IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF AUGUST, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR Miscellaneous First Appeal No.10422 of 2011 (MV-D) C/W.
Miscellaneous First Appeal No.174 of 2011 (MV-D) IN M.F.A. No.10422 of 2011 : BETWEEN :
1. SMT. HOMBAMMA W/O. SHANKARAIAH C., AGED ABOUT 32 YEARS, 2. MAYAMMA W/O. CHIKKANANJAIAH, AGED ABOUT 72 YEARS.
3. DIWAKARA S/O. SHANKARAIAH C., AGED ABOUT 11 YEARS.
4. NIVEDITHA D/O. SHANKARAIAH C., AGED ABOUT 9 YEARS.
APPELLANT NOS.3 AND 4 ARE MINORS, REPRESENTED BY APPELLANT NO.1, MOTHER.
ALL ARE RESIDING AT UNGRA VILLAGE, YADAVANNI POST AMRUTHUR HOBLI, KUNIGAL TALUK TUMKUR DISTRICT.
(BY SRI MUSHTAQ AHMED, ADVOCATE) ... APPELLANTS AND :
1. NAYAZ PASHA S/O. M. D. HANEEF AGED ABOUT 43 YEARS R/AT ASMATH MANZIL 2ND CROSS, GLR COLONY TUMKUR DISTRICT.
2. NATIONAL INSURANCE COMPANY LIMITED, 1ST FLOOR, OPP. R.T.C. BUS STAND, PENUKONDA ROAD, HINDUPURA, ANANTHPUR DISTRICT, ANDHRA PRADESH-515207, REPRESENTED BY ITS MANAGER. ... RESPONDENTS (BY SRI B. A. RAMAKRISHNA, ADVOCATE FOR RESPONDENT NO.2; RESPONDENT NO. 1 – NOTICE DISPENSED WITH VIDE ORDER DATED 22.11.2013) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED:31.7.2010 PASSED IN M.V.C. NO.501/2009 ON THE FILE OF SENIOR CIVIL JUDGE, ADDITIONAL M.A.C.T., KUNIGAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A. NO.174 OF 2011 :
BETWEEN :
NATIONAL INSURANCE COMPANY LIMITED, 1ST FLOOR, OPP. R.T.C. BUS STAND, PENUKONDA ROAD, HINDUPURA, ANANTHPUR DISTRICT, ANDHRA PRADESH-515207, REPRESENTED BY ITS REGIONAL OFFICE, SHUBHARAM COMPLEX, 2ND FLOOR, NO.144, M. G. ROAD, BENGALURU BY ITS ADMINISTRATIVE OFFICER. ... APPELLANT (BY SRI B. A. RAMAKRISHNA, ADVOCATE) AND :
1. SMT. HOMBAMMA W/O. SHANKARAIAH C., AGED ABOUT 31 YEARS, 2. SMT. MAYAMMA W/O. CHIKKANANJAIAH, AGED ABOUT 71 YEARS.
3. DIWAKARA S/O. SHANKARAIAH C., AGED ABOUT 10 YEARS.
4. NIVEDITHA D/O. SHANKARAIAH C., AGED ABOUT 8 YEARS.
RESPONDENT NOS.3 AND 4 ARE MINORS, REPRESENTED BY APPELLANT NO.1, MOTHER AND NATURAL GUARDIAN, SMT. HOMBAMMA.
ALL ARE RESIDING AT UNGRA VILLAGE, YADAVANNI POST, AMRUTHUR HOBLI, KUNIGAL TALUK TUMKUR DISTRICT-572130.
5. SRI NAYAZ BASHA S/O. M. D. HANEEF MAJOR BY AGE, R/O. ASMATH MANZIL, 2ND CROSS, GLR COLONY TUMKUR-572101.
... RESPONDENTS (BY SRI MUSHTAQ AHMED, ADVOCATE FOR RESPONDENT NOS.1 & 2;
RESPONDENT NOS.3 AND 4 – MINORS REPRESENTED BY RESPONDENT NO.1;
RESPONDENT NO.5 – NOTICE SERVED) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:31.07.2010 PASSED IN M.V.C. NO.501/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL M.A.C.T., KUNIGAL, AWARDING COMPENSATION OF RS.3,90,000/- WITH INTEREST @ 6% PER ANNUM FROM THE DATE OF PETITION TILL DEPOSIT.
THESE M.F.AS. COMING ON FOR ADMISSION THIS DAY, ASHOK G. NIJAGANNAVAR J., DELIVERED THE FOLLOWING:
JUDGMENT M.F.A. No.174 of 2011 is preferred by the insurance company challenging the liability on the ground of false implication of the vehicle in the alleged accident.
2. M.F.A. No.10422 of 2011 is filed by the claimants for enhancement of compensation and for modification of the judgment and award dated 31.07.2010 passed in M.V.C. No.501 of 2009 by the Senior Civil Judge and Additional M.A.C.T., Kunigal (hereinafter referred to as ‘M.A.C.T.’, for the sake of brevity).
3. The brief facts leading to these appeals are that, on 25.01.2009 at about 2.00 p.m. the deceased C.Shankraiah was traveling as a pillion rider on a TVS CT Motorbike bearing Reg. No.KA-02-EY-6684 towards Jalamangala. At that time lorry bearing Reg. No.KA- 01/AC-9177 being driven by its driver in high speed, rash and negligent manner dashed against the motor bike on which the deceased was travelling as a pillion rider. As a result of the said accident, the deceased sustained grievous injuries and while taking to the hospital he succumbed to the injuries. The accident was due to the rash and negligent driving of driver of the lorry. Due to untimely death, his family members have become orphans and have lost financial support.
filed.
4. With these assertions, the claim petition was 5. After service of notice, respondent No.1 did not opt to appear before the Court and he was placed ex parte. The respondent No.2 insurance company has filed written statement, denying the averments made in the claim petition and also the liability.
6. On the basis of the rival pleadings, learned M.A.C.T. framed the following issues :
1. Whether the petitioners prove that late Shankaraiah succumbed to the accident on 25.01.2009 as a result of actionable negligence on the part of the driver of lorry bearing Reg. No.KA-01/AC-9177?
2. Whether the 2nd respondent proves that the accident has taken place due to negligence on the part of the rider of TVS Motorbike bearing Reg. No.KA- 02/EY-6684?
3. Whether the 2nd respondent proves that the driver of lorry bearing Reg. No.KA- 01/AC-9177 was not possessing a valid driving licence at the time of the accident?
4. Whether the 2nd respondent proves that the petition is bad for non-joinder of necessary parties?
5. Whether the petitioners are entitled for any compensation and if so, at what quantum and from whom?
6. What order or award?
7. The wife of deceased was examined as P.W.1 and another eye-witness was examined as P.W.2. The documents were marked as Exs.P-1 to P-11. The respondent insurance company has not examined any witness, but the insurance policy was got marked as Ex.R- 1.
8. On appreciating the oral and documentary evidence placed on record, the learned M.A.C.T. came to the conclusion that the lorry bearing Reg. No.KA-01/AC- 9177 was involved in the accident and there are no doubtful circumstances to hold that the said vehicle was falsely implicated in the accident. The compensation awarded is as follows :
learned counsel for the respondents.
10. The main contention of learned counsel for the insurance company is that the appeal is regarding false implication of the vehicle in the accident. According to the learned counsel for the insurance company, the following doubtful circumstances are pointed out to substantiate his contention regarding false implication:
i.The F.I.R. was registered against unknown vehicle; without even mentioning the type of vehicle involved in the accident.
ii.Non-examination of the complainant, who was rider of the vehicle as on the date of the accident.
iii.The alterations or correction of one word in Ex.P-8 inquest mahazar as ‘lorry’ in place of the word ‘unknown vehicle’.
11. In view of the submission made by learned counsel for the insurance company, we have given our anxious consideration to the evidence placed on record. It is pertinent to note that as per the chargesheet records, Narayanaswamy @ Narayanappa is the complainant, who is none other than the rider of motor bike and the deceased was pillion rider. The accident has taken place on 25.01.2009 at 2.00 p.m. and on the same day in the evening at about 6.00 p.m. the complaint is filed before Huliyurdurga Police station.
12. There is a specific mention in the complaint that immediately after the accident, two persons who were at the spot took the injured complainant as well as the pillion rider deceased to the hospital for medical treatment which makes it clear that those two persons are the eye- witnesses in addition to the complainant, who was rider of the vehicle. According to the charge sheet records, these two witnesses, namely, who were present at the accident spot are the eye-witnesses and one of them is examined as P.W.2. Hence, these two witnesses cannot be considered as the chance witnesses or planted eye- witnesses to the alleged accident. Thus, there are no doubtful circumstances to hold that P.W.2 is not eye- witness. Even non-examination of the complainant, who was rider of the motor bike cannot be construed as a doubtful circumstance because if the said complainant is not available for examination no fault can be found with claimants. When there is evidence by the eye-witnesses to accident who was present at the spot, mere non- examination cannot be fatal or ground to disbelieve the case of the claimants.
13. Another doubtful circumstance pointed out was regarding spot panchanama. The contents of Ex.P-4, spot panchanama discloses that the width of the road was 18ft. and there was about 5ft. main road on either side of the tar road. The two wheeler / motor cycle had fallen on the extreme left side of the road and there tyre marks of the motor cycle being dragged and brakes applied. Thus, it cannot be held that the two wheeler, namely, the motor bike went in the middle of the road and contributed for the accident.
14. The third contention is regarding alteration in Ex.P-8 which is inquest mahazar. Nodoubt there is some over-writing and the word ‘lorry’ is inserted at a place where the word is written as ‘unknown vehicle’. The inquest mahazar was also written immediately after the occurrence of the death. During that time instead of writing the word ‘lorry’, the word ‘unknown vehicle’ might have been written. That itself cannot be a glaring circumstance to disbelieve the case of the claimants or to hold that the vehicle has been falsely implicated in this case.
15. On going through the findings given by the M.A.C.T., it is quite evident that there is a detail discussion about the evidence of P.Ws.1 and 2 and the relevant documents, namely, the contents of complaint, inquest mahazar, spot mahazar and other chargesheet records. On discussing about the evidence given by P.W.2, eye- witness, the learned M.A.C.T. has rightly held that the accident was caused by the lorry bearing Reg. No.KA- 01/AC-9177 and the insurance company has failed to prove the contention of false implication.
16. Another important aspect to be considered is that the ground of false implication is taken at the appellate stage, but there is no specific averment in the written statement filed by the insurance company before the M.A.C.T. that the said vehicle was falsely implicated in the accident. It is only stated that false criminal case is filed against the lorry driver. Even though such an objection is taken, no cogent evidence is placed to show that the lorry bearing Reg. No.KA-01/AC-9177 was falsely implicated at the instance of the police and in collusion with the insurer of the vehicle. Thus, the contention of the counsel for the insurance company does not hold good.
17. As far as computation of compensation is concerned, the learned M.A.C.T. has awarded compensation of Rs.3,90,000/- under several heads.
18. It is pertinent to note that the deceased was aged about 36 years old and it is stated that he was engaged in the business of coconut, silk rearing and milk vending. However, even though some of the certificates are produced, which are marked at Exs.P-9 to 11, no cogent evidence is placed on record to prove the said certificates by examining the authors of said documents. Thus, the M.A.C.T. has rightly come to the conclusion that the income is based as per the Guidelines provided.
M.A.C.T. has taken the monthly income at Rs.3,000/-.
Considering documentary evidence placed on record at Exs.P-9 to P-11 we are inclined to take the income of deceased at Rs.5,000/- per month. As per the Guidelines of Hon’ble Supreme Court in National Insurance Company Limited v. Pranay Sethi and Others, reported in (2017)16 SCC 680, 40% of income has to be added towards future prospects and since there are four dependants for the said deceased, 1/4th has to be deducted for his personal expenses. After necessary calculation, the net income of deceased arrives at Rs.5,250/-. Hence, the loss of dependency comes to Rs.9,45,000/- (Rs.5,250/- x 12 x 15).
19. As far as awarding of compensation under other heads is concerned, in view of the principles laid down in Magma General Insurance Company Limited v. Nanu Ram and Others, reported in 2018 ACJ 2782, a sum of Rs.40,000/- is awarded to the wife towards loss of spousal consortium; a sum of Rs.30,000/- is awarded to the mother towards loss of filial consortium; a sum of Rs.60,000/- is awarded to minor claimants towards loss of parental consortium i.e., Rs.30,000/- each; a sum of Rs.15,000/- is awarded towards loss of estate and a sum of Rs.15,000/- is awarded towards funeral expenses. Thus, a total compensation of Rs.11,05,000/- would meet the ends of justice.
20. For the foregoing reasons, the appeal filed by insurance company in M.F.A. No.174 of 2011 is dismissed. The appeal filed by claimants in M.F.A. No.10422 of 2011 is partly allowed.
21. The claimants are entitled for enhanced compensation of Rs.7,15,000/-, in addition to the compensation already awarded by the learned M.A.C.T.
along with interest at the rate of 6% per annum from the date of claim petition till realization.
22. Accordingly, the judgment and award dated 31.07.2010 passed by Senior Civil Judge and Additional M.A.C.T., Kunigal in M.V.C. No.501 of 2009 stands modified. The amount in deposit shall be transmitted to the Tribunal forthwith. The compensation awarded shall be disbursed to the claimants as per the order of the learned M.A.C.T. after due identification.
23. The enhanced compensation shall be deposited by the insurance company within a period of four weeks from the date of receipt of certified copy of this judgment.
Parties to bear their own costs.
Sd/- JUDGE Sd/- JUDGE hnm