Karnataka High Court
Kumar Sandeep S/O Sanad Nandnikar vs Krishna Dattatray Joshi on 8 April, 2022
Author: N.S. Sanjay Gowda
Bench: N.S. Sanjay Gowda
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S. SANJAY GOWDA
MFA No.102312/2014 (MV-D)
BETWEEN:
1. Kumar Sandeep S/o. Sanad Nandnikar,
Age 24 years, Occ: Private Service,
R/o.: Ibrahimpur Peth, Ward No.6,
Bijapur, Now residing at Nipani,
Tq.: Chikodi, Dist.: Belagum.
2. Miss Supriya D/o. Sanad Nandnikar,
Age 22 years, Occ: Nil,
R/o.: Ibrahimpur Peth, Ward No.6,
Bijapur, Now residing at Nipani,
Tq.: Chikodi, Dist.: Belagum.
... Appellants
(By Shir Sharad V.Magadum, Advocate)
Digitally AND:
signed by J
MAMATHA
J Location: 1. Shri Krishna Dattatray Joshi,
MAMATHA Dharwad Age major, Occ: Transport Business,
Date:
2022.04.13
10:48:47 R/o.: 3029, Teli Galli, Nipani,
+0530
Tq.: Chikodi, Dist.: Belgaum.
2. The United India Insurance Co. Ltd.,
Branch at 24th, 1st Floor, Ashok Nagar,
Nipani, Through its Divisional Manger.
... Respondents
(By Smt. Preeti Shashank, Advocate for R2;
R1 - served & unrepresented)
This MFA is filed under Section 173(1) of M.V. Act, 1988,
against the Judgment and Award dated 19.11.2009, passed in
MVC No.913/2005, on the file of the Prl. Civil Judge (Sr.Dn.) &
Member Addl. MACT, Belgaum, dismissing the petition filed
under Section 166 of the M.V. Act.
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MFA No. 102312 of 2014
This appeal coming on for admission, this day, the Court
delivered the following:
JUDGMENT
1. This appeal is preferred challenging the dismissal of the claim petition.
2. A claim petition was preferred by Smt. Sunita and her two minor children alleging that her husband was travelling in a truck bearing registration No.KA23/9393 as a Cleaner from Reddy to Ahamedabad and when the truck came near Satwad Cross, Goldhara Khadi in Gujarat, a tanker overtook the truck of the deceased and at that time, the rider of the motorbike bearing registration No.GBD-4749 came from opposite direction and crashed into the truck of the deceased and as a result, the truck of the deceased hit the roadside tree and thereafter fell into a river. As a result of this collision, it was stated that the deceased sustained grievous injuries and he died on the spot itself.
3. It was also stated that the postmortem was conducted at G.G. Civil Hospital, Vavasari District, Valsad and the body was handed over to them. It was stated that the deceased was earning a monthly income of Rs.4,000/- and the -3- MFA No. 102312 of 2014 claimants were entirely dependent on the income of the deceased and they were entitled to a just compensation.
4. On service of notice, the owner of the truck as well as the insurer of the truck entered appearance. For non taking steps, the claim petition against the respondent No.3 i.e., the owner of the motorbike was dismissed.
5. The owner of the truck, in his objections, admitted that the deceased Sanadkumar S/o. Anantkumar Nandnikar was proceedings in his truck and had been engaged as a Cleaner. He also admitted that the truck was proceedings from Reddy to Ahamedabad. He also stated that the accident occurred when the driver of the tanker was overtaking his truck and at that time, there was collusion between the rider of the motorcycle and truck and as result of which the driver of the truck lost control and dashed to the roadside tree and ultimately fell into the river. In other words, the owner of the truck admitted that the deceased was travelling in a truck and had been engaged as a Cleaner.
6. The insurer entered appearance and denied all the averments made in the claim petition. The insurer also took up -4- MFA No. 102312 of 2014 a plea that the claimants had earlier preferred a claim petition under the W.C. Act and the same had been dismissed and they had also filed a petition for restoration and that was also dismissed for default. It was stated that in the present case, an altogether different plea had been set up contrary to the averments made before the Commissioner under the W.C. Act.
7. An allegation was made that the deceased was travelling as a gratuitous passenger and was not an employee of the truck and as a consequence, the insurer would not be liable.
8. The Tribunal on consideration of the evidence came to the conclusion that the deceased had died in the accident. However, it took the view that there was nothing on record to show that the deceased was a Cleaner travelling in the Truck. The Tribunal observed that the claimants in the proceedings instituted under the W.C. Act had contended that the deceased was a driver, whereas in the proceedings under Section 166 of the M.V. Act, they had put forth a plea that the deceased was a Cleaner and these contradictions disentitled them from claiming any relief. The Tribunal accordingly dismissed the petition. -5- MFA No. 102312 of 2014
9. Learned counsel for the petitioner contends that reliance on the plea made in the proceedings instituted before the W.C. Commissioner would have no relevance, since the employer in the instant case appeared before the Tribunal and admitted that the deceased had been engaged as a Cleaner. He submitted that the claimants were illiterate people and a pleading which has been essentially drafted by a counsel should not be held against them when there was clear evidence that the deceased was a Cleaner and had been killed in a motor vehicle accident.
10. Smt. Preeti Shashank, learned counsel on the other strenuously contended that there is absolutely no merit in the appeal and the same deserves to be dismissed with exemplary costs. She contended that once the claimants themselves stated that the deceased was a driver, it was impermissible for them to put forth the plea that he was a Cleaner in the proceedings under the M.V. Act. According to her, this contradiction in the status of the deceased would disentitle the claimants from claiming any relief.
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11. In this case, it is not in dispute that the deceased did die as a result of accident which occurred on 21.03.1997 in Gujarat. The postmortem report, which is produced as Ex.P4 states that the death occurred on 21.03.1997 at 1:00 p.m. due to the injuries suffered in a vehicular accident. The injuries recorded indicate that the death was due to cardio respiratory arrest as a result of injury to lungs and internal and external hemorrhages. These injuries recorded in the postmortem report lead to the undeniable inference that the death was due to a vehicular accident.
12. The entire argument of the learned counsel for the insurer stems from the fact that in the complaint, it has been stated that the deceased was a driver, who was killed in the accident and whereas in the claim petition, it had been stated that the deceased was working as a cleaner. No doubt in the complaint that had been lodged before the Police, it has been stated that the deceased was driving the truck. However, as noticed above, admittedly the deceased had died at the spot on 21.03.1997 and the complaint was lodged by one Dharjan Varadhraj Joshi, the brother of the owner of the truck, who was travelling in the truck.
-7-MFA No. 102312 of 2014
13. It is to be stated here that the owner of the Truck i.e., Krishna Dattatray Joshi, who is stated to be the brother of the complainant, himself stated that he had engaged the services of the deceased as a cleaner.
14. Admittedly, the insurer did not take any steps to summon the said Dharjan Varadhraj Joshi and subject him to cross examination so as to elicit who was driving the vehicle. In the absence of any independent evidence adduced by the Insurance Company that the deceased was the driver and not the cleaner, it cannot be accepted that statements found in the FIR would define the status of the deceased.
15. One thing that is undisputable is that the deceased was traveling in the Truck when he was killed in the accident. The other undisputable fact is that the owner of the Truck himself came and stated before the Tribunal that the deceased had been engaged as a cleaner. If it is the case of the insurer that there was a collusion between the owner of the Truck and the claimants, it was incumbent for the insurer to establish the collusion in a manner known to law. It was open for the insurer to summon the complainant or to procure and produce -8- MFA No. 102312 of 2014 evidence indicating collusion. In the absence of any evidence adduced by the insurer about this alleged collusion, it cannot be assumed that there was collusion merely because a allegation of collusion was made by the insurer.
16. It may be pertinent to state here that admittedly, the Truck was carrying three people and the persons so carried were within the permissible carrying capacity of the Truck. Consequently, when the number of people traveling in the Truck was within the carrying capacity then the Insurance Company cannot exonerate itself of its liability by taking pleas that the persons traveling in the vehicle were drivers or cleaners.
17. In order to entertain a plea of a gratuitous passenger, the attendant circumstances will also have to be taken into consideration. It is to be stated here that admittedly the accident occurred in the State of Gujarat, whereas, the deceased was undisputedly a permanent resident of Nippani. It is inconceivable that a resident of Gujarat would be traveling as a gratuitous passenger in a Truck traveling in the Gujarat State. In the light of these attendant circumstances and in the -9- MFA No. 102312 of 2014 background of the fact that the owner of the Truck admitted that the deceased was his employee, no argument can be put forth that the deceased was a gratuitous passenger. Infact even as per the FIR, upon which great reliance was placed by the learned counsel, the deceased was not a gratuitous passenger but was stated to be a driver i.e., an employee of the Truck. I am therefore of the view that the claim petition ought not to have been dismissed.
18. The argument that there were contradictory pleadings in the proceedings before the Commissioner under the Workmen's' Compensation Act and proceedings under the Motor Vehicles Act and therefore, the Tribunal was justified in dismissing the claim petition cannot also be accepted. It is to be kept in mind that in a motor vehicle accident, the strict requirements of pleadings cannot really be pressed into service. Infact a receipt of a police report can be treated as a claim petition under the Act.
19. It is also to be borne in mind that the claimants being a widow with minor children would have no worldly knowledge in the matter of putting forth pleas before a Court of
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MFA No. 102312 of 2014 law and the pleas put forth before a Court are essentially by a counsel. In the instant case, when once the owner of the Truck himself admitted that the deceased was an employee, the pleadings made either in the proceedings under the Workmen's Compensation Act or under the Motor Vehicles Act would really have no significance.
20. As noticed above, the admitted evidence itself establishes that the deceased was not a gratuitous passenger and he was engaged as an employee of the Truck. In that view of the matter, I am of the view that the claim petition deserves to be accepted and considered on merits.
21. The accident is of the year 1997 and at this point in time i.e., after 25 years, remanding the matter to the Tribunal for assessment of compensation would be unfair to the parties concerned. I therefore propose to assess the compensation also.
22. Admittedly, the deceased was aged 40 years as per the postmortem report, though in the claim petition it has been stated that he was 47 years. Admittedly, he was employed as a Cleaner in the said lorry. Admittedly, there is no documentary
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MFA No. 102312 of 2014 evidence to assess the monthly income. In that view of the matter, having regard to the income determined by the Karnataka State Legal Services Authority in respect of the motor vehicles accident victims, for the year 2000 at Rs.4,000/- per month. It would be appropriate to consider the income of the deceased as Rs.3,000/- per month since the accident took place in 1997.
23. To the said income of Rs.3,000/-, future prospects of 25% would have to be added, which would result in his monthly income to be taken at Rs.3,750/-. As the deceased had a wife and two children and 1/3rd of the monthly income is to be deducted as personal expenses and this would result in his monthly income, for the purposes of computing the loss of dependency, to be taken at Rs.2,500/-. As the deceased was aged 40 years, multiplier of 15 would have to be applied. Consequently, the claimants would be entitled to the (Rs.2,500/- X 12 X 15 =) Rs.4,50,000/-.
24. In addition, the claimants being the widow and minor children would each be entitled to Rs.44,000/- for loss of
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MFA No. 102312 of 2014 consortium apart from Rs.33,000/- awarded under the conventional heads.
25. In all the claimants would be entitled to compensation of Rs.6,15,000/- with interest at the rate of 6% per annum from the date of petition till deposit.
26. The claimants will not however be entitled to compensation for a period of 1,658 days of delay in filing this appeal.
27. It is stated that the widow of the deceased also passed away after award of the Tribunal but before filing of this appeal and hence the appeal is preferred only by the children. In that view of the matter, the compensation to be deposited by the Insurance Company shall be disbursed in equal proportions to the appellants-children.
Sd/-
JUDGE Vnp* & CKK