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Karnataka High Court · body

2022 DIGILAW 664 (KAR)

Vijayata v. Sachin Yallappa Usulkar

2022-05-25

KRISHNA S.DIXIT, P.KRISHNA BHAT

body2022
JUDGMENT P.KRISHNA BHAT J. - MFA No. 101253/2019 is filed by the claimants and MFA No.101435/2019 is by the owner of the offending vehicle in question challenging the judgment and award dtd. 12/2/2019 rendered in MVC No.1796/2016 on the file of the learned VI Addl. District Judge and Addl. MACT, Belagavi (for short, 'Tribunal'). 2. Brief facts insofar as they are relevant for the present purposes are that on 13/1/2016, deceased Vijay Jumnalkar, husband of the 1st claimant, father of the 2nd claimant and son of the 3rd claimant had been to Vijaya Nagar, Belagavi to meet one of his acquaintances and when both of them reached the road near Atawadkar Layout, Vijaya Nagar, offending Bolero vehicle bearing registration No.KA-22-P-1449 being driven by its driver in a rash and negligent manner and in high speed came from Sainandan Residency towards Atawadkar Layout and dashed against the deceased and dragged him to some distance and on account of the said impact, he died in the spot itself. 3. On the claim petition being filed, respondents entered appearance through their learned counsel. Respondents No.1 to 3 have filed their statement of objections denying the material averments made in the claim petition. It was mainly pleaded that respondent No.1 was the registered owner of the offending vehicle and it was being used by his friend respondent No.3by paying insurance premium and he was also holding valid driving license and while admitting the incident, it was attributed in the statement of objections to the sudden darting across the road by deceased himself. It was also pleaded that respondent No.2, who was a minor was not at all concerned with the accident as he was sitting near the driver as a family member of the respondents. 4. Respondent No.4-Insurance Company has filed its separate statement of objections specifically contending that the respondents had entrusted the vehicle to the minor respondent No.2 and without holding any valid driving license he was driving the same and caused the accident. In the said circumstances, respondent No.4-insurer had totally disclaimed its liability to pay the compensation. 5. During the trial, claimant No.1 was examined as PW1 and landlady of the deceased was examined as PW2 and one Ravindra V Gurav, who is stated to be the eye-witness was examined as PW3. Ex.P1 to Ex.P41 were marked for the claimants. In the said circumstances, respondent No.4-insurer had totally disclaimed its liability to pay the compensation. 5. During the trial, claimant No.1 was examined as PW1 and landlady of the deceased was examined as PW2 and one Ravindra V Gurav, who is stated to be the eye-witness was examined as PW3. Ex.P1 to Ex.P41 were marked for the claimants. Respondent No.1 in the claim petition was examined as RW1, Respondent No.3 was examined as RW2 and two other witnesses were examined as RW3 and RW4. Ex.R1 to Ex.R5 were marked for the respondents. 6. Learned MACT after hearing the learned counsel on both sides and appreciating the evidence produced on both sides passed the impugned award allowing the claim petition in part and awarding a compensation of Rs.7,74,088.00 with interest thereon at 6% per annum from the date of petition till date of realization. 7. Heard the learned counsel appearing for the parties and perused the Trial Court records carefully. 8. The owner's appeal in MFA No.101435/2019 is liable to be rejected on the following grounds agreeing with the findings of the learned MACT: (a) The accident took place on 13/1/2016 at around 7:00 of the clock and at around 9:00 of the clock FIR has been lodged by PW-3 specifically mentioning that the minor - Varun, who happens to be the second respondent, was driving the offending vehicle. This FIR was challenged by the owner of the offending vehicle in a Criminal Petition vide Ex.P40. This Court dismissed the Criminal Petition vide Ex.P41, wherein, paragraph No.7 reads as under: "7. I have perused the grounds urged in the petition, FIR, Complaint and also the other materials i.e., charge sheet filed, copy of which is also produced by the counsel for the petitioner. This Court dismissed the Criminal Petition vide Ex.P41, wherein, paragraph No.7 reads as under: "7. I have perused the grounds urged in the petition, FIR, Complaint and also the other materials i.e., charge sheet filed, copy of which is also produced by the counsel for the petitioner. Looking to the materials placed on record the first and foremost contention of the counsel for the petitioner herein as the police were present at the spot immediately after the incident and came to know about happening of such incident there information, it is his first information and not the complaint lodged by the complainant regarding this aspect for the purpose of appreciation even it is assumed by this Court at this stage he was already informed to the police about the incident and complaint is filed subsequently, even in that case also at the most complaint will became the statement of the complainant recorded under Sec. 161 of Cr.P.C during the investigation. But further it is the case of the prosecution that, complainant personally witnessed the accident and the complainant has taken the names of two other persons i.e. CW-6 and 7 and in his further statement he added one more person Rahul who is also present at the spot. I have perused the statement of these three witnesses wherein they have stated constantly that they have seen accused/petitioner driving the vehicle in rash and negligent manner and dashed to the Vijay when that is so court has exercising jurisdiction under Sec. 482 of Cr.P.C. cannot assume the role of the Court below, this court has to see on the basis of the material collected by the prosecution placed before the trial Court, whether the materials makes out a prima-facie or it is totally groundless case of the prosecution, but considering the materials placed on record in this case, particularly in this case it cannot be said that, there is no prima-facie material as against the petitioner or it cannot be said that case of the prosecution is totally groundless. Hence the petitioner has not made a case to quash the criminal proceedings for invoking Sec. 482 of Cr.P.C in this case. Accordingly, petition is hereby rejected." (b) A Co-ordinate Bench of this Court said that there was a prima facie case worthy of trial. Hence the petitioner has not made a case to quash the criminal proceedings for invoking Sec. 482 of Cr.P.C in this case. Accordingly, petition is hereby rejected." (b) A Co-ordinate Bench of this Court said that there was a prima facie case worthy of trial. This itself tilts the balance against the owner, though the accused has been acquitted after the trial inasmuch as it is not a honourable acquittal. (c) The Contention of the owner that PW-3 in his cross-examination has admitted about he having not seen the person, who drove the offending vehicle on the eventful day, will not come to his rescue regard being had to the totality of the evidentiary material available on record and an inference otherwise can be drawn there from. (d) Even though the insurance official being examined as RW-4 also would not come to the rescue of the owner since admittedly he was not an eyewitness. Added, it was specifically suggested on behalf of the owner to RW-4 that he had no personal knowledge of the circumstances that resulted into an accident. The law is to the effect that the suggestion ordinarily binds the suggestor. (e) The vehement contention of the owner that RW-4 admitted about a discreet enquiry done by the Company and the enquiry report having not been produced before the MACT. When it is not the case of the owner that those who conducted an enquiry had examined the eyewitnesses or that they had the first hand account of the accident, non- production of the said report cannot come to the rescue of the owner. (f) It is not the case of the owner put to RW-4 that in the discreet enquiry report, it is revealed that the minor Varun was not driving the offending vehicle but someone else was doing so. Therefore, non- production of the enquiry report pales into insignificance. Added, the owner had not moved any supporting application before the MACT, for summoning of the said report nor has he offered any explanation herein for not making one. (g) It has been consistently reiterated by the Apex Court that the Police papers coming into existence in discharge of public duties will bear a prima facie value of the picture emerging there from at least for the limited purpose of adjudging MVC cases. In the above circumstances, owner's appeal being unworthy of merits the same is rejected. (g) It has been consistently reiterated by the Apex Court that the Police papers coming into existence in discharge of public duties will bear a prima facie value of the picture emerging there from at least for the limited purpose of adjudging MVC cases. In the above circumstances, owner's appeal being unworthy of merits the same is rejected. 9. Learned counsel for the owner vehemently contends that in the Aadhar Card Acknowledgement at Ex.P28, the date of birth of the deceased is mentioned as 26/2/1960 and therefore he was aged 56 years at the time of accident. This is bit difficult to accept inasmuch as going by the norms enacted by the Indian Majority Act, 1975, it is only the completed years that are to be looked at for adjudging the age of the person concerned. Going by that, the deceased was 55 years, the accident having taken place on 13/1/2016. Therefore, the multiplier adopted by the MACT as 11 cannot be faltered. Even the post mortem report at Ex.P11 shows that the deceased was 55 years old at the time of accident. In this regard, we agree with the finding of the MACT. 10. In regard to the appeal at the instance of the claimants/appellants is concerned, the contention of the learned counsel for the appellants is to the effect that the compensation awarded by the learned Tribunal is on the lower side. It is equally vehemently contended by the learned counsel for the respondent/owner of the offending vehicle in question that the compensation awarded by the Tribunal is just and reasonable and therefore, no interference with the quantum of compensation awarded by the learned Tribunal is called for. 11. Learned Tribunal has arrived at a conclusion that the deceased Vijay Jumnalkar was earning a monthly income of Rs.8,000.00 per month. The learned Tribunal has come to the said conclusion on the premise that the income of the deceased has not been conclusively established and therefore, it was left with no choice but to assess the same on the basis of a rough and ready notional income of the deceased. There is no dispute about death of the deceased on account of accident which had taken place on 13/1/2016. Even as per chart prepared by the Karnataka State Legal Services Authority, notional income should have been taken at Rs.8,750.00 per month. There is no dispute about death of the deceased on account of accident which had taken place on 13/1/2016. Even as per chart prepared by the Karnataka State Legal Services Authority, notional income should have been taken at Rs.8,750.00 per month. However, we are not inclined to go by the said chart on account of the fact that the documents produced by the claimants would show that the deceased was paying a sum of Rs.8,800.00 per month towards maintenance amount of his mentally challenged son Pratik V Jumnalkar, who was lodged in an asylum run by Association of Parents of Mentally Retarded Children (Ex.P20). Further, the claimants have also examined PW2 and produced exhibits to show that the deceased was paying monthly rent of Rs.5,000.00 to the landlady for their rented house. Similarly, the claimants have produced several phone bills to show that the deceased was having mobile phone for the purpose of his business and he was paying phone bills regularly. Similarly, the claimants have also produced LPG bills. These clearly demonstrate that the deceased was spending at least Rs.15,000.00 per month towards asylum expenses, rental expenses, phone bills and LPG expenses. In that view of the matter, it is reasonable to fix the monthly income of the deceased at Rs.21,000.00 per month. As could be seen from Aadhar acknowledgement letter (Ex.P28), the deceased was born on 26/2/1960 and he had died on 13/1/2016. Therefore, he was aged 55 years as on the date of the accident. Accordingly, learned Tribunal has taken the multiplier of the deceased at 11. We are in agreement with the same. 1/3rd of the monthly income of the deceased has to be deducted towards personal expenses of the deceased. By following decision of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & others, (2017) 16 SCC 680 , 10% of the monthly income of the deceased has to be added towards loss of future prospects. Accordingly, loss of dependency is required to be re-computed as follows: Rs.21,000.00 + 10% - 1/3 x 12 x 11 = Rs.20,32,800.00 12. The deceased has left behind widow, mentally challenged son and his old aged mother. Therefore, Rs.1,20,000.00 is required to be awarded towards spousal, parental and filial consortium respectively at the rate of Rs.40,000.00 each. Further, a sum of Rs.30,000.00 is required to be awarded under the conventional heads viz. The deceased has left behind widow, mentally challenged son and his old aged mother. Therefore, Rs.1,20,000.00 is required to be awarded towards spousal, parental and filial consortium respectively at the rate of Rs.40,000.00 each. Further, a sum of Rs.30,000.00 is required to be awarded under the conventional heads viz. funeral expenses and loss of estate. 13. Accordingly, the claimants are entitled to be awarded total compensation of Rs.21,82,800.00 as against Rs.7,74,088.00 awarded by the Tribunal. Thus, the claimants are entitled to an enhanced compensation of Rs.14,08,712.00 (Rs.21,82,800.00 Rs.7,74,088.00). The enhanced compensation shall carry interest at the rate of 6% per annum from the date of petition till date of realization. A direction to the respondent/insurance company is issued to deposit the compensation amount with interest thereon as directed herein above before the learned MACT within six weeks from today and thereafter recover the same from the owner/appellant in the same proceedings under the principle of "Pay and Recover." 14. Accordingly, the appeal filed by the owner is dismissed and the appeal of the claimants is allowed in part. The impugned judgment and award of the Tribunal is modified to the above extent. 15. The amount in deposit along with original records be transmitted to the Tribunal forthwith for disbursement. Rest of the judgment and award of the Tribunal remains intact. No costs.