The High Court
Case Details
- 1 - NC: 2025:KHC:13955 MFA No. 7698 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO.7698 OF 2014(MV-I) BETWEEN: 1. SMT. LALITHAMMA, W/O. SHANKARAPPA, AGED ABOUT 47 YEARS, HOUSE WIFE, R/O. H.D. PURA VILLAGE, TALYA HOBLI, HOLALKERE TALUK-577526. 2. SHANKARAPPA, S/O. HANUMANTHAPPA, AGED ABOUT 52 YEARS, COOLIE, R/O. H.D PURA VILLAGE, HOLALKERE TALUK-577526. (BY SRI. SHASHIDHARA R., ADVOCATE) AND: 1. MARULASIDDAPA, S/O. RAMAPPA, AGED ABOUT 47 YEARS, OWNER OF THE VEHICEL BEARING NO.KA-37-9488, R/O. WARD NO.16, JAWAHAR ROAD, DIWAKAR CIRCLE, KOPPAL POST AND DISTRICT-533 231. 2. THE GENERAL MANAGER, CHOLAMANDALAM M.S. Digitally signed by MEGHA MOHAN Location: High Court Of Karnatka …APPELLANTS - 2 - NC: 2025:KHC:13955 MFA No. 7698 of 2014 GENERAL INSURANCE CO. LTD., NO.9/1, USLOOR ROAD, BANGALORE-560 042. 3. G. B. TYAGARAJU, S/O. BASAVARAJAPPA, AGED ABOUT 32 YEARS, OWNER OF THE VEHICLE BEARING NO.KA-51-1092, R/O. EDEHALLI VILLAGE, HOLALKERE TALUK-577 526. 4. THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., OPP:BAPUJI AUDITORIUM, MCC-B BLOCK, DAVANAGERE-01. …RESPONDENTS
Legal Reasoning
(BY SRI. B.K. NARENDRA BABU, ADVOCATE FOR R3; SRI. S. SRISHAILA, ADVOCATE FOR R4; SRI. H.S. LINGARAJU, ADVOCATE FOR R2; V/O DATED 31.08.2021 SERVICE OF NOTICE TO R1 IS HELD SUFFICIENT BY WAY OF PAPER PUBLICATION FOR R1 MARULASIDDAPPA) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23.12.2013 PASSED IN MVC.NO.292/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE & ADDITIONAL MACT, HOLALKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI - 3 - NC: 2025:KHC:13955 MFA No. 7698 of 2014 ORAL JUDGMENT Aggrieved by the award passed in MVC.No.292/2012 dated 23.12.2013 by the Senior Civil Judge and Addl. MACT, Holalkere, the claimants are before this Court questioning the liability fastened on the owner of the vehicle as well as seeking enhancement of the compensation. 2. The facts of the case are that on 04.10.2011 at about 2.45 pm., the son of the claimants was traveling in a luggage auto from Holalkare towards Gunderi kaval as traveler. While the driver was driving the vehicle, the deceased tried to spit Ghutka. At that point of time, the driver of another luggage auto came from opposite direction and dashed the vehicle and there was a head-on collision between both the vehicles, as an impact of the same, he sustained grievous injuries and died while taking to the hospital. According to the claimants, he was earning an amount of Rs.10,000/- per month and sought compensation of an amount of Rs.18,00,000/-. 3. Basing on the evidence, the Tribunal had granted the compensation as per the table given below: - 4 - NC: 2025:KHC:13955 MFA No. 7698 of 2014 Sl. No. 1. 2. 3. Heads of Compensation Amount Loss of Dependency Loss of love and affection Funeral Expenses Total Rs.3,51,000/- Rs.50,000/- Rs.25,000/- Rs.4,26,000/- 4. Altogether the Tribunal had granted compensation of an amount of Rs.4,26,000/-. Aggrieved thereby the appellant is before this Court. 5. When it comes to the liability, the Tribunal had held that the deceased was travelling as a gratuitous passenger in a luggage auto and the owner alone is liable to pay the compensation. When it comes to the involvement of the opposite vehicle, the Tribunal had completely not accepted the contention of the claimants and held that there is no involvement of the opposite vehicle. Respondent No.2- Cholamandalam M.S. General Insurance Company Ltd. had insured the luggage auto in which the deceased was travelling and respondent No.4-National Insurance Company Ltd. had insured the opposite vehicle. It is important to look at the findings of the Tribunal when it comes to the liability, the Tribunal had observed that RW3 has examined RWs4 and 5 that is one Madamma and Lakshmamma, who are aged about - 5 - NC: 2025:KHC:13955 MFA No. 7698 of 2014 65 years and 30 years respectively have deposed before the Tribunal that they were traveling in Tyagaraju's auto rickshaw and when they saw that one person had sustained injuries, Tyagaraju stopped his vehicle and helped in taking the injured to the hospital, but subsequently the police in collusion with the claimants and other persons have registered a case against respondent No.3. The Tribunal also observed that they are rustic villagers, have no worldly knowledge, but they have consistently deposed what has happened, nothing worth has been elicited in their cross examination and they have deposed falsely. Their names also appear in the charge sheet as witnesses. The Tribunal felt that there is no reason to discredit the evidence of the witnesses. The Tribunal had also observed that the claimants have changed the name of the driver of the offending vehicle in order to get compensation and also to overcome from the obstacle with regard to the D.L., that itself clearly would show that they have also falsely implicated respondent No.3 just to claim compensation. There is clear evidence to show that the deceased himself was responsible for his death when he tried to spit Ghutka. It appears that he fell down from the luggage auto while trying to spit the Ghutka and - 6 - NC: 2025:KHC:13955 MFA No. 7698 of 2014 sustained injuries and thereafter died. But, since it was a luggage auto, one Kallesh, was not holding any licence and therefore, they must have thought fit to create a story to implicate one Vijayappa and this Tyagaraju, as accused Nos.2 and 1 respectively. The Tribunal had observed that the evidence of PWs.1 and 2 is contrary to the documentary evidence and on the other hand, the evidence of RWs.2, 4 and 5 is very clear and there is no exaggeration. Therefore, their evidence is to be accepted and basing on this, the Tribunal had come to the conclusion that respondent No.3 is not at all involved in the accident and as the deceased was travelling in a luggage auto, the driver and owner of that vehicle alone are responsible for his death and they are liable to pay the compensation. 6. Learned counsel appearing for the claimants submits that the Tribunal had failed to appreciate the oral and documentary evidence placed before the Tribunal. It is submitted that he was traveling in the said auto and he falls under Rule 100 of the Karnataka Motor Vehicle Rules, 1989 and submits that he cannot be considered as a gratuitous passenger and when he had sustained injuries and when both the vehicles - 7 - NC: 2025:KHC:13955 MFA No. 7698 of 2014 were involved, when there is a composite negligence, the owner and the insurer of both the vehicles are jointly and severally liable to pay the compensation. It is submitted that the Tribunal on assumptions and presumptions had held that the opposite vehicle is not involved in the accident when the charge sheet is filed against them. Learned counsel further submits that nobody has questioned the charge sheet and in that case it is not open for them to say that the accident had not taken place. It is further submitted that it is never the case of the insurance company that their vehicle is not involved in the accident. In a case of composite negligence and both the owner and the insurance company are jointly and severally liable to pay the compensation. When it comes to the compensation, it is submitted that according to the claimants, the deceased was earning an amount of Rs.10,000/- per month and the Tribunal had taken the income at an amount of Rs.4,500/- per month which is not just and reasonable. Further, under the other heads also the compensation that was awarded by the Tribunal is not reasonable. 7. Learned counsel appearing for respondent No.2/ Insurance Company which had insured the luggage auto in - 8 - NC: 2025:KHC:13955 MFA No. 7698 of 2014 which the deceased was traveling submits that it is a goods vehicle and at best one could travel in the vehicle if he is the owner of the goods or as an employee he can travel in the said goods vehicle, but it is submitted that the Rule 100 of the Karnataka Motor Vehicle Rules 1989 will not cover the deceased and when he is traveling in a goods vehicle he has to be considered as a gratuitous passenger and in the light of the settled law, in case of gratuitous passenger, the insurance company is not liable to pay the compensation. He submits that the Tribunal has rightly exonerated the insurance company and fastened the liability on the driver and owner of the vehicle and submits that no interference is called for with the well considered order passed by the Tribunal. 8. Learned counsel appearing for respondent No.4/ Insurance Company which had insured the opposite vehicle submits that the Tribunal had rightly considered the evidence and rightly held that the offending vehicle as stated by the claimants was not involved in the accident which is supported by the evidence of RWs.4 and 5 and also the written statement of respondent No.3. It is submitted that according to the claimants, it is a head-on collision between both the vehicles - 9 - NC: 2025:KHC:13955 MFA No. 7698 of 2014 and once it is a head-on collision, there are other inmates in the auto and the inmates in the auto admittedly nobody had sustained injuries. As per the IMV report, there are no damages to both the vehicles. At one stretch, claimant says that it is a composite negligence and on the other stretch it is stated that when the deceased put his head out to spit the Ghutka, at that time, the opposite vehicle has come and hit the vehicle. It is submitted that the evidence is not consistent and the Tribunal had rightly disbelieved the evidence of PW1 and the eyewitness PW2 had rightly held that the offending vehicle is not involved in the accident. 9. Learned counsel appearing for respondent No.3/the owner of the opposite vehicle submits that his vehicle was not involved in the accident and in fact, when he saw the accident and tried to help the deceased, he has been implicated in the case and in support of his case, he has examined RWs.4 and 5 and their evidence is consistent with his pleadings and nothing could be elicited from the witnesses and the Tribunal had rightly placed reliance on the evidence of the said witnesses and rightly held that respondent No.3’s vehicle is not involved in the accident. - 10 - NC: 2025:KHC:13955 MFA No. 7698 of 2014 10. Having heard the learned counsels on either side, perused the material on record. Before proceeding with the matter, a close scrutiny of the pleadings of the claim petition is essential in the facts and circumstances of the case. As per the claim petition, it is stated that on 04.10.2011 at about 2.45 pm., while the deceased was traveling in a luggage auto as a traveler, when the said vehicle reached near Hosanagara, Gunderi Road, Holkere Taluk, another luggage auto driven by its driver also came there. At that time, the deceased intending to spit Ghutka, then the drivers of both the said vehicles have driven their vehicles in a rash and negligent manner without observing the traffic rules and regulations and dashed with each other and to this impact, deceased sustained grievous injuries all over his body. Immediately, he was shifted to the hospital. As per Ex.P4, the post-mortem report the cause of death is due to shock as a result of cerebral injury. According to the claimants, it is a composite negligence and both the vehicles are involved. If it is a head-on collision, there are other persons travelling in the opposite vehicle as well as in the vehicle in which the deceased was travelling. Admittedly none of them have sustained injuries and admittedly as per the IMV - 11 - NC: 2025:KHC:13955 MFA No. 7698 of 2014 report, there are no damages to both the vehicles which clearly demonstrates that it is not a head-on collision. At one stretch the claimants says that the deceased has kept his head out to spit the Ghutka and there is negligence on the part of the driver in which he is traveling. Coming to the vehicle in which he is traveling, admittedly he is traveling in the goods vehicle. Neither he is an employee nor the owner of the goods he cannot travel in a goods vehicle. In that case he is a gratuitous passenger. As far as respondent No.2/Insurance Company is concerned, the insurance company is not liable to pay the compensation as he is a gratuitous passenger. Coming to the negligence or the involvement of the vehicle is concerned, in the light of the evidence of RWs.4 and 5 and the fact that there is no damage to the vehicle and there are no injuries either to PW2 or to RWs.4 and 5. Even the theory put forth by the claimants that it is a head-on collision is also, this Court is not able to accept the said contention. In the considered opinion of this Court, the Tribunal had rightly held that the vehicle is not involved. In view of the same, the liability that is fixed on the owner and driver of the vehicle in which the deceased was travelling holds good and no interference is called for. - 12 - NC: 2025:KHC:13955 MFA No. 7698 of 2014 11. Coming to the compensation, according to the claimants, the deceased was earning an amount of Rs.10,000/- per month. Considering the fact that this accident had occured in the year 2011, this Court is taking the notional income at an amount of Rs.6,500/- per month. Considering the age of the deceased i.e., 20 years, the future prospects at 40% would come to an amount of Rs.2,600/- and his income is Rs.9,100/- per month. As the deceased was a bachelor, 50% has to be deducted towards his personal expenses. Then, his contribution to the family would be Rs.4,550/- per month. Hence, under the head of loss of dependency, this Court is granting an amount of Rs.9,82,800/- (4,550X12X18). As there are two claimants, towards consortium this Court is granting an amount of (44,000X2)=Rs.88,000/-, towards funeral expenses this Court is granting an amount of Rs.36,000/-. 12. In the light of the law laid down by the Hon'ble Supreme Court in the case of V.MEKALA vs. M. MALATHI AND ANOTHER1, the claimants are entitled for an amount of Rs.10,000/- towards Legal Expenses. 1 (2014) 11 SCC 178 - 13 - NC: 2025:KHC:13955 MFA No. 7698 of 2014 13. The claimants are therefore, entitled to the compensation under the following heads: Sl. No. Head of Compensation Rs. Compensati on Amount by the Tribunal Compensatio n amount by this Court 1. 2. 3. 4. Rs. Rs. 9,82,800/- 3,51,000/- Loss of Dependency Loss of love and affection 36,000/- 25,000/- Funeral Expenses Rs. Rs. 10,000/- - Legal Expenses Rs. 4,26,000/- 11,16,800/- Rs. 50,000/- 88,000/- Total Enhanced amount 6,90,800/- 14. All together, the claimants are entitled for compensation of an amount of Rs.11,16,800/-. Accordingly, the appeal filed by the claimants is Allowed-in-part by enhancing the compensation from an amount of Rs.4,26,000/- to Rs.11,16,800/-. Respondent No.1-owner alone is liable to pay the compensation. i) The enhanced amount shall carry interest at 6% per annum from the date of petition till the date of realization. ii) Respondent No.1-owner of the vehicle shall deposit the amount within a period of eight weeks from the date of receipt of copy of the judgment. On such - 14 - NC: 2025:KHC:13955 MFA No. 7698 of 2014 deposit, the claimants are entitled to withdraw the entire amount without furnishing any security. iii) Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay. iv) The apportionment of the amount shall be as per the order passed by the Tribunal. v) No costs. vi) Pending miscellaneous petitions, if any, shall stand closed. Sd/- (LALITHA KANNEGANTI) JUDGE BN List No.: 1 Sl No.: 2