Karnataka High Court
Hemalatha vs Bajaj Allianz General Insurance ... on 14 December, 2023
-1-
NC: 2023:KHC:45597-DB
MFA No.6154/2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE K V ARAVIND
MISCELLANEOUS FIRST APPEAL NO.6154/2019 (MV-D)
BETWEEN:
1. HEMALATHA @ HEMA @ HEMAVATHI
W/O RENUKAPPA
AGED ABOUT 38 YEARS
2. RENUKAPPA @ RENUKA
S/O LATE BORAIAH
AGED ABOUT 45 YEARS
3. HONAMMA
S/O LATE BORAIAH
AGED ABOUT 55 YEARS
ALL ARE R/AT NO.73, 1ST MAIN
1ST CROSS, PIPELINE ROAD
SANJEEVININAGARA, SUNKADAKATTE
BENGALURU NORTH TALUK
BENGALURU - 560 091 ...APPELLANTS
Digitally
signed by K S (BY SRI HEMANTHA.B FOR SRI LAKSHMIKANTH, ADVOCATES)
RENUKAMBA
Location: AND:
High Court of
Karnataka 1. BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD.
GOLDEN HIGHTS, 4TH FLOOR
NO.1/2, 59TH 'C' CROSS
RAJAJINAGARA, 4TH 'M' BLOCK
BENGALURU - 560 010
2. PRAVEEN K R, S/O RAMESH S
MAJOR, R/AT NO.25, 1ST FLOOR
1ST MAIN, 1ST CROSS
KAMAKSHIPALYA
BENGALURU - 560 079 ...RESPONDENTS
(BY SRI A N KRISHNA SWAMY, ADVOCATE FOR R1;
NOTICE TO R2 SERVED VIDE ORDER DATED 04.10.2023)
-2-
NC: 2023:KHC:45597-DB
MFA No.6154/2019
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED 23.03.2016 PASSED BY THE
MEMBER, MACT, XVI ADDITIONAL JUDGE, COURT OF SMALL
CAUSES, BENGALURU IN MVC NO.4912/2016 PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
DICTATION THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:
JUDGMENT
Challenging the award in M.V.C.No.4912/2016 passed by the MACT, XVI Additional Judge, Court of Small Causes, SCCH-14, Bangalore, the claimants in the said case have preferred this appeal.
2. The appellants were claimant Nos.1 to 3 and the respondents were respondent Nos.1 and 2 in MVC No.4912/2016 before the Tribunal. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal. Claimant Nos.1 & 2 are the mother and father and claimant No.3 is paternal grandmother of deceased Chethan.
3. On 26.03.2015 at 7.15 p.m. when Chethan was traveling in Bajaj Pulsur motorcycle bearing No.KA-41-EC- 8329 along with its rider Arun Kumar near Mayaganahalli Double road within the limits of Ramanagar Traffic Police -3- NC: 2023:KHC:45597-DB MFA No.6154/2019 Station, said motorcycle met with accident. Initially injured Chethan and rider Arun Kumar were shifted to Rajarajeshwari Hospital and from there Chethan was shifted to Nimhans Hospital. He succumbed to the injuries in Nimhans Hospital. At the relevant time, respondent Nos.1 and 2 were the insurer and registered owner of motorcycle bearing No.KA- 41-EC-8329.
4. Regarding the incident, one Chenniganna the relative of the deceased filed complaint before Ramanagar Traffic Police Station alleging that the rider of the motorcycle rode the vehicle rashly and negligently so as to endanger the human life and suddenly applied the brake, consequently both the rider and the pillion rider fell down and suffered grievous injuries causing death of Chethan. Based on said complaint, Ramanagar Traffic Police registered the first information report as per Ex.P1 in Crime No.46/2015 against the rider of the motorcycle. On investigation, the police filed the charge sheet as per Ex.P2 (which is also marked as Ex.R6) against the rider of the motorcycle for the offences punishable under Sections 338, 279, 304A of IPC and Section 181 of the Indian Motor Vehicles Act, 1988 alleging that the accused therein rode the vehicle without driving license in -4- NC: 2023:KHC:45597-DB MFA No.6154/2019 rash and negligent manner and caused the accident and consequential death.
5. The claimants filed M.V.C.No.4912/2016 against the respondents contending that the accident occurred due to actionable negligence on the part of the rider of the motorcycle. They contended that the deceased was aged 19 years and was earning Rs.8,000/- per month and they were all depending on his income. They further contended that respondent Nos.1 and 2 being the Insurer and the owner of the vehicle are liable to pay the compensation of Rs.40,00,000/- to them as damages due to death of Chethan.
6. Respondent No.2 did not contest the petition. Respondent No.1 alone contested the petition denying occurrence of the accident, actionable negligence on the part of the rider of the motorcycle, age, occupation, income of the deceased and its liability to pay the compensation. Though respondent No.1 admitted that the policy issued by it was in force and covered the risk of the said vehicle, contended that there was breach of policy condition, there by it was absolved of its liability.
-5-
NC: 2023:KHC:45597-DB MFA No.6154/2019
7. To substantiate their claim, the claimants examined claimant No.1 as PW.1 and got marked Exs.P1 to P16. On behalf of respondent No.1, its Officer was examined as RW.1 and Exs.R1 to R6 were marked.
8. The Tribunal on hearing the parties and relying on Ex.P1 the First Information Report, Ex.P2 charge sheet and other evidence on record held that the accident occurred due to actionable negligence on the part of the rider of the motorcycle. The Tribunal relying on Ex.P15 SSLC Marks Card, assessed the age of the deceased at 20 years, notional income at Rs.6,000/- per month, deducted ½ of the same for his personal expenses, added 40% to the income by way of future prospects, applied 18 multiplier and awarded compensation of Rs.9,07,200/- on the head of loss of dependency.
9. The Tribunal in all awarded compensation of Rs.9,37,200/ with interest at 9% per annum on different heads as per the table below:
Sl. Particulars Compensation
No. Amount in Rs.
1. Loss of dependency 9,07,200/-
2. Transportation of dead body and 15,000/-
funeral expenses
3. Loss of estate 15,000/-
Total 9,37,200/-
-6-
NC: 2023:KHC:45597-DB
MFA No.6154/2019
10. The Tribunal relying on Ex.R6 and oral evidence on record held that the insurer has proved its defence that the vehicle was ridden by unauthorized person without driving license, thereby there is fundamental breach of policy condition and the insurer is not liable to pay the compensation. Thus, the Tribunal fastened the liability to pay compensation to respondent No.2 the registered owner of the vehicle.
11. Claimants have challenged the said award questioning adequacy of compensation and exoneration of the insurer from the liability.
12. Sri Hemanth.B., learned Counsel for the claimants submits that the notional income assessed by the Tribunal is on the lower side and there was no justification to reject the evidence of the claimants that the deceased was earning Rs.10,000/- per month. He further submits that the compensation awarded on other heads is also on the lower side. He submits that the insurance policy was in force and the victim was third party. As per the judgments of the Hon'ble Supreme Court the insurer is liable to pay the compensation and recover the same from respondent No.2. -7-
NC: 2023:KHC:45597-DB MFA No.6154/2019
13. In support of his contentions, he relies on the following judgments:
(i) Pappu v. Vinod Kumar Lamba1
(ii) Bishan Devi v. Surbakshi Singh2
(iii) Shamanna v. Oriental Insurance Co.Ltd.3
(iv) IFFCO Tokio General Insurance Co. v. Geeta
Devi4
(v) National Insurance Company Ltd. v. Swaran
Singh5
14. Sri A.N.Krishnaswamy, learned Counsel for
respondent No.1 justifies the award on the ground that respondent No.2 had permitted unauthorized person to ride the vehicle without driving license. Therefore, there is fundamental breach of insurance policy condition and the insurer is not liable to pay the compensation. He distinguishes the judgments relied on by learned Counsel for the claimants on the ground that those judgments are applicable only in cases where there is driving license and that was not valid.
1 (2018) 3 SCC 208 2 (1980) 1 SCC 273 3 (2018) 9 SCC 650 4 Spl.L.P.(C)No.19992/2023 DD 30.10.2023 5 (2004) 3 SCC 297 -8- NC: 2023:KHC:45597-DB MFA No.6154/2019
15. On consideration of the submissions of the parties and on examination of the records, the questions that arise for determination of this Court are:
1. Whether the compensation awarded by the Tribunal under the impugned award is just one?
2. Whether the Tribunal was justified in exonerating the Insurer and fastening the liability to respondent No.2 - the owner of the vehicle?
Analysis Reg. Point No.1:
16. The findings of the Tribunal that on 26.03.2015 at 7.15 p.m., while traveling on motorcycle No.KA-41-EC-8329 as pillion rider, accident took place at Mayaganahalli double road, due to actionable negligence on the part of the rider of the said vehicle and consequently died, is not challenged by the respondents. It is also not disputed that respondent No.2 was the registered owner of the said vehicle.
17. The claimants contended that the deceased was earning Rs.8,000/- p.m. from his employment as office boy in DCB HR Solutions. But during the course of examination of PW.1, it was contended that deceased was earning -9- NC: 2023:KHC:45597-DB MFA No.6154/2019 Rs.10,000/- p.m. To prove the said employment and income, they relied on Exs.P10 and P11 - the alleged appointment letter and salary slips respectively. The authors of those documents were not examined. Therefore, the Tribunal rightly held that the documents were not proved and assessed the income notionally.
18. The Tribunal assessed the income notionally at Rs.6,000/- p.m. The accident took place in the year 2015. The deceased was aged 20 years and had passed SSLC. Considering his age, qualification, prevailing wage rate in 2015 and cost of living, the notional income assessed by the Tribunal is at Rs.6,000/- p.m. is on the lower side. Reasonably, it can be assessed at Rs.9,000/- p.m.
19. As the deceased was bachelor, as per the judgment of the Hon'ble Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation6, 50% of his income has to be deducted for his personal expenses. Therefore, his monthly income comes to Rs.4,500/- p.m.
20. Having regard to the age and occupation of the deceased and the judgment of the Hon'ble Supreme Court in 6 AIR 2009 SC 3104
- 10 -
NC: 2023:KHC:45597-DB MFA No.6154/2019 the case of National Insurance Company Limited vs. Pranay Sethi7, 40% has to be super-added to the income of the deceased by way of future prospects. Therefore, his monthly contribution to his family comes to Rs.6,300/- (Rs.4,500+1800). The applicable multiplier is 18. Therefore, compensation payable on the head of loss of dependency comes to Rs.13,60,800/- (Rs.6,300 x 12 x18).
21. In the light of judgments of the Hon'ble Supreme Court in the case of Magma General Insurance Company Limited Vs. Nanu Ram8 and Pranay Sethi's case referred to supra, claimant Nos.1 and 2 being the parents of the deceased are entitled to the compensation of Rs.40,000/- each on the head of loss of consortium with escalation at 10%. Claimant No.3 being the paternal grandmother and had her living children, is not entitled to compensation on the head of loss of consortium. Therefore, compensation payable on the head of loss of consortium comes to Rs.88,000/- (Rs.44,000 x 2).
22. Similarly, as per the judgment of Hon'ble Supreme Court in Pranay Sethi's case referred to supra, on the conventional heads of funeral expenses and loss of 7 AIR 2017 SC 5157 8 (2018) 18 SCC 130
- 11 -
NC: 2023:KHC:45597-DB MFA No.6154/2019 estate, they are entitled for compensation of Rs.15,000/- + Rs.15,000/- respectively with escalation of 10%, which comes to (Rs.16,500 x 2) Rs.33,000/-. Therefore, the just compensation payable is as follows:
Sl. Particulars Compensation
No. Amount in Rs.
1. Loss of dependency Rs.13,60,800/-
2. Consortium Rs. 88,000/-
3. Conventional head, funeral Rs. 33,000/-
expenses and loss of estate
TOTAL Rs.14,81,800/-
Less: Awarded by the Tribunal Rs. 9,37,200/-
Enhanced Compensation Rs.5,44,600/-
23. The enhanced compensation carries interest at the rate of 6% p.a. Reg. Liability:
24. There is no dispute that at the time of accident, the offending vehicle was covered with Ex.R2 the insurance policy, issued by respondent No.1. Section II(1)(i) of Ex.R2 shows that policy covers the risk of occupants of the vehicle also. Policy contains the condition that it covers the risk provided the person driving the vehicle holds an effective driving license at the time of accident and is not disqualified from holding or obtaining such a license. It also contains condition that the insured will not be indemnified if the vehicle is used or driven otherwise than in accordance with the schedule.
- 12 -
NC: 2023:KHC:45597-DB MFA No.6154/2019
25. The charge sheet Ex.P2 produced by the claimants themselves shows that on investigation, police charge sheeted the rider of the vehicle in addition to the offence under Section 338, 279 and 304A of IPC for the offence under Section 181 of MV Act. Column No.17 of the charge sheet says that the accused/rider - Arun @ Arun Kumar rode the vehicle without driving license. Section 181 of MV Act makes an act of driving of a motor vehicle in contravention of Sections 3 and 4 of the MV Act. Section 3 of the MV Act prohibits a person from driving a motor cycle in any public place unless he holds an effective driving license.
26. Learned Counsel for the appellants/claimants contended that respondent No.1 - insurer has not proved its defence that the rider of the motor cycle was not holding the driving license. He claims that respondent No.1 should have examined the RTO to prove the said fact. The burden of respondent No.1 proving its contention that the rider of offending vehicle rode the same without license arises if there was a dispute with regard to the same. Ex.P2 - the charge sheet relied on by the claimants themselves states that the vehicle was driven without driving license. Thereby there is an admission in the evidence of claimants themselves
- 13 -
NC: 2023:KHC:45597-DB MFA No.6154/2019 regarding rider riding the vehicle without the license. The Hon'ble Supreme Court in the judgment in Oriental Insurance Company Limited Vs. Premlata Shukla9, in the similar context held that if a party produces a document and once the same is proved, he cannot seek to rely one part of the documents and ignore the other parts of the document. Such party cannot be permitted to approbate and reprobate together as such document forms part of the evidence in the case. As per Section 58 of the Evidence Act, the admitted fact need not be proved. Having regard to the aforesaid judgment, there is no merit in the contention of the learned counsel for the appellants that the trial Court should not have relied on Ex.P2 with regard to the driving license unless and respondent No.1 examined RTO.
27. Learned Counsel for the appellants relied on the judgment of the Hon'ble Supreme Court in the case of Swaran Singh's, Pappu's, and Shamanna's cases referred to supra, to contend that, even if there is no driving license the insurer is liable to pay the damages to the claimants and recover the same from the owner of the vehicle. Those judgments referred to the principle of pay and recovery in 9 (2007) 13 SCC 476
- 14 -
NC: 2023:KHC:45597-DB MFA No.6154/2019 case of breach of policy condition for disqualification of the driver to hold the license or holding of an invalid driving license. They did not relate to a case of no driving license at all.
28. Learned counsel for the appellants/claimants relied on Bishan Devi's case referred to supra to contend that even in case of no license also, the insurer is liable. Plain reading of the said judgment shows that in that case it was held that the insurer had failed to prove its defence that vehicle was driven by a person without license. In the present case the defence of the insurer that the offending vehicle was driven by a person having no license and the same is proved. Therefore, the said judgment is not applicable to the facts of the present case.
29. Respondent No.2 - the owner of the vehicle neither contested the petition by filing written statement nor adduced any evidence claiming that he did not consciously permit Arun Kumar to ride the vehicle. Arun Kumar rode the vehicle without driving license was not impeached by him thereby the Tribunal was justified in holding that respondent No.2 permitted operating of the vehicle by an unauthorized person. The said act of respondent No.2 amounts to
- 15 -
NC: 2023:KHC:45597-DB MFA No.6154/2019 fundamental breach of policy condition within the meaning of Section of 149(2)(a)(ii) of the MV Act. Therefore, the Tribunal was justified in exonerating the insurer on the ground that there is fundamental breach of policy condition. Therefore, the appeal succeeds only with regard to the enhancement of the compensation. Hence, the following:
ORDER The appeal is partly allowed. The impugned order of the Tribunal is modified as follows:
(i) Respondent No.2 is hereby directed to pay the enhanced compensation of Rs.5,44,600/- to the claimants with interest thereon at 6% p.a. from the date of petition till its realization.
(ii) The dismissal of the claim petition against respondent No.1 is hereby confirmed.
(iii) The order of the Tribunal with regard to the apportionment and investment is maintained.
Sd/-
JUDGE Sd/-
JUDGE KSR,VBS List No.: 1 Sl No.: 32