Karnataka High Court
United India Insurance Company Ltd vs Sri Devaraj C N on 9 March, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
MFA NO. 9561 OF 2017 (MV-D)
C/W
MFA NOS.9560/2017, 9562/2017(MV-D)
C/W
MFA CROB NO.178/2018 IN MFA NO.9560/2017,
MFA CROB NO.179/2018 IN MFA NO.9561/2017
(MV-D)
IN MFA NO.9561/2017
BETWEEN:
UNITED INDIA INSURANCE COMPANY LTD
REGIONAL OFFICE,
5TH & 6TH FLOORS, KRISHI BHAVAN,
NRUPATHUNGA ROAD,
HUDSON CIRCLE, BENGALURU-560001
REP. BY ITS DEPUTY MANAGER
MR. AJAY KUMAR SINHA.
...APPELLANT
(BY SRI.KRISHNA KISHORE S, ADVOCATE)
AND:
1. SRI DEVARAJ C N
AGED ABOUT 27 YEARS,
S/O LATE NAGARAJU
2. SRI. RAJESH C.N
AGED ABOUT 25 YEARS,
S/O LATE NAGARAJU
2
3. SRI NAGESH C.N.
AGED ABOUT 23 YEARS,
S/O LATE NAGARAJU,
ALL ARE RESIDING AT GUDDALAHALLI,
AJJANAHALLI POST, MADHAL HOBLI,
MAGADI TALUK,
RAMANAGARA DISTRICT-560562.
4. SRI. Y.N. SHIVAKUMAR
MAJOR IN AGE,
S/O SRI. NARASAMMA,
RESIDENT OF YACHAGHATTA VILLAGE,
KASABA HOBLI, KUNIGAL TALUK,
TUMKUR DISTRICT-566001
(RC OWNER OF TRACTOR OF TRAILER
NO.KA-17-833 & 834)
...RESPONDENTS
(BY SRI.GOPALKRISHNA N, ADVOCATE FOR R1 TO R3;
R4 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:30.08.2017, PASSED IN MVC NO.4059/2016, ON
THE FILE OF THE VII ADDITIONAL JUDGE & XXXII ACMM,
COURT OF SMALL CAUSES, (SCCH-3), BENGALURU,
AWARDING COMPENSATION OF RS.4,10,000/- WITH
INTEREST AT THE RATE OF 8% PER ANNUM FROM THE
DATE OF THE PETITION TILL THE DATE OF REALIZATION.
IN MFA NO.9560/2017
BETWEEN:
UNITED INDIA INSURANCE COMPANY LTD
REGIONAL OFFICE,
5TH & 6TH FLOORS, KRISHI BHAVAN,
NRUPATHUNGA ROAD, HUDSON CIRCLE,
BENGALURU-560001.
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REP. BY ITS DEPUTY MANAGER
MR. AJAY KUMAR SINHA.
...APPELLANT
(BY SRI.KRISHNA KISHORE S, ADVOCATE)
AND:
1. SMT PARVATHAMMA
AGED ABOUT 49 YEARS
W/O LATE ESHWARAIAH
2. SHARATH KUMAR
AGED ABOUT 29 YEARS
S/O LATE ESHWARAIAH,
3. SRI CHANDRA
AGED ABOUT 27 YEARS
S/O LATE ESHWARAIAH,
4. SRI. ANAND KUMAR
AGED ABOUT 25 YEARS
S/O LATE ESHWARAIAH
ALL ARE RESIDING AT HELIGEHALLI COLONY,
MADBAL HOBLI, MAGADI TALUK,
NEAR MEI INTERNATIONAL SCHOOL,
RAMANAGARA DISTRICT-560562.
5. SRI. Y.N. SHIVAKUMAR
MAJOR IN AGE,
S/O. SRI NARASAMMA,
RESIDENT OF YACHAGHATTA VILLAGE,
KASABA HOBLI, KUNIGAL TALUK,
TUMKUR DISTRICT.
(RC OWNER OF TRACTOR TRAILER
NO.KA.17-833 & 834)
...RESPONDENTS
(BY SRI.N.GOPALA KRISHNA, ADVOCATE FOR R1 TO R4;
R5 SERVED)
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THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:30.08.2017, PASSED IN MVC NO.4058/2016 ON
THE FILE OF THE VII ADDITIONAL JUDGE, MACT & XXXII
ACMM, COURT OF SMALL CAUSES, BENGALURU(SCCH-3),
AWARDING COMPENSATION OF RS.8,02,750/- WITH
INTEREST AT 8% P.A FROM THE DATE OF THE PETITION
TILL THE DATE OF REALIZATION.
IN MFA NO.9562/2017
BETWEEN:
UNITED INDIA INSURANCE COMPANY LTD
REGIONAL OFFICE,
5TH & 6TH FLOORS, KRISHI BHAVAN,
NRUPATHUNGA ROAD, HUDSON CIRCLE,
BENGALURU-560001
REP. BY ITS DEPUTY MANAGER
MR. AJAY KUMAR SINHA.
...APPELLANT
(BY SRI.KRISHNA KISHORE S, ADVOCATE)
AND:
1. SRI CHIKKANNA
AGED ABOUT 51 YEARS,
S/O THIRUMALAIAH,
RESIDENT OF MATHIKERE VILLAGE,
MADBAL HOBLI, MAGADI TALUK,
RAMANAGARA DISTRICT-560562.
2. SRI. Y.N. SHIVAKUMAR
MAJOR IN AGE
S/O. SRI NARASAMMA,
RESIDENT OF YACHAGHATTA VILLAGE,
KASABA HOBLI, KUNIGAL TALUK,
TUMKUR DISTRICT-566001
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(RC OWNER OF TRACTOR TRAILER NO.
KA-17-833 & 834)
...RESPONDENTS
(BY SRI.N.GOPALA KRISHNA, ADVOCATE FOR R1;
R2 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:30.08.2017, PASSED IN MVC NO.4060/2016 ON
THE FILE OF THE VII ADDITIONAL JUDGE & XXXII ACMM,
COURT OF SMALL CAUSES, BENGALURU, AWARDING
COMPENSATION OF RS.1,31,394/- WITH INTEREST AT 8%
P.A FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA CROB NO.178/2018
BETWEEN:
1. SMT PARVATHAMMA
W/O LATE ESHWARAIAH
AGED ABOUT 50 YEARS
2. SRI.SHARATH KUMAR
S/O LATE ESHWARAIAH,
AGED ABOUT 30 YEARS
3. SRI CHANDRA
S/O LATE ESHWARAIAH,
AGED ABOUT 28 YEARS
4. SRI. ANANDAKUMAR
S/O LATE ESHWARAIAH,
AGED ABOUT 26 YEARS
ALL ARE RESIDING AT HELIGEHALLI COLONY,
MADBAL HOBLI, MAGADI TALUK,
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NEAR MEI INTERNATIONAL SCHOOL,
RAMANAGARA DISTRICT.
...CROSS OBJECTORS
(BY SRI.GOPAL KRISHNA N, ADVOCATE)
AND:
1. UNITED INDIA INSURANCE COMPANY LTD
REGIONAL OFFICE,
D.O. 6TH FLOOR, KRISHI BHAVAN,
NRUPATHUNGA ROAD, HUDSON CIRCLE,
BENGALURU-560001.
REP. BY ITS MANAGER
2. SRI Y N SHIVAKUMAR
S/O NARASAMMA
MAJOR IN AGE,
RESIDING AT YACHAGHATTA VILLAGE
KASABA HOBLI, KUNIGAL TALUK
TUMKUR DISTRICT
...RESPONDENTS
(BY SRI.KRISHNA KISHORE.S, ADVOCATE FOR R1;
V/O DTD 24.01.2020 NOTICE TO R2 D/W)
THIS MFA CROB IN MFA 9560/2017 PASSED U/O 41
RULE 22 OF CPC AGAINST THE JUDGMENT AND AWARD
DT.30.08.2017 PASSED ON MVC NO.4058/2016 ON THE
FILE OF THE 7TH ADDITIONAL JUDGE & 32ND ACMM,
COURT OF SMALL CAUSES, BENGALURU (SCCH-3),
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA CROB NO.179/2018
BETWEEN:
1. SRI DEVARAJ C N
S/O LATE NAGARAJU
NOW AGED ABOUT 28 YEARS
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2. SRI RJAESH C N
S/O LATE NAGARAJU
NOW AGED ABOUT 26 YEARS
3. SRI NAGESH C N
S/O LATE NAGARAJU
NOW AGED ABOUT 24 YEARS
ALL ARE RESIDING AT GUDDADAHALLI
AJJANAHALLI POST
MADBAL HOBLI, MAGADI TALUK
RAMANAGARA DISTRICT
...CROSS OBJECTORS
(BY SRI.GOPAL KRISHNA N, ADVOCATE)
AND:
1. UNITED INDIA INSURANCE COMPANY LTD.,
D.O. 6TH FLOOR, KRISHI BHAVAN
NRUPATHUNGA ROAD
HUDSON CIRCLE,
BENGALURU-560 001
REP:BY ITS MANAGER
2. SRI Y N SHIVAKUMAR
S/O NARASAMMA
MAJOR IN AGE
RESIDING AT YACHAGHATTA VILLAGE
KASABA HOBLI, KUNIGAL TALUK
TUMKUR DISTRICT
...RESPONDENTS
(BY SRI.S.KRISHNA KISHORE, ADVOCATE FOR R1;
V/O DTD 24.01.2000 NOTICE TO R2 D/W)
THIS MFA CROB IN MFA 9561/2017 IS FILED U/O 41
RULE 22 R/W SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:30.08.2017, PASSED IN
MVC NO.4059/2016 ON THE FILE OF THE VII ADDITIONAL
JUDGE & XXXII ACMM, COURT OF SMALL CAUSES,
BENGALURU(SCCH-3), PARTLY ALLOWING THE CLAIM
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PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE MFA'S AND MFA CROB'S COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The Insurance Company has filed MFA.Nos.9561/2017, 9560/2017 and 9562/2017
challenging the judgment and common award dated 30.08.2017 passed in MVC.Nos.4058/2016, 4059/2016 and 4060/2016 by the Motor Accident Claims Tribunal, Bengaluru, insofar as negligence is concerned. Insofar as quantum is concerned, the same is not questioned by the Insurance Company. MFA.Crob. Nos.178/2018 and 179/2018 are filed by the claimants against the judgment and award dated 30.08.2017 passed in MVC.Nos.4058/2016 and 4059/2016 respectively, seeking enhancement of compensation.
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2. The grievance of the Insurance Company before this Court is that the Tribunal erred in holding that the driver of the offending tractor and trailer was responsible for the accident. To buttress his argument, he would vehemently argue and contend before this Court that in fact the rider of the bike was also charge sheeted and he was arrayed as accused No.2 in Crime No.0138/2016 of Kunigal Police Station. To substantiate his contention, learned counsel for the appellant-Insurance Company would also rely on Ex.P-5 which is the IMV report. By relying on Ex.P-5, he would vehemently argue and submit to this Court that if the damage assessed by the Motor Vehicle Inspector is examined meticulously, it would clearly demonstrate and establish that it is the rider of the bike who came from the hind side and dashed against the tractor and trailer involved in the accident. By relying on these documents, he would also 10 vehemently submit to this Court that the entire case of the claimants that the driver of the offending tractor and trailer came from the hind side in a rash and negligent manner and dashed against the bike would stand negated by the report prepared by the Motor Vehicle Inspector. Further relying on Ex.P-5, he would bring it to the notice of this Court that the hind portion of the tractor more particularly the rear registration number plate of the trailer is damaged. He would argue and contend that if the damaged parts of respective vehicle are meticulously examined, the very averment and theory set up by the claimants would stand negated. On these set of facts, he would argue and contend before this Court that the Tribunal while examining issue No.1, erred in answering issue No.1 in affirmative by holding that the driver of the offending tractor and trailer was alone responsible for the accident and was rash and negligent and it is on 11 account of his gross negligence, the accident has occurred.
3. Per contra, learned counsel for the claimants would support the finding of the Tribunal on issue No.1. To buttress his argument, he would rely on the evidence of PW.3 who is the eye witness. On meticulous examination of examination-in-chief, the said witness has deposed in examination-in-chief and has specifically stated that the driver of the offending tractor and trailer came from the hind side and dashed against the bike on which PW.3 was also proceeding. If the cross-examination is meticulously examined, the Insurance Company has virtually given a go-by and there is absolutely no cross-examination in regard to which vehicle was proceeding ahead. In this background, evidence of PW.3 is examined and his testimony in examination-in-chief has gone unchallenged in cross-examination. The evidence of 12 PW.3 is credible and trustworthy and if this oral evidence is examined along with documentary evidence, more particularly, the true copy of complaint vide Ex.P-1, the spot mahazar vide Ex.P-3, true copy of spot sketch vide Ex.P-4 and also charge sheet at Ex.P-8, then the contention of the Insurance Company that the rider of the bike came from the hind side and dashed against the tractor and trailer cannot be believed. Though the Insurance Company has seriously disputed the manner in which the accident has occurred, however, there is absolutely no rebuttal evidence on this point.
4. Learned counsel for the claimants while marshalling his argument would also rely on the judgment of the Hon'ble Apex Court in the case of Mohammed Siddique & Anr. Vs. National Insurance Company Limited & Ors. (Civil Appeal No.79/2020). Relying on this judgment, he would 13 contend before this Court that merely because the deceased was riding a motor bike along with other two persons may not by itself make him guilty of contributory negligence. The Hon'ble Apex Court in the said case while examining the facts of that particular case was of the view that the fact that three persons proceeding on a bike would not in itself amount to contributory negligence. At the most, the rider of the bike can be held to be guilty of being a party to violation of law. The Hon'ble Apex Court in the said judgment, has also held that there has to be a casual connection between violation and the accident or a casual connection between violation and the impact of the accident upon the victim.
5. This Court, having examined the proposition of law laid down by the Hon'ble Apex Court in the above said judgment, is of the view that in the present case on hand even the question as to 14 whether there is a casual connection between violation and accident cannot be gone into for the simple reason that the clinching evidence on record clearly indicates that it is the driver of the offending tractor and trailer who came from the hind side and dashed against the bike and hence, question of examining contributory negligence in the present case on hand would not arise in absence of rebuttal evidence adduced by the Insurance Company. The question of contributory negligence in the present case on hand may be gone into only if there was a rebuttal clinching evidence adduced by the Insurance Company to demonstrate that it was the rider of the bike who was driving with other two people in fact came from the hind side and dashed against the trailer and thereby caused the accident. In absence of such rebuttal evidence, this Court cannot accept the contention of the Insurance Company. In that view of the matter, 15 the Insurance Company having taken a specific contention that the rider of the bike has come from the hind side and in fact dashed against the tractor trailer and having taken such a contention, have failed to lead in rebuttal evidence. Further, there is no serious challenge in cross-examination either to the claimants and more particularly, there is absolutely no cross-examination in that regard to the eye witness who is examined as PW.3. In that view of the matter, the finding and conclusion arrived at by the Tribunal does not suffer from any infirmities and would not warrant any interference.
6. Insofar as interest determined by the Tribunal is concerned, the same is modified by holding that claimants are entitled for interest at the rate of 6% p.a. on the compensation determined by the Tribunal.
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7. For the reasons stated supra, the appeals filed by the Insurance Company in MFA.Nos.9561/2017, 9560/2017 and 9562/2017 are allowed in part holding that the claimants are entitled for modified interest at the rate of 6% p.a. on the compensation determined by the Tribunal. Insofar the question of negligence is concerned, the same is rejected.
8. Insofar as the cross objection filed by the claimants in MFA Crob.No.178/2018 which relates to MFA.No.9560/2017, the case of the claimants is that the deceased was doing agricultural and also milk vending business. Admittedly, deceased was aged about 50 years as on the date of the accident. The Tribunal in absence of proof of income has proceeded to take the income of the deceased at Rs.7,500/-. It is not in dispute that the accident is of the year 2016. In absence of proof of income, this Court would rely 17 on the chart issued by the Legal Services Authority and proceed to assess the income of the deceased notionally at Rs.9,500/-. Since deceased was aged about 50 years, 25% has to be added towards future prospects. Hence, the income of the deceased would come to Rs.11,875/-. If 1/3rd is deducted towards his personal expenses, then the compensation determined by this Court under the head 'loss of dependency' comes to Rs.12,35,052/- (7,917x12x13). Further, a sum of Rs.70,000/- is awarded towards other conventional heads. Hence, the total compensation determined by this Court comes to Rs.13,05,052/- as against Rs.8,02,750/- awarded by the Tribunal. Hence, the enhanced compensation payable to the claimants comes to Rs.5,02,302/-.
9. Accordingly, cross objection filed by the claimants in MFA Crob.No.178/2018 is allowed in part and the claimants are entitled to enhanced 18 compensation of Rs.5,02,302/- which shall carry interest at the rate of 6% p.a. from the date of petition till realization.
10. Insofar as MFA Crob. No.179/2018 relating to MFA.No.9561/2017 filed by the claimants against the judgment and award dated 30.08.2017 passed in MVC.No.4059/2016 is concerned, the case of the claimants is that the Tribunal while determining the compensation, in absence of proof of income, has proceeded to notionally assess the income of the deceased at Rs.7,500/- and by deducting 3/4th towards his personal expenses has proceeded to determine the compensation under the head 'loss of estate' and not 'loss of dependency'.
11. On re-appreciation of oral and documentary evidence, this Court is of the view that the Tribunal erred in deducting 3/4th from the income of the 19 deceased towards personal expenses. There is evidence on record indicating that the deceased is survived by one handicapped son. The other sons are also not that old and they are all aged around 28 years, 26 years and 24 years respectively. If this material aspect is taken into consideration, this Court is of the view that in fact the Tribunal ought to have proceeded to determine the compensation by treating the sons of the deceased as dependants and not as legal representatives. Hence, the findings of the Tribunal that the claimants are entitled for compensation under the head 'loss of estate' as legal representatives is palpably erroneous and the same would warrant interference by this Court.
12. This Court, on re-appreciation of oral and documentary evidence, would proceed to notionally assess the income of the deceased at Rs.9,500/- and 10% has to be added to the same towards future 20 prospects which comes to Rs.10,450/-. If 50% is deducted, the income of the deceased is assessed at Rs.5,225/-. Hence, the compensation payable under the head 'loss of dependency' would come to Rs.6,89,700/- (5,225x12x11). Under the other conventional heads, a sum of Rs.40,000/- is awarded. Hence, the total compensation assessed by this Court comes to Rs.7,29,700/- as against Rs.4,10,000/- awarded by the Tribunal.
13. Accordingly, the cross objection filed by the claimants in MFA Crob.No.179/2018 is allowed in part and the claimants are entitled to enhanced compensation of Rs.3,19,700/- which shall carry interest at the rate of 6% p.a. from the date of petition till realization.
14. In the result, the appeals filed by the Insurance Company in MFA.Nos.9561/2017, 21 9560/2017 and 9562/2017 are allowed in part by holding that the compensation determined by the Tribunal shall carry interest at the rate of 6% p.a. as against 8% determined by the Tribunal. The cross objection filed by the claimants in MFA Crob. No.178/2018 is allowed in part and the claimants are entitled to enhanced compensation of Rs.5,02,302/- which shall carry interest at the rate of 6% p.a. from the date of petition till realization. MFA Crob.No.179/2018 is also allowed in part and the claimants are entitled to enhanced compensation of Rs.3,19,700/- which shall carry interest at the rate of 6% p.a. from the date of petition till realization.
The amount in deposit shall be remitted to the Tribunal.
Sd/-
JUDGE CA