Research › Search › Judgment

Karnataka High Court · body

2021 DIGILAW 15 (KAR)

New India Assurance Co. Ltd. v. Lalithamma

2021-01-04

ALOK ARADHE, V.SRISHANANDA

body2021
JUDGMENT : V. Srishananda, J. 1. Though these matters are listed for admission today, with the consent of both the parties, matter is taken up for final disposal. 2. All these matters arise out of one and the same Judgment and Award and therefore, are being disposed of by this common order. 3. The rank of the parties are referred as per their ranks before the Tribunal. 4. Appellant in MFA No. 1123/2016 is the insurer of the bus bearing No. KA-44/1278 who was the 4th respondent in MVC No. 4506/2013 challenged the validity of the Judgment and Award dated 17th April 2015 on the file of MACT, Court of Small Causes, Bengaluru (SCCH-15) (hereinafter referred to as the Tribunal for short). The claimants have filed cross objection in MFA CROB. No. 108/2020 seeking enhancement of compensation. 5. So also the Insurance Company of the motor- cycle which was involved in the same accident has filed MFA No. 5512/2015 challenging the validity of the same Judgment and Award and the claimants have filed cross objection in MFA.CROB. No. 109/2020 in the appeals. 6. The brief facts, which are necessary for disposal of these matters are as under: A claim petition came to be filed under Section 166 of the Motor Vehicles Act, contending that on 15.07.2013 at about 6.30 p.m., when Krishnamurthy was proceeding as a pillion-rider on the motor-cycle bearing No. KA-02-HC- 9164, the rider of the motor-cycle was moving with proper speed and following the necessary rules, when they reached near Doddabidare village bus stand at Chikkanayakanahalli to Hiriyur road, driver of the bus bearing No. KA-44/1278 who was also proceeding in the same direction, all of a sudden applied brakes without proper signal, whereby rider of the motor-cycle could not control the vehicle and dashed against the hind portion of the bus resulting in falling down of rider and pillion-rider from the motor-cycle. It is further contended that pillion- rider of the motor-cycle sustained grievous injuries and they were shifted to Govt. Hospital, Chhikkanayakanahalli for first aid treatment and from there to NIMHANS Hospital, Bengaluru and from there to Victoria Hospital, Bengaluru and succumbed to the injuries two days later. It is further contended that pillion- rider of the motor-cycle sustained grievous injuries and they were shifted to Govt. Hospital, Chhikkanayakanahalli for first aid treatment and from there to NIMHANS Hospital, Bengaluru and from there to Victoria Hospital, Bengaluru and succumbed to the injuries two days later. It is further contended that the Respondents 2 and 3 who are the R.C. owners of the motor-cycle and the bus and Respondents 1 and 4 who being the insurer of the motor- cycle and bus are jointly liable to pay the compensation for the accidental death of Krishnamurthy and thus sought for awarding suitable compensation. 7. In response to the notice issued, all the respondents appeared before the Tribunal and through their Advocates, filed statement of objections denying the petition averments. Second respondent no doubt admitted that he is the R.C. owner of the motor-cycle and the deceased was riding the motor-cycle at the time of accident. 8. First respondent who is the insurer of the motor- cycle contended that rider of the motor-cycle did not possess valid and effective driving licence, but admitted that policy was in force. First respondent also contended that accident has occurred on account of the negligent driving of the bus. Third respondent who is the owner of the bus, contended that the accident has taken place on account of the negligent riding of the rider of the motorcycle without maintaining minimum distance between the vehicles and denied that driver of the bus has suddenly applied the brake. Fourth respondent admitted the incident and contended that bus driver did not possess a valid driving licence and accident has occurred on account of the negligent riding of the two-wheeler and therefore, there is no fault on the part of the bus driver and sought for dismissal of the petition. 9. Based on the rival contentions, the Tribunal raised necessary issues. 10. In order to prove the claim petition averments, first claimant Smt. Lalithamma who is the wife of the deceased was examined as PW. 1 and one eye-witness by name Anjana Bhovi was examined as P.W. 2. Claimants relied on 19 documents in support of their claim which were exhibited and marked as Exs. P.1 to P.19. On behalf of the respondents, the officer of the first respondent is examined as R.W. 1 and Gireesha and Soorya Prakash were also examined as R.Ws. 2 and 3. Claimants relied on 19 documents in support of their claim which were exhibited and marked as Exs. P.1 to P.19. On behalf of the respondents, the officer of the first respondent is examined as R.W. 1 and Gireesha and Soorya Prakash were also examined as R.Ws. 2 and 3. The owner of the motorcycle who is Respondent No. 2 is examined as R.W. 4. On behalf of the respondents, 19 documents were relied on which were exhibited and marked as Exs. R1 to R19. 11. The Tribunal, on cumulative consideration of the oral and documentary evidence on record, allowed the claim petition in part and awarded a sum of Rs. 17,66,000/- at the ratio of 40:25:25:10 with interest at 8% p.a., from the date of petition till realization and apportioned the liability to the first and fourth respondent in the ratio of 30% : 70%. It is that judgment which is the subject matter of all these appeals. 12. First respondent who is the insurer of the motor- cycle contended that rider of the motor-cycle did not possess valid and effective driving licence, but admitted that policy was in force. First respondent also contended that accident has occurred on account of the negligent driving of the bus. Third respondent who is the owner of the bus, contended that the accident has taken place on account of the negligent riding of the rider of the motorcycle without maintaining minimum distance in between the vehicles and denied that driver of the bus has suddenly applied the brake. Fourth respondent admitted the incident and contended that bus driver did not possess a valid driving licence and accident has occurred on account of the negligent riding of the two-wheeler and therefore, there is no fault on the part of the bus driver and sought for dismissal of the petition. 13. Learned Counsel for the Insurance Company of the motor-cycle as well as the bus vehemently contended that the Tribunal has properly appreciated the probative value of the documents relied on by the Insurance Company and came to a wrong conclusion that deceased who was a pillion-rider of the motor-cycle did not maintain a safe distance between the two vehicles. Therefore, the accident has occurred. Therefore, the accident has occurred. It is also the contention of the Insurance Companies that it is the deceased who was riding the motorcycle at the time of accident was under the influence of alcohol as is evident from the medical records, especially, Exs. R12 and R14 and thus, he is solely responsible for the accident in question and thus, sought for dismissal of the claim petition by allowing the appeals. In support of their arguments, the Insurance Company has relied on the decision reported in Nishan Singh and Ors. Vs. Oriental Insurance Company Ltd., Through Regional Manager and Ors. ( AIR 2018 SC 2118 ). Relevant portion of the Judgment is extracted hereunder: "The next question is whether the Tribunal should have at least answered the issue of contributory negligence of the truck driver in favour of the appellants (claimants). The question of contributory negligence would arise when both parties are involved in the accident due to rash and negligent driving. In a case such as the present one, when the maruti car was following the truck and no fault can be attributed to the truck driver, the blame must rest on the driver of the maruti car for having driven his vehicle rashly and negligently. The High Court has justly taken note of the fact that the driver and owner of the maruti car, as well as insurer of that vehicle, had not been impleaded as parties to the claim petition. The Tribunal has also taken note of the fact that in all probability, the driver and owner of the maruti car were not made party being close relatives of the appellants. In such a situation, the issue of contributory negligence cannot be taken forward." 14. Per contra, learned Counsel for the claimants vehemently contended that the Tribunal rightly came to the conclusion that the deceased was the pillion-rider of the motor-cycle bearing No. KA-02-HC-9164 after thoroughly appreciating the entire materials on record. In such a situation, the issue of contributory negligence cannot be taken forward." 14. Per contra, learned Counsel for the claimants vehemently contended that the Tribunal rightly came to the conclusion that the deceased was the pillion-rider of the motor-cycle bearing No. KA-02-HC-9164 after thoroughly appreciating the entire materials on record. He further contended that the Insurance Companies did not suggest to P.W. 1 or P.W. 2 that the deceased was not the pillion-rider of the motor-cycle in question and it is only after the amendment of the objection statement by the 1st respondent, the Insurance Company raised the issue of the deceased being not the pillion-rider and thereafter, they did not recall P.W. 1 or P.W. 2 and suggested to the witnesses that the deceased was not the pillion-rider of the motor-cycle as well as the negligence on the part of the bus is to be maintained. 15. Learned Counsel for the claimants also contended that the quantum of compensation awarded by the Tribunal is also on the lower side and sought for suitable enhancement. He further contended that two days after the accident, the injured died. Therefore, the claimants are entitled for compensation under the head of "pain and sufferings" suffered by the deceased for the period of two days. 16. Learned Counsel for the claimants further contended that Tribunal has not properly assessed the income of the deceased while computing the compensation. He further contends that the claimants are entitled for the compensation as per National Insurance Company Limited Vs. Pranay Sethi and others, (2017) 16 SCC 680 and Magma General Insurance Company Limited Vs. Nanu Ram & Others, (2018) 18 SCC 130 and United India Insurance Co. Ltd., Vs. Satinder Kaur and thus, sought for suitable enhancement of compensation by modifying the award only in respect of quantum of compensation. 17. In view of the rival contentions of the parties, the following points would arise for consideration: i. Whether the finding recorded by the Tribunal that the accident has occurred on account of the negligent driving of the rider of the motor-cycle and driver of the bus, is erroneous? ii. Whether the finding recorded by the Tribunal that deceased was the pillion-rider on the motor-cycle bearing No. KA-02-HC-9164 is erroneous? iii. Whether the quantum of compensation awarded by the Tribunal is just compensation? 18. ii. Whether the finding recorded by the Tribunal that deceased was the pillion-rider on the motor-cycle bearing No. KA-02-HC-9164 is erroneous? iii. Whether the quantum of compensation awarded by the Tribunal is just compensation? 18. The answer to the above points is in the negative for the following: REASONS RE. POINT NOS. 1 AND 2: 19. In the case on hand, Krishnamurthy (deceased) losing his life on account of the accidental injuries involving motor-cycle bearing No. KA-02-HC-9164 and the bus bearing No. KA-44-1278 on Chikkanayanakahalli road at about 6.30 p.m., near Doddabidare village bus stand is not in dispute. 20. The prime contention of the Insurance Companies is that it is the deceased who was the rider of the motor-cycle and not the pillion-rider. It is their further contention that Exs. R12 and R14 clearly demonstrate that the deceased was under the influence of liquor and he having not spotted the bus which was moving in the same direction, dashed against the bus from the hind side and therefore, he is alone responsible for the accident due to his negligence. Therefore, claim petition ought to have been dismissed. In support of their arguments, they drew the attention of this Court to Exs. R12 and R14. The relevant portions of Exs. R12 and R14 are extracted hereunder for ready reference: Ex. R12: "H/O. alleged RTA on 15.07.2013 at around 7.00 p.m., while he was riding two-wheeler, with no sufficient history of place and way of incidence happened." Ex. R14 "H/O. RTA - When he was riding two-wheeler in the place of accident, he hit the bus from back on 15.07.2013 at 7.00 p.m., at Huliyur- Chikkanayakanahalli road." 21. It is pertinent to note that the Insurance Companies did not take such a stand when they filed the written statement at the first instance. During the pendency of the claim petition before the Tribunal, as an afterthought, first respondent amended the objection statement and took the contention that deceased was not the pillion-rider of the motor-cycle, but he was actually riding the motor-cycle. It is also pertinent to note that in the cross-examination of P.W. 1 or P.W. 2 who is an eye- witness to the incident, there is no suggestion made by the Insurance Company that it is not the second respondent who was the rider of the motor-cycle, but it was the deceased who was the rider of the motor-cycle. It is also pertinent to note that in the cross-examination of P.W. 1 or P.W. 2 who is an eye- witness to the incident, there is no suggestion made by the Insurance Company that it is not the second respondent who was the rider of the motor-cycle, but it was the deceased who was the rider of the motor-cycle. Police, after thorough investigation, has filed chargesheet against the driver of the bus. It is also pertinent to note that second respondent who is the owner of the motorcycle, got examined himself as R.W. 4. In his objection statement itself, he has specifically mentioned that he was riding the motor-cycle as on the date of accident. Insurance Companies no doubt cross-examined R.W. 4 by suggesting that he has colluded with the claimants and rendered a false evidence before the Tribunal. Except those suggestions, there is nothing on record to show that the evidence of R.W. 4 is to be discarded. It is also pertinent to note that deceased when he was taken to NIMHANS Hospital, Bengaluru, he was unconscious and the recordings are made by the doctors based on the information provided by the brother of the deceased. Having taken a contention that deceased being the rider of the motor-cycle, nothing prevented the Insurance Companies to summon the doctors who recorded the history as is culled out supra in Exs. R12 and 14 or at least to summon the brother of the deceased who said to have furnished such information to the doctors as referred to supra. When such being the situation, merely suggesting to R.W. 4 that he was not the rider of the motor-cycle in question would not discharge the burden on the Insurance Companies to establish the fact that R.W. 4 is not the rider of the motor-cycle, but deceased was the rider of the motor-cycle. Moreover, Exs. R12 and R14 are the photo copies which have been attested by the officer of the Insurance Companies. Nothing prevented the Insurance Companies to summon the original records itself, especially when there is an entry in Ex. R8 that deceased was travelling on a motor-cycle as a pillion-rider and not riding the motor-cycle. Moreover, Exs. R12 and R14 are the photo copies which have been attested by the officer of the Insurance Companies. Nothing prevented the Insurance Companies to summon the original records itself, especially when there is an entry in Ex. R8 that deceased was travelling on a motor-cycle as a pillion-rider and not riding the motor-cycle. All these facts have been cumulatively taken into consideration and properly appreciated by the Tribunal while reaching the finding that the deceased was the pillion-rider on the motor-cycle and it is the second respondent who was riding the motor-cycle as on the date of the accident. Having said thus, the Tribunal also took into consideration the negligence on the part of the rider of the motor-cycle and assessed the contributory negligence to the extent of 25%. It is pertinent to note that the Insurance Company of the motor-cycle took the contention in the objection statement that the bus was slowed down on account of the road humps, the driver of the bus gives a clear go-by to the said contention and deposed before the Court that the bus was stationed at the time of accident. It is pertinent to note that there is a deviation on the part of the bus driver while deposing before the Court. The pleadings of the Insurance Company shows that somehow the Insurance Company is trying to escape from the liability. 22. Insofar as the decision referred to by the Insurance Companies regarding maintaining safe distance, there cannot be any dispute as to the legal principles enunciated in the said judgment. In fact the law requires that every driver of a motor vehicle is required to drive the motor vehicle cautiously 'expecting the unexpected'. When such being the case, some amount of negligence is also to be attributed to the rider of the motor-cycle which has been done by the Tribunal by attributing 25% contributory negligence to the rider of the motor-cycle. In view of the fact that the motorcycle has hit the hind portion of the bus and bus driver contending that he had halted the bus in the bus stand and it is the rider of the motor-cycle who hit the bus from the hind side. 23. There is no cogent evidence on record as to what exactly is the contributory negligence that could be attributable to the rider of the motorcycle or driver of the bus. 23. There is no cogent evidence on record as to what exactly is the contributory negligence that could be attributable to the rider of the motorcycle or driver of the bus. As such, when two vehicles are involved that too moving in the same direction, contributing 50% negligence to the rider of the motor-cycle as well as 50% to the driver of the bus, in the considered opinion of this Court would meet the ends of justice. Accordingly, Point Nos. 1 and 2 are answered. Re. Point No. 3: 24. Admittedly, there is no cogent or formal evidence placed on record to show the income of the deceased. In the inquest mahazar, it is mentioned that deceased is an Agriculturist, but in the claim petition, it has been mentioned that he was working as a Plumber. In the absence of any cogent material placed on record, the income of the deceased must be assessed notionally. This Court and the Lok Adalaths would normally assess the income at Rs. 8,000/- for an accidental claim of the year 2013. 25. Whereas the Tribunal has taken Rs. 6,000/- as the notional income. Deceased, at the time of death was aged about 35 years. As per National Insurance Company Limited Vs. Pranay Sethi and others, (2017) 16 SCC 680 and Magma General Insurance Company Limited Vs. Nanu Ram & Others, (2018) 18 SCC 130 and United India Insurance Co. Ltd., Vs. Satinder Kaur, the claimants are entitled to addition of 40% of income towards future prospects as against 50% ordered by the Tribunal. Having regard to the number of dependants, 1/4th of the adjudged & notional income is to be deducted towards the personal expenses of the deceased. Accordingly, on the head of loss of dependency, the claimants are entitled to a sum of Rs. 10,08,000/- as under: Rs. 8,400/- x 12 x 16 = Rs. 16,12,800/-. 26. The claimants are entitled to a sum of Rs. 30,000/- towards funeral expenses and loss of estate. Further, the claimants are entitled towards conventional heads to a sum of Rs. 40,000/- each as per Pranay Sethi, Magma and Satinder Kaur cases supra, in all Rs. 1,90,000/- on account of loss of consortium as well as loss of love and affection. 27. Learned Counsel for the claimant also pressed into service the judgment of the Hon'ble Apex Court in the case of N. Sivammjal and Others Vs. 40,000/- each as per Pranay Sethi, Magma and Satinder Kaur cases supra, in all Rs. 1,90,000/- on account of loss of consortium as well as loss of love and affection. 27. Learned Counsel for the claimant also pressed into service the judgment of the Hon'ble Apex Court in the case of N. Sivammjal and Others Vs. Managing Director, Pandian Roadway. Corporation and Another reported in 1985 ACJ 75 to impress upon this Court that the claimants are entitled for compensation on the head of pain and suffering. 28. What was the condition of the claimants during the treatment period is not spoken to by the claimants in their evidence nor there is any material on record to establish the same. Admittedly, the deceased was unconscious even when he was brought to NIMHANS Hospital at the first instance. Under such circumstances, the argument put forth on behalf of the Insurance Companies cannot be countenanced and is entitled for compensation of Rs. 18,02,800/- along with interest at the rate of 6% p.a., from the date of petition till realization. Accordingly, Point No. 3 is answered. 29. In view of the above discussion, following order is passed: ORDER The Appeal filed by the Insurance Company in MFA No. 5512/2015 is rejected. The Appeal filed by the Insurance Company in MFA No. 1123/2016 is allowed in part. MFA Cross Objection No. 109/2020 in MFA No. 5512/2015 is dismissed. MFA Cross Objection No. 108/2020 in MFA No. 1123/2016 is allowed in part. In modification of the award passed by the Tribunal, the claimants are entitled to a sum of Rs. 18,02,800/- with interest at the rate of 6% p.a., from the date of petition till realization against the compensation of Rs. 17,66,000/-. It is made clear that the claimants shall be entitled to 8% interest on the compensation awarded by the Tribunal. The adjudged compensation is ordered to be paid in the ratio of 50% each by the Insurance Company of the motor-cycle in MFA No. 1123/2016 and the Insurance Company of the bus-appellant in MFA No. 5512/2015. Apportionment and the deposits are in the same proportion as ordered in the Judgment and Award of the Tribunal. Amount in deposit if any, shall be transmitted to the Tribunal. The Insurance Companies are directed to deposit/pay the compensation within six weeks from the date of receipt of this order.