Karnataka High Court
Smt Bhagyamma vs Sri Muniraju on 11 October, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.8703/2013 (MV-D)
BETWEEN:
SMT. BHAGYAMMA
W/O. LATE VENKATARAMAPPA
AGED ABOUT 47 YEARS
RESIDING AT KALIKERE VILLAGE
LAKKUR HOBLI, MALUR TALUK
KOLAR DISTRICT
PRESENTLY RESIDING AT
NO.717, 7TH MAIN
HANUMANTHANAGAR
BENGALURU. ... APPELLANT
(BY SRI GOPAL KRISHNA N., ADVOCATE)
AND:
1. SRI MUNIRAJU
MAJOR IN AGE
RESIDING AT KALIKERE VILLAGE
CHIKKA THIRUPATHI POST
LAKKUR HOBLI, MALUR TALUK
KOLAR DISTRICT-563 130.
2. ICICI LOMBARD GENERAL
INSURANCE COMPANY LTD.,
80 FEET ROAD
DR. RAJKUMAR ROAD
NEAR FLYOVER, RAJAJINAGAR
BENGALURU-560010. ... RESPONDENTS
(BY SRI H.N.KESHAVA PRASHANTH, ADVOCATE FOR R2
[THROUGH V.C];
VIDE ORDER DATED 22.11.2016
SERVICE OF NOTICE TO R1 IS HELD SUFFICIENT)
2
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 29.12.2012
PASSED IN MVC NO.6374/2006 ON THE FILE OF THE JUDGE,
COURT OF SMALL CAUSES, 26TH ACMM, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and learned counsel for the respondent No.2.
2. This appeal is filed challenging the judgment and award dated 29.12.2012 passed in M.V.C.No.6374/2006 on the file of the Motor Accident Claims Tribunal at Bengaluru ('the Tribunal' for short).
3. The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.
4. The factual matrix of the case of the claimant/mother of the deceased before the Tribunal in a petition filed under Section 163(A) of the Motor Vehicles Act is that on 11.09.2006 at about 11.00 a.m. on Kalkere - Chikka Thirupathi road near 3 Kalkere Village, when the deceased Nandish after loading the fertilizer bags into the tractor-trailer bearing No.KA-51-T-313 & 314 as a coolie by sitting over the fertilizer bags in the trailer, on the instructions given by the first respondent and that when the said vehicle came near Kalkere Village, at that time, the driver of the said vehicle drove the same in a rash and negligent manner while negotiating a curve due to which the deceased Nandish lost balance and fell down on the road and the trailer wheel ran over his head. As a result, he succumbed to the injuries. It is the claim of the claimant that the deceased was aged about 19 years at the time of the accident and he was working as Agricultural Coolie and was earning Rs.40,000/- per annum.
5. In order to substantiate her claim, the claimant examined herself as P.W.1 and examined an eye witness to the accident as P.W.2 and got marked the documents as Exs.P1 to P8. On the other hand, the respondent No.2-Insurance Company also examined its official witness as R.W.1 and got marked the documents as Exs.R1 to R4.
6. The Tribunal, after considering both oral and documentary evidence placed on record, allowed the claim 4 petition in part granting compensation of Rs.3,88,500/- with interest at 6% per annum and fastened the liability on the owner of the tractor and trailer in coming to the conclusion that the deceased was traveling on the mudguard of the tractor. Hence, the present appeal is filed by the claimant before this Court.
7. The main contention of the learned counsel appearing for the appellant is that the Tribunal has committed an error in coming to the conclusion that the deceased was traveling on the mudguard of the tractor, when no cogent evidence is placed before the Court and the Tribunal relied upon the contents of the complaint lodged by one Jogappa, who is not an eye witness and only a hearsay witness. The Tribunal also committed an error in coming to the conclusion that one Chandru was also there at the time of the accident and he has not been examined by the claimant. Hence, the very approach of the Tribunal is erroneous and it requires interference of this Court. The counsel would vehemently contend that P.W.2 categorically deposed before the Court that he was an eye witness and he was proceeding in the motorcycle at the time of the accident and the deceased was sitting on the trailer and 5 nothing is elicited in the cross-examination of P.W.2. However, he made it clear in the evidence that he was sitting on the trailer and not on the tractor mudguard and even though, no cogent evidence is placed before the Tribunal, the Tribunal committed an error in coming to the conclusion that the deceased was sitting on the mudguard of the tractor.
8. Per contra, learned counsel appearing for the respondent-Insurance Company would vehemently contend that, in the complaint, it is specifically mentioned that the deceased was sitting on the mudguard of the tractor. Though the charge- sheet was filed stating that he was sitting on the trailer and not on the mudguard, the immediate records disclose that he was sitting on the mudguard and the claimant has also relied upon the document of Ex.P1-copy of the complaint. Hence, the Tribunal has rightly appreciated the evidence available on record and the contents of the complaint are also extracted in the judgment. Apart from that, the Tribunal also discussed in detail with regard to the fact that one Chandru, who was also present at the time of the accident was not examined. Hence, it does not require any interference.
6
9. Having heard the respective counsel and also on perusal of the material available on record, the points that would arise for consideration of this Court are:
(i) Whether the Tribunal has committed an error in fastening the liability on the owner of the tractor and trailer, exonerating the liability of the Insurance Company?
(ii) Whether the Tribunal has committed an error
in not awarding just and reasonable
compensation?
(iii) What order?
Point No.(i)
10. Having heard the respective counsel and also on perusal of the material available on record, it is the claim of the claimant before the Tribunal that the deceased was traveling on the trailer along with the fertilizers. It is the contention of the learned counsel for the respondent-Insurance Company that the deceased was sitting by the side of the driver of the tractor on the mudguard and hence, the Insurance Company is not liable to pay the compensation. The Tribunal, having considered both oral and documentary evidence placed on record, comes to the conclusion that the deceased was sitting on the mudguard of the 7 tractor. In order to prove her claim, the claimant has examined herself as P.W.1 and also examined a witness as P.W.2.
11. The P.W.2, who is an eye witness to the accident in his evidence says that the deceased was sitting on the trailer on the fertilizer bags and he fell down and no doubt, in the cross-
examination of P.W.2, it is elicited that one boy was sitting on the mudguard, but, he categorically deposed that the deceased was sitting on the trailer on the fertilizers and though it is suggested that the deceased was sitting on the mudguard, nothing is elicited from the mouth of P.W.2.
12. It is also important to note that the Insurance Company has examined its official witness as R.W.1 and he is not an eye witness to the accident and his evidence is not considered by the Tribunal as like the evidence of P.W.1. However, the evidence of P.W.2 is very specific that the deceased was sitting on the trailer on the fertilizer bags. When there is no admission on the part of P.W.2 that the deceased was sitting on the mudguard and the P.W.2 in his cross- examination clarified that the deceased was sitting on the trailer on the fertilizer bags, the Tribunal has committed an error in 8 coming to the conclusion that the claimant has not examined the person by name Chandru and the very approach of the Tribunal is erroneous and the Tribunal cannot expect any negative evidence since, already positive evidence is led by the petitioner by examining P.W.2. When the defence is taken by the Insurance Company that the deceased was sitting on the mudguard, the Insurance Company, ought to have examined said Chandru and the party who asserts, has to prove the same and the same has not been done. The Tribunal mainly relied upon the document of complaint and no doubt, the Tribunal in its judgment extracted the contents of the complaint, on perusal of the same, no doubt, it is mentioned that the deceased was sitting on the mudguard, the complainant is also not an eye witness to the accident and he has not been examined by the Insurance Company, in order to prove their case and he is only a hearsay witness.
13. On reading of the contents of the complaint also, it is very specifically mentioned that the complainant came to know about the said accident. Hence, there is a force in the contention of the learned counsel for the appellant that he is 9 only a hear say witness and not an eye witness. When such being the material on record, in the absence of any cogent evidence before the Tribunal that it was the deceased, who was sitting by the side of the driver of the tractor on the mudguard, the Tribunal ought not to have exonerated the liability of the Insurance Company and erroneously comes to the conclusion that the deceased was sitting on the mudguard without any material on record. Hence, I answer point No.(i) as 'affirmative' and the Tribunal has committed an error in coming to the conclusion that the deceased was sitting on the mudguard of the tractor.
Point No.(ii)
14. The very contention of the claimant is that the deceased was earning Rs.40,000/- per annum as Agricultural Coolie and the Tribunal has awarded compensation of Rs.3,88,500/- taking the income at Rs.3,000/- per month and it was the accident of the year 2006. It is the claim of the claimant that her son was drawing Rs.3,250/- per month and in the cross-examination of P.W.1, except making the suggestion that she is falsely deposing that the deceased was earning Rs.100/- per day, nothing is elicited. It is suggested that the 10 deceased was not earning Rs.100/- per day and the said suggestion was denied. Though the claimant herself pleaded that the income of the deceased is Rs.40,000/- per annum, but in the affidavit, admitted that his son was earning Rs.3,250/- per month. When such being the case, taking the income at Rs.3,250/- per month, it comes to Rs.39,000/- per annum and the deceased was aged about 19 years. Out of the income of the deceased at Rs.3,250/- per month, 1/3rd is to be deducted towards personal expenses and after deducting the same, the income of the deceased works out to Rs.2,167/- per month. Hence, taking the income at Rs.2,167/- per month and the relevant multiplier '16', the loss of dependency works out to Rs.4,16,064/- (2,167 x 12 x 16).
15. The Apex Court, in the case of KURVAN ANSARI AND ANOTHER VS. SHYAM KISHORE MURMU AND ANOTHER reported in 2022 ACJ 166 has held that the claimants are also entitled to a sum of Rs.40,000/- each towards loss of consortium and Rs.15,000/- towards funeral expenses and also observed that the amount fixed under the II Schedule in 1994 is not reasonable and considering inflation and 11 devaluation of rupee and cost of living, assessed the notional income in a case of death of a 7 year old girl. Hence, the claimant is also entitled for an amount of Rs.40,000/- on the head of loss of love and affection and Rs.15,000/- towards funeral expenses. Hence, in all, the claimant is entitled for an amount of Rs.4,71,064/-. Accordingly, I answer point No.(ii) as 'partly affirmative'.
Point No.(iii)
16. In view of the discussions made above, I pass the following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award of the
Tribunal dated 29.12.2012 passed in
M.V.C.No.6374/2006, is modified granting
compensation of Rs.4,71,064/- as against
Rs.3,88,500/- with interest at 6% per annum from the date of petition till deposit.
(iii) The impugned judgment and award of the Tribunal is modified exonerating the liability on the owner of the tractor and trailer and the Insurance Company is directed to pay the 12 compensation with interest at 6% per annum within six weeks from today.
(iv) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.
Sd/-
JUDGE ST