Karnataka High Court
The Oriental Insurance Company Limited vs Smt. Johara on 26 November, 2021
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.6146 OF 2019(MV)
C/W
MFA No. 797 OF 2021(MV)
IN MFA 6146/2019
BETWEEN:
The Oriental Insurance
Company Limited,
Local office, Beauty Plaza,
2nd Floor, Balmatta,
Mangaluru-575001.
The Oriental Insurance
Company Limited,
TP Hub, Regional Office,
Leo Shopping Complex,
No.44/46, Residency Road Cross,
Bengaluru-560 025.
Now represented by
Manger Legal. ... Appellant
(By Sri. Ashok N Patil., Advocate)
AND:
1. Smt. Johara,
W/o late. Aboobakkar,
Aged about 48 years.
2. Habeeba,
2
D/o late. Aboobakkar,
Aged about 27 years.
3. Raziya @ Raziya Banu,
D/o Late. Aboobakkar,
Aged about 26 years.
4. Mumthaz,
D/o late. Aboobakkar,
Aged about 23 years
All are R/at Nirndi House,
Navoor Village and Post,
Belthangady Taluk-574 214.
Present R/at Manglijar House,
Kilenjar Village,
Kuppepadavu post,
Mangaluru Taluk-574 144.
5. Shivappa,
S/o Duggappa,
Aged about 37 years,
R/at Malegi House,
Navoor Village and post,
Belthangady Taluk-574 214. .. Respondents
(By Sri. Guruprasad B.R., Advocate for R1 to R4:
R5 Served)
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:12.04.2019 passed
in MVC No.355/2017 on the file of the IV Additional
District and Sessions, MACT, Dakshina Kannada,
Mangaluru, awarding a compensation of Rs.17,58,000/-
with interest at 6% from the date of petition till payment
of entire amount.
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IN MFA 797/2021
BETWEEN:
1. Smt. Johara,
W/o late. Aboobakkar,
Aged about 50 years.
2. Habeeba,
D/o late. Aboobakkar,
Aged about 29 years.
3. Raziya @ Raziya Banu,
D/o Late. Aboobakkar,
Aged about 28 years.
4. Mumthaz,
D/o late. Aboobakkar,
Aged about 23 years
All are R/at Nirndi House,
Navoor Village and Post,
Belthangady Taluk-574 214.
Present R/at Manglijar House,
Kilenjar Village,
Kuppepadavu post,
Mangaluru Taluk-574 144. ... Appellants
(By Sri. Guruprasad B.R., Advocate)
AND:
1. The Oriental Insurance
Company Limited,
Local office, Beauty Plaza,
2nd Floor, Balmatta,
Mangaluru-575001
Represented by its Manager.
4
2. Mr.Shivappa,
S/o Duggappa,
Aged about 39 years,
R/at Malegi House,
Navoor Village and post,
Belthangady Taluk-574 214. ...Respondents
(By Sri. Ashok N Patil, Advocate for R1:
Notice to R2 is D/w
V/o dated: 17.11.2021)
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:12.04.2019 passed
in MVC No.355/2017 on the file of the IV Additional
District and Sessions, MACT, Dakshina Kannada,
Mangaluru, partly allowing the claim petition for
compensation and seeking enhancement of compensation.
These MFAs, coming on for admission, this day, this
Court, delivered the following:
JUDGMENT
MFA No.6146/2019 is filed by the Insurance Company and MFA No.797/2021 is filed by the claimants under Section 173(1) of the Motor Vehicles Act, (for short, 'the Act') being aggrieved by the judgment and award dated 12.04.2019 passed by the MACT, D.K., Mangaluru. Since the challenge is to the same judgment both the appeals are clubbed 5 together, heard and common judgment is being passed.
2. Facts giving rise to the filing of the appeals briefly stated are that on 13.11.2016 at about 8.30 a.m. the deceased Abdul Munaf was riding the motorcycle bearing registration No.KA-21/R-1776 along with pillion rider from Ujire towards Navoor. When he reached near Kaikamba of Navoor village another motorcycle bearing registration No.KA-21/R- 7803 came at a high speed and in a rash and negligent manner from the cross road and entered the main road without observing the vehicle going on Ujire
- Navoor road and dashed to the motorcycle of the deceased. As a result of the aforesaid accident, the deceased grievous injuries and succumbed to the injuries at the hospital.
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3. The claimants filed a petition under Section 166 of the Act seeking compensation for the death of the deceased along with interest.
4. On service of summons, the respondent No.2 appeared through counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that the rider of the offending vehicle was not holding a valid and effective driving licence as on the date of the accident. It was further pleaded that the accident occurred due to the rash and negligent riding of the deceased himself. Even though insurance policy was admitted, it was pleaded that the liability is subject to the terms and conditions of the policy. Hence, he sought for dismissal of the petition.
The respondent No.1 did not appear before the Tribunal and hence he was placed ex-parte. 7
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined 5 witnesses as PW-1 to PW-5 and got exhibited documents as P1 to P25. On behalf of respondents, one witness was examined as RW-1 and got marked two documents as Exs. R1 and R2. 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 deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.17,58,000/- along with interest at the rate of 6% p.a. and directed the insurance company to deposit the entire compensation amount along with interest. Being aggrieved, these appeals have been filed.
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6. The learned counsel for the Insurance Company has raised the following contentions:
Firstly, the accident occurred due to negligence of the deceased himself. He was riding the motorcycle at a high speed and there is head-on collision.
Secondly, as per the spot sketch - Ex.R2 it is very clear that the accident has occurred at the edge of the road. Since the deceased who was the rider of the motorcycle was riding the motorcycle at a high speed with two pillion riders he lost control over the vehicle and due to which the accident has occurred. Therefore, he has also contributed to the accident. But the Tribunal has failed to consider this aspect of the matter.
Thirdly, the deceased was traveling with two pillion riders without wearing the head gear. It is very clear from the postmortem report that he suffered an injury and he succumbed to the injuries. 9 Since he was not wearing the head-gear, he has suffered injury, otherwise he would have been survived. But the Tribunal has failed to consider this aspect of the matter.
Fourthly, even though the claimants claim that the deceased was earning Rs.3.00 lakhs to Rs.3.50 lakhs per annum by running chicken shop and produced the licence issued by the Panchayat as per Ex.P9, as per the document the licence has been issued only for a period of 4 months and thereafter it has not been renewed. As on the date of the accident there was no licence to run the chicken shop. Therefore, the contention of the claimant that he was earning Rs.3.00 lakhs to Rs.3.5 lakhs cannot be believed. In the absence of any documentary evidence to show that he was getting income of Rs.12,000/- per month, the Tribunal is not justified in assessing the monthly income of the deceased as Rs.12,000/-. 10
Fifthly, the claimants are the mother and sisters of the deceased. The deceased was a bachelor. The Tribunal instead of deducting 50% towards the personal expenses of the deceased has deducted 1/3rd Sixthly, considering the age and avocation of the deceased the overall compensation awarded by the Tribunal is on the higher side. Hence, he prays for allowing the appeal filed by the Insurance Company and dismissal of the appeal filed by the claimants.
7. On the other hand, learned counsel appearing for the claimants has raised the following contentions:
Firstly, the accident occurred due to rash and negligent riding of the rider of the offending vehicle. It is very clear that the offending vehicle which was coming from cross road entered the main road, while entering the main road without observing traffic he has come to east and he dashed against the deceased. Therefore the Tribunal has rightly held 11 that the rider of the offending vehicle was negligent in causing the accident.
Secondly, just because the deceased was traveling with two pillion riders it cannot be held that the deceased has contributed to the accident unless it is proved that he is negligent and he has contributed to the accident. In support of his contentions, he has relied on the judgment of the Hon'ble Apex Court in the case of MOHAMMED SIDDIQUE AND ANOTHER vs. NATIONAL INSURANCE COMPANY LIMITED AND OTHERS reported in (2020) 3 SCC 57.
Thirdly, even though the claimants claim that deceased was earning Rs.3.00 lakhs to Rs.3.50 lakhs per annum by running chicken shop and produced the licence obtained from the panchayat as per Ex.P9, after expiry of licence he filed an application for its renewal and the same is pending before the authorities. Therefore, it is very clear that he was 12 doing business. Hence, the income assessed by the Tribunal at Rs.12,000/- is on the lower side.
Fourthly, even though the deceased was a bachelor, the claimants who are the mother and sisters are depending upon the income of the deceased. Therefore, the Tribunal has rightly deducted 1/3rd towards the personal expenses of the deceased.
Fifthly, as per the law laid down by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], the claimants are entitled for addition of 40% towards future prospects.
Sixthly, as per the judgment of the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. -V- NANU RAM reported in 2018 ACJ 2782, each of the claimants are entitled for compensation under the head of 'loss of love and 13 affection and consortium'. Hence, he prays for allowing the appeal file by the claimants and dismissing the appeal filed by the Insurance Company.
8. Heard the learned counsel for the parties. Perused the judgment and award and the original records.
9. It is the case of the claimants that on 13.11.2016 at about 8.30 a.m. the deceased Abdul Munaf was riding the motorcycle bearing registration No.KA-21/R-1776 along with pillion rider from Ujire towards Navoor. When he reached near Kaikamba of Navoor village another motorcycle bearing registration No.KA-21/R-7803 came at a high speed and in a rash and negligent manner from the cross road and entered the main road without observing the vehicle going on Ujire - Navoor road and dashed to the motorcycle of the deceased. As a result of the 14 aforesaid accident, the deceased grievous injuries and succumbed to the injuries at the hospital. To prove their case the mother of the claimant was examined as PW-1 and an eyewitness Sirajuddin was examined as PW-5 and produced 25 documents.
10. Under the Motor Vehicles Act in the claim petition before the Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in the civil case. No doubt, before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to decide for awarding compensation, but the Tribunal is not expected to take or to adopt a nicety of a civil or criminal case. After all it is a summary enquiry and it is the legislation for the welfare of the Society. The proceedings under the Motor Vehicles Act are not akin to the proceedings under civil rules. Hence, strict rules of evidence are 15 not required to be followed in this regard. In the case of MANGLA RAM -v- ORIENTAL INSURANCE COMPANY LIMITED (2018) 5 SCC 656, the Hon'ble Apex Court has held as hereinbelow:
"25. In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied."16
11. PW-1, in her evidence has reiterated the averments made in the claim petition. PW-5 who is the complainant as well as an eyewitness has deposed that the accident has occurred due to the rash and negligent riding of the rider of the offending vehicle. He was coming from the cross road and entered the main road without observing the vehicles in the main road and in a rash and negligent manner dashed to the motorcycle of the deceased. Due to the impact the deceased sustained injuries and succumbed to the injuries. Immediately after the accident he has given a complaint as per Ex.P1 against the rider of the offending vehicle. The police have registered the FIR as per Ex.P2. After thorough investigation have filed charge sheet against the rider of the offending vehicle. The police have drawn mahazar as per Ex.P4. It is very clear from the said documents that the accident has occurred in Beltangadi road which was proceeding 17 from South to North, the deceased was riding the motorcycle from South to North, there is a cross road called Aranya Bungalow road. The offending vehicle was coming from that cross road. It is very clear from the evidence of PW-5 and the complaint Ex.P1 that the rider of the offending vehicle has come from cross road at a high speed. Before entering the main road he has not seen the vehicle passing in the main road, straightaway he entered the main road and dashed to the motorcycle of the deceased. It is the obligation of the person riding motorcycle from the cross rood to take care while entering the main road. Since he has failed to do the same and suddenly entered the main road without observing the vehicles, the said accident has occurred. Therefore, it is very clear from the evidence of PW1 and PW5 and Exs. P1, P2, and P4 that the rider of the offending vehicle was negligent in causing the accident.
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12. Just because the motorcycle was carrying two pillion riders it will not amount to negligence unless respondent proves contrary. The Hon'ble Apex Court in the case of MOHAMMED SIDDIQUE (supra) has held as hereinbelow:
"12. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194-C inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle 19 along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact 20 could have been minimized, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motor cycle. It is not even the case of the insurer that the accident would have been averted, if three persons were not riding on the motor cycle. The fact that the motor cycle was hit by the car from behind, is admitted. Interestingly, the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motor cycle from behind, are all not assailed. Therefore, the finding of the High Court that 2 persons on the pillion of the motor cycle, could have added to the imbalance, is nothing but presumptuous and is not based either upon pleading or upon the evidence on record. Nothing was extracted from PW3 to the effect that 2 persons on the pillion added to the imbalance.21
13. Therefore, in the absence of any evidence to show that the wrongful act on the part of the deceased victim contributed either to the accident or to the nature of the injuries sustained, the victim could not have been held guilty of contributory negligence."
13. Therefore, it is very clear that unless it is proved that the deceased was negligent in causing the accident, it cannot be held that he has contributed to the accident. Even to disprove the case of the claimants the respondent has not examined any witnesses. Except examining RW1 who is an officer of the insurance company who is not an eyewitness to the accident no other witness was examined. Therefore, considering the evidence available on record, the Tribunal is justified in answering issue No.1 in the affirmative.
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Re.quantum:
14. Even though the claimants have produced the licence issued by the Panchayat for running the chicken shop the said licence has expired and it has not been renewed. They have not produced any document either the bank statement or income tax returns to show that the deceased was earning Rs.12,000/- per month. Hence, the income of the deceased has to be assessed as per the guidelines issued by the Karnataka Legal Services Authority. For the accident occurred in the year 2016, notional income has to be fixed at Rs.9,500/-. To the aforesaid amount, 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.13,300/-, out of which, even though the deceased was a bachelor, the Tribunal considering the evidence 23 of PW-1 that all the claimants are depending upon the income of the deceased has rightly deducted 1/3rd towards the personal expenses of the deceased. Thus, the monthly income comes to Rs.8,867/-. The deceased was aged about 23 years at the time of the accident and multiplier applicable to his age group is '18'. Thus, the claimants are entitled to compensation of Rs.19,15,272/- (Rs.8,867*12*18) on account of 'loss of dependency'.
In addition, the claimants are entitled to Rs.15,000/- on account of 'loss of estate' and Rs.15,000/- on account of 'funeral expenses'.
In view of the law laid down by the Supreme Court in 'MAGMA GENERAL INSURANCE', claimant No.1 mother of the deceased is entitled for compensation of Rs.40,000/- under the head of 'loss of filial consortium' and claimant Nos. 2 to 4 - sisters 24 of the deceased are entitled to Rs.40,000/- each under the head of 'loss of love and affection'.
15. Thus, the claimants are entitled to the following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 19,15,272
Funeral expenses 15,000
Loss of estate 15,000
Loss of filial consortium 40,000
Loss of love and affection 1,20,000
Total 21,05,272
The claimants are entitled to a total
compensation of Rs.21,05,572/-.
The Insurance Company is directed to deposit the compensation amount along with interest at the rate of 6% p.a. from the date of petition till the date of payment, within a period of six weeks from the date of receipt of copy of this judgment excluding interest for the delayed period of 222 days in filing the appeal.
.
25To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeals are disposed of. The amount in deposit is ordered to be transferred to the Tribunal forthwith.
Sd/-
JUDGE Cm/-