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MFA No. 2603 of 2017

®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 27TH DAY OF MARCH, 2023

BEFORE
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

MISCELLANEOUS FIRST APPEAL NO. 2603 OF 2017 (MV-I)

Between:

M/s. National Insurance Company Ltd.,

Motor Claims Hub,
No.144, 2nd Floor,
Subharam Complex,
M.G.Road, Bangalore - 560 001.
Represented By Rekhs S Menon.
…Appellant
(By Smt. Geetha Raj, Advocate)

And:

1. Mrs Asha,
W/o. Late A S Ganesh,
Digitally signed
by BANGALORE
Aged About 41 Years,
MADHAVACHAR
VEENA
Location: High
Court of
Karnataka 2. Kumari A G Pooja
D/o. Late A S Ganesh
Aged About 20 Years,

3. Master A G Yeshwanth
S/o. Late A S Ganesh
Aged About 18 Years,

All are permanent residents of

Door No.3/46,
Nehrunagar, Police Line,
Palamenr Town, Chitoor District,
Andrapradesh - 517 408.
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MFA No. 2603 of 2017

Permanently residing at No.109,

LVS Appartments
T C Palya, K R Puram,
Bangalore - 560 036.

4. Mr. K Harish,
S/o. K Krishna,
Aged About 43 Years,
Resident of No.3/102,
Tharesabai Compound,
Bikarnakatte,
Kulshekar Post,
Manglore - 575005.
…Respondents

(By Sri. Sathisha T., Advocate for R-1 to R-3;

R-4 - notice dispensed with vide order dt.17-10-2017)

****
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, 1988, praying to call for the
records and modify the judgment and award dated
27-01-2017, passed by the Motor Vehicles Accident Claims
Tribunal, Bangalore City, SCCH-14 in M.V.C.No.3021/2016, in
the interest of justice and equity.

This Miscellaneous First Appeal coming on for Final

Hearing through Physical Hearing/Video Conferencing, this day,
the Court delivered the following:

JUDGMENT

The present appellant was respondent No.2 in

M.V.C.No.3021/2016, filed by the present respondents

No.1 to 3 (claimants) against the present respondent No.4

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MFA No. 2603 of 2017

and the present appellant, arraigning them as respondents

No.1 and 2 respectively, in the Court of the Member,

Motor Accident Claims Tribunal, and XVI Additional Judge,

Court of small Causes, Bangalore, (hereinafter for brevity

referred to as “the Tribunal”).

2. The present respondents No.1 to 3, who were the

claimants before the Tribunal in the claim petition filed

under Section 166 of the Motor Vehicles Act, 1988

(hereinafter for brevity referred to as “the M.V. Act”) have

stated that, on the date 27-03-2016, at about 9:15 p.m.,

the husband of the claimant No.1, who was also the father

of the claimant Nos.2 and 3 respectively was going on his

Motor Cycle bearing Registration No.AP-03/AN-9551, on

Palamaner-Chittoor Main Road, in Chittoor District. While

he was near Rangababu Cross, a Motor vehicle Maxi Cab

bearing Registration No.KA-19/D-3040, being driven by its

driver at a high speed, in a rash and negligent manner,

came from Chittoor side and dashed against the Motor

Cycle of the deceased. Due to the said road traffic

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MFA No. 2603 of 2017

accident, the deceased sustained grievous injuries and

succumbed to the said injuries on the spot.

The claimants in their claim petition have stated that,

at the time of the road traffic accident, the deceased was

aged about 47 years and was earning a sum of `50,000/-

by doing Cloths business and that all the claimants were

depending upon his income. With this, they had claimed

compensation of a sum of `50,00,000/- from respondents

No.1 and 2 therein, arraigning them as the owner and

insurer of the motor vehicle Maxi Cab, respectively.

3. In response to the summons from the Tribunal,

both the respondents appeared through their counsels.

Respondent No.2 filed its statement of objections, denying

the manner of occurrence of the road traffic accident, as

contended by the claimants. It also specifically denied

the age, income and occupation of the deceased. It

categorically stated that the rider of the Motor Cycle and

the driver of the alleged offending vehicle Maxi Cab did not

possess any valid and effective Driving Licence as at the

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MFA No. 2603 of 2017

time of the occurrence of the road traffic accident. With

this, it denied its liability to compensate the claimants in

any manner, for the alleged death of the deceased in the

said road traffic accident. The respondent No.1 (owner)

before it, though appeared, did not file any statement of

objections.

4. Before the Tribunal, the claimants got examined

claimant No.1 as PW-1 and also examined one

Sri.K. Vadivelu Chetty as PW-2 and got marked documents

from Exs.P-1 to P-15(a). However, on behalf of the

respondents, neither any witness was examined nor any

documents were got marked.

5. After framing the issues and recording the

evidence led by both side, the Tribunal, by its impugned

judgment dated 27-01-2017, allowed the claim petition in

part, holding the respondent No.2-Insurance Company

(appellant herein) before it, liable to pay the compensation

to the claimants of a sum of `22,03,000/- under the

following heads with the sum shown against them, at the

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MFA No. 2603 of 2017

rate of `9% per annum, from the date of petition till the

date of payment:

Sl.
Particulars Amount in `
No.
1 Loss of dependency 20,28,000-00
2 Loss of love and affection 60,000-00
3 Loss of estate 60,000-00
4 Transportation and funeral 30,000-00
expenses
5 Loss of consortium 25,000-00
Total 22,03,000-00

It is being aggrieved by the said judgment and

award of the Tribunal, wherein the Tribunal has partly

allowed the claim petition filed by the claimants therein

(respondents No.1 to 3 herein) and fastening the liability

upon the present appellant, who, as an insurer of the

alleged offending Maxi Cab, was respondent No.2 before

the Tribunal, has preferred the present appeal.

6. Records were called for from the Tribunal and the

same are placed before the Court.

7. Learned counsel for the appellant-Insurance

Company and learned counsel for respondents No.1 to 3

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MFA No. 2603 of 2017

(claimants) are appearing physically before the Court. On

a memo filed by the learned counsel for the appellant

(insurer) notice to respondent No.4 (owner) is dispensed

with vide order dated 17-10-2017.

8. Heard the arguments from the learned counsel for

the appellant - Insurance Company and the learned

counsel for respondents No.1 to 3 (claimants). Perused

the materials placed before this Court including the

memorandum of appeal, impugned judgment and also the

records of the Tribunal.

9. The claimants, in order to prove that the

occurrence of the road traffic accident, as contended by

them in their claim petition has occurred on the date, time

and place and in the manner as contended by them in

their claim petition, got examined claimant No.1 - the wife

of the deceased, as PW-1. They have also got examined

one Sri.K. Vadivelu Chetty as PW-2, projecting him as an

eye witness to the alleged road traffic accident.

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MFA No. 2603 of 2017

10. The claimant No.1, as PW-1 has reiterated the

contentions taken up by the claimants in their claim

petition and contended that, though her husband was

riding the Motor Cycle with all care, caution and very

slowly, however, the road traffic accident has occurred

solely, due to the rash and negligent driving of the

offending Maxi Cab by its driver. However, she stated in

her cross-examination that, she was not an eye witness to

the accident and that when her husband was taking a ‘U’

turn on the right side in a cross at palamaner-Chittoor

Road, at that time, the road traffic accident in question

has taken place.

11. PW-2 in his cross-examination, though has

reiterated that he was an eye witness to the road traffic

accident in question, however, has stated that the

deceased came to the Circle from Kothapeta side. The said

Kothapeta comes towards Palamaner. The deceased was

in the centre of Circle and he was taking the vehicle

towards his right side, at that time, the road traffic

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MFA No. 2603 of 2017

accident in question has occurred. Thus, claiming

himself to be an eye witness, he has stated that, the

deceased was on the centre of the Circle and was taking

his bike towards right side, by which time, the road traffic

accident in question has occurred. The said evidence of

the alleged eye witness when read along with the scene of

offence panchanama (spot sketch) which is at Ex.P-15,

would go to show that, the said road between palamaner

and Chittoor near the place of occurrence of accident was

with a median, as such, the road was divided into two. The

width of the road on one side of the median where the

accident has taken place is shown as 16 feet. The place of

the road traffic accident is near a Circle and the Motor

Cycle is shown to have come to the right side of the median

near the Circle, when it was dashed by the Maxi Cab, said to

have been coming from Chittoor side towards palamaner.

Thus the evidence of the alleged eye witness as PW-2

when read with the spot sketch at Ex.P-15 would go to

show that, the deceased has not taken his Motor Cycle
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MFA No. 2603 of 2017

around the Circle from its left side, but circumvented the

Circle and took an immediate right turn, as such, the spot

of the accident has fallen in the middle of the road, leading

from Chittoor side to Palamaner prior to the centre spot of

the Circle. Had the deceased taken a round to the said

Circle, keeping himself on the left side and if still assuming

that the accident has taken place, then the spot of the

accident could not have been on the same spot what is

shown in the spot sketch at Ex.P-15, but it should have

been much prior to that, since the rider of the Motor Cycle

(deceased) was intending to go to his right side by taking

a turn. Since he has avoided to take a round of the Circle

and must have tried to take a right turn immediately, thus,

immediately after he took a turn to circumvent the Circle, the

accident has taken place on the other side of the road.

Thus the evidence of PW-2 when read along with the

documentary evidence at Ex.P-15 would go to show that,

there is contribution from the deceased’s side also, as the

rider of the Motor Cycle for the cause of the road traffic

accident. As such, merely because a charge sheet is said

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MFA No. 2603 of 2017

to have been filed against the driver of the Maxi Cab for

the offences punishable under Section 304-A of the Indian

Penal Code, 1860 and Section 134(a) and (b) of the M.V.

Act, by that itself it cannot be concluded that the absolute

negligence was solely on the part of the driver of the Maxi

Cab only. It is also for the reason that, neither side parties

are in a position to submit as to what happened to the

alleged crime said to have been registered against the

driver of the Maxi Cab.

Thus, considering the evidence of PW-2, who claims

himself to be an eye witness and the spot sketch at

Ex.P-15, it would go to show that the deceased also, being

the rider of the Motor Cycle bearing registration No.AP-

03/AN-9551 has contributed to the occurrence of the road

traffic accident, by taking his Motor Cycle in a wrong

direction circumventing the Circle, as such, there is

contributory negligence on the part of the rider of the

Motor Cycle also.

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MFA No. 2603 of 2017

No doubt the respondent No.2 (Insurance Company)

before the Tribunal has not taken a specific contention by

making use of the word ‘contributory negligence’ in its

Statement of Objections, however, it has categorically

denied that the accident has occurred in a manner as

stated by the complainants (claimants) in their claim

petition. It is for the claimants to prove that there was

rash and negligent driving of the alleged offending vehicle

Maxi Cab by its driver. In the said process, if they are

unable to prove that the sole rash and negligent driving

was only on the part of the driver of the Maxi Cab and on

the other hand, if the respondent/Insurer could able to

show that the road traffic accident has not occurred in the

manner as agitated by the claimants and could able to

establish that there is some contribution on the part of the

deceased rider of the Motor Cycle also, then, the Tribunal

should not hesitate in fixing the contributory negligence

even on the part of the deceased rider of the Motor Cycle

also.
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MFA No. 2603 of 2017

12. In the instant case, the claimants could not able

to establish the absolute and total negligence and

rashness on the part of the driver of the Maxi Cab in

driving the said vehicle. On the other hand, the evidence

led by none else than PW-2 coupled with the spot sketch

at Ex.P-15 would go to show that, the deceased, who was

the rider of the Motor Cycle bearing registration No.AP-

03/AN-9551 also has contributed to the occurrence of the

road traffic accident. Thus the circumstances of the case,

the location/spot of the occurrence of the alleged road

traffic accident and the nature of the vehicles would

enable this Court to fix the contributory negligence on the

part of the deceased rider of the Motor Cycle bearing

registration No.AP-03/AN-9551 at 20% and the remaining

negligence which would be 80% upon the driver of the

Maxi Cab. The Tribunal did not notice these aspects,

however being impressed by the charge sheet which

was filed against the driver of the Maxi Cab/Tempo traveller

bearing registration No.KA-19/D-3040, jumped to the conclusion

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MFA No. 2603 of 2017

that the entire rash and negligent driving of the vehicle

was solely on the part of the driver of the said Maxi Cab.

13. The claimants have contended that the deceased

was aged about 47 years at the time of the accident and

by running a cloth business, was earning a sum of

`50,000/- per month. The age of the deceased as 47 years

is not in dispute and the same is further corroborated with

the Post-Mortem report at Ex.P-5. However, the

respondents before the Tribunal have seriously disputed

the alleged income of the deceased.

Admittedly, the claimants have not produced any

income tax returns of the deceased. On the other hand,

they have produced two Pass Books of the Bank Account

at Ex.P-8. Admittedly, those two Bank Pass Books are not

of any Business Account. One of the Bank Pass Book is of

the Indian Bank, which is a Joint Account Pass Book,

standing in the name of both the deceased and his wife,

who is claimant no.1. Admittedly, it was the deceased

alone who was running the business, as such, there was

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MFA No. 2603 of 2017

no necessity for him to have a Business account joined by

his wife in the form of a Savings Bank account. The other

Bank Pass Book in the same exhibit number is of a

Savings Bank Account of the deceased with Saptagiri

Grameena Bank. The said Bank Pass Book also is not of a

Business Account nor it contains the business transactions

nor even it is a Profit and Loss statement. As such,

merely looking at a Bank Pass Book, it cannot be inferred

that the deceased had a particular quantum of income.

Needless to say, the alleged occupation of the deceased

was business, as such, it is not even an income from

salary, so that from the Savings Bank Pass Book, the

credit of the salary amount could have been ascertained.

Therefore, the only other document which is available to

know and assess about the avocation and income of the

deceased is the Registration Certificate with the Labour

Department at Ex.P-7. The said Certificate, except

showing that a Cloth shop is registered in the name of

‘Sri Sai Selections’ and stands in the name of the deceased

Sri. A.S. Ganesh, it throws no more light, much less about

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MFA No. 2603 of 2017

the alleged income of the deceased. However, considering

the fact that PW-1, in her evidence has stated that they

were living in their own residential house and that the

Labour Department Certificate at Ex.P-7 also shows that

the deceased had an established business. Hence, the

prevailing notional income for the relevant year, which is

`9,500/- per month is too low to accept. Similarly, it also

cannot be believed that the deceased had an income as

was stated by PW-1 at a sum of `50,000/- per month.

Had really the deceased had such an income of `50,000/-

per month, he should have definitely been an income-tax

assessee and that the claimants should have necessarily

produced his income-tax returns and other necessary

documents to show his income. Thus, the income of the

deceased at `15,000/- per month, which is taken by the

Tribunal as the income of the deceased appears to be

quite reasonable and just in the circumstances of the case

and I retain the same as the income of the deceased.

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MFA No. 2603 of 2017

As such, the argument of the learned counsel for the

appellant (insurer) that the income of the deceased was

taken on the higher side by the Tribunal than at `9,500/-

per month, which was the notional income, is not

acceptable.

The Tribunal has added 30% to the income of the

deceased towards future prospects, whereas, as per the

decision of the Hon’ble Apex Court in the case of National

Insurance Company Ltd. Vs. Pranay Sethi and others,

reported in (2017) 16 Supreme Court Cases 680, for the

age group of the deceased, who was aged 47 years, for

self-employed persons, the future prospects was required

to be taken at 25%. Thus, the total income of the

deceased per month would come to a sum of `15,000/- +

`3,750/- = `18,750/-.

14. Considering the total number of dependents

upon the income of the deceased, who are three in

number, the deduction towards personal expenses, as

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MFA No. 2603 of 2017

rightly taken by the Tribunal, is to be taken at 1/3rd.

Thus, after deducting 1/3rd (i.e. `6,250/-) towards the

personal and living expenses of the deceased from a sum

of `18,750/-, the balance would be a sum of `12,500/-,

which is the contribution of the deceased towards his

family, per month. For the age of the deceased being 47

years, the multiplier applicable is ‘13’. Thus, the quantum

of compensation towards loss of dependency would be a

sum of `19,50,000/- (i.e. `12,500/-x12x’13’).

15. The claimant No.1 being the wife of the

deceased is entitled for compensation towards loss of

consortium. Thus, the compensation under the

conventional heads including loss of consortium, funeral

expenses and loss of estate at `40,000/- + `15,000/- +

`15,000/- as per Pranay Sethi’s case (supra), would come

to a total sum of `70,000/-. The parental consortium/loss

of love and affection to the two children of the deceased

would be at a sum of `40,000/- each, which in total comes

to a sum of `80,000/- (`40,000/-x2).

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16. Thus, the claimants (respondents No.1 to 3

herein) would be entitled to the total modified

compensation as tabulated below:

Sl.
Particulars Amount in `
No.
1 Loss of dependency 19,50,000-00
2 Loss of consortium and towards 40,000-00
loss of love and affection to
claimant No.1/respondent No.1
herein
3 Transportation and funeral 15,000-00
expenses
4 Loss of estate 15,000-00
5 Loss of filial consortium for 80,000-00
claimants No.2 and 3/respondents
No.2 and 3 herein @ `40,000 to
each
Total 21,00,000-00

However, the Tribunal, while awarding the

compensation under other heads including the

compensation towards loss of love and affection, loss of

estate and funeral expenses, has, without any reason

since has awarded higher compensation, the same

requires to be substituted with the computation made as

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MFA No. 2603 of 2017

above. Thus the quantum of compensation awarded by the

Tribunal being higher in a sum of `1,03,000/- than what

the actual computation now comes, the same deserves to

be reduced to the said extent.

17. As observed above, the Tribunal has not

considered the contributory negligence on the part of the

deceased rider of the Motor Cycle bearing registration

No.AP-03/AN-9551, which is now fixed by this Court at

20%, as analysed above. Thus the compensation for which

the claimants are entitled to from the appellant herein

(respondent No.2 before the Tribunal) would be 80% i.e. a

sum of `16,80,000/- (after deducting 20% towards the

contributory negligence fixed on the part of the deceased,

from the total sum of compensation awarded by this Court

at `21,00,000/-).

18. In addition to the above, without attributing any

reasons, the Tribunal has awarded interest at the rate of

`9% per annum on the compensation awarded by it.

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Considering the fact that the rate of interest on the

term and fixed deposits in the nationalised Banks in these

years are reducing, the awarding of interest at the rate of

`9% per annum is also on the higher side and thus the

same is required to be reduced and re-fixed at `6% per

annum.

19. It is for this limited purpose of modification in

the quantification of the compensation including rate of

interest and also fixing the contributory negligence upon

the deceased rider of the Motor Cycle also at 20%, the

interference in the impugned judgment and award is

warranted.

20. Barring the above, the appellant/Insurance

Company has not raised any other ground worth to be

considered and no arguments on any other point were also

canvassed from the appellant’s side.

Accordingly, I proceed to pass the following:

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ORDER

[i] The appeal filed by the appellant -

Insurance Company stands allowed in part;

[ii] The impugned judgment and award,

passed by the Court of the Member, Motor

Accident Claims Tribunal, and XVI Additional

Judge, Court of small Causes, Bangalore, dated

27-01-2017, in M.V.C.No.3021/2016, is hereby

modified to the extent that the compensation

awarded at `22,03,000/- is reduced and

restricted to a sum of `21,00,000/- (Rupees

Twenty One Lakhs only).

[iii] The order of the Tribunal fixing the

entire negligence on the part of the driver of the

Maxi Cab bearing registration No.KA-19/D-3040

and directing the respondent No.2 - Insurance

Company (appellant herein) to deposit the entire

compensation is modified and the contributory

negligence is fixed at 20% on the part of the

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deceased rider of the Motor Cycle and the

remaining 80% on the part of the driver of the

Maxi Cab bearing registration No.KA-19/D-3040;

In view of the contributory negligence fixed

at 20% on the part of the deceased rider of the

Motor Cycle bearing registration No.AP-03/AN-

9551, the claimants are held entitled to a total

compensation of a sum of `16,80,000/-;

[iv] The rate of interest ordered by the

Tribunal at the rate of `9% per annum also

stands modified and fixed at `6% per annum,

from the date of the claim petition till the date of

payment;

[v] The appellant - Insurance company is

directed to deposit its share of compensation

with interest at the rate of `6% per annum from

the date of the claim petition till the date of

payment, within thirty days from today;

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MFA No. 2603 of 2017

[vi] The apportionment of the total

compensation awarded to claimants 1 to 3

(respondents No.1 to 3 herein) gets

proportionately reduced to the extent of

reduction of compensation, however, the terms

regarding the release of the amount shall remain

unaltered and unmodified.

The amount in deposit by the appellant – Insurance

Company in the Registry be transmitted to the Tribunal

without delay;

Draw the modified award accordingly.

Registry to transmit a copy of this judgment to the

concerned Tribunal along with its records, without delay.

Sd/-
JUDGE

BMV*
List No.: 1 Sl No.: 62