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2020 DIGILAW 995 (KAR)

United India Insurance Company Limited v. Kavita

2020-06-08

S.G.PANDIT, V.SRISHANANDA

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JUDGMENT V. Srishananda, J. - This appeal is preferred by the Insurance Company challenging the judgment and award passed by the FTC-III Court, Belgaum (hereinafter referred to as 'the Tribunal' for short) in MVC No.986/2012 dated 20.03.2014 awarding compensation in a sum of Rs.21,19,000/-. 2. Though notices were served upon the respondents/claimants by this Court, they remain unrepresented. 3. Heard the learned counsel for the appellant- Insurance Company and perused the records. 4. The brief facts which are necessary for disposal of this appeal are as under:- It is contended by the claimants that on 18.03.2012 one Vivekanand Bandu Patil was proceeding from Nipani towards his village Hadanal on his motorcycle bearing No.MH-09/AL-6456 and when he reached Varankod Cross, on service road which is abutting to National Highway at 9.15 p.m., driver of tractor and trailer drove the tractor in rash and negligent manner and thereby there was a collision between the motorcycle and the said tractor-trailer resulting in Sri.Vivekanand Bandu Patil sustaining severe injuries on the vital part of the body. It is further contended that he was shifted to City Hospital, Belgaum and thereafter he was shifted to CPR Hospital, Kolhapur for higher medical care, where he succumbed to the injuries. It is further contended that the deceased Vivekanand Bandu Patil was aged about 32 years and was carrying on stationary business to eke out his livelihood at Kendwade Phata Taluk Kagal, Kolhapur District and he had also indulged in agricultural activity. The claimants further contended that they are the dependants being the wife, children and mother of the deceased Vivekanand Bandu Patil. It is their further contention that due to the rash and negligent driving of the driver of the tractor-trailer, they lost their bread earner and filed claim petition for a sum of Rs.25,00,000/-. 5. Before the Tribunal, on issuance of notice, respondent No.2 Insurance Company appeared and filed their statement of objection denying the petition averments in toto. They also contended that it is because of the rash and negligent driving of the deceased Vivekanand Bandu Patil the accident has occurred and he did not take necessary precaution while reaching from main road to the service road and as such no liability can be fastened on the owner of the tractor-trailer and as such the claim petition should have been dismissed by the Tribunal. The respondent No.1 also filed statement of objection denying the liability and specifically contended that the accident has occurred on account of the negligence of the motorcyclist and in any event if the Tribunal comes to the conclusion that the accident is on account of the negligence of driver of the tractor and trailer, since the tractor and trailer was insured with respondent No.2, the liability can be fastened on respondent No.2. 6. In order to substantiate the petition averments, the claimant No.1 examined herself as P.W.1 and one Pavan Sudhir Mirje was examined P.W.2. By way of documentary evidence, the claimants relied on 23 documents which are marked before the Tribunal vide Exs.P.1 to 23. On behalf of the respondent- Insurance Company, no witnesses have been examined but the Insurance Company has got marked document insurance policy as Ex.R.1. 7. The Tribunal on cumulative consideration of the entire oral and documentary evidence on record, came to the conclusion that the annual income of the deceased could be arrived at Rs.1,60,000/- per year and granted the compensation in a sum of Rs.21,18,700/- as under:- 1) Loss of dependency : Rs.20,48,000=00 2) Towards medical expenses : Rs. 5,700=00 3) Loss of love and affection of petitioner No.2 to 4 : Rs. 20,000=00 4) Loss of consortium : Rs. 15,000=00 5) Transportation of dead body : Rs. 10,000=00 6) Funeral & Obsequies Expenses : Rs. 15,000=00 7) Loss of estate : Rs. 5,000=00 Total : Rs.21,18,700=00 8. The compensation awarded by the Tribunal as well as liability fastened on the insurer is under challenge by the Insurance Company before this Court. The learned counsel for the appellant-Insurance Company contended that the accident has not occurred on account of the negligence of the driver of the tractor. But has occurred on account of negligence of Sri.Vivekanand Bandu Patil, the rider of the motorcycle. The learned counsel for the appellant pointed out that the sketch produced before the Tribunal very clearly depicts that the motorcyclist was responsible for the accident and he did not take necessary precaution while reaching from the highway road to service road resulting in an accident. He pointed out that the damage caused to the headlight and front tyre of the motorcycle clearly establishes that it is the motorcyclist, who was responsible for the accident. He pointed out that the damage caused to the headlight and front tyre of the motorcycle clearly establishes that it is the motorcyclist, who was responsible for the accident. He further argued that the deceased hit the trailer from the backside and therefore the accident has not occurred on account of the negligence of the driver of the tractor and trailer. Hence, the Tribunal should have dismissed the petition. 9. Alternatively, the learned counsel further contended that the compensation awarded by the Tribunal is on the higher side. He further contended that the Tribunal erred in law in arriving at the annual income of the deceased at Rs.1,60,000/- per year in the absence of any cogent evidence placed by the claimants on record. It is his further contention that the Tribunal ought to have deducted 1/4th of his income towards personal expenses. But it has deducted 1/5th of the income towards personal expenses. Therefore, the compensation awarded by the Tribunal needs to be modified. 10. In view of the contentions raised by the learned counsel for the appellant-Insurance Company, the points that would arise for our consideration in this appeal are as under:- 1. Whether the appellant makes out a case that the accident has occurred on account of the negligence of the deceased Vivekanand Bandu Patil who was riding the motorcycle? 2. Whether the compensation awarded by the Tribunal is on the higher side and needs modification? 11. On cumulative consideration of entire material on record, we answer the above points as under: Point No.1 : In the Negative Point No.2 : In the Affirmative for the following reasons: REASONS 12. Point No.1:- In order to prove the accident, the claimant No.1 got examined herself as PW.1 and another witness has been examined as PW.2. The claimants also relied on documentary evidence which are marked as Exs.P.2 to P.7. It is pertinent to note that in the sketch, the tractor was proceeding on the service road and the complaint shows that the motorcycle was behind the tractor and the motorcyclist had entered from highway to the service road and hit the trailer from the backside. The claimants also relied on documentary evidence which are marked as Exs.P.2 to P.7. It is pertinent to note that in the sketch, the tractor was proceeding on the service road and the complaint shows that the motorcycle was behind the tractor and the motorcyclist had entered from highway to the service road and hit the trailer from the backside. But the evidence of PW.2, who is an eyewitness of the accident and not related to the claimants clearly shows that it is the negligence on the part of driver of the tractor and trailer, resulted in rider of the motorcycle hitting the trailer from hind side when he entered the service road. Extensive crossexamination of PW.2 by the Insurance Company did not yield any result establishing the case of Insurance Company. 13. Further, even in the charge sheet the Investigation Officer has examined the PW.2 as an eyewitness. When the sketch was prepared it is pertinent to note that PW.2 was not present and no independent witnesses were present at the time of preparing the sketch. Further, who showed the spot to the Investigation Officer for preparing the sketch is not examined by the Insurance Company to prove that the accident has not occurred on account of the negligence of the driver of the tractor and trailer. It is also pertinent to note that both the respondents did not choose to examine any witnesses to prove that the accident has not occurred on account of the negligence of the driver of the tractor and trailer. 14. Under such circumstances, the Tribunal has rightly held that the accident has occurred on account of the negligence of the driver of the tractor and trailer. 15. We do not find any serious infirmities in Tribunal recording such a finding. As such, the point No.1 is answered in the Negative. 16. Point No.2: On the question of quantum of compensation, the learned counsel for the appellant- Insurance Company points out that in the absence of any cogent evidence placed by the claimants, the Tribunal recorded the finding that the deceased Sri.Vivekanand Bandu Patil had yearly income of Rs.1,60,000/- which is bad in law. The Tribunal has considered the evidentiary value of the documents placed by the claimants in this regard. The Tribunal has considered the evidentiary value of the documents placed by the claimants in this regard. The Tribunal specifically bestowed its attention to Ex.P.12 which is lease deed and also bank passbook which is marked as Ex.P.15 and rent receipts at Ex.P.14 and audit report at Ex.P.16. So far as the agricultural income is concerned, the trial Court relied on Exs.P.17 to P.19 which are record of rights and sugar factory bills. 17. On perusal of Ex.P.16 which is audit report and Ex.P.15-bank passbook, we find some force in the argument advanced on behalf of the appellant. But, the author of Ex.P.16 audit report is not examined by the claimants. Further, the report does not contain any details as to what are all the documents the auditor has perused to prepare the Ex.P.16. Further, no documents are produced relating to income tax or sales tax. In fact, the Tribunal did discuss all these aspects in para 16 of the impugned judgment. However, the Tribunal without considering non-availability of the cogent evidence in this regard, made a guess work that having regard to the fact that the deceased had to maintain four members, he must have had income of Rs.1,60,000/- per year. This finding of the Tribunal requires interference by this Court as the same is not based on any cogent evidence on record. The Tribunal has also taken into consideration the agricultural income at Rs.10,000/- and arrived at annual income at Rs.1,60,000/-. 18. The documentary evidence marked at Exs.P.12 and 14 which are lease deed and rent receipts would clearly show that the deceased was carrying on stationary business. The bank passbook also shows deposit and withdrawals on regular basis. This would indicate that the deceased was indulged in stationary business and was having some income. Further, Exs.P.17 to P.19 clearly indicates that the deceased was also indulged in agricultural activities and was having income. Under such circumstances, it would be reasonable by this Court to assess the monthly income of the deceased at Rs.10,000/- per month from the stationary business and agriculture. Further, the Tribunal has deducted 1/5th of income towards personal expenses. Having regard to the number of dependants, the Tribunal should have deducted 1/4th of the income towards personal expenses as is rightly argued by the learned counsel for the appellant. Therefore, deducting 1/4th from Rs.10,000/-, the monthly income would be Rs.7,500/-. 19. Further, the Tribunal has deducted 1/5th of income towards personal expenses. Having regard to the number of dependants, the Tribunal should have deducted 1/4th of the income towards personal expenses as is rightly argued by the learned counsel for the appellant. Therefore, deducting 1/4th from Rs.10,000/-, the monthly income would be Rs.7,500/-. 19. Having regard to the age of the deceased, the Tribunal has taken into account the multiplier as 16. 20. Accordingly, the claimants would be entitled to a sum of Rs.14,40,000/- (Rs.7,500 x 12 x 16) under the head of loss of dependency. 21. We find that the Tribunal has properly awarded the compensation on other conventional heads and the same requires no interference. Accordingly, the point No.2 is answered in the affirmative and we proceed to pass the following:- ORDER The appeal is allowed in part. Accordingly, the judgment and award dated 20.03.2014, passed in MVC No.986/2012 on the file of the FTC-III Court, Belgaum is modified and the claimants/respondents are entitled to a total compensation of Rs.15,10,700/- as against Rs.21,19,000/- awarded by the Tribunal with interest @ 6% per annum from the date of petition till the realization. The Insurance Company is directed to deposit the entire compensation amount within a period of six weeks from the date of receipt of a certified copy of this order. The apportionment and deposit would be as ordered by the Tribunal in the same proportion. The amount in deposit, if any, made by the Insurance Company shall be transmitted to the jurisdictional Tribunal forthwith.