IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY 2019 BEFORE THE HON’BLE Mr.JUSTICE BELLUNKE A.S.
Miscellaneous First Appeal No.3660 of 2013 (MV) BETWEEN:
THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LIMITED 1ST FLOOR, V.V. ROAD MANDYA – 570 401 BY NATIONAL INSURANCE CO. LTD. REGIONAL OFFICE, NO.144 SUBHARAM COMPLEX, M.G. ROAD BENGALURU – 560 001 BY ITS MANAGER. ...APPELLANT (By Sri O.MAHESH, ADVOCATE) AND:
1. SMT.MAQBUL BEE AGE 41 YEARS W/O LATE RASOOL KHAN 2. FAIROZ KHAN AGE 27 YRS S/O LATE RASOOL KHAN 3. IMRAH KHAN AGE 24 YRS S/O LATE RASOOL KHAN 4. FOUZIA KHANUM AGE 24 YRS D/O LATE RASOOL KHAN ALL ARE RESIDENTS OF WARD NO.26, DOOR NO.2021, SABDARIA MOHALLA GUTHALU ROAD, MANDYA CITY – 570 403.
5. SABEER PASHA MAJOR S/O VAZEER PASHA 9TH CROSS, HALAHALLY MUSLIN BLOCK, MANDYA CITY – 571 401. ...RESPONDENTS (By Sri K.L.SREENIVAS, ADVOCATE FOR R1 TO R4;
R5 – served and unpresented) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.12.2012 PASSED IN MVC NO.128/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, CJM, MACT, MANDYA, AWARDING A COMPENSATION OF RS.6,65,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITON TILL REALIZATION.
This appeal coming on for hearing this day, the Court delivered the following:
JUDGMENT This appeal is preferred by the Insurer/Respondent No.2 against the judgment and award dated 28.12.2012 passed by the Principal Senior Civil Judge and M.A.C.T. at Mandya.
2. The parties are referred to by their ranks as they were referred before the Court below.
3. Brief facts leading to this appeal are as under:
The deceased Rasool Khan, the husband of the first petitioner and father of petitioner Nos.2 to 4 was working as a cleaner and loader under the first respondent in lorry bearing Reg.No.MYH-7622. On 28.12.2009, the deceased loaded paddy husk to the lorry at Kikkeri Village. He was going towards M.N.Oil Factory, Srirangapatna. At about 6.30 p.m. in the curve on M.N.Oil Factory on Mysuru- Bengaluru road, the driver of the said lorry asked the deceased to get down and to watch whether any other vehicles are coming behind the lorry. When the deceased was getting gown from the lorry, then the driver of the lorry moved the vehicle forward in a rash and negligent manner. Therefore, the deceased fell down and came under the front wheel of the lorry. Consequently, the front wheel ran over on the left thigh of the deceased. Immediately, he was taken to Government Hospital, Srirangapatna and he was given first aid treatment therein. Thereafter, the deceased was admitted to K.R.Hospital, Mysuru but inpsite of the treatment, he died on 29.12.2009 at about 8.30 a.m.
4. The post-mortem examination was conducted in K.R.Hospital, Mysuru and thereafter, the dead body was handed over to the petitioners. They have spent Rs.10,000/- towards medical expenses and Rs.10,000/- towards transportation of dead body. Due to the untimely death of the deceased, the petitioners have suffered unbearable mental shock and agony. The deceased was earning Rs.5,000/- per month and a bata of Rs.50/- was also paid. The respondent Nos.1 and 2 are jointly and severally liable to pay compensation to the petitioners and hence, a claim petition is filed.
5. The said petition came to be resisted by Respondent No.2 alone. Though Respondent No.1 received summons, failed to appear before the Tribunal and hence, placed exparte. Respondent No.2 contended that the driver of the lorry was not possessing valid and effective driving license at the time of the accident. Further, the second respondent has not received any statutory notice with regard to the accident from the first respondent. Further, the compensation claimed is highly exorbitant, baseless and imaginary and sought to dismiss the claim petition.
6. On the basis of the pleadings, the Tribunal framed the following issues:
i) Whether the petitioners prove that Rasool Khan who was the husband of the first petitioner, father of petitioners No.2 to 4 was succumbed to the injuries and died in the impugned road traffic accident that occurred don 28.12.2009, at about 6.30 p.m. on Mysuru- Bengaluru Road, in the curve leading to M.K.Factory, due to rash and negligent driving of lorry bearing Reg.No.MYH-7622 driven by its driver?
ii) If so, is the petitioners entitled for compensation and what rate and from whom?
7. The Tribunal, after holding trial and on the evidence on record answered the issues as follows:
Issue No.1 : Affirmative Issue No.2 : The petitioners are entitled for total compensation of Rs.6,65,000/- with interest @ 6% p.a. from the date of petition till date of realization of the same from the second respondent Issue No.3 : As per final order.
The M.A.C.T. determined the compensation payable at Rs.6,65,000/-.
8. The said judgment and award has been questioned by the appellant/insurer on the following grounds:
The Tribunal erred in sadling liability when it was specifically pleaded that the deceased was not under the employment of the insured. Even though after service of notice, the insured has not come forwards to contest the petition. The evidence of PWs-1 and 2 contradicts with each other. None of the witnesses disclose the name of the driver deliberately. The vehicle was a transport vehicle.
The deceased was said to be cleaner/labor in the lorry. As such, owner-insured was required to file a petition under Section 18 of the Minimum Wages Act and Rule 29 framed thereunder have to maintain employee’s register and wage register, etc., The Tribunal ought to have considered that there was no compliance of mandatory provisions of Section 134(C) of M.V. Act either by the insured or of Section 158(6) of M.V. Act by the owner. The investigating officer has also not followed the procedure. The insurer was kept in darkness in respect of the alleged accident. The Tribunal ought to have considered that the name of the driver was not disclosed by any of alleged co-worker of the deceased. It was later substituted by one who had driving license, to saddle liability on appellant-insurer. The manner of the accident shown in the sketch and the manner of the accident deposed by the witnesses goes to show that it is a cooked up case. It was impossible that such an accident had occurred. Therefore, the insurer has sought to set aside the judgment and award passed by the Tribunal.
9. It is vehemently argued by the learned counsel for the appellant that the accident is said to have happened while the deceased was getting down from the lorry at the instance of the driver and the lorry is said to have moved forward. Therefore, the deceased could not have come in the left front wheel of the lorry. Therefore, this impossibility shows that the accident has not happened in the manner made out in the petition. The petitioners should have approached under the Workmen’s Compensation Act to seek compensation. The name of the driver has not been deliberated disclosed. Subsequently, a person having driving license has been implicated in the case. The owner has colluded with the petitioner. The quantum of compensation awarded is excessive. Therefore, the learned counsel has sought to allow the appeal and set aside the judgment and award.
10. Learned counsel for the respondents submitted that the deceased sustained injuries on account of the accident. There is no rebuttal evidence. The owner of the lorry has not been examined. Even without filing objections, the respondent can challenge the finding as required under Section 41 Rule 3 of M.V. Act with regard to the quantum of compensation awarded under the heads of consortium and other conventional heads. The insurer has not at all taken the defence of Workmen’s Compensation Act. It is the choice of the petitioner to file petition under any one of the provisions. Since the appellants have not come forward with clean hands, he sought for dismissal of the appeal.
12. Based on the facts, the following points arise for consideration in this appeal:
i) Whether the appellant/insurance company proves that the finding of the Tribunal on the point of rash and negligent act on the driver of the lorry is not sustainable in law on facts and evidence on record?
ii) Whether the appellant/insurance company proves that the quantum of compensation awarded by the Tribunal is excessive?
iii) What order?
13. Though the manner of accident stated by the petitioner itself goes to show that the deceased would have come in the right front wheel of the lorry and the accident could not have taken place as alleged by the petitioner but the cause of the death of the deceased has not been specifically disputed. It is not shown that the deceased died on account of injuries sustained in some other manner either by falling from a tree or elsewhere. The postmortem report produced at Ex.P6 goes to show that the deceased had sustained left lower limb crushed with multiple avulsed lacerations extending from mid thigh to ankle with multiple fractures; lacerated would measuring 8cms X 1cm bone deep at the sole of left foot; grazed abrasion measuring 3 cms X 2 cms present at left elbow; right fibula dislocated at knee; both clavicles dislocated; all the injuries are ante- mortem in nature and the deceased is said to have died on account of the above said injuries. The nature of injuries clearly goes to show that the deceased had suffered crush injury, which are normally caused in a motor vehicle accident. The sketch of the scene of the offence would goes to show that the blood has fallen in front of the lorry that his dragged in a middle of the road. It has come in the evidence that the driver is alleged to have told the deceased that wherein vehicle is coming from behind that means the lorry driver wanted to turn his left side and in that process, he got down, it appears that the vehicle is said to have moved thereby causing the accident. The finding of the Tribunal whether the deceased died because of the injuries sustained in a motor vehicle accident cannot be set aside, in addition to that, the manner of accident is proved by the evidence of PW-1.
14. The evidence on record is also corroborated by the witnesses who were present at the time of the accident. To rebut the evidence on record, the Insurance Company could have examined any witness who had seen the accident. Though the driving license is produced but the same is not marked. It is the specific case of the appellant that in order to see that the licensed person is involved, the name of the lorry driver has not been disclosed. PWs-2 and 3 have categorically stated that the deceased was working as cleaner of the lorry. The register in the R.T.O. would also go to show that driver of the vehicle has a valid driving license as on the date of the accident. In so far as the liability is concerned, the petitioners have approached under Section 166 of M.V. Act. They have not exercised their right under Workmen’s Compensation Act. In that case, the compensation is to be calculated as per the provisions of the M.V. Act only. Moreover, the said ground was not taken at the time of filing of the petition. Though the learned counsel submitted that some amount is awarded towards consortium, at the same time, it has to be borne in mind that the appellants have not challenged the award. The difference would be not much. The major sons of the deceased are not the dependants of the deceased. In that view of the matter, there is no necessity to enhance the compensation on the conventional heads. There are no grounds to interfere with the judgment and award passed by the Tribunal. No documents can be expected for the wages paid to a cleaner. In addition to that, the owner has not denied the case of the petitioner. The Insurance Company has not examined any witness nor has tried to summon the owner or any witness who could have thrown some light as the disputed facts of the case in hand. Therefore, I do not find any grounds to interfere with the judgment and award passed by the Tribunal. Hence, I pass the following:
ORDER i) The appeal is dismissed with costs.
ii) The judgment and award dated 28.12.2012 passed by the Court of the Principal Civil Judge and Motor Accident Claims Tribunal, Mandya in M.V.C.No.128 of 2010 is confirmed.
iii) The amount in deposit, if any, shall be transmitted to the Tribunal forthwith.
(Sd/-) JUDGE DH