Karnataka High Court
Smt.Laxmi W/O Yuvaraj Rathod And Ors vs Vilas S/O Keshav Shinde And Anr on 5 September, 2023
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2023:KHC-K:7071
MFA No. 201791 of 2016
C/W MFA No. 201495 of 2015
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
MISCL. FIRST APPEAL NO.201791 OF 2016 (MV)
C/W
MISCL. FIRST APPEAL NO.201495 OF 2015 (MV)
IN MFA NO.201791/2016:
BETWEEN:
SMT. LAXMI W/O YUVARAJ RATHOD,
AGE: 29 YEARS, OCC: HOUSEHOLD WORK,
R/O KESHAWAV NAGAR, B.BAGEWADI.
...APPELLANT
(BY SRI. G.G. CHAGASHETTI, ADVOCATE)
AND:
Digitally
signed by
LUCYGRACE
Location:
1. VILAS S/O KESHAV SHINDE,
HIGH COURT
OF AT POST: AMBE, TQ: PANDHARPUR,
KARNATAKA
DIST. SOLAPUR (MAHARASHTRA)-400 001.
(MAHARASHTRA)
2. MANAGER LEGAL,
ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
1/45A, KOTHARI COMPLEX, COURT ROAD,
GULBARGA-585 101.
3. SMT. SHALAN W/O SHIVAJI RATHOD,
AGE: 50 YEARS, OCC: COOLIE,
R/O KESHAWAV NAGAR,
B.BAGEWADI-586 101.
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NC: 2023:KHC-K:7071
MFA No. 201791 of 2016
C/W MFA No. 201495 of 2015
4. SHIVAJI S/O BHIMA RATHOD,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O KESHAWAV NAGAR,
B.BAGEWADI-586 101.
...RESPONDENTS
(SRI. SUBHASH MALLAPUR, ADVOCATE FOR R2;
V/O DTD. 12.07.2019, NOTICE TO R3 & R4 DISPENSED WITH;
R1 - SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL AND SET
ASIDE THE JUDGMENT AND AWARD DATED 01.07.2015
PASSED BY THE SENIOR CIVIL JUDGE AND MEMBER MACT-IX
AT BASAVANA BAGEWADI IN MVC NO.143/2012, BY
ENHANCING THE COMPENSATION AS CLAIMED BY THE
APPELLANT.
IN MFA NO.201495/2015:
BETWEEN:
THE LEGAL MANAGER
ICICI LOMBARD GEN. INS. CO LTD.,
1ST FLOOR, 1/45A,
KOTARI COMPLEX, COURT ROAD,
KALABURAGI.
...APPELLANT
(BY SRI. SUBHASH MALLAPUR, ADVOCATE)
AND:
1. LAXMI W/O YUVRAJ RATHOD,
AGE: 28 YEARS, OCC: H.H. WORK,
R/O KESHAWAV NAGAR,
B.BAGEWADI - 586 101.
2. SHALAN W/O SHIVAJI RATHOD,
AGE: 49 YEARS, OCC: COOLIE,
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NC: 2023:KHC-K:7071
MFA No. 201791 of 2016
C/W MFA No. 201495 of 2015
R/O KESHAWAV NAGAR,
B.BAGEWADI-586 101.
3. SHIVAJI S/O BHIMA RATHOD
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O KESHAWAV NAGAR,
B.BAGEWADI - 586 101.
4. VILAS S/O KESHAV SHINDE
AT POST: AMBE, TQ: PANDHARPUR,
DIST. SOLAPUR (MAHARASHTRA) 400 001.
...RESPONDENTS
(SRI. G.G. CHAGASHETTI, ADVOCATE FOR R1 TO R3;
R4 - SERVED)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
ALLOW THE ABOVE APPEAL AND CONSEQUENTLY SET ASIDE
THE JUDGMENT AND AWARD DATED 01.07.2015 PASSED BY
THE SENIOR CIVIL JUDGE AND MEMBER, M.A.C.T-IX,
BASAVANA BAGEWADI IN MVC NO.143/2012.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging judgment and award dated 01.07.2015 passed by Senior Civil Judge and Member M.A.C.T.-IX at Basavana Bagewadi in MVC no.143/2012, these appeals are filed. While MFA.no.201791/2016 is filed by claimant for enhancement of compensation, MFA.no.201495/2015 is filed by insurer, challenging award on ground of false implication of insured vehicle for purposes of claim. -4-
NC: 2023:KHC-K:7071 MFA No. 201791 of 2016 C/W MFA No. 201495 of 2015
2. Shri.Subhash Mallapur, learned counsel for appellant in MFA.no.201495/2015 submitted that appeal was by insurer. It was submitted that as per claimant, on 04.04.2011 at 7.30 p.m., when deceased Yuvaraj was riding pillion on motorcycle bearing registration no.MH- 13/AW-8979 and going on Mandrup-Dadapur road, near Koravali village, vehicle met with accident due to rash and negligent riding by its rider. It was also stated that Yuvaraj sustained grievous injuries and died. Claiming compensation on account of his untimely death, claim petition under Section 166 of Motor Vehicles Act was filed against owner and insurer of motorcycle.
3. Despite service of notice, owner did not appear. He was placed exparte. Insurer filed objections denying occurrence of accident as alleged involving insured vehicle. It was specifically contended that delay of 35 days in filing complaint indicated false implication of vehicle for purposes of claim. It was pointed out that conduct of spot -5- NC: 2023:KHC-K:7071 MFA No. 201791 of 2016 C/W MFA No. 201495 of 2015 panchanama even prior to registration of FIR also substantiated collusion.
4. Based on pleadings, Tribunal framed issues and recorded evidence. Claimant no.1 was examined as PW.1 and Bandu Pandurang Pawar was examined as PW.2 as an eyewitness. Exs.P1 to P8 were marked. On behalf of insurer, it's official was examined as RW.1 and Exs.R1 and R2 were marked.
5. On consideration, Tribunal held that accident had occurred due to rash and negligent riding of motorcycle by its rider leading to death of Yuvaraj, pillion rider. It assessed total compensation of Rs.6,17,000/- and held insurer liable to pay same with interest at 8% p.a. Assailing same, appeal was filed.
6. It was submitted that when accident had occurred on 04.04.2011 at 7.30 p.m., deceased accompanied his brother on motorcycle. Therefore, there was absolutely no justification, nor explanation for not filing complaint immediately thereafter. It was further -6- NC: 2023:KHC-K:7071 MFA No. 201791 of 2016 C/W MFA No. 201495 of 2015 submitted that even Post Mortem examination was conducted on next day i.e., on 05.04.2011. In Post Mortem report, there was absolutely no mention of death of Yuvaraj as due to road traffic accident. It was also pointed out that Ex.P3 - spot panchanama was drawn on 15.04.2011 well before registration of FIR on 10.05.2011. It was submitted that in fact, complaint was also filed on 10.05.2011.
7. Learned counsel further pointed out that eyewitness examined as PW.2 was in fact, panch witness as recorded in Ex.P3 and as such, was not an eyewitness. Yet there was no registration of death as a medico legal case due to road traffic accident. Sum total of all above factors would be that, claimants had colluded with police and owner of vehicle for purposes of foisting false case against insurer. On above grounds, sought for allowing appeal and setting aside award.
8. On other hand, Shri.G.G.Chagashetti, learned counsel for appellant in MFA.no.201791/2016 sought to -7- NC: 2023:KHC-K:7071 MFA No. 201791 of 2016 C/W MFA No. 201495 of 2015 justify award. It was submitted that though there was no dispute about filing of complaint and registration of FIR 35 days after occurrence of accident, same was due to complainant being in shock and in grief. It was submitted that mere delay in filing FIR would not be fatal as held by Hon'ble Supreme Court in case of Ravi vs. Badrinarayan and others1. Learned counsel also pointed out that in Ex.P5 - PM report, column nos.2 and 5 mention that dead body was taken by police for post mortem examination. In column no.5, there was specific mention about date of death as 04.04.2011 at 23.35 hours i.e., 11.35 p.m. Since police themselves had taken dead body of deceased for post mortem and it was conducted as per their request, occurrence of accident and death of Yuvaraj in accident on 04.04.2011 at 7.30 p.m. cannot be disputed. Consequently, appeal of insurer was devoid of merit and was liable to be dismissed.
1 (2011) 4 SCC 693 -8- NC: 2023:KHC-K:7071 MFA No. 201791 of 2016 C/W MFA No. 201495 of 2015
9. Insofar as enhancement, it was submitted that though claimants had stated that deceased was 32 years of age and earning Rs.4,500/- per month from agriculture, tribunal considered his monthly income notionally at Rs.4,000/-, which was on lower side. It was submitted that claimants were wife and parents of deceased. Tribunal erred in not adding future prospects to monthly income and in awarding inadequate compensation under conventional heads. On above grounds, sought for allowing claimants' appeal.
10. Heard learned counsel, perused impugned judgment and award and records.
11. From above submission and since insurer is in appeal challenging award on ground of false implication of insured vehicle and claimants are in appeal for enhancement of compensation, points that would arise for consideration are:
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NC: 2023:KHC-K:7071 MFA No. 201791 of 2016 C/W MFA No. 201495 of 2015 "1. Whether claim petition was liable to be dismissed on ground of false implication of insured vehicle?
2. Whether claimants are entitled for enhancement of compensation?"
Point no.1:
12. In order to establish actionable negligence against owner and insurer, claimants relied on Complaint, FIR, Spot Panchanama, PM Report, Accident Report and Charge Sheet as per Exs.P1 to P7 respectively. Bare perusal of complaint would reveal that complainant was not an eyewitness. Complaint itself was filed on 10.05.2011 in respect of an incident that occurred on 04.04.2011 at 7.30 p.m. Ex.P3 - Spot Panchanama reveals that same was drawn on 15.04.2011. Name of Bandu Pandurang Pawar is stated as panch witness no.1. In fact, spot panchanama refers to Shivaji Bhima Rathod as eyewitness. Ex.P5-PM report indeed mentions that dead body was brought for post mortem examination by police. It also mentions about date of death as 04.04.2011 at
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NC: 2023:KHC-K:7071 MFA No. 201791 of 2016 C/W MFA No. 201495 of 2015 23.35 hours at Civil Hospital, Solapur. However, there is no mention about death as due to road traffic accident. Claimants have not produced any document to connect death with road traffic accident caused by insured vehicle. Fact that motorcycle belonged to a relative, would give room for suspicion. Same would widen with non-mention about death due to road traffic accident. Claimants have also not lead any evidence regarding treatment records at Civil Hospital, Solapur.
13. On careful consideration of deposition of PW.2, it is seen that no explanation is offered for not giving complaint despite being an eyewitness and on other hand participating in investigation as panch witness. Yet another discrepancy is that, complaint itself was registered on 10.05.2011, whereas spot panchanama was conducted on 15.04.2011. Cumulative effect of above material would substantially dent claimants' version that death of Yuvaraj was due to accident caused by insured vehicle. Though in Ex.P.6 - motor accident report and Ex.P.7 charge-sheet
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NC: 2023:KHC-K:7071 MFA No. 201791 of 2016 C/W MFA No. 201495 of 2015 vehicle number is shown, fact that no damages are noted on vehicle, when death as per complaint and charge-sheet was due to said vehicle turning turtle would be materially inconsistent and fuming further suspicion. Therefore, conclusion drawn by tribunal would be contrary to record and perverse. Point no.1 is therefore answered in affirmative.
Point no.2 :
14. Insofar as claim for enhancement, claimants stated that deceased was 32 years of age and earning `4,500/- per month. Though same is not substantiated with evidence, tribunal considered it at Rs.4,000/- per month notionally. As for year 2011 notional income is `4,500/-, same has to be considered. Claimants are wife and parents of deceased. Therefore, as per decision of Hon'ble Supreme Court in case of National Insurance Company Limited v. Pranay Sethi and others2, claimants would be entitled for addition of future prospects 2 (2017) 16 SCC 680
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NC: 2023:KHC-K:7071 MFA No. 201791 of 2016 C/W MFA No. 201495 of 2015 at '40%', deduction towards personal expenses will have to be at '1/3rd' and multiplier applicable would be '16'. Thus, loss of dependency would be :
`4,500 + 40% X 2/3 X 12 X 16 = `8,06,400/-.
15. Apart from same, claimant no.1 being wife and claimants 2 and 3 being parents would be entitled for `40,000/- each towards 'loss of spousal consortium' and 'loss of parental consortium' respectively as per decision of Hon'ble Apex Court in case of Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram and others3.
16. In addition, they would be entitled for `15,000/- towards 'funeral expenses' and `15,000/-
towards 'loss of estate'. Since three years have lapsed, they would also be entitled for addition of 10% to award under conventional heads i.e., `15,000/-. 3 (2018) 18 SCC 130
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NC: 2023:KHC-K:7071 MFA No. 201791 of 2016 C/W MFA No. 201495 of 2015
17. Thus, total compensation would be `9,71,400/-. Point no.2 is answered partly in affirmative as above, but subject to finding on point no.1. Consequently, following :
ORDER
(i) MFA no.201791/2016 filed by claimants is dismissed. Impugned award is set-aside.
Claim petition is dismissed.
(ii) MFA no.201495/2015 filed by Insurer is allowed.
(iii) Amount in deposit is ordered to be refunded to appellant/Insurer.
Sd/-
JUDGE LG/SN List No.: 1 Sl No.: 27