Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1888 (KAR)

Shriram Gen Ins Co, Ltd v. Nagaratna

2020-09-29

SURAJ GOVINDARAJ

body2020
JUDGMENT Suraj Govindaraj, J. - MFA NO.23138/2011 1. The Insurance Company is in appeal, challenging the Judgment of the Motor Accident Claims Tribunal No.X, Bellary, dated 21.01.2011 in MVC No.529/2010. 2. On 24.09.2009, the deceased Dayakara Reddy along with his wife and son was proceedings in a motorcycle bearing No.KA-36/S-5316 to attend a function in their relatives house. While they were proceeding in front of KSRTC Bus Depot in Siruguppa near Kakaiah's field at about 10:30 a.m. It is alleged that a lorry bearing Reg.No.AP-04/T- 7443 driven by its driver in a rash and negligent manner came from Siruguppa side and dashed to the motorcycle, due to which Dayakara Reddy fell on the roadside, whereas wife and son thrown on left side. It is alleged that the said lorry ran over Dayakara Reddy on account of which he suffered from grievous injuries and succumbed. It is on this basis, a claim petition had been filed and the Tribunal has allowed the claim by awarding a sum of Rs.6,75,000/-. 3. Sri. Nagaraj C. Kolloori, learned counsel for the Insurance Company would submit that, while doing so, the Tribunal has not appreciated three of the important facts in a proper and required manner i.e. (i) Though the accident is stated to have occurred on 24.09.2009, the vehicle insured by the Insurance Company was only seized on 30.11.2009 which would lead to an inference that the said vehicle has been planted subsequently and as such he submits that the vehicle insured by the Appellant was not involved in the accident; (ii) Though the driver of the said lorry had been charge sheeted, in the criminal proceedings initiated against the said driver, wife of Dayakara Reddy had deposed that she did not identify the lorry or the driver, she does not know the lorry number, hence she was treated hostile in those proceedings and in the examination-in-chief she has denied the statement made in her complaint. Therefore, Sri. Therefore, Sri. Kolloori submits that, when the primary witness in MVC matter has deposed contrary in the criminal proceedings that too as regards involvement of the vehicle, the same ought to have been taken into consideration by the Tribunal and the Tribunal ought to have held that the said vehicle was not involved in the accident; (iii) Though it is alleged that the wife and son were travelling along with the deceased in the said vehicle and it is further alleged that when the lorry hit the motorcycle, wife of deceased Dayakara Reddy and their son have not even suffered any injuries and also not treated for such injuries and therefore, the very claim of the wife and son travelling along with the deceased is suspect, inasmuch as when the rider has expired on account of the injuries it was expected that the pillion rider and the son who was travelling with him would also have suffered from some injury or the other. 4. Shri Kolloori submits that on all the above three grounds, the finding of the Tribunal in holding the lorry and its driver responsible for the accident and imposing the liability on the Insurance Company is bad in law and is required to be set aside. 5. Per contra, Sri. Y.Lakshmikant Reddy, learned counsel appearing for the claimants would submit that, on a perusal of the cross-examination of wife i.e. P.W.1 in MVC proceedings it could be seen that wife has clearly stated that she has furnished the number of lorry within two days of the accident. This answer given in the cross-examination has not been further challenged by the Insurance Company and as such the contentions raised by Sri. Kolloori as regards the fixing of the lorry in the accident is incorrect and a charge sheet had also been filed against the lorry owner and the driver of the said lorry. Such being the case, on the mere arguments now being advanced, it cannot be said that the vehicle was not involved in the accident. 6. As regards deposition of P.W.1-wife in the criminal proceedings Sri. Such being the case, on the mere arguments now being advanced, it cannot be said that the vehicle was not involved in the accident. 6. As regards deposition of P.W.1-wife in the criminal proceedings Sri. Y.Lakshmikant Reddy submits that this argument was also taken up before the Tribunal and the Tribunal has rejected the same on the ground that the said case of the Insurance Company ought to have been put across the witness during the cross-examination so as to afford an opportunity as to why contradictory stand have been taken by her. This not having been done, the Tribunal came to the conclusion that in the motor vehicle accident matters relating to death there could be various reasons due to which a witness would have contradicted himself/herself. 7. Sri. Lakshmikant Reddy also relies on the decision of the Division Bench of this Court between A.Arun and another Vs. Smt. H.B.Pushpa and another, (2014) ILR(KAR) 5169 , which is reproduced hereunder for easy reference: "15. It is settled principle of law that an acquittal of driver of an offending vehicle by Criminal Court in a criminal case cannot be the basis to come to a conclusion or to hold that he has not caused the accident and there is no negligence on his part. It has been held in catena of decisions of several High Courts including our High Court and Apex Court that the Tribunal while functioning under the provisions of the Motor Vehicles Act, which is an independent beneficial legislation introduced for the benefit of victims in road traffic accidents has to independently decide the question relating to negligence on the basis of oral and documentary evidence placed before it." 8. Relying on the said Judgment, he contends that even if the charge sheeted driver is acquitted in the criminal proceedings, the same would not have a bearing on the MVC matters. Here the question raised is only as regards the deposition of the witness. Hence, the same cannot be considered in these proceedings. 9. Sri. Lakshmikant Reddy, would submit that for the said reasons this contention raised herein is also required to be rejected. 10. As regards the contention that in the said accident, though the rider expired, the pillion rider and the son did not suffer from any injuries, Sri. Hence, the same cannot be considered in these proceedings. 9. Sri. Lakshmikant Reddy, would submit that for the said reasons this contention raised herein is also required to be rejected. 10. As regards the contention that in the said accident, though the rider expired, the pillion rider and the son did not suffer from any injuries, Sri. Lakshmikant Reddy submits that at the time of the accident, the rider fell on the roadside, whereas the pillion rider and the son fell on the other side and it is only on account of the lorry having ran over the rider that the grievous injuries have occurred and the rider expired, if not for the lorry running over the said rider, such injuries would not have occurred and it is not required that in all accidents all the people travelling on the motorcycle are required to be injured or suffer death. 11. On these grounds, Sri. Lakshmikant Reddy submitted that the finding of the Tribunal is proper and correct. The grounds raised in the present appeal and the arguments advanced are an afterthought raised for the first time in the course of this appeal. 12. Heard Sri. Nagaraj C. Kolloori, learned counsel for the Insurance Company, Sri. Y.Lakshmikant Reddy, learned counsel for the claimants and perused the papers. 13. In the present appeals, the occurrence of the accident is itself disputed. At the time of the accident, the rider, his wife and son are stated to have been proceeding on the motorcycle when they were dashed by a lorry allegedly driven in a rash and negligent manner. A complaint came to be immediately filed and two days later, the wife i.e. P.W.1 has given the details as regards the lorry number which has not been challenged by the Insurance Company during the course of crossexamination. Such being the case, mere delay in seizure of the vehicle cannot be attributed to the claimant, the delay if any is on the part of the authorities. The claimant was only required to lodge a complaint and or provide information relating to the accident in the form of Statement to the jurisdictional authorities. This having been done, the rest of the investigation is to be completed by the jurisdictional authorities and action to be taken thereon. The claimant was only required to lodge a complaint and or provide information relating to the accident in the form of Statement to the jurisdictional authorities. This having been done, the rest of the investigation is to be completed by the jurisdictional authorities and action to be taken thereon. Hence, I am of the considered opinion that P.W.1-wife cannot be held to have informed about the accident in a belated manner as contended by Sri. Kolloori. 14. The second contention raised was as regards the deposition of P.W.1 in the criminal proceedings wherein she has all but absolved the liability of the driver of the lorry in fact to the extent that the lorry was not even involved in the accident. In this regard as held by the Division Bench of this Court in the case of A.Arun and another Vs. Smt. H.B.Pushpa and another (supra) the finding in any criminal matter arising out of the motor vehicle accident and the deposition in such matters are not required to be considered by the Tribunal dealing with the matter vehicle accident, the said Rule would also apply to this Court when considering the accident matter on appeal. That apart, the deposition given by P.W.1 in the criminal proceedings have not been challenged during the course of cross-examination of P.W.1. In view of the same, this contention is also liable to be rejected. 15. The third contention being that no injury having been caused to the pillion rider and the son accompanying the rider. As can be seen from the evidence, it is only on account of the rider falling on the road and the lorry having ran over him that he suffered from grievous injuries. It is not necessary that all persons travelling in the vehicle should suffer from any injuries. What is required to be established is only the occurrence of the accident and the cause of the accident. In the present case, the accident has occurred, the driver of the lorry has been charge-sheeted, I am of the opinion that non-suffering from any injuries on the part of the pillion rider and the son cannot give any cause for the Insurance Company to suspect the occurrence of the accident itself. In view of the above, all contentions raised by Sri. Kolloori, not being maintainable, the appeal as failed by the Insurance Company is dismissed. 16. In view of the above, all contentions raised by Sri. Kolloori, not being maintainable, the appeal as failed by the Insurance Company is dismissed. 16. The amount in deposit shall be transmitted to the concerned Tribunal. MFA No.21464/2011. 17. This appeal is filed by the claimants seeking for enhancement of the compensation. The occurrence of the accident and the death of Dayakara Reddy in the said accident have been dealt with above. Dayakara Reddy is said to have survived by his wife, two minor children and mother. The Tribunal after considering the matter awarded compensation of a sum of Rs.6,75,000/- under the following heads: Sl.No. Heads of compensation Amount 1 Loss of dependency Rs.6,12,000/- 2 Loss of estate Rs.10,000/- 3 Loss of love and affection and loss of consortium Rs.45,000/- 4 Towards transportation of dead body Rs.3,000/- 5 Towards funeral expenses Rs.5,000/- Total Rs.6,75,000/- 18. Loss OF DEPENDENCY: A perusal of all the documents indicates that the deceased expired on 24.09.2009 on account of road traffic accident when the deceased was aged about 30 years as on that date. The appellants not having produced any documents to establish the earnings of the deceased, the Tribunal took into account an amount of Rs.4,000/- per month as being the income of the deceased. The appellants have contended that the said income is inadequate and not in accordance with the notional income which has been fixed for the purpose of conduct of Lokadalath. As per the said chart, the notional income of the deceased would be Rs.5,000/- Hence, the Tribunal ought to have considered the said amount, which not having been considered, requires corrections at the hands of this Court. In view of the above submission and having perused the chart adopted for the purpose of Lok-adalath, the notional income as on the year of death of the deceased, in my considered view would have to be taken into consideration and as such, a sum of Rs.5,000/- is taken as the income of the deceased. The accident having occurred in the year 2009, in terms of Sarla Verma vs. Delhi Transport Corporation s case, (2009) 6 SCC 121 the appropriate multiplier of 17' is taken into consideration. 19. The deceased being aged 30 years as on the date of the death, the future prospects @ 40% is required to be added to the income of the deceased. 19. The deceased being aged 30 years as on the date of the death, the future prospects @ 40% is required to be added to the income of the deceased. In terms of ruling of the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi, (2017) 16 SCC 680 , the annual income of the deceased would be Rs.5,000/- + 40% = Rs.7,000/- 20. The deceased had four number of dependants. Hence, an amount equivalent to 1/4th amounting to Rs. 1,750 is required to be deducted from the said annual income towards personal and living expenses of the deceased as per the ruling in Sarla Verma's case stated supra leacin a monthly income of Rs. 7,000 Rs. 1.750 = Rs. 5,250. 21. Hence, loss of dependency would be Rs.5,250/- X12X17=Rs.10,71,000/- 22. Loss OF ESTATE: A perusal of the records indicates that the deceased was survived by wife, two minor children and mother. The Tribunal has awarded a sum of Rs.10,000/- towards loss of estate. In terms of ruling of the Hon'ble Apex Court in Praney Sethi's case stated supra, the same is required to be enhanced by Rs.5,000/-, totaling to Rs.15,000/-. 23. Loss OF CONSORTIUM: The Tribunal has awarded a sum of Rs.20,000/- towards loss of consortium to petitioner No.1 and Rs.10,000/- each to petitioner Nos.2 and 3 and similarly a sum of Rs.5,000/- has been awarded to petitioner No.4/mother, i.e. in all Rs.45,000/-. In terms of the decision of the Apex Court in Praney Sethi's case, a sum of Rs.40,000/- each is required to be awarded to each of the petitioners/claimants i.e. Rs.1,60,000/- and thus the amount under this head is enhanced by Rs.1,15,000/-. 24. Transportation AND FUNERAL EXPENSES: The Tribunal has awarded a sum of Rs.3,000/- towards transportation and Rs.5,000/- towards funeral expenses. In terms of the decision of the Apex Court in Praney Sethi's case, a sum of Rs.15,000/- is required to be awarded. Hence, the same is enhanced by Rs.7,000/-. 25. Hence, total tabulated statement is as under:- Sl.No Heads of account Compensation awarded by the Tribunal Compensation awarded by this Court Enhanced compensation 1 Loss of dependency Rs.6,12,000/- Rs.10,71,000/- Rs.4,59,000/- 2 Loss of estate Rs.10,000/- Rs.15,000/- Rs.5,000/- 3 Loss of love and affection and loss of consortium Rs.45,000/- Rs.1,60,000/- Rs.1,15,000/- 4 Towards transportation of dead body and funeral expenses Rs.3,000/- +Rs.5,000/- Rs.15,000/- Rs.7,000/- Total Rs.6,75,000/- Rs.12,61,000/- Rs.5,86,000/- 26. Accordingly, I pass the following: ORDER i. The appeal is partly allowed. ii. The judgment and award passed by Motor Accident Claims Tribunal No.X, Ballari in MVC No.529/2010 dated 21.01.2011 is hereby modified. The appellant is entitled to enhanced compensation of Rs.5,86,000/- with interest @ 6% p.a. from the date of claim petition till the date of realization. iii. The Insurance Company is directed to pay the enhanced compensation of Rs.5,86,000/- to the claimants.