Karnataka High Court
M/S Hdfc Ergo General Insurance Co Ltd vs Smt Punam Kumari on 22 October, 2020
Bench: Alok Aradhe, H T Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER 2020
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA NO.6911 OF 2018(MV)
C/W
MFA No.5205 OF 2019(MV)
IN MFA 6911/2018
BETWEEN:
M/s. HDFC-ERGO General
Insurance Co. Ltd.,
#25/1, 2nd Floor,
Building No.2,
Shankar Narayan Building,
M.G.Road, Bangalore-560 001.
The Manager.
.... Appellant
(By Sri. D.Vijayakumar, Adv.)
AND
1. Smt. Punam Kumari,
W/o Raj Kishor Singh,
Aged about 31 years.
2. Master Nishanth Raj,
2
S/o Raj Kishore Singh,
Aged about 11 years.
3. Shomya Raj,
D/o Raj Kishor Singh,
Aged about 9 years.
Respondents No.2 & 3 are minors,
Rep. by their natural guardian/
Mother Smt. Punam Kumari,
Respondent No.1,
W/o Raj Kishor Singh,
Aged about 31 years.
All are residents at HRM Flat,
A.F. Station,
Devalalli South,
Nashik, Devlali Air Force,
Maharashtra-422501.
4. M.Venkatesh,
S/o Muniswamy, Major,
No.6 Devraj Urs Road,
Benkateshapuram,
K.G.Halli, Bengaluru.
...Respondents
(By Sri. K.S.Shantharaj, Adv. for R1 to R3:
R2 & R3 are minors Rep. by R1:
Notice to R4 is dispensed with
v/o dated:14.08.2019)
This MFA is filed under section 173(1) of MV Act
against the judgment and award dated:24.02.2018
passed in MVC No.2215/2016 on the file of the XXII
Additional Small Causes Judge, & Member MACT,
3
Bengaluru, awarding compensation of Rs.71,21,900/-
with interest @ 8% p.a. from the date of petition till
deposit.
IN MFA 5205/2019
BETWEEN
1. Punam Kumari,
W/o Rajkishore Singh,
Aged about 32 years.
2. Master Nishanth Raj,
S/o Rajkishore Singh,
Aged about 12 years.
3. Shomya Raj,
D/o Rajkishore Singh,
Aged about 10 years.
Appellants No.2 & 3 are minors,
Rep. by their natural guardian/
Mother Smt. Punam Kumari,
Appellant No.1,
W/o Raj Kishor Singh,
Aged about 31 years.
All are residing at HRM Flat,
A.F. Station,
Devlali South,
Nashik, Devlali Air Force,
Maharashtra-422501.
...Appellants
(By Sri.Shanthraj.K., Adv.)
4
AND
1. HDFC-ERGO Gen. Ins. Co. Ltd.,
By its Manager,
#25/1, 2nd Floor,
Building No.2,
Shankar Narayana Building,
M.G.Road, Bangalore-560 001.
2. Venkatesh,
S/o Muniswamy,
Aged Major,
Residing at No.6 Devraj Urs Road,
Venkateshapuram,
K.G.Halli, Bengaluru-560091.
...Respondents
(By Sri.D.Vijayakumar, Adv. for R1)
This MFA is filed under section 173(1) of MV Act
against the judgment and award dated: 24.02.2018
passed in MVC No.2215/2016 on the file of the XXII
Additional Small Causes Judge & Member, MACT
Bengaluru, partly allowing the claim petition for
compensation and seeking enhancement of
compensation.
These MFAs coming on for Admission, through
video conference, this day, H.T. Narendra Prasad J.,
delivered the following:
5
JUDGMENT
MFA No.6911/2018 has been filed by the insurance company, whereas MFA No.5205/2019 has been filed by the claimants under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) being aggrieved by the judgment dated 24.02.2016 passed by the Motor Accident Claims Tribunal. Since, both the appeals arise out of the same accident as well as a common judgment, they were heard together and are being decided by this common judgment.
2. Facts giving rise to the filing of the appeal briefly stated are that on 16.02.2016 at about 4.15 p.m. deceased Raj Kishor Singh was proceeding on his scooter bearing registration No.GJ-10/BH-6914 on the MES Ring road, near Railway gate, Jalahalli, Bangalore, at that time, a lorry bearing registration 6 No. KA-50/2637 which was being driven by its driver in a rash and negligent manner, dashed against the scooter. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries.
3. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 37 years at the time of the accident and was working as Sergeant at Indian Air Force and was drawing a salary of Rs.60,000/- per month. Because of his death the claimants have lost their bread earner. Hence, they filed the claim petition seeking compensation.
4. On service of summons, the respondent No.1 appeared through counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that the driver of 7 the lorry was not having valid and effective driving licence to drive the same. It was further pleaded that the accident was due to the rash and negligent riding of the scooter by the deceased himself. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant. Hence, he sought for dismissal of the petition. The respondent No.2 did not appear inspite of service of notice and was placed ex- parte.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.1 - wife of the deceased as PW-1 and the record keeper of the employer of the deceased as PW-2 and got exhibited 25 documents namely Ex.P1 to Ex.P25. On behalf of respondents, driver of the lorry was examined as RW- 1 and an officer of the insurance company as RW-2 8 and got exhibited 4 documents namely Ex.R1 to Ex.R4. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.71,21,875/- along with interest at the rate of 8% p.a. and directed the insurance company to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.
6. On the other hand, the learned counsel for the Insurance Company has raised the following contentions:
Firstly, the accident has occurred due to the rash and negligent riding of the rider of the scooter but the 9 Tribunal has erred in holding that the driver of the lorry is negligent in causing the accident.
Secondly, the specific case of the claimants is that the deceased was proceeding on MES ring road, Bangalore, at that time the driver of the lorry came with a high speed and in a rash and negligent manner dashed to the scooter from behind, but in the IMV report it is very clear that the scooter is not damaged in hind portion, only right side of the scooter was damaged.
Thirdly, the respondents have examined the driver of the lorry, he has specifically stated that the deceased was riding the scooter at a high speed and in a rash and negligent manner, and he was riding the same in a zigzag manner and tried to overtake the lorry from right side and lost control over the scooter and fell down and rammed to the lorry near the left 10 side rear wheel and the accident is solely due to the negligence of the deceased.
Fourthly, the complainant is not an eyewitness. Even the police have drawn mahazar on imagination. Even eyewitness to the mahazar have not seen the accident. Except PW-1 they have not examined any independent witness or complainant and they have not examined the investigation officer also. The Tribunal has wrongly held that the accident has occurred due to the rash and negligent driving of the lorry by its driver.
Fifthly, the claimants have produced the salary certificate as per Ex.P9 and income tax returns as per Ex.P19, they have not examined the employer, PW-2 is only the record keeper who is working in the office. Therefore, the income tax assessed by the Tribunal is on the higher side.11
Sixthly, the addition of future prospects at 50% is contrary to the law laid down by the Hon'ble Apex in the case of 'NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS' AIR 2017 SC 5157 since he has joined the service recently.
Lastly, the interest awarded by the Tribunal at 8% p.a. is on the higher side. Hence, he sought for allowing the appeal filed by the insurance company.
7. On the other hand, the learned counsel for the claimants has raised the following contentions:
Firstly, the accident has occurred due to the rash and negligent driving of the driver of the lorry. The respondents, to prove the negligence of the deceased have not examined any independent eyewitnesses and they have failed to prove the contributory negligence since the burden is on them. The Tribunal on the basis of the evidence of the parties and the materials available on record has rightly held that the accident 12 has occurred solely on the negligence of the driver of the lorry.
Secondly, the claimants have produced Ex.P9 - last pay drawn certificate, wherein it is shown that the monthly income of the deceased was Rs.48,522/- and they have produced Form No.16 as Ex.P19, it is very clear that the employer has deducted the income tax (TDS) of Rs.6,267/-. Therefore, the monthly income assessed by the Tribunal is on the lower side.
Further, the Tribunal has failed to grant 100% future prospects. In support of the said contention he has relied on the judgment of the Hon'ble Supreme court in the case of 'NEW INDIA ASSURANCE COMPANY LIMITED vs. GOPALI AND OTHERS' (2012) 12 SCC 198.
Thirdly, as per the judgment of the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. -V- NANU RAM reported in 13 2018 ACJ 2782, each of the claimants are entitled for compensation under the head of 'loss of love and affection and consortium'.
Fourthly, the compensation awarded by the Tribunal under the conventional heads is on the lower side.
Lastly, the Tribunal has rightly granted the interest at 8% p.a. Hence, he sought for allowing the appeal filed by the claimants.
8. We have considered the submissions made by the learned counsel for the parties and have perused the records.
9. It is not in dispute that deceased died in the road traffic accident occurred between the scooter and the lorry. On that day, the deceased was proceeding on his scooter on MES ring road, near 14 railway gate, at that time the driver of the lorry dashed to the scooter of the deceased, due to which the deceased fell down and sustained grievous injuries all over the body. Immediately he was shifted to M.S.Ramaiah hospital wherein he was declared dead. To prove the negligence, the claimants examined PW1, she has specifically stated that the accident has occurred due to the rash and negligent driving of the driver of the lorry. To disprove the same the respondents have examined the driver of the lorry as RW-1, who has deposed that the deceased was riding the scooter in a zigzag manner and tried to overtake the lorry from left side, lost control and fell down.
10. It is well settled in law that when an accident happens through the combined negligence of two persons, he alone is liable to the other who had the last opportunity of avoiding the accident by reasonable care, and who then knew or ought to have 15 known of the danger caused by the other's negligence.
[See: SALAMOND ON THE LAW OF TORTS, TWELFTH EDITION 1957 PAGE 439-441]. The general rule is that the vehicle should be driven at a speed which enables the driver to stop within the limits of his vision and failure to do this will almost always result in the driver being held, in whole or in part, responsible for the collision. [See: CLERK AND LINDSELL ON TORTS, ELEVENTH EDITION, 1954 PAGES 368-370]. It is equally well settled legal proposition that burden of proving negligence lies on the person who alleges it. However, facts of the accident may by themselves constitute evidence of negligence and to such a case the Doctrine of res ipsa loquitor apply which means the things speak for itself. The aforesaid rule is one of the exception to the general rule that burden of proving negligence lies on the person who alleges it. The Supreme Court in 16 'MUNICIPAL CORPORATION OF GREATER BOMBAY VS. LAKSHMAN IYER AND ORS.' AIR 2003 SC 4182 held that the crucial question in case of contributory negligence is whether either party could by reasonable care, have avoided the consequences of other's negligence.
11. A Division Bench of this court in 'SHARADABAI VS. KARNATAKA STATE ROAD TRANSPORT CORPORATION', ILR 1987 KAR 2730 has held that in order to discharge the burden of proof with regard to contributory negligence, it is unnecessary for the propounder of that defence to adduce evidence about the matter and contributory negligence can be and very often is inferred from the evidence already adduced by the claimants or from the perceptive facts. However, the finding with regard to contributory negligence has to be recorded on the basis of proper consideration of the pleadings and 17 legal evidence adduced by both the parties and the same cannot be based merely on police records. [See: 'MINUROUT VS. SATYA PRADYUMNA MOHAPATRA', (2013) 10 SCC 695 AND 'SARALA DEVI VS. ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD.,', (2014) 15 SCC 450]. It is well settled in law that burden to prove breach of duty on the part of the victim lies on the insurance company and the insurance company has to discharge the burden. [SEE: 'USHA RAJ KHOWA VS.
PARAMOUNT INDUSTRIES', (2009) 14 SCC 71]. In 'MANGALA RAM VS. ORIENTAL INSURANCE CO. LTD.', (2018) 5 SCC 656]. The Supreme Court in NATIONAL INSURANCE CO. LTD. Vs. SINITHA (2012) 2 SCC 356, while dealing with nature and scope of liability under Section 163(A) of the Act, held that onus of proof of contributory negligence lies on the shoulders of the defendant, in a proceeding under 18 Section 163(A) of the Act and in case it is found that deceased had contributed in causing the accident, the compensation under Section 163(A) of the Act may be reduced on proof of such contributory negligence.
12. In the aforesaid background, we will examine this case, PW-1 who is the wife of the deceased was not an eyewitness to the accident and one A.S.Hiware has given a police complaint, on the basis of which the police have registered the FIR against the driver of the lorry. Immediately, after the accident the police have drawn the mahazar, as per mahazar the driver of the lorry was driving the lorry from Goraguntenpalya to Hebbal at a high speed and rash and negligent manner, dashed against the scooter. Due to that impact the deceased fell down and sustained grievous injuries and succumbed to the injuries. The police have drawn the sketch, the width of the road is measuring 60 ft., lorry was coming from 19 Gorugunrtpalya towards Hebbal, scooter was also proceeding in the same direction, there was 5 ft. distance from the road, suddenly the lorry came to the left side where the scooter was proceeding, the lorry has taken a turn at little bit left side, the scooter which was going ahead touched the lorry, due to that impact the deceased fell down. The driver of the lorry has deposed that the rider of the scooter deceased, trying to overtake the lorry, fell down, but as per IMV report there is no damage noticed on the lorry. In respect of scooter is concerned, there is scratch mark front shape at right side, scratch mark on front right brake lever and right rear foot rest damaged and there is no damage to the scooter from the hind portion. The police after thorough investigation filed the charge sheet against the driver of the lorry. 20
13. On going through the evidence of the parties and the documents it is very clear that the driver of the scooter and the driver of the lorry were driving at a high speed. The documents - police records - Ex.P1
- FIR, Ex.P2 - complaint, Ex.P3 - charge sheet, Ex.P4
- sketch, Ex.P5 - spot mahazar, Ex.P8 - IMV report, the evidence of PW1, RW1 and RW2, coupled with the aforesaid documents clearly establish that the accident has occurred due to rash and negligent driving of both the rider of the scooter and the driver of the lorry. On the basis of the aforesaid documents we assess that the deceased has contributed 20% to the accident and the driver of the lorry at 80%.
14. In respect of quantum of compensation is concerned, at the time of the accident the deceased was aged about 37 years and was working as a Sergeant of Indian Air Force. As per Ex.P9 - the last pay drawn certificate, the monthly income of the 21 deceased was Rs.48,522/-. He has produced Ex.P19 - Form No.16 it is very clear that the tax deducted at source (TDS) is Rs.6,267/-. But the income has to be taken after deducting income tax and professional tax. Accordingly, if Rs.200/- per month is deducted towards professional tax, the monthly income comes to Rs.48,322/- and annual income comes to Rs.5,79,864/-, out of which income tax has to be deducted as per the TDS at Rs.6,267/- and the annual income comes to Rs.5,73,597/-. To the aforesaid amount, since the deceased was a permanent employee 50% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in 'PRANAY SETHI' (supra). Thus, the annual income comes to Rs.8,60,395/-, out of which, 1/3rd has to be deducted towards personal expenses and therefore, the annual income comes to Rs.5,73,596/-. The deceased was 22 aged about 37 years at the time of the accident and multiplier applicable to his age group is '15'. The claimants are entitled to Rs.86,03,940/- (Rs.5,73,596*15) on account of 'loss of dependency'.
In view of the law laid down by the Supreme Court in 'MAGMA GENERAL INSURANCE CO. LTD.
-V- NANU RAM' 2018 ACJ 2782, claimant No.1 who is the wife of the deceased is entitled for compensation of Rs.40,000/- under the head 'loss of spousal consortium' and claimant Nos. 2 and 3 are entitled for compensation of Rs.40,000/- each under the head 'loss of parental consortium'.
In addition, the claimants are entitled to Rs.15,000/- on account of 'loss of estate' and Rs.15,000/- on account of 'funeral expenses'.
15. Thus, the claimants are entitled to the following compensation:
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Compensation under Amount in
different Heads (Rs.)
Loss of dependency 86,03,940
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of parental 80,000
consortium
Total 87,53,940
The claimants are entitled to a total
compensation of Rs.87,53,940/-.
The Insurance Company is directed to deposit 80% of the compensation amount along with interest within a period of four weeks from the date of receipt of copy of this judgment.
The accident has occurred on 16.02.2016. AS per Reserve Bank of India gu9idelines, from 29th September 2015 till 4th April 2016 the rate of interest is 6.75%. Accordingly, the claimants are entitled to interest at the rate of 6.75% p.a. from the date of petition till payment is made.
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To the aforesaid extent, the judgment of the Claims Tribunal is modified.
The amount in deposit is ordered to be transmitted to the Tribunal, forthwith.
Accordingly, both the appeals are disposed of.
Sd/-
JUDGE Sd/-
JUDGE Cm/-