Karnataka High Court
Smt Lakshmamma vs M/S Shriram General Insurance Company ... on 1 February, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC:4567
MFA No. 3918 of 2019
C/W MFA No. 6184 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 3918 OF 2019 C/W
MISCELLANEOUS FIRST APPEAL NO. 6184 OF 2019 (MV-D)
IN MFA NO. 3918/2019
BETWEEN:
THE BRANCH MANAGER,
M/S SHRIRAM GENERAL INSURANCE COMPANY LTD,
NO.5, 3RD FLOOR, MONARCH CHAMBERS,
INFANTRY ROAD,
SHIVAJINAGAR,
BANGALORE - 01.
NOW REPRESENTED
M/S SHRIRAM GENERAL INSURANCE COMPANY LTD,
NO.5/4, 3RD FLOOR, S V ARCADE,
BILAKALHALLI, BANNERUGHATTA MAIN ROAD,
IIMB POST, BANGALORE
Digitally signed by JAI
JYOTHI J REPTD BY ITS ASSIT MANAGER
Location: HIGH COURT
OF KARNATAKA ...APPELLANT
(BY SRI. B C SHIVANNE GOWDA, ADVOCATE)
AND:
1. SMT. LAKSHMAMMA
W/O LATE KRISHNAPPA
NOW AGED ABOUT 38 YEARS,
2. KUMARI. CHANDHU
D/O LATE KRISHNAPPA
AGED ABOUT 16 YEARS,
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MFA No. 3918 of 2019
C/W MFA No. 6184 of 2019
3. KUMARI. BINDHU
S/O KRISHNAPPA
AGED ABOUT 14 YEARS,
4. SMT. VENKATAMMA
D/O RAMANNA
AGED ABOUT 75 YEARS,
RESPONDENT NO.2 AND 3 ARE MINOR,
REPRESENTED BY NATURAL GUARDIAN AND 1ST
RESPONDENT HEREIN,
ALL ARE R/AT NO.374,
NAGONDANAHALLI KAITOTA,
DOMBARAGUDISALU,
NAGONDANAHALLI,
BENGALURU.
5. ABBAI MANDADI K
S/O K GANGA MANDADI
MAJOR
R/AT NO.6-39, PUTHURAJUGUNTA VILLAGE,
NARASHMHAPURAM POST,
CHITTOR, ANDHAR PRADESH.
6. ABBAIAH
S/O GANGAIAH YADAV
MAJOR,
R/O NO.529, OPP GANGAMMA TEMPLE,
DEVARABISAHALLI,
BENGALURU.
...RESPONDENTS
(BY SRI. NAGARAJA REDDY D, ADVOCATE FOR R1 TO R4;
R2 AND R3 ARE MINORS REPRESENTED BY R1;
R5 - NOTICE SERVED;
R6-M NOTICE H/S V/O DATED 19.01.2024)
THIS MFA FILED U/S.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DT.18.01.2019 PASSED IN MVC
NO.7155/2016 ON THE FILE OF THE MEMBER, MACT, XVI
ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU
(SCCH-14), AWARDING COMPENSATION OF RS.13,44,700/- WITH
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NC: 2024:KHC:4567
MFA No. 3918 of 2019
C/W MFA No. 6184 of 2019
INTEREST AT 7 PERCENT P.A. FROM THE DATE OF THIS PETITION
TILL ITS REALIZATION.
IN MFA NO.6184/2019
BETWEEN:
1. SMT. LAKSHMAMMA
W/O LATE KRISHNAPPA
NOW AGED ABOUT 38 YEARS,
2. KUMARI. CHANDHU
D/O LATE KRISHNAPPA
AGED ABOUT 16 YEARS,
3. KUMARI. BINDHU
S/O KRISHNAPPA
AGED ABOUT 14 YEARS,
4. SMT. VENKATAMMA
D/O RAMANNA
AGED ABOUT 75 YEARS,
SINCE THE APPELLANTS 2 AND 3 ARE
MINORS,REPRESENTED BY NATURAL
GUARDIAN AND APPELLANT NO.1
HEREIN,
ALL ARE RESIDING AT NO.374,
NAGONDANAHALLI KAITOTA,
DOMBARAGUDISALU,
NAGONDANAHALLI,
BENGALURU -560 066.
...APPELLANTS
(BY SRI. NAGARAJA REDDY D, ADVOCATE)
AND:
1. M/S SHRIRAM GENERAL INSURANCE COMPANY LTD,
NO.5, 3RD FLOOR,
MONARCH CHAMBERS,
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NC: 2024:KHC:4567
MFA No. 3918 of 2019
C/W MFA No. 6184 of 2019
INFANTRY ROAD,
SHIVAJINAGAR,
BANGALORE - 560 001.
NOW REPRESENTED
2. ABBAI MANDADI K
S/O K GANGA MANDADI
MAJOR
R/AT NO.6-39, PUTHURAJUGUNTA VILLAGE,
NARASHMHAPURAM POST,
CHITTOR, ANDHAR PRADESH - 517 419.
3. ABBAIAH. K,
S/O GANGAIAH YADAV
MAJOR,
R/O NO.529, OPP GANGAMMA TEMPLE,
DEVARABISAHALLI,
BENGALURU.
...RESPONDENTS
(BY SRI. B.C. SHIVANNE GOWDA, ADVOCATE FOR R1;
R2- NOTICE SERVED;
R3- NOTICE HELD SUFFICIENT V/O DATED 19.01.2024)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 18.01.2019 PASSED IN MVC NO.
7155/2016 ON THE FILE OF THE MEMBER, MACT, XVI ADDITIONAL
JUDGE, COURT OF SMALL CAUSES, BENGALURU [SCCH-14], PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA.No.3918 of 2019 is filed by the Insurance Company challenging the judgment and award dated 18.01.2019 passed in MVC.No.7155/2016 by Member, MACT, XVI Addl. Judge, -5- NC: 2024:KHC:4567 MFA No. 3918 of 2019 C/W MFA No. 6184 of 2019 Court of Small Causes, Bengaluru, questioning the liability fastened on it on the ground that the offending vehicle stated in the claim petition is not involved in the accident.
MFA.No.6184/2019 is filed by the claimants challenging the aforesaid judgment and award for seeking enhancement of compensation as well as attributing 15% of contributory negligence on the part of the deceased.
2. It is the case of the claimants that on 04.04.2016 at about 12:45 p.m., the deceased being pedestrian was walking on the left side of Channasandra Main Road, in front of Gurushree Wines Shop, Bengaluru, at that time, driver of tempo lorry bearing reg.No.KA-22-5885 drove the same with high speed and in a rash and negligent manner and caused the accident, due to which, he succumbed to the injuries on the spot. Therefore, the claim petition was filed by the legal representatives of the deceased for claiming compensation.
3. Learned counsel for the Insurance Company submitted that the offending vehicle is not involved in the -6- NC: 2024:KHC:4567 MFA No. 3918 of 2019 C/W MFA No. 6184 of 2019 accident and it was falsely implicated later just to make claim against the Insurance Company. The complaint is lodged by mentioning description of offending vehicle as tipper lorry and showed as unknown vehicle. But on 14.04.2016 the police have issued notice under Section 133 of Motor Vehicle Act and on the very same day, the owner of vehicle has given reply. Therefore, this conduct on the part of the police and owner of the vehicle is suspicious one, therefore, suspected the involvement of tipper lorry in the accident. Further submitted that in the complaint, nature of vehicle is stated as tipper lorry, but insurance policy is issued in respect of Chasis 407 Tempo. Therefore, submitted that the offending vehicle as stated by the claimants is not involved in the accident and the same has been falsely implicated into the case. Therefore, prays to set aside the judgment and award passed by the Tribunal.
4. On the other hand, learned counsel for the claimants submitted that, after investigation, the police have filed the charge sheet against TATA 407 Tempo No.KA.22-5885 and just because, the police have issued notice under Section 133 of -7- NC: 2024:KHC:4567 MFA No. 3918 of 2019 C/W MFA No. 6184 of 2019 Motor Vehicle Act and reply was given to it on the very same day, it does not mean that it is an unnatural course. Further upon the investigation, the vehicle was traced out and charge sheet has been filed, but on the contrary, the Insurance Company has not given contra evidence. Therefore, prays to dismiss the appeal filed by the Insurance Company and allow the appeal filed by the claimants for enhancement of compensation.
5. Considering the rival submissions, facts and circumstance of the case, the accident was caused on 04.04.2016 at about 12:45 p.m., in Channasandra Main Road, in front of Gurushree Wines Shop, Bengaluru and after the accident, the offending vehicle ran away. Therefore, the complaint is lodged against the unknown vehicle. Consequently, investigation follows. During the course of investigation, it is found out that the said tempo was involved in the accident. Accordingly, the Investigation Officer had issued notice under Section 133 of Motor Vehicle Act on 14.04.2016 and on the very same day, the owner has given reply to the said notice. -8-
NC: 2024:KHC:4567 MFA No. 3918 of 2019 C/W MFA No. 6184 of 2019
6. Learned counsel for the Insurance Company suspected these transactions that occurred in a single day and submitted that it is not possible to issue notice to get reply on the very same day. Mere suspicion is not the evidence. The investigation carried out by the Police Investigation Officer is a statutory investigation under Section 173 of Cr.P.C., and it has its own sanctity and significance. Unless contra material evidence is produced, the charge sheet cannot be disbelieved. Investigation means sequence of events during the course of investigation. Mere fact of suspicious, that cannot over throw the charge sheet. Quite naturally, the offending vehicle ran away, therefore, the complaint is lodged against unknown vehicle. During the course of investigation, the vehicle was traced out and after tracing out the vehicle, consequently, the process of investigation goes on. Unless the material is produced to show that this vehicle is involved, then the charge sheet cannot be ignored. Therefore, the Insurance Company mainly based on the sequence of events took place on 14.04.2016, on that day, the police have issued notice under Section 133 of Motor Vehicle Act and on the very same day, the -9- NC: 2024:KHC:4567 MFA No. 3918 of 2019 C/W MFA No. 6184 of 2019 owner has given reply, is the ground for Insurance Company to suspect the case. Just because, the owner has given reply to the notice on the very same day, it is not a ground to suspect the evidence collected during the course of investigation. Whatever may be the suspicion and presumptions that cannot sideline the materials in the charge sheet, therefore, it is proved that the offending vehicle tempo is involved in the accident.
7. Considering the complaint, offending vehicle is mentioned as tipper lorry and in IMV report, vehicle is mentioned as tempo and in the insurance policy, the nature of vehicle is mentioned as 407 tempo, the offending vehicle after the accident ran away. 407 tempo may be of two types, one for carrying passengers like in the form of bus and another one is goods carriage vehicle. The complaint is always not encyclopedia. When the offending vehicle ran away, accordingly information is given mentioning the nature of vehicle as tipper lorry, but it requires investigation. The offending vehicle is traced out and accordingly, it is mentioned and subjected to
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NC: 2024:KHC:4567 MFA No. 3918 of 2019 C/W MFA No. 6184 of 2019 inspection by Motor Vehicle Inspector. Just because, in the complaint the nature of vehicle is mentioned as tipper lorry, but during the course of investigation, it is found out that the vehicle Tempo is involved in the accident and considering the description of vehicle with its nature, there is no much big difference. In the complaint and FIR, the gist of information is sufficient. Therefore, unless there is cogent evidence to disbelieve the charge sheet, the charge sheet cannot be ignored. Therefore, it is proved that 407 tempo is involved in the accident and this is rightly considered by the Tribunal.
8. The Tribunal has attributed 15% of contributory negligence on the part of the deceased. Ex.P.4 is the spot sketch, which shows that the spot of accident is in the middle of junction road. In the middle of junction road, the pedestrians are not supposed to cross or walk on the road. When there is a junction, then for crossing the road, there is zebra crossing, but the deceased without crossing the zebra crossing had tried to cross in the middle of junction road and the accident is caused. Therefore, it shows that the deceased was also negligent in
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NC: 2024:KHC:4567 MFA No. 3918 of 2019 C/W MFA No. 6184 of 2019 crossing the road through junction, which is not supposed to cross the road. Therefore, the deceased had also contributed his negligence towards the accident. Therefore, it can be held that the deceased has also contributed 10% of negligence towards the accident. Since, the place of accident is Channasandra main road, in front of Gurushree Wines Shop, Bengaluru, the driver of 407 tempo ought to have been driven the tempo carefully and cautiously. Therefore, considering these aspects, the driver of tempo has contributed 90% of rash and negligence towards the accident. Accordingly, it is modified.
9. The accident is caused in the year 2016. The deceased was working as a mason. Therefore, the notional income is taken at Rs.9,500/- p.m., as per the Notional Income Chart recognized by the Karnataka State Legal Service Authority. As the deceased was aged about 38 years, the appropriate multiplier applicable is 15. 40% of income is to be added towards loss of future prospectus in life. The claimants are wife, children and mother. Therefore, 1/4th of income is to
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NC: 2024:KHC:4567 MFA No. 3918 of 2019 C/W MFA No. 6184 of 2019 be deducted towards personal and living expenses. Therefore, compensation under the head loss of dependency is hereby re-assessed and quantified as follows:
Rs.9,500/- + Rs.3,800/- (40% of Rs.9,500/-)=Rs.13,300/- Rs.13,300/- x 3/4 x 15 x 12=Rs.17,95,500/-
Accordingly, compensation of Rs.17,95,500/- is awarded under the head loss of dependency.
10. The Tribunal has awarded compensation of Rs.40,000/- towards loss of consortium, which is on the lesser side. There are totally four legal dependants of the deceased, hence, as per the judgment of the Hon'ble Apex Court in the case of Magma General Insurance Co. Limited Vs. Nanu Ram & Others1 and National Insurance Co. Ltd. Vs. Pranay Sethi,2 the claimants are entitled to Rs.40,000/- each with 10% escalation under the head loss of consortium including loss of love and affection. Accordingly, 1 2018 ACJ 2782 2 (2017) 16 SCC 680
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NC: 2024:KHC:4567 MFA No. 3918 of 2019 C/W MFA No. 6184 of 2019 Rs.1,76,000/- (Rs.40,000 x 4 + 10% escalation) is awarded under the head loss of consortium including loss of love and affection.
11. Further compensation of Rs.16,500/- (Rs.15,000/- + 10% escalation) is awarded towards transportation of dead body and funeral expenses as against Rs.10,000/- awarded by the Tribunal.
12. The Tribunal has not awarded compensation under the head loss of estate. Hence, compensation of Rs.16,500/- (Rs.15,000/- + 10% escalation) is awarded towards loss of estate.
13. Thus, in all, the claimants are entitled to total compensation determined by this Court as follows:
1 Loss of dependency Rs. 17,95,500/-
2 Loss of consortium Rs.
including loss of love and 1,76,000/-
affection
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MFA No. 3918 of 2019
C/W MFA No. 6184 of 2019
3 Loss of estate Rs. 16,500/-
4 Transportation of dead Rs.
body and funeral 16,500/-
expenses
Total Rs. 20,04,500/-
14. The Tribunal has granted interest at 7% p.a., and the same is scaled down to 6% p.a. The Tribunal has awarded compensation of Rs.15,82,000/-. The deceased has contributed 10% of negligence towards the accident, hence, the claimants are entitled to 90% of the above determined compensation amount. Hence, the claimants are entitled to total compensation of Rs.18,04,050/- (90% of Rs.20,04,500/-) along with interest at the rate of 6% per annum from the date of petition till the date of realization as against the compensation amount awarded by the Tribunal.
15. Accordingly, I proceed to pass the following:
ORDER i. MFA.No.3918/2019 filed by the Insurance Company is allowed-in-part.
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NC: 2024:KHC:4567 MFA No. 3918 of 2019 C/W MFA No. 6184 of 2019 ii. MFA.No.6184/2019 filed by the claimants is allowed-
in-part.
iii. The impugned judgment and award dated 18.01.2019 passed in MVC.No.7155/2016 by Member, MACT, XVI Addl. Judge, Court of Small Causes, Bengaluru, is modified.
iv. The claimants are entitled to total compensation of Rs.18,04,050/- (90% of Rs.20,04,500/-) along with interest at the rate of 6% per annum from the date of petition till the date of realization as against the compensation amount awarded by the Tribunal.
v. No order as to costs.
vi. The claimants are not entitled for interest for the delay
period of 51 days in filing the appeal.
vii. The amount in deposit made by the Insurance
Company shall be transmitted to the Tribunal forthwith. viii. Registry is directed to transmit the TCR along with copy of this order to the Tribunal forthwith.
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NC: 2024:KHC:4567 MFA No. 3918 of 2019 C/W MFA No. 6184 of 2019 ix. Draw award accordingly. x. I.As., if any pending, do not survive for consideration and it is disposed of.
Sd/-
JUDGE PB List No.: 1 Sl No.: 7