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2023 DIGILAW 1301 (KAR)

Oriental Insurance Co Ltd v. Mahadevamma

2023-11-10

C.M.JOSHI

body2023
JUDGMENT 1. Being aggrieved by the judgment and award passed in MVC No.5/2015 dtd. 17/1/2018 by learned Senior Civil Judge & MACT, T.NARASIPURA, the insurance company has approached this Court in appeal in MFA No.2863/2018 and the petitioners have approached this Court in appeal in MFA No.5421/2018. 2. The parties would be referred to as per their ranking before the Tribunal. 3. The brief facts are as below: That on 23/12/2013 at 12.00 p.m. near Lakshmi theater, Mysuru city the deceased Shivakumar and Raju were boarding the Ravindra bus bearing Reg.No.KA-19-A2499 to reach Metagalli. At that time the driver of the bus drove the same at high speed and in a rash or negligent manner, as a result deceased Shivakumar had fallen down from the bus and sustained grievous injuries and succumbed to the injuries at the spot itself. 4. The deceased was hale and healthy prior to the accident and he was a plumber and doing agriculture and earning Rs.15, 000.00 per month. Petitioner No.1 is the wife and petitioner No.2 & 3 are children and petitioner No.4 is mother of the deceased. It is alleged that the accident in question had taken place due to rash or negligent driving of respondent No.1/ driver. Respondent No.2 is the owner and respondent No.3 is insurer of the offending vehicle. 5. Respondent No.2 has filed written statement denying all the averments made in the petition and called upon the petitioners to prove the same. He has admitted that the he is the owner of the offending vehicle. According to him as per the medical report, the deceased succumbed to the death due to consumption of alcohol and poison and in view of that, the petition is not maintainable. However he has contended that the offending vehicle has been insured with 3rd respondent which was in force as on the date of accident. As such he is not liable to pay the compensation. Accordingly he prays to dismiss the petition with cost. 6. The respondent No.3 has filed written statement denying all the material averments found in the petition and has called upon the petitioners to prove the same. It is admitted that 2nd respondent is the owner of the offending vehicle but it was not insured with 3rd respondent. Accordingly he prays to dismiss the petition with cost. 6. The respondent No.3 has filed written statement denying all the material averments found in the petition and has called upon the petitioners to prove the same. It is admitted that 2nd respondent is the owner of the offending vehicle but it was not insured with 3rd respondent. It is stated that the accident is caused due to rash or negligent act of the deceased Shivakumar himself as he fell down to the ground while boarding the moving bus and succumbed to the injuries. He had consumed alcohol at the time of alleged accident. The 1st respondent was not holding a valid and effective driving license to drive the offending vehicle as such the owner has violated the terms and conditions of the policy by entrusting the offending vehicle to the 1st respondent. Therefore, the 3rd respondent is not liable to indemnify the insured. Accordingly, the respondent No.3 prayed for dismissing the petition. 7. The Tribunal framed the appropriate issues and the petitioner No.1 was examined as PW1 and one witness was examined as PW2, Ex.P1 to Ex.P14 were marked and received in evidence. The official of the respondent No.3 insurance was examined as RW1 and Ex.R1 to Ex.R3 were marked during evidence. 8. After the hearing the arguments by both the sides, the Tribunal held that there is sufficient material to show that there was actionable negligence on the part of the driver of the bus and the contentions raised by the respondent No.3 were not proved and as such awarded the compensation of Rs.14, 53, 000.00 to the petitioners under the following heads. 9. Being aggrieved by the said judgment and award the respondent No.3 insurance company has come up in appeal in MFA No.2863/2018. The insurance company has contended that the PM report of the deceased show that the percentage of alcohol in the body of the deceased was 36.73 Mg per 100 ml of the blood and the permitted level is 30 mg per 100 ml blood and therefore he was under high influence of the alcohol much beyond the permitted limits and he was solely responsible for the accident. Secondly the insurance company contended that such contributory negligence by the deceased was not considered by the Tribunal. Secondly the insurance company contended that such contributory negligence by the deceased was not considered by the Tribunal. Third contention is that the Ex.R2 and Ex.R3 are not properly considered by the Tribunal and there was inordinate delay in preparing the spot mahazar and the one which was conducted on the very next day of the incident had given a different story of the accident. Therefore, it was contended that the Tribunal erred in fastening the entire liability on the respondent No.3-insurance company. 10. Being aggrieved by the said judgment, the petitioners have also approached this Court in appeal in MFA No.5421/2018 contending that the compensation awarded by the Tribunal is on the lower on side and it should have consider the compensation on the basis of the evidence led by them. Their main grievance is regarding the quantum of compensation. 11. The notice to respondent No.1 driver was dispensed with and on issuance of notice the respondent No.2 in both the appeals, who is the owner of the vehicle has appeared through his counsel. The petitioners who are arrayed as respondent No.1 to 4 in MFA No.2863/2018 have also appeared through their counsel. 12. Both the appeals, even though were slated for admission, were taken up for final disposed by consent of the parties. The Trial court records have been secured. 13. The learned counsel Sri. O.Mahesh appearing for the appellant-insurance company has contended that the quantity of alcohol in the blood of the deceased was 36.73% as may be seen from Ex.P8. Such percentage of the alcohol was beyond the permissible limits and therefore he was in inebriated condition and therefore there was contributory negligence on his part. He further contended that initially, on the basis complaint a case was registered by the police and the spot mahazar was conducted on the very next day. The said mahazar is produced by the respondent-insurance company at Ex.R2. He submits that the said mahazar mentioned at the deceased and another had boarded the bus at Harding circle and the deceased had froth in his mouth, therefore the conductor of the bus asked the deceased to get down at Harding circle and after getting down, the deceased has died. He submits that the said mahazar mentioned at the deceased and another had boarded the bus at Harding circle and the deceased had froth in his mouth, therefore the conductor of the bus asked the deceased to get down at Harding circle and after getting down, the deceased has died. Therefore, the story that the deceased was trying to board the bus at Lakshmi talkies bus stop as narrated in the petition as well as in the complaint are incorrect and as such there was no negligence on the part of the driver of the bus. He has contended that the subsequent spot mahazar was conducted on 15/7/2014 before filing the charge sheet and the said mahazar do not mention the above narrative as may be found in Ex.R2. Therefore there is manipulation by the police and the bus has been falsely implicated in the case. 14. Per contra, the learned counsel appearing for the respondent Nos.2 to 4 has contended that the narration as may be found in Ex.R2 is not at all found in the written statement of the respondent No.3-insurance company. He contends that initially the case was registered by Krishnaraja Police Station on the basis of the complaint filed by one Lokesh. The police had conducted the investigation to substantive extent and later it was found that the spot of the accident is within the limits of traffic police station and therefore the investigation was transferred to traffic police station. After receiving the records, the traffic police station have registered the case on 21/6/2014 and thereafter they conducted another spot mahazar as per Ex.P3. Therefore he submits that the charge sheet filed by the traffic police station needs to be considered by the Court, but not the spot mahazar conducted Krishnaraja Police Station as per Ex.R2. He also submits that in Ex.R2 the presence of any eye witness to the accident is not stated and the source of the information that the deceased and another Manjunath had boarded the bus at Harding circle bus stop was not disclosed in the said mahazar. Therefore, he contends that the finding of the Tribunal is justifiable. Further he contended that the compensation awarded by the Tribunal is on the lower side and fresh assessment be made regarding the compensation to be paid to the petitioners. 15. Therefore, he contends that the finding of the Tribunal is justifiable. Further he contended that the compensation awarded by the Tribunal is on the lower side and fresh assessment be made regarding the compensation to be paid to the petitioners. 15. A perusal of the evidence on record would show that the Krishnaraja Police registered a case as per in Crime No.261/2013 on 23/12/2013. The complaint by Lokesh mentioned that on 23/12/2013 at about 12.00 noon, one Manjunath called him and informed that the deceased Shivakumar had fallen down while boarding the bus as the driver of the bus had abruptly moved the bus. He had also informed that the Shivakumar died at the spot. Therefore the said Lokesh came to the spot and later on the same day at 8.45 p.m. he lodged the complaint which came to be registered by the Krishnaraja Police. The Krishnaraja Police commenced investigation and they sent the body of the deceased for the post mortem and viscera was collected and it was sent to the FSL. Thereafter, the cause of death was again obtained from the Medical Officer who had conducted the post mortem after perusal of the FSL. After almost completing the investigation, the Krishnaraja Police have transferred the case to the traffic police station stating that the incident had taken place near the Lakshmi talkies bus stop and it comes within the limits of the traffic police station and as such they are transferring the case. Evidently, the Krishnaraja Police had conducted the spot mahazar on the next date of the incident i.e. on 24/12/2013. 16. Thereafter, it appears the Investigation Officer of the traffic police station conducted the spot mahazar as per Ex.P3. It appears that he found the lacunae in Ex.R2 which was conducted by Krishnaraja Police. Obviously, Ex.R2 discloses that the source of the information that the deceased had boarded the bus at Harding Circle bus stop and he had froth in the mouth and therefore the conductor was frightened and he made the deceased to disembark at Lakshmi talkies bus stop and there he died, was not found and therefore a fresh mahazar was conducted. Obviously Ex.R2 does not mention the presence of the any of the eye witness to the incident. Obviously Ex.R2 does not mention the presence of the any of the eye witness to the incident. It is also relevant to note that the entire investigation papers even prior to the transfer of the case to traffic police station show that the accident happened when the deceased was trying to board the bus at Lakshmi talkies bus stop. Nowhere, there is any mention that the conductor of the bus had asked the deceased to get down from the bus at Lakshmi talkies bus stop. This information collected by the respondent-insurance company is obviously based on Ex.R2. The source of Ex.R2 is not available on record. Therefore it was necessary for the insurance company to examine the conductor of the said bus. The best evidence regarding the contents of the Ex.R2 was none other than the conductor of the bus owned by respondent No.2. No such effort is made by the insurance company to examine the conductor of the said bus. Obviously RW1 is an official of the insurance company and his evidence is only hearsay in this regard. 17. Moreover, the contention that may be found in Ex.R2 was not stated in the objections statement filed by the respondent No.2. Therefore, there is no pleading by the respondent No.2 to that effect and as such I do not find any reason to hold that the conclusions reached by the Tribunal in this regard are either perverse or arbitrary. The Tribunal has considered all these aspects and has come to the right conclusion by rejecting the narration in the Ex.R2. 18. The second contention of the insurance company is that the post mortem show that the percentage of the alcohol found in a body of deceased at the time of the post mortem was to the extent of 36.73 mg per 100 ml of the blood which is well beyond the permitted limits of 30 Mg per 100 ml. Therefore, it contends that there was contributory negligence on the part of deceased also. It is pertinent to note that the consumption of the alcohol by a passenger who is trying to board the bus cannot perse become a cause for contributory negligence. An overt act or omission on the part of the deceased has to be established in order to show that there was contributory negligence on his part. It is pertinent to note that the consumption of the alcohol by a passenger who is trying to board the bus cannot perse become a cause for contributory negligence. An overt act or omission on the part of the deceased has to be established in order to show that there was contributory negligence on his part. The actionable negligence requires that there should be some overt act or omission on the part of the deceased. Simply by consumption of the alcohol, it cannot be concluded that there was contributory negligence. This aspect was observed by a Division Bench of Calcutta High Court in the case of Mithu Rani Sardar v. United India Insurance Co. Ltd., 2005 SCC OnLine Cal 540. in para 26 it was observed as below: "26. An allegation of contributory negligence on the part of a person who is hit by a motor vehicle will however, remain an allegation if the alleged contributory negligence is not proved by evidence. Even if the person concerned is found to be under influence of drink at the time of the accident that by itself would not lead to an automatic inference that the person concerned was/is guilty of contributory negligence or that he contributed to the cause of accident as a matter of course. Let me give an example though very many examples are possible in this regard. A person after consuming alcohol at a place where drink is served either sits on the pavement in an inebriated condition or walks back home using the pavement and while sitting on the pavement or walking back home he is hit by a motor vehicle on the pavement itself because the driver of the vehicle drives the same negligently and/or rashly and because of such negligent driving of the driver of the motor vehicle the person is injured or fatally injured or he dies. Can it be said that since the person was under influence of drink when he was hit by the motor car he was guilty of contributory negligence or that he also contributed to the cause of the accident. The answer to that is a simple no, because even though the person was under influence of drink but since he was sitting or walking on the pavement he could not possibly be said to have contributed to the cause of accident as a pedestrian. The answer to that is a simple no, because even though the person was under influence of drink but since he was sitting or walking on the pavement he could not possibly be said to have contributed to the cause of accident as a pedestrian. A pedestrian is supposed to walk on the pavement whether under influence of drink or when he is perfectly sobar or in the normal state of mind. There is no causal connection with the fact of being under influence of drink and contributory negligence for causing accident on the part of a pedestrian in the above situation. It may be a different case when a driver of a vehicle is found to be driving under influence of drink as driving under the "influence of drink" is itself an illegal act and driving under" influence of drink" is prohibited by law as opposed to consuming alcohol in general. If a person drives a vehicle after taking alcohol and being under its influence, he is likely to expose others to serious risk of accident. In such a case maxim of "res ipsa loquitur" will apply with greatest force and rash and negligent driving would be presumed to be proved on the part of the driver of the motor vehicle." 19. Under these circumstances, the finding of the Tribunal that there was no such contributory negligence on the part of the deceased deserves to be upheld. The Tribunal has also appreciated the evidence of the PW2 who was an eye witness to the accident. In the cross examination of PW2, he has denied the narrative as found in the Ex.R2. 20. The learned counsel for the petitioners has contended that the deceased was plumber and the compensation awarded by the Tribunal is on the lower side. The Tribunal has considered the income of the deceased at Rs.7, 000.00 per month as there was no such proof of the income. It is to be noted that the incident had occurred at Mysuru. The guidelines issued by the KSLSA for the purpose of settlement of the disputes before the Lok-Adalat prescribed a notional income of Rs.8, 000.00 per month for the year 2013. In umpteen number of decisions, this Court has held that the notional income prescribed as per the guidelines of KSLSA are in a general conformity with the wages fixed under the Minimum Wages Act. In umpteen number of decisions, this Court has held that the notional income prescribed as per the guidelines of KSLSA are in a general conformity with the wages fixed under the Minimum Wages Act. Therefore, the notional income of the deceased has to be taken at Rs.8, 000.00 per month. 21. In view of the decision in the case of National Insurance Company Limited Vs. Pranay Sethi and others, AIR 2017 SC 5157 . the loss of dependency has to be calculated by adding 40% to the notional income as future prospects which comes to Rs.8, 000.00 + Rs.3, 200.00 = Rs.11, 200.00. Hence, the loss of dependency is calculated as Rs.11, 200.00 x 12 x 15 x 3/4 = Rs.15, 12, 000.00 by adopting a multiplier of 15 and deducting 1/4 towards the personal expenses of the deceased. Again in view of the decision of the Apex Court in the case of Pranay Sethi, a sum of Rs.48, 400.00 has to be awarded towards his loss of consortium, a sum of Rs.18, 150.00 towards the funeral expenses and a sum of Rs.18, 150.00 towards loss of estate. Hence, the petitioners are entitled for a sum of Rs.15, 96, 700.00 under the following heads: 22. The Tribunal has awarded interest at the rate of 9% per annum and there is no justification shown by the Tribunal and therefore the rate has to be reduced to statutory interest of 6% per annum on the enhanced compensation. Hence, the appeal filed by insurance company deserves to be dismissed and the appeal filed by the petitioners deserves to be allowed in part. Hence, the following: ORDER The MFA No.2863/2018 filed by the insurance company is hereby dismissed. The MFA No.5421/2018 filed by the petitioners is allowed in part. The petitioners are entitled for a sum of Rs.15, 96, 700.00 instead of Rs.14, 53, 000.00 along with interest at the rate of 6% per annum on the enhanced compensation from the date of petition till its deposit before the Tribunal. The amount in deposit before this Court in MFA No.2863/2018 is ordered to be transmitted to the Tribunal forthwith. The respondent No.3-insurance company is directed to deposit the balance of compensation amount before the Tribunal within a period of six weeks from today. The apportionment and fixed deposit as ordered by the Tribunal remain unaltered.