Karnataka High Court
M/S Oriental Insurance Company Limited vs Smt.Mumataz Begum on 10 October, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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MFA No. 101505 OF 2016
C/W MFA NO. 101506 OF 2016
C/W MFA NO. 101507 OF 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 10TH DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.101505 OF 2016,
C/W
MISCELLANEOUS FIRST APPEAL NO.101506 OF 2016,
C/W
MISCELLANEOUS FIRST APPEAL NO.101507 OF 2016.
IN MFA NO. 101505 OF 2016
BETWEEN:
M/S. ORIENTAL INSURANCE COMPANY LIMITED,
BY ITS DIVISIONAL MANAGER MAIN ROAD HOSPET,
REPRESENTED BY ITS DEPUTY MANAGER,
ORIENTAL INSURANCE COMPANY LIMITED,
REGIONAL OFFICE SUMNGALA COMPEX,
LAMINGTON ROAD HUBBLLI.
SAMREEN ...APPELLANT
AYUB
DESHNUR (BY SRI G.N. RAICHUR, ADVOCATE)
Digitally signed
by SAMREEN
AND:
AYUB
DESHNUR
Date: 2023.10.16 1. SMT. MUMATAZ BEGUM @ MUMATAZ
11:21:52 +0530
W/O. LATE GULAM RASOOL @
GULAM RASOOL SHAIK,
AGED 51 YEARS OCC: HOUSE WIFE,
MOTHER OF THE DECEASED
SHAIK MOHAMMED PASHA @
MOHAMMED PASHA,
R/O: NEAR MAIBU SUBHANI DARGA,
HANUMAN NAGAR, GULBERGA,
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PRESENTLY RESIDING AT
NARASAPURA VILLEGE,
SANDUR TALUK, BALLARI DIST.
2. KUM. AYESHA BEGUM D/O. LATE GULAM RASOL
@ GULAM RASOOL SHAIK,
AGED 26 YEARS, UNMARRIED SISTER
OF THE DECEASED SHAIKH MOHAMMED PASHA @
MOHAMMED PASHA,
R/O: NEAR MAIBU SUBHANI DARGA,
HANUMAN NAGAR, GULBARGA
PRESENTLY RESIDING AT NARASAPUR VILLEGE,
SANDUR TALUK, BALLARI DIST.
3. KUM. GOUSIA BEGUM D/O. LATE
GULAM RASOOL @ GULAM RASOOL SHAIK,
AGED 24 YEARS, UNMARRIED SISTER
OF THE DECEASED SHAIK MOHAMMED PASHA @
MOHAMMED PASHA,
R/O: NEAR MAIBU SUBHANI DARGA,
HANUMAN NAGAR, GULBERGA
PRESENTLY RESIDING AT: NARASAPUR VILLEGE,
SANDUR TALUK, BALLARI DIST.
4. ABUBAKAR S/O. LATE GULAM RASOOL,
@ GULAM RASOOL SHAIK, OCC: UNEMPLOYEE,
AGED 23 YEARS, BROTHER OF THE DECEASED,
SHAIK MOHAMMED PASHA @ MOHAMMED PASHA,
R/O: NEAR MAIBU SUBHANI DARGA,
HANUMAN NAGAR, GULBERGA,
PRESENTLY RESIDING AT NARASAPUR VILLEGE,
SANDUR TALUK BALLARI DIST.
5. AHMED PASHA S/O. LATE GULAM RASOOL
@ GULAM RASOOL SHAIK,
OCC: UNEMPLOYEE, AGED 23 YEARS,
BROTHER OF THE DECEASED,
SAIKH MOHAMMED PASHA @ MOHAMMED PASHA,
R/O: NEAR MAIBU SUBHANI DARGA,
HANUMAN NAGAR, GULBERGA,
PRESENTLY RESIDING AT: NARASAPUR VILLEGE,
SANDUR TALUK BALLARI DIST.
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6. MARIANO RODRIGUES
S/O. AUTHONIYO RODRIGUES,
AGED 32 YEARS, DRIVER OF SCORPIO VEHICLE,
BEARING REG: NO.GA-08/K-5390,
R/O: HOUSE NO. 779/D,
MUGALLI SAO JOSE DE AREAL,
SALCETE GOA MARGOA SOUTH GOA-403601.
7. SMT. MARTHA RODRIGUES
W/O. MARIANO RODRIGUES,
AGED 29 YEARS, OWNER OF SCORPIO VEHICLE,
BEARING REG NO. GA-08/K-5390,
R/O: HOUSE NO. 779/D,
MUGALLI SAO JOSE DE AREAL,
MARGOA SOUTH GOA-403601.
8. OMPRAKASH DHALE S/O. BAJIRAO,
AGED 30 YEARS, DRIVER OF LORRY
BEARING REG NO NL-02/L4408,
R/O: AP TELANGASHI, JMKHED TALUK,
AHMED NAGAR, DISTRICT MAHARASHTRA STATE.
9. SUNIL SINGH TANWAR
S/O. RAMPAL SINGH TANWAR,
AGED 42 YEARS, OWNER OF THE LORRY
BEARING REG NO. NL-02/L-4408,
R/O: AM ROAD, MOKAKCHUNG,
NAGALAND STATE-798601.
10. M/S. CHOLOMANDALAM MS GENERAL INSURANCE,
COMPANY LTD., BY ITS MANAGER, BALLARI.
11. ANAND KUMAR YADAV S/O. LALACHAND,
AGED 32 YEARS, DRIVER OF LORRY
BEARING REG NO. MH-12/FZ-7749,
R/O: A/P SAINATH NAGAR NIGDI,
HAVELI TALUK, PUNE DISTRICT,
MAHARASTRA STATE-411044.
12. RAJBAHADUR YADAV @ RAJ BAHADUR
LALCHAND YADAV S/O. LALCHAND YADAV,
AGED 34 YEARS, OWNER OF LORRY
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MFA No. 101505 OF 2016
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C/W MFA NO. 101507 OF 2016
BEARING REG NO. MH-12/FZ-7749,
R/O: ADARSH ROAD,
CARRIER SECTOR NO. 23 TRANSPORT NAGAR,
NIGADI, PUNE DISTRICT,
MAHARASTRA STATE-411044.
13. M/S. BHARTI AXA GENERAL
INSURANCE COMPANY LTD.,
NO 28 DODDANKUNDI BY ITS MANAGER,
1ST FLOOR, FEMS ICON SURVEY VILLAGE,
K.R. PURAM HOBLI, BANGALORE-37.
...RESPONDENTS
(BY SRI GURURAJ R. TURAMARI, ADVOCATE FOR R1 TO R5;
BY SRI RAVINDRA R. MANE, ADVOCATE FOR R10;
BY SRI S.K. KAYAKAMATH ADVOCATE FOR R13;
NOTICE SERVED TO R6 AND R7;
R8, R9, R11, R12 HELD SUFFICIENT)
THIS MISCELLANEOUS FIRST APPEAL FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO
CALL FOR THE RECORDS AND HEAR THE PARTIES AND SET
THE JUDGMENT AND AWARD DATED 11-11-2015 PASSED BY
THE COURT OF SR. CIVIL JUDGE CUM MEMBER VI-M.A.C.T
KUDLIGI IN MVC NO. 780/2014 BY ALLOWING THIS APPEAL
WITH COSTS.
IN MFA NO. 101506 OF 2016
M/S. ORIENTAL INSURANCE COMPANY LIMITED,
BY ITS DIVISIONAL MANAGER MAIN ROAD HOSPET,
REPRESENTED BY ITS DEPUTY MANAGER,
ORIENTAL INSURANCE COMPANY LIMITED,
REGIONAL OFFICE SUMNGALA COMPEX,
LAMINGTON ROAD
HUBBLLI.
...APPELLANT
(BY SRI G.N. RAICHUR, ADVOCATE)
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MFA No. 101505 OF 2016
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C/W MFA NO. 101507 OF 2016
AND:
1. SMT. VANAJAKSHI W/O. LATE J. NIRANJAN KUMAR,
AGED 32 YEARS, OCC: HOUSE WIFE,
R/O: BHUJANGA NAGAR, SANDUR TALUK,
BELLARI DISTRICT.
2. MINOR SANKETH J. S/O. LATE NIRANJAN KUMAR,
AGE: 10 YEARS, OCC: STUDENT,
R/O: BHUJANGA NAGAR, SANDUR TALUK,
BALLARI DISTRICT.
3. MINOR SHRUTI J. D/O. LATE NIRANJAN KUMAR,
AGE: 07 YEARS, OCC: STUDENT,
R/O: BHUJANGA NAGAR, SANDUR TALUK,
BELLARI DISTRICT.
4. SMT. BASAMMA @ VEER BASAMMA
W/O. LATE OMKAREPPA J.,
AGE: 57 YEARS, OCC: HOUSEHOLD,
R/O: BHUJANGA NAGAR, SANDUR TALUK,
BALLARI DISTRICT.
(MOTHER OF DECEASED J. NIRANJAN KUMAR)
(THE RESPONDENT NO. 2 AND 3 ARE MINORS
REPRESENTED BY THEIR MOTHER AND NATURAL
GUARDIAN SMT. J. VANAJAKSHI
W/O. LATE NIRANJAN KUMAR)
5. MARIANO RODRIGUES
S/O. AUTHONIYO RODRIGUES,
AGED 32 YEARS, DRIVER OF SCORPIO VEHICLE,
BEARING REG: NO.GA-08/K-5390,
R/O: HOUSE NO. 779/D,
MUGALLI SAO JOSE DE AREAL,
SALCETE GOA MARGOA SOUTH GOA-403601.
6. SMT. MARTHA RODRIGUES
W/O. MARIANO RODRIGUES,
AGED 29 YEARS,
OWNER OF SCORPIO VEHICLE,
BEARING REG NO. GA-08/K-5390,
R/O: HOUSE NO. 779/D,
MUGALLI SAO JOSE DE AREAL,
MARGOA SOUTH GOA-403601.
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MFA No. 101505 OF 2016
C/W MFA NO. 101506 OF 2016
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7. OMPRAKASH DHALE S/O. BAJIRAO,
AGED 30 YEARS, DRIVER OF LORRY
BEARING REG NO NL-02/L4408,
AP TELANGASHI, JMKHED TALUK,
AHMED NAGAR, DISTRICT MAHARASHTRA STATE.
8. SUNIL SINGH TANWAR
S/O. RAMPAL SINGH TANWAR,
AGED 42 YEARS, OWNER OF THE LORRY
BEARING REG NO. NL-02/L-4408,
R/O: AM ROAD, MOKAKCHUNG,
NAGALAND STATE-798601.
9. M/S. CHOLOMANDALAM MS GENERAL INSURANCE,
COMPANY LTD., BY ITS MANAGER, BALLARI.
10. ANAND KUMAR YADAV S/O. LALACHAND,
AGED 32 YEARS, DRIVER OF LORRY
BEARING REG NO. MH-12/FZ-7749,
R/O: A/P SAINATH NAGAR NIGDI,
HAVELI TALUK, PUNE DISTRICT,
MAHARASTRA STATE-411044.
11. RAJBAHADUR YADAV @ RAJ BAHADUR
LALCHAND YADAV S/O. LALCHAND YADAV,
AGED 34 YEARS, OWNER OF LORRY
BEARING REG NO. MH-12/FZ-7749,
R/O: ADARSH ROAD,
CARRIER SECTOR NO. 23 TRANSPORT NAGAR,
NIGADI, PUNE DISTRICT,
MAHARASTRA STATE-411044.
12 M/S. BHARTI AXA GENERAL
INSURANCE COMPANY LTD.,
NO 28 DODDANKUNDI BY ITS MANAGER,
1ST FLOOR, FEMS ICON SURVEY VILLAGE,
K.R. PURAM HOBLI, BANGALORE-37.
...RESPONDENTS
(BY SRI GURUAJ R. TURAMARI, ADVOCATE FOR R1 TO R4;
BY SRI RAVINDRA R. MANE, ADVOCATE FOR R9;
BY SRI S.K. KAYAKAMATH, ADVOCATE FOR R12;
NOTICE SERVED TO R5 AND R6;
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MFA No. 101505 OF 2016
C/W MFA NO. 101506 OF 2016
C/W MFA NO. 101507 OF 2016
R7, R8, R10, R11 HELD SUFFICIENT)
THIS MISCELLANEOUS FIRST APPEAL FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO
CALL FOR THE RECORDS AND HEAR THE PARTIES AND SET
ASIDE THE JUDGMENT AND AWARD DATED 11-11-2015
PASSED BY THE COURT OF SR. CIVIL JUDGE CUM MEMBER
VI-M.A.C.T KUDLIGI IN MVC NO. 779/2014 BY ALLOWING
THIS APPEAL WITH COSTS.
IN MFA NO. 101507 OF 2016
M/S. ORIENTAL INSURANCE COMPANY LIMITED,
BY ITS DIVISIONAL MANAGER MAIN ROAD HOSPET,
REPRESENTED BY ITS DEPUTY MANAGER,
ORIENTAL INSURANCE COMPANY LIMITED,
REGIONAL OFFICE SUMNGALA COMPEX,
LAMINGTON ROAD HUBBLLI.
...APPELLANT
(BY SRI G.N. RAICHUR, ADVOCATE)
AND:
1. MOHAMMED SAB DIDAMANI @ MOHAMMED SAB
@ MAHAMSHA KAHDIRSA DIDAMANI @ MAHAMMED,
S/O. KHADIRASA DIDAMANI,
AGED: 47 YEARS, OCC: DRIVER,
(FATHER OF THE DECEASED MURTHUJA @
MURTHUJASAB)
2. SMT. RAJAMA W/O. MOHAMMEDSAB DIDAMANI
@ MOHAMMED SAB @ MAHAMSHA
KAHDIRSA DIDAMANI,
AGED: 40 YEARS, OCC: HOUSEWIFE,
(MOTHER OF THE DECEASED-MURTHUJA @
MURTHUJASAB)
BOTH ARE RESIDENTS OF
NALATHAWADA VILLAGE,
MUDDEBIHAL TALUK PRESENTLY
RESIDING AT NARSAPURA VILLAGE,
SANDUR TALUK, BALLARI DISTRICT.
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3. MARIANO RODRIGUES
S/O. AUTHONIYO RODRIGUES,
AGED 32 YEARS, DRIVER OF SCORPIO VEHICLE,
BEARING REG: NO.GA-08/K-5390,
R/O: HOUSE NO. 779/D,
MUGALLI SAO JOSE DE AREAL,
SALCETE GOA MARGOA SOUTH GOA-403601.
4. SMT. MARTHA RODRIGUES
W/O. MARIANO RODRIGUES,
AGED 29 YEARS, OWNER OF SCORPIO VEHICLE,
BEARING REG NO. GA-08/K-5390,
R/O: HOUSE NO. 779/D,
MUGALLI SAO JOSE DE AREAL,
MARGOA SOUTH GOA-403601.
5. OMPRAKASH DHALE S/O. BAJIRAO,
AGED 30 YEARS, DRIVER OF LORRY
BEARING REG NO NL-02/L4408,
R/O: AP TELANGASHI, JMKHED TALUK,
AHMED NAGAR, DISTRICT MAHARASHTRA STATE.
6. SUNIL SINGH TANWAR
S/O. RAMPAL SINGH TANWAR,
AGED 42 YEARS, OWNER OF THE LORRY
BEARING REG NO. NL-02/L-4408,
R/O: AM ROAD, MOKAKCHUNG,
NAGALAND STATE-798601.
7. M/S. CHOLOMANDALAM MS GENERAL INSURANCE,
COMPANY LTD., BY ITS MANAGER, BALLARI.
8. ANAND KUMAR YADAV S/O. LALACHAND,
AGED 32 YEARS, DRIVER OF LORRY
BEARING REG NO. MH-12/FZ-7749,
R/O: A/P SAINATH NAGAR NIGDI,
HAVELI TALUK,
PUNE DISTRICT,
MAHARASTRA STATE-411044.
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9. RAJBAHADUR YADAV @ RAJ BAHADUR
LALCHAND YADAV S/O. LALCHAND YADAV,
AGED 34 YEARS,
OWNER OF LORRY
BEARING REG NO. MH-12/FZ-7749,
R/O: ADARSH ROAD,
CARRIER SECTOR NO. 23
TRANSPORT NAGAR,
NIGADI, PUNE DISTRICT,
MAHARASTRA STATE-411044.
10. M/S. BHARTI AXA GENERAL
INSURANCE COMPANY LTD.,
NO 28 DODDANKUNDI BY ITS MANAGER,
1ST FLOOR, FEMS ICON SURVEY VILLAGE,
K.R. PURAM HOBLI,
BANGALORE-37.
...RESPONDENTS
(BY SRI GURURAJ R. TURAMARI, ADVOCATE FOR R1 AND R2;
BY SRI RAVINDRA R. MANE, ADVOCATE FOR R7;
BY SRI S.K. KAYAKAMATH, ADVOCATE FOR R10;
NOTICE SERVED TO R3 AND R4;
R5, R6, R8, R9 HELD SUFFICIENT)
THIS MISCELLANEOUS FIRST APPEAL FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO
CALL FOR THE RECORDS AND HEAR THE PARTIES AND SET
ASIDE THE JUDGMENT AND AWARD DATED 11-11-2015
PASSED BY THE COURT OF SR. CIVIL JUDGE CUM MEMBER
VI-M.A.C.T KUDLIGI IN MVC NO. 781/2014 BY ALLOWING
THIS APPEAL.
IN THESE APPEALS ARGUMENTS HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 12.09.2023, COMING ON
FOR "PRONOUNCEMENT OF ORDERS", THIS DAY,
BASAVARAJA J., DELIVERED THE FOLLOWING:
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JUDGMENT
All these appeals are arising out of common judgment dated 11th November, 2015 passed in Motor Vehicle Cases No.779 to 781 of 2014 on the file of Senior Civil Judge-cum- Member VI-Motor Accident Claims Tribunal, Kudligi (for short, hereinafter referred to as "the Tribunal").
2. For the sake of convenience, the parties in these appeals are referred to with their rank and status before the Tribunal.
3. The brief facts of the case are that the respondent No.1 in all the petitions, was the driver of Scorpio vehicle bearing registration No.GA-08/K-5390 on the date of accident, the respondent No.2 is the owner of the said vehicle and the same has been insured with the respondent No.3- Insurance Company. Respondent No.4 was the driver of the lorry bearing registration No.NL-02/L-4408; respondent No.5 is the owner and respondent No.6 is the insurer of the said lorry. Respondent No.7 was the driver of lorry bearing registration No.MH-12/FZ-7749; respondent No.8 is the owner and respondent No.9 is the insurer of the said lorry and as on the date of the accident, the policy of the above said vehicles
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MFA No. 101505 OF 2016 C/W MFA NO. 101506 OF 2016 C/W MFA NO. 101507 OF 2016 were in force. Hence all the respondents are jointly and severally liable to pay the compensation.
4. It is further alleged that on 01st May, 2014, the deceased, along with their staff, viz. Shantha Kumar complainant and respondent No.1 Sharana Basava went to Koravar in Scorpio vehicle bearing registration No.GA-08/K- 5390 to attend a marriage and after completion of marriage they were returning back. At about 5.30 pm, when the vehicle was proceeding from Alamatti towards Hungund, the driver of the said vehicle drove the same in a rash and negligent manner and dashed against the lorry bearing Registration No.NL-02/L-4408 to its right portion and then dashed against the stationery lorry bearing registration No.MH-12/FZ-7749. Due to the above accident, the while all inmates sustained severe injuries, three of them, namely, J.Niranjan Kumar, Mohammed Pasha and Murthuja, succumbed to the injuries on the spot. Post-mortem was conducted in the District Hospital, Bagalkot. Further it is submitted as to loss of dependency, loss of consortium, expenses incurred towards last rites and transportation of
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MFA No. 101505 OF 2016 C/W MFA NO. 101506 OF 2016 C/W MFA NO. 101507 OF 2016 dead bodies, etc. and on all these grounds sought for compensation.
5. In pursuance of the notice, respondents 1 to 7 and 9 appeared before the Tribunal through their counsel. Respondent No.8 was placed ex-parte. Respondent No.2 filed written statement in all the petitions. Respondent No.1 adopted the written statement filed by the respondent No.2 by filing a memo. Respondents 3, 6 and 9 have filed separate written statements to all the petitions.
6. Respondent No.2, the owner of Scorpio vehicle, totally denied the averments of the claim petition and further submitted that as on the date of the alleged accident, respondent No.2 got insured the vehicle with respondent No.3 and the driver of the vehicle was having valid and effective driving licence and absolutely there is no negligent act attributed on the part of this respondent and hence, respondent No.2 is not liable to pay the compensation. In case, if the Tribunal comes to conclusion that the petitioners are entitled for any compensation, then the liability may be shifted on respondent No.3-Insurer. Further it is denied as to
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MFA No. 101505 OF 2016 C/W MFA NO. 101506 OF 2016 C/W MFA NO. 101507 OF 2016 the age, accident, occupation, and earning of the deceased. On all these grounds sought to dismiss the claim petitions.
7. Respondent No.3-Insurance Company totally denied the petition averments. It is stated that the Scorpio vehicle was insured with the Insurance Company and the same is subject to terms and conditions enumerated therein and in conformity with the provisions of Motor Vehicles Act, 1988. Further, it is contended that the driver of the Scorpio vehicle was not having valid and effective driving licence, as on the date of the accident. Further, it is contended that the truck bearing registration No.NL-02/L-4408 coming from the opposite side had contributed to the cause of the accident, and hence contributory negligence has to be saddled on the said truck also. Further, denying all other averments made in the claim petitions, sought for dismissal.
8. The substance of the written statement of the respondent No.6-Insurance Company in all the cases is that in the alleged accident, the respondent No.1-driver of the Scorpio vehicle alone was charge sheeted under Sections and 279, 337, 338 and 304A of the Indian Penal Code and as
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MFA No. 101505 OF 2016 C/W MFA NO. 101506 OF 2016 C/W MFA NO. 101507 OF 2016 such, respondent No.6 was not at all negligent in the alleged accident. Further, as on the date of accident, there was no contract of insurance between the owners of the alleged vehicles with the insurance company and the policy stands void ab initio. Hence, respondent No.6-Insurance Company is not liable to indemnify the owner of the alleged vehicle. It is further contended that the driver of the lorry bearing No.NL- 02/L-4408 had no valid and effective driving licence to drive the said vehicle and the respondent No.5 has entrusted his vehicle to the respondent No.4 knowing fully well that the driver was not at all holding valid driving licence to drive said class of vehicle and thereby has willfully violated the terms of policy, more particularly, the driver's clause. Further denying other averments made in the claim petitions, sought for its dismissal.
9. The contentions of Respondent No.9-Insurance Company is that the First Information Report and the charge sheet has been registered against the driver of the Scorpio vehicle in Crime No.124 of 2014 and no case has been registered against respondent No.7 and further, the
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MFA No. 101505 OF 2016 C/W MFA NO. 101506 OF 2016 C/W MFA NO. 101507 OF 2016 petitioners have not pleaded any relief against this respondent and hence, the said respondent is only a proforma party and is not liable to pay the compensation. It is further contended as to non-joinder of necessary parties. It is also contended that the lorry bearing registration No.MH-12/FZ- 7749 has been insured with this respondent and the policy was valid from 26th July, 2013 to 25th July, 2014 and the said policy is subject to terms and conditions enumerated therein. It is also contended about the respondent No.7 not holding valid and effective as on the date of the accident and thereby willfully violated the terms and conditions of the policy. Further denying all other averments made in the claim petition, sought for dismissal of the claim petitions.
10. Based on the rival pleadings, the Tribunal framed the following issues for its consideration:
1. ¢£ÁAPÀ: 1-5-2014 gÀAzÀÄ ¥ÉÆÃwzÁgÀgÀÄ ºÁUÀÆ EvÀgÀgÀÄ ¸ÁÌgÀ¦AiÉÆà ªÁºÀ£À fJ 08 PÉ 5390 gÀ°è ªÀÄzÀÄªÉ PÁAiÀÄðPÀæªÀÄPÉÌ ºÉÆÃV ªÁ¥Á¸ÀÄì §gÀ¨ÉÃPÁzÀgÉ 1 £Éà JzÀÄgÀÄzÁgÀ vÀ£Àß /Áj £ÀA.
J£ïJ/ï 02 J/ï 6608 £ÉÃzÀÝ£ÀÄß CwêÉÃUÀ ªÀÄvÀÄÛ ¤®ðPÀëöåvÀ£À¢AzÀ ZÀ/Á¬Ä¹ ¥ÉÆÃwzÁgÀgÀ PÁjUÉ rQÌ ªÀiÁr C£ÀAvÀgÀ ¸ÉÖµÀ£Àj /Áj JAºÉZï 12 J¥sïdqï 7749 PÉÌ rQÌ
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MFA No. 101505 OF 2016 C/W MFA NO. 101506 OF 2016 C/W MFA NO. 101507 OF 2016 ªÀiÁrzÀÝjAzÀ ¥ÉÆÃwzÁgÀjUÉ UÀA©üÃgÀ UÁAiÀÄUÀ¼ÁV ªÀÄÈvÀ¥ÀlÖ §UÉÎ CfðzÁgÀgÀÄ ¹zÀݪÀiÁqÀÄvÁÛgÉAiÉÄÃ?
2. 1 £Éà JzÀÄgÀÄzÁgÀ¤UÉ ZÁ®PÀ¤UÉ ¸ÀjAiÀiÁzÀ ZÁ®£Á ¥ÀvÀæ E®è ªÀÄvÀÄÛ µÀgï«Ämï E®è J£ÀÄߪÀÅzÀ£ÀÄß 3£Éà JzÀÄgÀÄzÁgÀgÀÄ ¹zÀݪÀiÁqÀÄvÁÛgÉAiÉÄÃ?
3. CfðzÁgÀgÀÄ ¥ÀjºÁgÀzÀ ºÀt ¥ÀqÉAiÀÄ®Ä CºÀðjzÁÝgÉAiÉÄà ? ºÁUÁzÀgÉ AiÀiÁjªÀÄzÀ JµÀÄÖ ¥ÀæªÀiÁtzÀ°è?
4. AiÀiÁªÀ DzÉñÀ CxÀªÁ CªÁqïð?
Additional Issue:
Whether the respondent No.6 proves that on the date of accident, policy was not in force? Hence, R-6 is not liable to pay compensation?"
11. In order to prove the case of petitioners, petitioners, in all, examined four witnesses as PW1 to PW4 and marked documents as Exhibits P1 to P79. On behalf of respondents two witnesses were examined as RW1 and RW2 and marked documents as Exhibits R1 to R9.
12. Upon hearing the learned counsel for the parties, the Tribunal answered the issues as under:
Issue No.1: partly in the affirmative;
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MFA No. 101505 OF 2016 C/W MFA NO. 101506 OF 2016 C/W MFA NO. 101507 OF 2016 Issue No.2: in the negative;
Issue No.3: Partly in the affirmative; Addl. Issue: in the affirmative;
Issue No.4: as per final order
13. In view of the above findings, the Tribunal allowed the claim petitions in part and awarded compensation of Rs.52,39,000/- in MVC No.779 of 2014; Rs.22,24,000/- in MFC No.780 of 2014; and Rs.20,21,000/- in MVC No.781 of 2014 with interest at the rate of 6 per centum per annum from the date of petition till the date of realisation. The Tribunal has also held that respondents 1 to 3 are jointly and severally liable to pay the compensation with interest to the claim petitioners. Being aggrieved by the impugned judgment and award respondent No.3-Oriental Insurance Company has preferred these appeals questioning its liability and also quantum of compensation.
14. Sri G.N. Raichur, learned counsel appearing for the appellant-Insurance Company submits that the Tribunal has erred in fastening negligence solely on Scorpio vehicle. He submits that apart from this vehicle, two other trucks viz. the truck bearing registration No.NL-02/L-4408 and the stationery
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MFA No. 101505 OF 2016 C/W MFA NO. 101506 OF 2016 C/W MFA NO. 101507 OF 2016 lorry bearing Registration No.MH-12/FZ-7749 were also involved in the accident. Looking to the width of the road and the collision which had happened only to the right side, the parked lorry bearing Registration No.MH-12/FZ-7749 is also responsible for the cause of accident. Similarly, the lorry bearing No.NL-02/L-4408 was also parked on the road without following the rules for parking vehicle on the National Highway. Hence, he submits that though all the three vehicles have equally contributed for the cause of the accident, the Tribunal has wrongly come to the conclusion saddling the liability on the Scorpio vehicle. It is further submitted that the Tribunal has committed an error in not properly appreciating the contention that the Scorpio vehicle is a private vehicle, but hired by the Company where the deceased were employed. Therefore, he submitted that using the vehicle for hire and reward is prohibited under policy conditions and hence, the Tribunal has committed error in saddling liability on the appellant. He further submitted that the Tribunal has committed an error in adding the future prospects at 50% and also committed an error in not deducting profession Tax and on all these grounds sought for
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MFA No. 101505 OF 2016 C/W MFA NO. 101506 OF 2016 C/W MFA NO. 101507 OF 2016 allowing the appeals. In support of his submissions, Sri G.N. Raichur, relied on the judgments of this Court in the case of RENUKA AND OTHERS v. THE COMMANDANT, INDIA RESERVE BATTALION AND OTHERS rendered in MFA No.102501 of 2015 and connected appeal decided on 28th June, 2019; and in the case of KUM. JYOTHI AND ANOTHER v. MOHD. USMAN ALI AND OTHERS rendered in MFA No.1012 and 1013 of 2000 decided on 27th September, 2001.
15. On the other hand, learned counsel appearing for the claimants supported the judgment and award passed by the Tribunal and submitted that the same does not call for interference in these appeals.
16. Having heard the arguments advanced by the learned counsel for the parties, the following points would arise for our consideration in these appeals:
1. Whether the appellant has made out a ground to interfere with impugned judgment and award as to the liability of the Insurance Company?
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MFA No. 101505 OF 2016 C/W MFA NO. 101506 OF 2016 C/W MFA NO. 101507 OF 2016
2. Whether the appellant has made out a ground to interfere with the judgment and award as to the quantum of compensation?
3. What order or award?
17. Our answer for the above points are as under: Point No.1: in the negative;
Point No.2: partly in the affirmative; Point No.3: as per final order.
18. We have carefully examined the material before this Court. On the basis of complaint-Exhibit P2 filed by one Sharana Basava, Bagalkot Rural Police have registered a case in Crime No.124 of 2014 against the driver of Scorpio vehicle for commission of offence punishable under Sections 279, 337, 338 and 304A of the Indian Penal Code and submitted FIR-Exhibit P1 to the Court. Thereafter, Police have visited the spot and conducted spot panchnama as per Exhibit P3 and prepared rough sketch in the presence of panchas as per Exhibit P4 and have also conducted inquest panchanama of the deceased and obtained post-mortem reports. Vehicles
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MFA No. 101505 OF 2016 C/W MFA NO. 101506 OF 2016 C/W MFA NO. 101507 OF 2016 involved in the accident were also examined by the Motor Vehicle Inspector. Investigating Officer has obtained report by the concerned Motor Vehicle Inspector and recorded the statement of witnesses and submitted charge sheet against the driver of the Scorpio vehicle. Apart from the documentary evidence, petitioners have adduced their evidence as PWs1 to
4. PW1-Smt. J. Vanjakshi, petitioner in MVC No.779 of 2014; PW2-Abubakar petitioner in MVC No.780 of 2014; and PW3- Mohammed Sab Didamani @ Mohammed Sab petitioner in MVC No.781 of 2014 and PW4-Ashok Hunasagi employed in KBN Enterprises, have clearly deposed in their evidence that the accident occurred due to rash and negligent driving on the part of the driver of the Scorpio vehicle. During their cross- examination, the Insurance Company has not denied the charge sheet submitted by the Investigating Officer against the driver of the said Scorpio vehicle.
19. RW1-G.Suresh, Assistant Manager (Legal) working in the respondent No.6-Cholamandalam General Insurance Company has deposed in his evidence that the said respondent is not at all liable to pay the compensation. RW2-
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MFA No. 101505 OF 2016 C/W MFA NO. 101506 OF 2016 C/W MFA NO. 101507 OF 2016 Shambhu Kumar (Legal) Claims, working in respondent No.9- Bharti AXA General Insurance Company has deposed in his evidence that it is only proforma party and is not liable to pay any compensation. Respondent No.3-Oriental Insurance Company Limited has not examined any witnesses to discard the evidence placed by the petitioners.
20. It is also relevant to mention here to the document Exhibit P9-Police Notice, issued by the Circle Inspector of Police, Bagalkot Rural Police to the dependents of the deceased and also injured Sharana Basava in Form No.54 under Rule 150(A)(2) Motor Vehicle Rules, 1989 in which the Circle Inspector of Police has clearly stated as to the Crime number, date and time of accident, name and address of the deceased and injured, the name of the hospital where they have been taken for treatment, the registration number of vehicles involved in the accident and the name of the driver, so also, particulars as to the driving licence, etc. This notice is also sent to 1) Claims Tribunal; 2) Insurance Company; and
3) insured. In view of Rule 232-A of the Karnataka Motor Vehicle Rules, 1989, the contents of reports submitted to the
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MFA No. 101505 OF 2016 C/W MFA NO. 101506 OF 2016 C/W MFA NO. 101507 OF 2016 Claims Tribunal, Form 63-B and confirmation under clause (b) of Rule 232 of Rules by the Insurance Company, shall be presumed to be correct and shall be read in evidence, till proved to the contrary.
21. Appellant-Insurance Company has not placed any material before the Tribunal to discard the averments made in Form No.54, which is marked as Exhibit P9, which is issued under Rule 150-A of Central Motor Vehicle Rules, 1989. Accordingly, appellant has failed to rebut the statutory presumption under Rule 232-A of the Karnataka Motor Vehicles Rules.
22. On re-appreciation/Re-examination and re- consideration of the material on record, we do not find any legal infirmity/illegality in the impugned judgment and award as to liability of appellant-Insurance Company. Hence, we answer the point No.1 in the negative.
23. As regards quantum of the compensation is concerned, though the petitioners have not filed any cross- objections, but by invoking power under Order XLI Rule 33 of the Code of Civil Procedure, it is appropriate to award just
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MFA No. 101505 OF 2016 C/W MFA NO. 101506 OF 2016 C/W MFA NO. 101507 OF 2016 compensation. It is not in dispute that PW4-Ashok Hunasagi, has deposed that all the deceased were employed in KBN enterprises and were on the rolls of the company.
24. In MFA No.101505 of 2016 which pertains to MVC No.779 of 2014, the PW1 has filed affidavit reiterating the petition averments. She has also deposed that the deceased was aged 32 years at the time of accident. The deceased was earning Rs.31,000/- per month by working as a Mining Foreman in KBN Enterprises, and was contributing the earning to the family. Due to the untimely death of the deceased, the family has put to financial hardship and lost the love and affection. It is also deposed that had the deceased survived, he would have reached good position in his job. She has further deposed that Petitioners 2 and 3 are the minor children and Petitioner No.4 is the aged mother of the deceased, who were completely dependent upon the income of the deceased and accordingly sought for compensation. The Tribunal considered the age of the deceased as 44 years as per Exhibit P11. The Tribunal has assessed the income of the deceased at Rs.30,000/- per month. Petitioner has
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MFA No. 101505 OF 2016 C/W MFA NO. 101506 OF 2016 C/W MFA NO. 101507 OF 2016 produced Exhibit P65 authorisation letter issued by KBN Enterprises to Sri Ashok Hunasagi, who is examined before the Court as PW4. Exhibit P66 is the gate pass for contract labourers issued by NMDC, Donimalai Complex. Exhibit P67 is the B Form-Register of Employees, which is pertaining to deceased J.Niranjan Kumar, which reveals that he was working in NMDC Limited. The date of birth of the deceased is 01st June, 1972 and hence he was aged 42 years 11 months as on the date of the accident. Exhibit P68 is Form No.5- Mustor Roll issued by NMDC which pertains to deceased. Exhibit P71 is the contribution towards Employees Provident Fund. Exhibit P37 is the salary certificate issued by KBN enterprises which shows the gross salary of the deceased was Rs.30,000/- per month and net salary was Rs.29,006/-. The Tribunal has not deducted the Profession Tax at Rs.200/- per month; if that is deducted the monthly income of the deceased would be Rs.29,800/-. Exhibit P38 salary for the months of June, 2013 to March, 2014 reveals that Rs.541/- was deducted towards Income-tax. Accordingly, the monthly income comes to Rs.29,259/-. Since the deceased was not in a permanent job, as per the decision of the Hon'ble Supreme
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MFA No. 101505 OF 2016 C/W MFA NO. 101506 OF 2016 C/W MFA NO. 101507 OF 2016 Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI reported in 2017 ACJ 2700, 25% is to be added to the income towards future prospects. If that is added, the income comes to Rs.36,574/-. After giving deduction of one-fourth towards personal expenses of the deceased, the monthly income would be Rs.27,431/-. As the deceased was aged 42 years, the appropriate multiplier is 14, which is rightly adopted by the Tribunal. Accordingly, the loss of dependency would be Rs.46,08,408/- (Rs.27,431/- x 12 x
14). The Tribunal has awarded compensation of Rs.1,00,000/- towards loss of estate; Rs.1,00,000/- towards affection to the petitioners; Rs.1,00,000/- towards pain and suffering and mental shock to the petitioners; Rs.1,00,000/- towards loss of consortium; Rs.1,00,000/- towards care and guidance of minor petitioners 2 and 3; and Rs.50,000/- towards funeral expenses and obsequies expenses. The same is not in consonance of the judgment of the Hon'ble Supreme Court. Keeping in mind the judgments of Hon'ble Supreme Court in the case of PRANAY SETHI (supra); and in the case of MAGMA GENEAL INSURANCE COMPANY LIMITED v. NANU
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MFA No. 101505 OF 2016 C/W MFA NO. 101506 OF 2016 C/W MFA NO. 101507 OF 2016 RAM ALIAS CHUHRU RAM AND OTHERS reported in (2018)18 SCC 130, we award the following compensation:
Sl.No. Head Amount (in Rs.)
1. Loss of dependency 46,08,408
2. Loss of consortium (Rs.40,000 x 1,60,000
4)
3. Towards transportation of dead 15,000
body and funeral expenses
4. Towards loss of estate 15,000
Total 47,98,408
25. With regard to quantum of compensation in MFA No.101506 of 2016 pertaining to MVC No.780 of 2014, PW2- Abubakar has filed affidavit reiterating the averments made in the petition and it is also stated that due to accident the deceased suffered head injury and died on the spot. It is stated that at the time of accident, the deceased was hale and healthy and was unmarried. He was working as a Mechanic in KBN Enterprises and was earning a monthly salary of Rs.15,000/-. Due to tragic death of the deceased, the family is suffering mental shock and has also put to financial crisis and accordingly sought for compensation. The petitioners have produced Exhibit P42 post-mortem report, which reveals that the deceased was aged 28 years as on the date of
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MFA No. 101505 OF 2016 C/W MFA NO. 101506 OF 2016 C/W MFA NO. 101507 OF 2016 accident. PW4 authorised officer of the Company has deposed as to his employment in the KBN enterprises. Exhibit P54 is the salary certificate which shows that the deceased was paid Rs.14,032/- per month. As the monthly salary is less than Rs.15,000/-, deduction of profession tax does not arise. As per the decision of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI reported in 2017 ACJ 2700, considering the age of the deceased, 40% of the income is to be added towards future prospects, then the income comes to Rs.19,644.80 rounded off to Rs.19,645/-. As the deceased was a bachelor, 50% is the deducted towards personal expenses of the deceased. If that is done, the monthly income of the deceased would come to Rs.9,822/-. As the deceased was 28 years at the time of death, the appropriate multiplier would be 17 and the Tribunal has rightly adopted the multiplier. Accordingly, the loss of dependency would be Rs.20,03,688/- (Rs.9,822/- x 12 x 17). The Tribunal has awarded Rs.1,00,000/- towards loss of estate; Rs.1,00,000/- towards love and affection to the petitioners; Rs.1,00,000/- towards pain and suffering and mental shock to the petitioners; and Rs.50,000/- towards
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MFA No. 101505 OF 2016 C/W MFA NO. 101506 OF 2016 C/W MFA NO. 101507 OF 2016 funeral expenses, etc. which are not in consonance with the judgment of the Hon'ble Supreme Court. Considering the judgment of the Hon'ble Supreme Court, we award the compensation as follows:
Sl.No. Head Amount (in Rs.)
1. Loss of dependency 20,03,688
2. Loss of consortium (Rs.40,000 x 2,00,000
5)
3. Towards transportation of dead 15,000
body and funeral expenses
4. Towards loss of estate 15,000
Total 22,33,688
26. In MFA No.101507 of 2016 MVC No.781 of 2014, the Tribunal has awarded compensation of Rs.21,86,000/-. To substantiate the case of the petitioner, PW3-Mohammed Sab Didamani @ Mohammed Sab was examined before the Tribunal. He has reiterated the averments made in the claim petition that his son suffered head injury and died on the spot. The deceased was hale and healthy and was aged 24 years as on the date of accident and was unmarried. The deceased was working as Auto Electrician in KBN Enterprises which is supported by the evidence of PW4-Authorised Officer of the Company. As per the evidence, the deceased was
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MFA No. 101505 OF 2016 C/W MFA NO. 101506 OF 2016 C/W MFA NO. 101507 OF 2016 earning Rs.12,000/- per month and was contributing the same to the family, i.e. himself and his wife. Exhibit P67 is the Register of employees pertaining to the deceased reveal the death of birth of the deceased is 14th February, 1991 accordingly, the age of deceased as on the date of accident was 23 years. Exhibit P4 is the salary certificate which is substantiated by the evidence of PW4. The Tribunal has taken the income of the deceased at Rs.12,000/- per month. As the income is within the threshold limit, there cannot be any deduction towards the profession tax. As per the decision of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI reported in 2017 ACJ 2700, 40% of the income is to be added towards future prospects; accordingly, the monthly income of the deceased comes to Rs.16,800/-. Since the deceased was a bachelor 50% is to be deducted towards his personal income and hence the income would be Rs.8,400/-. As per the age of the deceased the appropriate multiplier would be 18 and the Tribunal has wrongly taken it at 17. Hence, the compensation towards loss of dependency would be Rs.18,14,400/- (Rs.8,400/- x 12 x 18). In this case also, the Tribunal has
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MFA No. 101505 OF 2016 C/W MFA NO. 101506 OF 2016 C/W MFA NO. 101507 OF 2016 awarded Rs.1,00,000/- each towards loss of estate, towards love and affection to petitioners; towards pain and suffering and mental shock to petitioners and Rs.50,000/- towards funeral expenses, contrary to the judgment of the Hon'ble Supreme Court. Following the judgment of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI reported in 2017 ACJ 2700 and MAGMA GENEAL INSURANCE COMPANY LIMITED v. NANU RAM ALIAS CHUHRU RAM AND OTHERS reported in (2018)18 SCC 130, we intend to award the following compensation:
Sl.No. Head Amount (in Rs.)
1. Loss of dependency 18,14,400
2. Loss of consortium (Rs.40,000 x 80,000
2)
3. Towards transportation of dead 15,000
body and funeral expenses
4. Towards loss of estate 15,000
Total 19,24,400
In the result, we proceed to pass the following:
ORDER
1. Appeals are partly allowed;
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MFA No. 101505 OF 2016 C/W MFA NO. 101506 OF 2016 C/W MFA NO. 101507 OF 2016
2. The impugned judgment and award dated 11th November, 2015 passed by the Court of Senior Civil judge-cum-Member VI-Motor Accident Claims Tribunal, Kudligi in MVC No.799, 789 and 781 of 2014 is modified by awarding the compensation as follows:
MVC No.799 of 2014 Rs.47,98,408/-
as against Rs.52,39,000/-
MVC No.780 of 2014 Rs.22,33,688/-
as against Rs.22,24,000/-
MVC No.781 of 2014 Rs.19,24,400/-
As against Rs.20,21,000/-
3. The compensation amount shall carry interest at the rate of 6% per annum from the date of petition till realisation;
4. The deposit and apportionment of the compensation amount shall be as per the order of the Tribunal;
5. Respondent to deposit the compensation amount before the Tribunal within 60 days from the date of receipt of certified copy of this judgment;
6. Amount if any in deposit, and the trial Court Records, shall be transmitted to the Tribunal forthwith for disbursal to the claimants.
7. Registry to draw award accordingly.
Sd/-
JUDGE Sd/-
JUDGE LNN LIST NO.: 1 SL NO.: 38