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2022 DIGILAW 1226 (KAR)

Manjunatha v. M. D. lokesha

2022-09-16

N.S.SANJAY GOWDA

body2022
JUDGMENT 1. The claimant is in appeal challenging the dismissal of the claim petition. 2. The Tribunal has dismissed the claim petition on the ground that the accident occurred on 30/10/2006 and the police, after investigation of a crime, had submitted a 'B' report and nearly two years thereafter, the son of the deceased had initiated a proceedings under Sec. 200 Cr.P.C., on the basis of which, a crime was registered against the owner and the driver of the autorickshaw and they were also subsequently charge sheeted and these undisputed facts clearly prove that the autorickshaw in question was implicated only for the purpose of securing compensation. 3. It is strongly contended by Sri Ashok Patil, learned counsel for the Insurer that the Tribunal was justified in recording a finding that the involvement of the autorickshaw was not proved and therefore, the judgment of the Tribunal was correct. He also sought to highlight the fact that the son of the deceased did not even state in the private complaint as to the source of his knowledge to implicate the autorickshaw and therefore, this was also a strong factor to uphold the judgment of the Tribunal. 4. Learned counsel for the claimant, on the other hand, contended that the occurrence of the accident was not all in dispute. It was undisputed that the deceased was immediately admitted to Mc Gann Hospital at Shivamogga and a crime was also registered by the police. He, therefore, submits that when the occurrence of the accident arising out of the use of a motor vehicle was not in dispute, the investigation conducted by the police subsequently on the basis of a private complaint which revealed the involvement of autorickshaw in question cannot be doubted. 5. It was highlighted that neither the owner nor the driver of the autorickshaw who were arrayed as respondents 1 and 2 did not even contest the assertion of the claimant that the autorickshaw was involved in the accident. He submitted that this amounted to a categorical admission on the part of the owner and the driver of autorickshaw and in the light of this admission, the Insurer, who is only an indemnifier, cannot plead that there was no accident. 6. He submitted that this amounted to a categorical admission on the part of the owner and the driver of autorickshaw and in the light of this admission, the Insurer, who is only an indemnifier, cannot plead that there was no accident. 6. The Tribunal has refused to accept the contention of the claimant that the autorickshaw was involved solely on the ground that there was an inordinate delay of more than 2 years in filing of the complaint and the charge sheet. 7. The son of the deceased who had lodged a private complaint was cross-examined at length by the Insurer. During the course of his cross-examination, certain suggestions were made, to which, he has responded as follows: 8. As could be seen from this line of questioning, it was the definite case of the Insurer that the filing of the claim petition was a result of collusion between Narasimha Murthy, Rudresha and son of the deceased. This indicates that the Insurer was aware or at least believed that there was some conspiracy between three of them in the matter of filing a claim petition. When this was the line of questioning, as a natural consequence, the Insurer ought to have examined the said Narasimha Murthy and Rudresha and established this allegation of collusion and fraud. The Insurer by merely throwing an allegation against the claimant about collusion cannot expect an inference that there was collusion. In order to establish collusion, not only is the Insurer liable to plead, but it would also be required to prove in a manner acceptable in law. In the instant case, there is absolutely no evidence forthcoming from the Insurer to establish this allegation of collusion. Having regard to the fact that the owner and the driver of the autorickshaw, who were arrayed as respondents in the claim petition, did not choose to contest the assertion of the claimant that their vehicle was involved in the accident, in my view, it will have to be assumed that an accident did occur involving the autorickshaw and the deceased. 9. As stated above, the occurrence of the accident as a result of the use of the motor vehicle stood established by registration of a criminal case and also immediate admission of a deceased in a Government Hospital. 10. 9. As stated above, the occurrence of the accident as a result of the use of the motor vehicle stood established by registration of a criminal case and also immediate admission of a deceased in a Government Hospital. 10. Learned counsel for the Insurer, however, relied upon the decisions rendered by this Court in the case of VEERAPPA & ANOTHER Vs. SIDDAPPA & ANOTHER - ILR 2009 KAR 3562 and in the case of BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED Vs. B.C.KUMAR & ANOTHER - ILR 2009 KAR 2921 to contend that fraud and justice never dwell together and any attempt on the part of the owner to collude with the claimant with the hope of saddling the Insurance Company of liability will have to be strongly repelled by the Courts. 11. As stated above, in order to prove fraud or collusion, the Insurer would have to necessarily plead the manner in which the fraud was practiced and it has to be established with cogent evidence. Merely using the words 'fraud' or 'collusion' would not lead to an inference that fraud has been committed. Thus, the above decisions have no application to the instant case. 12. As far as compensation is concerned, though there is no determination by the Tribunal, since the accident is of the year 2006, in my view, it would be appropriate to determine the income, since there is no serious question of fact to be determined. The deceased was stated to be 70 year old and it was contended that he was a tailor by profession and was earning Rs.5, 000.00 per month. However, there is no credible evidence to accept this contention. In such cases, it would be appropriate to adopt the income determined by the Karnataka State Legal Services Authority, which, for the year 2008, would be Rs.4, 500.00 and for the years preceding 2008, a sum of Rs.500.00 would have to be deducted for each year from Rs.4, 500.00, which makes his notional income to be Rs.3, 500.00 for the year 2006. 13. As the deceased was aged 70 years, there is no question of adding future prospects and a multiplier of 5 would have to be applied. 13. As the deceased was aged 70 years, there is no question of adding future prospects and a multiplier of 5 would have to be applied. Consequently, towards loss of dependency, the claimants are entitled for Rs.1, 05, 000.00 (Rs.3, 500.00 X 12 X 5 - 50%) after deducting 50% towards personal expenses since all the claimants/children of the deceased are majors. 14. The claimants i.e., the appellant and respondents 4 to 7 herein, being the children, each would be entitled to Rs.44, 000.00 towards loss of consortium apart from Rs.33, 000.00 under conventional heads. 15. Thus, the claimants are entitled to the following sums as compensation along with interest at 6% p.a. from the date of petition till its realisation: S. No. Particulars Amount in (Rs.) 1. Loss of dependency 1,05,000/- 2. Loss of consortium 2,20,000/- 3. Conventional heads 33,000/- Total 3,58,000/- 16. The Insurer is directed to deposit the amount of compensation awarded within a period of eight weeks from the date of receipt of a certified copy of this judgment. 17. On such deposit, the claimants i.e., the appellant and respondents 4 to 7 herein would be entitled to withdraw the same.