Karnataka High Court
National Insurance Co Ltd vs Smt Jayashree M on 3 February, 2020
Bench: Alok Aradhe, Ravi V Hosmani
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF FEBRUARY 2020
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
M.F.A. NO.5085/2012
C/W
M.F.A. NO.2341/2012 (MV)
M.F.A. NO.5085/2012
BETWEEN:
NATIONAL INSURANCE CO LTD.,
DIVISIONAL OFFICE NO.10,
FLAT NO.101-106N-1, BMC HOUSE
CONNAUGHT PLACE, NEW DELHI-110001
NOW REP BY ITS REGIONALMANAGER
NATIONAL INSURANCE CO LTD,
REGIONALOFFICE, SUBHARAM COMPLEX
144 M G ROAD, BANGALORE-560001.
... APPELLANT
(By Sri. A.N. KRISHNA SWAMY, ADV.,)
AND:
1. SMT. JAYASHREE M
W/O PRATHAPA REDDY M
AGED ABOUT 46 YEARS
2. PRANEETHA M
D/O PRATHAPA REDDY M
AGED ABOUT 16 YEARS.
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3. VIVEK M
S/O PRATHAPA REDDY M
AGED ABOUT 8 YEARS
RESPONDENTS NO.2 AND 3 ARE
MINOR, REP. BY THEIR NATURAL GUARDIAN/MOTHER
THE 1ST RESPONDENT HEREIN R/AT NO.1071
II STAGE, SIDDARTHA NAGAR, MYSORE.
4. SMT SUBHADRA REDDY M
W/O DR DHANANJEYA REDDY
AGED ABOUT 62 YEARS
5. DR. DHANANJEYA REDDY M
S/O LATE RANGA REDDY
AGED ABOUT 68 YEARS
BOTH R/A NO.31, S 2, MAYUR PARK
CHURCH STREET, NEW THIPPASANDRA
HAL III STAGE, BANGALORE-560075.
6. DARSHANA MENON
D/O RADHIKA MENON, MAJOR
NO.277/A, 18TH D MAIN, 6TH BLOCK
KORAMANGALA, BANGALORE-560095.
... RESPONDENTS
(By Sri. A.K. BHAT, ADV., FOR R1-R5
V/O DTD 17/8/2015 NOTICE TO R6 H/S)
---
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 26.10.2011 PASSED
IN MVC NO.2696/2005 ON THE FILE OF THE XIII ADDITIONAL
SMALL CAUSES JUDGE, MEMBER, MACT, COURT OF SMALL
CAUSES, BANGALORE, AWARDING A COMPENSATION OF
RS.51,62,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.
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M.F.A. NO.2341/2012
BETWEEN:
1. SMT. JAYASHREE M
W/O PRATHAPA REDDY M
AGED ABOUT 46 YEARS.
2. KUMARI PRANEETHA M
D/O PRATHAPA REDDY M
AGED ABOUT 16 YEARS.
3. MASTER VIVEK M
S/O PRATHAPA REDDY M
AGED ABOUT 8 YEARS.
4. SMT SUBHADRA REDDY M
W/O DR. DHANANJEYA REDDY
AGED ABOUT 62 YEARS.
5. SRI DR. DHANANJEYA REDDY M
S/O LATE RANGA REDDY
AGED ABOUT 68 YEARS.
APPELLANTS 2 & 3 ARE MINOR
REPRESENTED BY NATURAL
GUARDIAN/MOTHER
1ST APPELLANT HEREIN.
APPELLANTS 1 TO 3 ARE R/AT.
NO.1071, II STAGE, SIDDARTHA NAGAR
MYSORE.
APPELLANTS 4 & 5 ARE
R/AT NO.31, S2, MAYUR PARK,
CHURCH STREET, NEW THIPPASANDRA
HAL IIIRD STAGE, BANGALORE-560075.
... APPELLANTS
(By Sri. A.K. BHAT, ADV.,)
AND:
1. MS. DARSHANA MENON
D/O RADHIKA MENON
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MAJOR IN AGE
R/AT NO.277/A, 18TH D MAIN
6TH BLOCK, KORAMANGALA
BANGALORE-560095.
2. NATIONAL INSURANCE COMPANY LTD
NO.10, FLAT NO. 101-106
N-1, BMC HOUSE, CONNAUGHT PLACE
NEW DELHI-110001
REP. BY ITS MANAGER.
... RESPONDENTS
(By Sri. A.N. KRISHNASWAMY, ADV., FOR R2
V/O DTD 17/8/2015 NOTICE TO R1 H/S)
---
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 26.10.2011 PASSED
IN MVC NO.2696/2005 ON THE FILE OF THE XIII ADDITIONAL
SMALL CAUSES JUDGE, MEMBER, MACT, COURT OF SMALL
CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE M.F.As. COMING ON FOR FINAL HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.5085/2012 has been filed by the Insurance Company, whereas MFA No.2341/2012 has been filed by the claimants against the judgment dated 26.10.2011 passed by the Motor Accident Claims Tribunal. Since both the appeals arise out of the same accident, they were heard together and are being decided by this common judgment.
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2. Facts giving rise to the filing of these appeals briefly stated are that on 30.12.2004 at about 9.10 a.m. deceased namely Prathapa Reddy was traveling in his maruti car on Marathahalli outer ring road. In front of golden gate on the aforesaid road, car bearing registration No.KA-05 MA-4862 (hereinafter referred to as 'the Tata Indigo Marina car', for short) which was being driven by its driver in a rash and negligent manner dashed against the car driven by the deceased. Due to the impact, the deceased lost control over the vehicle and his car hit the median and dashed against the electric pole almost 50 feet from the median. As a result of the aforesaid accident, the deceased sustained grievous injuries and was hospitalized and later succumbed to his injuries.
3. The claimants thereupon filed a petition under Section 166 of Motor Vehicles Act, 1988 claiming compensation on the ground that the deceased was 6 employed in multi-international company namely I Gate Global Solutions Ltd. and was earning `1,10,000/- p.m. It was further pleaded that he was a Group Project Manager. It was also pleaded that the 1st and 2nd respondents are jointly and severally liable to pay the compensation to the tune of `2,00,00,00/-. Upon service of summons, respondent No.1 appeared through counsel and filed written statement wherein he admitted the ownership of Tata Indigo Merina car and further pleaded that the aforesaid vehicle was insured with the respondent No.2. The respondent No.1 denied the rash and negligent driving of the car and it was pleaded that accident took place on account of negligence of the deceased himself. It was also pleaded that the deceased drove the car in a rash and negligent manner and came from left side in high speed and while trying to overtake the maruti car of the respondent No.1, hit the car from the left side front. The respondent No.1 thereupon applied sudden break to allow the car to go ahead. It 7 was also pleaded that in fact the car driven by the deceased lost control and skidded on the road and hit the roof of the car of respondent No.1 near the driving seat due to which the hind seat of the car of the respondent No.1 was shattered.
4. The respondent No.2, in the written statement, admitted the insurance policy in respect of Tata Indigo Merina car. It was pleaded that the accident took place on account of rash and negligent driving of the driver of the Tata Indigo Merina car and it is also averred that if the driver of the Maruti car may have driven the vehicle in rash and negligent manner, she would have suffered an injury. However, she did not receive any injury. It was also pointed out that the respondent No.1 had lodged a complaint with the Airport traffic police mentioning the details of the accident and thereupon, the police after investigation submitted the report to the Court and thereupon unnatural death report was 8 registered. After investigation, the police authorities have recorded a conclusion that the accident took place on account of rash and negligent driving of the deceased. The age, avocation and income of the deceased was also denied and it was further pleaded that the claim for compensation of the claimants is exorbitant.
5. The Claims Tribunal on the pleadings of the parties framed the issues and thereafter recorded the evidence. The claimants in order prove their case, examined petitioner No.1 as PW-1 and produced documents namely Ex.P1 to Ex.P34. The respondents examined 8 witnesses namely RW-1 to RW-8 and marked 20 documents namely Ex.R1 to Ex.R20. The Claims Tribunal, by the impugned judgment, inter alia, held that the instant case is a case of contributory negligence in which the deceased had contributed to the extent of 30% whereas the driver of the Maruti car 9 contributed to the extent of 70%. It was further held that the claimants were entitled to a sum of `51,62,000/- as compensation along with interest at the rate of 6%. Being aggrieved these appeals have been filed.
6. Learned counsel for the insurance company submitted that no eye witness was examined on behalf of the claimants even though as per the version of PW- 1, one eye witness namely Nageshwar Babu had seen the accident. It is further submitted that the Tribunal ought to have relied on the material on record to establish whether claimants had proved negligence. It is also argued that in a motor accident claims case, the claimant is under an obligation to prove the negligence of the driver before the insurer could be asked to indemnify the insured. It was further submitted that the place where the accident took place was a 3-lane road and the car which was being driven by the deceased dashed from behind the Maruti car. It is also urged that 10 the quantum of compensation awarded is excessive inasmuch as respondent No.1 cannot be said to be dependant as she is a Government employee. Similarly, respondent No.2 could not have been treated as dependant as he is a retired Government servant who receives pension. It is also urged that the Tribunal ought to have deducted 1/3rd of the amount from the income of the deceased on account of personal expenses. It is further submitted that under Regulation 23 of the Regulations, the deceased was under an obligation to keep a safe distance and since the deceased himself was solely responsible to the accident therefore, the claimants are not entitled for any compensation. In support of aforesaid submission, reliance has been placed on the decision of the Supreme Court in 'ORIENTAL INSURANCE CO. LTD. Vs. MEENA VARIYAL AND OTHERS' 2007 AIR SCW 2362.
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7. On the other hand, learned counsel for the claimants submitted that the driver of the Maruthi car had filed a complaint with Airport police station stating that the case was one of an accident. However, the police authorities filed a report before the court treating the same to be a case of unnatural death. It is further submitted that after the widow came to know that a person viz., Nageshwar Babu was a witness to the accident who narrated the manner in which the accident was caused, she approached higher authorities for an independent investigation. Thereupon the matter was transferred for investigation to Indiranagar police station. It is further submitted that in the written statement, the insurance company had taken the plea of negligence on the part of the deceased and therefore, the burden was on the respondents in the proceeding before the tribunal to prove the same, which they have failed to discharge. It is further submitted that in the absence of any eye witnesses to the accident, the 12 tribunal has rightly relied on Ex.P8 and Ex.P9 i.e., the IMV reports. It is also submitted that since in the criminal case, the witness viz., Nageshwar Babu was declared hostile by the criminal court; therefore, the claimant did not examine him as a witness. It is further submitted that the tribunal ought to have taken the income of the deceased, which was reflected in Ex.P27 which was the income tax return filed for the assessment year 2004-05. It is further submitted that after deduction of the income tax as well as the professional tax, the net income of the deceased ought to have been taken at Rs.6,50,372/- The deceased was aged about 34 years at the time of the accident and was in a permanent job. Therefore, 50% of the amount ought to have added towards future prospects and 1/4th of the amount ought to have been deducted towards personal expenses as there were four dependants on the deceased. It is also submitted that multiplier of 16 ought to have been selected by taking into account the age of 13 the deceased and consortium in terms of judgment of the Supreme Court in 'MAGMA GENERAL INSURANCE COMPANY LTD., VS. NANU RAM ALIAS CHUHRU RAM', (2018) 18 SCC 130 should have been awarded.
8. We have considered the submissions made on both the sides and have perused the record. In Black's Law Dictionary, 9th Edition, Page 1133 the contributory negligence has been defined as an act or omission amounting to want of ordinary care on the part of complainant party, which concurring with the defendants negligence is proximate cause of injury. The basic principle of contributory negligence in the field of accident in the Motor Vehicle Act is, when the defendants prove that plaintiff has failed to take precautions against the possible danger and those precautions if taken would have effective to protect would have been effective against the danger which occurred. The Supreme Court in 'PRAMOD KUMAR RASEED BHAI JHAVERI VS. KARMA SEY KUNVARGI 14 TAK', (2002) 6 SCC 455 has defined the concept of contributory negligence and has held that the question of contributory negligence arises when there has been some act or omission on the claimants part which has materially contributed to the damage caused and is of such a nature that it may properly be described as negligence. Negligence ordinarily means breach of a legal duty to care, but when used in the expression contributory negligence, it does not mean any breach of duty it only means failure by a person to use reasonable care for safety of either himself or his property so that he becomes blame worthy in part as an "author of his own wrong". Similar view has been taken in 'MUNICIPAL CORPORATION OF GREATER BOMBAY VS. LAKSHMAN IYYER (2003) 8 SCC 731 and in 'RAJINI VS. UNION OF INDIA', 2017 ACJ 2837.
9. In the backdrop of aforesaid well settled legal principles, the facts on hand may be examined. In the instant case, admittedly, as per the version of claimants 15 the incident was witnessed by one Nageshwar Babu, whereas, as per the version of the respondents and in particular RW8, one Purushottham was an eye witness to the incident. However, it is pertinent to note that even the aforesaid eye witness was not examined on behalf of the respondents. Thus, there is no version with regard to the manner in which the accident has taken place even though the same has been witnessed by two eye witnesses. The claimant presumably may not have examined Nageshwar Babu as he was declared hostile in the criminal case. However, no explanation has been offered on behalf of the respondents for non examination of the eye witness viz., Purushottham. Undoubtedly, the claimant in order to succeed has to establish the negligence of the driver before the insurer can be asked to indemnify the insured. The claims tribunal has placed reliance on IMV inspection reports viz., Ex.P8 and Ex.P9. As per Ex.P8 which is IMV report 16 in respect of Indigo car dated 01.01.2005, the following damages were noticed:
1. Front hind screen glass damaged.
2. Right side both doors damaged.
3. Body at left side fully damaged.
4. Chasis twisted.
5. Seats fully damaged.
6. Right side both doors damaged.
7. Rear bumpers damaged.
10. Similarly in respect of Maruti Car as per IMV Report Ex.P9 dated 06.01.2005, the following damages were found
1. Front windscreen glass broken and beading damaged.
2. Front bumper and grill dislocated from fixture and damaged.
3. Front RS Door pressed inward and damaged.
4. Up body pressed inwards and damaged at front portion.
5. Front LS wheel pressed inwards and damaged.
6. Front LS indicator damaged.
11. Thus, from perusal of Ex.P8 and Ex.P9 it is evident that both the vehicles involved in the accident have sustained damages. If the car belonging to the deceased had hit the front left side of the Maruti car 17 there was no possibility of sustaining damages as noted by IMV Inspector. Admittedly, the spot of the accident was a straight road and both the vehicles were proceeding in the same direction. Even assuming that the car belonging to the deceased came from behind and dashed the left side, there was no possibility of car belonging to respondent No.1 sustaining damages as noted by IMV inspector or detaching the entire bumper or right portion of the car. It is also pertinent to note that there are serious contradictions in the evidence of RWs1, 2 and 8 and the written statement filed before the court in respect of the manner, in which the accident was caused. It is pertinent to note that even though the insurance company as well as respondent No.1 viz., owner of the vehicle had taken the plea that deceased was solely responsible for the accident yet no credible evidence has been led to prove the plea. The burden was on the respondents in the claim petition to prove the plea that accident took place on account of rash and 18 negligent driving of the vehicle by the deceased. However, no credible evidence has been led by the insurance company to prove the aforesaid plea. The eye witness to the accident, who could have been examined by the insurance company has also not been examined. Thus, the best evidence has been withheld by them. Therefore, on the basis of the material available on record viz., IMV reports and the photographs of the vehicles, we hold that respondent No.1 had caused the accident on account of rash and negligent driving of the vehicle. In the absence of any evidence on record with regard to contributory negligence, the finding recorded by the tribunal with regard to the contributory negligence cannot be sustained in the eye of law. Accordingly, it is set aide and it is held that the driver of Maruti vehicle viz., respondent No.1 had caused the accident.
12. Now we may advert to the quantum of compensation. Admittedly as per Ex.P27 i.e., the 19 income-tax return for assessment year 2004-05, the deceased who was employed as a Group Project Manager in a Multinational Company was earning Gross salary of Rs.9,31,600/-. After deduction of the income e tax and the professional tax, the yearly income of the deceased comes to Rs.6,50,732/-. To the aforesaid amount 50% of the amount has to be added on account of future prospects as the deceased had a permanent job in view of law laid down by the constitution bench of Supreme Court in the case of 'NATIONAL INSURANCE COMPANY VS. PRANAY SETHI AIR 2017 SC 5157. Thus, the dependency comes to Rs.9,76,098/-p.a. Out of the aforesaid amount, 1/3rd amount has to be deducted on account of personal expenses which comes to Rs.6,50,732/- and if the age of the deceased which was 34 years at the time of accident is taken into account, the multiplier of '16' has to be adopted. Thus, the claimants are entitled to a sum of Rs.1,04,11,712/-. In addition the claimants are entitled to a sum of 20 Rs.70,000/- under the conventional heads in view of law laid down in PRANAY SETHI supra. Thus, in all, the claimants are entitled to a sum of Rs.1,04,81,712/-. 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. The amount in deposit, if any, shall be transmitted to the Claims Tribunal. To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeals are disposed of.
Sd/-
JUDGE Sd/-
JUDGE RV/SS 21 AAJ/RVHJ: MFA No.5085/2012 24.02.2020 c/w MFA No.2341/2012 ORDER ON BEING SPOKEN TO Learned counsel for the claimants has filed a memo stating that in the judgment dated 03.02.2020 the description of brands of motor vehicles driven by deceased and by the insured owner are incorrectly described in paragraphs 2, 3 and 4.
The aforesaid memo is taken on record. In line 4 of paragraph 2 of the judgment, the word 'maruti' is corrected as 'Tata Indigo Marina' and in line 7 of paragraph 2, the words 'Tata Indigo Marina' is corrected by 'Maruti'. In line 8 of paragraph 3 of the judgment, the word 'he' is corrected as 'she' and in line 9 of the same paragraph, the words 'Tata Indigo Merina' is corrected as 'Maruti'. Further, in lines 2 and 3 of paragraph 4, the words 'Tata Indigo Merina' is corrected as 'Maruti'.
This order shall be read in conjunction with the order dated 03.02.2020.
Sd/-
JUDGE Sd/-
JUDGE RV