Karnataka High Court
Ayyanna @ Ayyappa vs Icici Lombard Gen Ins Co. Ltd on 14 December, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.6225/2017 (MV-D)
C/W.
M.F.A.NO.6224/2017 (MV-D)
M.F.A.NO.7042/2017 (MV-D)
M.F.A.NO.7043/2017 (MV-D)
IN M.F.A. NO.6225/2017:
BETWEEN:
1. SMT. MARIYAMMA @ MAREMMA,
W/O LATE RANGAIAH @ RANGAPPA,
AGED ABOUT 40 YEARS.
2. SHIVA MOGGAMMA @ SHIVAMMA,
D/O LATE RANGAIAH @ RANGAPPA,
AGED ABOUT 21 YEARS.
BOTH ARE R/AT
WANADURGA VILLAGE AND POST,
SHAHAPURA TALUK,
GULBARGA DISTRICT-585 223. ... APPELLANTS
(BY SRI PRAKASH M.H., ADVOCATE)
AND:
1. ICICI LOMBARD GEN. INS. CO. LTD.,
NO.89, 2ND FLOOR, SVR COMPELX
HOSUR MAIN ROAD, MADIWALA,
BENGALURU-68
BY ITS MANAGER.
2. CHANDRASHEKAR,
NO.3/11, 1ST CROSS,
2
BALAJINAGAR,
BENGALURU-61. ... RESPONDENTS
(BY SRI B.C.SHIVANNE GOWDA, ADVOCATE FOR R1;
VIDE ORDER DATED 21.11.2022,
NOTICE TO R2 IS HELD SUFFICIENT)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 12.01.2017 PASSED
IN MVC NO.883/2015 PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN M.F.A. NO.6224/2017:
BETWEEN:
1. AYYANNA @ AYYAPPA,
S/O BASANNA @ BASAPPA,
AGED ABOUT 47 YEARS.
2. SARANAPPA @ SHARABASAPPA,
S/O AYYANNA @ AYYAPPA,
AGED ABOUT 21 YEARS.
3. MARIYAMMA @ MAREMMA,
D/O AYYANNA @ AYYAPPA,
AGED ABOUT 18 YEARS.
4. VENKATESH,
D/O AYYANNA @ AYYAPPA,
AGED ABOUT 17 YEARS.
5. THAYAMMA,
D/O AYYANNA @ AYYAPPA,
AGED ABOUT 15 YEARS.
ALL ARE R/AT WANADURGA VILLAGE AND POST,
SHAHAPURA TALUK, GULBARGA DISTRICT.
(SINCE APPELLANT NOS.4 AND 5 ARE
MINORS REP. BY THEIR FATHER
APPELLANT NO.1) ... APPELLANTS
(BY SRI PRAKASH M.H., ADVOCATE)
3
AND:
1. ICICI LOMBARD GEN. INS. CO. LTD.,
NO.89, 2ND FLOOR, SVR COMPLEX,
HOSUR MAIN ROAD, MADIWALA,
BENGALURU-68.
BY ITS MANAGER.
2. CHANDRASHEKAR,
NO.3/11, 1ST CROSS,
BALAJINAGAR,
BENGALURU-61. ... RESPONDENTS
(BY SRI B.C.SHIVANNE GOWDA, ADVOCATE FOR R1;
NOTICE TO R2 IS HELD SUFFICIENT
VIDE ORDER DATED 23.05.2022)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 12.01.2017 PASSED
IN MVC NO.882/2015 ON THE FILE OF THE II ADDITIONAL SMALL
CAUSES JUDGE AND XXVIII ACMM, BENGALURU. PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A. NO.7042/2017:
BETWEEN:
M/S. ICICI LOMBARD GENERAL
INSURANCE COMPANY LTD.,
REGIONAL OFFICE,
NO.89, 2ND FLOOR, SVR COMPLEX,
HOSUR MAIN ROAD, MADIWALA,
BENGALURU-68.
NOW REPRESENTED BY ITS MANAGER LEGAL,
NOW RESIDING AT:
M/S. ICICI LOMBARD GIC LTD.,
REGIONAL OFFICE, THE ESTATE, 9TH FLOOR,
DICKENSON ROAD, M.G.ROAD,
BENGALURU-42. ... APPELLANT
(BY SRI B.C.SHIVANNE GOWDA, ADVOCATE)
4
AND:
1. AYYANNA @ AYYAPPA,
S/O BASANNA @ BASAPPA,
AGED ABOUT 47 YEARS.
2. SARANAPPA @ SHARABASAPPA,
S/O AYYANNA @ AYYAPPA,
AGED ABOUT 21 YEARS.
3. MARIYAMMA @ MAREMMA,
D/O AYYANNA @ AYYAPPA,
AGED ABOUT 18 YEARS.
4. VENKATESH,
D/O AYYANNA @ AYYAPPA,
AGED ABOUT 17 YEARS.
5. THAYAMMA,
D/O AYYANNA @ AYYAPPA,
AGED ABOUT 15 YEARS.
RESPONDENT NOS.4 AND 5 ARE MINORS
AND REP. BY 1ST RESPONDENT FATHER.
ALL ARE R/AT WANADURGA VILLAGE
AND POST, SHAHAPURA TALUK,
GULBARGA DISTRICT-585 223.
6. CHANDRASHEKAR,
No.3/11, 1ST CROSS,
BALAJINAGARA,
BENGALURU-61. ... RESPONDENTS
(BY SRI PRAKASH M.H., ADVOCATE FOR R1 & R2;
R3 IS SERVED;
R4 AND R5 ARE MINORS AND REPRESENTED BY R1;
NOTICE TO R6 IS HELD SUFFICIENT,
VIDE ORDER DATED 23.05.2022)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 12.01.2017 PASSED
IN MVC NO.882/2015 ON THE FILE OF THE II ADDITIONAL SMALL
5
CAUSES JUDGE AND XXVIII ACMM, AND MACT BENGALURU (SCCH-
13), AWARDING COMPENSATION OF RS.10,65,000/- WITH
INTEREST AT THE RATE OF RS.6% P.A. FROM THE DATE OF THE
PETITION TILL THE DATE OF DEPOSIT.
IN M.F.A. NO.7043/2017:
BETWEEN:
M/S. ICICI LOMBARD GENERAL
INSURANCE COMPANY LTD.,
REGIONAL OFFICE ,
NO.89, 2ND FLOOR, SVR COMPLEX,
HOSUR MAIN ROAD, MADIWALA,
BENGALURU-68.
NOW REPRESENTED BY ITS MANAGER LEGAL,
NOW RESIDING AT
M/S. ICICI LOMBARD GIC LTD.,
REGIONAL OFFICE,
THE ESTATE, 9TH FLOOR,
DICKENSON ROAD, M.G.ROAD,
BENGALURU-42. ... APPELLANT
(BY SRI B.C.SHIVANNE GOWDA, ADVOCATE)
AND:
1. SMT. MARIYAMMA @ MAREMMA,
W/O LATE RANGAIAH @ RANGAPPA,
NOW AGED ABOUT 40 YEARS.
2. SHIVA MOGGAMMA @ SHIVAMMA,
D/O LATE RANGAIAH @ RANGAPPA,
AGED ABOUT 21 YEARS.
BOTH ARE R/AT
WANADURGA VILLAGE AND POST,
SHAHAPURA TALUK,
GULBARGA DISTRICT-585 223.
3. CHANDRASHEKAR,
No.3/11, 1ST CROSS,
6
BALAJINAGARA,
BENGALURU-61. ... RESPONDENTS
(BY SRI PRAKASH M.H., ADVOCATE FOR R1 & R2;
VIDE ORDER DATED 23.05.2022,
SERVICE OF NOTICE TO R3 IS HELD SUFFICIENT)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 12.01.2017 PASSED
IN MVC NO.883/2015 ON THE FILE OF THE II ADDITIONAL SMALL
CAUSES JUDGE, AND XXVIII ACMM, MACT, BENGALURU, (SCCH-
13), AWARDING COMPENSATION OF Rs.8,95,000/- WITH INTEREST
AT THE RATE OF 6 PERCENT P.A. FROM THE DATE OF PETITION
TILL DEPOSIT IN COURT.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 29.11.2022, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
JUDGMENT
These four appeals are filed by the claimants and the Insurance Company challenging the judgment and award dated 12.07.2017, passed in M.V.C.Nos.883/2015 and 882/2015, on the file of the II Additional Small Causes Judge and XXVII ACMM, MACT, Bengaluru ('the Tribunal' for short) questioning the quantum of compensation and liability.
2. The factual matrix of the case of the claimants before the Tribunal in M.V.C.No.882/2015 is that the deceased Lakshmi succumbed to the injuries sustained in RTA on 19.02.2015 at about 9.00 a.m. involving Tata LGV 407 vehicle 7 and hence the claimants made the claim against the respondents stating that the accident had occurred solely due to the negligence on the part of the driver of the said vehicle and hence claimed the compensation.
3. In M.V.C.No.883/2015, the claimants who are the legal representatives of the deceased Mallappa @ Mollapppa also contended that the accident had occurred on account of the negligence on the part of the driver of the said vehicle and they are entitled for compensation.
4. In pursuance of the claim petition, respondent No.1 owner of the Tata LGV 407 vehicle had admitted that he is the RC owner of the said vehicle and the same is insured with respondent No.2 and the policy was in force as on the date of the accident. The driver of the said vehicle had valid and effective driving licence and also admitted that the deceased Lakshmi along with her concrete items had his vehicle for goods transportation and she was traveling with Mallappa @ Mollappa, cleaner of the said vehicle, on the date of the accident. The respondent No.2 in the written statement had admitted that they have issued the policy in respect of Tata LGV 407, but the 8 liability of respondent No.2 is subject to terms and conditions of the policy and contended that the deceased were traveling as gratuitous passenger in the insured lorry and the said vehicle was used in the public place without having a valid permit and fitness certificate, which is in violation of the policy conditions.
5. The claimants in order to prove their case examined the witnesses as P.W.1 and P.W.2 and got marked the documents at Exs.P.1 to 14. The respondent No.1 is examined as R.W.1 and got marked the driving licence as Ex.R.1. The respondent No.2 examined two witnesses as R.W.2 and R.W.3 and got marked the documents at Exs.R.2 to 9. The Tribunal after considering both oral and documentary evidence placed on record allowed both the claim petitions in part and directed respondent Nos.1 and 2 to pay the compensation of Rs.10,65,000/- to the petitioners in M.V.C.No.882/2015 and Rs.8,95,000/- to the petitioners in M.V.C.No.883/2015 with interest at the rate of 6% per annum. Hence, these four appeals are filed by the claimants as well as the Insurance Company.
9
6. The appellants/claimants in M.F.A.No.6224/2017 (M.V.C.No.882/2015) have contended that the Tribunal committed an error in taking the income of the deceased as Rs.7,000/- per month. The deceased had owned a concrete mixer and used to engage in construction industry by letting the mixer for rent. The deceased was also engaging the services of other coolies in the said work. The accident in question had occurred while the deceased was proceeding in a goods vehicle which was hired by the deceased along with the concrete mixer. Since the deceased has engaged herself in an unorganized sector, no fool proof documents are produced in order to substantiate her income. The Tribunal ought to have taken the totality of the facts and committed an error in not awarding just and reasonable compensation. The Tribunal on an erroneous appreciation on the facts has denied the compensation on account of the future prospects of the deceased and no reasons are recorded by the Tribunal while granting compensation. The Tribunal also erroneously comes to the conclusion that appellant No.1 cannot be considered as a dependant on the income of the deceased. The deceased apart from engaging in the work outside, has also contributed her services as a home maker. The 10 Tribunal has not properly deducted personal expenditure of the deceased and failed to take into consideration the number of dependants. The compensation of Rs.20,000/- awarded under the head of loss of consortium is on the lower side. Hence, it requires interference of this Court.
7. The appellants/claimants in M.F.A.No.6225/2017 (M.V.C.No.883/2015) have contended that the deceased was working as a cleaner in the goods vehicle, which was involved in the accident and he was earning Rs.9,000/- per month. The owner of the goods vehicle in which the deceased was working has given the evidence to that effect. The Tribunal without taking into consideration this part of the evidence has taken the income of the deceased at Rs.7,000/- per month, which is on the lower side. The Tribunal also has denied the compensation under loss of future prospects of the deceased who died at the age of 18 years and the compensation awarded on other heads are also very meager. The learned counsel in support of his arguments would vehemently contend that this was an accident of the year 2015 and the notional income would be Rs.9,000/- per month. The taking of the income of Rs.7,000/- per month is meager and hence it requires interference of this Court. 11
8. The learned counsel in support of his arguments, relied upon the judgment of the Apex Court in the case of ANU BHANVARA ETC. v. IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED AND OTHERS reported in AIR 2019 SC 3934, wherein the Apex Court discussed with regard to the principle of pay and recover in a case of the claimants, gratuitous passenger in goods vehicle and insurance of the vehicle, though as a goods vehicle, not disputed by the parties. Claimants are young children who suffered permanent disability on account of injuries sustained in the accident. On facts and circumstances, principle of pay and recover directed to be invoked and insurer directed to pay amount of compensation to the claimants and recover the same from the insured. In paragraph No.9 of the judgment it is held that since the vehicle was admittedly insured with respondent No.1 Insurance Company, the principle of pay and recover would be invoked even in case of gratuitous passenger in a goods vehicle. The Insurance Company should thus be made liable for the payment of compensation to the appellants and in turn they would have the right to realise/recover the same from the owner and driver of the vehicle.
12
9. The learned counsel also relied upon the judgment of this Court in the case of UNITED INDIA INSURANCE CO. LTD. v. SMT. SUSHEELAMMA reported in 2021 Supreme (Kar) 267, wherein this Court held that subsequent to 1994 amendment, legislature wanted to bring within the sweep of Section 147 of the MV Act and make it compulsory for the insurer to insure even in case of a goods vehicle, owner of goods or his authorized representative being carried in a goods vehicle when that vehicle met with an accident and owner of the goods vehicle or his representative either dies or suffers bodily injury. The Court did not find any merit in the appeal to come to other conclusion that the Tribunal has committed an error in fastening the liability on the Insurance Company. The cases of SHIVA @ SHIVASHANKAR v. RAJESH AND ANOTHER reported in 2019(1) KCCR 860 and NEW INDIA ASSURANCE CO. LTD. v. ASHA RANI AND OTHERS reported in (2003) 2 SC 223 are relied upon.
10. The learned counsel relying upon these two judgments would contend that the Tribunal rightly fastened the liability on the insurer.
13
11. The Insurance Company in M.F.A.No.7042/2017 challenging the judgment and award passed in M.V.C.No.882/2015, contended that the decision of the Tribunal in directing the appellant to pay the compensation, even though owner of the goods tempo allowed to carry unauthorized passenger, knowing fully well that such risk is not covered under Section 147(1) of the MV and therefore the order passed by the Tribunal is perverse order. It is contended that the Tribunal erred in coming to the conclusion that the first respondent's wife was traveling in the goods tempo as owner of the concrete mixer is nothing but perverse in nature and against the contents of FIR and contend that the contents of the FIR, which has come into existence at an undisputed point of time basing on the complaint lodged by the co-passenger and the same has not been considered by the Tribunal. The respondent No.1 also not produced any documents to prove that she was the owner of the concrete mixer and she was proceeding in a goods tempo as owner of the goods as alleged and committed an error in accepting the contention of the claimants before the Tribunal and passed perverse order.
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12. The Insurance Company in M.F.A.No.7043/2014 challenging the judgment and award passed in M.V.C.No.883/2015 contends that the quantum of compensation awarded is exorbitant and similar grounds are urged in this appeal that the Tribunal directing the appellant to pay the compensation, even though the owner of the goods tempo allowed to carry unauthorized passenger knowing fully well that such risk is not covered under Section 147(1) of the MV Act and inspite of the same comes to an erroneous conclusion that first respondent's son was traveling in the goods tempo as a cleaner is nothing but perverse in nature.
13. 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 not awarding just and reasonable compensation as contended by the learned counsel for the claimants?
(ii) Whether the Tribunal has committed an error in directing the Insurance Company to pay the compensation amount in coming to the conclusion that one of the deceased was 15 traveling as a cleaner and another deceased was carrying the goods in goods vehicle and whether it requires interference of this Court?
(iii) What order?
Point No.(i):
14. It is the contention of the learned counsel appearing for the claimants in his argument that the deceased met with accident on 19.02.2015 and suffered injuries and succumbed to the injuries. In respect of the claim made by the claimants in M.V.C.No.883/2015, the deceased was aged about 18 years and he was working as a Cleaner. The claim is made by the mother and sister and the Tribunal erroneously considered the income as Rs.7,500/- and the notional income would be Rs.9,000/- per month. The compensation awarded on the other heads is also very meager. Hence, it requires interference of this Court. The learned counsel appearing for the Insurance Company would vehemently contend that the quantum of compensation awarded is just and reasonable and the deceased was aged about only 18 years and in order to prove that he was working as a Cleaner, no document is placed before the Court.
16
15. Now looking into the material available on record, the claimants in M.V.C.No.883/2015 are the mother and sister and the accident has occurred on 19.02.2015 and the notional income would be Rs.9,000/- per month in the absence of any documentary evidence. Hence, this Court has to recalculate the compensation taking into consideration the notional income of Rs.9,000/- per month. The deceased was aged about 18 years and hence, 40% has to be added as future prospects which makes the income as Rs.12,600/-per month. (9,000 + 3,600). Out of the income of Rs.12,600/- per month, 50% has to be deducted towards personal expenses since, the deceased is a bachelor. Hence, after deducting 50%, the income comes to Rs.6,300/- (12,600 x 50 / 100). Hence, taking the income at Rs.6,300/- per month and the relevant multiplier of '18', the loss of dependency works out to Rs.13,60,800/- (6,300 x 12 x 18) as against Rs.8,10,000/- awarded by the Tribunal.
16. The Tribunal awarded Rs.30,000/- on the head of transportation of dead body and funeral expenses. In view of settled law, the claimants are entitled for compensation of Rs.33,000/- on the head of funeral expenses as well as loss of 17 estate. The Tribunal has separately awarded compensation of Rs.30,000/- towards loss of estate and the same appears to be on higher side and the question of awarding separate compensation on the head of loss of estate does not arise.
17. The Tribunal awarded only Rs.25,000/- towards loss of love and affection. The claimants are mother and sister and hence, they are entitled for an amount of Rs.40,000/- each towards loss of love and affection which comes to Rs.80,000/- (40,000 x 2). Hence, in all, the claimants are entitled for compensation of Rs.14,73,800/- as against Rs.8,95,000/- awarded by the Tribunal.
18. Now coming to the quantum of compensation in M.V.C.No.882/2015, the claimants are the husband the children, who are 5 in number and it is their case that the deceased had owned concrete machine and was doing concrete work. It is also the claim that, she was earning Rs.25,000/- per month and she used to supply concrete machine and also concrete equipments to the persons, who hire for concrete work and the Tribunal, taking the income at Rs.7,000/- per month, calculated the loss of dependency and awarded compensation on other heads. 18
19. Admittedly, in the claim in M.V.C.No.882/2015, the deceased was aged about 40 years and the Tribunal, considering the particulars in the ration card which was issued on 13.11.2012, wherein her age is shown as 34 years, arrived at the conclusion that, at the time of her death, she can be considered as 36 years and applying the multiplier of '15' and without adding future prospects, deducted 1/4th towards personal expenses as there were 5 dependents and awarded the compensation. However, it is the accident of the year 2015 and this Court has to take the notional income at Rs.9,000/- per month. Hence, taking the income at Rs.9,000/- per month and after adding 40% towards future prospects, the income comes to Rs.12,600/- per month. Out of the amount of Rs.12,600/- per month, 1/4th has to be deducted towards personal expenses, since there are 5 dependants which comes to Rs.3,150/-. Hence, after deducting the same, the income comes to Rs.9,450/-(12,600 - 3,150). Therefore, taking the income at Rs.9,450/- per month and the relevant multiplier of '15', a sum of Rs.17,01,000/- (9,450 x 12 x 15) is awarded towards loss of dependency as against Rs.9,45,000/- awarded by the Tribunal. 19
20. The Tribunal awarded only an amount of Rs.50,000/- towards loss of love and affection and Rs.20,000/- towards loss of consortium. The material discloses that claimant No.1 is the husband and Claimant Nos.2 to 5 are the children. Hence, they are entitled for an amount of Rs.40,000/- each on the head of loss of love and affection which comes to Rs.2,00,000/- (40,000 x 5).
21. Apart from that, the claimants are also entitled for an amount of Rs.33,000/- towards loss of estate and funeral expenses. Hence, the award of Rs.30,000/- towards transportation of dead body and Rs.20,000/- towards loss of estate separately does not arise. Hence, in all, the claimant is entitled for compensation of Rs.19,34,000/- as against Rs.10,65,000/- awarded by the Tribunal. Accordingly, I answer point No.(i) as 'partly affirmative'.
Point No.(ii)
22. It is the main contention of the Insurance Company that the Tribunal committed an error in directing the Insurance Company to pay the compensation amount in coming to the conclusion that one of the deceased was traveling as a Cleaner 20 and another deceased was carrying the goods in the goods vehicle and the very approach of the Tribunal is erroneous. The counsel mainly contend that the deceased are the passengers in the goods vehicle and there were 13 persons, including the persons who have died and the same is mentioned in the complaint and it is also clearly mentioned that they were traveling in the goods vehicle to attend the work. The counsel would further submit that the vehicle was not carrying any goods and the vehicle involved in the accident is a goods vehicle and in order to prove that the deceased Mallappa was a Cleaner, no documents are placed before the Court and inspite of it, the Tribunal committed an error in directing the Insurance Company to pay the compensation.
23. On the other hand, learned counsel appearing for the claimants would submit that, though in the complaint, it is mentioned that the deceased are the workers and loaders proceeding in the vehicle, the material clearly discloses that the deceased Mallappa was a Cleaner and the owner also admits the same in his evidence before the Court. The owner also states that the deceased Lakshmi hired the said vehicle to transport the 21 concrete mixture. The counsel also would submit that, spot mahazar is very clear that concrete mixture was found at the time of the accident. Even though the Insurance Company examined the Investigating Officer as R.W.2, nothing is elicited and he categorically says that, during the course of investigation, it has emerged that the deceased Mallappa was traveling as a Cleaner and the other deceased Lakshmi was proceeding as a owner of concrete machine. Apart from that, the concrete mixture was released in favour of the husband of deceased Lakshmi. These are the materials which are considered by the Tribunal and the Tribunal has not committed an error in fastening the liability on the Insurance Company.
24. Having heard the respective counsel and also on perusal of the material available on record, no doubt, in the complaint, it is stated that they were traveling in the vehicle in connection with the work of one Devendrappa and it is also specifically stated that, whenever they get concrete work, they used to travel in the tempo and by making a camp, they were doing the said work. The Insurance Company also mainly relied upon the document of complaint and no doubt, FIR and contents 22 of the complaint discloses that they went in a vehicle and used to make camp and do the concrete work but, the document at Ex.P2-spot mahazar discloses that the vehicle was turtled and concrete equipments in the vehicle were damaged and spread all over the spot. Hence, it is clear that the concrete equipments were there in the vehicle. Apart from that, the Insurance Company took the specific defence that the deceased were traveling as gratuitous passengers and in order to prove the contents of document of complaint at Ex.P1, they have not examined the complainant and the Insurance Company ought to have examined the complainant to prove the same and the defence which was taken by the Insurance Company remained as a defence and the same has not been proved.
25. No doubt, the respondents examined the witnesses as R.Ws.1, 2 and 3, on perusal of the evidence of R.W.1 (RC owner), he says that the deceased Lakshmi took the vehicle for hire purpose to transport the concrete mixture. In the cross- examination of R.W.1, except the suggestions that both the deceased traveled as gratuitous passengers, nothing is elicited. R.W.1 categorically admits that, when he had been to police 23 station, one Mr. Sharanappa had already lodged complaint to the police but, he does know whether Sharanappa had stated in his complaint that nearly 8-10 workers were working with Devendrappa, who were brought from Shahapura but, it is his evidence that the deceased Mallappa was working as a Cleaner. It is suggested that only in order to evade liability falsely deposing that the deceased Mallappa was a Cleaner and the same was denied.
26. The Insurance Company also examined the CPI of Kanakapura as R.W.2. In his evidence, he says that he has received the statement of Chandrashekar, who is the owner of the four wheeler and his statement is marked as Ex.R2 and he has also recorded the statement of Devendrappa and the same is marked as Ex.R3. He also claims that, at the time of investigation, he had come across that the concrete materials belonging to Lakshmi were being transported from Kanakapura to Malavalli. One Chandrashekar in his statement had stated that he was taking the concrete materials belonging to his brother in 407 vehicle and photographs which were taken at the spot of accident are marked as Exs.R4 to R9. He also claims 24 that, on the basis of the statement of witness, it is asserted in the charge-sheet that deceased Lakshmi is the owner of concrete materials. This witness was also cross-examined by the learned counsel for the petitioner. In the cross-examination, it is elicited that concrete machine which was in the tempo was released in favour of husband of deceased Lakshmi. He further admits that, on the date of accident, deceased Lakshmi having hired the tempo was taking her concrete machine in the said tempo towards Malavalli from Kanakapura. He also admits that the deceased Mallappa is the Cleaner of the tempo.
27. The other witness relied upon by the Insurance Company is R.W.3, who is the Legal Manager and he claims that the deceased are gratuitous passengers. He was subjected to cross-examination and in the cross-examination, he admits that he is not having any personal knowledge of accident but, he is giving evidence based on the documents. He admits in the cross-examination that, he has stated in his affidavit evidence that the deceased Lakshmi and Mallappa are gratuitous passengers on the basis of the complaint. He admits that, as per the charge-sheet, Mallappa is a Cleaner and Lakshmi was the 25 owner of the concrete machine. It is also elicited that, they have not produced any documents to show that Mallappa and Lakshmi are gratuitous passengers. He does not know whether the owner of the vehicle had admitted the guilt on appearance after having served with the summons. He also admits that, policy covers the risk of 4 persons i.e., paid driver, personal accident cover of paid driver, cleaner and Conductor.
28. Having perused the material available on record i.e., both oral and documentary evidence, no doubt, the Insurance Company took the specific defence that the deceased are gratuitous passengers and the same is also admitted based on the contents of the complaint, in order to prove the contents of the complaint, the complainant Sharanappa has not been examined by the Insurance Company and mere marking of complaint is not enough and the same has to proved by examining the author of the document and the same has not been done. Apart from that, R.W.3 in the cross-examination categorically admits that they have not produced any document to show that deceased Mallappa and Lakshmi are gratuitous passengers and only based on the complaint, they have taken 26 the defence that they are gratuitous passengers. I have already pointed out that the contents of the complaint has not been proved. Apart from that, R.W.2, who is the witness of Insurance Company i.e., CPI of Kanakapura Taluk categorically admits that, while filing the charge-sheet, he has stated that deceased Mallappa is the Cleaner of the tempo and Lakshmi is the owner of the concrete machine.
29. It is also important to note that the witness R.W.2 categorically admits that, after the accident, the concrete mixture was released to the owner as per his direction. He further admits that, concrete machine which was in the tempo was released in favour of the husband of deceased Lakshmi and further admits that, on the date of the accident, deceased Lakshmi having hired the concrete machine was taking the same in the tempo towards Malavalli from Kanakapura and the witness R.W.1 (RC owner) also admits hiring of vehicle by deceased Lakshmi. Apart from that, Ex.P2-spot mahazar discloses that concrete equipments which were damaged were there at the spot of the accident and the same was found at the spot. When such admission and evidence is available before the Court, mere 27 taking of defence that the deceased are gratuitous passengers is not enough and the same has to be proved and in order to prove the same, the Insurance Company, first of all has not examined the complainant when the contents of the complaint are relied upon and the other materials placed before the Court also not substantiates the case of the Insurance Company.
30. The witness R.W.3, who is the Manager of the Insurance Company categorically admits that, no document is produced to show that the deceased are gratuitous passengers. Hence, I do not find any error committed by the Tribunal in relying upon the material available on record. The Tribunal also in detail discussed in the judgment, while considering the defence of the Insurance Company in Para Nos.19, 20, 21 and 22 and rightly comes to the conclusion that the Insurance Company has not proved the defence that the deceased are gratuitous passengers. Hence, I do not find any error committed by the Tribunal in fastening the liability on the Insurance Company. Accordingly, I answer point No.(ii) as 'negative'. 28 Point No.(iii)
31. In view of the discussions made above, I pass the following:
ORDER
(i) The appeals filed by the claimants in M.F.A.Nos.6225/2017 and 6224/2017 and the appeals filed by the Insurance Company in M.F.A.Nos.7042/2017 and 7043/2017 are allowed in part.
(ii) The impugned judgment and award of the
Tribunal dated 12.01.2017 in
M.V.C.No.882/2015 is modified, granting
compensation of Rs.19,34,000/- as against
Rs.10,65,000/- with interest at 6% per annum.
(iii) The impugned judgment and award of the Tribunal dated 12.01.2017 in M.V.C.No.883/2015 is modified, granting compensation of Rs.14,73,800/- as against Rs.8,95,000/- with interest at 6% per annum.
(iv) The Insurance Company is directed to pay the compensation amount with interest within six weeks from today.29
(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.
(vii) In all other respects, the order of the Tribunal remains undisturbed.
Sd/-
JUDGE MD/ST