Karnataka High Court
Gowramma vs A Afsel on 12 April, 2022
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.31 OF 2020 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL CROB.NO.116 OF 2021 (MV-D)
IN MFA.NO. 31/2020:
BETWEEN:
M/S.HDFC-ERGO GENERAL
INSURANCE CO.LTD.
CITY TRADE CENTRE, B.N.ROAD
OPP. TO SUBURBAN BUS STAND
MYSURU
REPRESENTED BY
THE REGIONAL MANAGER
NO.25/1, 2ND FLOOR
BUILDING NO.2
SHANKAR NARAYAN BUILDING
M.G.ROAD
BENGALURU - 560 001 ... APPELLANT
(BY SRI D.VIJAYAKUMAR, ADVOCATE)
AND:
1. GOWRAMMA
W/O.LATE LAXMANE GOWDA
AGED ABOUT 56 YEARS
R/AT HUNSUR, H.D.KOTE ROAD
CHIKKAKHUNSUR
HUNSUR TOWN - 571 105
2. A.AFSEL
S/O.ABDUL AZAJ
R/AT NO.660A (38/1287)
ALSHAHEEN S OF VELLAKINER
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ALAPPUZHA
KERALA - 688 001 ... RESPONDENTS
(BY SMT.SUMA KEDILAYA, ADVOCATE FOR R-1;
R-2 IS SERVED AND UNREPRESENTED)
---
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD
DATED 20.08.2019 PASSED IN MVC NO.1146/2018 BY III
ADDITIONAL DISTRICT JUDGE AND MACT, MYSURU & ETC.
IN MFA.CROB.NO.116/2021:
BETWEEN:
GOWRAMMA
W/O.LATE LAXMANEGOWDA
AGED ABOUT 58 YEARS
R/AT HUNSUR-H.D.KOTE ROAD
CHIKKABALLAPURA
HUNSUR TOWN - 571 105 ... CROSS OBJECTOR
(BY SMT.SUMA KEDILAYA, ADVOCATE)
AND:
1. A.AFSEL
S/O.ABDUL AZAJ
R/AT NO.660A(38/1287)
ALSHAHEEN S OF VELLAKINER
ALAPPUZHA
KERALA - 688 001
2. HDFC ERGO GENERAL INSURANCE
COMPANY LIMITED
CITY TRADE CENTRE, B.N.ROAD
OPP. TO SUBURBAN BUS STAND
BANNIMANTAP, MYSURU - 570 015 ... RESPONDENTS
(BY SRI D.VIJAYAKUMAR, ADVOCATE FOR R-2
NOTICE TO R-1 IS DISPENSED WITH)
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THIS MISCELLANEOUS FIRST APPEAL CROB. IS FILED
UNDER ORDER 41 RULE 22 AND SECTION 173 (1) OF
MOTOR VEHICLES ACT PRAYING TO MODIFY THE
JUDGMENT AND AWARD DATED 20.08.2019 PASSED IN
MVC NO.1146/2018 ON THE FILE OF III ADDITIONAL
DISTRICT JUDGE AND MACT, MYSURU & ETC.
THiS APPEAL AND CROSS OBJECTION ARE COMING
ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
JUDGMENT
MFA.No.31/2020 is preferred by the Insurance Company aggrieved by the judgment and award passed by III Additional District Judge and MACT, Mysuru ('the tribunal' for short) in MVC.No.1146/2018 dated 20.08.2019, whereas MFA.Crob.No.116/2021 is preferred by the claimant aggrieved by the very same judgment and award.
2. The appeal preferred by the Insurance Company is premised on the ground that the judgment and award of the tribunal is illegal and not justifiable as the entire negligence ought to have been attributed against the deceased so also the quantum awarded by the tribunal is exorbitant and no liability to be fastened on the Insurer, whereas the appeal preferred by the claimant is premised on the ground of inadequacy of compensation. -4-
3. Though these matters are listed for admission, with consent of learned counsel on both sides, matters are taken up for final disposal.
4. Parties to the appeal shall be referred to as per their status before the tribunal.
5. Brief facts of the case is as under:
On 06.04.2018 at about 10.30 p.m. when the deceased Laxmane Gowda was walking as a pedestrian on the left side of the road in front of one Sudha Ramesh's house in Chikka Hunsur, at that time, a Hyundai Accent Car bearing registration No.KL-04-3926 driven by its driver with high speed in a rash and negligent manner came from H.D.Kote side and dashed against the deceased Laxmane Gowda and after hitting the deceased, dragged the car for further distance of 100 mtrs. and hit against the petty shop and electric pole near CTRI compound, as a result of which, the deceased Laxmane Gowda sustained serious injuries on his head and other parts of the body and died on the spot.
5.1. It is stated that the deceased was hale and healthy prior to the date of occurrence of accident and was working as a driver apart from doing painting work and -5- earning Rs.600/- per day. It is also stated that he was sole earning member of the family, he was unmarried and was maintaining his mother. In view of sudden and untimely death of deceased Laxmane Gowda due to the road traffic accident, the claimant having lost love and affection of the beloved son, was financially dependent on him. Hence, the claimant, his unfortunate mother filed a claim petition seeking compensation.
5.1. On service of notice, respondent No.1 who is the owner of offending vehicle namely, Hyundai car remained absent and was placed ex parte. Respondent No.2 filed statement of objections inter alia denying the occurrence of accident, age, income, avocation of deceased and negligence being attributed to the driver of the offending vehicle. It was further pleaded that accident occurred due to sole negligence of the deceased who was proceeding on the road which was a high way without following Rules and Regulations. It is also pleaded by the Insurer that the amount claimed as compensation is highly exorbitant and that the driver of the offending car was not holding a valid and effective driving licence as on the date of occurrence of -6- accident. On these grounds, it sought for dismissal of claim petition.
5.2. On the basis of pleadings, the tribunal framed the relevant issues for consideration.
5.3. In order to establish the case and substantiate the issues, the claimant, who is the unfortunate mother examined herself as PW.1 and an eye witness was examined as PW.2 namely, Chandra and got marked 10 documents as Exs.P1 to P10, whereas respondent No.2-
insurer neither stepped into the witness box to lead any evidence nor produced any documents in its support.
5.4. On the basis of material evidence both oral and documentary and on hearing the submissions of learned counsel for the parties, the tribunal awarded compensation of Rs.16,52,800/- with interest @ 6% p.a. and directed respondent No.2-Insurer to pay the compensation within a period of two months.
6. Being aggrieved by the judgment and award passed by the tribunal on the ground of being illegal and not justifiable and exorbitant amount of compensation awarded, the Insurer is before this Court assailing the same -7- and the claimant is also before this Court by way of cross- objection seeking enhancement of compensation for the meager compensation awarded by the tribunal.
7. It is the vehement contention of learned counsel for the Insurer that judgment and award passed by the tribunal is highly erroneous, illegal and arbitrary and same is contrary to material evidence placed on record both oral and documentary and hence, the same requires to be set aside. Learned counsel further contends that the tribunal has grossly erred in not considering the fact that the deceased was crossing the road which was a National Highway and the entire negligence is on the fault of the deceased for the occurrence of accident and no liability could be fastened on the driver of offending car. It is further contended by learned counsel that the deceased was walking on the center of the road and accident has occurred on the center of road, it is not the fault of the driver of offending vehicle whereas it is due to the negligence and carelessness of the deceased leading to the accident resulting in his death. Therefore, he contends that the entire negligence has to be attributed on the deceased rather than the driver of the offending car. -8-
7.1. Learned counsel further contends that the tribunal has miserably failed to take into consideration the best piece of evidence available with the claimant, which was not placed before the Court. One Sri Mohan Kumar who was complainant before the jurisdictional Police and deposed as CW.1. It is also contended by learned counsel that the claimant has examined PW.2 namely, Chandra, who is an alleged eye witness. However, the said witness has neither seen the accident nor he was present at the spot of occurrence of accident. It is also contended that both the witnesses namely, Mohan Kumar and Chandra- PW.2 are not at all the eye witnesses and they have not witnessed the scene of occurrence of accident. Hence, their statement cannot be relied upon and they are planted false witnesses. Hence, the evidence of PW.2 relied on by the tribunal is totally erroneous and requires to be set aside. It is further contended by learned counsel that Ex.P5 sketch which is relied on by the claimant clearly shows that the offending car in question was moving on the correct side of the road whereas the claimant was walking on the center of the road, due to which, accident occurred, which is due to negligence of the deceased. Hence, no negligence can be attributed to the driver of the offending car. -9-
7.2. Learned counsel for the Insurer as an alternative argument also contends that death having been occurred due to the accident, contributory negligence ought to have been attributed by the tribunal as against the deceased who had strangely come to the middle of the road abruptly there by taking the driver of the car by surprise. He has relied on the judgment of this Court in the case of Koosappa Poojari vs. K.Sadabba and Others reported in ILR 2003 KAR 1104.
7.3. Learned counsel also contends that no material has been placed by the claimant with regard to proof of income, age and avocation. The tribunal has rightly assessed the income as Rs.12,000/- per month which is also on the higher side. Learned counsel further contends that under all other heads, the tribunal has awarded higher compensation and same requires to be modified.
8. Per contra, learned counsel for claimant vehemently contends that the judgment and award passed by the tribunal is totally erroneous as the tribunal has failed to take into consideration the correct income for computation of compensation. She further contends that though the tribunal has held that the liability is entirely
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against the driver of the offending car has failed to award compensation under the heads of loss of consortium and conventional heads. It is the vehement contention of learned counsel that the deceased Laxmane Gowda was walking on the highway on the left side of the road, when suddenly offending car came from opposite direction namely, Hyundai Accent Car and dashed against the deceased and in view of high speed of the car, the car dragged the deceased on the bonnet of the car for further distance of 100 mtrs. and hit against the petty shop and electric pole near CTRI compound, pursuant to which, the driver of the offending vehicle ran away from the spot. She further contends that the driver of the offending car came with high speed from extreme right side of the road and dashed against the deceased who was walking just 5 feet towards his left side, due to which the deceased sustained severe injuries to his head and other parts of the body and died on the spot.
8.1. It is further contended that in order to establish aspect of rashness, negligence and high speed on the part of driver of offending car, the unfortunate mother examined herself as PW.1 and got marked documents Exs.P1 to P8,
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which are the Police records which are filed pursuant to the enquiry and investigation conducted by the jurisdictional Police. Admittedly, the charge sheet has been laid against the driver of offending car for the offences punishable under Sections 279, 304(A) and 427 of IPC read with Section 187 of the Indian Motor Vehicles Act. She relied on FIR, complaint, post-mortem report, spot mahazar, sketch, IMV report, inquest mahazar and charge sheet in support of the case to establish the fact that the criminal prosecution has been laid by the jurisdictional Police for the accident having occurred on the said date. She further contends that the said Police records are not challenged either by the driver of the offending vehicle or by the Insurer herein and no contra materials has been produced before the tribunal or before this Court to establish that the said Police records are not genuine and fabricated or the same having controverted either by evidence by way of cross- examination or by way of leading evidence of the insurer.
8.2. It is further contended that the age and avocation has been rightly taken by the tribunal. However, the income is on the lower side which requires enhancement as the tribunal has not considered the
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notional income chart prescribed by the Legal Service Authority and has taken the income of Rs.12,000/- only, whereas the tribunal ought to have taken Rs.12,500/- as prescribed by the notional income chart of Legal Service Authority. On this ground, she seeks to allow the cross- objection and consequently, to enhance the compensation.
9. Having heard learned counsel for Insurer and learned counsel for claimant, the points that arises for consideration are:
"(i) Whether the tribunal has committed a serious error in attributing the entire negligence and liability on the insurer?
(ii) Whether there is any contributory
negligence on the deceased Laxmane
Gowda?
(iii) Whether the tribunal has awarded meager compensation, which calls for any interference by this Court?"
10. On careful perusal of the entire material on record including original records and on hearing the detailed arguments of learned counsel for both parties, it is apparent from the admitted documents and original records that the accident has occurred on 06.04.2018 at about 10.30 p.m. when the deceased Laxmane Gowda who was
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walking as a pedestrian met with an accident involving Hyundai Accent Car being driven by its driver, which is insured with respondent No.2. This aspect of the matter has been established and proved by production of Exs.P1 to P8 and laying of charge sheet by the jurisdictional Police. The initiation of criminal prosecution having not been challenged by the driver of offending car or by laying any material before this Court to prove the same to be fabricated or concocted, the tribunal has rightly accepted the rashness and negligence attributed to the driver of offending car in occurrence of accident leading to death of deceased Laxmane Gowda.
10.1. Though it is the vehement argument of learned counsel for Insurer that Laxmane Gowda himself attributed and was responsible for occurrence of accident, no material has been placed before the Court except relying on the cross-examination of PW.2 to the effect that he has not seen the occurrence of accident and he was not present at the time of accident and that he has been summoned at the instance of PW.1 mother of the deceased Laxmane Gowda. I have gone through the evidence of PWs.1 and 2, no doubt it is stated by PW.2 that he has come to the Court at the
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instance of PW.1 to adduce evidence but he has categorically stated that he was present at the spot when the accident occurred and suggestion with regard to evidence being false is denied.
10.2. Learned counsel for claimant has relied on Exs.P1 to P8. On careful perusal of Ex.P1, the complaint lodged by one Mohan Kumar before the jurisdictional Police, he has clearly stated in categorical terms that he along with Chandra, PW.2 were walking when unfortunate accident occurred wherein the driver of the offending car came with high speed and dashed against the deceased Laxmane Gowda and due to high speed, the deceased was thrown on top of bonnet of car and the car dragged for further distance of 100 mtrs., hit against the petty shop and electric pole near CTRI compound and the driver of the offending car ran away from spot. The complaint and evidence of PW.2 on a bare reading provided proper significance to the case on hand with regard to facts and circumstances of the case. Though it is contended by learned counsel for Insurer that the said Mohan Kumar has not been examined before the tribunal, I do not find that it
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would be an impediment to decide the present case on hand.
10.3. It is trite law that in a case for deciding the compensation in Motor Vehicle accident case, what is required to be seen is preponderance of probability and not proved beyond reasonable doubt. Therefore, PW.1 having examined herself and having produced Exs.P1 to P10, PW.2 having deposed before the tribunal and stating that he has seen the occurrence of the accident caused due to rash and negligent driving of the offending car, the tribunal on consideration of the same has rightly attributed the entire negligence on the driver of offending car and held the liability against the Insurer who had insured the offending car of respondent No.1. Hence, point No.1 is answered in the negative.
10.4. The contention of learned counsel for the Insurer with regard to contributory negligence ought to have been attributed against the deceased who had strangely come to the middle of the road abruptly, is hard to countenance, though material and substantial evidence has not been placed to prove the fact that, firstly, the deceased was crossing the road and secondly, there was no
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zebra crossing on the road. Hence, the same cannot be accepted. The judgment relied on by the learned counsel may not be applicable to the present case on hand. Therefore, point No.2 is answered in the negative.
10.5. Now coming to the aspect of age, avocation and income, the tribunal has assessed the age of the deceased as 32 years and to establish the same, the Aadhar card and Driving Licence have been produced and the same has been accepted. There is no dispute with regard to age. With regard to avocation and income, the tribunal has assessed the income of deceased at Rs.12,000/- per month, in view of there being no material proof with regard to avocation and income. However, I am of the opinion that the income assessed by the tribunal is on the lower side. When no proof of income is produced by the claimant, this Court will have to do guess work and in order to do the said guess work, a standard method has been prescribed by the Legal Services Authority wherein the notional income chart has been prescribed to assess the income for the relevant year of accident. In the present case on hand, the accident occurred during the year 2018 and notional income chart prescribes Rs.12,500/- p.m. as income. Hence, I am of the
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opinion that the income in present case is to be assessed at Rs.12,500/- per month relying on chart as there is no proof of income as against Rs.12,000/- assessed by the tribunal.
10.6. As the deceased being unmarried and there being one dependent, 50% will have to be deducted towards personal and living expenses and 40% will have to be added towards loss of dependency and the appropriate multiplier would be '16' which has been rightly adopted by tribunal and the same does not call for interference. Therefore, the income of the deceased would come to Rs.8,750/- (Rs.12,500/- + 40% = Rs.17,500/- and Rs.17,500/- x 50% = Rs.8,750/-) and the claimant would be entitled for a sum of Rs.16,80,000/- (Rs.8,750/- x 12 x 16) under the head of loss of dependency as against Rs.16,12,800/- awarded by the tribunal.
10.7. Towards love and affection, the tribunal has awarded Rs.20,000/-. In view of the fact that there is a sole dependent namely, the unfortunate mother and as per the judgment of Hon'ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 Supreme Court Cases 680, Rs.40,000/- requires to be awarded towards loss of
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consortium and under conventional head, Rs.30,000/- requires to be awarded which includes Rs.15,000/- towards funeral expenses and Rs.15,000/- transportation and conveyance charges, whereas the tribunal has awarded Rs.20,000/- each under the heads of love and affection and funeral expenses, which requires to be modified. Accordingly, the same calls for interference of this Court. Therefore, I award Rs.40,000/- under the head of loss of consortium and Rs.15,000/- each towards funeral expenses and transportation and conveyance charges, in all Rs.70,000/- under the conventional heads.
10.8. In view of the discussions made hereinabove, point No.3 is answered in the affirmative. Therefore, I am of the opinion that the claimant is entitled for enhancement of compensation as mentioned in the table below:
Heads As awarded by As awarded by
the tribunal this Court
(in Rs.) (in Rs.)
Love and Affection 20,000-00 Nil
Funeral Expenses 20,000-00 Nil
Loss of consortium Nil 40,000-00
Conventional Nil 30,000-00
Heads
Loss of 16,12,800-00 16,80,000-00
Dependency
Total 16,52,800-00 17,50,000-00
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For the reasons aforestated, I pass the following:
ORDER
(i) MFA.No.31/2020 preferred by the Insurance Company is dismissed;
(ii) MFA.Crob.No.116/2021 preferred by the claimant is allowed-in-part;
(iii) The judgment and award passed by the III Additional District Judge and MACT, Mysuru in MVC.No.1146/2018 dated 20.08.2019, is modified;
(iv) The claimant is entitled for total
compensation of Rs.17,50,000/- as
against Rs.16,52,800/- awarded by the
tribunal;
(v) The Insurer shall pay/deposit the
enhanced compensation amount with
interest @ 6% before the tribunal, within a period of six weeks from the date of receipt of a copy of this judgment;
(vi) All other terms and conditions stipulated by the tribunal is not disturbed and is left intact;
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(vii) The amount in deposit before this Court shall be transmitted to the jurisdictional tribunal;
Sd/-
JUDGE LB