Karnataka High Court
National Insurance Co. Ltd., vs Ningamma W/O Ningaiah on 21 October, 2020
Equivalent citations: AIRONLINE 2020 KAR 2320, 2021 (1) AKR 434
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
M.F.A.NO.22181/2013 (MV)
C/W
M.F.A.NO.24823/2013(MV)
IN M.F.A. NO.22181/2013 (MV)
BETWEEN :
NATIONAL INSURANCE CO. LTD.,
BY ITS BRANCH MANAGER, BELLARY
HEREIN RESPRESENTED BY:
NATIONAL INSURANCE CO. LTD.,
REGIONAL OFFICE, 2ND FLOOR,
ARIHANT PLAZA, KUSUGAL ROAD,
KESHWAPUR, HUBLI - 580 023
REPRESENTED BY ITS DEPUTY MANAGER.
... APPELLANT
(BY SRI R.R.MANE, ADVOCATE)
AND:
1. SMT.NINGAMMA
W/O NINGAIAH,
AGE: 45 YEARS,
OCC.: COOLIE.
2
2. CHANNAPPA
S/O NINGAIAH,
AGE: 19 YEARS, OCC.: STUDENT.
3. KRISHNAMURTHY
S/O NINGAIAH,
AGE: 18 YEARS, OCC.: STUDENT.
4. RAMAMURTHY
S/O NINGAIAH,
AGE: 17 YEARS, OCC.: STUDENT.
5. NIRMALA
D/O NINGAIAH,
AGE: 15 YEARS, OCC.: STUDENT.
(RESPONDENT NOS.4 AND 5 BEING
MINORS, THEY ARE RESPRESENTED
BY THEIR NATURAL GUARDIAN
MOTHER RESPONDENT NO.1)
(ALL ARE RESIDENTS OF SANKLAPURA VILLAGE,
TQ.: KUDLIGI, DIST.:BELLARY)
6. G.RAVIKUMAR
S/O GOVINDA NAIK,
AGE: 30 YEARS, OCC.:DRIVER,
R/O.: BARMASAGARA VILLAGE,
LAMBANIHATTI, TQ.: CHALLAKERE,
DIST.: CHITRADURGA.
7. J.R.RAVIKUMAR
S/O T.M.RAJASEKHARAPPA,
AGE: 38 YEARS, OCC.:R.C.HOLDER OF BUS
BEARING NO.KA - 16/A - 2718,
R/O : NAYAKANAHATTI VILLAGE,
TQ.: CHALLAKERE, DIST.: CHITRADURGA.
... RESPONDENTS
3
(BY SRI Y.LAKSHMIKANT REDDY, ADVOCATE FOR R.1 TO R.3)
R.4 AND R.5 ARE MINORS R.BY R1.;
SRI.PRASHANT KADADEVAR, ADVOCATE FOR R6 &
R7)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLE ACT, 1988 AGAINST THE JUDGMENT AND
AWARD DATED 30.01.2013 PASSED IN MVC.NO.1153/2009 ON
THE FILE OF THE III MOTOR ACCIDENT CLAIMS TRIBUNAL AT
BELLARY, AWARDING THE COMPENSATION OF RS.5,89,000/-
WITH INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF
PETITION TILL ITS REALISATION.
IN M.F.A. NO.24823/2013(MV)
BETWEEN :
1. SMT.NINGAMMA
W/O NINGAIAH,
AGE: 46 YEARS.
2. CHANNAPPA
S/O NINGAIAH,
AGED ABOUT 20 YEARS.
3. KRISHNAMURTHY
S/O NINGAIAH,
AGED ABOUT 19 YEARS,
STUDENT.
4. RAMAMURTHY
S/O NINGAIAH,
AGED ABOUT 18 YEARS,
STUDENT.
5. NIRMALA
D/O NINGAIAH,
AGED ABOUT 16 YEARS,
STUDENT.
4
ALL ARE RESIDENTS OF
SANKLAPURA VILLAGE,
KUDLIGI TALUK,
BELLARY DISTRICT.
....APPELLANTS
(BY SRI Y.LAKSHMIKANTH REDDY, ADVOCATE )
AND:
1. J.R.RAVIKUMAR
S/O T.M.RAJASEKHARAPPA,
AGED ABOUT 39 YEARS,
OWNER OF R.C.HOLDER OF BUS
BEARING NO.KA - 16/A - 2718,
NAYAKANAHATTI VILLAGE,
CHALLAKERE TALUK.
2. BRANCH MANAGER
NATIONAL INSURANCE CO. LTD.,
BELLARY.
... RESPONDENTS
(BY SRI R.R.MANE, ADVOCATE FOR R.2
(THROUGH VIDEO CONFERENCE);
SRI PRASHANT S.KADADEVAR, ADVOCATE FOR R.1)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLE ACT, AGAINST THE JUDGMENT AND AWARD
DATED 30.01.2013 PASSED IN MVC.NO.1153/2009 ON THE
FILE OF THE III MOTOR ACCIDENT CLAIMS TRIBUNAL AT
BELLARY. PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSTION.
THESE M.F.As. HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 03.09.2020 COMING ON THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:-
5
JUDGMENT
M.F.A. No.22181/2013 is filed by the insurance company and M.F.A. No.24823/2013 is filed by the claimants, under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the said Act of 1988', for short) being aggrieved by the judgment and award dated 30.01.2013 passed by the Member, Motor Accident Claims Tribunal-III, Bellary, in M.V.C. No.1153/2009.
2. Parties will be referred to as per their ranking before the Claims Tribunal.
3. Facts giving rise to the filing of the appeals briefly stated are that on 12.3.2009 at about 8.30 p.m., the deceased was returning to his village and on which point of time, a bus bearing regisrataion No.KA-16/A- 2718 dashed against the deceased, due to which the 6 deceased sustained multiple fractures and succumbed to the injuries.
4. The claimants, being the wife and children of the deceased, filed the claim petition before Tribunal contending that the deceased was earning more than Rs.10,000/- per month, he was aged about 44 years and was the sole bread winner of the family. The claimants contended that, due to the death of the deceased, they lost livelihood and accordingly, claimed compensation of Rs.9.00 lakhs along with interest.
5. On issuance of notice, respondent Nos.1 and 3 appeared and filed their respective written statements. Respondent No.2 remained absent and was placed ex- parte.
7
6. Respondent Nos.1 and 3, in their written statements, denied the case of the claimants in its entirety that the incident had occurred due to the accident caused by the driver of the bus. It was further contended by the insurance company that the deceased died due to the lightening occurred on that fatal night. The age, avocation and the monthly income of the decesaed were all denied by the said respondents.
7. On the basis of the pleadings of the parties, the Tribunal framed the issues and thereafter, recorded the evidence.
8. The first claimant-wife of the deceased, in order to prove the case, examined herself as P.W.1 and marked about 10 documents as Exs.P.1 to P.10. On the other hand, the insurance company examined four 8 witnesses as R.Ws.1 to 4 and marked about 11 documents as Exs.R.1 to R.11.
9. The Tribunal by the impugned judgment, inter alia held that the accident had occurred due to rash and negligent driving of the driver of the offending bus and further held that the claimants were entitled to compensation of Rs.5,89,000/- on account of the death of the deceased. The insurance company has preferred M.F.A. No.22181/2013 questioning the liability and also the quantum of compensation awarded by the Tribunal. M.F.A. No.24823/2013 is filed by the claimants seeking enhancement of the compensation awarded.
10. I have heard Sri Ravindra R Mane, learned Counsel appearing for Insurance Company, Sri Y Lakshmikant Reddy, learned counsel appearing for 9 claimants, Sri Prashant Kodadevar, learned counsel appearing for driver and owner of the offending bus.
11. Learned Counsel of the insurance company would contend that the cause of death of the deceased is due to lightening as there was no vehicle involved in the accident much less the offending vehicle which was implicated in the accident. He would further contend that the driver upon whom the complaint, FIR, charge sheet had been filed is now acquitted by the Criminal Court of the offences alleged against him. It is further contended that the driver, in his evidence, has stated that the body was found dead and even the investigator of the insurance company confirmed that the deceased died to lightening and there was no involvement of the offending vehicle. The learned Counsel would also contend that the investigator of the insurance company had reported that a complaint had been filed by the 10 owner of the offending bus to the jurisdictional Superintendent of Police with regard to non-involvement of the bus in the accident.
12. On the other hand, the learned Counsel for the claimants would contend that the death of the deceased had occurred only due to accident. He placed reliance upon post mortem report, wherein it is clearly opined that the deceased died due to impact of the road accident.
13. With regard to the quantum of compensation, the learned Counsel for the claimants would contend that the Tribunal had awarded compensation taking the income of the deceased at Rs.4,500/- per month and for an accident of the year 2010, the notional income is at Rs.5,000/- per month. Countering the contentions advanced by the learned Counsel for the insurance 11 company, the learned Counsel for the claimants would place reliance upon the judgment of the Apex Court in case of Sunita and others Vs. Rajasthan State Road Transport Corporation and another - 2019 ACJ 801.
14. I have given my anxious consideration to the contentions advanced by the learned Counsel for the parties and perused the material on record.
15. The cause of death is the core issue in the case on hand. Learned Counsel for the insurance company would, on the basis of the photographs, contend that there is no injury to the body that can be seen as the deceased died to the impact of the lightening and not due to involvement of the bus. But several documents, most importantly, FIR (Ex.P.1) registered against the driver of the offending vehicle and the complaint on 13.3.2009 also showing the 12 involvement of the vehicle, spot panchanama (Ex.P.2) showing that the offending vehicle had caused the accident and the post mortem report (Ex.P.7) and the final opinion of the doctor who conducted the post mortem opining the cause of death to be a road traffic accident, have pointed towards the driver of the offending vehicle. The operative portion of the post mortem report reads as follows:
"Death is due to vasovagal shock due to severe pain following fracture of femur which is due to RTA."
In terms of the opinion in the post mortem report, it is clear that the death is due to the impact of the accident. In terms of the FIR registered against the driver of the vehicle, the police have also filed charge sheet alleging that the driver was guilty of the offences punishable under Sections 279 and 304A of Indian Penal Code. Thus, all the circumstances put together, the 13 involvement of the vehicle in the accident, registration of FIR, report of the inspector of motor vehicle, post mortem report and the charge sheet filed by the police against the driver, would unmistakably indicate that the death of the deceased was due to the accident caused by the rash and negligent driving of the driver of the bus.
16. The insurance company filed its written arguments before the Tribunal wherein it was not contended that the report of the investigator of the insurance company shows that the deceased had died due to lightening and not due to the accident. It was in the written arguments, the fact of acquittal of the driver of the bus in C.C. No.208/2010 for the offences alleged against him under Sections 279 and 304A of IPC, was pleaded. The fact remains that the insurance company had not challenged the charge sheet filed against the driver of the offending vehicle prior to the order of 14 acquittal to contend that there was no involvement of any vehicle at all in the accident. The acquittal of the driver of the offences alleged against him in the charge sheet and the circumstances of the insurance company not challenging the charge sheet is considered by the Apex Court in the case of SUNITA AND OTHERS VS.
RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND ANOTHER reported in 2019 ACJ 801, wherein at paragraph Nos.8, 26 and 27, the Apex Court has held as under:
" 8. The Tribunal then noted that respondent No. 2 driver of the offending bus, Banwari Lal, had not been examined as a witness by the respondents. Additionally, it found that the site map of the accident (Exh.3) showed that the accident had occurred at a turning in the road, and yet the offending vehicle was driven at a high speed. This aspect was read with the unchallenged evidence of the witness BhagchandKhateek (A.D.2), who inter alia deposed that at the time of the accident, the offending bus was being driven 15 recklessly at a high speed and also that the respondents had failed to ask the said witness Bhagchand any question about the purported negligence of the rider of the motorcycle, Sitaram. Further, the respondents had failed to show that they had challenged the filing of the charge-sheet (Exh.2) against respondent No. 2 driver of the offending vehicle. Finally, the Tribunal adverted to the post-mortem report (Exh.4) wherein it was recorded that the deceased had died due to shock arising from various fractures on his body. The Tribunal also took into account the notice under Section 134 of the Act (Exh.7), wherein respondent No. 2 had not made any statement that the accident had occurred due to the negligence of the motorcycle rider. On a combined reading of the aforesaid evidence, the Tribunal held that there was no negligence on the part of the deceased Sitaram, while riding the motorcycle and that he was fatally hit by the bus being driven recklessly and at a high speed by respondent No. 2.26. Before the Tribunal, respondent No. 1
has neither denied that respondent No. 2 was in its employment at the time of the accident 16 nor has it denied that respondent No. 2 was driving the offending bus no. RJ-26/P.A. 0042 at the time of the accident. The Tribunal has also referred to the Post-mortem report (Exh.4) which establishes that Sitaram died due to shock arising from various fractures on his body, which, undoubtedly, were rendered due to his accident with the offending bus. All of the aforesaid evidence remained uncontroverted. While the Tribunal has accepted these depositions and the evidence presented in that regard, the High Court has, surprisingly, not even referred to it or even the numerous documents presented by the said witnesses as evidence, apart from a passing reference to FIR 247/2011 (Exh.1).
27. The Tribunal's reliance upon FIR 247/2011 (Exh. 1) and charge-sheet (Exh. 2) also cannot be faulted as these documents indicate the complicity of respondent No. 2. The FIR and charge-sheet, coupled with the other evidence on record, inarguably establishes the occurrence of the fatal accident and also point towards the negligence of the respondent No. 2 in causing the said accident.17
Even if the final outcome of the criminal proceedings against respondent No. 2 is unknown, the same would make no difference at least for the purposes of deciding the claim petition under the Act. This Court in Mangla Ram (supra), noted that the nature of proof required to establish culpability under criminal law is far higher than the standard required under the law of torts to create liability."
17. If the law laid down by the Apex Court qua the facts of the case on the hand is noticed, it would become unmistakably clear that the circumstances of the insurance company not challenging the charge sheet and later contending that there was no involvement of the vehicle and subsequent acquittal of the driver of the offending bus by the criminal Court, all of which will cause no impediment to the claim of the claimants. Hence, the argument of the learned Counsel for the insurance company that the death of the deceased had 18 occurred due to lightening and not due to the road traffic accident, is rejected.
18. Now coming to the quantum of compensation awarded by the Tribunal, admittedly, the claimants have not produced any evidence with regard to income of the deceased to show that he was earning Rs.10,000/- per month. Therefore, the notional income has to be fixed as per the guidelines issued by the High Court Legal Services Committee. Since the accident has taken place in the year 2010, the notional income has to be taken at Rs.5,000/- p.m. To the aforesaid amount, 25% 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 NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157. Thus, the monthly income comes to Rs.6,250/-. Out of which, I deem it appropriate to 19 deduct 1/4th towards personal expenses and therefore, the monthly dependency comes to Rs.4,687/-. Taking into account the age of the deceased which was 44 years at the time of accident, multiplier of 14 has to be adopted. Thus, the claimants are entitled to Rs.7,87,416/- (Rs.4,687 X 12 X 14) under the head of loss of dependency.
19. The claimants are four in number namely, the wife and children. In view of the law laid down by the Supreme Court in MAGMA GENERAL INSURANCE CO. LTD. Vs. NANU RAM reported in 2018 ACJ 2782, which is again reiterated and followed by a Three Judge Bench of the Hon'ble Supreme Court in the case of UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS reported in 2020 SCC Online SC 410, the claimants are entitled to be awarded Rs.40,000/- each towards loss of Spousal 20 consortium and loss of Parental Consortium respectively. Thus, the total amount of compensation under this head is assessed at Rs.2,00,000/-. In addition, the claimants are entitled to Rs.15,000/- on account of loss of estate and Rs.15,000/- towards funeral expenses. Thus, the claimants are entitled to total compensation of Rs.10,17,416/- as against Rs.5,89,000/- awarded by the Tribunal. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made.
20. In the result, we pass the following:
ORDER
(i) M.F.A No.24823/2013 filed by the claimants is allowed in part.
(ii) M.F.A. No.22181/2013 filed by the insurance company is dismissed.21
(iii) The claimants would be entitled to the total compensation of Rs.10,17,416/- along with 6% p.a. from the date of filing the petition till its satisfaction.
(iv) The amount in deposit, if any, shall be transmitted to the Tribunal for payment to the claimants.
(v) The enhanced compensation shall be satisfied by the insurance company within three months from the date of receipt of copy of this order.
(vi) To the aforesaid extent, the judgment of the Tribunal is modified.
Sd/-
JUDGE Cs CT-MJ