Karnataka High Court
S. Mahadevappa vs New India Assurance Co. Ltd on 6 February, 2024
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NC: 2024:KHC:5016
MFA No. 813 of 2013
C/W MFA No. 5946 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 813 OF 2013 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 5946 OF 2013 (MV)
IN M.F.A.No.813/2013:
BETWEEN:
1. NEW INDIA ASSURANCE CO. LTD.
REPRESENTED BY ITS MANAGER
3RD CROSS, R P ROAD,
NANJANGUD CITY,
REPRESENTED BY
NEW INDIA ASSURANCE CO LTD,
M G ROAD, BANGALORE.
...APPELLANT
(BY SRI. R JAIPRAKASH., ADVOCATE)
Digitally
signed by AND:
BHARATHI S
Location:
HIGH COURT 1. SRI S MAHADEVAPPA
OF
KARNATAKA S/O LATE SUBBANNA,
AGED ABOUT 45 YEARS,
2. SRI M VIVEKKUMAR
B/N MAHADEVAPPA,
AGED ABOUT 18 YEARS,
1ST RESPONDENT IS THE HUSBAND
2ND RESPONDENT IS THE SON OF
ONE SUDHA, BOTH ARE
R/A NO.7325, BEHIND KHB COLONY
THOMAS LAYOUT, NANJANGUD-571 003.
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MFA No. 813 of 2013
C/W MFA No. 5946 of 2013
3. SRI PUNITKUMAR
S/O NAGARAJ SETTY
AGED ABOUT 27 YEARS
BEGUR VILLAGE, BEGUR HOBLI
GUNDLUPET TALUK-571 004.
4. SRI BALAKRISHNA
S/O B V SETTY
AGED ABOUT 45 YEARS
MAIN ROAD, BEGUR
GUNDLUPET TALUK-571 004.
...RESPONDENTS
(BY SRI. KALYAN BASAVARAJ., ADVOCATE FOR R1 & R2;
R-3 SERVED AND UNREPRESENTED;
SRI.THYAGARAJA.K.R., ADVOCATE FOR R-4)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 24.9.2012
PASSED IN MVC NO. 131/2010 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND MACT, NANJANGUD, AWARDING A
COMPENSATION OF RS. 7,45,508/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL DEPOSIT.
IN M.F.A.No.5946/2013:
BETWEEN:
1. S.MAHADEVAPPA,
S/O LATE SUBBANNA,
AGED ABOUT 43 YEARS,
2. M.VIVEK KUMAR,
S/O S.MAHADEVAPPA,
AGED ABOUT 16 YEARS,
SINCE MINOR,
REPRESENTED BY HIS
FATHER AND NATURAL
GUARDIAN, S.MAHADEVAPPA,
BOTH THE APPELLANT ARE
R/AT No.7325, KHB COLONY,
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MFA No. 813 of 2013
C/W MFA No. 5946 of 2013
THOMAS LAYOUT,
NANJANGUD-577 117.
...APPELLANTS
(BY SRI. M.SUHAS GOWDA, ADVOCATE FOR
SRI. MUNIYAPPA., ADVOCATE)
AND:
1. NEW INDIA ASSURANCE CO. LTD.,
REPRESENTED BY ITS MANAGER,
3RD CROSS, R.P.ROAD,
NANJANGUD CITY,
REP. BY NEW INDIA ASSURANCE CO.LTD.,
M.G.ROAD, BANGALORE-577 020.
2. PUNITKUMAR,
S/O NAGARAJ SETTY,
AGED ABOUT 25 YEARS,
BEGUR VILLAGE,
BEGUR HOBLI, GUNDLUPET TALUK,
PIN : 576 106.
3. BALAKRISHNA,
S/O B.V.SETTY,
AGED ABOUT 47 YEARS,
MAIN ROAD, BEGUR,
GUNDLUPET TALUK,
PIN : 576 106.
...RESPONDENTS
(BY SRI. R.JAIPRAKASH, ADVOCATE FOR R-1;
R-2 SERVED AND UNREPRESENTED;
SRI. THYAGARAJ K.R., ADVOCATE FOR R-3)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 24.9.2012
PASSED IN MVC NO. 131/2010 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND MACT, NANJANGUD, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
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MFA No. 813 of 2013
C/W MFA No. 5946 of 2013
THESE APPEALS, COMING ON FOR FURTHER
SUBMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
1. MFA No.813/2013 is filed by the insurer and MFA No.5946/2013 is filed by the claimant. In both the appeals the judgment and award dated 24.09.2012 passed in MVC.No.131/2010 by the Senior Civil Judge, MACT, Nanjangud1 is under challenge. Hence, both the appeals are taken up together for consideration.
2. For the sake of convenience, the parties herein are referred to as per their rank before the Tribunal.
3. It is the case of the claimants that on 01.06.2010, one Sudha2 hereinafter referred to as deceased along with her husband the claimant No.1 were traveling in a TATA Sumo vehicle from Begur to Bengaluru to attend a marriage function of a near relative and when the vehicle was moving on the Ooty-Bengaluru road at about 3.00 1 Hereinafter referred as 'Tribunal'. 2 Hereinafter referred to as deceased. -5-
NC: 2024:KHC:5016 MFA No. 813 of 2013 C/W MFA No. 5946 of 2013 p.m. the driver of the vehicle drove the same in a rash and negligent manner, causing the accident in question, as result of which the deceased sustained grievous injuries and succumbed to the same. The husband and minor son of the deceased filed a claim petition claiming compensation for the death of the deceased arraying the driver, owner and insurer of the TATA sumo vehicle as respondent Nos.1 to 3. The respondent No.3 - insurer entered appearance before the Tribunal and contested the claim of the claimants specifically contending, inter alia, that the deceased along with her husband and others had hired the insured vehicle and were traveling as passengers and hence the insurer is not liable to pay the compensation.
4. The claimant No.1 was examined as PW-1 and a witness Nanjappa was examined as PW-2, Exs.P.1 to Ex.P.13 were marked in evidence. The representative of the insurer was examined as RW-1. Exs.R.1 to Ex.R.3 were marked in evidence. The Tribunal upon appreciation -6- NC: 2024:KHC:5016 MFA No. 813 of 2013 C/W MFA No. 5946 of 2013 of oral and documentary evidence on record allowed the claim petition and awarded a total compensation of `7,45,508/- together with interest at 6% per annum and directed the respondent No.3 - insurer to deposit the compensation awarded. Being aggrieved, the present appeals are filed.
5. Learned counsel for the insurer assailing the judgment of the Tribunal vehemently contends that in the complaint lodged by Nanjappa (Ex.P.2) it is specifically stated that the vehicle was taken on hire. He further submits that the PW-1 in his cross-examination has also specifically stated that he has hired the vehicle. Having regard to the same, the Tribunal has erred in fastening the liability on the insurer to pay the compensation awarded. In support of these contentions, he relies on the following judgments :
i. Oriental Insurance Co. Ltd. v. Premlata Shukla and Others3;3
2007 ACJ 1928.-7-
NC: 2024:KHC:5016 MFA No. 813 of 2013 C/W MFA No. 5946 of 2013 ii. New India Assurance Co. Ltd., Kolhapur v. Gurunath S/o.Bhimarao More and Another4; and iii. New India Assurance Co. Ltd. v. Naba Kumar Mondal and Another.5
6. Per contra, learned counsel for claimants justifies the award of the Tribunal and submits that both PW-1, who was traveling along with the deceased as well as the complainant, who was examined as PW-2. That PW-2 has specifically stated that the statement in the complaint that the vehicle was taken on hire was not stated by him and has been erroneously entered by the police authorities. It is further contended that PW-1 has not admitted in his cross-examination regarding the vehicle taken for hire and if his entire testimony is read, he has specifically said that they were travelling together for the purpose of attending a wedding. Hence he submits that the finding of the Tribunal fastening the liability on the insurer is just and proper. He further submits that compensation awarded by 4 2018 (2) AKR 837.
52006 ACJ 238.
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NC: 2024:KHC:5016 MFA No. 813 of 2013 C/W MFA No. 5946 of 2013 the Tribunal is on the lower side and the same requires to be enhanced.
7. The submissions of both the learned counsels have been considered and the material on record have been perused. The questions that arise for consideration are:
i. Whether the finding of the Tribunal fastening of the liability on the insurer is just and proper?
ii. Whether the compensation awarded by the Tribunal requires to be enhanced?
Re-question No.(i) :
8. The claimants in the claim petition have averred that the claimant No.1 and the deceased were traveling in the insured vehicle to attend a marriage function of a near relative. The complaint - Ex.P-2 has been lodged by one Nanjappa. It is stated in the complaint that the vehicle has been taken for hire. The names of the other persons who were traveling in the vehicle have also been stated in the complaint. It is further noticed that the owner of the -9- NC: 2024:KHC:5016 MFA No. 813 of 2013 C/W MFA No. 5946 of 2013 vehicle Balakrishna (respondent No.2) was also traveling in the vehicle at the time of the accident.
9. P.W.1, in his testimony, has specifically stated that they have not taken the vehicle for hire and that they were traveling for the purpose of attending the wedding of a near relative. Although in one sentence, in the cross- examination, he admits that the vehicle has been taken for hire, however, if the entire cross-examination is read together, P.W.1 has repeatedly on various occasions denied the fact that the vehicle has been taken for hire.
10. P.W.2, who is the complainant, has deposed in his testimony that the vehicle has not been taken for hire. P.W.2 has been cross-examined in detail. However, there is nothing in cross-examination which impeaches the testimony adduced by him in his examination-in-chief.
11. The insurer has examined its representative as R.W.1 and he has stated that the claimant was traveling as a gratuitous passenger. The Investigating Officer, who
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NC: 2024:KHC:5016 MFA No. 813 of 2013 C/W MFA No. 5946 of 2013 has recorded the statement of the complainant has not been examined.
12. Learned counsel for the insurer vehemently contends that the complainant having specifically stated in the complaint and that subsequently only for the purpose of claiming compensation has retracted from the statement made in the complaint and has given evidence before this Court. He further contends that having regard to the judgment of the Hon'ble Supreme Court in the case of Premlata Shukla (supra), the statement made in the complaint would be binding on the claimants, since it is the claimants who have produced the FIR and the complaint and the said documents of the complainant itself demonstrate that the vehicle was taken for hire. That the insurer was erroneously fastened with the liability.
13. The Hon'ble Supreme Court in the case of Premlata Shukla (supra) has held as follows -
"13. However, the factum of an accident could also be proved from the first information report. It is
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NC: 2024:KHC:5016 MFA No. 813 of 2013 C/W MFA No. 5946 of 2013 also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. Both the parties have relied thereupon. It was marked as an Exhibit as both the parties intended to rely upon it.
14. Once a part of it is relied upon by both the parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document been proved or not. If the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise.
15. A party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a party which had proved the same and wherefor consent of the other party has been obtained, the former in our opinion cannot be permitted to turnround and raise a contention that the contents of the documents had not been proved and, thus, should not be relied upon.
(emphasis supplied)
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14. It is relevant to note that in the said case the Hon'ble Supreme Court has held that the claimants having relied upon the document i.e., FIR produced by them for the purpose of proving the factum of the accident cannot object to a statement in the very same document and contend that the contents of the documents had not been proved.
15. In the present case, although the claimants have produced the FIR, the complainant has been examined as P.W.2. Although in the complaint, statement of one Nanjappa is recorded that the insured vehicle was taken for hire, the said Nanajappa has been examined as P.W.2 who has deposed in his testimony that the vehicle has not been taken for hire. PW-1 has also deposed that the vehicle has not been taken for hire.
16. Apart from producing the FIR and complaint as Exs.P-1 and 2, no other material is produced by the insurer to contend that the vehicle has been taken for hire. The insurer having raised a specific ground that the
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NC: 2024:KHC:5016 MFA No. 813 of 2013 C/W MFA No. 5946 of 2013 vehicle has been taken for hire and that the same constitutes a breach of the terms and conditions of the policy of the insurance, nodoubt having regard to the statement made in the complaint, the initial presumption would lie in its favour. However, having regard to the fact that the claimant No.1 has been examined P.W.1, who was traveling along with the deceased, as well as the complainant has been examined as P.W.2, both the said witnesses having specifically deposed that the vehicle was not taken for hire, it cannot be held that the insurer has proved its defence of violation of terms and conditions of the policy of the insurance by merely continuing to rely on the statement of the complainant, at Ex.P-2, without adducing any other material on record.
17. In the judgment relied upon by the learned counsel for the insurer in the case of New India Assurance Co. Ltd. v. Naba Kumar Mondal and Another6, a Division Bench of the Calcutta High Court has held that a person 6 2006 ACJ 238.
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NC: 2024:KHC:5016 MFA No. 813 of 2013 C/W MFA No. 5946 of 2013 travelling in the offending vehicle as a gratuitous passenger and the vehicle having been insured exclusively for carrying passengers for hire or reward, the insurer is not liable to pay the compensation awarded since there is a breach in the terms and conditions of the policy of the insurance. The legal proposition in the said judgment is not disputed. However, the same is wholly in-applicable to the facts of the present case.
18. The judgment in the case of New India Assurance Co. Ltd., Kolhapur v. Gurunath S/o.Bhimarao More and Another7, rendered by a Co-ordinate Bench of this Court relied upon by the counsel for the insurer is with regard to a case wherein the Tribunal having recorded that a private vehicle was used for carrying fare paying passengers, and the Tribunal having ordered the insurer to pay the compensation and recover the same from the owner, this Court set aside the order of pay and recovery and has held that the insurer is entitled to escape from its 7 2018 (2) AKR 837.
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NC: 2024:KHC:5016 MFA No. 813 of 2013 C/W MFA No. 5946 of 2013 liability. The said judgment is also wholly inapplicable to the facts of the present case.
19. Since the insurer has failed to prove that there was violation of the terms and conditions of the policy, in view of the aforementioned discussion, the question No.(i) is answered in the negative.
Re-question No.(ii) :
20. The deceased is aged about 38 years. Hence, the appropriate multiplier would be '15'. The deceased is stated to be carrying on tailoring and agricultural work. The Tribunal has assessed the income of the deceased at Rs.4,500/- per month, since there was no document to prove the income. Having regard to the fact that no documents have been produced to prove the income, the income of the deceased is required to be assessed as notional income as per the chart followed for settlement of claims, at Lok-Adalath conducted by the Legal Service Authority and having regard to the date of the accident,
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NC: 2024:KHC:5016 MFA No. 813 of 2013 C/W MFA No. 5946 of 2013 the income is required to be re-assessed at `5,500/- per month.
21. Towards 'Loss of future prospects' 40% is required to be added to the monthly income and having regard to the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Ltd. v. Pranay Sethi and Others8 1/3rd is required to be deducted towards personal expenses. Hence, the monthly income for the purpose of assessment of 'loss of dependency' is calculated as:
`5,500 - 1/3rd = `3,667 + `1,467 (40% of `3,667) = `5,133/-
22. Hence the 'loss of dependency' is assessed as `9,23,940/- (`5136 x 12 x '15').
23. The claimants are entitled to 'loss of consortium' of `40,000/- each, having regard to the judgment of the Hon'ble Supreme Court in the case of Magma General Insurance Company Limited v. Nanu Ram and 8 (2017)16 SCC 680.
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NC: 2024:KHC:5016 MFA No. 813 of 2013 C/W MFA No. 5946 of 2013 Others9. Hence, a sum of `80,000/- is liable to be awarded towards 'loss of consortium' to the claimants.
24. A sum of `15,000/- is required to be awarded towards 'loss of estate' and 'funeral expenses'. The award of `1,73,108/- towards 'medical expenses' is required to be upheld.
25. Accordingly, the total compensation under various heads is re-assessed as follows:
Sl.No. Heads Amount awarded Amount by the Tribunal awarded by this (`) Court (`)
1. Loss of dependency 5,40,000/- 9,23,940/-
2. Loss of consortium - 80,000/-
3. Loss of estate - 15,000/-
4. Medical expenses 1,73,108/- 1,73,108/-
5. Loss of income 400/- -
6. Funeral expenses 10,000/- 15,000/-
7. Transportation 2,000/- -
expenses Total 7,45,508/- 12,07,048/-
9 2018 ACJ 2782.
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26. Hence, the claimant is entitled for enhanced compensation of `4,61,540/- (`12,07,048 - `7,45,508) together with interest at 6% per annum.
27. In view of the aforementioned, the following:
ORDER
i) M.F.A. No.813/2013 filed by the insurer is dismissed;
ii) M.F.A. No.5946/2013 filed by the claimants is allowed in part;
iii) The judgment and award dated 24.09.2012 passed in MVC.No.131/2010 on the file of the Senior Civil Judge, MACT, Nanjangud, is modified only to the extent of holding that the claimants are entitled to the enhanced compensation of `4,61,540/- together with interest at 6% per annum in addition to the compensation awarded by the Tribunal from the date of petition till its realization;
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MFA No. 813 of 2013
C/W MFA No. 5946 of 2013
iv) The amount in deposit in M.F.A.
No.813/2013 shall be transmitted to the Tribunal for disbursement in terms of the award of the Tribunal.
v) The insurer, who is the appellant in M.F.A. No.813/2013 shall deposit the balance compensation as awarded by the Tribunal as well as this Court together with accrued interest within a period of eight weeks from the date of receipt of a copy of this judgment;
vi) After deposit, the compensation with accrued interest shall be disbursed to the claimants in terms of the award of the Tribunal;
vi) The Registry to draw the modified award accordingly.
vii) No costs.
Sd/-
JUDGE
HNM-AMA
List No.: 1 Sl No.: 17