Karnataka High Court
Sri. K Ramachandra Murthy vs Raghavendra @ Raghavendra Reddy on 14 December, 2023
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NC: 2023:KHC:45574
MFA No. 3154 of 2019
C/W MFA No. 5232 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 3154 OF 2019 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 5232 OF 2019 (MV-D)
IN M.F.A. NO. 3154 OF 2019
BETWEEN:
RAGHAVENDRA @ RAGHAVENDRA REDDY,
S/O CHANDRASHEKHAR REDDY,
AGED ABOUT 47 YEARS,
R/AT KARADAGURU VILLAGE,
SRINIVASASANDRA POST,
BANGARPET TALUK,
KOLAR DISTRICT-563 114.
PRESENTLY R/AT 'MURALI NILAYA'
4TH MAIN, KALAPPA REDDY MAIN ROAD,
AGRAHARA LAYOUT,
Digitally signed
by YALAHANKA, BANGALORE-560 064.
VIJAYALAKSHMI
BN ...APPELLANT
Location: High
Court of
(BY SRI GOWTAMDEV C. ULLAL, ADVOCATE [PH])
Karnataka
AND:
1. SRI. K. RAMACHANDRA MURTHY,
S/O LATE KRISHNAPPA,
AGED ABOUT 60 YEARS.
2. SMT. N.RATHNA,
W/O RAMACHANDRA MURTHY,
AGED ABOUT 48 YEARS.
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NC: 2023:KHC:45574
MFA No. 3154 of 2019
C/W MFA No. 5232 of 2019
3. VINOD R.
S/O RAMACHANDRA MURTHY,
AGED ABOUT 27 YEARS,
ALL ARE RESIDING AT:
NO.903, 4TH MAIN, 9TH CROSS,
AGRAHARA LAYOUT,
YELAHANKA, BANGALORE-560064.
4. IFFCO-TOKIO GENERAL INSURANCE CO. LTD.,
REGD.OFFICE: IFFCO SADAN,
C1 DIST. CENTRE, SAKET,
NEW DELHI-11007.
REGIONAL OFFICE AT
SAI RANGA BUILDING,
5TH CROSS, T.G.EXTENSION,
HOSAKOTE, BANGALORE RURAL,
BANGALORE-562114.
...RESPONDENTS
(BY SRI B. PURANDARA, ADVOCATE FOR R1 TO R3 [PH];
SRI. MURALIDHAR NEGAVAR, ADVOCAT FOR R4 [PH])
THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED 18.01.2019, PASSED IN MVC
NO.5969/2017, ON THE FILE OF IX ADDITIONAL SMALL
CAUSES JUDGE & XXXIV ACMM, COURT OF SMALL CAUSES
AND MEMBER, MACT-7, BENGALURU, AWARDING
COMPENSATION OF RS.12,39,600/- ALONG WITH FUTURE
INTEREST AT THE RATE OF 6% P.A, FROM THE DATE OF
PETITION TILL REALIZATION OF ENTIRE AMOUNT.
IN M.F.A. NO 5232 OF 2019
BETWEEN
1 . SRI K.RAMACHANDRA MURTHY,
S/O LATE KRISHNAPPA,
AGED ABOUT 60 YEARS,
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NC: 2023:KHC:45574
MFA No. 3154 of 2019
C/W MFA No. 5232 of 2019
2 . SMT.N.RATHNA,
W/O RAMACHANDRA MURTHY,
AGED ABOUT 50 YEARS.
3. VINOD R,
S/O RAMACHANDRA MURTHY,
AGED ABOUT 29 YEARS.
ALL ARE RESIDING AT NO.903,
4TH MAIN, 9TH CROSS,
AGRAHARA LAYOUT,
YELAHANKA,
BANGALORE-560064.
...APPELLANTS
(BY SRI BOPANNA B, ADVOCATE)
AND:
1 . RAGHAVENDRA @ RAGHAVENDRA REDDY,
S/O CHANDRASHEKHAR REDDY,
AGED ABOUT 47 YEARS,
R/O KARADAGURU VILLAGE,
SRINIVASASANDRA POST,
BANGARPET TALUK,
KOLAR DISTRICT-563 114.
PRESENTLY R/AT "MURALI NILAYA",
4TH MAIN, KALAPPA REDDY MAIN ROAD,
AGRAHARA LAYOUT,
YALAHANKA, BANGALORE-64,
(RC OWNER OF THE FERGUSON TRACTOR
BEARING NO.KA-08-T-5831)
2 . IFFCO-TOKIO GENERAL INSURANCE
COMPANY LTD.,
REGD.OFFICE: IFFCO SADAN,
C1 DIST:CENTRE, SAKET,
NEW DELHI-110017.
REGIONAL OFFICE AT
SAI RANGA BUILDING,
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NC: 2023:KHC:45574
MFA No. 3154 of 2019
C/W MFA No. 5232 of 2019
5TH CROSS, T.G.EXTENSION,
HOSAKOTE, BANGALORE RURAL,
BANGALORE-562 114.
...RESPONDENTS
(BY SRI GOWTHAMDEV C. ULLAL, ADVOCATE FOR R1;
SRI MURALIDHAR NEGAVAR, ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED 18.01.2019 PASSED IN
MVC.NO.5969/2017 ON THE FILE OF THE IX ADDITIONAL
SMALL CAUSES JUDGE AND XXXIV ACMM, COURT OF SMALL
CAUSES, MEMBER, MACT-7, BENGALURU, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMENSATION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY THROUGH VIDEO CONFERENING AT
KALABURAGI, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals arise out of the judgment and award passed in MVC.No.5969/2017 by the learned IX Addl. Small Causes and Addl. MACT., Bangalore, (SCCH-7) dated 18.01.2019, whereby, the Tribunal awarded a compensation of Rs.12,39,600/- and fastened the liability on the owner of the vehicle.
2. The factual matrix of the case made out by the petitioners before the Tribunal is that the petitioner Nos.1 and 2 are the parents of the deceased Ananda and the -5- NC: 2023:KHC:45574 MFA No. 3154 of 2019 C/W MFA No. 5232 of 2019 petitioner No.3 is brother of the deceased. It was contended that on 27.08.2017 at about 12.30 p.m., when the deceased Ananda was proceeding along with his friend by name Nagaraju sitting adjacent to him in the Tractor- cum-Water Tanker, the said Nagaraju drove the same in rash and negligent manner and suddenly applied the brake, resulting in the deceased Ananda falling down on the road and the wheel of the Tractor running over him, causing injuries to him. It was stated that the deceased Ananda was immediately shifted to Regal Hospital, Hegdenagara, where he was declared brought dead. Immediately after the accident, at about 4.00 p.m., the petitioner No.3-Vinod, filed a complaint before the jurisdictional Police, who registered a case and investigated the matter. It was contended that the deceased Ananda was aged 24 years at the time of the accident and he was earning his livelihood by working as a driver on his own Tata Indica Car and his income was Rs.20,000/- per month. It is contended that the petitioners were depending on the earning of the deceased -6- NC: 2023:KHC:45574 MFA No. 3154 of 2019 C/W MFA No. 5232 of 2019 and therefore, they are entitled for the compensation from the owner and insurer of the said Tractor-cum-Water Tanker.
3. On issuance of notice, the respondent Nos.1 and 2 appeared before the Tribunal and filed their written statements. The respondent No.1, who is the owner of the Tractor contended that the Tractor was insured with the respondent No.2 and the policy was in force as on the date of the accident. It was stated that there was negligence on the part of the deceased Ananda and he was in drunken condition at the time of the alleged accident and as such contributory negligence has to be considered by the Tribunal. Inter-alia it was also contended that the compensation claimed is highly exorbitant, imaginary and untenable and therefore, the respondent No.1 be absolved from the liability.
4. Respondent No.2-Insurance Company contended that though the Tractor was covered by the policy issued, the terms and conditions of the policy were violated and -7- NC: 2023:KHC:45574 MFA No. 3154 of 2019 C/W MFA No. 5232 of 2019 that it was an 'Act only' policy. It was contended that the terms and conditions of the policy as required under Sections 134(C) and 158(6) of Motor Vehicles Act were violated and that the deceased being a gratuitous passenger on the said vehicle, insurer is not liable to pay the compensation to the petitioners. It is contended that the Tractor was not at all meant for the travel by passenger and that the driver of the Tractor was not having a valid driving licence. Therefore, it was contended that respondent No.3 be absolved of liability to pay any compensation.
5. On the basis of the above pleadings, the Tribunal framed necessary issues and the petitioner No.2 was examined as PW.1 and Exs.P1 to Ex.P6 were marked. The respondent No.2 examined its official as RW.1 and Ex.R1-Insurance Policy was marked.
6. After hearing the arguments by both the sides, the Tribunal proceeded to award a compensation of Rs.12,39,600/- and fastened the liability on the -8- NC: 2023:KHC:45574 MFA No. 3154 of 2019 C/W MFA No. 5232 of 2019 respondent No.1-owner of the Tractor and absolved the liability on respondent No.2. The Tribunal held that the policy was 'act only' policy and also that there was violation of the terms and conditions of the policy as the deceased was an unauthorized passenger over the said vehicle.
7. Being aggrieved by the said judgment and award, the respondent No.1-owner of the vehicle has approached this Court in appeal MFA.No.3154/2019 assailing the liability being fastened upon him. The petitioners have approached this Court in appeal in MFA.No.5232/2019 contending that the compensation awarded by the Tribunal is on the lower side and the same needs to be enhanced.
8. On issuance of notices, the respondents in both the appeals have appeared. The Trial Court records have been secured.
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9. The arguments by the learned counsel for the appellants in both the cases and the arguments by learned counsel for the Insurance Company are heard.
10. The learned counsel appearing for the appellant-owner of the Tractor in MFA.No.3154/2019 submits that the policy was in force as on the date of the accident and the deceased was drunk and he came and sat by the side of the driver as mentioned in the charge sheet. It is contended that the deceased could not have sat by the side of the driver and therefore, there is contributory negligence on the part of the deceased. It was also contended that the deceased in fact had come across the motion of the Tractor and sufficient opportunity was not granted to the appellant to lead evidence before the Tribunal. It is also alternatively contended that an order of pay and recovery may be considered in view of the decision in the case of NATIONAL INSURANCE CO. LTD. VS. SWARAN SINGH1. Learned counsel for the insured 1 (2004) 3 SCC 297
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NC: 2023:KHC:45574 MFA No. 3154 of 2019 C/W MFA No. 5232 of 2019 has also relied on the decision in the case of PRAMODKUMAR RASIKBHAI JHAVERI VS KARMASEY KUNVARGI TAK & OTHERS2 and MUNICIPAL CORPORATION OF GREATER BOMBAY VS. LAXMAN IYER AND ANOTHER3. The facts and circumstances in both these decisions are totally different and they are not concerning the use of the Tractor and therefore, they cannot be made applicable to the case on hand. The other judgments relied will be considered in the following paragraphs.
11. Learned counsel appearing for the claimants/petitioners contended that the FIR and the chargesheet categorically mentioned that the deceased was on the Tractor driven by its driver and the vehicle owned by respondent No.1. He submits that the cross- examination of the PW.1 show that while climbing the Tractor the accident had happened. It is submitted that the deceased was working a driver and the Tribunal 2 2002 (6) SCC 455 3 2003 (8) SCC 731
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NC: 2023:KHC:45574 MFA No. 3154 of 2019 C/W MFA No. 5232 of 2019 considers the notional income of the deceased at Rs.8,000/- which is meager and the notional income commensurate to the year 2017 should have been considered by the Tribunal. He submits that there was no negligence on the part of the deceased and therefore, the Tribunal was right in fastening the actionable negligence on the owner.
12. Learned counsel appearing for the Insurance Company contends that the Tribunal has rightly considered the fact that the policy was an 'act only policy' and therefore, it did not cover the occupant of the vehicle, even if it is permitted. Secondly, he contends that the Tractor is meant for only one person to be seated and it could not have accommodated another passenger. The Tractor was not attached with any Trailer, but it was a Tanker and therefore, there is fundamental breach of the conditions of the policy and as such, the Tribunal has rightly absolved the Insurance Company from paying any compensation.
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NC: 2023:KHC:45574 MFA No. 3154 of 2019 C/W MFA No. 5232 of 2019
13. In the light of the above submissions, the points that arise for consideration are :
i) Whether the Tribunal was justified in absolving the liability of the insurer as there was fundamental breach of conditions of the policy?
ii) Whether there was contributory negligence on the part of the deceased?
iii) Whether the quantum of the compensation awarded by the Tribunal is just and reasonable?
Re. Point No.1:
14. It is relevant to note that the deceased Ananda died in the road traffic accident on 27.08.2017 and immediately after the accident the FIR was registered is not in dispute. So also that fact the respondent No.1 was the owner of the Tractor and the Tractor was insured with the respondent No.2 is also not in dispute. Therefore, the question is whether there was violation of the terms and conditions of the policy.
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15. The perusal of the FIR and the chargesheet produced at Exs.P1 and P5 show that after investigation the Investigating Officer had filed the chargesheet against the driver of the Tractor. It was stated in the FIR that the deceased Ananda was sitting by the side of the driver i.e., Nagaraju. It was stated that the Tractor-cum-Water Tanker was driven in negligent manner and the brakes were applied suddenly and therefore, Ananda fell down and the Tractor run over him. In the chargesheet at Ex.P5 it is stated that the driver Nagaraju had allowed the deceased Ananda to sit by his side and due to sudden application of the brakes, the deceased Ananda had fallen and the Tractor run over him. The spot sketch produced at Ex.P6 also show that the Tractor was being driven on the left side of the Thirumenahalli main road. The perusal of the testimony of the PW.1 show that he is not an eyewitness to the accident, but it is elicited in the cross- examination that she came to know that Ananda was sitting by the side of the driver of the Tractor. She has denied the suggestion that the deceased tried to claim the
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NC: 2023:KHC:45574 MFA No. 3154 of 2019 C/W MFA No. 5232 of 2019 Tractor and then he fell down. It was suggested that there was contributory negligence on the part of the deceased and such suggestion has been denied. The other suggestions that he was not earning anything etc., are denied by her.
16. Except the evidence of the PW1, there is no other evidence adduced on the part of the petitioners.
17. The above evidence on record clearly shows that the deceased was traveling by the side of the driver on the Tractor. Obviously, the Tractor is meant for traveling by only one person and it has to be construed that the deceased was sitting by the side of the driver on the mudguard. Though the learned counsel for the respondent No.1-owner of the Tractor has contended that there was contributory negligence on account of the deceased consuming alcohol, the PM report produced at Ex.P2 show that there was no traces of the alcohol in the stomach of the deceased. Therefore, the contributory
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NC: 2023:KHC:45574 MFA No. 3154 of 2019 C/W MFA No. 5232 of 2019 negligence on the part of the deceased on account of he consuming alcohol is not established.
18. The learned counsel for the appellant-owner submits that the deceased was the driver by profession as contended by the petitioners and he was well aware that he should not traveled on the Tractor and such negligent traveling on the Tractor would itself amount to a contributory negligence. In this regard, he relies on the decision in the case of SMT. SHIVLEELA AND OTHERS VS. KARNATAKA STATE ROAD TRANSPORT CORPORATION, BY MANAGING DIRECTOR, BANGALORE4. In this decision, a Division Bench of this Court was considering a case where certain passengers were traveling on the roof top of the bus and the said bus had met with an accident. It was held that the passenger takes a risk by traveling in breach of law and he must share the consequences flowing there from. It was observed that though there is a duty cast on the driver 4 ILR 2003 Kar. 3602
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NC: 2023:KHC:45574 MFA No. 3154 of 2019 C/W MFA No. 5232 of 2019 and conductor the public carriage passenger vehicle, at the same time a passenger who is traveling on the roof top could not have been prevented by the driver and the conductor and therefore, it fastened a contributory negligence to the extent of 50% on the passenger who was traveling on the roof top. Learned counsel would submit that in a case on hand also, the deceased Ananda being a driver with valid driving licence, knew that he could not travel on the mudguard of the Tractor and it was violation of the Motor Vehicle Rules and therefore, contributory negligence has to be considered by this Court.
19. On a careful perusal of the above submissions, it is evident that the petitioners have specifically contended that the deceased was working as a driver on his Indica Car and he was earning Rs.20,000/- per month. Therefore, it has to be presumed that the deceased was aware of the Motor Vehicle Rules and he could not have traveled on the side of the driver Nagaraju. Hence, there
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NC: 2023:KHC:45574 MFA No. 3154 of 2019 C/W MFA No. 5232 of 2019 cannot be any doubt that there was also certain degree of contributory negligence on the part of the deceased. In the considered opinion of this Court, such contributory negligence has to be held to be 25%.
Re. oint No.2:
20. The second question that arise is whether there is violation of the terms and conditions of the policy. The copy of the policy produced at Ex.R1 shows that it is only policy and no premium was paid in respect of the inmate of the vehicle. Obviously, the sitting capacity was one and therefore, there could not have been provision for the inmate. Therefore, the decision of the Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED VS. BALAKRISHNAN AND ANOTHER5, is applicable and the inmate of the vehicle is not covered when it is liability only the policy. The fundamental breach of the conditions of the policy cannot be a ground to say that the Insurance 5 AIR 2013 SC 473
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NC: 2023:KHC:45574 MFA No. 3154 of 2019 C/W MFA No. 5232 of 2019 Company should be directed to pay and recover the same from the owner of the vehicle.
21. Learned counsel appearing for the owner of the vehicle relies on the decision in the case of SHIVAWWA AND ANOTHER V/S BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD. AND ANOTHER6. In this decision, it was held that even assuming that the Insurance Company is not liable to pay the compensation awarded, the insurer would still be liable to pay the compensation amount in the first instance with liberty to recover the same from the vehicle owner. The Apex Court had relied on the decision in the case of SWARAN SINGH(Supra). It is to be noted that the said case was emanating from a circumstance that the deceased was a traveler in the Trailer. Though a feeble contention was raised that the deceased was standing on the connector between the Trailer and Tractor when the accident happened, that was not accepted by the Apex Court and 6 2018 (5) SCC 762
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NC: 2023:KHC:45574 MFA No. 3154 of 2019 C/W MFA No. 5232 of 2019 the view taken by the Tribunal was upheld. The deceased was found to be a loader in the said Tractor and the purpose of the usage of the vehicle was for agricultural purpose. Therefore, the Apex Curt fastened the liability on the insurance company.
22. In the case on hand, the deceased was not traveling as representative of the goods. It is not the case of the petitioners that that deceased-Ananda was taking the water for his use. No where such a contention is either taken by the petitioners or by the insured. Under these circumstances, the above decision cannot be applied to the case on hand.
23. The decision of a Full Bench of this Court in the case of GADHILINGAPPA AND ANOTHER VS. K.GULEPPA AND OTHERS7, considers the question of passenger in the Tractor elaborately and it was concluded as below:
7
ILR 2021 Kar 3377 : AIR 2021 Kar 102
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NC: 2023:KHC:45574 MFA No. 3154 of 2019 C/W MFA No. 5232 of 2019 "23. The Apex Court has reiterated that a tractor could lawfully accommodate only one person, namely, the driver. The Apex Court categorically held that the appellant in the said case had travelled in the tractor as a passenger even though the tractor could accommodate only one person namely the driver. It was categorically held that the insurer was not liable to indemnify the owner of the tractor for the liability of a passenger travelling on the tractor. Hence, in view of the dictum of the Apex Court referred above, the liability of a person sitting on the mud-guard of a tractor is not required to be covered by statutory insurance policy, as contemplated by sub-Section (1) of Section 147 of the M.V. Act.
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33. Hence, in view of the decisions of the Apex Court in the case of V. Chinnamma, Shivaraj and Darshana Devi, (supra) and the analysis made above, we have no manner of doubt that a liability of a person working either on the ploughing or crushing machines attached to the tractor and who is travelling on the mud-guard of the tractor is not required to be covered by the statutory insurance as contemplated under sub-Section (1) of Section 147 of the M.V. Act."
24. In view of the above, it is clear that the Insurance Company cannot be fastened with the liability
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NC: 2023:KHC:45574 MFA No. 3154 of 2019 C/W MFA No. 5232 of 2019 either to pay entirely or to pay and recover the compensation amount. Hence, the contention of the learned counsel appearing for the insured cannot be accepted."
25. Point No.3: Coming to the quantum of compensation as contended by the learned counsel appearing for the petitioners, it is not in dispute that the deceased was a driver and aged 24 years, but the income of the deceased as claimed by the petitioners was not proved. The petitioners contended that the deceased was earning Rs.20,000/- per month, but there is no cogent evidence which would prove the income. Therefore, the Tribunal held that the notional income has to be considered and held same to be Rs.8,000/-. By adding 40% towards the future prospects and by applying the principles laid down in the case of NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY SETHI AND OTHERS8, it awarded the compensation amount.
8 AIR 2017 SC 5157
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26. It is relevant to note that the guidelines issued by the Karnataka State Legal Services Authority for the purpose of the settlement disputes before the Lok-Adalath prescribed a notional income of Rs.11,000/- for the year 2017. In umpteen number of decisions, this Court has held that the notional income prescribed by the KSLSA is in general conformity with the wages fixed under the Minimum Wages Act. Therefore, the notional income of the deceased Ananda has to be taken at Rs.11,000/- per month. By adding 40% towards the future prospects, the effective multiplicand would come to Rs.15,400/-. Therefore, the 'loss of dependency' is calculated as Rs.15,400/- x 12 x 18 x 50% = Rs.16,63,200/- by adopting a multiplier '18' and deducting 50% towards the personal expenses of the deceased.
27. Further, under the conventional heads, a sum of Rs.40,000/- with 10% escalation at three years has to be considered and it comes to Rs.48,400/-. Similarly the
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NC: 2023:KHC:45574 MFA No. 3154 of 2019 C/W MFA No. 5232 of 2019 compensation under the head of 'funeral expenses' and 'loss of estate' would be to the tune of Rs.18,150/- each.
28. Therefore, the total compensation entitled by the petitioners would be Rs.17,47,900/-. In view of the above said discussions, the petitioners are entitled for 75% of the compensation amount as the remaining 25% has to be deducted towards the contributory negligence of the deceased. Hence, by deducting 25% which amounts to Rs.4,36,975/-. The petitioners would be entitled for a total compensation of Rs.13,10,925/- as below:
1 Loss of dependency Rs.16,63,200/- 2 Conventional heads Rs.48,400/- 3 Funeral expenses Rs.18,150/-
4 Loss of estate Rs.18,150/-
Total Rs.17,47,900/-
After deduction of 25% Rs.13,10,925/-
contributory negligence
Less awarded by the Tribunal Rs.12,39,600/-
Enhancement Rs.71,325/-
29. In view of the aforesaid reasons, both the appeals deserve to be allowed in part. Hence, the following:
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NC: 2023:KHC:45574 MFA No. 3154 of 2019 C/W MFA No. 5232 of 2019 ORDER Both the appeals are allowed in part. It is held that the deceased has contributed 25% towards the contributory negligence.
The compensation is assessed at Rs.17,47,900/- and after deducting the contributory negligence, petitioners are entitled for a sum of Rs.13,10,925/- instead of Rs.12,39,600/- awarded by the Tribunal.
Respondent No.1-owner of the vehicle is held liable to pay compensation amount along with interest at the rate of 6% from the date of petition till its deposit before Tribunal.
The amount in deposit, if any is ordered to be transmitted to the Tribunal.
Sd/-
JUDGE SMP List No.: 19 Sl No.: 11