Karnataka High Court
Shriram General Insurance Co Ltd vs Smt Manchamma on 13 February, 2020
Equivalent citations: AIRONLINE 2020 KAR 429
Author: N S Sanjay Gowda
Bench: N.S.Sanjay Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY 2020
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
M.F.A.No.5535/2017 C/W
M.F.A.CROB.No.172/2018
IN M.F.A.No.5535/2017
BETWEEN:
SHRIRAM GENERAL INSURANCE CO. LTD.,
E-8, EPIP RIICO, SITHAPURA INDUSTRIAL
AREA, JAIPUR, RAJASTHAN 302 022,
NOW REPRESENTED BY DEPUTY MANAGER LEGAL,
SHRIRAM GENERAL INS. CO. LTD.,
#5/4, 3RD FLOOR, S V ARCADE,
BILEKAHALLI MAIN ROAD, OFF: B.G.
ROAD, IIM POST, BENGALURU-560 076.
... APPELLANT
(BY SRI. A.N.KRISHNA SWAMY, ADVOCATE)
AND:
1. SMT. MANCHAMMA, W/O LATE DODDAIAH,
NOW AGED ABOUT 46 YEARS,
2. DEEPIKA, D/O LATE DODDAIAH,
NOW AGED ABOUT 23 YEARS,
SINCE MENTALLY UNSOUND REPTD. BY HER
GUARDIAN SISTER G.D.SHOBHA, NAMELY
THE 3RD RESPONDENT HEREIN
2
3. SMT. G.D.SHOBHA, W/O MURALIDHAR D.V.
D/O LATE DODDAIAH,
NOW AGED ABOUT 25 YEARS
ALL R/O No.644, 5TH MAIN,
GODHAVARI NADHI ROAD, PIPELINE
SRINAGAR, BANASHANKARI,
BENGALURU-560 050.
4. GIRISH H.S., S/O SUREGOWDA, MAJOR
R/O No.19, HANUMANAHALLI VILLAGE,
MAVINAKERE POST, HALEKOTE HOBLI,
HOLENARASIPURA TALUK,
HASSAN DISTRICT-573 201. ... RESPONDENTS
(BY SRI. N. GOPALKRISHNA, ADVOCATE FOR R-1
TO R-3, R-4 SERVED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:18.04.2017 PASSED IN MVC No.3234/2016 ON THE
FILE OF THE 7TH ADDITIONAL JUDGE & 32ND ACMM, COURT
OF SMALL CAUSES, BENGALURU, AWARDING
COMPENSATION OF Rs.16,20,000/- WITH INTEREST AT 8%
P.A. FROM THE DATE OF PETITION TILL RELIZATION.
IN M.F.A.CROB.No.172/2018
BETWEEN:
1. SMT. MANCHAMMA, W/O LATE DODDAIAH,
NOW AGED ABOUT 47 YEARS,
2. DEEPIKA, D/O LATE DODDAIAH,
NOW AGED ABOUT 24 YEARS,
3. G.D.SHOBHA, W/O MURULIDHAR D.V.
D/O LATE DODDAIAH,
NOW AGED ABOUT 26 YEARS,
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2ND APPELLANT IS OF UNSOUND MIND,
SHE REPRESENTED BY NEXT FRIEND,
HER SISTER, 3RD APPELLANT HEREIN.
ALL ARE RESIDING AT No.644, 5TH MAIN,
GODHAVARI NADHI ROAD,
PIPELINE, SRINAGAR, BANASHANKARI,
BANGALORE-560 050.
... CROSS OBJECTORS
(BY SRI. GOPAL KRISHNA N., ADVOCATE)
AND:
1. SHRIRAM GENERAL INSURANCE CO. LTD.,
E-8, EPIP SITHAPURA, INDUSTRIAL AREA
JAIPUR-302 022. RAJASTANA,
REP. BY ITS MANAGER.
2. SRI. GIRISH H.S, S/O SUREGOWDA,
MAJOR IN AGE, RESIDING AT No.19,
HANUMANAHALLI VILLAGE,
MAVINAKERE POST, HALEKOTE HOBLI,
HOLENARASIPURA TALUK,
HASSAN DISTRICT-573 211. ... RESPONDENTS
(BY SRI. A.N. KRISHNASWAMY, ADVOCATE FOR R-1,
V/o DATED 5/2/2010 NOTICE TO R-2 IS
DISPENSED WITH)
THIS M.F.A.CROB. IN M.F.A.No.5535/2017 PASSED U/O
41 RULE 22(1) OF CPC, R/W SEC.173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DT:18.04.2017
PASSED ON MVC No.3234/2016 ON THE FILE OF THE VII
ADDITIONAL JUDGE & XXXII ACMM, COURT OF SMALL
CAUSES, BENGALURU (SCCH-03), PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
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THIS APPEAL A/W M.F.A.CROB COMING ON FOR
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
1. Both the Insurance Company and the claimants are in appeal challenging the compensation of Rs.16,20,000/- awarded by the Tribunal for the death of Venkatesh.
2. Facts are not in dispute that Venkatesh, who was an Engineering graduate, when riding a motorcycle bearing registration No.KA-41/W-1610 from Bengaluru to Yediyuru along with two pillion riders, was hit by a lorry bearing registration No.KA-13/B-288 from behind, as a result of which Venkatesh died on the spot and two pillion riders sustained grievous injuries.
3. As a consequence, three claim petitions were filed i.e., one by the mother and sisters of deceased Venkatesh and two by the two pillion riders.
4. The petition was not contested by the owner of the lorry.
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5. The Insurance Company resisted the petition by filing a written statement, in which, they denied all the averments. They also took up a contention that the motorcycle was carrying two pillion riders and this was a breach of the traffic regulations and therefore, they would not be liable.
6. The Tribunal, on consideration of evidence adduced before it, came to the conclusion that an accident had in fact occurred in the manner stated in the claim petition and the driver of the lorry was responsible for the accident.
7. The Tribunal, thereafter, proceeded to award the following sums as compensation:
1 Loss of dependency 15,30,000 2 Loss of love and affection and caretaker 60,000 3 Loss of estate 10,000 4 Transportation of dead body and funeral 20,000 expenses Total 16,20,000
8. Learned counsel for the Insurance Company contended that the Tribunal could not have made the Insurance Company liable when there was a clear admission that the deceased was riding the motorcycle along with two pillion 6 riders and this gross infringement of Motor Vehicles Rules and Regulations by itself would exonerate the Insurance Company of any liability. He contended that in cases where the riders of a motorcycle are guilty of wrong doing or were admittedly, in violation of minimum requirement of riding a motorcycle, the Insurance Company cannot be made liable and the entire negligence ought to be attributed to the rider who infringed the Rules.
9. He also contended that the fact that three people riding on a motorcycle was itself sufficient proof that rider could not obviously drive a motorcycle in a safe and prudent manner. According to him, when the driver is pushed into a smallwe space by two pillion riders riding behind him, the possibility of the accident, was not only definite, but imminent. He, therefore contended that having regard to the facts and circumstances of the case, the Tribunal ought to have dismissed the claim petition at least insofar as the rider of the motorcycle was concerned.
10. Learned counsel for the claimant contended that question was as to whether the motorcycle being driven with 7 extra pillion rider can by itself be a factor to determine the negligence. Learned counsel also contended that there was absolutely no evidence on record to indicate that carrying of an extra pillion rider resulted in the accident. He would also contend that since the driver of the lorry did not choose to adduce any evidence, the Tribunal has rightly held the lorry driver alone responsible.
11. He also contended that the Tribunal has committed a serious error in determining the monthly income of the deceased at Rs.10,000/- when there was abundant evidence on record to show that he was earning more than Rs.30,000/- per month. He, therefore, sought for enhancement of compensation.
12. I have considered the contentions of learned counsel for both parties and perused the materials on record.
13. It is not in dispute that the deceased was riding a motorcycle along with two pillion riders. However, the question that follows would be whether carrying of extra passenger was the cause of the accident.
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14. In the instant case, it is not in serious dispute that the motorcycle was hit by the lorry from behind. The manner in which the accident occurred by itself indicates that the accident could not have occurred due to carrying of extra passenger. No doubt, the rider of the motorcycle was in violation of the traffic rules in carrying an extra passenger, however that by itself cannot be a ground to absolve the Insurance Company or the owner of the offending vehicle of any liability.
15. The Apex Court in a recent judgment in the case of MOHAMMED SIDDIQUE & ANOTHER Vs. NATIONAL INSURANCE COMPANY LIMITED in Civil Appeal No.79/2020 dated 08.01.2020 has observed as under:
"13. But the above reason, in our view, is flawed. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the 9 driver of a two-wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194-C inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or even death due 10 to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motor cycle. It is not even the case of the insurer that the accident would have been averted, if three persons were not riding on the motor cycle. The fact that the motor cycle was hit by the car from behind, is admitted. Interestingly, the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motor cycle from behind, are all not assailed. Therefore, the finding of the High Court that 2 persons on the pillion of the motor cycle, could have added to the imbalance, is nothing but presumptuous and is not based either upon pleading or upon the evidence on record. Nothing was extracted from PW-3 to the effect that 2 persons on the pillion added to the imbalance." 11
16. In the light of the decision of the Apex Court, the contention of the Insurance Company that they should be absolved of any liability, only because an extra passenger was being carried in a motorcycle, cannot be accepted.
17. As far as compensation is concerned, the Tribunal has assessed the monthly income of the deceased at Rs.10,000/-. The Tribunal has chosen to ignore the evidence produced by the claimants regarding the income that the deceased was earning during his life time. Ex.P.14 is a certificate issued under Section 203 of the Income Tax Act for the tax deducted at source on salary. The said certificate indicates that for the period 2011-12, the deceased was employed with an employer called 'Vantage Point Infotech' and was paid a gross salary of Rs.2,58,000/- per annum and a sum of Rs.2,400/- was deducted towards professional tax.
18. This document clearly establishes that the deceased, an Engineering graduate was employed a few years before the accident and was already earning a sum of Rs.2,58,000/- per annum. Though the claimants had produced further letters of 12 offer indicating that the deceased was offered a higher salary, I am inclined to accept the income of the deceased at Rs.2,55,600/- (2,58,000 - 2,400) per annum since that was the salary mentioned in the certificate issued by the employer after deducting tax. I, therefore, take the income of the deceased at Rs.2,55,600/- per annum as against Rs.84,000/- per annum as determined by the Tribunal. The deceased being an Engineering graduate would also be entitled to future prospects at the rate of 40% which would make his annual income to Rs.3,57,840/-. The deceased being a bachelor, 50% of the said sum would have to be deducted and the annual income would come to Rs.1,78,920/-. As the deceased was aged 29 years as on the date of the accident, the multiplier to be adopted is 17 and therefore, claimants would be entitled for loss of dependency at Rs.30,41,640/- (1,78,920 X 17).
19. The 1st claimant being the mother and the 2nd claimant being an unmarried sister, who is described as a person of unsound mind, in my view, they are entitled for a sum of Rs.40,000/- each towards loss of love and affection. 13 Further, a sum of Rs.30,000/- is awarded under conventional heads.
20. Thus, the claimants are held entitled for compensation of Rs.31,51640/-.
21. The enhanced compensation shall carry interest at 6% p.a. from the date of petition till its realization.
22. The Insurance Company is directed to deposit the amount of compensation within a period of six weeks from the date of receipt of a certified copy of this judgment.
23. The amount in deposit shall be transmitted to the Tribunal for disbursement in terms of the award of the Tribunal.
Both the appeal and the Cross Objection are accordingly allowed in part.
Sd/-
JUDGE PKS