Karnataka High Court
The Manager vs Rani Jha on 7 October, 2020
Bench: Alok Aradhe, H T Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF OCTOBER 2020
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA NO.5729 OF 2018(MV)
BETWEEN:
The Manager,
Royal Sundaram Alliance
Insurance Company Limited,
No.186/7, Sri.Raghavendra Plaza,
Hosur Main Road,
Wilson Garden, Bengaluru-27.
By
Royal Sundaram General Insurance
Company Ltd.,
Subramaniam Building, II Floor, No.1,
Club House Road, Annsasalai,
Chennai-600 002.
.... Appellant
(By Sri.O.Mahesh, Adv.)
AND
1. Rani Jha,
2
Aged 50 years,
W/o Late. Shambhu Dutt Jha,
2. Nishanth Dutt Jha,
Age 28 years,
S/o Late. Shambhu Dutt Jha,
Both are residing at Astha
Sharad Jheel, Flat No. G/D,
Polytechnic Road, Dhanbad,
Jharkhand-826 001.
3. Nandakumar G., Major,
S/o M. Gopalappa,
No.617, Bharathnagara,
C.B.Pura Road, Vijayapura Town,
Devanahalli Taluk,
Bangalore Rural District-562 135.
...Respondents
(By Sri.Gopalakrishna N., Adv. for
Sri.A.Srinivasaiah, Adv. for C/R1 & R2:
R3 is served)
This MFA is filed under section 173(1) of MV Act
against the judgment and award dated:03.04.2018
passed in MVC No.4160/2016 on the file of the XXI
ACMM & XXIII Additional Small Cause Judge, Court of
Small Causes, MACT, Bengaluru (SCCH-25), awarding
compensation of Rs.40,23,096/- with interest at 8%
p.a. from the date of petition till the deposit.
This MFA coming on for admission, through video
conference this day, H.T. Narendra Prasad J.,
delivered the following:
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JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the insurance company being aggrieved by the judgment dated 03.04.2018 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 05.06.2016 at about 2.00 a.m. the deceased Ujwal Dutt Jha was proceeding in his motorcycle bearing registration No.OR-02/BX-3311 from Madivala to Koramangala. When he reached near water tank junction, Koramangala, a car bearing registration No.KA-43/7809 which was being driven by its driver at a high speed and in a rash and negligent manner, dashed against the motorcycle. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries on the way to the hospital.
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3. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 25 years at the time of accident and was working as Consultant - Systems Administration at NTT Data Global Delivery Service Pvt. Ltd., Bangalore and was earning Rs.35,000/- per month and apart from that he was also doing part-time job in Web Designing and earning Rs.25,000/- per month, totally he was earning Rs.60,000/- per month. It was pleaded that the claimants have spent Rs.1,00,000/- towards transportation of dead body and funeral expenses and obsequies ceremonies. The claimants claimed compensation to the tune of Rs.1,50,00,000/- along with interest.
4. On service of summons, the respondent Nos.1 and 2 appeared through counsel and filed written statement in which the averments made in the 5 petition were denied. It was pleaded by the respondent No.1 that the accident has occurred due to the negligence of the deceased himself. It was pleaded by the respondent No.2 that the owner of the offending vehicle has not given necessary information about the accident, driver and other details as required under Section 134(c) of Motor Vehicles Act and jurisdictional police have also not forwarded the necessary case papers as required under Section 156(c) of the Motor Vehicles Act. It was further pleaded that the driver of the car was not having valid and effective driving licence but he was having only LMV and not the licence for driving passenger carrying commercial vehicle. The owner has violated the terms and conditions of the policy and the insurer is not liable to indemnify the owner. It was further pleaded that the accident has occurred due to the rash and 6 negligent riding of the deceased himself. Hence, they sought for dismissal of the petition.
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.2 - brother of the deceased as PW-1, employer of the deceased as PW-2 and officer of the City Bank as PW-3 and got exhibited 24 documents namely Ex.P1 to Ex.P24. On behalf of respondents, the owner of the car was examined as RW-1 and an officer of the insurance company was examined as RW-2 and got exhibited documents namely Ex.R1 to Ex.R7. 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 7 held that the claimants are entitled to a compensation of Rs.40,23,096/- along with interest at the rate of 8% p.a. Being aggrieved, insurance company has filed this appeal.
6. The learned counsel for the insurance company has raised the following contentions:
Firstly, after service of summons the appellant has filed the written statement stating that the insured has not given any details as required under Section 134(c) of Motor Vehicles Act and jurisdictional police have also not forwarded the necessary case papers as required under Section 156(c) of the Motor Vehicles Act.
Secondly, the driver of the car was not having any valid and effective driving licence to drive the said vehicle as on the date of the accident. He has only LMV and there is no transport endorsement for driving the passenger carrying vehicle. Inspite of the 8 insurance company taking the specific contention the Tribunal has not framed any issue as per Rule 245 of the Karnataka Motor Vehicles Rules, 1989 (hereinafter referred to as 'the Rules'). Hence, the entire judgment is vitiated.
Thirdly, the accident has occurred due to the negligence of the driver of the motorcycle. Even though the police have registered FIR against the driver of the car and after investigation charge sheet has been filed against the driver of the car, in the criminal proceedings the driver of the car has been acquitted on the ground that there is no negligence on his part. Therefore, the finding given by the Tribunal that the accident occurred due to the rash and negligent driving of the driver of the car is unsustainable.
Fourthly, in respect of quantum of compensation, the claimants are mother and brother 9 of the deceased. The brother is working in a bank as a Manager and he was not depending upon the deceased for his livelihood.
Fifthly, the Tribunal has considered the monthly income of the deceased as Rs.27,963/- which is on the higher side and the future prospects added by the Tribunal to the income of the deceased is also on the higher side.
Lastly, the rate of interest awarded by the Tribunal at the rate of 8% p.a. for the accident of the year 2016 is on the higher side.
Hence, the learned counsel for the insurance company prays for allowing the appeal.
7.On the other hand, learned counsel for the claimants has raised the following counter- contentions:
Firstly, the owner of the car has been examined as RW-1. He has specifically stated in his cross- 10 examination that the driver of the offending vehicle was having valid driving licence and he has taken care before permitting the driver to drive the vehicle. In support of the said contention he has relied on the judgment of the Hon'ble Apex Court in the case of MUKUND DEWANGAN vs. ORIENTAL INSURANCE COMPANY LIMITED (2017) 14 SCC 663 wherein it is held that licence to drive LMV includes licence to drive transport vehicle.
Secondly, the Tribunal on the basis of the evidence of the parties and the materials available on record has rightly held that the accident has occurred due to the rash and negligent driving of the driver of the car.
Lastly, the judgment and award passed by the Tribunal is just and proper.
Hence, the learned counsel appearing for the claimants prays for dismissal of the appeal. 11
8. We have considered the submissions made by the learned counsel for the parties and have perused the records.
9. The case of the claimants is that the deceased sustained injuries in the road traffic accident involving the motorcycle and the car. Immediately after the accident complaint has been lodged against the driver of the car. The police have registered FIR as per Ex.P1 and drawn spot panchanama as per Ex.P2 and IMV report as per Ex.P5. It is very clear that the driver of the car was going at a high speed and in a rash and negligent manner and dashed against the motorcycle and the front portion of the car was damaged. After investigation police have filed charge sheet against the driver of the car as per Ex.P3. Only because he was acquitted in the criminal case it cannot be held that he is not responsible for 12 the accident. Under the Motor Vehicles Act in the claim petition before the Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in the civil case. No doubt, before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to decide for awarding compensation, but the Tribunal is not expected to take or to adopt a nicety of a civil or criminal case. After all it is a summary enquiry and it is the legislation for the welfare of the Society. The proceedings under the Motor Vehicles Act are not akin to the proceedings under civil rules. Hence, strict rules of evidence are not required to be followed in this regard. In the case of MANGLA RAM (supra), the Hon'ble Apex Court has held as hereinbelow:
"25. In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning 13 the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied."
10. The respondents have examined RW-1 owner of the car who is not an eyewitness to the accident, but they have not examined the driver of the car and they have not produced any document in support of their evidence. Except a self serving oral statement of RWs. 1 and 2 there is no supporting documentary evidence has been placed before the Tribunal. The Tribunal, on the basis of the documents Ex.P1 - FIR, Ex.P2 - spot panchanama, Ex.P3 - charge sheet, Ex.P5 - IMV report and the evidence of 14 the parties has rightly held that the accident has occurred due to the rash and negligent driving of the driver of the car.
11. In respect of the contention of the appellant that the insured has not informed the insurer as required under Section 134(c) of the Motor Vehicles Act and police have not forwarded the necessary papers as required under Section 156(c) of the Motor Vehicoes Act, the same are not mandatory provisions, It will not affect the rights of the claimants for claiming compensation.
12. The contention of the appellant that the Tribunal has not framed proper issue, the appellant has not raised any objection before the Tribunal. In fact the Tribunal has allowed the parties to adduce their evidence as per their pleadings. Accordingly, the appellant has adduced the evidence. The Tribunal 15 after considering all these aspects has rightly passed the judgment and award. In respect of the contention that the driver of the offending vehicle was not having valid driving licence but was having only LMV and he was driving a transport vehicle, in fact the respondent No.2 who has filed written statement specifically taken the contention that the driver of the offending vehicle was having valid driving licence to drive the LMV. The Hon'ble Apex court in the case of MUKUND DEWANGAN (supra) has held that there is no separate endorsement required to drive the transport vehicle of light motor cycle class. In view of the above, even though the driver of the offending vehicle was having LMV without endorsement he can drive a transport vehicle and the Tribunal has rightly considered the aforesaid point and answered the issue.
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13. In respect of quantum of compensation is concerned, at the time of the accident the deceased was aged about 26 years and he was working as a Consultant - Systems Administration at NTT Data Glovbal Delivery Service Pvtg. Ltd., and they have produced the pay slips as per Ex.P14, Ex.P19 to Ex.P21 and attendance book of deceased as per Ex.P22 and they have also examined the officer of the company in which deceased was working and also examined the Manager of City Bank. Considering these documents the Tribunal has rightly assessed the monthly income of the deceased. At the time of the accident deceased was aged about 26 years. Even though there are two claimants the Tribunal has considered the mother as dependent on the income of the deceased and deducted 50% of the income towards personal expenses. In view of the law laid down by the Hon'ble Supreme Court in the case of 17 'NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS' AIR 2017 SC 5157, the Tribunal has rightly added the future prospects at 40% and considering the age of the deceased multiplier '17' has been adopted by the Tribunal. Hence, the compensation garneted by the Tribunal is just and proper.
14. In respect of rate of interest granted by the Tribunal at 8% p.a. is concerned, the accident has occurred in the year 2016. As per the guidelines issued by the Reserve Bank of India, as on the date of accident interest rate was 6.25%. Accordingly, the interest granted by the Tribunal at 8% p.a. is reduced to 6.25% p.a.
15. Accordingly, the appeal is allowed in part. The amount of compensation remains unaltered. The Insurance Company is directed to deposit the 18 compensation amount along with interest at the rate of 6.25% p.a. from the date of petition till the date of deposit within a period of four weeks from the date of receipt of copy of this judgment.
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, the appeal is allowed-in-part.
Sd/-
JUDGE Sd/-
JUDGE Cm/-