Bangalore District Court
A. Hanumakka vs B. Ravi on 19 April, 2024
KABC020002722020
BEFORE THE CHIEF JUDGE, COURT OF SMALL CAUSES,
MEMBER PRL.MOTOR ACCIDENT CLAIMS TRIBUNAL AT
BENGALURU
DATED THIS THE 19th DAY OF APRIL 2024
PRESENT : Smt. B.V. RENUKA, B.Sc., L.L.B.
MEMBER, PRL. M.A.C.T.
M.V.C. No. 104/2020
PETITIONERS: 1. A. Hanumakka,
Wife of late Sriramulu,
Aged about 44 years.
2. K.Mahesh (Kathi Mahesh),
Son of late Sriramulu,
Aged about 21 years.
3. K.T.Harish (Kathi Harish),
Son of late Sriramulu,
Aged about 24 years.
4. Ms. Kathi Bhargavi,
D/o. late Sriramulu,
Wife of Naresh,
Aged about 25 years.
All are residents of 4/82,
Rekula Kunta, Madakashira Taluk,
Ananthapur District,
Andhra Pradesh.
(Represented by Sri Amarnatha M.J.,
Advocate)
SCCH-1 2 MVC No.104/2020
-Vs-
RESPONDENTS:1. B. Ravi,
Son of P. Balaram,
Aged major,
Resident of No.15,
5th cross, Magadi Road,
Bangalore -560 023.
(Owner of the vehicle Maruthi
Swift Dzire Tour No.KA-02-AG-1786)
(Exparte)
2. Tata AIG General Insurance Company
Limited,
No.69, III Floor, J.P. and Jambukeshwar
Arcade, Millers Road,
Bangalore.
(Insurer of the vehicle Maruthi Swift
Dzire Tour bearing Regn. No.KA-02-AG-1786)
(Insurance policy No.015917637600
Valid from 15.12.2018 to 14.12.2019)
(Represented by Sri Muralidhar
Negavar, Advocate)
*******
JUDGMENT
This claim petition is filed by the petitioners under Section 166 of the of the Motor Vehicles Act, 1989 claiming compensation of Rs.50,00,000/- along with interest from the respondents on account of the death of one Sriramulu, SCCH-1 3 MVC No.104/2020 who is the husband of the first petitioner and the father of the petitioners No.2 to 4 in a road traffic accident.
2. Briefly stated the case of the petitioners is as follows:
That on 03.09.2019, at about 07.45 p.m., while the deceased was a pillion rider on a Motorcycle bearing registration No.AP-39-SV-9869 along with a rider from Valmiki circle to their house and when they reached near Old Karnataka Bank, Madakashira town, at that time, the driver of Maruthi Swift Dzire Car bearing Reg. No.KA-02- AG-1786 came from behind and dashed to the Motorcycle of the deceased in which he was a pillion. Due to the impact, the deceased fell down and sustained grievous injuries . He took treatment in Madakashira Government hospital, Hindupur Government hospital and NIMHANS, but on 05.09.2019 deceased succumbed to the injuries in NIMHANS hospital. A case was registered against the driver of the Maruthi Swift Dzire Car bearing Reg. No.KA- 02-AG-1786 in Crime No.136/2019 at Madakashira Police Station. Hence, this petition for compensation. SCCH-1 4 MVC No.104/2020
3. In response to the notice, the respondent No.1 has remained absent and hence, he was placed exparte.
The respondent No.2 has appeared before the Court through its Counsel and has filed written statement by denying the petition averments as false. The respondent No.2 had issued a commercial vehicle package policy bearing No.015917637600 to Maruthi Swift Dzire Car bearing Reg. No.KA-02-AG-1786 and the same was valid as on the date of accident and the liability is subject to the terms and conditions of the policy. A false complaint has been lodged against the insured vehicle after the lapse of 3 days of the alleged accident by twisting the facts by colluding with the respondent No.1 and concerned persons in order to get wrongful gain. The petition is bad for non- joinder of necessary parties such as owner and insurer of the motorcycle. The insured vehicle had no valid permit to ply on the alleged accident spot and the driver had no driving licence as on the date of accident and the same amounts to violation of policy conditions. The first respondent has not complied with the mandatory requirements of Section 134(c) of M.V.Act and Police have SCCH-1 5 MVC No.104/2020 not complied the mandatory requirements of Section 158(6) of M.V.Act. Hence, prays to dismiss the petition.
5. On the basis of the above pleadings, this Court has framed the following issues:
1. Whether the petitioners prove that the deceased succumbed to injuries in a Motor Vehicle Accident that occurred on 03.09.2019 at about 7.45 p.m. at Madakashira, Near N.T.R., Circle, Ananthapur District, Andhra Pradesh, within the jurisdiction of Madkashira Police Station on account of rash and negligent driving of the Maruthi Swift Dzire Car bearing Registration No.KA-02-AG-1786 by its driver when the deceased was proceeding as pillion rider in the Hero Glamour two wheeler bearing Reg. No.AP-
39-SV-9869?
2. Whether the petitioners are entitled for compensation? If so, how much and from whom?
3. What order ?
6. On behalf of the petitioners, the first petitioner is examined as PW-1 and got marked Exs.P.1 to P.19. On the other hand, the second respondent has examined its official as RW.1 and also examined three witnesses as RWs 2 to 4 and got marked documents as Exs.R.1 to R.11.
7. Heard the arguments on both sides.
SCCH-1 6 MVC No.104/2020
8. My findings on the above issues are as follows:
Issue No.1 ... In the Affirmative, Issue No.2 ... Partly in affirmative, compensation of Rs.16,81,836/- from respondents 1 & 2, Issue No.3 ... As per final order for the following:-
REASONS
9. Issue No.1 :- The petitioners in order to prove this issue are relying upon the oral evidence of PW.1 and also documentary evidence as per Exs.P.1 to P.6 such as FIR, complaint, chargesheet, PM Report, Inquest Mahazar and sketch. PW.1 in his affidavit evidence has narrated the manner in which his father met with an accident and accident was due to the rash and negligent act on the part of the driver of the Swift Car bearing registration No.KA-02- AG-1786. The first respondent being the owner of the said car has remained exparte. The second respondent being the insured of the said car has filed the written statement denying the involvement of the insured car itself in the alleged accident by contending that a false complaint has been lodged against the insured vehicle after the lapse of three days of alleged accident in collusion. The second respondent is relying upon the evidence of its official as SCCH-1 7 MVC No.104/2020 RW.1 and also three witnesses who are the Superintendent of RTO, Medical Record Officer of NIMHANS Hospital and Investigating Officer as RWs 2 to 4. The second respondent is also relying upon the IMV report, MLC extract, seizure panchanama and statement of eye-witness as per Ex.R.4, R.8, R.10 and R.11. Let us consider the evidence placed by the parties to decide this issue.
10. PW.1 is the son of the deceased Sriramulu and admittedly, he has not seen the accident. Even the petitioners have not examined any eye-witness to the accident. They are mainly relying upon the police documents to prove this issue. As per PW.1, on 03.09.2019 at about 7.45 p.m., when his father was a pillion rider on a motorcycle bearing registration No.AP-39- AV-9869 ridden by his brother-in-law on the extreme left side of the road and when they reached near NTR circle, at that time, a Swift car bearing registration No.KA-02-AG- 1786 driven by its driver at high speed and in a rash and negligent manner, suddenly came and dashed against the motorcycle from behind and due to the impact, his father fell down and sustained grievous injuries and though he SCCH-1 8 MVC No.104/2020 was shifted to Madakashira Government Hospital and then to Hindupura Government Hospital and then to NIMHANS, Bengaluru, but he succumbed to the injuries on 05.09.2019.
11. FIR and the complaint as per Exs.P.1 and P.2 disclose that on the basis of the complaint lodged by one H.Naresh, a criminal case was registered against the driver of an unknown car. Accident occurred on 03.09.2019, but the complaint was lodged on 06.09.2019. Thus, there is delay of three days in lodging the complaint. Ex.P.2(a) is the translation of Ex.P.2, wherein the complainant has stated that as the deceased was taking treatment in NIMHANS hospital and as he succumbed to the injuries on 05.09.2019, on the next day i.e., on 06.09.2019 he has lodged the complaint to the police. Even PW.1 in his cross- examination has deposed that immediately after the accident, as he was in the hospital, there was delay in lodging the complaint. He has also deposed that as all the relatives were concentrating on the health of the deceased, Naresh also could not lodge the complaint immediately. The complainant is no other than the rider of the SCCH-1 9 MVC No.104/2020 motorcycle in which the deceased was a pillion rider. The complainant is the son-in-law of the deceased. As such, it can be said that the complainant was with the deceased at the time of accident.
12. The contents of complaint disclose that immediately after the accident, the complainant and others have shifted the deceased to Government Hospital, Madakashira and then the deceased was shifted to Government Hospital, Hindupura and then the deceased was referred to NIMHANS Hospital, Bengaluru. That means, after the accident, all along the complainant was with the deceased and as such, even he was not able to lodge the complaint. Hence, by considering that the complainant and other family members of the deceased were engaged in providing treatment to the deceased after the accident, they were not able to lodge the complaint on the date of accident. The family members of the deceased have given much priority to the treatment of the deceased rather than to visit the police station to lodge the complaint. As such, the reasons assigned by the complainant enables the court to hold that there was delay SCCH-1 10 MVC No.104/2020 in lodging the complaint on account of providing treatment to the deceased and only after the death of the deceased, complaint was lodged.
13. The sketch-Ex.P.6 reveals the state of affairs at the accident spot. As per Ex.P.6, the place of accident is on the left side of Madhugiri-Hindupura road. The police documents disclose that on the date of accident, the deceased and the rider of the motorcycle were moving from the side of Hindupura towards Madhugiri and at Madakashira, accident has occurred. Though in the sketch-Ex.P.6, the movement of the vehicles involved in the accident is not shown, but, from the contents of the complaint and the chargesheet, it can be said that both the motorcycle and the car in question were moving in the same direction. As per PW.1 and the complainant, the driver of an unknown car has hit the motorcycle from behind without blowing the horn. Thus, Ex.P.6 supports the case of the petitioners.
14. PM Report and the Inquest mahazar as per Exs.P.4 and P.5 disclose that the death of the deceased SCCH-1 11 MVC No.104/2020 was due to severe traumatic brain injury causing cardiac respiratory arrest. These documents clearly establish that the death of the deceased was caused on account of severe traumatic brain injury. At the time of preparing the sketch and also at the time of postmortem of the dead body and inquest mahazar, the number of the car which caused the accident to the deceased, was not yet known, since the Investigation in this regard was under progress.
15. On perusal of the complaint, it is noticed that the colour and type of the vehicle which caused accident to the deceased is mentioned in it, but its number is not mentioned. As per the complainant, the vehicle which caused the accident to his motorcycle was a white colour car. According to the complainant, the driver of the car fled away from the spot without stopping the car. Such being the case, it can be said that it was not possible for the complainant to note down the number of the car which caused accident. Moreover, the car which was moving on the back side of the motorcycle of the complainant has hit the motorcycle from back side. As such, the complainant was not able to see the number of the car even earlier to SCCH-1 12 MVC No.104/2020 the accident. The official of the second respondent who is examined as RW.1 has deposed that a false case has been filed in collusion after the lapse of three days of accident and the insured car has been implicated in collusion illegally and high handedly after the lapse of three months after the accident for wrongful gain. RW.1 in his cross- examination has admitted that he has given evidence on the basis of the records, but he has no personal knowledge about the accident. He also admits that on completion of investigation, chargesheet is filed against the driver of the insured vehicle. But, according to RW.1, in the FIR there is no reference regarding the insured vehicle.
16. The second respondent has also summoned the Medical Record Officer of NIMHANS hospital and he is examined as RW.3 and he has produced MLC extract and the case sheet as per Exs.R.8 and R.9. In Ex.R.8, the history of RTA is shown as "Bike hit by car from behind on 03.09.2019 at 7.30 p.m., at Madakashira". Even in MLC extract-Ex.R.8, the number of the car which hit the bike is not mentioned. However, from Ex.R.8, it is clear that immediately after the accident, the deceased was shifted to SCCH-1 13 MVC No.104/2020 Government Hospital, Madakashira and then to Government Hospital, Hindupura and from that hospital, the deceased was referred to NIMHANS Hospital. As the deceased was admitted to NIMHANS hospital for treatment after the accident, it can be said that the reason assigned by the petitioners for delay in lodging the complaint has to be accepted as genuine reason.
17. PW.1 in his cross-examination has admitted that in the complaint it is mentioned that 'dashed by unknown vehicle'. He has also deposed that he has not given any further statement mentioning the number of the car which caused the accident. Except these versions of PW.1 in the cross-examination, nothing worth is elicited from his mouth regarding the false implication of the insured car in accident by the petitioners in collusion with the police and the owner. Merely because in the complaint and also in the MLC extract, the number of the car which caused accident is not mentioned, whether the false implication of the insured car as contended by the second respondent can be inferred or not is the point to be considered now. SCCH-1 14 MVC No.104/2020
18. In order to decide the said point, the evidence of RW.4 and documents such as seizure panchanama and statement of witness at Exs.R.10 and R.11 assumes much importance. RW.4 is the Investigating Officer who was summoned by the second respondent counsel. As per the evidence of RW.4, he has verified the investigation made by an earlier Investigation Officer i.e., HC-2131-Muthyalanna and then he filed chargesheet against the driver of the car bearing registration No.KA-02-AG-1786. He has also deposed that during the investigation conducted by an earlier Investigating Officer, statement of one eye-witness by name A.Lakshminarasappa/LW.6 was recorded and as per the statement of eye-witness, the number of the vehicle which caused the accident was got known. Thus, from the evidence of RW.4, it is evident that chargesheet was filed by RW.4 on the basis of the statement given by an eye- witness A.Lakshminarasappa against the driver of the car bearing registration No.KA-02-AG-1786. This witness was treated as hostile by the second respondent counsel and he was cross-examined by the said counsel. During his cross- examination, RW.4 has produced seizure panchanama and SCCH-1 15 MVC No.104/2020 statement of LW.6 as per Ex.R.10 and R.11. RW.4 in his cross-examination has deposed that earlier Investigation Officer has seized Maruti Swift Dzire car bearing registration No.KA-02-AG-1786 under Ex.R.10 and its translation is at Ex.R.10(a). Even he has deposed that as per Ex.R.10, after receipt of the notice by the Investigating Officer, the vehicle was produced by the driver and at that time, the driver was arrested.
19. Ex.R.11 and R.11(a) is the statement of LW.6- A.Lakshminarasappa and translation of Ex.R.11. The police mainly on the basis of Ex.R.11 have come to the conclusion regarding the registration number of the car which caused accident to the deceased. RW.4 in his cross-examination has deposed that as per the statement of LW.6, he is the native of Rekulakunta village and deceased also belongs to Rekulakunta village, but he used to stay at Madakashira. RW.4 has denied that the complainant and LW.6 are relatives as per the averments in the complaint. But, nowhere in the complaint, the complainant has stated the name of LW.6 and the SCCH-1 16 MVC No.104/2020 relationship between him and LW.6. As such, this suggestion made to RW.4 regarding the relationship of complainant and LW.6 cannot be believed.
20. RW.4 has also denied that only to implicate the insured vehicle, statement of LW.6 was created and if LW.6 was an eye-witness to the accident, he would have immediately informed about the involvement of the vehicle. It is noticed that Ex.R.11 is dated 08.09.2019. That means, after the lapse of five days of the accident, the statement of eye-witness/LW.6-A. Lakshminarasappa was recorded by an earlier Investigating Officer. Ex.P.11(a) is a case diary dated 08.09.2019 which contains the translation of Ex.R.11. As per the contents of Ex.R.11(a), on the date of accident, LW.6 came to his village Rekalakunta and after taking store rice, at about 6.30pm., he left his village in an auto with an intention to go to Bengaluru and came to Madakashira town at about 7.40 p.m., and he was waiting near Madhugiri circle and at that time, one white colour car came from Pavagada side in a rash and negligent manner at high speed and dashed SCCH-1 17 MVC No.104/2020 against the motorcycle from back side and as a result, the rider and pillion rider fell down and though the driver of the car slowed down the car, but on observing the gathering of the mob who tried to stop the car, he fled away from the spot along with the car without stopping due to fear and he also tried to stop the car and observed the registration number of the car and its driver. Though Ex.R.11(a) discloses that the deceased and LW.6 are from the same village, but they are not relatives as suggested to RW.4. LW.6 in his statement has also stated that he has noted down the registration number of the car as KA-02- AG-1786 in a white paper chit and he can identify the driver. RW.4 in his cross-examination has deposed that an earlier Investigating Officer has not recorded the further statement of LW.6 and even he or an earlier Investigating Officer have not recorded the further statement of the complainant after identifying the vehicle. Merely because, earlier Investigating Officer or RW.4 have not recorded the further statement of LW.6 and the complainant, whether Ex.R.11 can be disbelieved is the point to be considered now.
SCCH-1 18 MVC No.104/2020
21. In Ex.R.11(a), LW.6 has stated that on 08.09.2019 he came to his village and at that time, he met PW.1 and when he enquired about the health condition of the deceased, he came to know that the deceased died due to accidental injuries and at that time, he informed PW.1 about the registration number of the car which caused the accident to the deceased and he came to the police station and informed the registration number of the car to the police. Ex.R.11 is the statement given by an eye-witness/LW.6 before an earlier Investigating Officer on 08.09.2019. Except making suggestions to RW.4 by the second respondent counsel, he has not chosen to summon the driver or the owner of the car in question to prove that the insured car was not at all involved in the accident, but it has been falsely implicated by the petitioners in collusion with the police. In the absence of the evidence of the driver or the owner of the insured car, the statement of LW.6 as per Exs.R.11 and R.11(a) assumes much importance, since on the basis of the said statement, further investigation was conducted by the police by seizing the insured car SCCH-1 19 MVC No.104/2020 under seizure panchanama as per Ex.R.1- and then filing chargesheet against the driver of the said car.
22. Though PW.1 in his cross-examination has deposed that there is no impediment for him to adduce the evidence of eye-witness to the accident, but he has not chosen to summon the said eye-witness. Even the second respondent except summoning RW.4, has not chosen to summon LW.6-A.Lakshminarasappa, to disprove the case put forth by the petitioners. As such, only on the available materials on record, this court has to arrive at a conclusion regarding the involvement of the insured vehicle in the accident or not. Though RW.4 was summoned by the second respondent, but he has not supported the case of the second respondent as to non-involvement of the insured car in accident. On the other hand, the evidence of RW.4 helps the petitioners to prove regarding occurring of the accident due to the rash and negligent act on the part of the driver of the car bearing registration No.KA-02- AG-1786. Even some suggestions were made to RW.4 that even though he came to know that as per the hospital SCCH-1 20 MVC No.104/2020 records, the deceased was riding the motorcycle, but in order to help the petitioners, without ascertaining the true facts, he has filed the chargesheet by mentioning the deceased as a pillion rider. This suggestion was denied by RW.4. In support of this suggestion, the second respondent is relying upon the evidence of RW.3 and also the MLC extract as per Ex.R.8. In Ex.R.8, though it is mentioned that at the time of accident, injured was travelling in a two wheeler, but subsequently it is mentioned that the deceased was a rider of the two wheeler in Column No.8 of Ex.R.8.
23. PW.1 in his cross-examination has deposed that at the time of admitting his father to NIMHANS hospital, history of injury was provided as 'accident occurred while travelling in a bike'. The same has been mentioned in Column No.6 of Ex.R.8. But, while recording the category of the injured in Column No.8 in Ex.R.8, it is shown that the deceased was a two wheeler rider. This entry in Ex.R.8 is contrary to the contents of the complaint-Ex.P.2 and also the statement of eye-witness at Ex.R.11 and Ex.R.11(a). RW.4 in his cross-examination has deposed SCCH-1 21 MVC No.104/2020 that he has not verified the MLC of NIMHANS hospital, by stating that it was the duty of the earlier Investigating Officer to verify the initial hospital records. Nowhere in the written statement, the second respondent has contended that at the time of accident, the deceased was a rider of the motorcycle and not a pillion rider. Even in the evidence of RW.1, he has not stated that the deceased was a rider of the motorcycle on the date of accident and he was not a pillion rider.
24. It is noticed that in the written statement and also in the evidence of RW.1, the main contention raised by the second respondent is regarding non-involvement of the insured vehicle in accident and also about the false implication of the insured vehicle by the petitioners in collusion with the police. Such being the case, only on the evidence of RW.3, the second respondent now cannot contend that the deceased was the rider of the motorcycle on the date of accident when the second respondent has seriously disputed the involvement of the vehicle in accident. As the complaint and also the statement of LW.6 at Ex.P.2, P.2(a), Ex.R.11 and R.11(a) discloses that the SCCH-1 22 MVC No.104/2020 deceased was a pillion rider on the motorcycle ridden by the complainant as on the date of accident, I am of the opinion that only on the stray entry in Ex.R.8, it cannot be said that the deceased was the rider of the motorcycle. Moreover, as stated above, the second respondent has not chosen to place the evidence of the driver or the owner of the insured car to believe its contention. Even the second respondent has not chosen to summon the person who has written the contents of Ex.R.8. Therefore, in the absence of the evidence of the person who has written Ex.R.8, only on the stray entry in Ex.R.8, the suggestions made to RW.4 that on the date of accident, the deceased was a rider of the motorcycle, cannot be believed.
25. Ex.R.10 is dated 08.12.2019. Under Ex.R.10, the police have seized the car bearing registration No.KA- 02-AG-1786, by drawing the mahazar when it was traced out by an earlier Investigating Officer, in front of the house of C.M. Chandrashekhar at Kalipi Village, Andhra Pradesh District. Ex.R.10(a) is the translation of Ex.R.10, wherein it is stated that earlier Investigating Officer i.e., HC- Muthyalanna had been to Kalipi Village in search of an SCCH-1 23 MVC No.104/2020 unknown car and at that time, a person who was cleaning the car, made an attempt to run away from the spot after seeing the police jeep and then that person was caught by the police and on enquiry, they came to know that he was the driver of the car bearing registration No.KA-02-AG- 1786 as on the date of accident and he had agreed to purchase the said car from its owner by name Ravi for a sum of Rs.5,31,230/-, by giving an advance of Rs.1,00,000/- to the owner and he has obtained the possession of the vehicle, and on the date of accident, while C.M.Chandrashekhar was driving the car, in order to avoid hit by a lorry which was coming from the opposite direction, he has hit the motorcycle from behind. Thus, at Ex.R.10(a), the accused who was the driver of the car bearing registration No.KA-02-AG-1786 has given statement before the police by stating that he has caused the accident by driving his car bearing registration No.KA- 02-AG-1786 and by hitting it to the motorcycle.
26. PW.1 in his cross-examination has pleaded ignorance as to the seizure of the car by the police. Moreover, Ex.R.10 discloses that the police have seized the SCCH-1 24 MVC No.104/2020 car in question after three months of the accident, on the basis of the registration number furnished by an eye- witness in his statement and also after tracing out the car in question during investigation. Merely because there was delay of three months in seizing the insured car, the claim of the petitioners cannot be doubted since the Investigating Officer has seized the car after tracing it during his investigation. Therefore, from Ex.R.10 and R.10(a) also, it can be safely held that the driver of the car bearing registration No.KA-02-AG-1786 has caused the accident to the deceased, resulting in his death.
27. RW.1 has produced IMV report as per Ex.R.4. In Ex.R.4, it is shown that no damages were found on the insured car. After seizure of the car by the Investigating Officer on 08.12.2019 under Ex.R.10, the IMV Inspector has inspected the car on 11.12.2019. Merely because there are no damages found on the insured car, it is not possible to infer non-involvement of the said car in accident, since the car was inspected after three months of the accident and there is possibility of repairing the damages caused to the car by the car owner. The SCCH-1 25 MVC No.104/2020 chargesheet-Ex.P.3 was filed by RW.4 against the driver of the car bearing registration No.KA-02-AG-1786, after detailed investigation. Even in the chargesheet, it is alleged that due to the rash and negligent act on the part of the driver of the car bearing registration No.KA-02-AG- 1786, the deceased met with an accident resulting in his death. This chargesheet was not challenged by the driver of the car in question. Even the respondents have not chosen to summon the driver of the car to prove the non- involvement of the said car in accident. The conduct of the driver of the car in not challenging the chargesheet itself is sufficient to draw an adverse inference against him that, as the accident took place due to his negligence, he has remained silent. Therefore, only on the evidence of RW.1, the contention of the second respondent cannot be believed.
28. The learned Counsel for the petitioner during his arguments, has relied upon the following decisions and Judgments:
1. 2009 ACJ 287 (National Insurance Co.Ltd. Vs. Pushpa Rana & Ors).SCCH-1 26 MVC No.104/2020
2.MFA No.4577/2016 c/w 4578/2016 & 4774/2016(MV) (The Manager, Shriram General Insurance Co.Ltd. Vs. Shamalamma & Others)
3. ILR 2003 KAR 493 (Mallamma Vs. Balaji & Others)
4. 2021(1) SCC 171 (Anita Sharma & Ors. Vs. New India Assurance Co.Ltd. & Anr.) and
5. Civil Appeal No.3250/2023 (Ashalata Suryakant Patil & Ors.Vs. New India Assurance Co.Ltd. & Anr.) In the decisions at Sl.Nos.1 and 3, their Lordships have held that strict rules of Evidence Act need not be applied in a case of Motor Vehicle Accident to prove rash and negligent driving. The certified copies of criminal court, such as FIR, recovery memo and mechanical inspection report of the vehicle are the documents of sufficient proof to reach the conclusion that the driver was negligent and the proceedings under M.V. Act are not akin to the proceedings in a civil suit and hence, strict rules of evidence are not required to be followed in this regard.
29. In the decision at Sl.No.4, their Lordships have held that in Motor Accident claims, standard of proof is one of preponderance of probabilities, rather than beyond reasonable doubt. Approach and role of courts while examining evidence in accident claim cases ought not to be SCCH-1 27 MVC No.104/2020 to find fault with non-examination of best eye-witnesses, as may happen in a criminal trial, but instead should be only to analyse material placed on record by the parties to ascertain whether the claimant's version is more likely than not true.
30. In the Judgment at Sl.No.2, His Lordship has observed that the claim before the Motor Accident Claims Tribunal is neither a criminal case nor a civil case, since in a criminal case, in order to have conviction, the matter is to be proved beyond reasonable doubt, whereas in a civil case, the matter is to be decided on the basis of preponderance of evidence. His Lordship has observed that in the claim petition before the MACT, the standard of proof is much below than what is required in criminal cases as well as civil cases and as the enquiry before the Tribunal is a summary enquiry, it does not require strict proof of evidence.
31. In the Judgment at Sl.No.5, His Lordships have observed that the Insurance Company ought to have examined the driver of the offending vehicle with regard to SCCH-1 28 MVC No.104/2020 the accident by taking steps to secure him, since his evidence could have clinched the issue. In the present case also, the second respondent has not chosen to summon the driver of the insured car by taking steps to secure his presence. In the absence of the evidence of the driver of the insured car, I am of the opinion that the investigation conducted by the Investigating Officers, cannot be doubted and even the claim of the petitioners cannot be doubted only on the basis of the contention of the second respondent, which stands unproved. In the said case also, the insurance company has taken a contention regarding non-involvement of the insured vehicle in accident. In that case, the claimants have examined the Investigating Officer who filed the chargesheet regarding the involvement of the insured vehicle. In that case also, initially the details of the vehicle was not mentioned in the FIR and only during the course of investigation, the vehicle had been identified and chargesheet had been filed. In the present case also, initially FIR was filed against an unknown vehicle and thereafter, during investigation, the vehicle had been SCCH-1 29 MVC No.104/2020 traced out on the basis of the statement of eye-witness and then chargesheet had been filed.
32. Thus, in all these decisions, their Lordships have held that as the proceedings before the MACT in a claim petition is a summary enquiry, strict proof of evidence to prove rash and negligent driving is not required, as the claim petition is neither a criminal case nor a civil case. By applying the ratio laid down in the above decisions to the present case on hand, I am of the opinion that, on the basis of the police documents which establishes the occurrence of the accident due to the rash and negligent act on the part of the driver of the insured car and also on the basis of the oral evidence placed before the court, the case of the petitioners appears to be probable rather than the case put forth by the second respondent. As such, it can be safely held that the petitioners have established their case by preponderance of probabilities and some minor technicalities have to be overruled since MV Act is a social legislation.
SCCH-1 30 MVC No.104/2020
33. The learned Counsel for the second respondent during his arguments, has relied upon the following Judgments:
1. MFA No.201689/2016 (Mahadevi & Ors. Vs. Shivaputra & Anr.)
2. MFA No.7025/2011 (Arathy & Anr. Vs. S.M.Umesha & Anr.)
3. MFA No.11358 c/w MFA 1397/2009 (Bajaj Allianz General Insurance Co.Ltd. Vs. B.R.Basavaraj & Ors.)
4. MFA 21203/2011 c/w 21204 & 21205/2011 (The Divisional Manager, National Insurance Co.Ltd. Vs. Dyamavva & Ors.), and
5. MFA 4282/2015 (National Insurance Co.Ltd. Vs. Rathnamma & Ors.)
34. I have gone through the Judgments relied upon by the second respondent counsel, but they are not applicable to the facts and circumstances of the present case. In the Judgment at Sl.No.1, the alleged offending vehicle was produced before the police voluntarily by the younger brother of the deceased. As such, His Lordship has taken the view that insured vehicle was falsely implicated by the claimants to claim compensation by implicating the vehicle of their close relative. But, in the present case, the police have seized the offending vehicle SCCH-1 31 MVC No.104/2020 from the driver of the car in question and not from the relative of the deceased.
35. In the Judgment at Sl.No.2, earlier it was pleaded in the complaint that accident might be due to crashing of the motorcycle to the metal guard which was on the side of the road or due to accident by unknown vehicle and only after one and half months from the date of the accident, the car has come into picture in the seizure mahazar. In this context, His Lordship has observed that when the involvement of the insured vehicle in the accident is disputed, it is for the claimants to place acceptable evidence to prove its involvement and to prove that the accident arose out of the use of the insured vehicle, but filing of complaint to the police, or filing of chargesheet by the police, by itself is no of proof of involvement of the vehicle in question. In the present case, as discussed above, the claimants have placed acceptable evidence to prove the involvement of the insured car in accident and as such, the said Judgment is not applicable to the present case on hand.
SCCH-1 32 MVC No.104/2020
36. In the Judgment at Sl.No.3 also, His Lordship has observed that the claimant has not placed any acceptable evidence to establish the involvement of the vehicle in question as well as the negligence on the part of the rider of the vehicle in question and even some material facts have been suppressed by the claimant regarding his treatment. But, in the present case, the petitioners have placed acceptable evidence which proves their case. Therefore, this Judgment is also not applicable to the present case on hand.
37. In the Judgment at Sl.No.4, His Lordship has observed that the involvement of the vehicle was not established by the claimants, but implication of the vehicle in accident has been established and as such, alleged involvement of the truck in question is nothing but the manipulation committed by the police at the instance of the claimants to benefit them. In the present case, as discussed above, this court has come to the conclusion that the petitioners have proved the involvement of the insured vehicle in accident by placing satisfactory evidence. Such being the case, the question of false SCCH-1 33 MVC No.104/2020 implication of the insured car in question do not arise. As such, this Judgment is not applicable to the present case on hand.
38. In the Judgment at Sl.No.5, Her Ladyship has observed that the evidence on record goes to show that the entire negligence was on the part of the deceased, since he was riding his motorcycle under the influence of alcohol and since he himself has hit against the stationed offending vehicle, resulting in accident. Even the facts and circumstances of the said Judgment differs from the facts and circumstances of the present case on hand. Hence, the said Judgment is not applicable to the present case on hand. Therefore, by considering the evidence placed on record and by considering the circumstances that are brought out in the evidence placed before the court, I am of the opinion that the petitioners have proved that the deceased met with an accident and succumbed to the accidental injuries in an accident caused by the driver of the car bearing registration No.KA-02-AG-1786, on account of his rash and negligent driving of the car. Accordingly, I answer Issue No.1 in the Affirmative.
SCCH-1 34 MVC No.104/2020
39. Issue No.2 : The petitioners claim that they are the wife and children of the deceased Sriramulu. In order to prove the relationship, they have produced the geneological tree and their Aadhaar Cards as per Exs.P.8 to P.13. These documents clearly establish that the petitioners are the wife and children of the deceased. Hence, it can be said that the petitioners are the legal heirs of deceased Sriramulu and they are entitled to claim compensation on account of death of the deceased.
40. PW.1 in his evidence has deposed that the deceased was working as a coolie and he was earning a sum of Rs.15,000/- per month and he used to contribute his entire earnings towards the maintenance and welfare of the family. Except the oral assertion of PW.1, there is no proof of avocation and income of the deceased. As such, the notional income of the deceased has to be taken into consideration as per Minimum Wages Act. As such, the average income of the deceased is taken at Rs.11,500/- per month. PW.1 has deposed that his father was aged about 50 years at the time of his death. In order to prove the age SCCH-1 35 MVC No.104/2020 of the deceased, PW.1 has produced the Aadhaar Card of the deceased as per Ex.P.9. In Ex.P.9, the date of birth of the deceased is shown as 05.03.1970. By considering this date of birth of the deceased, it can be said that the deceased was aged about 50 years as on the date of accident. Depending upon the said age, the applicable multiplier is 13, as per the decision reported in 2009 ACJ 1298 (Sarala Verma Vs. Delhi Transport Corporation).
41. In a case of Praney Sethi and others (2017 ACJ 2700(SC)), their Lordships have held as under:
"(A) Motor Vehicles Act (59 of 1988) S.166, S.168 - Compensation - Future prospects-
Determination - (1) Self employed or fix salaried deceased:- Deceased below 40 years, addition of 40%; between 40 to 50 years, addition of 25% and between 50-60 years, addition of 10% of established income to be made. (II) Deceased with permanent job -
deceased below 40 years, addition of 50%, between 40 to 50 years addition of 30% and between 50 to 60 years, addition of 15% of actual salary to income of deceased towards future prospects to be made.
As per the principles laid down by the Hon'ble Apex Court in the above decision, 25% of the personal income of the deceased has to be added towards future prospects, as deceased was aged between 40 to 50 years. 25% of the SCCH-1 36 MVC No.104/2020 present income of Rs.11,500/- is Rs.2,875/-. If the same is added to his personal income, it comes to Rs.14,375/- p.m. The petitioners No.1 to 4 are the wife and children of deceased. Therefore, 1/4th of the income of the deceased has to be deducted towards his personal expenses. Hence, 1/4th of Rs.14,375/- would be Rs.3,594/-. After deducting the same, the balance comes to Rs.10,781/- p.m., and annually, the income works out to Rs.1,29,372/-. As I have already discussed above, the multiplier applicable to the present case is 13. If we multiply the annual income of the deceased by the multiplier, the same works out to Rs.16,81,836/-. Hence, the petitioners are entitled to Rs.16,81,836/- under the head loss of dependency.
42. PW-1 has deposed that the petitioner No.1 is the wife and petitioners No.2 to 4 are the children of deceased Sriramulu. Hence, it can be safely held that the petitioners are entitled for compensation under the head of loss of estate, loss of consortium and funeral expenses. As per the ratio laid down by the Hon'ble Apex Court in 2017 ACJ 2700 (SC) (National Insurance Company Limited Vs Praney SCCH-1 37 MVC No.104/2020 Sethi and others), under the conventional heads, petitioners are awarded Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses and the petitioner No.1 being the wife, is entitled for spousal consortium of Rs.40,000/-.
43. As per the ratio laid down in the decision reported in (2018)18 SCC 130 ( Magma General Insurance Co.Ltd., Vs. Nanu Ram Alias Chuhru Ram and Others) loss of parental consortium has to be awarded to the petitioners to 2 to 4 being the sons and daughter of the deceased and they are entitled for loss of parental consortium at Rs.40,000/- each. Hence, the petitioners Nos.2 to 4 are awarded Rs.1,20,000/- towards loss of parental consortium.
44. The petitioners No.2 to 4 are the children of the deceased and they are majors. As per the evidence of PW.1, he is studying MBA and his younger brother Mahesh is pursuing Final Year Degree and the marriage of the 4 th petitioner was solemnized one year back and now she is in her matrimonial house. The petitioners No.2 and 3 are the SCCH-1 38 MVC No.104/2020 students at the time of accident and even the marriage of the 4th petitioner was not performed at the time of accident. Merely because the petitioners No.2 to 4 were majors at the time of accident, it cannot be said that they are not entitled for compensation in view of the Judgment in Civil Appeal Nos.242-243/2020 of Hon'ble Supreme Court of India (National Insurance Company Limited Vs. Birender and others). As such, the petitioners 2 to 4 are entitled to claim compensation on account of death of their father as his legal heirs.
45. Medical Expenses: PW1 has deposed that he has spent Rs.3 Lakhs towards hospital charges, transportation of dead body, funeral and obsequies ceremony. But, in support of his evidence, he has not produced any medical bills and prescriptions. However, the records disclose that the deceased was admitted to three hospitals and he has undergone treatment in the said hospitals for the accidental injuries. In the absence of the medical bills and prescriptions, it cannot be said that the petitioner has spent Rs.3 lakhs for the treatment of the deceased. However, by considering that the accident took place on SCCH-1 39 MVC No.104/2020 03.09.2019 and the deceased died on 05.09.2019 i.e., after three days of the accident, it can be said that the petitioners have spent some amount towards hospital charges, medicines, conveyance, nourishment and attendant charges. As such, I deem it just and proper to award Rs.30,000/- under the head medical expenses.
46. In view of the above said reasons, I am inclined to award compensation to the petitioners under the following heads:
Sl. Head of Calculation Amount/Rs
Compensation Rs.
i Monthly Income 11,500-00
Add: 25% future 2,875-00
prospects 14,375-00
Total
ii Deduction of 1/ 4th 14,375-00
of income of the 3,594-00
deceased towards 10,781-00
personal expenses
iii Annual income of 10,781x12
the petitioner 1,29,372
iv Compensation after 1,29,372x13 16,81,836-00
multiplier
applied
v Loss of estate 15,000-00
vi Funeral expenses 15,000-00
vii Loss of spousal 40,000-00
consortium to
SCCH-1 40 MVC No.104/2020
petitioner No.1 -wife
viii Loss of Parental Rs.40,000/- 1,20,000-00
consortium to each
petitioners No.2 to 4
ix Medical Expenses 30,000-00
Total 19,01,836-00
Thus, the petitioners are awarded compensation of Rs.19,01,836/- with interest at the rate of 6% p.a from the date of the petition till realisation.
47. So far as the liability is concerned, according to the petitioners, the first respondent is the owner and the second respondent is the insurer of the Maruti Swift Dzire car bearing registration No.KA-02-AG-1786. The first respondent has remained exparte. The second respondent in the written statement has contended that the insured vehicle had no valid permit to ply on the alleged accident spot and the alleged driver was not having valid and effective DL to drive the same and as such, the first respondent has willfully violated the terms and conditions of the policy and hence, the Company is not liable to indemnify the first respondent. In order to prove this contention, the second respondent has placed the evidence SCCH-1 41 MVC No.104/2020 of its official as RW.1 and also summoned the RTO and examined him as RW.2. RW.1 in his evidence has not stated about the driver of the insured car not holding valid DL to drive it as on the date of accident, as contended in the written statement. But, he has deposed only about the permit. According to RW.1, insured has allowed the vehicle to ply on the alleged place of accident without valid permit and thereby he has breached the terms and conditions of the policy. He has also produced the Insurance Policy and permit extract as per Exs.R.2 and R.3.
48. RW.2 who is the Superintendent in RTO Office at Bengaluru West, has also produced copy of the permit relating to the insured car as per Ex.R.6. According to RW.2, the said vehicle has got permit in between 01.08.2017 to 31.07.2022 through out Karnataka State, but they have not issued permit to ply the said vehicle outside Karnataka State. The documents on record disclose that the accident occurred at Madakashira, Roddam Mandal, Anantapura District, Andhra Pradesh SCCH-1 42 MVC No.104/2020 State. That means, accident has occurred outside the State of Karnataka. Exs.R.3 and R.6 disclose that the insured car had permit to ply the same through out Karnataka State and it was valid as on the date of accident. The materials on record disclose that the driver of the insured car had taken it outside Karnataka State and for that reason, the second respondent has raised the contention regarding the vehicle not holding permit outside Karnataka State.
49. RW.1 in his cross-examination has admitted that insured vehicle is a commercial vehicle and if a commercial vehicle is required to travel from one State to another State, in the check-post, temporary permit will be issued. RW.1 has deposed that with reference to the insured vehicle, they have enquired whether the insured vehicle owner had obtained temporary permit to travel beyond Karnataka at the time of accident, but they have not got any such temporary permission. He has also deposed that they have no document to show that they have enquired with reference to temporary permit. Though RW.1 has deposed that notice was issued to RC owner of the vehicle, SCCH-1 43 MVC No.104/2020 but he has not produced the copy of the said notice before the court. Even RW.1 has not produced any materials before the court to show that they have enquired with the concerned authority regarding obtaining of temporary permit by the owner of the insured car to travel beyond Karnataka.
50. Even the second respondent has not chosen to summon the driver of the car or the owner of the car in question to prove its contention, that the vehicle had no permit to ply at the place of accident on the date of accident. RW.1 has denied that at the time of accident, the RC owner of the vehicle had obtained temporary permit from check-post and it was brought to their notice. The RC owner of the vehicle i.e., the first respondent has remained exparte. Such being the case, it is for the second respondent to prove its contention regarding the permit by placing cogent evidence. But, except the oral assertion of RW.1, absolutely there are no materials before the court to support its contention.
SCCH-1 44 MVC No.104/2020
51. RW.2 in his evidence has deposed that if the vehicle is taken outside the State, it amounts to violation of permit. Even he has deposed that there is a provision for taking permit in the border check-post, but his office will not be informed if permission would have been taken by the RC owner of the vehicle in the border check-post. Such being the case, even the evidence of RW.2 is of no help to the second respondent to prove that the insured has allowed the vehicle to ply at the place of accident without valid permit. The evidence of RWs 1 and 2 makes it clear that if a commercial vehicle is required to travel from one State to another State, in the check-post temporary permit will be issued. But, the evidence of RWs 1 and 2 do not disclose whether the first respondent had obtained temporary permit to travel outside Karnataka at the time of accident.
52. RW.1 has deposed that, in this case private investigator was not appointed, but only documents were collected. If that is so, then the second respondent would have collected the information regarding obtaining of temporary permit to ascertain whether the insured vehicle SCCH-1 45 MVC No.104/2020 was plied without valid permit at the place of accident. But, the second respondent has not made any efforts to enquire whether the insured had taken any temporary permit in the check-post to ply his vehicle outside Karnataka. Hence, by considering all these aspects, I am of the opinion that only on the evidence of RWs 1 and 2, it is not possible to believe that the insured has allowed his driver to ply the vehicle outside Karnataka without valid permit. Even it is noticed that in the chargesheet, no offence has been charged against the accused or the owner of the insured vehicle as to plying the vehicle at the place of accident without valid permit. Even no suggestion was made to RW.4 regarding non-mentioning of the offence for plying the vehicle at the place of accident without valid permit in the chargesheet, since he has filed the chargesheet. By considering all these aspects, I am of the opinion that the second respondent except taking contention in the written statement, has not chosen to prove that the insured has allowed his driver to ply the insured vehicle at the place of accident without valid permit.
SCCH-1 46 MVC No.104/2020
53. The insurance policy at Ex.R.2 discloses that the insurance policy was issued to the first respondent in respect of the car in question and it was valid as on the date of accident. As such, the respondents No.1 and 2 are jointly and severally liable to pay compensation of Rs.19,01,836/- to the petitioners with interest at 6% per annum from the date of petition till the date of deposit in court. Accordingly, I answer Issue No.2 partly in the affirmative.
54. Issue No.3 : In view of my findings on issue Nos.1 and 2 and for the reasons stated therein, I proceed to pass the following: -
ORDER The claim petition filed by the petitioners is allowed in part with costs against the respondents No.1 and 2 awarding compensation of Rs.19,01,836/- (Rupees Nineteen lakhs One thousand Eight Hundred and Thirty Six only) with interest at 6% p.a., from the date of petition till the date of deposit in Court.SCCH-1 47 MVC No.104/2020
The respondents No.1 and 2 are jointly and severally liable to pay the compensation amount with interest to the petitioners. However, the respondent No.2, being the Insurance Company is directed to deposit the compensation amount in Court within 3 months from the date of this order.
The compensation amount is apportioned amongst the petitioners No.1 to 4 at the ratio of 55:15:15:15.
After deposit of the compensation amount, 50% share of the petitioners Nos.1 to 4 with proportionate interest shall be deposited in their respective names in any of the nationalized or scheduled bank of their choice for a period of 5 years. Remaining 50% with proportionate interest is ordered to be released to the petitioners Nos.1 to 4.
Advocate's fee is fixed at Rs.1,000/- . Draw an Award accordingly.
(Dictated to the Stenographer Gr.I, transcribed by her, corrected, signed and then pronounced by me in the Open Court on this the 19th day of April, 2024.) (B.V.RENUKA) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore.SCCH-1 48 MVC No.104/2020
ANNEXURES Witnesses examined on behalf of the petitioners:
P.W.1 : K.T. Harish Documents marked on behalf of the petitioners:
Ex.P.1 : Certified Copy of FIR Ex.P.2 : Certified Copy of Complaint
Ex.P.2(a) : Translated copy of complaint Ex.P.3 : Certified copy of Chargesheet Ex.P.4 : Certified Copy of PM Report Ex.P.5 : Certified Copy of Inquest Mahazar Ex.P.5(a): Translated Copy of Inquest Mahazar Ex.P.6 : Certified Copy of sketch Ex.P.7 : Certified copy of Death Certificate Ex.P.8 : Genealogical tree Ex.P.9 to Notarized copies of Aadhaar Cards P.13 :
Ex.P.14 : Notarized Copy of college ID Card Ex.P.15 : Notarized copy of Pan Card Ex.P.16 : Study cum conduct Certificate Ex.P.17 to Notarized copies of Pan Cards of P.19 : Petitioners No.2 to 4 Witnesses examined on behalf of the respondents :
RW.1 Shreyas Bhat RW.2 Sukandaraju RW.3 Rajanna S.K. RW.4 K. Devananda
Documents marked on behalf of the respondents:
Ex.R.1 Authorization letter
SCCH-1 49 MVC No.104/2020
Ex.R.2 Copy of InsurancePolicy
Ex.R.3 Permit Extract
Ex.R.4 Certified copy of IMV Report
Ex.R.5 Authorization letter
Ex.R.6 Copy of permit with reference to vehicle
bearing registration No.KA-02-AG-1786 Ex.R.7 Authorization Letter Ex.R.8 Certified copy of MLC extract Ex.R.9 Original Case file Ex.R.10 Certified copy of Seizure Panchanama Ex.R.10(a) Translated copy of Ex.R.10 Ex.R.11 Certified copy of Statement of LW.6 Ex.R.11(a) Translated copy of Ex.R.11 (B.V.RENUKA) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore.