1 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 9140 OF 2010 (MV) BETWEEN Bajaj Allainz General Insurance Company Ltd., No.107, I Floor, Cystal Arc Balmatta Road Mangalore – 575001 D.K Represented by its Bajaj Allaianz General Insurance Company Bangalore represented by its Assistant Vice President (claims) ... Appellant (By Smt. H R Renuka - Advocate for Appellant) AND 1. B Krishnappa Setty S/o Late Manku Setty Aged about 66 years 2. B Varija Setty W/o B. Krishnappa Setty Aged about 64 years.
Both are R/o Vijaya Lakshmi Joppa Bappal, I Cross Mangalore – 575002 D.K. District.
3. Kishore Kumar S/o Vaman Naik Aged about 27 years R/o Attavara Chandappa Compound Near MESCOM Office Attavara, Mangalore – 1.
4. Devadas S/o Koragappa Poojary Aged about 40 years R/o Door No. 13-A, IV Cross NITK Compus, Suratkal Mangalore – 574 158, D.K.
... Respondents (By Sri. Sri C R Patil - Advocate for R-1 and R-2; Vide court order dated 22.02.2012, notice to R-4 held sufficient; R-3 served) This MFA is filed u/s 173(1) of MV Act against the judgment and award dated 09.12.2009 passed in MVC No. 658/2008 on the file of the Presiding Officer, Fast Track Court, Mangalore, Dakshina Kannada and Member, MACT, Mangalore, Dakshina Kannada, awarding a compensation of Rs. 2,58,000/- with interest at 6% p.a. from the date of petition till realisation.
This MFA coming on for hearing this day, the court delivered the following:
JUDGMENT This appeal is directed against the judgment and award dated 09.12.2009 rendered by the MACT, Mangalore, D.K., in MVC No.658/2008 awarding compensation of Rs.2,58,000/- with interest @ 6% p.a. from the date of petition till realisation.
2. The factual matrix of the appeal is that on 24.4.2007 at about 5.30 p.m., one Avinash Shetty, son of the claimants was proceeding in a motor cycle bearing Regn.No.KA-19 V-7113 as a pillion rider and it was ridden by his friend Kishore Kumar who was respondent no.1 in the claim petition. When they reached a place called Mishamajalu in Jalsur Village, at that time, the rider of the motor cycle drove the same in rash and negligent manner, as a result, he lost control over the vehicle and it was capsized. Due to the said impact, the said Avinash Shetty sustained injuries. Immediately, he was taken to Rajeshwari Hospital at Mangalore and took treatment as inpatient and later on died in the hospital same day due to the injuries sustained by him in the accident and the dead body was taken to Government Wenlock Hospital for postmortem. As on the date of accident, the deceased was aged 22 years and was working as Recovery Agent and earning about Rs.8,000/- p.m. Due to the untimely death of the deceased, the petitioners suffered loss in all respects. They have spent huge amount towards hospitalization, transportation, funeral and obsequies ceremony. Since the accident occurred due to the negligent riding of the motor cycle by its rider, the claimants filed the claim petition before the Tribunal seeking compensation.
3. After service of notice, first respondent remained absent throughout the proceedings and he was placed exparte. Second and third respondents entered appearance through their counsel and filed separate written statement denying the entire petition averments and sought for dismissal of the claim petition.
4. Based upon the pleadings of the parties, the Tribunal framed the issues for its consideration. In order to prove their case, first petitioner was examined as PW.1 and documents as per Exs.P1 to P30 were got marked. On behalf of respondents, RWs.1 to RW.3 were examined and Exs.R1 and R2 were got marked. After hearing the arguments of learned counsel for the parties and on evaluation of oral and documentary evidence available on record, the Tribunal passed the impugned judgment, awarding compensation of Rs.2,58,000/- with interest @ 6% p.a. from the date of petition till the date of realisation. It is this judgment which is under challenge in this appeal by the insurance company.
5. Learned counsel for the appellant/insurance company contends that deceased Arvind Shetty was not the pillion rider of the motorcycle bearing regn.No.KA-19 V-7113 but the said motorcycle was driven by himself and not by Kishore Kumar and that the claimants have filed the false claim petition stating that deceased Arvind Shetty was the pillion rider. The said defense taken by the insurance company has not been considered by the Tribunal. Further, it is contended that claimants in order to prove their claim have relied on the FIR. In the FIR it is stated that in the accident the rider of the Motorcycle is Arvind Shetty – the deceased. But the Tribunal committed an error in holding that the names of the rider and the pillion rider have been reversed in the FIR. Further, the FIR was recorded on 24.4.2007 and the complainant is one Vasappa and it clearly states the name of the accused as the rider of the motorcycle Avinash Shetty and in the complaint it is stated that the rider Arvind Shetty has driven the vehicle in a rash and negligent manner. Hence, the finding of the Tribunal that Kishore Kumar was riding the motor cycle is unsustainable as against the documentary evidence placed on record.
6. It is further contended that the complainant has not been examined to clarify the discrepancies. The hospital records of Kishore Kumar shows history of road traffic accident and it does not indicate that Kishore Kumar was riding the vehicle and his evidence that he was riding the vehicle is contrary to the statement in the FIR. Though the FIR has been recorded by the police and proceeded with the case for investigation, but the charge sheet was laid against the rider of the motor cycle namely Kishore Kumar and the same has not been produced by the petitioners in order to establish their case. The claim petition is filed based on the concocted documents with an intention of obtaining false and unjustifiable award. Further, the Tribunal has not assigned any valid or cogent reasons to discard the evidence of the respondents in particular the evidence of investigator. Further, the multiplier of 10 adopted by the Tribunal is erroneous and the same should have been 7. On all these grounds, he seeks for setting aside the judgment and award passed by the Tribunal by allowing the present appeal.
7. Per contra, learned counsel for respondent – claimants while taking me through the evidence of PW.1 contends that the Tribunal has rightly held that in the accident the rider of the motor cycle has sustained hand injury and the pillion rider sustained injuries to his head. The Tribunal on appreciation of both oral and documentary evidence available on record has rightly held that the accident occurred only due to the rash and negligent riding of the motor cycle bearing No.KA-19/V 7113 and the son of petitioners by name Aravind Setty died on account of the accidental injuries sustained in the road traffic accident.
8. He further contends that the Tribunal while awarding compensation under the head loss of dependency, has wrongly adopted multiplier of ‘10’ instead of ‘18’ by taking the age of the parents as the deceased was a Bachelor. In support of this contention, he has relied on a judgment of the Apex Court in P.S.Somanathan and others vs. District Insurance Officers and another reported in 2011 SAR (Civil) 286 and Ravinder Kumar Sharma vs. State of Assam reported in AIR 1999 SC 3571. On all these grounds he seeks for enhancement of compensation by modifying the judgment and award passed by the Tribunal.
9. Having regard to these strenuous contentions as taken by learned counsel for the appellant and so also, learned counsel for respondents, it is relevant to state that PW.1 – Krishnappa Shetty being the father of deceased has stated in his evidence about the accident that occurred on 24.4.2007 and his son Aravind Shetty succumbed to the accidental injuries. In support of their contention, the claimants relied upon documents such as Ex.P1 – FIR, Ex.P2 – spot mahazar, Ex.P3 – rough sketch, Ex.P4 – IMV report, Ex.P5 – post-mortem report, Ex.P6 – claim notice, Ex.P7 – I.D.Card, Ex.P8- driving license, Ex.P25– discharge summary. On perusal of Ex.P1 – FIR, it could be seen that the police have registered case against the rider of the motor cycle bearing No.KA-19- V-7113 for the offence punishable under Sections 279 and 338 of IPC. In FIR it is mentioned that in the accident the rider of the motor cycle has sustained hand injury and the pillion rider sustained injuries to his head. Ex.P5 – P.M. report discloses that deceased Aravind Shetty sustained head injuries and died due to the accidental injuries sustained in the road traffic accident. It is the contention of the appellant – insurance company that a false case has been filed by the claimants stating that the vehicle was driven by Kishore Kumar and the deceased Arvind Shetty was a pillion rider. It is further contended that in the FIR the complainant is one Vasappa S/o Subbaiah Gowda and it clearly states the name of the accused as the rider of the motorcycle Avinash Shetty and in the complaint it is stated that the rider Arvind Shetty has driven the vehicle in a rash and negligent manner. But it is relevant to note here that in Ex.P2 – spot mahazar and Ex.P3-rough sketch are drawn on the scene of occurrence by the investigating officer. Ex.P6 – claim notice contains the particulars relating to the vehicle involved in the accident, its ownership, insurer and the name of the injured persons and it clearly discloses that the concerned investigating officer after investigation has filed a charge sheet against the first respondent – Kishore Kumar who was riding the motor cycle as on the date of accident. Ex.P25 – discharge summary clearly discloses that deceased Aravind Shetty sustained injuries to his head and later on he died on the same day in the Hospital. The contention of the petitioners is clearly supported by these documentary evidence available on record. Even the insurance company has examined the said Kishore Kumar as RW.2 and in his evidence the said Kishore Kumar has stated that on the date of accident, he was riding the motor cycle bearing No.KA-19/V 7113 and the police after thorough investigation have filed the charge sheet against him. The Tribunal, on appreciation of these oral and documentary evidence has rightly held that first respondent – Kishore Kumar was riding the offending motor cycle as on the date of accident and the deceased Aravind Shetty was proceeding in that motor cycle as a pillion rider and there is no material on record to disbelieve the evidence of RW.2 and PW.1. The accident occurred solely due to the actionable negligence on the part of the rider of the motor cycle bearing No.KA- 19/V-7113 due to which the son of claimants namely Aravind Shetty succumbed to the injuries. This finding of the Tribunal is based on the appreciation of entire oral and documentary evidence on record and I find no justifiable reason to interfere with the same, as there is no substance in the contentions taken by learned counsel for the appellant – insurance company.
10. Learned counsel for the respondent/claimants in this appeal though he has not filed any cross-objections, seeks for enhancement of compensation contending that the Tribunal has erred in adopting multiplier of ‘10’ instead of ‘18’ by taking the age of the parents, as the deceased was a Bachelor. In support of his claim he has relied on a judgment of the Hon’ble Supreme Court reported in Ravinder Kumar Sharma vs. State of Assam (AIR 1999 SC 3571) wherein it is held that respondent can question adverse finding without filing cross objection and filing of cross- objection is optional and not mandatory.
11. In this background, it is relevant to refer Order VII Rule 7 of CPC which reads as under:
“Relief to be specifically stated – Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.”
12. The instant appeal is filed by the appellant/insurance company challenging the impugned judgment and award rendered by the Tribunal in MVC No.658/2008 contending that the deceased who was the rider of the offending motor cycle is shown as pillion rider in the charge sheet so as to make false claim. But the Tribunal by taking into the totality of the facts and circumstances of the case and so also the oral and documentary evidence on record has addressed this issue by giving just and appropriate reasons and findings. The same reveals in the judgment rendered by the Tribunal. But keeping in view the scope and object of Order VII Rule 7 of CPC as stated supra relating to moulding of relief, even though certain reliefs are not asked for they can be granted by the Court under the above provision when the Court considers it just and proper to do so. Even Order 41 Rule 33 of CPC contemplates the power of court of appeal. The appellate court may exercise its wide power in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. The High Court in deciding an appeal under the Motor Vehicles Act can follow the principles laid down in Order 41 Rule 33 of CPC as they are in conformity with the rules of natural justice. Further, the provisions of CPC are also applicable in the proceedings under the Motor Vehicles Act. The object is to enable the Court to do complete justice between the parties. The method adopted by the Tribunal for computation of compensation in fatal accident action cannot be said to be in accordance with the settled principles governing the matter, the method adopted by the Tribunal for computation of compensation both for arriving at proper figure of multiplicand as well as the multiplier. Since the Tribunal has not applied proper multiplier, the same needs to be considered in this appeal.
13. PW.1 in his evidence has stated that deceased was working as Recovery Agent and earning about Rs.8,000/- p.m. But there being no valid proof of income, the Tribunal rightly assessed the income of the deceased at Rs.4,000/- p.m. and deducted 50% towards his personal expenses, but erred in adopting multiplier of 10 by taking the age of the second petitioner. Since, the age of deceased Arvind Shetty was aged 22 years, the multiplier of ‘18’ has to be taken and accordingly, the compensation towards loss of dependency is re- worked out as under:
Rs.4,000 x 12 x 18 x 50% = Rs.4,32,000/-
Thus, the claimants are entitled for Rs.4,32,000/- as against Rs.2,40,000/- awarded by the Tribunal. The compensation enhanced under this head would be Rs.1,92,000/-. However, the compensation awarded under other heads appears to be just and reasonable and the same does not call for interference of this Court.
For the reasons and findings stated above, I proceed to pass the following:
ORDER Appeal is disposed of. The respondents/claimants are entitled for enhanced compensation of Rs.1,92,000/- with interest @ 6% p.a. from the date petition till realisation. The judgment and award passed by the Tribunal in MVC No.658/2008 is modified accordingly.
The appellant-insurer shall deposit the enhanced compensation with interest before the Tribunal within six weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be released to the claimants, on proper identification. However, the impugned judgment and award, in so far as it relates to the apportionment and deposit is concerned, shall remain unaltered.
The amount in deposit, if any, shall be transmitted to the concerned Tribunal.
Office to draw the decree accordingly.
Sd/- JUDGE DKB