Karnataka High Court
Smt Padmavathamma vs Smt Sundaramma on 14 September, 2010
Author: Jawad Rahim
Bench: Jawad Rahim
IN THE HIGH COURT OF KARNATAKA AT BANGALORE BETWEEN: AND : DATED THIS THE 14"' DAY OF SEPTEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE JAWAD F<.AjHIf_~'i.VV: MFA No. 12652 oF'20a7(M_.Y) O SMT. PADMAVATHAMMA-,..__ w/0 SRI. NAGESH RAO',».._ SINCE DECEASED BY L.R*-,' 1 SRIN.SURESH SON OF SRI NAGESH RAQ. AGED ABOUT 43 YEARSS,.;= v. R/AT BRAMARAMBA EXTENSION, 1- CHAMARAJNAGAR A A _ _ , APPELLANT (BY SR1".'S;RuRuS_HeTHA'MA.,RAo, ADV.) . S.MT.:SUNVD.ARA'MjVICA;" A W/Q SR1 BAS'AVAR~AJU AGEDABQUT 47 YEARS SI_OV1T.xMA!A\lAJ"U«L..11I_,... . D/:0 SR: BASAVARAJU, A" 'T _A.§3ED«-A'BDuT 27 YEARS BoTH;,A'RE RESIDING AT Nos.63I 1,4"**.CRoSS, 15*" MAIN, A .SRIRAMPuRA II STAGE, (BY SRI SHARMA MALLIKARJUN, ADV.,) MYSDRE. RESPONDENTS
>|<>|<* NV THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14-08-2007 PASSED IN MVC NO.821/2006 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT--V & MEMBER, ADDITIONAL-'--.__MACT, MYSORE, AWARDING A COMPENSATION OF RS.3..,7-4},0,00/- INTEREST AT 6% P.A. FROM THE DATE OF PETITION-.-- THIS APPEAL COMING ON FOR FINALEDISPOSALION"
THIS DAY,THE COURT DELIVERED THE FO_.f--_'E_'C)\!\TiI..NC3i:"'--,V 30DGNEN;[I This appeal under Sectioi'rI,:..1»73' Motor Vehicle Act, is by theowner_lo'f":thTe..yrehicle in\V/"oh/ed in motor vehicle accident' agains:t:flth_eI award in MVC No. 821/2006,,» 1:%?,»08T2002::'Do:n=th.eIfile of the Presiding Officer, btember, Additional MACT, Mysore.
2. I The co'n'téS<tual facts are:
I~.:"I--.._'The?respondents -- Smt. Sundaramma and Smt I -V MaIn§u.|a'-,:'V.lodged a claim under Section 166 of the Karnataka iviotor \v/Vehicle Act, before the Tribunal seeking compensation I Io--fI'RsI.8,90,O00/-- regarding death of S.Basavaraju, husband I claimant No.1 and father of claimant No.2 in a motor vehicle accident on 28-02-2006 involving autorickshaw acQ/ bearing registration No. KA--O9 4249 and bus bearing registration No.PY-01 3-7279 on the ground that driver of the bus was rash and negligent consequent to which he lost control and bus collided with autorickshaw. Duepto the impact E-Sasavaraju suffered injuries and succumbefigbtogy the same. They sought compensation non--pecuniary losses.
4. The claim was resisted' re's,pondentsi_TThe Tribunai considering the Ve\.1:i:'ci~ence.V" on --refcor"dW"heljd that accident was result ovfsnyeglig.en'lt~dri\/Eng of the-ibus driver and placed actionable wrong .i_o'n"iri.i§*n*; freach such conclusion the Tribunal_..ha;s '1-taken con's'_id_eration the documentary evidence~, of FIR at Ex.P2, spot mahazar at Ex.P4"<.__4IMVVV"re.port.:a'_t iEx.PS and 6 and charge sheet at
--.:Tth_e Tribunal accepted the claimants' case that '~.B'a-sayaraiu 'whats a healthy man and was a meason earning Rs4;'15Ci/J~"p.er day. The Tribunal considered his age as 65 "yeaursflland applied muitipiier of 9, deducting 1/3"' out of 2'-§Fis§A4,5O0/~ towards personal expenses and Rs.3,000/- was taken as contribution to the family. Annual loss was taken gcilw as Rs.36,000/- and applying multiplier of 9 to the multiplicand, the Tribunal awarded Rs.3,24,000/-- plus amounts under conventional heads. Claimants we_re;aheld entitled to in all Rs.3,74,000/~. The Tribuna_l;"'d'i«re_cteé'the insured - owner of the vehicle to discharge...th':eVgaward as it notices there was no valid insurance icovferedias---.on~.'th_e ..da.te ' of accident. 'V V
6. The said award"V'"i'i»i:g';_"' not Why the claimants but owner the awarded on two countspfirstly .A/;V'~\l'._'cv,v:l._'r'-negligence in the driving of theéous' drivel? a"nd'"'ngegV'l'I'ge.nce was only on the part ofthe,autoriclzshaw'-d'river~~a_.n'd secondly, the amount of compelnsatéion excessive. It was further contendedi««t_hat thelv-ryoun-d certificate shows Basavaraju had sufféredA'simple"i'nj.u.ries and hence his death was not result ' odf"mo'to4r~v_ehicle accident. On these grounds the award is qu.estion'e"djs appeal.
7," -, »i have heard the learned counsel for appellant. A. 8)'. The contention in support of the first ground is ' 'th'at'the vehicles collided head on. Therefore, even if it is to
3.,l/ be presumed the accident occurred in the manner stated by the Police Officers, then also it is the case of contributory negligence and not by the negligence on the partvoiitihe bus driver. Attempt is also made to show that th_e_"'d'riv_er:
autorickshaw was negltgent and due to h~is»,.unjeg:ii'g:ence accident occurred. The conten'Lions,,gs(;e "arg'e'd--. 'n'e'cess.ariiy '' fails because IMV report cou;.il.ed withv'c'harge»'sheevt disciosesi. that Investigating Officer the was rash and negligent consequent control and hit against the autortckshawwiiifhepcharge' is fiied against the bus driver 'and.'not.agai.nstj_"thVe:--"aiu.toiAdriver. Even in the charge about possibility of ciriver. Since owner - insured was avvareof its driver, without challenging finding rgecorclediby the investigating Officer in the charge ,.r"'r)'«rv1'ék"et-. cointended that auto driver was negiigent.
9.' A 'iv-V'ti'1'ni1'fact, under the provisions of Motor Vehicle Act PolEce..(5f_ficers report investigating the matter relating to it ~f_*aAccii'd«ents is given statutory credence. Under Section 158 of ' the Karnataka Motor Vehicle Act sub--Section (6) postulates 'as soon as any information regarding any accident involving (jtilx death or bodiiy injury to any person is recorded or report under this section is completed by a police officer, the officer in--charge of the Poiice Station shall forward a copyjof the same within thirty days from the date information or, as the case may be, on com..pie.tion of such, report to the Ciaims Tribunal haying,jurisciiction-and-s,,_aAv»copy 6' thereof to the concerned insurer, arid wherefla' ',cOp_y made» availabie to the owner, he slhavlipalso days of receipt of such repoi;»;,i,._.~,i":rgfirwardi toisuch Ciaims Tribunai and insurer.' _._...:'_ThisV,'p,ro'yi's'io'ni5--'therefore, makes expiicit that "C')i:ff_i.:_'c'eV:rvlalfterjireceiving the report and required to forward his reportito with a copy to the insured and insiurer.The...in:sure"d«--.:is' required to submit his statement to the _1.'ribuna_l_"soonV' after receipt of such copy. in the instant""'casVe',«,_the appellant has done nothing.
'u~",i'j_S..econdly, statutory credence attached to the report icoulyd be noticed from the proposition of Section 166 6' ofthe Act. Sub--Section (4) of Section 166 mandates 'the 6 Claims Tribunal shall treat any report of accident forwarded to it under sub--Section (6) of Section 158 as an application 332/ for compensation under this Act.' Thus, report of Investigating Officer itself is to be treated as an appiication for compensation and it is treated as a prima facieevidyence of occurrence. Therefore, viewed from any angle 4tfh~e._icl*ra'rge sheet at Ex.P9 in itself is sufficient appiica-tio:ri.VVfoA--t:grant"off'-.._, compensation.
11. The appellant case.__is.,iAns:u're'd¥owjner of the vehicle and it is up to hirn------to:",_h.a've.questioned the report if he was not the Investigating Officer. That" Tiiiellrlefore, under the provisions,.o'f§"sub;,lEi'ecti:oVni_T04)' 166 of the Act, the Tribunal---W?V5"§hti1tl,,ed report as an application for grant the victim. On the basis of this statutory"cr_edence_ report and the requirement of law thatflicii a re'p'o--rt..i_t_$,elf is to be treated as an application for ic,ompe.nsratio:n'~..a valid, challenge by the insured is of no avail; The'ifefore, this contention also fails. Now, coming to the question of contributory
-..negligence as the report indicates only driver of the bus was .,._l.fab|e contributory negligence does not arise. Presuming it is such an act, then also insured -- appellant could have M"
participated in the proceedings. As seen from the proceedings before the Tribunal he has not examined its driver nor he has examined any person like, covnductor of the bus to speak as to how the accident occurred§..'VV'3f_h'é plea of contributory negligence could have been.5ii_:UwsVt'aVln:tiated'by the driver of the offending vehicle jalso' a who will be the best witnesses. Hlaving notexiaimlinedllthen, there is no evidence on reco"rd.:g'Hence,'-.frib'una:l could not have considered this is belatedly urged only at this appeal stagVe_.J_VV if if
13. regard to nexus between €1:he«ifi_4_'inj.uri'es'the hdelath. Again the same obser§,~._ati'on haslitogjlbejlmaidel. "The appellant insured, who is owner vehicie;i.lfi.'as not canvassed before the trial «_ Court thatv deatii.Q__f___E5asavaraju was as a result of accidental ' injuries.'.:«1it"*is_ being canvassed for the first time in this 'appeal'idlfialvel examined the PM report. fhe PM report L indicatles that doctor who conducted autopsy was informed llbywthelllpolice officer that the body of the person who had Asulffered injuries in the motor gte/hicle accident registered in &' Cr. No.42/2006. Medical Officer had noticed the following injuries:
"(1) Surgical sutured wound of 2 crns X 0.5 complaint present on the outer aspect of :*i_§'h.t"-_ eye; ;_.
(2) Abrasion of 3 Crn X 5 cm presentj"onV.the-ll right cheek; .
(3) Abrasion of 3 cm X 1 can present Von»..r'ight.f, knee; "
(4) Right thigh bone is fractured at the_'iniVddle._""... third.
No other external inj-ii,.Fi~~es ar"e.__seen'-,o'n.Vthe"
body." ' On dissection doctor'n_a'i'5._ within the body. On exarninationyyof'.the'__VVsitui*l',.Vv.eA§&tra.yasation of biood was present" skuil was intact membranes But, there is external bleed:viin'gij".lV body revealed pleura and trachea, both sides pleura thickened aizdv adhera-ntvto chest wali, trachea contains blood . ést'a~ine5d"=froth. Cerylicai vestebra C4 fractured extravasation 'of_- spinal card condensed. The opinion of the ' do.ctor_.~is_l'.§=1:Ii the injuries are ante-rnortern, abrasions are Abrownyin coloure, possibie in a road traffic accident.
14. The uitimate opinion of the doctor is death was V. _..due to shock and hemorrhage consequent to the injuries suffered in road traffic accident. It is a clincher to the Max 20 question raised by the appellant. No doubt, external injuries as recorded in the PM report would show abrasion and thigh bone fracture, the fact remains that surgical wou-n_d..,_over right outer aspect of right eye proves injury portion was dissected and they have blood~--ta.Cf:C!J:mViJlafi0fl4 right temporal region. In medica,I..,terfn_s':',,su.ch'~liexterriai '' injuries are impact injuries,.w._hich Vactlually e.ca'u_sedV d_amvage.> It caused of arrest of circulation_:oFblood-resulting in death.
Doctors conclusion of" shock and hemorrhage finds finding in the autopsy. that medical evidence was consequence of injuries" ~a.Vs~:'.'such'injuries are relatable to the road avlccident,' by the Investigating Officer report~--.Vat"E'x.F54. There is nexus between accident, . it = injuries-"land the it 1VS.'é--.V--".jfl"Vh'e'last ground is with regard to the quantum. Theucl.aV'imaVnts have not questioned the award, if claimants "..f_>hVa'd'v.que-stioned the compensation they would have been ' entitled to 50% more than what the Tribunal has awarded. wihis is because the dictum of the Apex Court in the case of W' SARLA VERMA & ANOTHER DELHI TRANSPORT CORPORATION reported in 2009 (6) SCC 121, wherein Apex Court has held apart from taking into consideration the proof of income 50% of shall be added to it future loss if the victim is less than 40 yea,F.Sja.ndif30i'Xo% if victim is above 40 years. If that dictu'nn"'is the R income of the deceased fora allit"pu'r'posesV,l.-oft,'ccirnputatlion should have been RS.4,50{)'/'V*'..:T.lilJ'S would have given the figure:of._ dedulctl'hg 1/3", the loss of dependency 'xi{'s:vll_3'--,866/- per month, annually 'have. and applying multiplier.idependency would have been Rs.4;:V1"7"§,VV1"f3'E).:,./.'lj.,V n§{'3',l24,ooo/- awarded by the Tribunail is on the lower side and had cla:imagAnts"4'beVen»iin appeal they were entitled to enhanced gycvornplensation. t5ut','TI restrain my hands as it is seen that "i.nsu'rar:«c.e cornpany has been absolved and appellant, who is owner~hal's.i* been saddled to pay the award in question. The AA ground' that the award is high and excessive certainly is
--..V'u.nt'enable. I reject that ground of appellant that amount of _:compensation awarded is excessive for the reasons discussed above.
at
16. rejected.
VK In the result, the appeal fails and the same is