Karnataka High Court
M/S Bharti Axa General Insurance Co Ltd vs Smt. N Laxmi @ Laxmamma on 9 December, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.112/2014 (MV-D)
C/W
M.F.A.NO.111/2014 (MV-D)
IN M.F.A.NO.112/2014:
BETWEEN:
BHARTI AXA GIC LTD.,
PRIDE QUADRA,
NO.30, 2ND FLOOR,
HEBBAL ROAD,
BANGALORE-560024.
REP. BY ITS MANAGER. ...APPELLANT
(BY SRI H.N. KESHAVA PRASHANTH, ADVOCATE)
AND:
1. SMT. VARALAXMI,
W/O LATE RAJAPPA,
NOW AGED ABOUT 42 YEARS.
2. MURALI,
S/O LATE RAJAPPA,
NOW AGED ABOUT 23 YEARS.
3. MADHU,
S/O LATE RAJAPPA,
NOW AGED ABOUT 21 YEARS.
4. NAGARAJ,
S/O LATE RAJAPPA,
NOW AGED ABOUT 19 YEARS.
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5. KUM. MANJULA,
D/O LATE RAJAPPA,
NOW AGED ABOUT 17 YEARS.
SINCE MINOR REP. BY HER MOTHER,
VARALAXMI AS GUARDIAN.
ALL ARE R/AT HEGGONDAHALLI
(CHIKKAVADEPURA), GUNJUR POST,
SARJAPURA HOBLI,
ANEKAL TALUK-562 106.
6. MR.ANANDAN,
NO.337, SIGEHALLI,
KADUGODI POST,
WHITEFIELD,
BANGALORE - 560 066. ...RESPONDENTS
(BY SRI M.H. PRAKASH, ADVOCATE FOR R1 TO R3 AND R5,
R5 IS MINOR AND REP BY R1,
R4 IS SERVED,
VIDE ORDER DATED 06.01.2022,
NOTICE TO R6 IS HELD SUFFICIENT)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 03.10.2013 PASSED
IN MVC NO.2321/2011 ON THE FILE OF THE XVI ADDITIONAL
JUDGE & XL ACMM, MACT, COURT OF SMALL CAUSES,
BANGALORE, AWARDING COMPENSATION OF Rs.5,39,000/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.
IN M.F.A.NO.111/2014:
BETWEEN:
M/S BHARTI AXA GENERAL INSURANCE CO. LTD.,
PRIDE QUADRA, NO.30, II FLOOR,
HEBBAL ROAD,
BANGALORE - 560 024.
REP. BY ITS MANAGER. ...APPELLANT
(BY SRI H.N. KESHAVA PRASHANTH, ADVOCATE )
3
AND:
1. SMT. N. LAXMI @ LAXMAMMA,
W/O LATE ASHWATHAPPA H.M.,
NOW AGED ABOUT 28 YEARS.
2. CHINAMMA,
W/O MUNIYAPPA,
NOW AGED ABOUT 57 YEARS.
3. VIDYA SHREE,
D/O LATE ASHWATHAPPA,
NOW AGED ABOUT 12 YEARS.
4. MADHU SHREE,
D/O LATE ASHWATHAPPA,
NOW AGED ABOUT 7 YEARS.
R1, 3 AND 4 ARE R/AT HEGGONDAHALLI,
(CHIKKAVADEPURA), GUNJUR POST,
SARAJAPURA HOBLI,
ANEKAL TALUK-562 106.,
R3 R/AT NO.272, 13TH MAIN ROAD,
MATHIKERE,
BANGALORE - 560 025.
R3 AND R4 ARE MINORS
HENCE REPRESENTED BY THEIR MOTHER
LAXMI N. AS GUARDIAN.
5. MR. ANANDAN,
NO.337, SIGEHALLI,
KADUGODI POST,
WHITEFIELD,
BANGALORE-560066. ...RESPONDENTS
(BY SRI M.H. PRAKASH, ADVOCATE FOR R1 TO R4,
R3 AND R4 ARE MINORS AND HENCE
REPRESENTED BY R1,
VIDE ORDER DATED 12.09.2014,
NOTICE TO R5 IS HELD SUFFICIENT)
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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 03.10.2013 PASSED
IN MVC NO.2320/2011 ON THE FILE OF THE XVI ADDITIONAL
JUDGE & XL ACMM, MACT, COURT OF SMALL CAUSES,
BANGALORE, AWARDING COMPENSATION OF Rs.6,47,000/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.
THESE M.F.As. COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the respective learned counsel appearing for the parties in both the appeals.
2. These two appeals are filed by the Insurance Company challenging the judgment and award dated 03.10.2013, passed in M.V.C.Nos.2321/2011 and 2320/2011, respectively on the file of the XVI Additional Judge and XL ACMM, MACT, Court of Small Causes, Bangalore ('the Tribunal' for short) questioning the liability on the ground that the vehicle was not involved in the accident.
3. The factual matrix of the case of the claimants before the Tribunal is that on 21.12.2010 at about 9.15 p.m., the deceased Ashwathappa H.M. was proceeding in Pulsar motor bike as a pillion rider, which was ridden by another deceased Rajappa slowly and cautiously on the left side of the road from 5 Dommasandra towards Hegondanalli Village and when they reached near Chikkavaderapura, at that time, the vehicle crane bearing registration No.KA-51-MA-2793 driven by its driver in a rash and negligent manner with high speed came from opposite direction and dashed against the petitioner's motorbike. Due to the impact, both have sustained grievous injuries and Ashwathappa was taken to Vydehi Hospital for treatment and he died on account of accidental injuries. Rajappa succumbed to the injuries at the spot. Hence, the claimants have made claim before the Tribunal.
4. It is the case of the claimants in M.V.C.No.2320/2011 that the deceased Ashwathappa was aged about 30 years as on the date of the accident and was working as house keeping at Prestige Constructions and earning Rs.10,000/- per month and he was contributing the entire income to the family. The claimants in M.V.C.No.2321/2011 contended that the deceased was running a provision store and earning Rs.25,000/- per month and hence the claimants made the claim. In pursuance of the claim petitions, notices were duly served and respondent Nos.1 and 2 appeared through their respective counsel and contested the matter. The Insurance 6 Company filed the written statement admitting the issuance of the policy and contended that liability is subject to the terms and conditions of the policy. The Insurance Company denied the contention that the offending vehicle was involved in the accident. It is also contended that the driver was not having valid and effective driving licence as on the date of the accident. The respondent No.2 filed his common written statement in both the cases, wherein it is contended that the deceased was riding Pulsor bike by drinking alcohol and with unstable mind and hence accident occurred due to his negligence. The accident occurred solely due to the rash and negligent driving of the driver of the crane vehicle was denied. However, contended that as on the date of the accident, policy was in force.
5. The claimants in order to substantiate their claim examined two witnesses as P.W.1 and P.W.2 and got marked the documents at Exs.P.1 to 16. On the other hand, the respondent Insurance Company examined one official witness as R.W.1 and R.W.2 Investigating Officer and got marked the documents at Exs.R.1 to 4. The Tribunal after considering both oral and documentary evidence placed on record allowed the claim petitions granting compensation of Rs.6,47,000/- in 7 M.V.C.No.2320/2011 and Rs.5,39,000/- in M.V.C.No.2321/2011 and comes to the conclusion that the Insurance Company has not proved the implication of the vehicle and non-involvement of the vehicle in the accident. Hence, these two appeals are filed by the Insurance Company.
6. The main contention of the Insurance Company in these two appeals is that the offending vehicle was not involved in the accident and the finding of the Tribunal that the insured crane was involved in the accident is not based on any proper appreciation of evidence. The Tribunal ought to have seen that as per the FIR, some unknown vehicle has caused the accident and not the insured crane. Hence, the Tribunal ought to have held that the insured crane is not involved in any accident and ought to have dismissed the claim petitions. The Tribunal ought to have seen that the police have filed the charge-sheet against the accused driver based on the FSL report. The FSL report, which is produced and marked indicates that article Nos.3 and 4, which were sent for examination do not match and hence it is clear that the insured crane is not involved in the accident and some other vehicle had caused the accident and intentionally the insured crane is implicated in collusion with the owner and driver 8 of the said vehicle. It is contended that the claimants have failed to prove the case by examining any independent witnesses to show that the insured crane is involved in the accident and the police documents indicates that at the time of the accident nobody was there and the Tribunal ought to have held that the insured crane is implicated to get the benefit and hence it requires interference of this Court.
7. Per contra, the learned counsel for the respondents/claimants contend that the police have conducted the spot mahazar and seized some articles at the spot and the vehicle was seized after one month. After the seizure, they collected the paint, sticker and call details register of both the driver as well as the respondent. The Investigating Officer also filed the charge-sheet based on the report, which he received from the FSL. Hence, the very contention that the vehicle was not involved in the accident cannot be accepted.
8. In reply to the arguments of the learned counsel for the claimants, the learned counsel for the Insurance Company brought to the notice of this Court the FSL report dated 19.02.2011 and letter dated 10.02.2011. The opinion as per the 9 letter dated 19.02.2011 is that white colour sticker cutting pieces marked as article Nos.1 and 2 are similar with respect to the colour, microscopic features and elemental compositions. The metallic silver paint in article No.3 and black paint in article No.4 are different and hence comparison is not possible. The letter dated 10.02.2011 evidence the fact that they contain radium sticker scrapping, said to contain white colour material, said to contain paint scrapping, said to contain black colour paint and report also not supports the case of the claimants and hence the Tribunal committed an error.
9. In reply to the arguments of the learned counsel for the Insurance Company, the learned counsel for the claimants brought to the notice of this Court with respect of white colour radium sticker scrapping and containing white colour material report is positive that white colour sticker cutting pieces marked as article Nos.1 and 2 are similar with respect to the colour, microscopic features and elemental composition. The learned counsel brought to the notice of this Court the call details report of the respondents and also the driver, who have spoken with each other on the date of the accident and also subsequently. The Investigating Officer based on the call details filed the 10 charge-sheet against the driver. The learned counsel brought to the notice of this Court that the owner in the written statement admitted the accident, but only contention was taken that the rider of the motorcycle drove the same in a rash and negligent manner under the influence of alcohol. When there is an admission with regard to the accident, the Insurance Company ought to have proved the contention and except examining the official witness R.W.1, nothing is placed on record. Though, the Insurance Company examined the Investigating Officer as R.W.2, his evidence does not support the case of the Insurance Company and hence the very contention of the Insurance Company cannot be accepted. The learned counsel submits that it is a fit case to invoke Order 41 Rule 33 of CPC and compensation awarded is very meagre and even in the absence of the appeal filed by the claimants, if injustice is caused to the claimants, the Court can invoke Order 41 Rule 33 of CPC. The learned counsel submits that the Tribunal took the income of Rs.4,500/- per month and for the accident of the year 2010, the notional income would be Rs.5,500/- per month. The learned counsel submits that the deceased were aged about 30 years and 41 years as on the date of the accident and future prospects 11 has to be added. The learned counsel submits that the claimants in M.V.C.No.2320/2011 are the wife, mother and children of the deceased and the claimants in M.V.C.No.2321/2011 are the wife and children of the deceased and hence this Court can invoke Order 41 Rule 33 of CPC to grant just and reasonable compensation.
10. Having heard the respective learned counsel and also on perusal of the material available on record, the points that arise for the consideration of this Court are:
(i) Whether the Tribunal has committed an error in fastening the liability on the Insurance Company in coming to the conclusion that the offending vehicle was involved in the accident?
(ii) Whether the Tribunal has committed an error
in not awarding just and reasonable
compensation and whether it requires to
invoke Order 41 Rule 33 of CPC to award just
and reasonable compensation?
(iii) What order?
Point No.(i):
11. Having heard the respective learned counsel and also on perusal of the material available on record, it is the case of 12 the claimants in both the cases that both the deceased were proceeding in the motorcycle and the offending vehicle crane caused the accident and both of them died. The accident occurred on 21.12.2010 and admittedly the complaint was given on the same day, but the vehicle number was not given and it is stated that unknown vehicle caused the accident. The claimants in order to substantiate their claim examined two witnesses P.W.1 and P.W.2 and they are not the eye-witnesses to the incident, but they have produced the documents of FIR, charge-
sheet, copy of mahazar, inquest report, post mortem report, IMV report, copy of sketch, voter identity cards, and school certificate. In the cross-examination of P.W.1 it is elicited that she came to know about the accident through the neighbors and she has not witnessed the accident. It is also stated that at the time of giving the complaint, they were not aware of it and after filing of the complaint came to know that the offending vehicle was involved in the accident. It is suggested that the offending vehicle was not involved in the accident and the same was denied. Except the suggestion that the vehicle was not involved in the accident, nothing is elicited with regard to implanting of the vehicle from the mouth of P.W.1.
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12. The other witness is P.W.2, who is the claimant and not an eye-witness and she is the wife of the deceased. In the cross-examination she states that she went to the spot after the information of the accident, but the vehicle was not in the spot. It is elicited that she came to know that some vehicle caused the accident and till date she has not verified. It is suggested that the crane was not involved in the accident and is falsely deposing and the same was denied. In the cross-examination of P.W.2, except the suggestion that crane was not involved in the accident, nothing is elicited.
13. The Insurance Company examined the official witness as R.W.1 and he gives evidence in the line of defence, which was taken in the written statement and he was subjected to cross-examination. It is suggested that they have not conducted any investigation and the same was denied. It is suggested that the police after seeing the marks which were found on the vehicles sent the same to the FSL and after receiving the report only, the police have filed the charge-sheet against him and the same was denied. It is suggested that in order to avoid the compensation, he is falsely deposing before 14 the Court that some vehicle caused the accident and the said suggestion was denied.
14. R.W.2 is the Police Inspector and in his evidence he says that he has investigated the matter and filed the charge- sheet and through him the charge-sheet as well as case diary is produced before the Court and he says that he has recorded the statements of Chandrashekar, Nagesh and Manjunath. On 13.01.2011, one Gangadhar had produced the crane. It is also his evidence that the black colour sticker and mudguard paint were sent to FSL and report was also received and based on the report, charge-sheet is filed against the driver of the vehicle. He was subjected to cross-examination. In the cross-examination of R.W.2, a suggestion was made that crane was not involved in the accident and the same was denied. It is suggested that he has created the witnesses and deposing falsely and the same is denied.
15. Having considered both oral and documentary evidence placed on record, the main contention of the Insurance Company is that the vehicle was not involved in the accident. But the owner of the vehicle filed the written statement 15 contending that the accident was occurred solely due to the negligence on the part of the deceased, but he also not admitted the involvement of crane in the written statement. But the fact is that when the Insurance Company took the defence that the vehicle was not involved in the accident, burden lies on the Insurance Company to prove the same. The Insurance Company examined R.W.1 and R.W.1 is not an eye-witness and in his evidence, he claims that they have conducted their own investigation from the Company and denied the suggestion that no such investigation was conducted and for having conducted the investigation from the Company, no material is placed on record before the Court. Apart from that, investigator has not been examined before the Court and instead of R.W.2 Inspector, who conducted the investigation has been examined and in the cross-examination of R.W.2 nothing is elicited that the vehicle was not involved in the accident. He categorically says that immediately after the seizure of the vehicle, they have collected the black colour sticker and also paint found on the vehicle. On perusal of the document FSL report, it is clear that white colour radium sticker and white colour material, which was sent to FSL are similar with regard to the colour, microscopic features and 16 elemental composition, but the metallic silver paint in article No.3 and black paint in article No.4 are different. It is clear that white colour sticker cutting pieces marked as article Nos.1 and 2 are similar in respect of colour, microscopic features and elemental composition. Apart from that, the Investigating Officer also collected the call details of the driver and the respondent No.2, who were in touch with each other and based of these materials, filed the charge-sheet. There is no dispute with regard to articles which were seized were sent to FSL and FSL report partly supports the case of the prosecution. Nothing is elicited in the cross-examination of R.W.2 Inspector that he had helped the claimants in registering the case and filed the charge-sheet and filing of the charge-sheet is not in dispute. When such material is available before the Court, the contention of the Insurance Company that the vehicle was not involved in the accident cannot be accepted.
16. No doubt, at the first instance, vehicle number was not given and the case was registered against unknown vehicle and during the course of investigation, the Investigating Officer conducted the investigation and seized the vehicle and also collected the samples and the sent the same to FSL. When such 17 material is available on record, mere taking of defence that the vehicle was not involved in the accident is not enough and they have to prove that defence by placing substantial material and except examining the official of the Insurance Company, even not examined the investigator, who conducted the investigation on behalf of the Company. The material collected before the Court by the Investigating Officer substantiate the involvement of the vehicle in the accident. The owner also has not been summoned by the Insurance Company to prove the fact of non- involvement of the vehicle in the accident, but it is only the claim of the owner that the accident was occurred due to the negligence on the part of the rider of the motorcycle. The owner also not disputes the accident, but claims that the accident was on account of the negligence on the part of the rider of the motorcycle and though he filed the written statement, not appeared and given any evidence. Under the circumstances, I do not find any error committed by the Tribunal in coming to the conclusion that the vehicle was involved in the accident. Hence, I answer point No.(i) in the negative.
18Point No.(ii):
17. It is settled law that if injustice is caused to the claimants and not awarded just and reasonable compensation, the Court can invoke the jurisdiction under Order 41 Rule 33 of CPC to award just and reasonable compensation. It is the case of claimants in M.V.C.No.2321/2011 that the deceased was earning Rs.25,000/- per month by doing business and the deceased in M.V.C.No.2320/2011 was earning Rs.10,000/- per month by working as a housekeeping at Prestige Constructions and no documents are placed before the Court with regard to their avocation is concerned. However, the Tribunal took the income of Rs.4,500/- per month and it is an accident of the year 2010 and in the absence of any documentary evidence with regard to income, the Court has to consider the notional income of Rs.5,500/- per month. Having considered the notional income of Rs.5,500/- per month and adding 40% towards future prospects as the deceased in M.V.C.No.2320/2011 was aged about 30 years as on the date of the accident, deducting 1/4th of the income towards personal expenses and applying the relevant multiplier of '17', the 'loss of dependency' is calculated as under: 19
Monthly income - Rs.5,500/-
Add: 40% towards
Future prospects - Rs.2,200/-
--------------
- Rs.7,700/-
Less: 1/4th towards
Personal expenses - Rs.1,925/-
--------------
- Rs.5,775/-
-----------------
Loss of dependency = Rs.11,78,100/-
(Rs.5,775 /- x 12 x 17) ------------------
18. The claimants being the wife, mother and children of the deceased, in all four, are entitled for an amount of Rs.40,000/- each i.e., Rs.1,60,000/- (Rs.40,000/- x 4) under the head loss of love and affection and loss of consortium. Apart from that, they are also entitled for an amount of Rs.33,000/- under the head funeral expenses and loss of estate.
19. In all, the claimants in M.V.C.No.2320/2011 are entitled for compensation of Rs.13,71,100/- as against Rs.6,47,000/-.
20. In M.V.C.No.2321/2011, taking the notional income of Rs.5,500/- per month and adding 25% towards future prospects as the deceased was aged about 41 years as on the 20 date of the accident, deducting 1/4th towards personal expenses and applying the relevant multiplier of '14', the 'loss of dependency' is calculated as under:
Monthly income - Rs.5,500/-
Add: 25% towards
Future prospects - Rs.1,375/-
--------------
- Rs.6,875/-
Less: 1/4th towards
Personal expenses - Rs.1,719/-
--------------
- Rs.5,156/-
-----------------
Loss of dependency = Rs.8,66,208/-
(Rs.5,156/- x 12 x 14) ------------------
21. The claimants being the wife and children of the deceased, in all five, are entitled for an amount of Rs.40,000/- each i.e., Rs.2,00,000/- (Rs.40,000/- x 5) under the head loss of love and affection and loss of consortium. Apart from that, they are also entitled for an amount of Rs.33,000/- under the head funeral expenses and loss of estate.
22. In all, the claimants in M.V.C.No.2321/2011 are entitled for compensation of Rs.10,99,208/- as against Rs.5,39,000/-.
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23. Having considered the material available on record, this Court invoking the powers under Order 41 Rule 33 of CPC comes to the conclusion that just and reasonable compensation is required to be awarded. Hence, I answer point No.(ii) as affirmative.
24. In view of the discussions made above, I pass the following:
ORDER
(i) Both the appeals filed by the Insurance Company are dismissed.
(ii) The impugned judgment and award of the
Tribunal dated 03.10.2013, passed in
M.V.C.No.2320/2011 is modified invoking
Order 41 Rule 33 of CPC by granting
compensation of Rs.13,71,100/- as against Rs.6,47,000/- with interest at 6% per annum from the date of petition till deposit.
(iii) The impugned judgment and award of the
Tribunal dated 03.10.2013, passed in
M.V.C.No.2321/2011 is modified invoking
Order 41 Rule 33 of CPC by granting
compensation of Rs.10,99,208/- as against 22 Rs.5,39,000/- with interest at 6% per annum from the date of petition till deposit.
(iv) The Insurance Company is directed to pay the compensation amount with interest within six weeks from today.
(v) The amount in deposit is ordered to be
transmitted to the concerned Tribunal
forthwith.
(vi) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.
Sd/-
JUDGE MD