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2022 DIGILAW 1540 (KAR)

New India Assurance Company Limited v. Shyla

2022-12-01

H.T.NARENDRA PRASAD

body2022
JUDGMENT/ORDER 1. MFA Nos.11490/2012 and 11491/2012 are filed by the Insurance Company under Sec. 173(1) of the Motor Vehicles Act, (for short, 'the Act') and MFA Crob.Nos.4/2015 and 5/2015 are filed by the claimants under Order 41 Rule 22 of CPC being aggrieved by the judgment and award dtd. 6/10/2012 passed by the VI Addl. Judge, Court of Small Causes and MACT at Bengaluru City, in MVC Nos.1446/2009 and 1447/2009. Since the challenge is to the same judgment, both the appeals and cross objections are clubbed together, heard and common judgment is being passed. 2. Facts giving rise to the filing of the appeals and cross-objections briefly stated are that on 1/2/2009 at about 8.15 p.m. deceased Prakash was riding the motorcycle bearing registration No.KA-42/E-85 on Sathnur Kabbal road along with Anwar Pasha as a pillion rider. At that time, a tractor bearing registration No.KA-05/T-3702 and 1012 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident, the rider and pillion rider sustained grievous injuries and rider died on the way to the hospital. 3. The claimants filed petition under Sec. 166 of the Act seeking compensation. It was pleaded that they have spent huge amount towards medical expenses, conveyance, funeral expenses etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver. 4. On service of notice, the respondent Nos.1 to 3 appeared through counsel and respondent Nos.1 and 2 filed written statement in which the averments made in the petition were denied. The age, avocation and income of the claimant and the deceased and the medical expenses are denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, they sought for dismissal of the petition. 5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants in all examined 3 witnesses as PW-1 to PW-3 and got exhibited documents namely Ex.P1 to Ex.P14. On behalf of the respondents, one witness was examined as RW-1. Hence, they sought for dismissal of the petition. 5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants in all examined 3 witnesses as PW-1 to PW-3 and got exhibited documents namely Ex.P1 to Ex.P14. On behalf of the respondents, one witness was examined as RW-1. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries and Prakash succumbed to the injuries. The Tribunal further held that the claimants are entitled to compensation of Rs.6, 96, 280.00 and Rs.85, 000.00 respectively, along with interest at the rate of 8% p.a. and directed the Insurance Company to deposit 70% of the award amount and owner of the trailer to pay 30% of the award amount along with interest. Being aggrieved, these appeals and cross objections have been filed. 6. Sri H.S.Lingaraj, the learned counsel appearing for the Insurance Company has raised the following contentions: Firstly, the accident occurred due to the negligence of the rider of the motorcycle and the driver of the tractor was not negligent in causing the accident. But the Tribunal has erred in holding that the driver of the tractor has contributed 70% to the accident. Secondly, as per the sketch and mahazar it is clear that it is a head on collision. The deceased has also contributed to the accident. But the Tribunal has erred in holding that the driver of the tractor alone has contributed to the accident. Thirdly, the Insurance Company has examined the officer of the company as RW-1. He has categorically stated that the deceased who is the rider of the motorcycle was negligent in causing the accident. The driver of the tractor was not negligent in causing the accident. He has followed all the procedure of law and traffic rules. The Tribunal without considering the evidence of RW1 and without considering the IMV report - Ex.P3 and rough sketch - Ex.P4 has erred in holding that the driver of the tractor was negligent in causing the accident. Re.quantum in MFA No.11490/2012 & MFA Crob 4/2015 (MVC No.1446/2009) 7. He has followed all the procedure of law and traffic rules. The Tribunal without considering the evidence of RW1 and without considering the IMV report - Ex.P3 and rough sketch - Ex.P4 has erred in holding that the driver of the tractor was negligent in causing the accident. Re.quantum in MFA No.11490/2012 & MFA Crob 4/2015 (MVC No.1446/2009) 7. Firstly, even though the claimants claim that the deceased was earning Rs.7, 500.00 per month, the same is not established by the claimants by producing documents. Therefore, the notional income assessed by the Tribunal is on the higher side. Secondly, since the claimants have not established the income of the deceased, they are not entitled for compensation towards 'future prospects'. Thirdly, on appreciation of oral and documentary evidence and considering the age and avocation of the deceased, the overall compensation awarded by the Tribunal is on the higher side. Fourthly, in view of the law laid down by a Division Bench of this Court in the case of MS.JOYEETA BOSE AND OTHERS vs. VENKATESHAN.V AND OTHERS (MFA 5896/2018 and connected matters disposed of on 24/8/2020), the rate of interest awarded by the Tribunal at 8% p.a. is on the higher side. Re.quantum in MFA No.11491/2012 & MFA Crob 5/2015 (MVC No.1447/2009) 8. Firstly, considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the overall compensation awarded by the Tribunal is on the higher side. Secondly, in view of the law laid down by a Division Bench of this Court in the case of MS.JOYEETA BOSE AND OTHERS vs. VENKATESHAN.V AND OTHERS (MFA 5896/2018 and connected matters disposed of on 24/8/2020), the rate of interest awarded by the Tribunal at 8% p.a. is on the higher side. Hence, he sought for allowing the appeals filed by the Insurance Company and dismissing the cross-objections filed by the claimants. 9. On the other hand, Sri Sathish, learned counsel appearing for the claimants has raised the following contentions: Firstly, the specific case of the claimants is that the driver of the tractor was rash and negligent in driving the same and dashed against the motorcycle bearing registration No.KA-42/E-85. Due to the aforesaid accident the rider suffered injuries and succumbed to the injuries on the way to the hospital and the pillion rider suffered injuries. It is nobody's case that the accident has occurred by the trailer. Due to the aforesaid accident the rider suffered injuries and succumbed to the injuries on the way to the hospital and the pillion rider suffered injuries. It is nobody's case that the accident has occurred by the trailer. Secondly, even as per IMV report there is no damage caused to the trailer. This fact has been admitted by RW-1 who is an officer of the Insurance Company. The Tribunal, contrary to the materials and contrary to the evidence on record has held that the accident has occurred by using the tractor and trailer both. Therefore, the finding of the Tribunal that the owner of the trailer is liable to pay 30% of the compensation amount, is unsustainable. Thirdly, the deceased Prakash was riding the motorcycle on the left side of the road and the driver of the tractor drove the same in a rash and negligent manner and dashed against the motorcycle, due to which Prakash died and the pillion rider Anwar Pasha suffered injuries. Anwar Pasha has been examined as PW-2. He is an eyewitness to the accident. In his evidence, he has categorically stated that the accident has occurred due to the negligence of the driver of the tractor. Fourthly, immediately after the accident a complaint has been lodged against the driver of the tractor, FIR has been registered and after thorough investigation police have filed the charge sheet. Fifthly, it is very clear from the IMV report and rough sketch that the driver of the tractor was negligent in causing the accident. Re.quantum in MFA No.11490/2012 & MFA Crob 4/2015 (MVC No.1446/2009) 10. Firstly, the claimants claim that the deceased was earning Rs.7, 500.00 per month by working as a coolie. But the Tribunal is not justified in taking the monthly income of the deceased as only Rs.3, 000.00. Secondly, as per the law laid down by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. vs. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157 , the claimants are entitled to addition of 40% towards 'future prospects'. Thirdly, as per the law laid down by the Hon'ble Supreme Court in the case of PRANAY SETHI (supra), the claimants are entitled for Rs.15, 000.00 towards 'loss of estate' and Rs.15, 000.00 towards 'funeral expenses'. Fourthly, as per the judgment of the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. Thirdly, as per the law laid down by the Hon'ble Supreme Court in the case of PRANAY SETHI (supra), the claimants are entitled for Rs.15, 000.00 towards 'loss of estate' and Rs.15, 000.00 towards 'funeral expenses'. Fourthly, as per the judgment of the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. Vs. NANU RAM reported in 2018 ACJ 2782 , each of the claimants are entitled for compensation of Rs.40, 000.00 under the head of 'loss of love and affection and consortium'. Re.quantum in MFA No.11491/2012 & MFA Crob 5/2015 (MVC No.1447/2009) 11. Due to the accident the claimant has suffered grievous injuries. He has suffered lot of pain during treatment, he has to suffer the disability throughout his life. The overall compensation awarded by the Tribunal is on the lower side. Hence, he sought for allowing the cross-objections filed by the claimants and dismissing the appeal filed by the Insurance Company. 12. Heard the learned counsel appearing for the parties. Perused the judgment and award and the original records. 13. The case of the claimants is that on 1/2/2009 at about 8.15 p.m. deceased Prakash was riding the motorcycle bearing registration No.KA-42/E-85 on Sathnur Kabbal road along with Anwar Pasha as a pillion rider. At that time, a tractor bearing registration No.KA-05/T-3702 and 1012 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident, the rider and pillion rider sustained grievous injuries and rider died on the way to the hospital. 14. To prove the case, the claimant No.1, wife of the deceased Prakash was examined as PW-1, the pillion rider Anwar Pasha was examined as PW-2. Claimant No.1 in her statement has reiterated the averments made in the claim petition. Anwar Pasha who is the pillion rider as well as eyewitness to the accident has categorically stated that the accident has occurred due to rash and negligent driving of the driver of the tractor. To disprove the case of the claimants the respondents have not examined the driver of the tractor who is the best witness to say about the accident. 15. Even as per the IMV report, mahazar and rough sketch it is very clear that the accident has occurred due to the negligence of the driver of the tractor. To disprove the case of the claimants the respondents have not examined the driver of the tractor who is the best witness to say about the accident. 15. Even as per the IMV report, mahazar and rough sketch it is very clear that the accident has occurred due to the negligence of the driver of the tractor. The Tribunal, after considering the evidence of the parties and the materials available on record has rightly held that the driver of the tractor is negligent in causing the accident. 16. It is nobody's case that the accident has occurred due to the use of the trailer. The specific case of the claimants is that the tractor hit the motorcycle and the rider and pillion rider fell down and sustained injuries, rider succumbed to the injuries. Even as per the IMV report there is no damage to the trailer. Even RW-1 in his evidence has admitted that there is no damage caused to the trailer. It is very clear from the evidence of the parties and the materials available on record that the accident has occurred due to rash and negligent driving of the driver of the tractor. The Tribunal has erred in holding that the owner of the trailer is also liable to pay 30% of the compensation amount. That part of the finding is unsustainable and accordingly, it is set aside. The insurer of the tractor is liable to pay the entire compensation amount awarded by the Tribunal. Re.quantum in MFA No.11490/2012 and MFA Crob 4/2015 (MVC No.1446/2009) 17. It is not in dispute that Prakash died in the road traffic accident occurred on 1/2/2009 due to rash and negligent driving of the tractor bearing registration No.KA- 05/T-3702 by its driver. The claimants claim that deceased was earning Rs.7, 500.00 per month. But they have not produced any documents to prove the income of the deceased. In the absence of proof of income, the notional income has to be assessed. As per the guidelines issued by the Karnataka State Legal Services Authority, for the accident taken place in the year 2009, the notional income of the deceased has to be taken at Rs.5, 000.00 p.m. To the aforesaid income, 40% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in 'PRANAY SETHI' (supra). Thus, the monthly income comes to Rs.7, 000.00. Since there are 3 dependents, it is appropriate to deduct 1/3rd of the income of the deceased towards personal expenses and remaining amount, i.e., Rs.4, 667.00 has to be taken as his contribution to the family. The deceased was aged about 35 years at the time of the accident and multiplier applicable to his age group is 16'. Thus, the claimants are entitled to compensation of Rs.8, 96, 064.00 (Rs.4, 667.00*12*16) on account of 'loss of dependency'. In addition, the claimants are entitled to compensation of Rs.15, 000.00 on account of 'loss of estate' and compensation of Rs.15, 000.00 on account of 'funeral expenses'. Claimant No.1, wife of the deceased is entitled for compensation of Rs.40, 000.00 under the head of 'loss of spousal consortium'. In view of the law laid down by the Supreme Court in the case of 'MAGMA GENERAL INSURANCE' (supra), claimant Nos.2 and 3, children of the deceased are entitled for compensation of Rs.40, 000.00 each under the head of 'loss of parental consortium'. 18. Thus, the claimants are entitled to the following compensation: The claimants are entitled to a total compensation of Rs.10, 46, 064.00 as against Rs.6, 96, 280.00 awarded by the Tribunal. Re.quantum in MFA No.11490/2012 & MFA Crob 4/2015 (MVC No.1446/2009) 19. Considering the evidence of the parties and considering the documents produced the overall compensation awarded by the Tribunal at Rs.85, 000.00 is just and reasonable. In view of the law laid down by a Division Bench of this Court in JOYEETA BOSE (supra) the rate of interest awarded by the Tribunal in both the matters is reduced from 8% p.a. to 6% p.a. 20. In the result, the appeals and the cross- objections are disposed of. The judgment of the Claims Tribunal is modified. The Insurance Company is directed to deposit the compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment. In view of the order dtd. 12/11/2020 passed by this Court, the claimants are not entitled to interest for the delayed period of 549 days in filing the cross objections. The amount in deposit is ordered to be transferred to the Tribunal forthwith. In view of the order dtd. 12/11/2020 passed by this Court, the claimants are not entitled to interest for the delayed period of 549 days in filing the cross objections. The amount in deposit is ordered to be transferred to the Tribunal forthwith. In view of disposal of the main matters, all pending applications stand disposed of.