Karnataka High Court
The Manager vs Smt Chaya W/O. Satish Latane on 4 July, 2024
Author: S G Pandit
Bench: S G Pandit
-1-
MFA No.100026/2021 C/W
MFA No.100259/2021,
MFA No.101043/2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 04TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.100026 OF 2021 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO.100259 OF 2021
MISCELLANEOUS FIRST APPEAL NO.101043 OF 2022
IN MFA NO.100026 OF 2021
BETWEEN:
THE MANAGER,
SHRIRAM GENERAL INSURANCE COMPANY LTD.,
S-5, 2ND FLOOR, MONARK CHAMBER,
INFANTRY ROAD, BANGALURU-01,
NOW REPRESENTED BY ITS
AUTHORIZED SIGNATORY.
- APPELLANT
(BY SRI S.K. KAYAKAMATH, ADVOCATE)
AND:
1. SMT. CHAYA W/O. SATISH LATANE,
Digitally signed AGE. 29 YEARS, OCC. HOUSEHOLD WORK,
by VINAYAKA B V R/O. VITHAL NAGAR, YALIHADALAGI,
Location: HIGH TQ. ATHANI, DIST. BELAGAVI.
COURT OF
KARNATAKA
2. KUMARI. ARATI D/O. SATISH LATANE,
AGE. 09 YEARS, OCC. STUDENT,
R/O. VITHAL NAGAR, YALIHADALAGI,
TQ. ATHANI, DIST. BELAGAVI.
RESPONDENT NO.2 SINCE MINOR
REPRESENTED BY NATURAL MOTHER
GUARDIAN RESPONDENT NO.1.
3. SRI RAMACHANDRA S/O. YASHWANT LATANE,
AGE. 59 YEARS, OCC. NIL,
R/O. VITHAL NAGAR, YALIHADALAGI,
TQ. ATHANI, DIST. BELAGAVI.
-2-
MFA No.100026/2021 C/W
MFA No.100259/2021,
MFA No.101043/2022
4. SMT. GANGUBAI W/O. RAMACHANDRA LATANE,
AGE. 55 YEARS, OCC. HOUSEHOLD WORK,
R/O. VITHAL NAGAR, YALIHADALAGI,
TQ. ATHANI, DIST. BELAGAVI.
5. SRI PINTU S/O. SADASHIV KADAM,
AGE. MAJOR, OCC. BUSINESS,
R/O. 1028. KADAM ONI, KHOTANATTI,
TQ. ATHANI, DIST. BELAGAVI.
- RESPONDENTS
(BY SRI B.SHARANABASAVA, ADVOCATE FOR R1 TO R4;
SRI. SANJAY S.KATAGERI, ADVOCATE FOR R5)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 10.06.2020 PASSED IN MVC
NO.1070/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE
AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ATHANI
AND ETC.,
IN MFA NO.100259 OF 2021
BETWEEN:
1. SMT. CHAYA W/O. SATISH LATANE,
AGE. 29 YEARS, OCC. HOUSEHOLD WORK,
2. KUMARI. ARATI D/O. SATISH LATANE,
AGE. 10 YEARS, OCC. STUDENT,
3. SRI RAMACHANDRA S/O. YASHWANT LATANE,
AGE. 60 YEARS, OCC. NIL,
4. SMT. GANGUBAI W/O. RAMACHANDRA LATANE,
AGE. 55 YEARS, OCC. HOUSEHOLD WORK,
ALL THE APPELLANTS ARE RESIDING AT
R/O. VITTHAL NAGAR, YALIHADALAGI,
TQ. ATHANI, DIST. BELAGAVI,
PIN CODE-591304.
(NOTE: SINCE THE APPELLANT NO.2 HEREIN
BEING MINOR IS REPRESENTED BY HER NEXT
FRIEND NATURAL GUARDING
MOTHER-APPELLANT NO.1)
- APPELLANTS
(BY SRI B.SHARANABASAVA, ADVOCATE)
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MFA No.100026/2021 C/W
MFA No.100259/2021,
MFA No.101043/2022
AND:
1. SRI PINTU S/O. SADASHIV KADAM,
AGE. MAJOR, OCC. BUSINESS,
R/O. HOUSE NO.1028. KADAM ONI,
KHOTANATTI, TQ. ATHANI, DIST. BELAGAVI,
PINCODE-591304.
(OWNER OF TRACTOR BEARING
REGD.NO. KA-23/TA-6423)
2. THE MANAGER,
SHRIRAM, GENERAL INSURANCE COMPANY LTD.,
S-5, 2ND FLOOR, MONARCH CHAMBERS,
INFANTRY ROAD, BANGALURU-560001.
(OWNER OF TRACTOR BEARING
REGD.NO. KA-23/TA-6423)
- RESPONDENTS
(BY SRI SANJAY S.KATAGERI, ADVOCATE FOR R1;
SRI S.K. KAYAKAMATH, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 10.06.2020 PASSED IN MVC
NO.1070/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE
AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ATHANI
AND PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,
IN MFA NO.101043 OF 2022
BETWEEN:
SRI PINTU S/O. SADASHIV KADAM,
AGE. 45 YEARS, OCC. BUSINESS,
R/O. HOUSE NO.1028. KADAM ONI,
KHOTANATTI VILLAGE, TQ. ATHANI,
DIST. BELAGAVI, PINCODE-591304.
(OWNER OF TRACTOR BEARING
REGD. NO.KA-23/A-6423)
- APPELLANT
(BY SRI SANJAY S.KATAGERI, ADVOCATE)
-4-
MFA No.100026/2021 C/W
MFA No.100259/2021,
MFA No.101043/2022
AND:
1. SMT. CHAYA W/O. SATISH LATANE,
AGE. 29 YEARS, OCC. HOUSEHOLD WORK,
2. KUMARI. ARATI D/O. SATISH LATANE,
AGE. 10 YEARS, OCC. STUDENT,
3. SRI RAMACHANDRA S/O. YASHWANT LATANE,
AGE. 60 YEARS, OCC. NIL,
4. SMT. GANGUBAI W/O. RAMACHANDRA LATANE,
AGE. 55 YEARS, OCC. HOUSEHOLD WORK,
ALL THE RESPONDENTS
HEREIN ARE RESIDING AT
R/O. VITTHAL NAGAR,
YALIHADALAGI, TQ. ATHANI,
DIST. BELAGAVI, PIN CODE-591304.
(NOTE: SINCE THE RESPONDENT NO.2
HEREIN IS MINOR,
REPRESENTED BY HER NEXT
FRIEND NATURAL GUARDING
MOTHER-RESPONDENT NO.1)
5. THE MANAGER,
SHRIRAM, GENERAL INSURANCE COMPANY LTD.,
S-5, 2ND FLOOR, MONARCH CHAMBERS,
INFANTRY ROAD, BANGALURU-560001.
(OWNER OF TRACTOR BEARING
REGD. NO.KA-23/A-6423)
- RESPONDENTS
(BY SRI B.SHARANABASAVA, ADVOCATE FOR R1 TO R4;
SRI S.K. KAYAKAMATH ADVOCATE FOR R5)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, amended act,
2018, AGAINST THE JUDGMENT AND AWARD DATED 10.06.2020
PASSED IN MVC NO.1070/2015 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, ATHANI PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION
AND ETC.,
IN THESE MISCELLANEOUS FIRST APPEALS, ARGUMENTS
HAVING BEEN HEARD AND JUDGMENT RESERVED ON 18.06.2024,
COMING ON FOR "PRONOUNCEMENT OF ORDERS" THIS DAY,
BASAVARAJA J., DELIVERED THE FOLLOWING:
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MFA No.100026/2021 C/W
MFA No.100259/2021,
MFA No.101043/2022
JUDGMENT
All these appeals arise out of the judgment and award dated 10th June, 2020 passed in MVC No.1070 of 2015 by the Principal Senior Civil Judge and Additional Motor Accident Claims Tribunal, Athani (for short hereinafter referred to as "the Tribunal").
2. For the sake of convenience, the parties in these appeals are referred to with their rank and status before the Tribunal.
3. Brief facts of the case leading to filing of these appeals are:
The petitioners filed claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the death of one Satish Latane in the road traffic accident. It is stated in the claim petition that on 11th May, 2015 at about 8.00 pm, when the said Satish was proceeding near the garden land of Pintu Kadam at Yalihadlagi village, the driver of tractor bearing Registration No.KA-23/TA-6423 drove the said tractor at a high speed and in rash and negligent manner and dashed to said Satish. Due to the impact, he suffered grievous injuries and died. It is stated that petitioners spent Rs.50,000/--6-
MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 towards funeral expenses and transportation of the dead body. It is further stated that prior to accident, deceased Satish was hale and healthy and was aged 35 years. He was working in Army and getting a salary of Rs.50,000/- per month along other benefits. Due to his sudden death, the petitioners have lost the earning member of the family. Petitioner No.1 has lost her husband, petitioner No.2 has lost her father and petitioners 3 and 4 have lost their loving son. It is submitted that the accident occurred due to rash and negligent driving of the tractor by iis driver. Respondents 1 and 2 are the owner and insurer respectively of the offending tractor and are jointly and severally liable to compensate the petitioners. Hence, they sought to allow the claim petition.
4. In response to summons respondents appeared through their counsel and filed separate objections denying the occurrence of accident due to rash and negligent driving of the driver of Tractor and further denied as to the dependency of petitioners.
5. The sum and substance of objections of respondent No.1-owner of the vehicle, is that the accident occurred due to the negligence of the deceased himself. It is contended that -7- MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 the vehicle is insured with the respondent No.2-Insurer and if the petitioners are entitled for any compensation, the respondent No.2 is liable to pay the same.
6. The contention of the respondent No.2-Insurance Company in statement of objections is that the driver of the tractor did not possess valid driving licence and hence there is violation of policy conditions. Accordingly, the respondent No.2 is not liable to pay compensation. Hence, sought to dismiss the claim petition. The respondent No.2 also filed additional written statement contending that trailer No.KA-23/T-4236 ran over the deceased and caused his death. The said trailer was not insured as on the date of accident. It is submitted that there is no contract of insurance between the respondent No.1 with regard to the trailer No.KA-23/T-4236 which has caused the accident. The petitioners have suppressed this fact and have not come to court with clean hands. Therefore, it is clear that the respondent No.2 is in no way liable to pay the compensation to the petitioners. The owners of the tractor bearing No.KA-23/TA-6423 and trailer No.KA-23/T-4236 had lent the tractor-trailer unit for marriage procession as on the date of accident, which unit is meant to be used for agriculture purposes only and hence, using the tractor-trailer unit for other -8- MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 purposes amounts to violation of policy conditions and hence the respondent No.2 cannot be held liable to pay the compensation in the light of violation of policy conditions and hence, the claim petition needs to be dismissed with costs as against respondent No.2. This Additional statement was filed on 20th February, 2017 along with application under Section 151 of Code of Civil Procedure and also filed application under Order VI Rule 17 of Code of Civil Procedure. Both applications were dismissed by the Tribunal on 09th March, 2017. The same is not questioned by respondent No.2.
7. Based on the pleadings, the Tribunal framed appropriate issues. To prove their case, petitioners examined two witnesses as PWs.1 and 2 and twelve documents were marked as Exhibits P1 to P12. On closure of petitioners' side evidence, three witnesses were examined on behalf of respondents as RWs.1 to 3 and twenty documents were marked as Exhibits P1 to P20. Having heard the arguments on both sides, the Tribunal partly allowed the claim petition and awarded compensation of 67,59,408/- with interest at 6% per annum from the date of filing the petition till realisation and directed respondent No.2 to deposit the award amount along with accrued interest within two months from the date of award -9- MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 failing which the award shall carry interest at the rate of 9% per annum. It was also held that the respondent No.2-Insurer is at liberty to take action against respondent No.1 for recovery of amount paid by it to the petitioners under the principle of "pay and recover".
8. Being aggrieved by the judgment and award passed by the Tribunal, the Insurance Company has preferred MFA No.100026 of 2021 questioning the liability of the Insurance company under principal of pay and recover as well as the quantum of compensation; the owner of the tractor has preferred MFA No. 101043 of 2022 questioning the fastening of liability on him under the principle of pay and recover; and the petitioner/claimants have preferred MFA No.100259 of 2021 questioning the liability of the owner under the principle of pay and recover and also seeking enhancement of compensation.
Submission of learned counsel for the petitioner/claimants:
9. Sri B. Sharanabasawa, learned counsel appearing for the petitioner/claimants, submitted that the Tribunal has committed grave error in holding that there is difference in the name of the driver of the tractor who has caused the accident which led to death of the deceased. He submitted that in the
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 charge sheet filed by the police as per Exhibit P8, the name of the driver is mentioned as Bapuso S/o Appaso Kodag whereas in the driving licence produced as per Exhibit R15, the name of the driver is mentioned as Appaso and Bapuso Machendra Kodag. Whereas in Exhibit-R20 the driving licence extract, the name is mentioned as Appashiv S/o Machendra Kodage. Thus, it is the same person one who was examined before the Tribunal as RW2 and cross-examined by Respondent No.2- Insurance Company and nothing is stated as to the name mentioned are of different persons. Hence, the observations made by the Tribunal in this regard that unless the author of the said document is examined, the genuineness of the same could not be decided, is not valid. The documents were marked without objection and are public documents. Thus, in view of the evidence on record, there was no justification for the Tribunal to hold that the driving licence does not belong to the person who has caused the accident and as such, the said finding needs to be set aside and the liability be saddled upon the Insurer as indemnifier of respondent No.1-owner of the trailer. He further submitted that the Tribunal has failed to consider the fact that the said driver has been called as Bapuso as well as Appaso and as such there is reference of the same in
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 the driving licence as Per Exhibits R15 and R20. Further, Exhibit P15 has been produced by the driver in his evidence along with Exhibits P16 to P18 which pertain to RC Book and Exhibit P18-Aadhar Card, wherein it is mentioned the name of the driver as Bapuso @ Appaso Machendra Kodag and the date of birth is mentioned as 20th May, 1981 the same is also mentioned in Exhibit R20-Driving licence extract of the driver. The place of residence, as mentioned in the Aadhar card and in the Driving Licence extract, are different. However, it does not make any difference since the person and the date of birth are one and the same and the residence mentioned in the said documents will not have any bearing. He submitted that the Tribunal has not considered this aspect at all even though the appellant has filed written arguments in the said case. Hence, the reasoning of the Tribunal in this regard is perverse, arbitrary and biased and the same requires to be set aside. The learned counsel further submitted that the Tribunal has not analysed the documents on record in its proper perspective. Though the driver of the tractor was holding valid and effective driving licence as on the date of the accident. The filing of charge sheet under Section 3 read with 181 of Motor Vehicles Act, 1988 against the driver and filing of charge sheet under
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 Section 5 read with Section 180 of Motor Vehicles Act, 1988 against the respondent No.1-owner of the offending vehicle, cannot be a base to hold that there is violation of policy conditions. Hence, mere filing of charge sheet does not exonerate the insurance company from its liability and more particularly the claim of the petitioner/claimants being third parties. His further submission is that the Tribunal has committed an error in holding that the author of the documents as per Exhibit P8, R15 and R20 are required to proved by the person who has issued the same and if the same is permitted, there would be delay to adjudicate the claim of victims and thereby there will be great injustice to them in terms of financial support without proper or satisfactory reason. He submitted that the matter is pending since 2015 and respondent-Insurer has sought time to file the statement of objections on 27th February, 2020 and it was permitted. Thereafter, the matter was posted on 06th March, 2020 to file written argument and on 09th June, 2020 the written argument was submitted by the Counsel for respondent-Insurer and on the next day itself, i.e. on 10th June, 2020 the judgment is pronounced without providing any opportunity to the counsel for the petitioner/claimants and the respondent No.1-Owner of
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 the offending tractor and in the Order sheet of the Tribunal it is noted as to filing of written arguments by respondent-Insurer. Hence, the approach of the Tribunal is not fair and proper and thereby sustaining its reasons that there will be delay regarding adjudication of the claim petition, is not valid and tenable. Hence it is submitted that since the driver of the offending vehicle was holding valid and effective driving licence as on the date of accident, so also, the insurance of the vehicle was also valid as on the date of accident, the Tribunal holding that respondent No.1-owner of the tractor is liable to pay the compensation and the respondent No.2 shall pay and recover the same from respondent No.1 is completely error and illegal. He further submitted that the Tribunal ought to have assessed the income of the deceased at Rs.42,953/- per month as per the salary certificate Exhibit P13 for the month of October, 2013. However, the Tribunal has erroneously considered the salary certificate Exhibit P12 which is for the month of April, 2015 wherein the salary mentioned is Rs.34,153/-. His further submission is that the Tribunal ought to have considered the highest salary of the deceased as per Exhibit P13 at Rs.42,953/- per month since the deceased was serving in the Indian Army as Nayak and he was having another ten years of
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 service and thereby, the salary would have naturally increased at the time of retirement. Hence, he submitted that same requires interference in this appeal. Further, the Tribunal has committed an error in deducting 10% of the income towards income tax of the deceased and the deduction would be only at Rs.730/- as per Exhibit P13 and the same is an error committed by the Tribunal. He further submitted that the Tribunal awarded compensation towards love and affection only to petitioners No.1 and 2 and it ought to have awarded to petitioners 3 and 4 also as per the decision of the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE COMPANY LIMITED v. NANU RAM AND OTHERS reported in (2018)18 SCC 130. His further submission is that the Tribunal awarded the interest at the rate of 6% per annum is on the lower side and same be awarded at 12% per annum. On all these grounds, he sought to allow the appeal. Submission of the learned counsel for Owner of offending Vehicle:
10. Sri Sanjay S. Katageri, learned counsel appearing for the owner of the offending tractor-trailer submitted that the impugned judgment and award in partly holding that the driver of the tractor was not holding driving licence which were
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 produced and marked as Exhibits P8, R15 and R20 are not of the same person and to prove the same the authorities are required to be examined and thereby the same would delay in adjudicating the claim petition and hence ordering for pay and recovery of the compensation is error and illegal and against the principles of natural justice. The learned counsel, by adopting the arguments advanced by the learned counsel for the claimants, would further submit that the name of the driver is Bapuso @ Appaso Machendra Kodag and the date of birth as 20th May, 1981, same of which is also mentioned in Exhibit R20-Driving Licence extract of the driver. It is only the place of residence is different and the same is because of profession and providing the address to the transport authority. Thus, the same will not make any difference and the Tribunal has ignored the said aspect and has erroneously concluded that the owner of the offending tractor is liable to pay the compensation to claimants by granting liberty to Insurer to recover the same from owner of vehicle under the principle of 'pay and recover' is contrary to law, facts and evidence on record and on all these grounds sought to allow the appeal. To substantiate his submissions, the learned counsel relied upon the Division Bench judgment of this Court in the case of SUVARNA AND OTHERS v.
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 MURTUJSAB AND ANOTHER reported in 2012 ACJ 936 and the decision rendered in MFA No.103083 of 2019 connected with MFA No.100027 of 2020 decided on 09th September, 2022 rendered in the case of DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED v. SMT. AKKATAYI AND OTHERS.
Submission of the learned counsel for the Insurance Company
11. Sri S.K.Kayakamath, learned counsel appearing for the Appellant-Insurance Company submitted that the impugned judgment and award passed by the Tribunal is contrary to the law and material on record. He submitted that the Tractor bearing Registration No.KA-23/TA-6423 was alone insured with the appellant-Insurance Company and the trailer bearing registration No.KA-23/T-4236 was not insured. The death of the claimants has occurred by the hit of the said uninsured trailer, however, the Tribunal has erroneously saddled the liability against the Insurance Company. He further submitted that the owner of Trailer bearing registration No.KA-23/T-4236 has been arrayed as accused No.2 and he has been charge sheeted under Section 5 read with Section 180, 146 and 196 of the Motor Vehicles Act, 1988 for having plied the vehicle on the
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 road without insurance. Exhibit P5-inquest panchanama discloses that the right side wheel of the trailer has ran over the head of the deceased due to which the injured succumbed to death. Though since there is clear evidence, the Tribunal has apportioned the negligence against the driver of the tractor which has resulted in miscarriage of justice and hence the impugned judgment and award is liable to be set aside. His further submission is that the trailer is also motor vehicle within the meaning of Section 2(45) of the Motor Vehicles Act, 1988 and as per the provisions of the said Act, the said vehicle is required to be registered separately and accordingly registered. When the death has occurred due to use of the trailer, the liability fastened against the insurer of the tractor is erroneous. Hence, the same is liable to be set aside. He further submitted that the Appellant-Insurance Company has filed IAs.4 and 5 for filing additional objection statements which has been rejected by the Tribunal by order dated 09th March, 2017 on the premise that Order VIII Rule 1 of Code of Civil Procedure is applicable to the proceedings before the Motor Accident Claims Tribunal. The rejection of applications is contrary to law and not sustainable. The alleged accident has occurred on 11th May, 2015 at 8.00 pm and the complaint has been lodged on 12th
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 May 2015 at 3.00 am by the wife of the deceased, is an afterthought by falsely alleging that the Tractor has dashed to the deceased. The averments of complaint Exhibit P1 disclose that the deceased had been to marriage in a tractor bearing Registration No.KA-23/TA-6423 and trailer bearing Registration No.KA-23/T-4236, however, contrary to the averments of the complaint, it has been pleaded that the deceased was proceeding as a pedestrian and the Tractor has dashed to the deceased. PW2 happens to be the brother of the petitioner No.1-wife of the deceased and also happens to be brother of respondent No.1-isured. The said witness, in cross- examination, has deposed that the body of the deceased was under the engine, which is contrary to Exhibit P5. The finding of the Tribunal with regard to occurrence of the accident on account of rash and negligent act of the driver of tractor is contrary to evidence on record. The reasoning of the Tribunal that, "once it runs with the help of insured tractor the insurer cannot avail the liability moreover it is held already while answering issue No.1 that the accident has occurred due to hit by the tractor itself, the argument advanced does not hold water", is farfetched. Learned Counsel further submits that the Tribunal has failed to note that in order to make the insurer
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 liable to pay compensation, both the tractor and trailer deserve to be insured and if the tractor alone is insured and if it has caused injury or damage to a third party, then alone the insurer of the tractor is liable to pay compensation; and if the trailer is involved in causing the accident, then the insurer of the trailer would alone be liable. Though the death was due to use of the trailer and trailer being uninsured, a false story has been created stating that the tractor has hit the deceased. Though the insured has participated in the proceedings before the Tribunal, neither he had produced the driving licence of the driver of the tractor nor the policy of insurance pertaining to the trailer. The petitioner No.1 is the sister of the respondent and there is collusion between the petitioner and respondent insured wangling the liability against the insured by lodging belated complaint by fabricating the facts with regard to the occurrence of accident. The claim has been made by the wife, minor daughter and parents of the deceased. The father cannot be considered as dependant unless and until, contrary has been established. The father of the deceased has not entered into witness box to depose about his dependency on the deceased son. If the father is excluded from the number of dependents, then the dependents on the deceased would be
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 three and accordingly, deduction towards personal expenses would be one-third instead of one-fourth made by the Tribunal. On all these grounds, sought to allow the appeal of the appellant-Insurance Company.
12. Having heard the arguments of the parties and on perusal of judgment and the original records, the following points would arise for our consideration in these appeals:
1. Whether the Tribunal is justified in holding that the accident occurred due to the rash and negligent act on the part of the driver of the tractor bearing Registration No.KA-23/TA-6423?
2. Whether the Tribunal is justified holding that the driver of the offending tractor was not holding valid and effective driving licence, as on the date of the accident?
3. Whether the Tribunal is justified in directing respondent No.2-Insurance company to pay compensation to the claimants and recover the same from the owner of the trailer bearing Registration No.KA-23/T-4236?
4. Whether the claimant/appellants are entitled for enhancement of compensation?
5. What order or award?
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022
13. Our answer to the above points is as follows for the following reasons:
Points No.1 to 3; in the negative;
Point No.4: partly in the affirmative; Point No.5: as per final order REASONS Regarding Points 1 to 3:
14. We have carefully examined the material placed before this Court. It is the case of the petitioner/claimants that on 11th May, 2015 at about 8.00 pm, when the said Satish was proceeding near the garden land of Pintu Kadam at Yalihadlagi village, the driver of the tractor bearing Registration No.KA- 23/TA-6423 drove the same at high speed and in a rash and negligent manner and dashed to Satish. Due to the impact, Satish suffered grievous injuries and died. It is stated that petitioners spent Rs.50,000/- towards funeral expenses and transportation of the dead body. It is further stated that prior to accident deceased Satish was hale and healthy and was aged 35 years. He was working in Army and getting salary of Rs.50,000/- per month along other benefits. Due to sudden death petitioner No.1 has lost her husband, petitioner No.2 has lost her father and petitioners 3 and 4 have lost their loving
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 son. The owner of Trailer filed his written statement contending that the driver of the tractor was holding valid driving licence as on the date of accident and the tractor was insure with the respondent No.2-Insurance Company. Hence, is not liable to pay the compensation to claimants. The respondent No.2-Insurance Company contended that the trailer was not insured. The accident occurred due to involvement of trailer as per Exhibit P5-inquest panchanama and the Driver of the tractor was not holding valid and effective driving licence as on the date of accident and hence the Insurance Company is not liable to pay the compensation.
15. On perusal of material placed before this Court, makes it clear that on the basis of complaint filed by one Smt. Chaya, Aigali Police have registered a case in Crime No.57 of 2015 against an unknown driver of tractor bearing Registration No.KA-23/TA-6423 and Trailer bearing Registration No.KA- 23/T-4236 for commission of offence punishable under Sections 279 and 304-A and Section 134 and 187 of Indian Penal Code and submitted First Information Report to the Court. Thereafter, police rushed to the spot and conducted spot panchanama, inquest panchanama, obtained motor vehicle inspection report, Post-mortem report and recorded the further
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 statement of complainant as to the identification of the accused by name Bapusa Machendra Kodage and recorded statement of witnesses and on thorough investigation, the Investigating Officer submitted charge sheet against the driver of tractor bearing Registration No.KA-23/TA-6423 and Trailer bearing Registration No.KA-23/T-4236 for commission of offence punishable under Sections 279 and 304-A and Sections 134 and 187, Sections 3 read with 181 of Motor Vehicles Act and Section 5 read with Section 180 and Sections 146 read with Section 196 of Motor Vehicles Act, 1988. Apart from this documentary evidence, the complainant Smt. Chaya was examined as PW1. Chandrakanth Sadashiva Kadam, who is shown as eye-witness in the charge sheet as CW9, is examined as PW2. RW1-Nitin Shenoy, has not deposed anything against the charge sheet submitted by the Investigating Officer. During his cross-examination, he has clearly admitted that in the charge sheet it is alleged that due to hit by the tractor engine the accident occurred. RW1-Bapusa @ Appusa S/o Machendra Kodage, the driver of tractor bearing Registration No.KA-23/TA-6423, has deposed in his evidence admitting the accident and also the death of Satish Latane in the accident. During the course of cross-examination also he has clearly
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 admitted that the Investigating Officer has submitted charge sheet against him as to the rash and negligent act on the part of the driver. RW3-owner of the tractor has clearly admitted in his evidence that Satish Latane died in this accident due to involvement of tractor bearing Registration No.KA-23/TA-6423. Considering all these oral and documentary evidence, the Tribunal has come to the conclusion that the accident occurred due to rash and negligent act on the part of the driver of the tractor. The learned counsel appearing for the appellant- Insurance Company submitted that Exhibit P1 discloses that the deceased was travelling in Tractor KA-23/TA-6423 and Trailer No.KA-23/T-4236. Contrary to averments of the complainant, it has been pleaded that the deceased was proceeding as pedestrian and the tractor dashed to the deceased. Further he submitted that, in column 7 of Exhibit P5-inquest panchanama, it was answered that the right side wheel of the trailer has run over the head resulting in deceased sustaining grievous injuries on head and succumbed to the injuries. The Tribunal has not observed anything about the same.
16. We have carefully examined the contents of Exhibit P1-complaint in which there is no reference that the deceased had been to marriage in the tractor bearing Registration No.
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 KA-23/TA-6423 and hence the arguments advanced in this regard cannot be accepted. In inquest panchanama-Exhibit P5 at column 7 also there is no reference that right side wheel of the trailer has run over the head of the deceased. Moreover, the contents of the complaint or the contents of inquest panchanama are not material evidence to show that the deceased died due to hit by the trailer. It is the legal duty of the Investigating Officer to investigate as to the cause of the accident. Accordingly, the Investigating Officer has investigated the case, recorded the statement of eye-witnesses and submitted charge sheet against the driver of the tractor alleging that the accident occurred due to rash and negligent act on the part of the driver of the tractor. Additionally, one of the eye-witnesses who is shown as CW9 examined by the petitioners as PW2, has clearly deposed that the driver of the tractor drove the same in rash and negligent manner and hit to Satish Latane, who was proceeding towards the left side of the road and caused accident. During the course of cross- examination of PW2, respondent-Insurance Company has not denied that he was not the eye-witness to the accident. The driver of the tractor himself examined before the Tribunal as RW1 and the owner of the trailer was examined as RW2. Both
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 have clearly admitted that the deceased died due to the accident as the tractor bearing No. KA-23/TA-6423 hit the deceased. RW1-Officer of the Insurance Company has also clearly admitted as to the charge submitted by the Investigating Officer. Considering all these material evidence on record, the Tribunal has rightly come to the conclusion that the accident occurred as the driver of the tractor, who drove the same in rash and negligent manner hit to Satish Latane who was proceeding on the left side of the road, and caused accident. During the course of cross-examination of PW2 by the respondent-Insurance Company, he has not denied that he is not eye-witness to the accident. The driver of tractor, was examined before the Tribunal as RW1 and the owner of the vehicle was examined as RW2. Both of them have clearly admitted that the deceased died due to the accident as the tractor bearing Registration No. KA-23/TA-6423 hit the deceased. RW1-Officer of the Insurance Company, has also clearly admitted as to the charge sheet submitted by the Investigating Officer. Considering all these material evidence, the Tribunal has rightly come to the conclusion that the accident occurred as the driver of the tractor hit the deceased who was going towards left side of the road. The insurance
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 Company has also not placed any material before this Court to show that the said accident occurred due to involvement of trailer, which was attached to the Tractor and therefore, the argument advanced on behalf of the insurance company cannot be accepted.
17. With regard to validity of the driving licence of the driver of the offending tractor is concerned, the Insurance Company has strongly raised objection that the investigating officer has filed charge sheet against the driver of the tractor for the commission of offence punishable under Section 3 read with 181 of Motor Vehicles Act, 1988 and also charged sheeted the owner of the tractor for the offence punishable under Section 5 read with 180 of Motor Vehicles Act, 1988 for entrusting the vehicle to the person who had no valid and effective driving licence to drive the vehicle and also charge sheeted the owner of the trailer for the offence punishable under Section 146 read with 196 of Motor Vehicles Act, 1988 who failed to insure the trailer as on the date of accident. On all these grounds, it was argued that the insurance company is not liable to pay the compensation.
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022
18. RW2-Owner of the vehicle, has specifically stated that the driver of the tractor was having valid and effective driving licence as on the date of accident. Only on technical ground as to the discrepancy between Exhibits R15 and R20, the Tribunal has rejected Exhibit R20 the document issued by the public authority which is contrary to law. A perusal of Exhibit R20 which is issued by Deputy Regional Transport Officer, Beed, which also bears the seal and signature of the concerned authority, reveals that the age, name of the person in whose name the driving licence is issued, is Appashiva Kodage Machendra Kodge and the date of birth is shown as 20th May, 1981. The address is shown as A/P Saidapura, Taluk Georai, District Beed-431 127 and the driver has obtained driving licence for non-transport Hazardous vehicle from 01st August, 2017 to 31st October, 2017 and for driving transport vehicle 30th August, 2016 to 29th August, 2019. This Driving licence was issued on 01st August,, 2007 by Deputy Regional Transport Office, Beed, MH-23. To substantiate this document, owner of the vehicle Pintu Kadam Sadashiva was examined as RW3. In his evidence, he has clearly stated that the driver of the tractor-Bapusa @ Appusa S/o Machandra Kodge was having valid driving licence as per Exhibit R20. He has also produced
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 Exhibit R19 Aadhar card of the driver of the vehicle. Exhibit R19(a) reveals that the said Aadar Card is pertaining to Bapusa Urf Appusa Machendra and the date of birth is shown as 20th May, 1981 and the number of 5353 6604 7028. RW2 has clearly stated in his evidence that he has produced these documents before police, however, the police have submitted the charge sheet alleging that the driver of the tractor was not having valid and effective driving licence without perusal of these documents. A careful examination of material placed before this Court, reveals that the Investigating Officer has not issued notice under Section 133 of Motor Vehicles Act, 1988. Soon after the accident, as per the provisions of Motor Vehicles Act, 1988, it is the duty of the Investigating Officer to issue notice to the owner of the vehicle to ascertain the name and address of the of the Driving Licence and Registration Certificate. Unfortunately, the Investigating Officer has not taken any legal steps as required under Section 133 of the Motor Vehicles Act, 1988. The appellant-Insurance Company has also not placed any material to show that whether the Investigating Officer has complied with the provisions of Section 133 of Motor Vehicles Act, 1988 or not. Additionally, in view of Rule 232 of Chapter-VII of Karnataka Motor Vehicle
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 Rules, 1989, it shall be the duty of the Divisional Manager or the Branch Manager of the Insurance Company, as expeditiously as possible, to:
"232. Duties of Insurance Company.-
It shall be the duty of the Divisional Manager or the Branch Manager of the Insurance Company, as expeditiously as to/-
(a) move an application in Form 63 before the Investigating Police Officer with prescribed fees, if any and gather full information about the accident, at the earliest, after receiving information about it, or on receipt of notice from the Claims Tribunals under Rule 235;
(b) ascertain and verify facts about insurance of motor vehicle(s) involved in the accident and confirm the same to the Claims Tribunal within thirty days of receiving notice of the claim case;
(c) move application before the concerned registering authority in Form 63-A and gather information about the motor vehicle(s) involved, and the driving licence(s) held by the driver(s) thereof as per details mentioned in Form 63-B;
(d) deposit with the written statement in the Claims Tribunal, the amount equivalent to the compensation, awardable on the principle of no fault liability under Section 140 of the Act in such cases where the information received in Form 63
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 confirms death or permanent disability to have been caused as a result of the use of the motor vehicle covered by the insurance certificate/policy issued by it."
19. In the instant case, the Insurance Company has not placed any material to show as to the compliance of mandatory provisions of Rule 232 of Karnataka Motor Vehicles Rules. The Insurance Company has not placed any material to discard the public document issued by the public authority, which is having presumptive value under the provisions of Section 114(e) of Indian Evidence Act, 1872. However, ignoring all these aspects, the Tribunal has committed an error in coming to the conclusion that the genuineness or authenticity of the driving licence produced by the driver which is marked as Exhibit R15 and the licence which is produced as Exhibit R20, are to be adjudicated after summoning the authorities who have issued the same and further evidence to be verified as to whether Exhibit R20 was issued to the driver of the offending tractor or to some other person. The Motor Vehicles Act, 1988 claim petitions have to be adjudicated summarily as contemplated under Rule 241 of Karnataka Motor Vehicle Rules, 1989. It is well settled principle of law that the strict proof of evidence is not at all required in a motor vehicle accident claim case.
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 Though owner of the vehicle, who is competent to produce the document, has produced Exhibits R19 and R20, and the complaint PW1 has also identified this accused before the police and the Investigating Officer has recorded the further statement of the complainant as per Exhibit P7, the Tribunal has ignored this material evidence and come to the conclusion that the driver of the tractor was not having valid and effective driving licence as on the date of accident, which is contrary to evidence on record.
20. The evidence of RW2 and contents of Exhibit R20 reveals that the driver of the offending tractor was having valid and effective driving licence as on the date of accident. Therefore the question of driver driving the offending vehicle without valid and effective driving licence as on the date of accident, does not arise, so also, entrustment of offending tractor to an unauthorized person who was not holding valid and effective driving licence, also does not arise. The evidence placed before the Tribunal establishes that the driver of the offending tractor was having valid and effective driving licence as on the date of accident. Hence, without applying the mandatory provisions of Section 133 of the Motor Vehicles Act, 1988, the Investigating Officer has mechanically submitted the
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 charge sheet against the driver and owner of the tractor and trailer for the offence punishable under Sections 3 read with 181 of Motor Vehicles Act, 1988 and Sections 5 read with 180 of the Motor Vehicles Act, 1988, which are unsustainable under law.
21. On careful reappreciation, re-examination and re- consideration of the entire evidence on record, this Court holds that the Tribunal is not justified in holding that the driver of the offending tractor was not having valid and effective driving licence as on the date of accident, since the evidence placed before this Court establishes that as the driver of the offending tractor was having valid and effective driving licence, the question of violation of terms of policy conditions does not arise. Accordingly, directing respondent No.2-Insurance Company to satisfy the award, with liberty to it to recover the same from the owner of the tractor under the principle of 'pay and recover', does not arise. The learned Counsel for the appellant-Insurance Company vehemently submitted that the accident occurred due to involvement of trailer which was uninsured and hence the insurance company is not liable to pay the compensation. In this regard, the Tribunal as well as this Court, has held that the accident occurred due to negligent act
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 on the part of the driver of the offending tractor bearing Registration No.KA-23/TA-6423. Hence, on this ground also the Insurance Company cannot escape from its liability. Accordingly, we answer points 1 to 3 in the negative. Regarding Point No.4:
22. With regard to loss of dependency is concerned, the Tribunal has rightly held that the age of the deceased was 34 years as on the date of accident as the date of birth of the deceased was 01st June, 1981 as per salary certificate. The Tribunal has assessed the income of the deceased at Rs.34,153/- per month. Exhibit P10 is the salary certificate in respect of the deceased, which shows that the Salary of the deceased was Rs.34,153/- per month as on 11th May, 2015. Exhibit P11 is the certificate issued by the Major, Record Officer for OIC records which reveals as to the date of birth, date of enrolment, date of death, date of SOS, Service upto date of death, length of qualifying service and the last Rank and Promotion Date. During the course of cross-examination of PW1, she has admitted that the deceased was demoted after 2013, thus he earned less salary as per Exhibit P12. As per Exhibit P12 which is the statement of account for the month
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 ending April, 2015, the gross salary of the deceased was Rs.34,153/-. Accordingly, the Tribunal has assessed the same, which is in conformity with the contents of Exhibit P12 and the same does not call for interference by this Court. The Tribunal has rightly added 50% to the income of the deceased towards future prospects as he was in permanent job. The petitioners have not placed any material as to the exemption from income- tax out of the salary of the deceased. Considering the gross- salary of the deceased at Rs.34,153/- per month comes to Rs.4,09,836/- per annum. The Tribunal has observed that for the financial year 2014-15, there is no income tax for the income of Rs.2,50,000/- and then the taxable income of the deceased would be Rs.1,59,836/- and 10% of it, i.e. Rs.15,984/- of it is deducted towards income tax, then the total income would be Rs.3,93,852/- and if 50% of it is added towards future prospects, then the total annual income of the deceased would be Rs.5,90,778/-. With regard to dependency, the learned counsel for the Insurance Company submitted that the claim has been made by wife, minor daughter and parents of the deceased, of which the father of the deceased cannot be considered as dependent, unless and until, contrary has been established. But this argument cannot be accepted in view of
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 the decision of the Hon'ble Supreme Court in the case of N. JAYASHREE v. CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED rendered in Civil Appeal No.6451 of 2021 arising out of SLP(C) No.14558 of 2019 decided on 25th October, 2021. Accordingly, in the case on hand, since there are four dependents, one-fourth has to be deducted towards personal and living expenses of the deceased and the Tribunal has rightly deducted and the annual income of the deceased would be Rs.4,43,085/-. Accordingly, the loss of dependency would come to Rs.70,89,360 (Rs.4,43,085/- x 16). Considering the parental, filial and spousal consortium, as per the decision of the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE COMPANY LIMITED v. NANU RAM AND OTHERS reported in (2018)18 SCC 130. Accordingly, the claimants are entitled for modified compensation as under:
Sl.No. Head Amount (in Rs.)
1. Loss of dependency 70,89,360.00
2. Loss of consosrtium (Rs.40,000 x
1,60,000.00
4)
3. Loss of estate 15,000.00
4. Towards transportation of dead
15,000.00
body and funeral expenses
Total 72,79,360.00
In the result, we answer point No.4, partly in the affirmative.
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022 Regarding Point No.5:
23. For the reasons aforestated, we proceed to pass the following:
ORDER
1. MFA No.100026 of 2021 preferred by the appellant-Insurance Company is dismissed;
2. MFA No.101043 of 2022 preferred by the owner of the vehicle is allowed. The liability fastened on the owner of the vehicle under the principle of pay and recover is set aside and the Insurance Company is directed to deposit the entire award amount with accrued interest. Amount, if any, deposited by the appellant, be refunded to him in accordance with law;
3. MFA No.100259 of 2021, preferred by the claimants is allowed in part holding that the claimants are entitled for total compensation of Rs.72,79,360/- as against Rs. 67,59,408/-. The enhanced compensation shall carry interest at the rate of 6% per annum from the date of petition till realisation;
4. Amount in deposit shall be transmitted to the Tribunal forthwith;
5. Apportionment and disbursement of the compensation amount shall be as per the award of the Tribunal;
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MFA No.100026/2021 C/W MFA No.100259/2021, MFA No.101043/2022
6. Draw modified award accordingly;
7. Registry to transmit the trial court records along with the copy of this judgment to the concerned court forthwith for onward disbursal of award amount to the claimants.
Sd/-
JUDGE Sd/-
JUDGE LNN