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2022 DIGILAW 1325 (KAR)

P. Rukmini v. Tata Aig General Insurance Company

2022-10-10

B.VEERAPPA, K.S.HEMALEKHA

body2022
JUDGMENT B.VEERAPPA,J. - These Miscellaneous First Appeals are filed against the common judgment and award dtd. 1/9/2016 made in MVC No.5424/2014 on the file of the Member, Principal Motor Accident Claims Tribunal, Bangalore awarding total compensation of Rs.9,97,252.00 and after deducting 25% towards the contributory negligence on the part of the deceased, holding that the claimants are entitled for compensation of Rs.7,48,000.00 with interest at the rate of 9% per annum from the date of petition till realization. 2. MFA No.8355/2016 is filed by the claimants for setting aside the contributory negligence on the part of the deceased and also for enhancement of compensation. MFA No.7842/016 is filed by the Insurance Company for setting aside the impugned judgment & award passed by the Tribunal on the ground that the insured car has been falsely implicated to secure the compensation from the Insurance Company illegally. 3. It is the case of the claimants that they are the wife and children of the deceased Padmanabhan. They have filed the claim petition under the provisions of 166 of the Motor Vehicles Act claiming compensation of Rs.30,00,000.00 contending that on 14/10/2014 at about 8.15 p.m. when the deceased Padmanabhan was crossing Hosur road near Patiyala Bank, Singasandra by observing traffic on the road, at that time, the driver of the car bearing Registration No.KA-01-MC4272 came from Kudlu gate towards Electronic city on Hosur road in a rash and negligent manner and dashed against the deceased. Due to the impact, the deceased fell down and sustained grievous injuries. Immediately after the accident, the deceased was shifted to Blossom hospital and then shifted to Sparsh hospital and on the way to the said hospital, he succumbed to the injuries. Post-mortem was conducted in the Victoria hospital and body was handed over to the family members of the deceased to perform the last rites and they have spent Rs.1,00,000.00 for funeral and obsequies ceremonies. It is further case of the claimants that as on the date of the accident, the deceased was hale and healthy and he was aged about 48 years and was working as weaver and was earning Rs.10,000.00 per month. Due to the demise of the deceased, the claimants have lost the only earning member of the family. It is further case of the claimants that as on the date of the accident, the deceased was hale and healthy and he was aged about 48 years and was working as weaver and was earning Rs.10,000.00 per month. Due to the demise of the deceased, the claimants have lost the only earning member of the family. The accident occurred due to the rash and negligent driving of driver of the offending vehicle and the jurisdictional Police have registered the case against him under the provisions of Ss. 279 and 304A of IPC and Sec. 134(A and B) and 187 of the Motor Vehicles Act. Thereby, the 1st respondent being the insurer and the 2nd respondent being the owner of the offending vehicle are jointly liable to pay compensation. 4. Inspite of service of notice, the 2nd respondent/owner remained absent and he was placed exparte before the Tribunal. The 1st respondent/Insurance company filed the written statement and denied the petition averments. However, admitted the issuance of the policy in favour of the 2 nd respondent and contended that the liability, if any is subject to the terms and conditions of the insurance policy. Further, the 2nd respondent has denied the negligence on the part of the insured car driver and contended that the accident has occurred due to the negligence on the part of the deceased and the owner of the car has to prove that the said offending vehicle was having valid Driving Licence, Permit, Insurance etc., and the driver of the car was having valid and effective Driving Licence. It is further contended that the accident has occurred due to the negligence on the part of the deceased himself and the offending vehicle was not at all involved in the accident. Therefore sought to dismiss the claim petition. 5. Based on the aforesaid pleadings, the Tribunal framed the following issues : 1. Whether the Petitioners prove that the deceased succumbed to injuries in a Motor Vehicle Accident that occurred on 14/10/2014 at about 8.15 p.m., Near Patiyala Bank, Hosur main Road, Singasandra Bangalore, within the jurisdiction of Electricity City Traffic Police Station on account of rash and negligent driving of the Car bearing registration No.KA-01-MC-4272 by its driver? 2. Whether the Respondent No.1 proves that the accident occurred on account of negligent act of the Deceased? 3. Whether the Petitioners are entitled for compensation? 2. Whether the Respondent No.1 proves that the accident occurred on account of negligent act of the Deceased? 3. Whether the Petitioners are entitled for compensation? If so, how much and from whom? 6. In order to prove their case, the claimants examined the claimant No.1 as PW.1 and got marked Ex.P1 to Ex.P12 and the respondents examined the Investigating Officer as RW.1 and one more witness as RW.2 and got marked Ex.R1 and Ex.R2. 7. The Tribunal considering the oral and documentary evidence on record, has answered Issue Nos.1 to 3 partly in the affirmative holding that deceased succumbed to injuries in a motor vehicle accident that occurred on 14/10/2014 on account of rash and negligent driving of the car bearing registration No.KA-01-MC-4272 by its driver as well as negligence on the part of the deceased, thereby awarded total compensation of Rs.9,97,252.00 and deducted 25% towards contributory negligence on the part of the deceased and held that the claimants are entitled for compensation of Rs.7,48,000.00. In the circumstances, MFA No.8355/2016 is filed by the claimants for setting aside the contributory negligence on the part of the deceased and also for enhancement of compensation and MFA No.7842/016 is filed by the Insurance Company for setting aside the impugned judgment & award passed by the Tribunal on the ground that insured car has been falsely implicated to secure the compensation from the Insurance Company illegally. 8. We have heard the learned counsel for the parties. 9. Sri D.S. Sridhar, learned counsel for the claimants contended that the impugned judgment and award passed by the Tribunal awarding total compensation of Rs.9,97,252.00 and after deducting 25% towards the contributory negligence on the part of the deceased, holding that the claimants are entitled to compensation of Rs.7,48,000.00, is erroneous and contrary to the material on record and cannot be sustained. He also contended that the Tribunal having observed that the offending vehicle has come to the edge of the road from the middle of the road based on Ex.P3/sketch, ought to have held entire negligence on the part of driver of the car, rather than fastening contributory negligence on the part of the deceased. Thus, the Tribunal erred in holding contributory negligence on the part of the deceased at 25% and on the driver of the offending car at 75%. Thus, the Tribunal erred in holding contributory negligence on the part of the deceased at 25% and on the driver of the offending car at 75%. He further contended that the Tribunal erred in assessing the income of the deceased at Rs.7,000.00 and the same is on the lower side when the evidence of PW.1/claimant No.1 clearly depicts that the deceased was a weaver by avocation and was earning Rs.10,000.00 per month during the relevant point of time. He further contended that the interest ought to have been awarded at the rate of 12% per annum instead of 9%. Therefore, he sought to set aside the contributory negligence on the part of the deceased and also for enhancement of compensation 10. Sri S.V. Hegde Mulkhand, learned counsel for the insurance company contended that the evidence on record clearly depicts that the insured Car bearing Registration No.KA01-MC-4272 has been falsely implicated to secure the compensation from the Insurance Company illegally. The Tribunal erred in holding that the car bearing Registration No.KA-01-MC-4272 was involved in the alleged accident and also fastening liability to pay compensation on the Insurance Company and the same is contrary to the evidence on record. The complaint, FIR, spot sketch, inquest report depict that an unknown four wheeler dashed against the deceased. The claimants have not examined before the MACT either the informant - Mr.Pradeep Kumar who is alleged to have chased the vehicle immediately after the accident or any other eye witness to prove that the insured car bearing Registration No.KA-01-MC-4272 was involved in the accident. He would further contend that the car has been falsely implicated and after investigation the jurisdictional Police filed the charge sheet. Though the Inspector has been examined as RW.1, he has turned hostile. Therefore, he sought to allow the appeal filed by the insurance company and dismiss the appeal filed by the claimants. 11. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that would arise for our consideration in these appeals are: i) Whether the claimants have made out a case for setting aside contributory negligence on the part of the deceased and to fasten the entire liability to pay compensation on the Insurance company ? ii) Whether the claimants have made out a case for enhancement of compensation ? ii) Whether the claimants have made out a case for enhancement of compensation ? ii) Whether the insurance company has made out a case that the insured car bearing No.KA-01- MC-4272 has been falsely implicated to claim compensation from the insurance company in the facts and circumstances of the case ? 12. It is the case of the claimants that on 14/10/2014 at about 8.15 p.m. when the deceased was crossing Hosur road near Patiyala Bank, Singasandra by observing traffic on the road, at that time, the driver of the car bearing Registration No.KA-01-MC-4272 came from Kudlu gate towards Electronic city on Hosur road in a rash and negligent manner and dashed against the deceased. On the other hand, the insurance company has taken a defence that the accident occurred due to the negligence on the part of the deceased himself and the offending vehicle was not involved in the accident. After investigation, the Police filed the charge sheet/Ex.P2 against the driver of the offending vehicle. Ex.P2/charge sheet and Ex.P3/sketch clearly depict that the deceased has crossed the road where there was no provision to cross the road or any zebra crossing as admitted by PW.1 in the evidence. When there is no any provision to cross the road that too in the night, the deceased also could have observed the vehicles which were passing in the said road. Therefore, the Tribunal rightly held that the deceased has also contributed to the accident to certain extent. Ex.P3/sketch depicts that the driver of the offending vehicle came to the edge of the road though it was moving in the middle of the road. Thereby, the Tribunal is justified in fastening 75% negligence on the part of driver of the offending vehicle and 25% negligence on the part of the deceased. 13. Though the learned counsel for the insurance company contended that the insured vehicle has been falsely implicated, the fact remains that neither such ground is taken in the written statement nor the respondent/insurance company has produced any material document to prove the false implication of the insured vehicle. Further, the charge sheet filed by the jurisdictional Police holding there was rash and negligence on the part of the offending vehicle was not challenged by any of the parties. Further, the charge sheet filed by the jurisdictional Police holding there was rash and negligence on the part of the offending vehicle was not challenged by any of the parties. The contention of the learned counsel for the claimants that the contributory negligence fastened on the deceased is erroneous, cannot be accepted in view of the material evidence Ex.P3/sketch, which clearly depict that the deceased crossed the road where there was no any provision to cross the road. The Tribunal based on the oral and documentary evidence on record, in particular Ex.P3/spot sketch rightly held that there is negligence on the part of driver of the offending vehicle as also negligence on the part of the deceased while crossing the main road. Therefore, the Tribunal rightly apportioned negligence on the part of driver of the offending vehicle at 75% and negligence on the part of the deceased at 25% and the same does not call for interference. 14. The contention that vehicle is not involved in the accident cannot be accepted as RW.1 has categorically stated in his evidence that he has come to the conclusion that the vehicle was involved in the accident based on the statement of one Pradeep Kumar and also the driver and owner of the vehicle. IMV report/Ex.P7 clearly depicts that the front left side head light was damaged and the vehicle was subjected to inspection within 14 days of the accident. There is no explanation on the part of the insurance company with regard to the damages caused to the offending vehicle. Though RW.1 has been examined by the insurance company, his evidence helps the case of the claimants. Based on the oral and documentary evidence on record, the Tribunal rightly held that the offending vehicle was involved in the accident. 15. The material on record clearly depicts that the deceased was aged about 48 years as on the date of the accident. It is the case of the claimants that the deceased was a weaver and earning Rs.10,000.00 per month and he was contributing his entire income to the family. Though the accident occurred on 14/10/2014, the Tribunal has taken only Rs.7,000.00 as income of the deceased, ignoring material evidence on record. The Tribunal ought to have taken the notional income at Rs.8,500.00 per month in terms of the guidelines issued by the Karnataka State Legal Services Authority. Though the accident occurred on 14/10/2014, the Tribunal has taken only Rs.7,000.00 as income of the deceased, ignoring material evidence on record. The Tribunal ought to have taken the notional income at Rs.8,500.00 per month in terms of the guidelines issued by the Karnataka State Legal Services Authority. As the deceased was 48 years, 25% to be added towards future prospects, thereby the total income of the deceased would be Rs.10,625.00 (Rs.8500.00 plus Rs.2,125.00). One-third of the income of the deceased has to be deducted towards personal expenses, in terms of the dictum of the Hon'ble Supreme Court in the case of Sarla Verma -vs- Delhi Transprot Corporation reported in (2009)6 SCC 121 , thereby the actual income of the deceased would be Rs.7,084.00 (Rs.10,625.00 minus Rs.3,541.00). The appropriate multiplier applicable to the age of the deceased is 13'. Therefore, the claimants are entitled for compensation of Rs.11,05,104.00 (Rs.7,084.00 x 12 x 13) towards loss of dependency. 16. The Tribunal proceeded to award compensation of Rs.1,50,000.00 towards loss of love and affection so also 'consortium'. The same is not in the light of the guidelines issued by the Hon'ble Supreme Court in the case of United India Insurance Company Limited -vs- Satinder Kaur Alias Satwinder Kaur and others { AIR 2020 SC 3076 } and Magma General Insurance Company Limited -vs- Nanu Ramu @ Chuhru Ram and others { (2018)18 SCC 130 } and therefore, the compensation awarded under the heads of 'loss of love and affection' and 'consortium' have to be re-assessed. 17. On re-assessing the entire material on record, we answer points raised in these appeals as under; i) The 1st point is answered in the negative holding that the claimants have not made out a case for setting aside contributory negligence on the part of the deceased and to fasten the entire liability to pay compensation on the Insurance company. ii) The 2nd point is answered in the affirmative holding that the claimants have made out a case for enhancement of compensation. iii) The 3rd point is answered in the negative holding that the insurance company has not made out a case that the insured car bearing No.KA-01-MC-4272 has been falsely implicated to claim compensation from the insurance company in the facts and circumstances of the case. 18. iii) The 3rd point is answered in the negative holding that the insurance company has not made out a case that the insured car bearing No.KA-01-MC-4272 has been falsely implicated to claim compensation from the insurance company in the facts and circumstances of the case. 18. After re-assessing the oral and documentary evidence on record, we are of the considered view that the claimants are entitled to just and proper compensation under the different heads as under: 19. Hence, in all the appellants/claimants are entitled for compensation of Rs.9,41,328.00 (Rupees nine lakhs fortyone thousand three hundred and twenty-eight only) as against Rs.7,48,000.00 awarded by the Tribunal. The enhanced compensation amount of Rs.1,93,328.00 shall carry interest at the rate of 6% per annum from the date of the petition till the date of realization. 20. In view the above, we pass the following: O R D E R 1. MFA No.8355/2016 filed by the claimants is allowed in part. 2. MFA No.7842/2016 filed by the Insurance Company is dismissed. 3. The impugned judgment and award passed by the Tribunal insofar apportioning negligence to the extent of 75% on the driver of the offending vehicle and 25% negligence on the part of the deceased, is affirmed. 4. The appellants/claimants are entitled for compensation of Rs.9,41,328.00 (Rupees nine lakhs forty-one thousand three hundred and twenty-eight only) as against Rs.7,48,000.00 awarded by the Tribunal. 5. The enhanced compensation of Rs.1,93,328.00 shall carry interest at the rate of 6% per annum from the date of petition till realization. 6. The respondent/insurance company is directed to deposit the enhanced compensation along with proportionate interest within eight weeks from the date of receipt of certified copy of the judgment. On such deposit, the claimants are entitled to withdraw the compensation. 7. The amount in deposit before this Court shall be transmitted to the concerned Tribunal along with the records. Office is directed to Award accordingly.