Karnataka High Court
Jalajakshi vs Cholamandalam Ms General on 25 September, 2023
Author: K.Somashekar
Bench: K.Somashekar
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NC: 2023:KHC:34810-DB
MFA No. 8040 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
MISCELLANEOUS FIRST APPEAL NO.8040 OF 2016 (MV-D)
BETWEEN:
1. JALAJAKSHI
W/O LATE G.M.BASAVARAJU
AGED ABOUT 45 YEARS,
RESIDENT OF NO.E-105,
RAMESH BUILDING,
NEAR ESHWAR TEMPLE,
DODDATHOGUR,
ELECTRONIC CITY POST,
BENGALURU-560 100.
Digitally 2. LINGARAJU
signed by D
HEMA S/O LATE G.M.BASAVARAJU
Location: AGED ABOUT 26 YEARS,
HIGH COURT
OF RESIDENT OF NO.E-105,
KARNATAKA RAMESH BUILDING,
NEAR ESHWAR TEMPLE,
DODDATHOGUR,
ELECTRONIC CITY POST,
BENGALURU-560 100.
3. SHASHIDHAR
S/O LATE G.M.BASAVARAJU
AGED ABOUT 23 YEARS,
RESIDENT OF NO.E-105,
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NC: 2023:KHC:34810-DB
MFA No. 8040 of 2016
RAMESH BUILDING,
NEAR ESHWAR TEMPLE,
DODDATHOGUR,
ELECTRONIC CITY POST,
BENGALURU-560 100.
4. SHIVAMMA
W/O LATE S.B.MALLAPPA
AGED ABOUT 86 YEARS,
RESIDENT OF NO.E-105,
RAMESH BUILDING,
NEAR ESHWAR TEMPLE,
DODDATHOGUR,
ELECTRONIC CITY POST,
BENGALURU-560 100.
...APPELLANTS
(BY SRI. BALARAJ A. C., ADVOCATE)
AND:
1. CHOLAMANDALAM MS GENERAL
INS. CO.LTD.,
NO.9/1, ULSOOR ROAD,
BENGALURU-42,
REPRESENTED BY ITS AUTHORIZED SIGNATORY
2. SRI. KRISHNAPPA
S/O THIMMANNA,
MAJOR,
RESIDENT NO.31
HALLI KALLALGATTA POST,
NELMANGALA TALUK
BENGALURU RURAL DISTRICT-562 123.
...RESPONDENTS
(BY SRI. MURALIDHARA N., ADVOCATE FOR R1;
R2 IS SERVED BUT UNREPRESENTED)
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NC: 2023:KHC:34810-DB
MFA No. 8040 of 2016
THIS MFA FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED 01/10/2016 PASSED IN MVC
NO.3764/2015 ON THE FILE OF THE XVI ADDITIONAL JUDGE,
MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE,
SCCH - 14, DISMISSING THE CLAIM PETITION FOR
COMPENSATION.
THIS MFA HAVING BEEN HEARD AND RESERVED ON 13TH
SEPTEMBER 2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, UMESH M ADIGA J, PASSED THE
FOLLOWING:
JUDGMENT
This is claimants appeal challenging the judgment and award dated 01.10.2016 in MVC.No.3764/2015 passed by the Member, MACT, XVI Additional Judge, Court of Small Causes, Bengaluru. (hereinafter referred as 'Tribunal' for short).
2. We refer the parties as per their rankings before the Tribunal.
3. Factual matrix of the case is that, it is the case of the claimant that on 16.06.2015 at 3.30 p.m., deceased Basavaraju was going on the Motor cycle bearing -4- NC: 2023:KHC:34810-DB MFA No. 8040 of 2016 No.KA.01-Y-6868 along with his wife as pillion rider from Yadavanahalli to Doddathogur, of Bengaluru Urban District. The deceased met with an accident near Kuluvanahalli village on Tumakuru - Bengaluru National Highway No.4, due to rash and negligent driving of autorickshaw bearing registration No. KA-06-TC-05 by its driver. As a result of which, the deceased Basavaraju and his wife fell down from the motor cycle. Basavaraju had sustained grievous injuries and succumbed to injuries at the spot.
4. It is further case of the claimants that deceased was aged about 48 years at the time of the accident. He was working as a security guard in the Garuda Agency, Bengaluru and was earning a salary of Rs.9,500/- per month. The claimants being wife, children and mother of the deceased were depending upon his earnings. With these reasons, they prayed to award compensation of Rs.20 lakhs.
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NC: 2023:KHC:34810-DB MFA No. 8040 of 2016
5. Respondent No.1 is the insurer of the said autorikshaw has contended before the Tribunal that the said autorikshaw was not at all involved in the accident. It is falsely implicated to claim compensation. The liability of respondent No.1 is restricted to terms and conditions of policy of insurance. It also denied all other averments stated in the claim petition and prayed to dismiss the claim petition.
6. The Tribunal had framed necessary issues for consideration.
7. The claimants have examined PW-1 and got marked Exs.P1 to P21. Respondent examined RW1 and got marked Exs.R1 to R6.
8. The Tribunal after hearing both the parties, held that claimants have failed to prove the involvement of the alleged autorikshaw in the accident and on that findings, dismissed the claim petition by the impugned judgment and award dated 01.10.2016.
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9. We have heard the arguments of learned counsel for both the parties.
10. Learned counsel for the appellant would submit that the accident was taken place due to rash and negligent driving of autorikshaw by its driver; after the accident the said autorikshaw was available at the spot of incident and claimant No.1 had filed complaint to the police and on that basis, criminal case was registered and driver of the said autorikshaw was charge sheeted. Both driver as well as RC holder of the said autorikshaw had given statement before the police that due to involvement of said autorickshaw, accident had taken place. Even motor vehicle inspection report as well as spot mahazar reveal that the said autorikshaw had damage. After recording of the statement of witness, the concerned investigating officer had filed charge sheet against the driver of the said autorikshaw, mentioning its engine and chassis number since at that point of time the said autorikshaw had no registration number. The Tribunal had ignored all the said -7- NC: 2023:KHC:34810-DB MFA No. 8040 of 2016 evidence and on the basis of wrong chassis and engine number mentioned in the spot mahazar, doubted involvement of the vehicle and dismissed the claim petition, which is erroneous. Therefore, prayed to set aside the said findings and award just and reasonable amount of compensation.
11. Learned counsel for respondent No.1 - Insurer had vehemently contended that vehicle number mentioned in Ex.R6 and Ex.P9 as well as charge sheet i.e., Ex.P2 are different. Therefore, the Tribunal had rightly rejected the contention of the claimant that the said autorikshaw was involved in the accident in question. The claimant had not examined any other witness to prove the said contention. Therefore, involvement of the offended autorikshaw was not proved before the Tribunal and hence, Tribunal dismissed the claim against the respondent. The said findings do not call for interference. -8-
NC: 2023:KHC:34810-DB MFA No. 8040 of 2016
12. The following questions arise for our determination:
i. Whether the Tribunal is justified in holding that accident was not taken place due to involvement of autorikshaw bearing Engine No.BBZWFAO5755 and chasis No.MDZA41AZXFWA06757"? ii. Whether the Tribunal is justified in dismissing the claim petition?
13. PW.1 is an eye witness to the incident and pillion rider of the Motor Cycle. In her evidence, she has narrated the manner in which the accident had taken place. She with stood cross-examination of respondent No.2/insurer. In thorough cross examination, she consistently maintained that accident had taken place on the said spot by autorikshaw and even after the accident, the said autorikshaw was at the spot.
14. RW.1, who was examined by respondent No.1 denied the involvement of the vehicle; In his cross-examination he had stated that vehicle number, chasis and engine number mentioned in the charge sheet and IMV report are -9- NC: 2023:KHC:34810-DB MFA No. 8040 of 2016 one and the same. He denied the suggestion that vehicle number was wrongly mentioned in the panchaname. Admittedly, RW1 is not a eye witness and he deposed on the basis of the material available on record.
15. In Ex.P1, autorikshaw number, chasis number or engine number were not mentioned. Admittedly, registration number was not exhibited on the said autorikshaw. Ex.P3 so also Ex.R6, are the copies of the spot mahazar, which was drawn on 16.06.2015 i.e. on the date of accident: In the spot mahazar Engine number is mentioned as 'A22WFR54556' and chassis No.MD- 2A45B23FWBO8648. The said mahazar was drawn by PSI of Nelamangala. In Ex.P9 the chasis number mentioned is 'MDZA41AZXFWA06757' and the engine number is 'BBZWFAO5755'.
16. In Ex.R1, chasis and engine number are mentioned, it is same as stated in the Ex.P2 and P9. It appeals due to mistake, investigating officers had mentioned incorrect registration number in the Mahazar. On that basis, the
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NC: 2023:KHC:34810-DB MFA No. 8040 of 2016 claim should not be denied. In Ex.P3 and P9, it is stated that rear left side corner of the autorickshaw body was damaged. Admittedly, it was a new autorickshaw. Both the respondents did not explain about the said damage. Therefore, it corroborates the case of the claimant. In addition to that, the investigating officer examined the accused/driver of the autorickshaw as well as owner of the autorickshaw by name Hanumanthappa and Krishnappa respectively. Both of them had admitted before the investigating officer about the involvement of the said autorickshaw in the accident and death of said Basavaraj in the accident.
17. It is also pertinent to note that within a short period of the accident, complaint was lodged before the police; and on the same day, the autorickshaw was seized by the police from the spot of accident. And as per Ex.P9, the said autorickshaw was inspected on 19.06.2016 at Nelamangala Rural Police Station, compound. It is not the case of respondents that the police had forcibly taken the
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NC: 2023:KHC:34810-DB MFA No. 8040 of 2016 said autorikshaw to the police station for the purpose of falsely implicating in the accident. Under these circumstances, the contention of respondent No.1 that the said autorickshaw was falsely implicated in this case is not tenable.
18. The respondent No.1 insurer cannot deny the accident only on ground that chassis number and engine number mentioned in Ex.P3 and P9 are different; the claimants were not author of Ex.P3 or in her presence it was not drawn. Therefore, claimants cannot be made responsible for the mistake committed by the investigating officer while mentioning the chassis number and engine number of the vehicle in the mahazar.
19. The Tribunal had not considered these facts and had not properly appreciated the evidence on record. Neither owner/driver nor insurer had challenged said charge sheet before competent court. Even it was not brought out in the cross examination of PW.1 that driver/owner of said
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NC: 2023:KHC:34810-DB MFA No. 8040 of 2016 autorickshaw was close fried or relative of claimants and to help them agreed to implicate the vehicle. Evidence of PW.1 as well as prosecution papers produced by the claimants, prima facia prove the accident by the involvement of said autorickshaw that caused death of Basavaraj. These facts were not properly appreciated by the Tribunal and on the basis of same mistake crept while mentioning engine and chassis number in mahazar, involvement of vehicle was doubted. The said findings are not justifiable.
20. The Tribunal in paragraph No.18 assessed the compensation, holding that the age of the deceased as 48 years; his earning as Rs.9,500/- per month; added 30% of the income towards future prospects and deducted ¼ of the amount towards personal expenses and awarded the compensation of Rs.14,43,000/- the said assessment is proper and just compensation was assessed and it does not call for any interference.
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21. The claimants are entitled for the compensation under the conventional head as per the law laid down by the Apex Court in the cases of NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY SETHI AND OTHERS1 as well as SHRI RAM GENERAL INSURANCE COMPANY LIMITED VS BHAGAT SINGH RAWAT & ORS2, the claimants are entitled for following amount of compensation:
Sl. Particulars Amount in
No. (Rs.)
1. Loss of dependency 14,43,000
2. Loss of consortium 48,400
3. Loss of estate 18,150
4. Funeral expenses 18,150
Total 15,27,700
22. It is not in dispute that respondent No.1 is insurer of autorickshaw bearing chasis number and engine number 1 2017 ACJ 2700 2 civil appeal Nos.2410-2412/2023
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NC: 2023:KHC:34810-DB MFA No. 8040 of 2016 mentioned in Ex.P9. Policy of insurance was in force as on the date of accident per Ex.R1. Therefore, respondents are jointly and severally liable to pay the compensation.
23. For the above said discussions we answer question No.1 in the 'Affirmative' and question No.2 in the 'Negative' and we pass the following:
ORDER i. The appeal is allowed.
ii. The impugned judgment and award
passed by the Tribunal in
MVC.No.3764/2015 dated 01.10.2016 is set aside.
iii. The claimants are entitled for compensation of Rs.15,27,700/- with interest @ 6% per annum from the date of petition till payment of entire amount.
iv. Amount of compensation shall be apportioned in the ratio of 50:20:20:10, between claimants No.1 to 4 respectively. Claimants No.1 to 4 shall deposit 50% of the
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NC: 2023:KHC:34810-DB MFA No. 8040 of 2016 amount of their share, in fixed deposit in any Nationalised Bank for a period of 3 years.
v. Respondent No.1 is directed to deposit the above said amount within a period of eight weeks from the date of receipt of copy of this order.
Sd/-
JUDGE Sd/-
JUDGE AG List No.: 4 Sl No.: 1