Karnataka High Court
Radhabai Prashant Naik vs R. Amijabi Raheem Khan Pathan on 25 October, 2017
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 25th day of October 2017
Before
THE HON'BLE MR. JUSTICE B.A. PATIL
Miscellaneous First Appeal No.22290/2012 (MV)
BETWEEN
1. RADHABAI PRASHANT NAIK
AGE: 26 YRS, OCC: HOUSEHOLD,
R/O AJJIKATTA, ANKOLA,
NOW AT SAIKATTA,
KODIBAG, KARWAR
2. ASMIT @ BABU PRASHANT NAIK
AGE: 7 YRS, OCC: STUDENT,
SINCE MINOR REP. BY HER MOTHER
APPELLANT NO.1,
R/O AJJIKATTA, ANKOLA,
NOW AT SAIKATTA
KODIBAG, KARWAR
3. LAXMI W/O BABU NAK,
AGE: 63 YRS, OCC: HOUSEHOLD,
R/O AJJIKATTA, ANKOLA,
NOW AT SAIKATTA
KODIBAG, KARWAR. ...APPELLANTS
(BY SRI. T. M. NADAF, ADVOCATE )
AND
1. R. AMIJABI RAHEEM KHAN PATHAN
R/O ISLAMPUR, ANKOLA, U.K.DIST.
2. BAJAJ ALLIANZ GENERAL
INSURANCE CO. LTD.
KALBURGI MANSION,
LAMINGTON RAOD, HUBLI.
2
3. AMIT ACHUT PEDNEKAR
R/O BALEGULI, ANKOLA,
U.K.DIST.
4. THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE, SUJATA COMPLEX,
II FLOOR, P.B.ROAD, HUBLI. ...RESPONDENTS
(BY SRI. M.K.SOUDAGAR, ADVOCATE FOR R2
SRI. T. BASAVANAGOUDA, ADVOCATE FOR R3
SMT. ARUNA DESHPANDE, ADVOCATE FOR R4)
(NOTICE TO R1 DISPENSED)
This MFA is filed under Section 173(1) of the Motor
Vehicles Act against the judgment and award dated
15.03.2011 passed in M.V.C. No.95/2009 on the file of the
2nd Additional MACT, Karwar, partly allowing the claim
petition for compensation and seeking enhancement of
compensation.
This MFA coming on for Admission this day, the Court,
delivered the following:
JUDGMENT
The present appeal has been preferred by the appellants/claimants assailing the judgment and award, dated 15.03.2011, passed by the 2nd Additional Motor Accident Claims Tribunal, Karwar (hereinafter referred to as 'the Tribunal', for short), in M.V.C. No.95/2009.
2. Heard. The appeal is admitted and, with the consent of the learned counsel appearing for the parties, it is taken up for final disposal.
3
3. Brief facts of the case, as per claim petition, are that on 14.02.2009, at about 9.30 p.m., one Prashant Babu Naik and others were proceedings in a car so as to go to Ajjikatta and when the said car was so proceeding, ahead of it, a lorry bearing No.KA-30/7075 was also proceeding in the same direction and it is further alleged that the driver of the said lorry suddenly applied the brakes, and as a result of the same, the car which was proceeding behind the lorry went and hit the lorry. As a result of the said collusion, the said Prashant Babu Naik sustained injuries and he was taken to Kamal Hospital in Anokla and also to Kasturaba Medical College at Manipal. In spite of the treatment for two days, said Prashant Babu Naik succumbed to the injures. It is further contended that the deceased Prashant Babu Naik was working as a driver and was earning substantial amount. Having lost the bread-earner, the wife and children of the deceased Prashant Babu Naik filed the claim petition seeking compensation.
4. In response to the notice issued by the Tribunal, respondent No.1 (before the Tribunal) filed her written 4 statement denying the contents of the petition. She further contended that the driver of the 1st respondent was innocent and he was not rash and negligent and she further contended that the accident had occurred due to the rash and negligent act of the driver of the car and, as such, she is not liable to pay any compensation. The 2nd respondent- insurance company also filed its written statement denying the contents of the claim petition. It further contended that the driver of the offending lorry was moving the same slowly and the accident had occurred due to the negligent act of the driver of the car in question. The insurance company further contended that the owner of the lorry violated the terms and conditions of the policy by authorizing a person who was not having a proper driving licence to drive the lorry in question and as such, it is not liable to pay any compensation. The 3rd respondent, though served with the notice, did not appear before the Tribunal and was placed ex parte. The 4th respondent-insurance company filed its written statement by denying the contents of the petition, it further contended that the policy, which had been issued in respect of the car 5 is an Act Policy and the deceased was an occupant of the said car and, by virtue of the terms and conditions of the policy, he is not covered and therefore, there is no liability whatsoever on the part of the 4th respondent. On these grounds, it prayed for dismissal of the said petition.
5. On the basis of the above pleadings, the Tribunal framed the following issues:
1. Whether the petitioners prove that the husband of the first petitioner by name Prashant Babu Naik being an occupant of motor car bearing Reg.No.KA-30/M-3954 was proceeding from the place of Ankola to Baleguli on 14/2/2009 the said car has collided with the motor lorry bearing Reg.No.KA-30/7075 at its back on account of sudden stopping of the said motor lorry by its driver without giving signal and as a result the husband of first petitioner had sustained fatal injuries?
2. Whether the petitioners prove that the deceased Prashant Babu Naik was admitted to KMC Hospital in Manipal from the date of accident till the date of his death and that an expenditure of Rs.75,000/- has incurred by the petitioner for the treatment of husband of first petitioner?
3. Whether the petitioners prove that on account of death of Prashant Babu Naik the petitioners have lost the future dependency and as such they are entitled for 6 special as well as general damages amounting to Rs.8,00,000/- as sought for in the petition?
4. Whether the second respondent-insurance Co. proves that the insured of the offending lorry had violated the terms and conditions of the policy by enabling the unauthorized person to drove the lorry and therefore the second respondent insurance company is not liable to pay the compensation if any as sought for?
5. Whether the 4th respondent-insurance company prove that the insured of the motor car in which the deceased was proceeding has violated the terms and condition of the policy and therefore the second respondent insurance company is not liable to pay the compensation if any?
6. Whether the petitioners herein above are entitled for compensation as sought for? If so how much? And from whom?
7. What order or Award?
6. On behalf of the petitioners, the 1st petitioner got examined herself as PW-1and got marked Exs.P-1 to P-
10. On behalf of the respondents, the driver of the offending truck was examined as RW-1. The insurance company did not adduce any evidence but, however, produced the policy which was marked as ExR-1 and further Exs.R-2 to R-6 were also got marked. 7
7. The Tribunal, after hearing the parties to the lis, passed the impugned judgment and award awarding compensation of Rs.4,64,000/- with 6% interest by fastening the liability on respondent Nos.1 and 2 jointly and severally to an extent of 50% and the remaining 50% on 3rd respondent and exonerated the 4th respondent from making payment.
8. Assailing the same, the appellants/claimants are before this Court.
9. The main grounds urged by the learned counsel for the appellants are that the driver of the lorry was rash and negligent and all of a sudden, without there being any signal, applied brake, as a result of which, the accident occurred. He further contended that the Tribunal has not properly assessed the material on record and has come to a wrong conclusion by holding that the driver of the car has also contributed to an extent of 50%. He further contended 8 that the Tribunal has taken the income of the deceased at Rs.3,000/- per month which is on the lower side and it requires to be enhanced. He also further contended that the compensation awarded under conventional heads is also on the lower side. He further contended that the Tribunal has not taken into consideration the future prospects of the deceased as he was working as a driver and was having permanent income and he was aged about 31 years at the time of accident and has left behind his young widow and two minor children. He further contended that the Tribunal has failed to pass an order by fastening the liability to pay the compensation by respondent No.2 and he further contended that it could have further ordered to recover the same from the owner of the car. He further contended that when it is admittedly a case of composite negligence, then, under such circumstances, pay and recovery order ought to have been passed. On 9 these grounds he prayed for allowing the appeal by enhancing the compensation.
10. Per contra, learned counsel appearing on behalf of the insurer vehemently, argued and contended that the driver of the truck, who is the best witness, has been examined before the Tribunal and he has specifically contended that the said truck was parked on the left side of the road and even the criminal records indicate that the car had hit the stationed truck without observing the indicators which have been put to the lorry. He further contended that the Tribunal after considering all the material and discussing the same in detail, has rightly come to the conclusion that the driver of the car has also contributed to an extent of 50% and in that light 50% liability has been fixed on the insurer and remaining has been fixed on the owner of the car. There are no good grounds made out by the appellants so as to interfere with the findings of the 10 Tribunal. He further contended that the compensation awarded by the Tribunal appears to be just and proper and the same does not require any interference at the hands of this Court. He further contended that if a notional income of Rs.5,000/- is taken as it is adopted in a settlement of case before the Lok Adalat, then, under such circumstances, the quantification which is also made in the Lok Adalat in a case of death, conventional amount of Rs.70,000/- has to be taken and the same has to be awarded in this case also. He further contended that the Tribunal has rightly come to the conclusion that there is composite negligence and just compensation has been awarded and the appellants have not made out any good ground to interfere with the judgment of the Tribunal. Hence, he prayed for dismissal of the appeal.
11. The accident is not in dispute so also the lorry being insured with respondent No.2-insurer. It is specific contention of the learned counsel for the 11 appellant that the truck in question was moving and all of a sudden, applied brakes without giving any signal and as such, the alleged accident has taken place solely because of the rash and negligent act of the driver of the lorry. It is the specific contention of the learned counsel for the respondent-insured that the said lorry was parked on the left side of the road by indicating all the signals and because of non-observance of the signals, the driver of the car hit the stationed lorry and as such the accident has taken place.
12. As could be seen from the records, the appellants-claimants have produced Ex.P-1-certified copy of FIR and complaint, Ex.P-2-certified copy of charge sheet, Ex.P-3, certified copy of spot panchanama and Ex.P-4 certified copy of post mortem report. The respondents have examined the driver of the lorry as RW-1 who had deposed the fact that on 14.02.2009 when he was driving the lorry from Mangalore to Jamkhandi, at about 9.00 p.m. he had parked his truck 12 on the extreme left side of the Highway near Ajjikatta at Ankola in order to visit his house and the parking lights of the truck were on and in spite of the same, the car collided with the lorry and as such the accident has taken place because of the rash and negligent act of the driver of the car. The evidence of RW-1 has not been accepted by the Tribunal and has come to the conclusion that both the drivers, of the car as well as the truck have contributed to the alleged accident and are negligent to an extent of 50% each. The Division Bench decision of this Court relied on by the learned counsel for the insurer in the case of Oriental Insurance Company Limited vs. Chennappa Shettigar and Ors. reported in IV(2009) ACC 406 (DB) clearly goes to show that by assessing the evidence, the Tribunal, if it has come to the conclusion to the effect that the ratio of liability is 50:50 then, under such circumstances, the same is justifiable. Though the learned counsel for the appellant contended that the 13 material evidence is not going to substantiate the said contention but in my considered view, the Tribunal, after taking into consideration the criminal records and the evidence adduced by RW-1, has come to a right and just conclusion. In this behalf, the findings which has been given by the Tribunal is liable to be affirmed.
13. The second contention of the learned counsel for the appellants is that the deceased was working as a driver and was earning Rs.6,000/- per month. In order to substantiate the said fact, the appellants have not produced any document. In the absence of any material, the Tribunal has taken the notional income of Rs.3,000/- per month and after deducting 1/3rd towards the personal expenses of the deceased and applying multiplier of 16, as the deceased was aged 31 years at the time of the accident, has awarded an amount of Rs.3,84,000/- under the head loss of dependency. In the normal circumstances, the method adopted by the Tribunal would be justifiable, 14 but however, in the absence of any documentary evidence with regard to the income of the deceased, the income prevailing as on the year of accident has to be taken. The accident is of the year 2009 and during that period in respect of daily wage earner, the notional income at Rs.5,000/- per month is the yard stick to be adopted as is adopted in a case before the lok Adalat. Then, under such circumstances, I feel that it would meet the end of justice. If the income of the deceased is taken at Rs.5,000/- per month and after deducting 1/3rd of the income towards his personal expenses and after applying multiplier of 16, the appellants/claimants are entitled to an amount of Rs.6,40,128/- towards loss of dependency(5000-1/3x12x16).
14. As could be seen from the impugned judgment and award, the compensation awarded under conventional heads appears to be on the lower side. Keeping in view the age of the widow and the minor children, the compensation is reassessed as under: 15
Rs.
1. Towards loss of estate 1,00,000/-
2. Towards loss of love and affection 50,000/-
3. Towards loss of consortium 50,000/-
4.Towards funeral expenses and
Obsequies and other expenses 25,000/-
-------------
Total 2,25,000/-
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So far as an amount of Rs.40,000/- awarded under the head Medical expenses is just and reasonable and the same stands undisturbed.
15. Keeping in view the above said facts and circumstances, the appellants/claimants are entitled to total compensation of Rs.8,65,128/-. After deducting a sum of Rs.4,64,000/- awarded by the Tribunal, the appellants/claimants are entitled to additional compensation of Rs.4,01,128/- with interest at 6% per annum.
16. Learned counsel for the appellant further contended that the Tribunal has come to the conclusion that it is contributory negligence and under the contributory negligence, all the respondents are the 16 joint tort-feasors. Under such circumstances, the Tribunal ought to have directed respondent No.2- insurer to pay the entire amount then thereafter a direction should have been issued to the insurer to recover the same from the rest of the respondents. In order to substantiate his contention, he relied upon the decision of the Apex Court in the case of Khenyei vs. New India Assurance Co. Ltd. & Ors in Civil Appeal No.4244 of 2015.
17. I have gone through the aforesaid judgment. The Apex Court in the aforesaid decision has observed that in case of joint tort-feasors, the claimant can proceed against any one of them and recover the compensation. But in the present facts of the case, admittedly, the driver of the car has also contributed to the said accident to an extent of 50% and the Tribunal has given a specific finding that the policy being an Act Policy, the inmates of the car is not covered and it is the owner of the car who has to pay the said amount. 17
18. Under the above said facts and circumstances, even if pay and recovery order is passed, it leads to multiplicity of proceedings which again creates a dilema. Leave apart this, a decision is passed by the Apex Court by exercising power under Article 142 of the Constitution of India. Under such circumstances, the decision quoted by the learned counsel for the appellants does not apply to the present facts of the case. Keeping in view the facts and circumstances, the contention of the learned counsel for the appellants to order for pay and recovery does not appear to be acceptable and the same is rejected.
19. In view of the above finding, the appeal is allowed in part and the judgment and award dated15.03.2011 passed by the 2nd Additional MACT, Karwar, in MVC No.95 of 2009 is modified as indicated above. The respondent No.2-insurer is liable to pay 50% of the compensation awarded by the Tribunal as well as the additional compensation awarded by this Court and 18 shall pay up to date interest within a period of six weeks from the date of receipt of a certified copy of this judgment.
Registry is directed to draw the award accordingly and send back the records to the jurisdictional Tribunal forthwith. The claimants are at liberty to proceed against the owner of the car with respect to the remaining 50% of the compensation in accordance with law.
Sd/-
JUDGE Kms/Kmv