the case was one of contributory negligence.

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Claimant No.1 examined himself as PW.1. Exs.P1

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to P15 have been marked in evidence. No oral or documentary evidence has been adduced on behalf of the respondents. The Tribunal vide its judgment and award dated 30.7.2016 held

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HC-KAR

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that the deceased had contributed in causing the accident to an extent of 15%. Accordingly, the quantum of compensation to the extent of 85% was assessed at ₹27,72,164/- together with interest at 6% p.a. Being aggrieved, the insurer has filed the present appeal.

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Learned counsel Sri K.S.Lakshminarasappa

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appearing for learned counsel Sri A.M.Venkatesh for the appellant/insurer vehemently contends that the finding of negligence at 15% on the deceased is erroneous and that the Tribunal ought to have attributed more negligence on the deceased. It is further contended that the quantum of compensation assessed is on the higher side, inasmuch as the income tax has not been deducted.

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Per contra , learned counsel Sri S.D.N.Prasad, appearing for respondent Nos.1 and 2/claimants contends that the assessment of contributory negligence at 15% is erroneous and that the Tribunal ought to have held that the rider of the insured motorcycle was entirely negligent in causing the accident in question. That the quantum of compensation awarded is on the lower side.

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HC-KAR

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Responding to the contentions put forth by the learned counsel for the claimants, learned counsel for the insurer contends that the claimants not having filed any cross objection or an independent appeal, it is not open to the claimants to question the finding of the Tribunal on negligence or to seek for enhancement of the quantum of compensation.

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The submissions of the learned counsels for the parties have been considered and the material on record, including the records of the Tribunal, have been perused. The questions that arise for consideration are:

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i. Whether the claimants/respondent Nos.1 and 2 are entitled to question the finding of negligence and/or the quantum of compensation in the present appeal filed by the insurer without filing any separate appeal/cross objection in that regard?

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ii. Whether the finding of the Tribunal on negligence is erroneous and liable to be interfered with?

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iii. Whether the quantum of compensation is just and proper?

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Re. question No.(i):

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While it is the contention of the learned counsel for

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the insurer that without filing an appeal/cross objection, in an appeal filed by the insurer, it is not open for the claimants to

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HC-KAR

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assail the finding of negligence or to seek for enhancement of the quantum of compensation, learned counsels for the claimants would contend that even without an independent appeal/cross objection, finding of negligence could be assailed and also seek that the quantum of compensation be enhanced.

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It is relevant to note that a two judge Bench of the Hon’ble Supreme Court in the case of Ranjana Prakash v. Divisional Manager³ , held, inter alia , that the High Court cannot enhance the compensation in an appeal filed by the owner/insurer without an independent appeal/cross objection. However, a three judge Bench of the Hon’ble Supreme Court in the case of Surekha v. Santosh⁴ held as follows:

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“ 2 . By now, it is well-settled that in the matter of insurance claim compensation in reference to the motor accident, the court should not take hypertechnical approach and ensure that just compensation is awarded to the affected person or the claimants.”

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(emphasis supplied)

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A Division Bench of this Court in the case of The

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Divisional Manager v. Smt.Deepa & Ors.,⁵ , following the

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3 2012 AIR SCW 848

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4 (2021) 16 SCC 467

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5 Judgment dated 29.10.2022 passed in MFA No.103732/2017 (Dharwad Bench)

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judgment of the Hon’ble Supreme Court in the case of Surekha⁹ held that even if there is no independent appeal by the claimant, the Court has to award ‘just compensation’ if the claimants are entitled to the same.

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It is also relevant to note that various coordinate

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Benches of this Court while referring to the power of the appellate Court under Order XLI Rule 33 of the Code of Civil Procedure, 1908⁶ have held that the appellate Court is entitled to enhance the compensation in an appeal filed by the insurer without an appeal/cross objection filed by the claimant in that regard.

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It is also a settled proposition of law that while adjudicating a claim petition under the provisions of the Act of 1988, the Tribunal/Court is required to award just compensation and hence is entitled to award a higher compensation than what has been sought for by the claimants in the claim petition.

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6 Hereinafter referred to as ‘CPC’

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HC-KAR

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In the case of Saurav Jain v. M/s. ABP Design⁷ , the Hon’ble Supreme Court was considering a situation as to whether a challenge could be raised to an adverse finding before the appellate Court without a cross objection. While considering the said question, the Hon’ble Supreme Court has held as follows:

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“ 29 . It is apparent from the amended provisions of Order 41 Rule 22CPC and the above authorities that there are two changes that were brought by the 1976 Amendment. First, the scope of filing of a cross-objection was enhanced substantively to include objections against “findings” of the lower court; second, different forms of raising cross-objections were recognised. The amendment sought to introduce different forms of cross-objection for assailing the findings and decrees since the amendment separates the phrase “but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour” from “may also take any cross-objection to the decree” with a semi colon. Therefore, the two parts of the sentence must be read disjunctively. Only when a part of the decree has been assailed by the respondent, should a memorandum of cross-objection be filed. Otherwise, it is sufficient to raise a challenge to an adverse finding of the court of first instance before the appellate court without a crossobjection.”

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(emphasis supplied)

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In view of the discussion made above, having

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regard to the legal position as held by the Hon’be Supreme Court in the case of Surekha⁹ , as well as the Division Bench of

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7 AIR 2021 SC 3673

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HC-KAR

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this Court in the case of Deepa¹⁰ is required to be followed, also keeping in mind the power of the appellate Court under Order XLI Rule 33 of the CPC as well as the legal position as held by the Hon’ble Supreme Court in the case of Saurav Jain¹³ , it is required to be held that even in an appeal filed by the insurer, it is open for this Court to enhance the compensation, if the same is assailed in the course of oral arguments by the claimants. Such an interpretation is required to be made also keeping in mind the fact that the Act of 1988 is a beneficial legislation. It is also required to be noted that the finding of negligence has been assailed by the insurer and the submissions made on behalf of the claimants with regard to the said finding, to the extent the same is detrimental to the claimants are also required to be considered and adjudicated upon.

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In view of the settled legal position as noticed above, question No.(i) framed for consideration is answered in the affirmative .

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HC-KAR

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Re. question No.(ii).

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Although the insurer who was respondent No.2 before the Tribunal has contended in the statement of objections with regard to negligence on the part of the deceased, it is relevant to note that the insurer has not produced any oral or documentary evidence. The claimants have examined PW.1 and have produced various documents including charge sheet (Ex.P25) (wrongly shown as Ex.P10 in the judgment of the Tribunal) as well as spot sketch (Ex.P27) (wrongly shown as Ex.P6 in the judgment of the Tribunal), in support of their case. It is relevant to note here that the charge sheet has been filed against the rider of the motorcycle. Although, the insurer has taken a specific defence, it has not adduced any oral or documentary evidence to demonstrate that the deceased had also contributed in causing the accident in question. The Tribunal, while appreciating the contentions put forth by the parties, had noticed that the deceased had crossed a major portion of the road and a short distance was left for him to reach the other side of the road. Hence, the Tribunal has held that there was contributory negligence on the part of the deceased to an extent of 15%. It is relevant to note here that a

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HC-KAR

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perusal of the sketch (Ex.P27) demonstrates that the spot of the accident was in a corner of the road, which was towards the right side of the rider of the motorcycle. Hence, it is clear that the rider of the motorcycle had come towards his wrong side, wherein the accident had occurred. The Tribunal has not noticed that the police authorities, after investigation have filed a charge sheet against the rider of the motorcycle. In the absence of the insurer having examined any eye-witness or having produced any other material to demonstrate that the investigation carried out was in any manner faulty or erroneous, the finding of the Tribunal attributing negligence to an extent of 15% on the deceased is erroneous and liable to be interfered with. Having regard to the material available on record, more particularly the fact that the charge sheet has been filed against the rider of the motorcycle and there being no other material on record to counter the police documents, it is just and proper that it be held that the rider of the motorcycle was entirely negligent in causing the accident. Hence question No.(ii) is answered partly in the affirmative .

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HC-KAR

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Re. question No.(iii):

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The Tribunal has recorded a finding that the deceased was aged 58 years as on date of accident and has applied the multiplier of 9, which is just and proper.

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It was averred in the claim petition that the claimant was a Headmaster at B.S.A School and was earning a monthly income at ₹48,000/- and had income from agriculture. To demonstrate that the deceased was working at B.S.A School as a Headmaster, the salary certificate (Ex.P8) has been produced as also Ex.P7, which is a consolidated chart demonstrating the details/particulars of the salary of the deceased together with the various components including dearness allowance, House Rent Allowance, etc. It is forthcoming from Ex.P8 that, the school where the deceased was working was a Government aided school. The Tribunal considering the same has recorded a finding that the salary of the deceased as a Headmaster was ₹40,170/- and from the said amount, Professional Tax of ₹200/- was required to be deducted and assessed the monthly income at ₹39,970/-.

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HC-KAR

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The Tribunal has further noticed that in support of the contention that the claimant was an agriculturist, RTCs (Ex.P24) (wrongly shown as Exs.P12 to P15 in the judgment of the Tribunal) have been produced and accordingly, the income of the claimant towards the supervision charges of the agricultural operations was assessed at ₹5,000/- p.m.

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It is forthcoming that while the income of the deceased was assessed at ₹39,970/-, income tax towards the same has not been deducted. Hence, the annual income of the deceased as a Headmaster is (₹39970/-x12) ₹4,79,640/-. If the rate of income tax for the financial year 2011-12 is taken into consideration, income tax of ₹49,920/- is required to be deducted from the annual income of ₹4,79,640/-. Further, if the agricultural income of (₹5,000/-x12) ₹60,000/- is added, the total annual income of the deceased is reassessed as (₹4,29,720/- + ₹60,000/-) ₹4,89,720/-. 10% is required to be added towards future prospects having regard to the judgment of the Hon’ble Supreme Court in the case of National Insurance Co.Ltd., v. Pranay Sethi⁸ and 1/3^rd is required to be deducted towards personal expenses since the deceased

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8 AIR 2017 SC 5157

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was married and is survived by two dependents, who are his wife and daughter who are the claimants. Hence, the loss of dependency is re-assessed as (₹4,89,720/- + 10% - 1/3x9) ₹32,32,152/-.

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Loss of consortium is required to be awarded to the claimants, who are the wife and daughter in terms of the judgment of the Hon’ble Supreme Court in the case of Magma General Insurance Co.Ltd., v. Nanu Ram⁹ at ₹40,000/each with escalation at 20%. Accordingly, the loss of consortium is re-assessed as (₹48,000/-x2) ₹96,000/-.

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The compensation towards loss of estate and funeral expenses is also required to be awarded at ₹15,000/each together with escalation at 20%. Accordingly, the compensation towards the same is re-assessed as ₹18,000/each.

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In view of the compensation awarded on conventional heads, the compensation awarded by the Tribunal would stand accordingly modified.

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9 (2018) 18 SCC 130

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HC-KAR

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Accordingly, the quantum of compensation is re-

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assessed as follows:

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Sl.No	Compensation Head	Amount Awarded by the Tribunal(`)	Amount awarded by this Court(`)
1	Loss of dependency	2752164.00	3232152.00
2	Loss of estate	10000.00	18000.00
3	Loss of consortium	10000.00	96000.00
4	Funeral expenses	0.00	18000.00
	Total	2772164.00	3364152.00

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Accordingly, the claimants are entitled to enhanced compensation of (33,64,152/- - 27,72,164/-) = 5,91,988/and same is rounded off to 5,92,000/-.

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Hence, question No.(iii) framed for consideration is

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answered in the Negative.

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In view of the aforementioned, the following:

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ORDER

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i) The appeal is disposed of;

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ii) The judgment and award dated 30.7.2016 passed in MVC No.15/2012 by the Court of the Senior Civil Judge and JMFC, Doddaballapur, is modified to the extent stated herein. In all other respects, the

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judgment and award of the Tribunal remains unaltered;

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iii) The claimants are entitled to enhanced compensation of `5,92,000/- with interest at 7% pa., from the date of petition till date of payment;

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iv) The amount deposited by the appellant in the above appeal together with records be transmitted to the Tribunal for disbursement in terms of the award of the Tribunal;

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v) The insurer shall deposit the balance compensation, together with accrued interest within a period of six weeks;

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vi) The Registry to draw the modified award accordingly;

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No costs.

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Sd/(C.M. POONACHA) JUDGE

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BS/ND

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List No.: 1 Sl No.: 28

M/S National Insurance Company Limited v. Smt Sujatha

Case brief

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M/S National Insurance Company Limited v. Smt Sujatha

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