Karnataka High Court
M/S Icici Lombard Gic Ltd vs Smt Bharthi S Reddy on 13 October, 2015
Author: N.K. Patil
Bench: N.K. Patil
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2015,
: PRESENT :
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MR. JUSTICE PRADEEP.D.WAINGANKAR
M.F.A.No.672 OF 2015 (MV)
Between:
M/s. ICICI Lombard GIC Ltd.,
Prestige Corniche,
No.62/1, 2nd Floor, Richmond Road,
Bangalore-560 025.
Now rep. by its Manager Legal,
M/s. ICICI Lombard Company Ltd.,
Regional Office, SVR Complex,
2nd Floor, Madiwala,
Hosur Main Road, Bangalore.
... Appellant
(By Shri. B.C. Shivannegowda, Advocate)
And:
1. Smt. Bharthi S Reddy,
W/o. Late M.N. Shivareddy,
Aged about 38 years.
2. Kumari Shreya,
D/o. Late M.N. Shivareddy,
Aged about 16 years.
3. Kum. Saisree,
D/o. Late M.N. Shivareddy,
Aged about 10 years.
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Since the 2nd & 3rd Respondents are minor,
Rep. by his mother .
All are R/at. 'Sri Sainilaya',
13th Ward, Bagepalli Town,
Near Health Quarters, Bagepalli,
Chikkaballapura District.
Now R/at. C/o. Raghunath,
No.4/2, Venkateshwara Nilaya,
3rd Cross, opp. to Rajeevgandhi Dental College,
Chidananda Reddy Layout,
Cholanagara, R.T. Nagar, Bangalore.
4. B.R. Vasudeva Reddy,
S/o. Ramachandra Reddy,
Basement Balaji Nilaya,
Shivashankar Block,
Gudadahalli Main Road,
Hebbal, Bangalore-24.
... Respondents
(By Shri. L. Harish Kumar, Advocate for R1;
R2 & R3 minors, rep. by R1;
Shri. Jagadeesh.H.T, Advocate for R4)
******
This MFA is filed U/S 173(1) of MV Act against the
Judgment and Award dated: 26/07/2014, passed in MVC
No.8301/2007, on the file of the IX Additional Small Causes
Judge & XXXIV ACMM, Court of Small Causes, Member,
Motor Accident Claims Tribunal-7, Bangalore (SCCH-7),
awarding a compensation of `19,75,000/- with interest @
6% P.A. from the date of petition till the date of payment.
This MFA coming on for Admission, this day,
N.K. PATIL. J., delivered the following:
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JUDGMENT
Though this appeal is posted for Admission, with the consent of the learned counsel appearing for the parties, it is taken up for final disposal.
2. This appeal by the Insurance Company is directed against the judgment and award dated 26th July 2014, passed in MVC No.8301/2007, by the IX Additional Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, Motor Accident Claims Tribunal-7, Bangalore (SCCH-7), (for short, 'Tribunal' ) seeking to set aside the direction issued by the Tribunal to the Insurer to indemnify the award and also for reduction of compensation on the ground that, the vehicle in question was not at all involved in the accident.
3. The facts in brief are that the claimant No.1/respondent No.1 herein is the wife, claimant Nos.2 and 3/respondent Nos.2 and 3 herein are the children and of deceased M.N. Shivareddy, who died in the road 4 traffic accident. The claimants/respondents 1 to 3 herein filed the claim petition under Section 166 of the Motor Vehicles Act, contending that, the deceased met with a road traffic accident, at about 11:30 A.M, on 03- 03-2006, when he was coming on his motor cycle Hero Honda bearing Registration No.KA-40/H-9253, near Lalipalli Cross, on NH-7 of Chilamathur Mandal, at that time, a Car Tata Indica bearing Registration No.KA- 39/P-8148 which was being driven by its driver at a high speed, in a rash and negligent manner, so as to endanger human life and property, came and dashed against the motor cycle of the deceased. As a result, the deceased received bleeding injuries and grievous injuries to head and other parts of the body. However, unfortunately, the deceased died on the spot because of the head injuries sustained by him in the road traffic accident.
4. It is the case of the claimants that, the deceased was hale and healthy prior to the date of 5 accident, which resulted in his death and that he was doing business by supplying and purchasing forken seeds from villages and other Company earning a sum and contributing the entire sum towards the family requirements and the sole earning member in the family and that in view of his untimely and unnatural death, the family is displaced and they are in great financial distress and that they have lost the only hope and social and financial security and aspiration in life and therefore, they have to be compensated reasonably.
5. On account of the death of the deceased, the claimants filed the claim petition before the Tribunal, seeking compensation of a sum of `50,00,000/- against the appellant/Insurer and others. The said claim petition had come up for consideration before the Tribunal on 26th July, 2014. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of 6 `19,75,000/- under different heads, with 6% interest per annum, from the date of petition till the date of deposit and directed the appellant/Insurer to indemnify the award within one month from the date of the said judgment. Being aggrieved by the said direction issued by the Tribunal and also the quantum of compensation awarded by the Tribunal on the ground that the vehicle was not at all involved in the accident and the compensation awarded is excessive and exorbitant, the Insurer is in appeal before this Court, seeking to set aside the said direction and for substantial reduction of compensation.
6. We have gone through the grounds urged in the memorandum of appeal carefully, perused the impugned judgment and award passed by Tribunal and heard the learned counsel for Insurer as well as the learned counsel appearing for claimants.
7. Shri. B.C. Shivannegowda, learned counsel appearing for appellant/ Insurer vehemently submits 7 that the Tribunal has committed a grave error, resulting in serious miscarriage of justice in directing the appellant/Insurer to indemnify the award, even though the vehicle in question, i.e. Tata Indica Car bearing Registration No.KA-39/P-8148 was not at all involved in the accident on the aforementioned date and time. He submitted that the reasoning given by Tribunal at paragraphs 18 and 35 of its judgment for fastening the liability on the Insurer is contrary to the evidence on record. Therefore, the direction issued to the Insurer to indemnify the award cannot be sustained at any stretch of imagination and liable to be set aside.
To further substantiate his case, learned counsel appearing for Insurer is quick to point out and submit that the evidence of PW1, wife of deceased, Smt. Bharathi S. Reddy and PW3, Shri. Erappagari Ramappa is an after-thought and that the wife of deceased is not an eye witness and she does not know anything about the manner in which the accident has occurred. PW3 is 8 the set-up person and is none other than the friend of deceased M.N. Shivareddy.
Further, learned counsel appearing for Insurer vehemently submitted that, after lapse of more than one year, they have given the complaint and the said complaint is registered by the Police and the Police after investigation have filed the charge sheet, by colluding with the complainant and the claimants. Further, the Tribunal has grossly erred in disbelieving the oral evidence of RW1 that the vehicle in question i.e. Tata Indica Car was not at all involved in the accident that occurred at about 11:30 A.M. on 03-03-2006. All these aspects of the matter have not been looked into or considered or appreciated by the Tribunal, while recording the reasoning for fastening the liability on the Insurer. Therefore, he vehemently submitted that the direction issued by Tribunal to the Insurer to indemnify the award is highly unsustainable and liable to be set aside.
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Regarding quantum of compensation, he vehemently submitted that the Tribunal further grossly erred in assessing the monthly income of the deceased at `15,000/-, without any proof of documentary evidence in support thereof. The claimants have not produced any credible documentary evidence to substantiate that the deceased was earning `15,000/- per month. The accident is of the year 2006. Therefore, considering the age, avocation and also the year of accident, he submitted that the monthly income of the deceased may be re-assessed between `4,500/- and `5,000/- and deducting 1/3rd towards the personal and living expenses of the deceased and adopting multiplier of '15' taking the age of the deceased, award reasonable compensation towards loss of dependency, by modifying the impugned judgment and award passed by Tribunal, reducing the compensation substantially.
8. As against this, Shri.L. Harish Kumar, learned counsel appearing for claimants submits that the Tribunal, after critical evaluation of the oral and 10 documentary evidence available on file, has recorded a specific finding of fact at paragraphs 18 and 35 of its judgment, holding that the accident occurred due to rash and negligent driving by the driver of Tata Indica Car bearing Registration No.KA-39/P-8148 and the same is just and proper and that no fraud as such is committed either by the claimants or the Police and that the Police, after due investigation have registered a case against the driver of the offending Tata Indica Car mentioned above, for causing the accident, resulting in death of deceased M.N. Shivareddy at about 11:30 A.M. on 03-03-2006. Therefore, he submitted that the reasoning recorded by Tribunal does not call for interference by this Court.
Further, he is quick to point out and submit that in fact, in the cross examination of PW1, wife of deceased and PW3, nothing worthwhile is elicited regarding the rash and negligent driving by the driver of the other vehicle involved in the accident. Mere taking oral stand without any documentary evidence or 11 examining any independent witness to substantiate their prayer and ground cannot be sustained and the appeal filed by appellant is liable to be dismissed.
Regarding the quantum of compensation awarded by Tribunal, learned counsel appearing for claimants submitted that the deceased was a young and energetic person aged about 38 years and business man and also a multifaceted person and a B.E. Graduate in Electronics and Communication Engineering, earning substantial income per month. Therefore, considering the age, avocation, year of accident and other material available on file, the Tribunal is justified in assessing the monthly income of the deceased at `15,000/- and awarding compensation towards loss of dependency and also conventional heads. Hence, interference in the same is unwarranted.
9. After hearing the rival contentions of the parties, after perusal of the impugned judgment and award passed by Tribunal and after re-appreciation of the oral and documentary evidence available on file, the 12 points that arise for our consideration in this appeal are:
I] Whether the Tribunal is justified in directing the Insurer to indemnify the award?
II] Whether the quantum of compensation awarded is excessive and liable to be reduced?
10. Re-Point No.1] : After careful perusal of the impugned judgment and award passed by Tribunal including the original records placed before us, it emerges that occurrence of accident at about 11:30 A.M. on 03-03-2006 and the resultant death of deceased M.N. Shivareddy in the road traffic accident are not disputed. Admittedly there is involvement of two vehicles in the accident in question. Further, as on the date of accident, both the vehicles were duly insured with the Insurer and that the drivers of both the 13 vehicles had valid and effective Driving Licence to drive the said vehicles.
11. After critical evaluation and re-appreciation of oral and documentary evidence available on file, it emerges that, the claimants in order to substantiate their case, have examined the wife of deceased as PW1 and two independent witnesses as PWs2 and 3. PW1 has placed reliance on Ex.P1, FIR, Ex.P3, Charge sheet, Ex.P4, statement of witnesses, Ex.P6, R.C. Book, and Ex.P7- Driving Licence, Ex.P25, spot Hand sketch and stated in unequivocal terms that the accident has occurred on account of rash and negligent driving by the driver of Tata Indica Car bearing registration No.KA- 39/P-8148.
12. Further, the Tribunal has clearly observed at paragraph 18 of its judgment that Ex.P3, charge sheet clearly discloses that the accused is the driver of the Tata Indica Car bearing Registration No.KA-39/P-8148 and he drove the said Car in a rash and negligent manner with high speed and caused the accident at 14 Lalipalli Cross in Chilamathur Mandal, resulting in the death of deceased. Further, the charge sheet filed by the jurisdictional Police is the conclusive proof and that the same has not been questioned or challenged by the Insurer.
13. Further, at paragraph 35 of its judgment, the Tribunal has specifically observed after appreciation of the oral and documentary evidence available on file that, the offending vehicle, i.e. Tata Indica Car bearing Registration No.KA-39/P-8148 is very much involved in the accident and that no fraud as such is played either by the claimants, or the complainant or the Police in registering a criminal case against the driver of the offending Tata Indica Car, which caused the accident at about 11:30 A.M. on 03-03-2006 at NH-7 of Chilamathur Mandal.
14. It can further be seen that, the owner of the offending vehicle, i.e Tata Indica Car has clearly admitted in his written statement as well as evidence 15 regarding the involvement of the Tata Indica Car bearing registration No.KA-39/P-8148 and Ex.R1, the insurance policy discloses that the accident has occurred well within the period of coverage of insurance. Further, RW1, in his cross examination has clearly admitted the issuance of policy and its validity. Ex.P7, Driving licence discloses that, as on the date of accident, the deceased was having a valid and effective Driving licence to drive the vehicle and that there are no counter allegations leveled against him to this effect.
15. Thus, after re-appreciation of the oral and documentary evidence and other relevant material available on file, it is seen that the Tribunal, after critical evaluation of oral evidence of PWs 1 to 3 and RWs1 and 2 and documentary evidence at Exs.P1 to P25 and R1 to R3, has recorded a specific finding of fact at paragraphs 18 and 35 of its judgment holding that the accident occurred at about 11:30 A.M. on 03-03- 2006 at NH7, of Chilamathur Mandal, is on account of 16 rash and negligent driving by the driver of Tata Indica Car bearing Registration No.KA-39/P-8148. The reasoning recorded by Tribunal for arriving at the said conclusion is just and proper and we do not find any justification or good ground to interfere in the said finding of fact. Accordingly, we answer point No.1 in the 'affirmative', holding that the Tribunal is justified in fastening the liability on the insurer and directing it to indemnify the award.
16. Re-Point No.II] :It is undisputed that the claimants are the wife and two minor daughters of deceased, aged about eight years and two years respectively at the time of accident. It is also not in dispute that the deceased was a B.E. Graduate in Electronics and Communication Engineering and a businessman and also an agriculturist. But, the claimants have not produced any credible documentary evidence in support thereof to indicate the type of business carried on by him. It is stated that he was 17 aged about 38 years. As rightly pointed out by the learned counsel appearing for Insurer, the Tribunal is not justified in assessing the monthly income of the deceased at `15,000/- in the absence of any credible and convincing documentary evidence. The Accident is of the year 2006. Therefore, considering the age, avocation and also the year of accident, we re-assess the monthly income of the deceased at `10,000/-, to meet the ends of justice. From this, as the claimants are three, we have to deduct 1/3rd towards the personal and living expenses of the deceased. Accordingly, if 1/3rd (i.e. `3,333/-) is deducted, from `10,000/- towards his personal and living expenses, the net income would be `6,667/- per month.
17. Further, as the deceased was aged about 38 years, falling under the group of 36 to 40 years, the proper multiplier applicable is 15, as rightly adopted by tribunal. Accordingly, we adopt the multiplier of '15' as per the decision of the Hon'ble Apex Court Sarla 18 Verma's case (2009 ACJ 1298). Thus, the compensation towards loss of dependency would work out to `12,00,060/- (i.e. `6,667/- x 12 x'15') as against `18,00,000/- awarded by Tribunal.
18. However, considering the facts and circumstances of the case and totality of the case on hand, we are of the considered view that the Tribunal is justified in awarding compensation of `1,75,000/- under various conventional heads. Hence, interference in the same is uncalled for.
19. Thus, the total compensation works out `13,75,060/- as against `19,75,000/- awarded by Tribunal, with interest at 6% per annum, from the date of petition till the date of realization. There would be reduction of compensation by `5,99,940/-.
20. In the light of the facts and circumstances of the case, as stated above, the appeal filed by the Insurance Company is allowed in part. The impugned 19 judgment and award dated 26th July 2014, passed in MVC No.8301/2007, by the IX Additional Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, Motor Accident Claims Tribunal-7, Bangalore (SCCH-7), is hereby modified, reducing the total compensation from `19,75,000/- awarded by Tribunal, to `13,75,060/- (reduction being `5,99,940/-), with interest at 6% per annum, from the date of petition till the date of realization.
The appellant/ Insurance Company is directed to deposit the compensation, with interest thereon at 6% per annum, after deducting the amount already deposited by it, within four weeks from the date of receipt of copy of the judgment and award.
The apportionment and the manner of disbursement of compensation ordered by Tribunal
gets proportionately reduced to the extent of reduction of compensation made by this Court.
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The amount in deposit by the Insurance Company shall be transmitted to the jurisdictional Tribunal, forthwith.
Office to draw award, accordingly.
SD/-
JUDGE SD/-
JUDGE BMV*