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2019 DIGILAW 1758 (KAR)

Vimal v. Santosh

2019-07-22

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. The owner of the vehicle and the claimants being aggrieved by the judgment and decree dated 18.09.2013 passed in M.V.C.No.2113 of 2011 by the Member Motor Accident Claims Tribunal, Khanapur (fort short the Tribunal ) have filed these appeals. 2. It is the case of the claimants before the Tribunal that 02.07.2010 at about 6.30 p.m. in the public place namely on Kacha road, leading to water tank and the lands of various persons, lying towards eastern side of NH-4A, near Hebbal, the first respondent/the driver of the Tractor and Trailer bearing registration numbers KA-25/4039 and KA-25/T-267 respectively, took the same reverse in a rash and negligent manner and dashed to the husband of the first petitioner and father of petitioner Nos.2 and 3, namely Ramchandra, causing his death. Therefore, the claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short the Act ) claiming compensation amount of Rs.10,00,000/- against the driver, owner and insurer of the offending vehicle. 3. In response to the notice, respondent Nos.1 to 3 appeared before the Tribunal, respondent No.2 filed written statement which was adopted by the respondent No.1 they have admitted the accident, death of deceased-Ramchandra due to the accidental injuries. They also admitted that respondent No.2 is the owner of the offending vehicle and the same have been insured with respondent No.3. Respondent No.3 has filed written statement, he has admitted issuance of insurance policy in respect of the offending vehicle and he has denied all other allegations made in the claim petition. He further contended that the alleged accident took place in a private land and police did not file charge-sheet for the offence under Section 279 of I.P.C. hence, there is no rash or negligent driving of the offending vehicle by its driver in a public place. Therefore, the petition be dismissed. 4. On the basis of the pleadings of the parties Tribunal framed issues. In support of their claim petition, the claimant -petitioner No.1 was examined as PW-1 and got marked ten documents at Ex.P.1 to Ex.P- 10. There is no evidence on behalf of the respondents either oral or documentary. 5. Therefore, the petition be dismissed. 4. On the basis of the pleadings of the parties Tribunal framed issues. In support of their claim petition, the claimant -petitioner No.1 was examined as PW-1 and got marked ten documents at Ex.P.1 to Ex.P- 10. There is no evidence on behalf of the respondents either oral or documentary. 5. The Tribunal after hearing both the parties, passed the impugned Judgment awarding compensation amount of Rs.3,37,000/- with simple interest at the rate of 6% per annum from 20.09.2011 till realization, which shall be deposited within one month from the date of the order. The claim petition was dismissed against respondent Nos.1 and 3 and respondent No.2-owner of the offending vehicle was ordered to deposit the compensation amount. 6. The appellant-owner of the offending vehicle being aggrieved by the Judgment and Award has filed appeal in M.F.A.No.24704 of 2013 on the ground that saddling the liability on the owner is illegal on the facts and evidence in the case and that the Tribunal has erroneously saddled liability on him. The liability ought to have been fastened against the insurer. It is proved that the accident occurred in the public place and the police have filed the charge-sheet for the offence punishable under Section 279 of I.P.C and the Criminal Court has taken cognizance of the said offence. The Tribunal has not considered the meaning of public place as per Section 2(34) of the Act. The Tribunal is not justified in holding that the place of the accident is a private land as there was no restriction or prohibition for the public to have a right of access to the said land. It is further contended that the driver of the offending vehicle was having valid and effecting driving licence. The offending vehicle was duly insured with the insurer and therefore the liability has to be saddled against the insurer. 7. The claimants being dissatisfied with the impugned Judgment and have filed M.F.A.No.24825 of 2013 seeking enhancement of the compensation and also to fasten the liability on the Insurance Company. 8. Heard the learned counsels for the parties. 9. The offending vehicle was duly insured with the insurer and therefore the liability has to be saddled against the insurer. 7. The claimants being dissatisfied with the impugned Judgment and have filed M.F.A.No.24825 of 2013 seeking enhancement of the compensation and also to fasten the liability on the Insurance Company. 8. Heard the learned counsels for the parties. 9. A short question which arises for consideration in these appeals is as to whether the owner of the offending vehicle has made out grounds to set aside the liability saddled against him and to saddle the liability against the insurer and whether the claimants have made out grounds for enhancement of compensation ? 10. The learned counsel for the appellant-owner of the offending vehicle vehemently submitted that the place where the accident occurred has to be construed as a public place as provided under Section 2(34) of the Act. The learned counsel further submitted that admittedly in the present case the police have filed the charge-sheet against the driver of the offending vehicle for the offence punishable under Section 279 of I.P.C. along with other offences and Criminal Court has taken the cognizance for the offence punishable under Section 279 of I.P.C. and therefore, it has to be held that the place of accident is a public place. The learned counsel further submitted that the Tribunal has not considered these aspects, especially the filing of the charge-sheet against the driver of the offending vehicle for the offence punishable under Section 279 of I.P.C. which is omitted by the Trial Court by referring the offence punishable under Section 304A of I.P.C. alone and thereby has erroneously come to the conclusion that the place of the accident is not a public place and that it is a private property. 11. The learned counsel for the appellants soon has relied on the Judgment of division bench of this Court in MFA.No.20675 of 2013 connected with MFA.No.21192 of 2013 in the case of New India Assurance Co. Ltd., v. Smt. Rajani W/o. Harigopal Mandelia, decided on 10.12.2015. 12. As per the complaint Ex.P-3 and spot panchanama at Ex.P-3 the accident occurred in Sy.No. 2/7 of Nandagad village. It is alleged that when the deceased was talking with Narayana Raut and Nagu Narayan Kesarekar the driver of the Tractor and Trailer drove the same in a reverse and dashed against the deceased thereby caused his death. 12. As per the complaint Ex.P-3 and spot panchanama at Ex.P-3 the accident occurred in Sy.No. 2/7 of Nandagad village. It is alleged that when the deceased was talking with Narayana Raut and Nagu Narayan Kesarekar the driver of the Tractor and Trailer drove the same in a reverse and dashed against the deceased thereby caused his death. Claimant No.1 was examined as PW-1, admittedly she is not eyewitness to the accident, she has denied that the accident occurred in the land. It is very much necessary to refer the contention of the insurer in paragraph No.15 of the written statement which reads as follows : 15. It is submitted that the claim petition of the petitioners is not maintainable as the alleged accident is taken place on the private land as can be seen from the police records. To maintain the petition under Section 166 of M.V. Act the accident should occur in public place and there should be necessarily rash and negligent driving of the driver, but in this case there is no rash and negligent driving of the accused/driver of the alleged tractor and trailer and the police have also not filed the charge sheet for the offence punishable under Section 279 of I.P.C. Hence in the absence of offence punishable under Section 279 of I.P.C. it clearly shows that there was no rash and negligent act on the part of the driver of the vehicle and the accident has also taken place on the private land i.e., R.S.No.2/7 of Nandagad village. Therefore, the petition filed by the petitioners against this respondent No.2 Insurance Company is not maintainable and the same deserves to be dismissed and the same be kindly dismissed. Therefore, it is the specific case of the insurer that the police have not filed charge sheet for the offence punishable under Section 279 of I.P.C. and it clearly shows that the accident has not occurred in a public place and it took place in R.S.No.2/7 of Nandagad village. Admittedly, the insurer has not adduced any evidence in support of its contention. 13. Admittedly, the insurer has not adduced any evidence in support of its contention. 13. On the other hand, the claimants have produced Ex.P-9 which is plea recorded by the learned Magistrate in C.C.No.661 of 2010 against the driver of the offending Tractor, in which, it is clearly stated that accused committed the offence punishable under Sections 279 and 304A of I.P.C. Ex.P-10 is the certified copy of the Judgment in the said Criminal Case in which the learned Magistrate acquitted the accused for the offences punishable under Sections 279 and 304A of I.P.C. Therefore, it is very much clear that the concerned police after investigation filed the charge sheet for the offence punishable under Section 279 of I.P.C. and the accused/driver was tried for the said offence. However, the learned Member of the Tribunal referred in paragraph No.16 of the Judgment that the police have filed the charge-sheet only for the offence punishable under Section 304A of I.P.C. The Tribunal has not at all considered Ex.P-9 and Ex.P-10 in which the offence under Section 279 of I.P.C. is specifically mentioned. The reference to Ex.P-9 and Ex.P-10 becomes more relevant in view of the contention of respondent No.3 the insurer as contended in paragraph No.15 of his written statement extracted above. Therefore, the contention of the insurer was that as the police have not filed charge-sheet for the offence punishable under Section 279 of I.P.C. the accident did not occur in the public place. On the other hand, Ex.P-9 and Ex.P-10 are sufficient to show that the police have invoked the offence punishable under Section 279 of I.P.C and charge-sheet was filed against the respondent No.1 for the said offence and he was tried for the said offence. Therefore, the contention of the insurer as pleaded in paragraph No.15 of the written statement referred supra cannot be accepted. 14. The learned counsel for the appellant-owner of the offending vehicle has relied on the Judgment in the case of New India Assurance Co. Ltd., stated supra in that case the division bench of this Court considered the similar facts and circumstances. The interpretation of Section 2(34) of the Act is involved in the said case. The facts in the said case are also similar to the case in hand, in that case accident had occurred in coal field yard at Grasim Industry, Kumarapattana. Ltd., stated supra in that case the division bench of this Court considered the similar facts and circumstances. The interpretation of Section 2(34) of the Act is involved in the said case. The facts in the said case are also similar to the case in hand, in that case accident had occurred in coal field yard at Grasim Industry, Kumarapattana. The insurer contended in that case also that the accident had occurred in a private place and not in a public place. Therefore, the insurer is not liable to pay compensation. Further, in the said case, the police had not filed the charge sheet for the offence punishable under Section 279 of IPC. The same arguments were advanced before the division bench in the said case and the controversy between the parties was as to whether the place of accident in question is a public place or not Section 2(34) of the Act provides definition of the public place which reads as under : (34) public place means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage; The division bench of this Court relied on the Judgment of Orissa High Court in the case of M/s. M.K. Bhaukim v. Sukura Singh & Ors, (2011) AIR Orissa 144 in which the Orissa High Court has held as under : Motor Vehicles Act (59 of 1988), Ss. 2(34), 149-Public place-What is-All places where members of public have an access whether as of right or controlled-Would be covered under definition of public place - Accident took place on land abutting public road to which public had easy access-Land does not cease to be a public place merely because it was recorded in name of private individual-Land where accident took place was public place-Insurer liable to pay compensation. Words and Phrases Expressions Right of access and access as of right - Distinction. The definition of public place under M.V. Act, is, wide enough to include any place which members of public use and to which they have a right of access. The rights of access may be permissive, limited, restricted or regulated by oral or written permission, by tickets, passes or badges or on payment of fee. The definition of public place under M.V. Act, is, wide enough to include any place which members of public use and to which they have a right of access. The rights of access may be permissive, limited, restricted or regulated by oral or written permission, by tickets, passes or badges or on payment of fee. The use may be restricted generally or to particular purpose or purpose. What is necessary is that place must be accessible to members of public and be available for their use, enjoyment, avocation or other purpose. In the said case further it is held as follows : 8. The definition of public place under the M.V. Act is, therefore, wide enough to include any place which members of public use and to which they have a right of access. The right of access may be permissive, limited, restricted or regulated by oral or written permission, by tickets, passes or badges or on payment of fee. The use may be restricted generally or to particular purpose or purposes. What is necessary is that the place must be accessible to the members of public and be available for their use, enjoyment, avocation or other purpose. 15. The division bench relying on the said decision and considering the facts and circumstances of the case held that the place of accident in the said case being coal yard situated inside the factory and as per the company public can go to the said spot with permission, it was held that it is a public place though it is coal yard belonging to the private company. Coming to the facts of the present case, absolutely there is no evidence on record to show that the place of the accident had no access to the public or that there was any prohibition for entry of the public to the said land. It is also relevant to mention that the said land is situated by the side of the highway as can be seen from Ex.P-3 and Ex.P-4. The definition of public place under Section 2(34) of the Act referred above goes to show that any place whether it is a thoroughfare or not to whether the public have a right of access and includes any place or stand etc., is a public place. The definition of public place under Section 2(34) of the Act referred above goes to show that any place whether it is a thoroughfare or not to whether the public have a right of access and includes any place or stand etc., is a public place. Therefore, in the present case, the place in which the accident occurred had access to the public and even the access to the public is not restricted or prohibited. 16. On the other hand, in the Judgment stated supra the entry to the place of accident was restricted and only with permission of the company authorities one could enter the said premises. However in the present case, it is a open land to which the entry of any person is not restricted and therefore, the said place is accessible to the public. Under these circumstances, the facts and circumstances of the case relying on the Judgment of this Court stated supra and also relying on the Judgment in the case of M/s. M.K. Bhaukim s stated supra, it is held that the place of accident in the present case squarely falls within the definition under Section 2(34) of the Act and it is a public place. Therefore, the contention of the insurer that the accident occurred in a private land and as such he is not liable to pay compensation cannot be accepted. Under these circumstances, the findings recorded by the Tribunal dismissing the claim petition against the insurer is liable to be set aside. The claim petition has to be allowed against the owner and the insurer of the offending vehicle. Accordingly, the appeal filed by the owner of the offending vehicle deserves to be allowed. 17. The learned counsel for the claimants submitted that the Tribunal has considered the income of the deceased at Rs.4,500/- per month which is on the lower side and the same may be enhanced and that the Tribunal has deducted 50% of the income of the deceased towards personal and living expenses. The claimants are wife and sons of the deceased, therefore 1/3rd of the income has to be deducted towards the personal expenses of the deceased. The learned counsel also further submitted that 10% of the income of the deceased has to be added towards future prospects. 18. The claimants are wife and sons of the deceased, therefore 1/3rd of the income has to be deducted towards the personal expenses of the deceased. The learned counsel also further submitted that 10% of the income of the deceased has to be added towards future prospects. 18. The claimants have contended before the Tribunal that the deceased was an agriculturist as well as he was doing bricks manufacturing work and earning Rs.10,000/- per month and however they have not produced any positive evidence to prove the income. Therefore, the Tribunal considered the notional income of the deceased at Rs.4,500/- per month. Considering the age and occupation of the deceased and year of accident namely 2010 and in view of the guidelines provided for settlement of cases in Lok-Adalat, it is just and necessary to consider the income of the deceased at Rs.5,500/- per month in order to award compensation. It is also necessary to add 10% of the income towards future prospects which comes to Rs.5,500/- + 10% i.e., Rs.550/- = Rs.6,050/- out of which 1/3rd has to be deducted towards his personal and living expenses as there are three claimants 1/3rd of the amount comes to Rs.2,016/-, thereby the remaining income of the deceased comes to (Rs.6,050/- - Rs.2,016/-)= Rs.4,034/- which has to be multiplied by 12 and 11 the proper multiplier considering the age of the deceased. Thus, the claimants are entitled for compensation amount of (Rs.4,034/- X 12 X 11 =Rs.5,32,488/-) Rs.5,32,488/- towards loss of dependency. Further, the claimants are entitled for compensation amount of Rs.70,000/- under the conventional heads. The claimant Nos.2 and 3 being major sons of the deceased they are not entitled for compensation towards loss of love and affection. Thus, the claimants are entitled for total compensation amount of Rs.6,02,488/- as against the compensation awarded by the Tribunal at Rs.3,37,000/-. The point for consideration in these appeals is answered accordingly. In the result, this Court proceed to pass the following : ORDER The appeal in M.F.A.No.24704 of 2013 filed by the owner of the offending vehicle is allowed and the Judgment and Award dated 18.09.2013 passed in M.V.C.No.2113 of 2011 by the Member, M.A.C.T., Khanapur so for as dismissing the claim petition against the 3rd respondent-Insurer and saddling the liability against the respondent No.2-Owner of the offending vehicle is set aside. The claim petition is allowed against respondent Nos.2 and 3 and respondent No.3-Insurer is directed to deposit the compensation amount before the Tribunal within a period of eight weeks from this day. The amount in deposit made (in MFA.No.24704 of 2013) by the appellant-respondent No.2 shall be refunded to the appellant-respondent No.2. The appeal in M.F.A.No.24825 of 2013 is allowed in part. The claimants are awarded compensation amount of Rs.6,02,488/- with interest at the rate of 6% per annum from the date of petition till its realization. The order in respect of apportionment, deposit and disbursement of the compensation amount shall be in terms of the order passed by the Tribunal.