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2020 DIGILAW 1355 (KAR)

Claim Manager v. Sabeeha Banu

2020-07-08

ALOK ARADHE, M.NAGAPRASANNA

body2020
JUDGMENT Nagaprasanna, J. - These appeals, though listed for admission, are taken up for final disposal with the consent of the learned counsel appearing for the parties. 2. These appeals under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) have been filed by the Insurance Company and the claimants being aggrieved by the judgment dated 02.12.2016 passed by the 5th Additional District and Sessions Court & Additional MACT at Hassan M.V.C.No.905/2015. 3. Facts giving rise to the filing of the appeal briefly stated are that on 06.04.2015, the deceased was riding a motor cycle bearing registration No.KA-53-J- 3488 near the industrial area at Hassan and when he was passing in front of HPCL petrol bunk, was trying to park his motor bike at about 4.00 PM, a lorry bearing registration No.KA-46-1447 which was being driven by its driver in a high speed and in a rash and negligent manner dashed against the bike of the deceased, which resulted in the deceased sustaining grievous injuries on his head, leg, stomach and other parts of the body. The deceased was immediately admitted to the Government hospital at Hassan and was later on shifted to Janapriya hospital at Hassan where he was admitted as an inpatient. It transpires that on the advice of the doctors the deceased when being taken for higher treatment to Mangalore, on 07.04.2015, succumbed to the injuries at about 7:30 AM on his way to Mangalore. 4. The claimants being wife and children of the deceased filed a petition under section 166 of the Motor Vehicles Act 1989 contending inter alia that the deceased was working as the lorry driver and was earning Rs.35,000/- a month. It was further contended he was the sole breadwinner of the family and his loss has led all the claimants to penury as all of them were dependent on the deceased for their living. The claimants claimed compensation of Rs.30.00 lakhs along with interest. 5. On service of notice both the respondents appeared before the Tribunal and filed separate statement of objections. The claimants claimed compensation of Rs.30.00 lakhs along with interest. 5. On service of notice both the respondents appeared before the Tribunal and filed separate statement of objections. The first respondent owner of the vehicle denied the fact that the accident had taken place due to the rash and negligent driving of the driver and also contended that the insurance company was liable to pay as the insurance policy was in force and the driver of the vehicle possessed a valid driving license. The second respondent insurance company contended that the vehicle was not being driven in a rash and negligent manner, it was the deceased himself who was responsible for the accident. The insurance company denied the age, avocation and monthly income of the deceased. 6. On the basis of the pleadings of the parties, the Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined two witnesses. Claimant No.1 was examined herself as PW-1 and an eyewitness was examined as PW-2 and got exhibited 11 documents namely Exs.P.1 to P.11. The respondent-insurance company examined its authorised Officer as R.W.1 and marked 3 documents as Exs.R.1 to R.3. The Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the Lorry by its driver, as a result of which, the deceased sustained injuries and succumbed to the same. The Tribunal further held that the claimants are entitled to a compensation of Rs.7,70,000/- along with interest at the rate of 9% p.a. Being aggrieved by the award of Tribunal, the claimant's have filed M.F.A. No.2723/2017 seeking enhancement of compensation and the insurance company has filed M.F.A. No.3856/2017 challenging the entire award of the Tribunal. 7. We have heard Sri O. Mahesh, learned Counsel for the appellant Insurance company in M.F.A. No.3856/2017 and Smt Kavitha H.C., learned Counsel for the appellant in M.F.A. No.2723/2017. 8. Learned counsel for the appellant Insurance Company would contend that the award of the Tribunal is erroneous on more counts than one. At the outset he would submit that the insured lorry has been falsely implicated in the accident, the lorry was not at all involved in the accident. The so-called eyewitness PW-2 was a planted witness and did not actually see the accident . At the outset he would submit that the insured lorry has been falsely implicated in the accident, the lorry was not at all involved in the accident. The so-called eyewitness PW-2 was a planted witness and did not actually see the accident . With regard to the avocation of the deceased the learned counsel would contend that the claimants did not produce even the driving license of the deceased to prove that the deceased was working as a lorry driver. He would next contend that the age of the deceased is taken at 45 years by the Tribunal which is contrary to the evidence i.e. the voters list which shows the age of the deceased at 60 years, he would contend that if the age of the deceased is taken as per the voters list the entire quantum of compensation would vary. He would further contend that barring the wife of the deceased all other claimants are majors and are not dependents of the deceased. 9. On the other hand the learned counsel for the claimants would contend that the compensation awarded by the Tribunal for the death of the deceased is on the lower side as the Tribunal has taken the income of the deceased at Rs.6,000/- per month as against the income of Rs.35,000/- per month and has further erred in not adding future prospects on the head of loss of dependency which is contrary to law. Insofar as the contention of the appellant insurance company that the insured lorry was not at all involved in the accident and is falsely implicated, the learned counsel would contend that the police have registered a criminal case against the driver of the lorry and have also filed a charge sheet in the criminal proceedings against him. She would further contend that the charge sheet filed against the driver of the lorry is not challenged by the insurance company, having not challenged, cannot now contend that the lorry has been falsely implicated in the accident. The learned counsel would place reliance on a Judgment of the Apex Court in the case of MANGALA RAM VS. ORIENTAL INSURANCE COMPANY LIMITED AND OTHERS, (2018) 5 SCC 656 . The counsel would further contend that the children of the deceased, though majors are all dependents of the deceased. 10. The learned counsel would place reliance on a Judgment of the Apex Court in the case of MANGALA RAM VS. ORIENTAL INSURANCE COMPANY LIMITED AND OTHERS, (2018) 5 SCC 656 . The counsel would further contend that the children of the deceased, though majors are all dependents of the deceased. 10. We have considered the submissions made by the learned counsel for the parties and have perused the record. 11. At the outset, we wish to consider the contention of the learned counsel for the appellant Insurance Company with regard to the insured vehicle being falsely implicated. The accident took place on 06.04.2015 at 4 PM at the deceased was immediately admitted to the Government hospital and was later shifted to Janapriya Hospital. The deceased succumbed to the injuries sustained by the accident on 07.04.2015 on his way to Mangalore for further treatment. A complaint as per Ex.P2 came to be lodged before the jurisdictional police by P.W.2 on 07.04.2015 clearly indicating the offending lorry number as KA-46-1447 and that he was an eye-witness to the accident, based upon which an FIR came to be registered against the driver of the lorry as per Ex-P1. The police after investigation found that the accident had occurred due to the rash and negligent driving of the driver of the aforementioned lorry which had caused the death of the deceased and on such finding have filed a charge sheet as per EX-P3 in Crime No.92/2015 on 22.04.2015 wherein the driver of the offending lorry B.K.Arun Kumar is accused for offences punishable under Sections 279, 304(A) of the Indian Penal Code, 1860. The Hon'ble Supreme court in the case of MANGALA RAM Vs. ORIENTAL INSURANCE COMPANY LIMITED AND OTHERS, (2018) 5 SCC 656 , which is subsequently followed in the case of SUNEETA AND OTHERS Vs. RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND ANOTHER,2019 SCCOnlineSC 195, has held as follows: " 27. Another reason which weighed with the High Court to interfere in the first appeal filed by Respondents 2 & 3, was absence of finding by the Tribunal about the factum of negligence of the driver of the subject jeep. Factually, this view is untenable. Our understanding of the analysis done by the Tribunal is to hold that Jeep No. RST 4701 was driven rashly and negligently by Respondent 2 when it collided with the motorcycle of the appellant leading to the accident. Factually, this view is untenable. Our understanding of the analysis done by the Tribunal is to hold that Jeep No. RST 4701 was driven rashly and negligently by Respondent 2 when it collided with the motorcycle of the appellant leading to the accident. This can be discerned from the evidence of witnesses and the contents of the charge-sheet filed by the police, naming Respondent 2. This Court in a recent decision in Dulcina Fernandes [ Dulcina Fernandes v. Joaquim Xavier Cruz, (2013) 10 SCC 646 : (2014) 1 SCC (Civ) 73 : (2014) 1 SCC (Cri) 13 ] , noted that the key of negligence on the part of the driver of the offending vehicle as set up by the claimants was required to be decided by the Tribunal on the touchstone of preponderance of probability and certainly not by standard of proof beyond reasonable doubt. Suffice it to observe that the exposition in the judgments already adverted to by us, filing of charge-sheet against Respondent 2 prima facie points towards his complicity in driving the vehicle negligently and rashly. Further, even when the accused were to be acquitted in the criminal case, this Court opined that the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal." In terms of the law declared by the Apex Court in the aforestated case, if the facts obtaining in the case on hand are noticed with regard to the complaint (Ex.P.2) lodged before the police, registration of FIR (Ex.P.1) and the police filing the charge sheet (Ex.P.3) after investigation against the driver of the offending lorry for rash and negligent driving which was the cause of the accident, it would be clear that the claimants have discharged their burden of proving the involvement of the vehicle in the accident. Though the aforestated documents are not conclusive proof of guilt, but nonetheless are a vital piece of evidence that would be material in deciding a claim arising out of a motor vehicle accident as the claim is required to be decided on the touchstone of preponderance of probability and not by standard of proof beyond reasonable doubt as held by the Hon'ble Supreme Court in the case of Mangala Ram (Supra). Hence, the contention of the insurance company that the insured lorry has been falsely implicated is rejected. 12. Hence, the contention of the insurance company that the insured lorry has been falsely implicated is rejected. 12. The next contention of the learned counsel for the insurance company is with regard to nonproduction of driving license to prove that the deceased was working as a driver. The claimants have through out contended that the deceased was working as a driver and was earning Rs.35,000/- a month. A perusal of the evidence led before the Tribunal would clearly indicate that there is not even a suggestion put by the insurance company in the cross examination of P.W.1 before the Tribunal with regard to the fact that there is no driving licence produced by the claimants to prove the fact that the deceased was working as a driver. The insurance company has not produced any other evidence either oral or documentary before the Tribunal to prove the contrary. In the facts and circumstances of this case the non-production of driving license cannot take away the entitlement of compensation of the claimants. 13. Insofar as the contention of the appellant insurance company with regard to the age of the deceased is concerned, the post-mortem report (Ex-P6) depicts the age of the deceased at 45 years all other police documents show the age of the deceased as 45 years. The Ration card (Ex-P10) shows the age of the deceased as 38 years as on 05.06.2009 and as on the date of the accident the age of the deceased is to be taken as 45 years and all other police documents show the age of the deceased as 45 years. It is no doubt true, the voters list that is produced by the insurance company as Ex.R.3 shows the age of the deceased as 60 years. It is to be noticed that Ex.R.3 is not a voter ID but a voters list, a mistake could have crept in, in recording the age of the deceased while drawing up the voters list. On the contrary, the documents produced by the claimants concerning the age of the deceased as per post mortem report (Ex.P.6) and ration card (Ex.P.10) are overwhelming and deserves acceptance. Hence, age of the deceased will have to be accepted at 45 years as on the date of the accident. In our considered view, the Tribunal has committed no error in determining the age of the deceased at 45 years. 14. Hence, age of the deceased will have to be accepted at 45 years as on the date of the accident. In our considered view, the Tribunal has committed no error in determining the age of the deceased at 45 years. 14. Insofar as the last contention of the learned counsel for the appellant insurance company with regard to the children of the deceased being majors are not dependents of the deceased is concerned, it is settled principle of law that being majors by itself cannot be the determinative factor as to whether the claimants would be dependents of the deceased or otherwise. The evidence of dependency will have to be placed before the Tribunal by the claimants, either oral or documentary. PW1, the wife of the deceased in her evidence clearly deposes that the deceased was the sole breadwinner of the family and all the other members, namely, the wife and all the other children who are the claimants were depending on the deceased for survival. It is her evidence that with the death of the deceased, the survival of the family members i.e. the claimants has become difficult. In the cross-examination of P.W.1, the insurance company has neither elicited anything to the contrary from the witness nor has produced any evidence to show that the children of the deceased who were majors were not dependent on the deceased for their living. In the facts and circumstances of the case, we find no error in the Tribunal holding that claimant Nos.2, 3 and 4 are also dependents of the deceased. 15. Now, we come to the quantum of compensation that has been awarded by the Tribunal. Admittedly, the claimants have not produced any evidence with regard to the income of the deceased. Therefore, notional income has to be fixed as per the guidelines issued by the High Court Legal Services Committee. Since the accident is of the year 2015, the notional income has to be taken at Rs.9,000/- per month. To the aforesaid amount, 25% will have to be added on account of future prospects in terms of the law laid down by a Constitution Bench of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS, (2017) AIR SC 5157 . Thus, the monthly income of the deceased comes to Rs.11,250/- per month. PRANAY SETHI AND OTHERS, (2017) AIR SC 5157 . Thus, the monthly income of the deceased comes to Rs.11,250/- per month. Out of which we deem it appropriate to deduct 1/4th of the amount towards personal expenses, thus the monthly dependency comes to Rs.8,437.50/- per month. Taking into account the age of the deceased which was 45 at the time of the accident the multiplier of 14' has to be adopted, the claimants are entitled to a sum of Rs.14,17,500/- ( 8437.5 x 12 x 14 ) on account of loss of dependency. 16. The claimants are four in number namely, the wife and children. In view of the law laid down by the Supreme Court in MAGMA GENERAL INSURANCE CO. LTD. Vs. NANU RAM, (2018) ACJ 2782 , which is again reiterated and followed by a Three Judge Bench of the Hon'ble Supreme Court in the case of UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS,2020 SCCOnlineSC 410 , the claimants are entitled to be awarded Rs.40,000/- each towards loss of Spousal consortium and loss of Parental Consortium respectively.Thus, the total amount of compensation under this head is assessed at Rs.1,60,000/-. 17. In addition, the claimants are entitled to Rs.30,000/- on account of loss of estate and funeral expenses. Thus, in all the claimants would be entitled to the total compensation of Rs.16,17,416/-. The amount of compensation shall carry interest at the rate of 6% p.a. from the date of filing the petition till the payment is made to the claimants. 18. In the result, we pass the following: ORDER (i) M.F.A No.2723/2017 is allowed in part. (ii) M.F.A. No.3856/2016 is dismissed. (iii) The claimants would be entitled to the total compensation of Rs.16,17,416/- along with 6% p.a. from the date of filing the petition till its satisfaction. (iv) The amount in deposit, if any, shall be transmitted to the Claims Tribunal for payment to the claimants. (v) The enhanced compensation shall be satisfied by the insurance company within three months from the date of receipt of copy of this order. (vi) To the aforesaid extent, the judgment of the Claims Tribunal is modified.