Karnataka High Court
Smt. K.R. Hemalatha vs Lokesh @ E Gurunath on 7 September, 2020
Equivalent citations: AIRONLINE 2020 KAR 1817, 2020 (4) AKR 509
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.No.3062/2009 (MV)
C/W
M.F.A.No.7083/2009 (MV)
IN M.F.A.No.3062/2009
BETWEEN:
1. SMT. K.R. HEMALATHA
W/O LATE H.S. RAMA MURTHY
D/O RANGANATHA K.S.
AGED ABOUT 38 YEARS
2. MASTER H.R. SATHWIK
S/O LATE H.S. RAMA MURTHY
AGED ABOUT 16 YEARS
3. KUMARI H.R.SAMRUTHA
D/O LATE H.S.RAMA MURTHY
AGED ABOUT 12 YEARS
PETITIONERS No.2 AND 3 ARE
REP. BY THEIR NATURAL GUARDIAN AND MOTHER
I.E., THE FIRST CLAIMANT
SMT. K.R. HEMALATHA
W/O. LATE H.S. RAMA MURTHY
D/O. SRI. RANGANATH K.S.
AGED ABOUT 35 YEARS
ALL ARE RESIDING AT
C/O. RANGANATH K.S.
2
No.157, 3RD MAIN, 1ST CROSS
DUO HEIGHTS LAYOUT
BEGUR
BENGALURU-560 068. ... APPELLANTS
(BY SRI. SHRIPAD V. SHASTRI, ADV. (PHYSICAL HEARING))
AND:
1. LOKESH @ E. GURUNATH
S/O ERANNA
AGED ABOUT 31 YEARS
DRIVER BY PROFESSION
R/O ALUR VILLAGE
HIRIYUR TALUK
CHITRADURGA DISTRICT.
2. D. SHABBIR AHAMED
S/O. V. BABU
AGED ABOUT 37 YEARS
OWNER OF SWARAJ MAZDA CANTER
VEHICLE BEARING KA-16-7792
RESIDING AT B.J.R. EXTENSION
HIRIYUR ROAD, HIRIYUR
CHITRADURGA DISTRICT-577 501.
3. THE REGIONAL MANAGER
NATIONAL INSURANCE CO.LTD.
D.O.3, ST. MARKS ROAD
BENGALURU
ALSO AT THE REGIONAL MANAGER
NATIONAL INSURANCE CO. LTD.
P.B.NO.94., 1ST FLOOR
B.M.COMPLEX
LAKSHMIBAZAAR
CHITRADURGA-577 501. ... RESPONDENTS
(BY SRI. A.N. KRISHNASWAMY, ADV. FOR R3 (VIDEO CONFERENCE)
R1 AND R2 ARE SERVED)
3
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 1.1.2009 PASSED
IN MVC.NO.7536/2006 ON THE FILE OF THE XVI ADDITIONAL
JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT,
METROPOLITAN AREA, BENGALURU, (SCCH. No.14) PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A.No.7083/2009
BETWEEN:
REGIONAL MANAGER
NATIONAL INSURANCE CO. LTD.
REGIONAL OFFICE
SUBHARAM COMPLEX
144, M.G. ROAD
BENGALURU-560 001. ...APPELLANT
(BY SRI. A.N. KRISHNA SWAMY, ADV. FOR R3 (THROUGH VC))
AND:
1. SMT. K.R. HEMALATHA
W/O. H.S. RAMA MURTHY
D/O RANGANATHA K.S.
AGED ABOUT 38 YEARS
2. H.R. SATHWIK
S/O. H.S. RAMA MURTHY
AGED ABOUT 16 YEARS
3. H.R. SAMRUTHA
D/O. H.S. RAMA MURTHY
AGED ABOUT 12 YEARS
RESPONDENTS No.2 AND 3 HEREIN SINCE MINORS
REPRESENTED BY THEIR NATURAL GUARDIAN/MOTHER
THE 1ST RESPONDENT HEREIN.
4
ALL ARE RESIDING AT
C/O. RANGANATH K.S.
No.157, 3RD MAIN, I CROSS
DUO HEIGHTS LAYOUT
BEGUR
BENGALURU-560 068.
4. LOKESH @ E GURUNATH
S/O ERANNA
AGED ABOUT 31 YEARS,
DRIVER RESIDING AT ALUR VILLAGE,
HIRIYUR TALUK
CHITRADURGA DISTRICT.
5. D SHABBIR AHAMED
S/O V BABU
AGED ABOUT 37 YEARS
R/AT B J R EXTENSION
HIRIYUR ROAD
HIRIYUR
CHITRADURGA DISTRICT. ... RESPONDENTS
(BY SRI. M.R. SHASHIDHAR, ADV. FOR R1 TO R3
R4 AND R5 ARE SERVED
R2 AND R3 ARE MINORS AND REPRESENTED BY R1)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 1.1.2009 PASSED
IN MVC.NO.7536/2006 ON THE FILE OF THE XVI ADDITIONAL
JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT,
METROPOLITAN AREA, BENGALURU, (SCCH. No.14) AWARDING
COMPENSATION OF RS.7,74,000/- WITH INTEREST AT 6%P.A.
FROM THE DATE OF PETITION TILL REALIZATION.
THESE M.F.As. COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
5
JUDGMENT
The Miscellaneous First Appeal No.3062/2009 is filed by the claimants challenging the quantum of compensation and the Miscellaneous First Appeal No.7083/2009 is filed by the Insurance Company questioning the fastening of liability on the Insurance Company in the judgment and award dated 01.01.2009 passed in MVC No.7536/2009 on the file of the MACT, Bengaluru City, SCCH.14.
2. The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.
3. The factual matrix of the case is that, the claimants are the legal heirs of the deceased H.S.Rama Murthy, who met with an accident on 13.02.2006 at about 4.00 a.m. in the early morning when he was proceeding in a Swaraj Mazda Canter bearing registration No.KA-16-77-92 by hiring the same for carrying jaggery load to his business place and when the said vehicle reached near Balaji Weigh Bridge near KB Cross, NH 206, 6 the driver of the said canter drove the same at high speed in a rash and negligent manner without observing any traffic, came to the wrong side and dashed against the parked lorry. As a result, the said H.S.Rama Murthy sustained grievous injuries for which he was hospitalized and took treatment from the date of accident and later succumbed to injuries on 09.04.2006.
4. The case of the claimants before the Tribunal is that, the deceased H.S.Rama Murthy, who was aged about 49 years was doing jaggery business and earning Rs.13,000/- per month. As a result of the accident and also he being succumbed to the injuries, the claimants have lost the bread earning member of the family. In pursuance of the claim petition, notice was ordered to the respondents and whereby the driver was placed ex-parte and the owner of the vehicle and the Insurance Company represented through their respective counsel and filed written statement. The Insurance Company took up defence in the written statement denying the averments made in the claim petition with regard to the age, earnings of the deceased and also the negligence on the part of the driver of the vehicle. A 7 specific contention was also taken by the Insurance Company that one person by name Lokesh was the driver at the time of the accident, but while filing the petition, the claimants have falsely implicated the name Lokesh @ Gurunath, wherein both are distinct persons. Lokesh was not having any valid driving license at the time of accident and hence, in order to make a wrongful gain, while filing the charge sheet, the name of Gurunath, who was having a valid driving license was included by mentioning the same as Lokesh @ Gurunath. Therefore, the Insurance Company is not liable to pay the compensation.
5. The owner of the vehicle, who has been arrayed as respondent No.2 in the claim petition also filed written statement, wherein he did not dispute the accident and also involvement of the vehicle in the accident, but has taken the contention that the vehicle was insured with respondent No.3 and hence, the Insurance Company is liable to pay the compensation.
6. The claimants, in order to prove their case, examined the first petitioner as P.W.1, the doctor as P.W.2 and 8 got marked the documents Exs.P1 to 20. The Insurance Company, in support of their defence, examined two witnesses R.Ws.1 and 2 and got marked the documents Exs.R1 to 6. The owner of the vehicle though filed written statement, did not choose to adduce any evidence before the Tribunal. The Tribunal, after considering the material on record, answered issue Nos.1 and 2 affirmatively and awarded a compensation of Rs.7,74,000/- with 6% interest per annum from the date of the petition till the date of realization and also directed respondent Nos.2 and 3 to pay the entire compensation as they were jointly and severally liable.
7. Being aggrieved by the judgment and award of the Tribunal, the claimants in the appeal would contend that the Tribunal has committed an error in taking the income of the deceased as Rs.4,500/- as against Rs.13,000/- per month and also contended that the deduction of 1/3rd towards personal expenses is not justified and which ought to have been 1/4th. The Tribunal ought to have taken into consideration of the fact that the deceased was under intensive care treatment for 55 9 days after the accident and awarded compensation under the head of 'expenses', which has not been done. However, the compensation under the head of 'medical expenses' has been awarded. It is also the contention of the learned counsel that the Tribunal has committed an error in awarding meagre compensation under all the heads and also in not awarding any compensation under the head of 'future prospects'. Hence, it requires interference of this Court.
8. The appellant, in M.F.A.No.7083/2009, who is the Insurance Company preferred an appeal urging that the Tribunal ought to have exonerated the liability on the Insurance Company on the ground that the driver has been falsely implicated in the case and both Lokesh and Gurunath are distinct persons. Learned counsel appearing for the Insurance Company would also contend that the injured himself has made the statement before the police, which is marked as Ex.P7, that the name of the driver is one Lokesh and while filing the charge sheet, the name of Lokesh @ Gurunath has been introduced. There is no basis for filing the charge sheet against the said Gurunath. 10 Merely because of the fact that Gurunath was having a valid driver license, his name has been implicated in the charge sheet as Lokesh @ Gurunath. However, the owner of the vehicle has not been examined before the Tribunal.
9. Learned counsel for the Insurance Company also would contend that the Investigator, who was appointed by the Insurance Company has also been examined before the Tribunal and his report, which is marked as Ex.R3 also discloses that both Lokesh and Gurunath are distinct persons. Learned counsel appearing for the Insurance Company also would vehemently contend that it is a case of fraud and when the case has been made out that the fraud has been played, the fraud and justice should not dwell together. Hence, the liability on the Insurance Company has to be exonerated.
10. Learned counsel appearing for the appellants/claimants in M.F.A.No.3062/2009, in reply to the arguments canvassed by the learned counsel appearing for the Insurance Company, would contend that the police after investigation while filing the charge sheet has categorically 11 mentioned the name of the driver as Lokesh @ Gurunath. Though the Insurance Company disputed the said fact, except examining R.Ws.1 and 2, who are the witnesses of the Company, has failed to examine the Investigating Officer. The Insurance Company ought to have examined the Investigating Officer, who would be the right person to speak as to whether Lokesh and Lokesh @ Gurunath are one and the same or distinct persons. The Insurance Company though took a specific defence in the written statement, the same has not been proved. Hence, the Tribunal has not committed any error in fastening the liability on the insurance company.
11. Learned counsel for the claimants also would contend that when the accident took place in the year 2006, the deceased was doing the jaggery business and earning Rs.13,000/- per month, whereas the Tribunal without considering the same, has committed an error in taking the income of the deceased as Rs.4,500/- per month and also not awarded any compensation under the head of 'future prospects'. The deceased was aged about 36 years at the time of the 12 accident and the compensation has not been awarded for the deceased being in hospital for a period of 55 days under intensive care treatment. Hence, the same requires to be enhanced.
12. Having heard the arguments of the learned counsel appearing for the appellants/claimants and also the learned counsel appearing for the Insurance Company/respondent, the points that would arise for consideration of this Court are as follows:-
1. Whether the Tribunal has committed an error in fastening the liability on the Insurance Company as contended in MFA No.7083/2009?
2. Whether the Tribunal has committed an error in awarding the just and reasonable compensation in MFA No.3062/2009?
3. What order?13
POINT NO.1:-
13. The first and foremost contention of the learned counsel appearing for the appellant-Insurance Company is that the Tribunal has committed a serious error in not noticing the fact that Lokesh and E.Gurunath are two distinct persons and that Lokesh was not in possession of any valid driving license at the time of the accident and hence, in order to make a wrongful gain the name of Gurunath, who was having the valid driving license was pressed into service so as to appear that both persons are one and the same. The Tribunal has erred in not appreciating the same.
14. In order to substantiate this contention, the appellant-Insurance Company mainly relied upon the evidence of R.Ws.1 and 2. No doubt in the written statement a specific defence was taken by the Insurance Company that Lokesh and Gurunath are distinct persons, now the question before the Court is that whether the Insurance Company has substantiated its defence by placing cogent evidence before the Court. Learned counsel appearing for the Insurance Company mainly relied upon 14 Ex.P7, which is the statement of the injured, who sustained grievous injuries on account of the accident. No doubt on perusal of Ex.P7, it categorically mentioned the name of the driver as Lokesh but while filing the charge sheet, which is marked as Ex.P5, the name of the driver is shown as Lokesh @ Gurunath. It is the case of the claimants that Lokesh @ Gurunath is one and the same person and the father name of Lokesh is Eranna, whereas the Insurance Company has taken up the defence that both persons are distinct and fraud has been played before the Tribunal. When the specific defence has been taken up by the Insurance Company, the burden of proving the same also lies on them.
15. In support of the said defence, the Insurance Company relied upon the evidence of R.W.1, who is the Administrative Officer of the company and he reiterates in his affidavit the contention raised in the written statement that both are different persons and also the documents Ex.R3, the investigating report and the letter dated 02.02.2007, which is marked as Ex.R5 and the office note which is marked as Ex.R4. 15 In the cross-examination of R.W.1, he admits that the name of the driver in the charge sheet is shown as Lokesh @ Gurunath. He categorically admits that he has not met Lokesh @ Gurunath, but he volunteers that since there is no such person as Lokesh @ Gurunath, he could not contact him. He says that the Investigator of the company has contacted one person by name Gurunath over the phone.
16. The respondent also examined R. Santhos, who is the Investigating Officer of the Insurance Company as R.W.2 and he states in his affidavit that during the course of investigation, he came to know that Lokesh S/o. Ramaswamy was driving the Swaraj Mazda Canter on the date of the accident without holding any valid driving license but the owner/injured tried to conceal the above fact from the Company. He was subjected to cross- examination, wherein he admits that after 10 months of the accident, he submitted the investigating report. He further admits that he did not enquire any of the eye witnesses. It was suggested as to whether there is a person by name Lokesh @ Gurunath and the same was denied. However, he admits that in 16 the charge sheet there is a name called Lokesh @ Gurunath S/o. Eranna and Gurunath was holding driving license to drive the vehicles. He further admits that he has not met Gurunath or Lokesh, but he met the owner of the vehicle and he said that Lokesh @ Gurunath was driver of the vehicle on that day.
17. Having taken note of the materials placed before the Court, both oral and documentary evidence, no doubt in Ex.P7, the name of the driver is mentioned as Lokesh but the Insurance Company has mainly relied upon the evidence of R.W.1 and 2, wherein R.W.1 has categorically admitted that he did not meet either the owner or the said Lokesh. It is also important to note that in the cross-examination of R.W.2, who states that Lokesh is the son of Ramaswamy, has not collected any material to show that Lokesh is son of Ramaswamy and he also categorically admitted that he did not meet either Lokesh or Gurunath. Though the Insurance Company claims that both are distinct persons, in order to substantiate the same, no material is placed before the Court. The evidence of R.Ws.1 and 2 do not inspire the confidence of the Court to come to the conclusion that both 17 are distinct persons. It is also important to note that while filing charge sheet the name of the driver is shown as Lokesh @ Gurunath and the Insurance Company has not made any efforts to examine the investigating officer of the Company. The investigating officer is the right person to speak as to whether the driver was Lokesh @ Gurunath or not and also no effort has been made by the Insurance Company to prove the same. Mere taking the defence that driver has been implanted is not enough to come to the conclusion that the same has been proved. Hence, I am of the opinion that the Tribunal has not committed any error in coming to the conclusion that the Insurance Company has not substantiated its defence that driver has been implanted. In the absence of corroborative piece of evidence to prove the fact that both are distinct and individual persons, this Court cannot form its opinion in coming to the other conclusion that the Tribunal has erred in fastening the liability on the Insurance Company. Except relying upon the report of the investigator, which is marked as Ex.R3 and contention being taken that both are different persons, the very investigator himself in the cross-examination categorically admits that he has 18 not met either Lokesh or Gurunath. When such being the case, the evidence of the investigator also cannot be believed and hence, I am of the opinion that the Tribunal has not committed an error in coming to the conclusion that the Insurance Company has not substantiated the defence which has been taken in the written statement. In view of the discussions made above, I am of the opinion that Insurance Company has failed to prove its contention and hence, the appeal filed by the Insurance Company also fails. Hence, I answer point No.1 in the negative. POINT NO.2:-
18. The very contention of the claimants in the appeal is that the deceased Ramaswamy was earning Rs.13,000/-per month by jaggery business and in order to substantiate the same, the appellants have relied upon the document Ex.P17 income tax returns for the year 2001-2002 for the assessment year 2002-2003 and 2003-2004, the income from profession or business is shown as Rs.60,198/- and Rs.58,213/- respectively. Taking the average income of the deceased for the two assessment years, it would come to Rs.60,000/-. Hence, the 19 Tribunal ought to have taken the income of the deceased as Rs.5000/- per month. The income tax returns also discloses the date of birth of the deceased as 02.03.1957 and hence, the Tribunal has rightly taken the age of deceased as 49 years in paragraph No.11 of the judgment while calculating the loss of dependency. Taking the income of the deceased as Rs.5,000/- per month and by adding 25% (Rs.5000x25/100=Rs.1,250), the same would comes to Rs.6,250/-. After deducting 1/3rd towards personal expenses (Rs.6250x1/3=Rs.2,083) and applying the relevant multiplier as 13, the loss of dependency would comes to Rs.6,250-2,083=Rs.4167x12x13=Rs.6,50,052/-.
19. In view of the Judgment of the Apex Court in National Insurance Company Limited v. Pranay Sethi and Others reported in (2017) 16 SCC 680, the claimants are entitled for a compensation of Rs.70,000/- under the conventional heads. Though the learned counsel appearing for the claimants would contend that the claimants are also entitled for compensation as per the decision of Magma's case, the said judgment being delivered by two Judges, the principles laid 20 down in the case of Pranay Sethi stated supra which is delivered by five judges holds good.
20. The Tribunal also awarded an amount of Rs.2,82,000/- under the head of 'medical expenses before death', based on the documentary proof and hence, it does not require any enhancement. However, taking into note of the fact that the injured was in hospital for a period of 55 days and no compensation is awarded for the same, the accident is of the year 2006 and claimants would have spent money for expenses, it is appropriate to award an amount of Rs.30,000/-. In all the claimants are entitled for a compensation of Rs.10,87,052/- as against Rs.7,74,000/-. Accordingly, I answer point No.2 in the affirmative.
21. In view of the discussions made above, I proceed to pass the following :-
ORDER
(i) The appeal in M.F.A.No.3062/2009 filed by the claimants is allowed in part.21
(ii) The appeal in M.F.A.No.7083/2009 filed by the Insurance Company is dismissed.
(iii) The judgment and award dated 01.01.2009 passed in M.V.C.No.7536/2006 on the file of the MACT, Bengaluru SCCH-14 is modified by granting compensation of Rs.10,87,052/- as against Rs.7,74,000/- with interest at the rate of 6% per annum from the date of petition till realization.
(iv) The respondent-Insurance Company is directed to pay the amount within 8 weeks from the date of receipt of copy of this order.
(v) Registry is directed to transmit the Records to the concerned Tribunal, forthwith.
(vi) The appropriation made by the Tribunal shall remain unaltered.
(vii) The office is directed to transfer the amount in deposit to the Tribunal forthwith.
Sd/-
JUDGE PYR