IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6th DAY OF DECEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI MISCELLANEOUS FIRST APPEAL No.8553 of 2019 (MV) BETWEEN :
1 . THE RELIANCE GENERAL INSURANCE COMPANY LIMITED, MOTOR CLAIMS HUB, NO.25, 5TH FLOOR CENTENARY BUILDING EAST WING, NEAR CITI BANK M.G.ROAD, BENGALURU – 560 001. NOW REPRESENTED BY MANAGER LEGAL ... APPELLANT (BY SRI.ASHOK.N.PATIL, ADVOCATE) AND:
1 . JOHN PAUL S/O.C.H.PAUL AGED ABOUT 60 YEARS 2 . RAMOL JAN W/O.JAN @ JOHN PAUL AGED ABOUT 56 YEARS BOTH ARE RESIDING AT 1ST CROSS, RAJAPPA LAYOUT JANNAPURA, BHADRAVATHI SHIMOGA DISTRICT – 577 301.
AND ALSO RESIDING AT NO.20 NEWTOWN BHADRAVATHI SHIMOGA – 577 301.
3 . MADHAN KUMAR.R S/O.RAVI, NO.115 ANAND NAGAR 4TH MAIN ROAD CHINNAPPANAHALLI MARATHHALLI BENGALURU – 560 037. ...RESPONDENTS THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 01.08.2019 PASSED IN MVC NO.7847/2018 ON THE FILE OF THE XV ADDITIONAL SMALL CAUSES JUDGE AND XXIII ACMM, MEMBER, MACT, BENGALURU (SCCH-19), AWARDING COMPENSATION OF RS.54,15,350/- WITH INTEREST AT 9 PERCENT P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, JYOTI MULIMANI J., DELIVERED THE FOLLOWING:
JUDGMENT We have heard Sri Ashok N.Patil, learned counsel for the appellant/insurance company at length and perused the material on record as well as the certified copies of the documents produced in MVC.No.7847/2018.
2. The insurance company has preferred this appeal being aggrieved by the judgment and award dated 01/08/2019, passed by the Motor Accident Claims Tribunal & XV Addl. Judge SCCH-19, Mayo Hall Unit, Bengaluru (hereinafter referred to as “the Tribunal”), on the question of negligence as well as quantum of compensation awarded by the Tribunal.
3. For the sake of convenience, the parties shall be referred to in terms of the status and ranking before the Tribunal.
4. The claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’) claiming compensation of Rs.90,00,000/- on account of the death of Mr. Mclean Jan on 7.12.2018.
5. It is the case of the claimants that on 07.12.2018 when the deceased Mr. Mclean Jan was riding a motor cycle bearing Registration No KA-03/JE/5305, and was proceeding on service road of Mahadevapura Ring Road cautiously and when he reached near Nagarjuna Apartments, Bengaluru city, a water Tanker bearing Registration No. KA-53/C/1627 driven by its driver in a rash and negligent manner, hit the motor cycle of the deceased. Due to the impact, the deceased fell down and sustained several grievous injuries. The deceased was shifted to Manipal Hospital and during the course of treatment, he succumbed to the injuries. Thereafter, the body was shifted to Vydehi Hospital for post mortem and the body of the deceased was handed over to the members of the family to perform his last rites. Later, the body of the deceased was shifted to his native place and the family members performed obsequies ceremonies.
6. It is the case of the claimants before the Tribunal that Mr. Mclean Jan was aged about 27 years as on the date of the accident and was enjoying good health and he was working as Team leader at UNISYS Company Pvt Ltd., earning a sum of Rs.50,000/- per month and contributing his entire income to the family. It is also stated by them that the accident occurred due to the rash and negligent driving of the driver of the water tanker. it is also stated that the Traffic police have registered a case in Crime No. 291/2018 for the offence punishable under section 279 , 304(A) of IPC against the driver of the water tanker. Therefore, they claimed compensation from respondent Nos. 1 and 2 – the insurer of the offending vehicle and the owner of the offending vehicle respectively.
7. In response to the notice, respondent No. 2 did not appear. Hence he was placed ex parte. Respondent No. 1 - Insurance Company filed its written statement, inter alia contending that the claim petition is not maintainable either in law or on facts. It also denied that the accident occurred on account of rash and negligent driving of the driver of the water Tanker. However, they admitted the issuance of insurance policy in respect of the water Tanker but stated that the liability is subject to the terms and conditions of the policy. They also stated that the accident occurred due to the sole negligence on the part of the rider of the motor cycle as he was not wearing helmet and did not possess a valid driving licence as on the date of the accident. The insurance company further stated that the driver of the water tanker also did not possess a valid driving licence; its owner also did not possess valid RC and FC and permit to the said vehicle as on the date of the accident. Hence, they sought to contend that the terms and conditions of the policy are being violated. They further denied the factors like the age, occupation of the deceased and the expenses incurred towards funeral and obsequies ceremonies of the deceased. Therefore, they prayed for dismissal of the claim petition.
8. To substantiate their claim, the father of the deceased - claimant No. 1, Mr John Paul was examined as P.W.1 and another witness Sri. Shashank V. was examined as P.W. 2. They got marked as many as 37 documents which were marked as Exs.P.1 to P.37. On the other hand, the respondent No. 2 – Insurance Company examined the Legal Officer of the Insurance Company as R.W.1 and produced 2 documents which were marked as Ex.R.1 and R.2.
9. On the basis of the aforesaid pleadings, the Tribunal framed the following issues for its consideration:-
“1. Whether the petitioners prove that on 07.12.2018 at about 3.00 a.m., when the son of the petitioner No.1 deceased Mr.Mclean John was riding a motor cycle bearing Reg. No.KA-03-JE-5305 slowly and cautiously on Mahadevapura Ring Road, Service Road, when reached Opp. To Nagarjuna Apartments, Bengaluru City, at that time, a Water Tanker bearing Reg. No.KA-53/C-1627 driven by its driver in a rash and negligent manner, so as to endangering human life came at high speed and dashed against the deceased’s motor cycle. As a result the deceased fell down and sustained grievous injuries and died in the Manipal Hospital during the course of treatment?
2. Whether the petitioners are entitled for compensation ? If so, to what amount and from whom ?
3. Whether order or award ?”
10. The Tribunal vide order dated 01.08.2019 allowed the claim petition and awarded a sum of Rs.54,15,350/-. Being aggrieved by the Judgment and award, the Insurance Company has filed the present appeal.
11. We have heard the learned counsel for the appellant.
12. Learned counsel for the appellant contended that the award passed by the Tribunal is contrary to the documents and evidence on record and the same is also contrary to the law and prayed for setting aside the impugned judgment and award.
13. He contended that the Tribunal has failed to consider the documents and evidence in the right perspective as the document particularly the IMV report would reveal that both vehicles sustained damages on the front portion and as such it is a case of head on collision. Even as per the sketch, the accident occurred in the middle of the road and therefore, the Tribunal ought to have considered the aspect of contributory negligence on the part of the deceased in greater proportion.
14. It is further contended by the learned counsel that the deceased himself is responsible, as he was not wearing the headgear and therefore the deceased has succumbed to the injuries. It is also brought to the notice of this Court that no eye witness was examined to establish the factum of accident. On the other hand, the material evidence on record would reveal that there was greater proportion of contributory negligence on the side of the deceased which is clearly evident from the IMV Report sketch and other documents.
15. The learned counsel also contended that the Tribunal has erred in awarding higher compensation under the head of loss of dependency without proper deduction of income tax and professional tax. He also contended that the Tribunal has erred in awarding higher compensation under other heads and accordingly prayed that the award of the tribunal may be set aside.
16. We have heard the learned counsel for the appellant on admission of the appeal, and on perusal of the material on record, the following points would arise for our consideration:-
“1. Whether the compensation awarded by the Tribunal requires to be interfered with?
2. If so what order?”
17. It is not in dispute that on 07.12.2018 at about 3.00 a.m. the deceased Mr. Mclean John died in a motor vehicle accident. It is also not in dispute that the deceased was working as a Team Leader in the Company called UNISYS and was drawing salary of Rs.50,000/- per month.
18. We have perused the material evidence on record and the impugned judgment and award of the Tribunal.
19. Though the Insurance Company took the contention of contributory negligence, but the same had not been established by the Company.
20. The Tribunal while appreciating the material evidence on record has rightly rejected the contention of the Insurance Company regarding the theory of contributory negligence and ultimately held that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle. It is also seen that the respondents have not examined the driver of the offending vehicle and have also not challenged the charge sheet. It is seen from the material evidence on record that the respondent Insurance Company has not denied the Police documents. Therefore, we are of the opinion that the same need not be interfered with.
21. We therefore find that the finding of the Tribunal that negligence was on the part of the driver of the water tanker, bearing registration No.KA-52/C-1627 is justified. Further, on the quantum of compensation on re- assessment of the same, we do not find that the amount of Rs.54,15,350/- awarded by the Tribunal is exorbitant or excessive. However, we find that the Tribunal ought to have awarded interest at the rate of 6% per annum instead of 9% per annum, but we do not propose to interfere with that aspect of the matter also as compensation re-assessed would not call for any interference as it is not unreasonable or exorbitant nor excessive.
22. However, in the event the claimants file an appeal seeking enhancement of compensation, then liberty is reserved to the appellant/insurer to contend that the rate of interest ought to be 6% per annum instead of 9% per annum as awarded by the Tribunal.
Subject to the aforesaid liberty, the appeal is dismissed.
The amount in deposit to be transmitted to the concerned Tribunal.
In view of the dismissal of the appeal, I.A.No.1/19 stands dismissed.
Sd/- JUDGE Sd/- JUDGE Mgn/-