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Karnataka High Court · body

2023 DIGILAW 591 (KAR)

Baby Shedthi v. Vinaya

2023-04-13

RAJENDRA BADAMIKAR

body2023
JUDGMENT/ORDER K.S.MUDAGAL, J. - Challenging the award in MVC No.702/2012 passed by the Additional District and Sessions Judge and MACT Udupi sitting at Kundapura, the Insurer has preferred 4728/2014 and the claimants have preferred MFA No.5415/2014. 2. Claimant No.1 is the mother of claimants No.2 and 3. They filed MVC No.702/2012 claiming compensation for the death of Shekar Shetty. They contended that Shekar shetty was a bachelor and brother of claimant No.1 and he was residing with them and they were dependent on his income. They further claimed that on 26/1/2012 at 9.00 a.m. when Shekar shetty was proceeding near Avarse Co-operative society on Avarse-goli Angadi, respondent No.1 riding his motor cycle bearing registration No.KA 20 Y 1558 in rash and negligent manner so as to endanger the human life hit Shekar shetty and caused the accident. They claimed that Shekar Shetty was treated for the injuries suffered in the accident initially at Manipal Hospital and in Ajjarakadu Govt. Hospital for about three months as in-patient. Ultimately he died on 13/4/2012. They claimed that they have spent more than 2.5 lakhs for the medical expenses of Shekar shetty and Rs.50, 000.00 towards his funeral expenses, transportation etc. Respondent No.2 was the Insurer of the said vehicle during the relevant period. 3. Respondent No.1 did not contest the petition. Respondent No.2 contested the petition denying the occurrence of the accident in the manner alleged by the claimants, their relationship with the deceased and their dependency. Respondent No.2 denied the age, occupation, income of the deceased and its liability to pay the compensation. 4. In support of their case the claimants got examined PWs.1 to 3 and got marked Exs.P1 to 17. Respondent No.2 did not lead any evidence. On its behalf by consent the Insurance policy was marked as Ex.R.1. 5. The trial Court on hearing the parties by the impugned award held that the accident occurred due to the actionable negligence on the part of the first respondent and the consequential death of Shekar Shetty. The Tribunal held that the claimants were dependent on his income, considered the age of the deceased as 45 years, his income notionally at Rs.5, 000.00 per month, deducted one-fourth of his income for the personal expenses, applied 14 multiplier and awarded compensation of Rs.4, 20, 000.00 on the head of loss of dependency. The Tribunal held that the claimants were dependent on his income, considered the age of the deceased as 45 years, his income notionally at Rs.5, 000.00 per month, deducted one-fourth of his income for the personal expenses, applied 14 multiplier and awarded compensation of Rs.4, 20, 000.00 on the head of loss of dependency. Tribunal in all awarded compensation of Rs.4, 90, 000.00 on different heads payable by respondent No.2 with interest thereon at 6% p.a. as per the table below: Submissions of Sri A.M.Venkatesh, learned counsel for the Insurer: 6. Claimant No.1 claims to be the married sister of the deceased, claimants Nos.2 and 3 are her daughters. Therefore, they are not legal representatives of the deceased. As per PWs.1 and 2 the deceased had four other brothers, they are necessary parties to the claim petition. More over when there are other brothers, it cannot be said that claimant No.1 was depending on the income of the deceased alone. The claimants did not produce any piece of evidence to show that the deceased was living with them and they were his relatives and dependents. The Tribunal did not consider that aspect at all. Even assuming that the relationship is proved, PW.1's evidence shows that she had inherited the properties from her husband. Therefore, herself and her major children cannot be called as dependents of the deceased. At the most, they may be entitled to compensation on the head of loss of estate. PW.1 herself admits that her brothers have paid the medical expenses of the deceased. Therefore, the claimants are not entitled to compensation on the head of medical expenses. Admittedly, no evidence was adduced to show that immediate/proximate cause of death was the accident. Under such circumstances, the award of the Tribunal suffers inherent error and liable to be set aside. 7. In support of his submissions learned counsel for the Insurer relied on the following judgment of this Court: i) A.Manavalagan vs. A. Krishnamurthy and others, ILR 2004 KAR 3268. Submissions of Sri Pavan Chandra Shetty, learned counsel for the claimants: 8. The evidence of PW.1/claimant No.1 that she was related to the deceased is corroborated by the evidence of PW.2 her brother. The respondents did not lead any evidence to deny the relationship. The income assessed by the Tribunal is on the lower side. Submissions of Sri Pavan Chandra Shetty, learned counsel for the claimants: 8. The evidence of PW.1/claimant No.1 that she was related to the deceased is corroborated by the evidence of PW.2 her brother. The respondents did not lead any evidence to deny the relationship. The income assessed by the Tribunal is on the lower side. The compensation awarded on the head of loss of dependency and even on the other heads is on the lower side. Therefore, compensation has to be enhanced, claimants appeal deserves to be allowed and the appeal of the Insurer is liable to be dismissed. The other brothers of the deceased did not join the claimants to file the petition. The petition cannot be dismissed at the appellate stage for nonjoinder of necessary parties. 9. In support of his submissions, he relies upon the following judgments: i) The Manager, Oriental Insurance Co.Ltd. vs. Raju and others, (2021)4 KCCR 3550 . ii) New India Assurance Co.Ltd vs.Mini Badtol Dias, LAWS (KAR) 2011 - 6-116. 10. Having regard to the rival submissions and on examining the records, the points that arise for determination are: i) Whether the claimants have proved that they are the legal representatives/dependents of deceased Shekar Shetty ? ii) Whether the claimants have proved that Shekar Shetty died due to the injuries suffered by him in the accident ? iii) Whether the compensation awarded by the Tribunal is just one ? Analysis Reg. Point No.1 11. To invoke the jurisdiction of the Tribunal under Sec. 166 of the MV Act for compensation, the claimants must be the legal representatives/dependents of the victim of the motor accident. Therefore, the burden was on the claimants to prove that they were the legal representatives/dependents of the deceased. In this regard, it is material to reproduce Sec. 166(1)(c) of the MV Act, 1988 and the proviso to the same. "166. Application for compensation.-(1) An application for compensation arising out of an accident of the nature specified in sub-sec. Therefore, the burden was on the claimants to prove that they were the legal representatives/dependents of the deceased. In this regard, it is material to reproduce Sec. 166(1)(c) of the MV Act, 1988 and the proviso to the same. "166. Application for compensation.-(1) An application for compensation arising out of an accident of the nature specified in sub-sec. (1) of Sec. 165 may be made- a) xxxx b) xxxx c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or d) xxxx Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application." 12. The Hon'ble Supreme Court in para 11 of the judgment in Gujarat State Road Transport Corporation, Ahmedabad vs. Raman Bhai Prabhat Bhai and another, (1987)3 SCC 234 . has held that though the term 'legal representative' has not been defined in the Motor Vehicles Act, 1988 ('the Act' for short) the said expression is understood in almost the same way in which it is defined under Sec. 2(11) of the Civil Procedure Code, 1908. Sec. 2(11) defines the 'legal representative' as the person who in law represents the estate of the deceased and intermeddles with the estate of the deceased. The deceased Shekar shetty was a Hindu. Therefore, Sec. 8 of the Hindu Succession Act, 1956 applies. As per the Schedule to Hindu Succession Act, brother and sister fall in entry No.2 of Class II. 13. Therefore, the claimants had burden to establish that they are such legal representatives and secondly that they were the dependents of the deceased. To prove that, the claimants except their oral testimony did not lead any evidence. Though the claimants produced their Adhar Cards, they did not produce the Adhar card of the deceased. To show that deceased was living with them in their house, they could have produced Adhaar Card, Voters ID card of the deceased, their ration card and voters enumeration list. 14. Further, claimant No.1 as per the claim petition is the married sister of the deceased. Apart from the claimants according to PWs.1 and 2 deceased had four other brothers. To show that deceased was living with them in their house, they could have produced Adhaar Card, Voters ID card of the deceased, their ration card and voters enumeration list. 14. Further, claimant No.1 as per the claim petition is the married sister of the deceased. Apart from the claimants according to PWs.1 and 2 deceased had four other brothers. They were not impleaded in the claim petition. If the claimants were residing with the deceased, in the ordinary course they should have attended to him in the hospital and that could have been reflected in the case sheet/discharge summary. The claimants have absolutely no explanation why they have not produced such records. 15. Whether other side challenges the relationship or not, but the claimants have the duty to satisfy the Court about their relationship or dependency by adducing the evidence acceptable to the Court. In their own document inquest mahazar in which PW.2 has allegedly given statement, absolutely there is no mention about his dependent sister. The inquest mahazar in the column meant for who last saw the deceased does not refer to any of the relatives of the deceased. As against that, it states that the person who last saw the deceased was the doctor who treated him. Such suppression of medical records, ration card, voters enumeration list or any other document about the claimants being legal representatives/dependents of the deceased creates doubt. 16. Even before this Court, no material is produced to show that the claimants are the legal representatives/dependents of the deceased. This Court in the judgments in Veerappa and Another Vs Siddappa and Another, ILR 2009 KAR 3562. and Mahadevi vs. Shivaputra and another, MFA No.201689/2016 (DD 20/11/2020). taking judicial notice of the fact that there are rampant malpractices in the branch of claim petitions under the Act and the Police, Doctors, ambulance chasers some times even the Insurance companies in collusion with each other bringing fradulent claims to make wrongful gain, held that the Tribunal/Court shall assess the evidence independent of the charge sheet in criminal case or plea of guilt by the driver of the vehicle and the Court cannot be a party to such things. 17. Apart from the aforesaid facts, as per the claimants the deceased was survived by other brothers. 17. Apart from the aforesaid facts, as per the claimants the deceased was survived by other brothers. The proviso to Sec. 166 of the Motor Vehicles Act, 1988 which is extracted above clearly shows that, if the deceased was survived by any other legal representatives other than the claimants, it is mandatory for the claimants to implead them as respondents to the claim petition. The word 'shall' employed in the said proviso shows that the same is mandatory and not optional. It is true that the appeal cannot be dismissed on that ground. However, in the facts and circumstances and the law discussed above, it is necessary to remand the matter directing the claimants to produce documents in proof of they being legal representatives/dependents of the deceased and to implead the other brothers as respondents to the claim petition if they refuse to join as claimants. 18. When the fact of claimants' being legal representatives/dependents of the deceased itself was not established, the question of considering whether the accident occurred due to the actionable negligence of respondent No.1 and whether the compensation awarded is just or not, does not survive for further consideration. 19. Similarly whether the compensation has to be awarded considering the loss of dependency or only on the ground of loss of estate also does not survive for consideration unless and until the claimants prove that they are the legal representatives/dependents of the deceased. Therefore, the judgments relied on by the claimants' counsel in that regard do not advance their case. 20. For the aforesaid reasons, the appeal of the Insurer deserves to be allowed and the appeal of the claimants for enhancement is liable to be dismissed. Hence the following: ORDER i) MFA No.5415/2014 is dismissed. ii) MFA No.4728/2014 is partly allowed. iii) The impugned award is hereby set aside. iv) The matter is remanded to the Tribunal for fresh consideration. v) The Tribunal shall provide opportunities to the claimants to produce the evidence to show that they are the legal representatives/dependents of the deceased. vi) Further, the claimants shall implead the other legal representatives of the deceased to the petition as the claimants or as respondents. vii) On claimants adducing such evidence, the Tribunal shall give opportunity to the respondents also to adduce their evidence. To avoid delay the parties are hereby directed to appear before the Tribunal on 22/5/2023 without expecting any further notice. vii) On claimants adducing such evidence, the Tribunal shall give opportunity to the respondents also to adduce their evidence. To avoid delay the parties are hereby directed to appear before the Tribunal on 22/5/2023 without expecting any further notice. On such appearance of the parties, the Tribunal shall give opportunity to both of them and dispose of the matter as expeditiously as possible at any rate within four months from the date of appearance of the parties. If any of the parties fail to appear before the Tribunal, the Tribunal shall proceed in accordance with law. Registry shall transmit the amount in deposit, if any and the TCRs to the Tribunal forthwith.