Karnataka High Court
Smt. Shobha Sanil vs Sri Pushparaj Jain on 28 August, 2020
Equivalent citations: AIRONLINE 2020 KAR 1724
Bench: Alok Aradhe, H T Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF AUGUST 2020
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD
M.F.A. NO.6884/2016
C/W
M.F.A. NO.2500/2016 (MV)
M.F.A. NO.6884/2016
BETWEEN:
1. SMT. SHOBHA SANIL
W/O LATE DR. BALAKRISHNA SANIL
AGED ABOUT 40 YEARS.
2. MEGHA
D/O LATE BALAKRISHNA SANIL
AGED 18 YEARS.
3. SAKSHATH
S/O LATE DR. BALAKRISHNA SANIL
AGED 16 YEARS.
APPELLANT NO.3 IS A MINOR AND
REPRESENTED BY HIS MOTHER
APPELLANT NO.1 SMT. SHOBHA SANIL.
ALL ARE RESIDING AT SRI DEVI NIVASA
MELLIGUDDE, KOMPADAVU POST
MANGALORE TALUK, D.K.DISTRICT-575012.
... APPELLANTS
(BY SRI. D. KRISHNA MOORTHY, ADV.,)
2
AND:
1. SRI. PUSHPARAJ JAIN
S/O MUNI RAJ JAIN
AGED 47 YEARS
R/AT ABISH BUILDERS
ESSEL CENTER, M.G.ROAD
MANGALORE-575001.
2. ICICI LOMBARD INSURANCE CO. LTD.,
414, VEER SAVARKAR MARG
NEAR SIDDIVINAYAKA TEMPLE
MUMBAI, BRANCH OFFICE:
C-22, 2ND FLOOR, LIGHT HOUSE
HILL ROAD, MANGALORE
REPRESENTED BY
ITS BRANCH MANAGER-575001.
3. SMT. BABY
W/O LATE SUBBA POOJARY
AGED 72 YEARS
R/AT. KALLAMUNDKUR HOUSE
BANANGADY POST
MANGALORE TALUK, D.K.DISTRICT.
... RESPONDENTS
(BY SRI. K. CHANDRANATH ARIGA, ADV., FOR R1
SRI. N.K. HARISH, ADV., FOR R3
SRI. A.N. KRISHNASWAMY, ADV., FOR R2)
---
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 02.02.2016 PASSED
IN MVC NO.956/14 ON THE FILE OF THE 1ST ADDITIONAL
DISTRICT JUDGE & 2ND ADDITIONAL MACT, MANGALORE, D.K.
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A. NO.2500/2016
BETWEEN:
ICICI LOMBARD GEN INS CO. LTD.,
414, VEERA SAVARKAR MARG
NEAR SIDDI VINAYAKA TEMPLE
3
MUMBAI, BRANCH OFFICE:
C-22, 2ND FLOOR, LIGHT HOUSE
HILL ROAD, MANGALORE-575001
NOW REPRESENTED BY
MANAGER - LEGAL
ICICI LOMBARD GENERAL INSURANCE
CO. LTD., 0TH FLOOR, THE ESTATE 121
DICKENSON ROAD, M.G. ROAD
BENGALURU-560042.
... APPELLANT
(BY SRI. A.N. KRISHNASWAMY, ADV.,)
AND:
1. SMT. SHOBHA SANIL
W/O LATE DR. BALAKRISHNA SANIL
AGED ABOUT 40 YEARS.
2. MEGHA
D/O LATE BALAKRISHNA SANIL
AGED 18 YEARS.
3. SAKSHATH
S/O LATE DR. BALAKRISHNA SANIL
AGED 16 YEARS.
RESPONDENT NO.3 IS A MINOR AND
REPRESENTED BY HIS MOTHER
RESPONDNET NO.1.
ALL ARE RESIDING AT SRI DEVI NIVASA
NELLIGUDDE, KOMPADAVU POST
MANGALORE TALUK, D.K.DISTRICT-574144.
4. PUSHPARAJ JAIN
S/O MUNI RAJ JAIN
AGED 47 YEARS
R/AT ABISH BUILDERS
ESSEL CENTER, M.G.ROAD
MANGALORE-574144.
5. SMT. BABY
W/O LATE SUBBA POOJARY
AGED 72 YEARS
R/AT. KALLAMUNDKUR HOUSE
4
BANANGADY POST
MANGALORE TALUK, D.K.DISTRICT.
... RESPONDENTS
(BY SRI. D. KRISHNAMOORTHY, ADV., FOR R1 & R2
SRI. K. CHANDRANATH ARIGA, ADV., FOR R4
R3 MINOR REP. BY R1
R5 SERVED AND UNREPRESENTED)
---
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 02.02.2016 PASSED
IN MVC NO.956/14 ON THE FILE OF THE MACT-2, 1ST ADDITIONAL
DISTRICT & SESSIONS JUDGE, C.K., MANGALURU, AWARDING
COMPENSATION OF RS.13,87,500/- WITH INTEREST AT 6% P.A.
FROM THE DATE OF PETITION TILL ITS DEPOSIT.
THESE M.F.As. COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
COMMON JUDGMENT
M.F.A.No.6884/2016 under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) has been filed by the claimants, whereas, M.F.A.No.2500/2016 under Section 173(1) of the Act has been filed by the insurance company against the judgment dated 02.02.2016 passed by the Motor Accident Claims Tribunal (hereinafter referred to as 'the MACT' for short). Since, both the appeals arise from the same accident and same judgment passed by the Tribunal, they were heard together and are being decided by this common judgment. 5
2. Facts leading to filing of this appeal briefly stated are that on 10.02.2014, deceased Dr.Balakrishna Sanil was proceeding on his motor cycle from Lady Hill Junction towards Urva Market. When he reached Lady Hill Church, an Innova Car bearing registration No.KA-19-MB-9818 came from the opposite direction, which was being driven in high speed and rash and negligent manner and while taking over another vehicle came on the wrong side of the road and dashed the motor cycle of the deceased and dragged the deceased to some distance. As a result of the aforesaid accident, deceased sustained grievous injuries and was shifted to Global Multi Specialty Hospital, Mangalore and succumbed to the injuries on 12.02.2014.
3. The claimants thereupon filed a petition under Section 166 of the Act inter alia on the ground that the deceased at the time of the accident was aged about 45 years and was employed in Global Multi Specialty Hospital and was earning a salary of Rs.45,000/- per month. It was further pleaded that the deceased was the only earning member of the family and the accident took place due to rash 6 and negligent driving of the driver of the Innova car. The claimants claimed compensation to the tune of Rs.75 Lakhs along with interest.
4. The respondent No.1 in the written statement denied that the Innova car was being driven in a rash and negligent manner and dashed against the motor cycle of the deceased. It was pleaded that deceased was driving his motor cycle in rash and negligent manner and there is no nexus between the cause of death and the injuries sustained by the deceased in the accident. The age, income and avocation of the deceased was also denied and it was pleaded that the compensation claimed is excessive and arbitrary. The respondent No.2 in the written statement pleaded that the deceased was driving the motor cycle under the influence of alcohol. It was further pleaded that since, neither the driver nor the investigating officer had submitted a report with regard to the accident to the insurance company as required under Section 134(c) and 158(6) of the Act. Therefore, it is not liable to pay any compensation. It was also pleaded that the vehicle viz., Innova car was being 7 plied in violation of the terms and conditions of the policy and therefore, the insurance company is not liable to indemnify the insured.
5. The Claims Tribunal on the basis of the pleadings of the parties, framed the issues. The claimants in order to prove their case examined Smt.Shobha (PW1), P.Eshwara Moolya (PW2), Krishna Das (PW3), Karthik (PW4) and exhibited as many as 18 documents viz., Ex.P1 to Ex.P18. The respondents however, neither examined any witness nor produced any documents. The Claims Tribunal vide judgment dated 02.02.2016 inter alia held that after consideration of evidence of PW1, PW3 as well as PW4 and 'B' summary report produced by the insurance company as well as police, the negligence on the part of the deceased is higher and that of the driver of the Innova car is less. Accordingly, the Tribunal held that the deceased had contributed to the extent of 70% in causing the accident, whereas, the driver of Innova car had contributed to the extent of 30%. It was further held that the compensation payable to the claimants was assessed at Rs.46,25,000/-. 8 However, the claimants were held entitled to a sum of Rs.13,87,500/- along with interest at the rate of 6%, as the Tribunal had recorded the finding that deceased had contributed to the extent of 70% in causing the accident. In the aforesaid factual background, these appeals have been filed.
6. Learned counsel for the claimants submitted that the Tribunal in the state of evidence on record, grossly erred in holding that the deceased had contributed to the extent of 70% in causing the accident. It is further submitted that driver of the Innova Car had lodged the complaint that deceased had consumed alcohol, but as per the Forensic Science Laboratory report, no alcohol was found in the body of the deceased. It is further submitted that from the evidence of PW3 and PW4, it is evident that the accident took place on account of negligence of the driver of the Innova car. On the other hand, learned counsel for the insurance company submitted that the police had filed the charge sheet against the deceased and after a period of five months, a private complaint was filed by the widow, in which police 9 after carrying out the investigation has filed the 'B' report, which has become final. Our attention has also been invited to provisions of Rules of Road Regulations of Motor Vehicle and it has been contended that a person has to keep the vehicle on the left side and therefore, the driver of the Innova car cannot be held liable. It is further submitted that for initiation of the proceeding under Section 166 of the Act, the claimant is required to prove the negligence, in the absence of which the petition under Section 166 of the Act cannot be entertained. In support of aforesaid submissions, reliance has been placed on 'MINU B. MEHTA AND ANOTHER VS. BALKRISHNA RAMCHANDRA NAYAN AND ANOTHER', AIR 1977 SC 1248 and 'MUNICIPAL CORPORATION OF GREATER BOMBAY VS. LAXMAN IYER AND ANOTHER', (2004) ACJ 53.
7. We have considered the submissions made by learned counsel on both the ssides and have perused the record. A division Bench of this court in 'SHARADABAI VS. KARNATAKA STATE ROAD TRANSPORT CORPORATION', ILR 1987 KAR 2730 has held that 10 in order to discharge the burden of proof with regard to contributory negligence, it is unnecessary for the propounder of that defence to adduce evidence about the matter and contributory negligence can be and very often is inferred from the evidence already adduced by the claimants or from the perceptive facts. However, the finding with regard to contributory negligence has to be recorded on the basis of proper consideration of the pleadings and legal evidence adduced by both the parties and the same cannot be based merely on police records. [See: 'MINUROUT VS. SATYA PRADYUMNA MOHAPATRA', (2013) 10 SCC 695 AND 'SARALA DEVI VS. ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD.,', (2014) 15 SCC 450]. It is well settled in law that burden to prove breach of duty on victims part lies on the insurance company and the insurance company has to discharge the burden. [SEE:
'USHA RAJ KHOWA VS. PARAMOUNT INDUSTRIES', (2009) 14 SCC 71]. In 'MANGALA RAM VS.11
ORIENTAL INSURANCE CO. LTD.', (2018) 5 SCC 656] It is equally well settled in law that there has to be a legal evidence on record to answer the question of contributory negligence and the same cannot be decided on the basis of site map.
8. In the backdrop of aforesaid well settled legal principles, the issue of contributory negligence may be looked into. It is pertinent to note that there are two eye witnesses to the accident namely Krishna Das and Karthik viz PW3 and PW4. The Tribunal in paragraph 18 of its judgment has recorded a finding that nothing could be elicited in the cross-examination from PW3 and PW4 which would render their testimony unbelievable. It has also been found by the Tribunal that there is no reason to discxard the testimony of PW3 and PW4. The aforesaid witnesses have clearly state that the accident took place on account of rash and negligent driving of the Innova car. From the evidence on record, it is evident that the deceased was coming from Lady Hill 12 side towards Urva Market, whereas, Innova car was proceeding towards Lady Hill side. It has further been found that by the Tribunal that driver of the Innova car came to the right side, i.e. on the wrong side of the road. The Tribunal on the basis of delay in lodging the complaint and taking into account the fact that the manner of accident has not been disclosed in the first as well as second complaint and police papers, has recorded a finding with regard to contributory negligence. It is pertinent to note that mere delay in lodging the complaint cannot be a basis to infer contributory negligence and police papers cannot be relied upon to record a finding of contributory negligence. [SEE: RAVI VS. BADRINARAYAN AND ORS. AIR 2011 SC 1226]. It is also relevant to mention that the respondents have not even taken the plea of contributory negligence in their written statement. In other words, there is no legal evidence on record to even remotely suggest that the deceased had 13 contributed to the causing of the accident in any manner. From the testimony of the eye witnesses namely PW-3 and PW-3, it was established beyond any shadow of doubt that the accident took place on account of rash and negligent driving of the driver of the Innova car. The Tribunal has also not recorded any evidence for attributing negligence to the extent of 70% to the deceased. The finding of the Tribunal with regard to contributory negligence cannot be sustained in the eye of law and the same is reversed and it is held that the accident took place on account of rash and negligent driving of the vehicle by the driver of the Innova car.
9. Now we may advert to the quantum of compensation. The Tribunal has taken the salary of the deceased at Rs.40000/- per month on the basis of Ex.P- 15, Ex.P-16 and Ex.P-18 namely, salary certificate as well as letter of appointment. The deceased was aged about 45 years at the time of accident. In view of law laid down by the Constitution Bench of the Supreme 14 Court in 'NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS' AIR 2017 SC 5157, 25% of the amount has to be added on account of future prospects. Thus, the monthly income of the deceased is assessed at Rs.50,000/-. Out of which, 1/3rd of the amount has to be deducted towards personal expenses as number of dependants are 3 in number and therefore, the monthly dependency comes to Rs.33,333/-. Taking into account the age of the deceased which was 45 years at the time of accident, multiplier of 14 has to be adopted. The claimants are entitled to Rs.55,99,999/- (33,333 x 12 x 14) which is rounded off to Rs.56,00,000/- on account of loss of dependency. In view of the law laid down by the Supreme Court in 'MAGMA GENERAL INSURANCE CO. LTD. Vs. NANU RAM' 2018 ACJ 2782, which has been subsequently clarified by the Supreme Court in 'UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.' IN CIVIL APPEAL NO.2705/2020 15 DECIDED ON 30.06.2020, the claimants are entitled to Rs.40,000/- each as loss of consortium and loss of love and affection. Thus, the total amount of compensation under this head is assessed at Rs.1,20,000/-. In addition, the claimants are entitled to Rs.30,000/- on account of loss of estate and funeral expenses. Thus, in all, the claimants are entitled to total compensation of Rs.57,50,000/-. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made. To the aforesaid extent, the judgment of the Claims Tribunal is modified. The amount in deposit be transmitted to the Claims Tribunal for disbursement to the claimants.
In the result, the appeals are disposed of.
Sd/-
JUDGE Sd/-
JUDGE ss