Karnataka High Court
C P Manjula vs Ravikumar on 17 April, 2025
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NC: 2025:KHC:16084-DB
MFA No.598/2015
C/W MFA No.761/2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF APRIL, 2025
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE K. V. ARAVIND
MISCELLANEOUS FIRST APPEAL NO.598/2015 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.761/2015 (MV-D)
MFA NO.598/2015:
BETWEEN:
THE BRANCH MANAGER
BAJAJ ALLIANZ GENERAL
INSURANCE COMPANY LIMITED
NO.76/1, KEERTHI COMPLEX
OLD SSI BUILDING, BYEPASS ROAD
NEAR HOSUR BUS STAND, HOSUR
BY BAJAJ ALLIANZ GENERAL
INSURANCE CO. LTD.
REGIONAL OFFICE, GOLDEN HEIGHTS
Digitally 4TH LEVEL, NO.1/2, 59TH CROSS
signed by 4TH M BLOCK, RAJAJINAGAR
BANGALORE - 560 010
ROOPA R U BY IT'S MANAGER ...APPELLANT
Location:
(BY SRI O MAHESH, ADVOCATE)
High Court
of Karnataka AND:
1. C.P.MANJULA
W/O LATE G M NARAYANASWAMY
AGED ABOUT 45 YEARS
2. N NAVEEN
S/O LATE G M NARAYANASWAMY
AGED ABOUT 27 YEARS
3. N MAMATHA
D/O LATE G M NARAYANASWAMY
AGED ABOUT 25 YEARS
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NC: 2025:KHC:16084-DB
MFA No.598/2015
C/W MFA No.761/2015
R1 TO R3 ARE R/AT 11TH CROSS
KADALIPURA MAIN ROAD
KARANJIKATTE, KOLAR
4. MUNISWAMY
S/O YELLAPPA
AGED ABOUT 76 YEARS
5. LAKSHMAMMA
W/O MUNISWAMY
AGED ABOUT 74 YEARS
R4 & R5 ARE R/AT
GOWDAHALLI VILLAGE
SRINIVASAPURA TALUK
KOLARA DISTRICT - 563 101
6. RAVIKUMAR
S/O KENCHAIAH
MAJOR
R/A KADALIPURA, KOLARA - 563 101 ... RESPONDENTS
(BY SMT.SWATI G HEGDE, ADVOCATE FOR
SRI H PAVANACHANDRA SHETTY, ADVOCATE FOR R1 TO R5;
SRI G.R.LAKSHMIPATHI REDDY, ADVOCATE FOR R6)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD DATED 25.11.2014 PASSED IN MVC NO.63/2010 ON
THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM AND
MACT, KOLAR, AWARDING COMPENSATION OF RS.18,93,308/- WITH
INTEREST @ 6% P.A FROM THE DATE OF PETITION.
MFA NO. 761/2015:
BETWEEN:
1. C.P.MANJULA
W/O LATE G M NARAYANASWAMY
AGED ABOUT 45 YEARS
2. N NAVEEN
S/O LATE G M NARAYANASWAMY
AGED ABOUT 27 YEARS
3. N MAMATHA
D/O LATE G M NARAYANASWAMY
AGED ABOUT 25 YEARS
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NC: 2025:KHC:16084-DB
MFA No.598/2015
C/W MFA No.761/2015
APPELLANT NOS.1 TO 3
ARE R/AT 11TH CROSS
KADALIPURA MAIN ROAD
KARANJIKATTE, KOLAR
4. MUNISWAMY
S/O YELLAPPA
AGED ABOUT 76 YEARS
5. LAKSHMAMMA
W/O MUNISWAMY
AGED ABOUT 74 YEARS
APPELLANT NOS.4 & 5
ARE R/AT GOWDAHALLI VILLAGE
SRINIVASAPURA TALUK
KOLARA DISTRICT - 563 101 ... APPELLANTS
(BY SMT.SWATI G HEGDE, ADVOCATE FOR
SRI H PAVANACHANDRA SHETTY, ADVOCATE)
AND:
1. RAVIKUMAR
S/O KENCHAIAH
MAJOR
R/AT KADALIPURA, KOLAR - 563 101
2. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
NO.76/1, KEERTHI COMPLEX
OLD SSI BUILDING
BYEPASS ROAD, NEAR HOSUR BUS STAND
HOSUR - 560 030 ... RESPONDENTS
(BY SRI.G.R.LAKSHMIPATHI REDDY, ADVOCATE FOR R1;
SRI O MAHESH, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED 25.11.2014 PASSED IN MVC
NO.63/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE,
CJM, MACT, KOLAR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MISCELLANEOUS FIRST APPEALS HAVING BEEN
RESERVED FOR JUDGMENT ON 20.03.2025, COMING ON FOR
PRONOUNCEMENT THIS DAY, K.S.MUDAGAL. J., DELIVERED THE
FOLLOWING:
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NC: 2025:KHC:16084-DB
MFA No.598/2015
C/W MFA No.761/2015
CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
HON'BLE MR JUSTICE K. V. ARAVIND
CAV JUDGMENT
(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL) These appeals are preferred challenging the judgment and award in MVC No.63/2010 passed by the Prl. Civil Judge and MACT Kolar.
2. Appellants in MFA No.761/2015 were claimant Nos.1 to 5, respondent Nos.1 and 2 were respondent Nos.1 and 2 in MVC No.63/2010. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.
3. Claimant Nos.1 to 3 are the wife and children and claimant Nos.4 and 5 are the parents of deceased G.M.Narayanaswamy. On 24.12.2009 at 2.45 a.m. when Narayanaswamy and his friends were traveling in Toyota Qualis vehicle bearing Regn.No.KA-02 C 2222, the said vehicle hit road side tree near Magu house on Cumbam to Gudalur main road in Tamilnadu. In the accident Naryanaswamy suffered grievous injuries and died. At the time of the accident -5- NC: 2025:KHC:16084-DB MFA No.598/2015 C/W MFA No.761/2015 respondent Nos.1 and 2 were the registered owner and insurer of the Toyota Qualis No.KA 02 C 2222.
4. The claimants filed MVC No.63/2010 against the respondents claiming compensation of Rs.25,00,000/-. They contended that Narayanaswamy was working as physical education teacher in Government Higher Primary School and earning Rs.18,000/- per month, they were dependent on his income, due to his untimely death they have suffered huge damages. They alleged that the accident and the consequential death occurred due to actionable negligence on the part of the driver of the aforesaid Toyota Qualis vehicle, respondent Nos.1 and 2 being the registered owner and insurer of the offending vehicle are liable to pay the compensation.
5. Respondent Nos.1 and 2 contested the petition denying the actionable negligence on the part of the driver of the car, relationship of the claimants with the deceased, his age occupation and income. Respondent No.1 contended that the vehicle was covered with insurance policy issued by respondent No.2 and driver was having valid driving licence. Therefore, liability, if any, is payable by respondent No.2. Respondent No.2 contended that the driver of the vehicle was not holding -6- NC: 2025:KHC:16084-DB MFA No.598/2015 C/W MFA No.761/2015 valid driving licence and the vehicle was carrying passengers in excess of the permitted seating capacity of 9 persons, thereby there was violation of policy conditions. Hence it is not liable to pay the compensation.
6. In support of the case of the claimants claimant No.1 was examined as PW.1, co-passenger of the deceased was examined as PW.2 and Exs.P1 to P8 were marked. On behalf of the respondents, respondent No.2 got examined its senior legal executive as RW.1 and the complainant as RW.2. Registered owner of the vehicle/respondent No.1 was examined as RW.3. The officer of the Insurer was examined as RW.4 and Exs.R1 to R8 were marked.
7. Tribunal on hearing the parties by the impugned award held that the accident and death occurred due to the actionable negligence on the part of driver of Toyota Qualis bearing registration No.KA-02/C-2222.
8. Tribunal based on Ex.P8 salary certificate considered the income of the deceased at Rs.18,039/-. Out of the same deducted Rs.200/- towards professional tax and arrived at the income at Rs.17839/- per month, deducted 1/3rd out of that towards his personal expenses, applied 13 multiplier -7- NC: 2025:KHC:16084-DB MFA No.598/2015 C/W MFA No.761/2015 and awarded compensation of Rs.18,55,308/- on the head of loss of dependency. Tribunal in all awarded Rs.18,93,308/- with interest at 6% p.a. to the claimants payable by respondent No.2/Insurer on different heads as follows:
Sl. Particulars Amount
No. in Rs.
1 Future loss of earnings 18,55,308/-
2 Loss of love and affection 15,000/-
3 Funeral and obsequies 5,000/-
4 Loss of estate 15,000/-
5 Transportation of dead body 3,000/-
Total 18,93,308.00
Tribunal held that the Insurer has failed to prove its defence of violation of policy condition.
9. Challenging the said award, Insurer has filed MFA No.598/2015 and claimants have filed MFA No.761/2015. Submissions of Sri O.Mahesh, learned counsel for the Insurer:
10. There was no negligence on the part of the driver of Qualis bearing No.KA-02/C-2222 in question. To avert the head-on collision the driver of the said vehicle diverted the same, lost control and hit the road side tree. The evidence on record shows that the vehicle was one registered for private use, but was hired by the deceased and other inmates on hire for reward. Exs.R3 and R4 support the same. Thereby there -8- NC: 2025:KHC:16084-DB MFA No.598/2015 C/W MFA No.761/2015 was breach of policy condition and Insurer is not liable to pay the compensation. The Tribunal has failed to take into consideration Exs.R.3, R.4 and R8 in that regard. As per claim petition the deceased was aged 51 years. Tribunal wrongly considered his age as 50 years based on PM report and applied 13 multiplier. Claimant Nos.4 and 5 were admittedly not residing with the deceased. Therefore, they cannot be treated as dependants. One third deduction given by the Tribunal is correct. Claimant No.2/son of the deceased was given the compassionate ground appointment due to the death of his father in harness. Therefore, he cannot be called as dependant of the deceased and there was no loss of income to the family. Compensation awarded is on the higher side. Submissions of Sri Swathi Hegde, Advocate for claimants:
11. On thorough investigation, Police filed the charge sheet against the driver of the offending vehicle. To rebut the charge sheet Ex.P2 the driver of the said vehicle was not examined. Therefore, Tribunal was justified in holding that accident occurred due to the actionable negligence on the part of the said driver. Exs.R3, R.4 and R8 were inadmissible in evidence. Such defence was not taken in the statement of -9- NC: 2025:KHC:16084-DB MFA No.598/2015 C/W MFA No.761/2015 objections more so not proved. Therefore the Tribunal was justified in rejecting those documents and the defence of the Insurer that vehicle was used for hire and reward. PW.2/the inmate and RW.3/owner of the vehicle unequivocally stated that the vehicle was taken by the deceased and others as they were the friends of RW.3 requesting him to lend the vehicle to them for their piligrimage to Shabarimala. Claimant Nos.4 and 5 being aged parents were depending on the deceased.
Tribunal committed error in not treating them as dependants and in deducting one-third of the income of the deceased. The compensation awarded on the said heads is on the lower side. Submissions of Sri G.R.Lakshmipathi, Advocate for the Insured:
12. As the deceased and others were the friends of the owner of the vehicle, on requesting him they had taken that vehicle. Therefore, the contention that the vehicle was used for hire and reward is unsustainable.
13. On hearing the submissions of both counsel and on examination of the material on record, the points that arise for consideration are:
i) Whether the Tribunal was justified in holding that the accident and death of G.M.Narayanaswamy
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NC: 2025:KHC:16084-DB MFA No.598/2015 C/W MFA No.761/2015 occurred due to actionable negligence on the part of the driver of Toyota Qualis No.KA-02/C-2222 ?
ii) Whether the compensation awarded by the Tribunal is just one ?
iii) Whether the Tribunal was justified in fastening the liability to the Insurer ?
ANALYSIS Reg. Negligence:
14. Claimants contended that on 24.12.2009 at about 2.45 a.m. when G.M.Narayanaswamy and his friends were proceeding to Shabarimala in Toyota Qualis No.KA-02/C-2222, the driver of the said vehicle drove the same in rash and negligent manner and dashed the same to the road side tree leading to the death of G.M.Narayanaswamy. Though the respondent-insurer denied the same, the evidence on record shows that regarding the accident, on the complaint of one Chalapathi/another inmate of the same vehicle, Gudulur North Police registered FIR against the driver of the said vehicle and on investigation filed charge sheet against him for the offences punishable under Sections 279, 337, 304A of IPC and Section 3 read with Section 181 of the Motor Vehicles Act, 1988. Ex.P2(a) translated copy of charge sheet/Ex.P2 states that the
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NC: 2025:KHC:16084-DB MFA No.598/2015 C/W MFA No.761/2015 driver of the said vehicle drove the same in rash and negligent manner in high speed and hit the road side tree. The said document further shows that in the accident G.M.Narayanaswamy died and 7 other persons suffered injuries. PW.2 was one amongst those injured. He also spoke about the actionable negligence on the part of the driver of the vehicle. By the said evidence the claimants discharged their burden of proof.
15. To rebut the said evidence neither the Insurer nor the Insured examined the driver of the said vehicle. Therefore, the contention that there was no actionable negligence on the part of the driver of the said vehicle is unacceptable. Without any such evidence the counsel for insurer for the first time in the appellate Court cannot step into the shoes of the driver and explain hypothetically how the accident occurred. As per records, no other vehicle was involved in the accident. Thus the principle of "Res ipsa loquitur," also applies. Tribunal considering the aforesaid facts and circumstances rightly held that the accident occurred due to the actionable negligence on the part of the driver of the Qualis vehicle bearing No.KA-02/C
-2222.
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NC: 2025:KHC:16084-DB MFA No.598/2015 C/W MFA No.761/2015 Reg. Quantum
16. The evidence of the claimants that deceased was working as Physical Education teacher in Government Higher Primary School, Arabikothanur in Kolar Taluk and his salary certificate Ex.P8 were not disputed by the respondent during the course of examination of PW.1 or in the evidence of the respondents' witnesses. As per the said document the gross monthly salary of the deceased was Rs.18,039/-. On deducting professional tax of Rs.200/- his salary would be Rs.17,839/-. As per the claim petition he was aged 51 years. In Ex.P7/PM report his age was shown as 50 years. The assessment of age in PM report would be an approximate assessment. The Tribunal was in error in considering the age of the deceased as 50 years though there was clear admission in the pleading that he was 51 years.
17. In view of the judgment of the Hon'ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi1, age and permanent employment of the deceased, 15% has to be super-added to his income (i.e., 17839 + 2675.85 = 20514.85 rounded off to Rs.20,515). His annual income would be Rs.(20515X12=)2,46,180/- As per the Finance Act, 2010, 1 AIR 2017 SC 5157
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NC: 2025:KHC:16084-DB MFA No.598/2015 C/W MFA No.761/2015 the tax payable on such income is Rs.8,618/-. Therefore, his net income per annum would be (Rs.2,46,180/- - Rs.8,618/-) Rs.2,37,562/-. Deceased was survived by his widow, two minor children and aged parents. Merely because aged parents were living separately, it cannot be said that they were not depending on the deceased. It is to be noted that when the children are in service, many a times parents stay back in the villages though they were being looked after by their earning children. It is the pious responsibility of the children also. Therefore, there is no merit in the contention that parents cannot be treated as the dependants.
18. The other contention of the counsel for the Insurer is that, on the death of the victim, claimant No.2 is given employment on compassionate grounds, therefore there is no loss of future income to the claimants and claimant No.2 cannot be treated as the dependant. The larger bench of the Hon'ble Supreme Court in Sebastiani Lakra and Ors Vs National Insurance Company Ltd and Another2 has held that deduction cannot be allowed from the amount of compensation on account of insurance, pensionary benefits, gratuity or grant of employment to a kin of the deceased. It was further held that 2 AIR 2018 SC 5034
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NC: 2025:KHC:16084-DB MFA No.598/2015 C/W MFA No.761/2015 all such amounts were earned by the deceased on account of contractual relationship entered into by him with employer/insurer. Further as on the date of the accident claimant No.2 was the dependant of the deceased. The employment was given to him on 12.10.2010. Having regard to the facts and circumstances and the judgment of the Hon'ble Supreme Court, there is no merit in such contention of the Insurer.
19. In case of 5 dependants as per the judgment in Sarla Varma v. Delhi Transport Corporation3 one-fourth has to be deducted for personal expenses of the deceased and not one-third as considered by the Tribunal. On such deduction income available to the family would be Rs.(2,37562 X ¾ =)1,78,171.5 rounded off to Rs.1,78,172. Applicable multiplier is 11. Therefore, compensation payable on the head of loss of dependency is Rs.(1,78,172 X 11 =) 19,59,892/-.
20. As per the judgment of the Hon'ble Supreme Court in Pranay Sethi's case and Magma General Insurance Company Ltd. v. Nanu Ram4 the claimants are entitled to compensation of Rs.40,000/- each on the head of consortium 3 AIR 2009 SC 3104 4 2018 (18) SCC 130
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NC: 2025:KHC:16084-DB MFA No.598/2015 C/W MFA No.761/2015 with escalation of 10%. Similarly they are entitled to compensation of Rs.15,000/- + 15,000/- each on the heads of loss of estate, funeral expenses and transportation of the dead body. As the accident had taken place in the year 2009, the claimants are entitled to 5 revisions of 10% escalation. Therefore, just compensation payable in the case is as follows:
Sl. Particulars Compensation
No. awarded in Rs.
1. Loss of dependency 19,59,892/-
2. Loss of consortium 3,00,000/-
40,000 X 5=2,00,000
+10% escalation
20,000 X5 =1,00,000
3. Loss of estate 22,500/-
15,000 +10% escalation
(5 times)
4. Funeral and transportation 22,500/-
15,000+10% escalation
(5 times)
Total 23,04,892/-
Rounded off to
23,05,000/-
Reg. liability:
21. It was vehemently contended by Sri O Mahesh, learned counsel for the Insurer that the deceased and his co- passengers were traveling in the offending vehicle as paid passengers and the said vehicle was hired by them from Insured. PW.2 eye witness-cum-copassenger denied the said theory. RW.2/the complainant though in the affidavit filed in
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NC: 2025:KHC:16084-DB MFA No.598/2015 C/W MFA No.761/2015 lieu of evidence, stated that he had hired the vehicle, he says that it was on friendship. Further in the cross examination he denied the theory that the vehicle was hired for reward or he giving statement to that effect before the Investigator of the Insurance company. It is material to note that RW.2 was summoned as witness by the Insurer itself. Obviously his affidavit was drafted by the one who summoned him. In the cross examination by the claimant's counsel he said that he had informed Sri A.V.Anand, counsel who drafted the affidavit that the vehicle was taken from respondent No.1/owner in view of their friendship. RW.3 denied the suggestion that he had lent the vehicle to the deceased and other passengers for reward.
22. The evidence of RW.4/Manager of the Insurer was sought to be relied to contend that the company conducted an internal investigation and during the investigation the statements of RW.2 was recorded and videographed in compact disc/Ex.R3 and Ex.R8 is the transcription of the statement given by RW.2. Apparently Ex.R3 and R8 were the digital evidence. To prove the same, the certificate as required under Section 65B of the Indian Evidence Act, 1872 was not
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NC: 2025:KHC:16084-DB MFA No.598/2015 C/W MFA No.761/2015 produced. Ex.R4 was relied to say that CD was genuine one. Ex.R4 is not a certificate, it is only an acknowledgement for having examined the CD marked as 63/2010 etc under receipt for having received Rs.16,854/-. Even the author of Ex.R4 was not examined. Therefore Ex.R3, R4 and R8 have no evidentiary value.
23. To crown all this, first of all the Insurer has not taken such defence in its pleadings. Hence the Tribunal's order fastening the liability to pay compensation to respondent No.2- Insurer does not call for any interference.
24. For the aforesaid reasons, MFA No.598/2015 is liable to be dismissed and MFA No.761/2015 deserves to be allowed in part. Hence the following:
ORDER I) MFA 598/2015 is hereby dismissed with costs throughout.
II) MFA No.761/2015 is partly allowed.
III) The impugned award is modified as follows:
a) The claimants are entitled to compensation of Rs.23,05,000/- with interest thereon at 6% p.a. from the date of petition till its realization.
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NC: 2025:KHC:16084-DB MFA No.598/2015 C/W MFA No.761/2015
b) Respondent No.2/Insurer shall deposit the said compensation before the Tribunal within four weeks from the date of receipt of copy of this order on adjusting the amount already deposited, if any.
c) Out of the compensation amount shares of claimant Nos.1 to 5 is apportioned in the ratio of 50%: 15%:15%" 10%:10% respectively.
d) On deposit, the shares of claimant Nos.4 and 5 shall be digitally released to them on furnishing required documents.
e) Out of the shares of claimant Nos.1 to 3, 80% shall be released to them digitally and 20% shall be invested in FD in their names in any nationalized bank of their choice for a period of 3 years.
f) The amount in deposit and the TCRs shall be transmitted to the Tribunal.
Sd/-
(K.S.MUDAGAL) JUDGE Sd/-
(K. V. ARAVIND) JUDGE AKC