Karnataka High Court
Damodar Vishwanath Shanke vs Smt.Akkubai Antu Mane on 22 September, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
-1-
NC: 2023:KHC-D:12467-DB
MFA No.102188 of 2017
C/W MFA No.102189 of 2017,
MFA No.101595 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.102188 OF 2017 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.102189 OF 2017 (MV-D)
MISCELLANEOUS FIRST APPEAL NO.101595 OF 2018 (MV-D)
YASHAVANT
NARAYANKAR
IN MFA NO. 102188/2017
Digitally signed BETWEEN:
by YASHAVANT
NARAYANKAR
Date: 1. SHRI PIRSAB S/O. HASANSAB MULLA,
2023.12.15
15:48:17 +0530 AGE: 74 YEARS, OCC: NIL,
R/O: 2850, B-WARD, JAWAHAR NAGAR,
TALUKA: KARVEER, DIST: KOLHAPUR,
MAHARASHTRA-416012.
2. SMT. AMINA W/O. PIRSAB MULLA,
AGE: 67 YEARS, OCC: HOUSEHOLD WORK,
R/O: 2850, B-WARD, JAWAHAR NAGAR,
TALUKA: KARVEER, DIST: KOLHAPUR,
MAHARASHTRA-416012.
3. SMT. SURAYYA, W/O. SHAHANVAJ MULLA,
AGE: 37 YEARS, OCC: HOUSEHOLD WORK,
R/O: 2850, B-WARD, JAWAHAR NAGAR,
TALUKA: KARVEER, DIST: KOLHAPUR,
MAHARASHTRA-416012.
4. KUMAR MUSTAKIM SHAHANVAJ MULLA,
AGE: 14 YEARS, OCC: STUDENT, 7TH STD.
R/O: 2850, B-WARD, JAWAHAR NAGAR,
TALUKA: KARVEER, DIST: KOLHAPUR,
MAHARASHTRA-416012.
-2-
NC: 2023:KHC-D:12467-DB
MFA No.102188 of 2017
C/W MFA No.102189 of 2017,
MFA No.101595 of 2018
(NOTE: SINCE APPELLANT NO.4 BEING MINOR,
REPRESENTED BY M/G NATURAL
MOTHER - APPELLANT NO.3 HEREIN.)
...APPELLANTS
(BY SRI SANJAY S. KATAGERI, ADVOCATE)
AND:
1. M/S. SANDHU ROAD LINES PVT. LTD.,
309, HOTEL WHITE CRISTLE,
NASHIK PLATA (PHATA), KASARWADI,
PUNE-411034 (MAHARASHTRA STATE).
2. THE DIVISIONAL MANAGER,
ROYAL SUNDARAM ALLIANZ
INSURANCE CO. LTD.,
#6, 1ST FLOOR, MUJAWAR ARCADE,
NEHRU NAGAR, BELAGAVI-590010.
3. DIVISIONAL MANAGER,
SBI GENERAL INSURANCE CO. LTD.,
RPD CROSS, TILAKWADI, KHANAPUR ROAD,
BELAGAVI, PIN CODE: 560006.
...RESPONDENTS
(BY SRI S.K. KAYAKAMTH, ADVOCATE FOR RESPONDENT NO. 2;
SRI SUBHASH J. BADDI, ADVOCATE FOR R3;
R1 NOTICE HELD SUFFICIENT)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING
THAT, THE JUDGMENT AND AWARD DATED 22/02/2017 PASSED IN
MVC NO. 1555/2015 BY THE VI ADDITIONAL DISTRICT JUDGE AND
ADDITIONAL MACT BELAGAVI, IN ALLOWING THE CLAIM PETITION
PARTLY AS FILED BY THE APPEALLANTS HEREIN AND THEREBY
HOLDING 50% CONTRIBUTORY NEGLIGENCE ON THE PART OF THE
DECEASED RIDER OF THE MOTOR CYCLE AND SO ALSO 50%
LIABILITY ON THE PART OF THE RESPONDENT NO.1 HEREIN AND
THEREBY EXONERATING FROM THE LIABILITY OF THE
RESPONDENTS NO.2 TO 3 HEREIN BE SET ASIDE; AND ETC.
-3-
NC: 2023:KHC-D:12467-DB
MFA No.102188 of 2017
C/W MFA No.102189 of 2017,
MFA No.101595 of 2018
IN MFA NO. 102189/2017
BETWEEN:
1. SMT. AKKUBAI ANTU MANE,
AGE: 67 YEARS, OCC: NIL,
R/O: NAGNUR- BHIVASHI,
TALUKA: CHIKKODI, DIST: BELAGAVI,
PIN CODE:591241.
2. SMT. LATA MADHUKAR MANE,
AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
R/O: 623-B-WARD, SAI NAIK MOHALLA,
JAWAHAR NAGAR, TALUKA: KARVEER,
DIST: KOLHAPUR, MAHARASHTRA-416012.
3. SHRI MANIK MADHUKAR MANE,
AGE: 25 YEARS, OCC: PVT. SERVICE,
R/O: 623-B-WARD, SAI NAIK MOHALLA,
JAWAHAR NAGAR, TALUKA: KARVEER,
DIST: KOLHAPUR, MAHARASHTRA-416012.
4. YUVRAJ MADHUKAR MANE,
AGE: 23 YEARS, OCC: CYCLE SHOP,
R/O: 623-B-WARD, SAI NAIK MOHALLA,
JAWAHAR NAGAR, TALUKA: KARVEER,
DIST: KOLHAPUR, MAHARASHTRA-416012.
AMENDMENT CARRIED OUT IN RESPECTED DEATH OF
APPELLANTS NO. 1 AND 4 HEREIN. THUS, THE
APPELLANTS NO. 2 AND 3 HEREIN ARE TREATED AS LRS
OF DECEASED APPELLANTS NO. 1 AND 4 AS PER THE
MEMO DATED 14-09-2023 AND ORDER PASSED IN THIS
HON'BLE COURT ON 22/09/2023.
...APPELLANTS
(BY SRI SANJAY S. KATAGERI, ADVOCATE)
AND:
1. M/S. SANDHU ROAD LINES PVT. LTD.,
309, HOTEL WHITE CRISTLE,
-4-
NC: 2023:KHC-D:12467-DB
MFA No.102188 of 2017
C/W MFA No.102189 of 2017,
MFA No.101595 of 2018
NASHIK PLATA (PHATA), KASARWADI,
PUNE-411034 (MAHARASHTRA STATE).
2. THE DIVISIONAL MANAGER,
ROYAL SUNDARAM ALLIANZ
INSURANCE CO. LTD.,
#6, 1ST FLOOR, MUJAWAR ARCADE,
NEHRU NAGAR, BELAGAVI-590010.
3. DIVISIONAL MANAGER,
SBI GENERAL INSURANCE CO. LTD.,
RPD CROSS, TILAKWADI, KHANAPUR ROAD,
BELAGAVI, PIN CODE: 560006.
4. SHRI.DAMODAR VISHWANATH SHANKE
AGE:MAJOR, OCC:PRIVATE SERVICE,
R/O. C/O. VISHAL SHANKE, H.NO.445,
BEHIND VERNEKAR BUILDING,
ST.JOAQUTM ROAD BORDA,
MADAGAON, GOA, PIN CODE:403602.
(OWNER OF THE MOTOR CYCLE BEARING
REGD.NO.MH-12/ED-262)
...RESPONDENTS
(BY SRI S.K. KAYAKAMATH ADVOCATE FOR R2;
SRI SUBHASH J. BADDI, ADVOCATE FOR R3;
R1 NOTICE HELD SUFFICIENT)
THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION
173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING THAT, THE
JUDGMENT AND AWARD DATED 22/02/2017 PASSED IN MVC NO.
1651/2015 BY THE VI ADDITIONAL DISTRICT JUDGE AND
ADDITIONAL MACT BELAGAVI, IN ALLOWING THE CLAIM PETITION
PARTLY AS FILED BY THE APPELLANTS HEREIN AND THEREBY
HOLDING 50% CONTRIBUTORY NEGLIGENCE ON THE PART OF THE
DECEASED RIDER OF THE MOTOR CYCLE AND SO ALSO 50%
LIABILITY ON THE PART OF THE RESPONDENT NO.1 HEREIN AND
THEREBY EXONERATING FROM THE LIABILITY OF THE
RESPONDENTS NO.2 TO 3 HEREIN BE KINDLY SET ASIDE; AND
ETC.
-5-
NC: 2023:KHC-D:12467-DB
MFA No.102188 of 2017
C/W MFA No.102189 of 2017,
MFA No.101595 of 2018
IN MFA NO. 101595/2018
BETWEEN:
DAMODAR VISHWANATH SHANKE,
AGE:MAJOR, OCC:PRIVATE SERVICE,
R/O: C/O. VISHAL SHANKE,
H.NO.445, BEHIND VERNEKAR BUILDING,
ST.JOAQUIM ROAD, BORDA,
MADAGAON, GOA,
PRESENLTY RESIDING AT 11,
TAMBORINE DRIVE, MINTO,
NSW,AUSTRALIA 2566,
R/BY HIS GPA HOLDER,
SRI SUNIL SAMBRANI,
AGE:40 YEARS, OCC:BUSINESS,
R/O. SUBHASH ROAD,
DHARWAD. - 580001.
...APPELLANT
(BY SRI R.H. ANGADI, ADVOCATE)
AND:
1. SMT.AKKUBAI ANTU MANE
AGE:68 YEARS, OCC:NIL,
R/O NAGNUR-BHIVASHI,
TQ:CHIKKODI, DIST:BELAGAVI - 591201.
2. SMT LATA MADHUKAR MANE
AGE:43 YEARS, OCC:HOUSEHOLD,
R/O. 623-B-WARD, SAI NAIK MOHALLA,
JAWAR NAGAR, TQ:KARVEER,
DIST:KOLHAPUR-506102
3. SHRI MANIK MADHUKAR MANE
AGE:26 YEARS, OCC:PVT SERVICE,
R/O. 623-B-WARD, SAI NAIK MOHALLA,
JAWAR NAGAR, TQ:KARVEER,
DIST:KOLHAPUR - 506102.
-6-
NC: 2023:KHC-D:12467-DB
MFA No.102188 of 2017
C/W MFA No.102189 of 2017,
MFA No.101595 of 2018
4. YUVRAJ MADHUKAR MANE
AGE:24 YEARS, OCC:PVT SERVICE,
R/O. 623-B-WARD, SAI NAIK MOHALLA,
JAWAR NAGAR, TQ:KARVEER,
DIST:KOLHAPUR-506102.
5. M/S. SANDU ROAD LINES PVT.LTD
309, HOTEL WHITE CRISTLE,
NASHIK PLATE, KESARWADI,
PUBNE-411034 (MAHARASHTRA)
6. THE DIVISIONAL MANAGER
ROYAL SUNDARAM ALLIANZ
INSURANCE CO. LTD.,
#6, 1ST FLOOR, MUJAWAR ARCADE,
NEHRU NAGAR, BELAGAVI-590010.
7. DIVISIONAL MANAGER
SBI GENERAL INSURANCE CO.LTD.,
RPD CROSS, TILAKWADI,
KHANAPUR ROAD, BELAGAVI.
...RESPONDENTS
(BY R1 AND R4 DECEASED, R2 AND R3 ARE LR'S OF R1 & R4,
SRI SANJAY S KATAGERI, ADVOCATE FOR R2,R3;
SRI S.K. KAYAKAMATH, ADVOCATE FOR R6;
SRI SUBHASH J. BADDI ADVOCATE FOR R7)
(VIDE COURT ORDER DATED 22.09.2023 RESPONDENTS
NO.1 AND 4 HAVE DIED AND RESPONDENTS NO.2 AND 3 ARE
THE ONLY LEGAL REPRESENTATIVES OF
DECEASED RESPONDENTS NO.1 AND 4.)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 M.V. ACT, PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD PASSED IN MVC NO. 1651/2015, DATED 22/02/2017,
PASSED BY THE LEARNED VI ADDITIONAL DISTRICT JUDGE AND
ADDITIONAL MACT., BELAGAVI, AT: BELAGAVI, AND
CONSEQUENTLY MODIFY AND FIX THE LIABILITY ON
RESPONDENTS NO-1 AND 2 HEREIN.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, BASAVARAJA, J., DELIVERED THE FOLLOWING:
-7-
NC: 2023:KHC-D:12467-DB
MFA No.102188 of 2017
C/W MFA No.102189 of 2017,
MFA No.101595 of 2018
JUDGMENT
These appeals arise out of the common judgment and award dated 22nd February, 2017 passed in MVC No.1651 of 2015 and MVC No.1555 of 2015 by the VI Additional District Judge and Additional Motor Accident Claims Tribunal, Belgaum (for short hereinafter referred to as the "Tribunal").
2. For the sake of convenience, the parties in this appeal are referred to with their status and rank before the Tribunal.
3. Miscellaneous First Appeals No.102188 and 102189 of 2017 are preferred by the claimants seeking enhancement of compensation and Miscellaneous First Appeal No.101595 of 2018 is by the owner of the motorcycle challenging the liability saddled on him to pay the compensation.
4. Brief facts in all the cases are that:
On 23rd March, 2015, near Sales Tax Office, Kognoli, on the National Highway, the driver of the truck bearing registration No.NL-02/L-5213 attached with trailers bearing -8- NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 registration No.HR-55/R-584 and HR-55/H-0020, which are owned by the first respondent, had parked the same on express highway negligently. At about 2.00 pm, motorcycle bearing registration No.MH-12/ED-262, owned by respondent No.4 in MVC No.1555 of 2015, which was ridden by the Shahanavaj son of the petitioners 1 and 2; husband of petitioner No.3 and father of petitioner No.4, along with pillion rider viz. Madhukar being the son of petitioner No.1, husband of petitioner No.2 and father of petitioners 3 and 4 in MVC No.1651 of 2015, in a moderate speed dashed the motorcycle to the said truck and trailers, which resulted in death of both the rider and pillion rider. Respondent No.1 is the Roadlines and respondents 2 and 3 are Insurance Companies viz. Royal Sundaram Allianz Insurance Co. Ltd. and SBI General Insurance Co. Ltd., respectively.
5. In response to summons, Insurance Companies filed written statements. The substance of written statement of respondent No.2-Royal Sundaram Allianz Insurance Co. Ltd., in both the cases is that, respondent No.2 has issued insurance policy in respect of Truck bearing registration -9- NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 No.NL-02/L-5213 and Trailer bearing registration No.HR- 55/R-584 and the allegations made in the claim petition are denied. It is contended that the driver of the motorcycle rode the same in a high speed and in a rash and negligent manner and dashed to the parked truck and trailers, which were parked by keeping sufficient space on the road to pass traffic without any obstruction. It is further contended that the driver of the offending truck & trailers was not having valid and effective driving licence as on the date of accident and the owner of the truck and trailers has entrusted the same to the said driver and therefore, had violated the terms of policy. Hence respondent No.2 is not liable to pay the compensation. On all these grounds sought for dismissal of claim petitions.
6. The substance of written statement of Respondent No.3-SBI General Insurance Co. Ltd. in both the cases is that they have issued the policy to Trailer bearing registration No. HR-55/H-0020 and further denied all other averments made in the petition as false. It is further contended that on the date of the accident the driver of the truck and trailers had parked the same on the extreme left side of the road and on
- 10 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 the kaccha portion by taking due care, but the rider of motorcycle, rode the same in high speed in a rash and negligent manner and dashed to the parked truck and trailers and further contended that charge sheet is also filed against the rider of the motorcycle. On all these grounds, sought for dismissal of the claim petition.
7. Based on pleadings, the Tribunal has framed the following issues for its consideration: in MVC No.1555 of 2015
1. Whether the petitioners prove that on 23.03.2015, at 14.00 hours, on NH4 in Kognoli, Shahanavaz died in the accident occurred due to rash, or negligent, driving of the vehicles bearing registration No.NL-02/L-
5213, HR-55/H-584 and HR-55/H-0020 by its driver?
2. Whether the petitioners were dependants of deceased Shahanavaj?
3. Whether the petitioners are entitled to for compensation? if so, what amount and from whom?
- 11 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018
4. What order?
in MVC No.1651 of 2014
1) Whether the petitioners prove that on 23.03.2015, at 14.00 hours, on NH4 in Kognoli, Madhukar died in the accident occurred due to rash, or negligent, driving of the vehicles bearing registration No.NL-02/L- 5213, HR-55/H-584 and HR-55/H-0020 by its driver?
2) Whether the petitioners were dependants of deceased Shahanavaj?
3) Whether the petitioners are entitled to for compensation? if so, what amount and from whom?
4) What order?
8. To prove the case of petitioners, petitioner No.3 in both the cases, got examined as PWs1 and 2, and marked eleven documents as Exhibits P1 to P11. On closure of petitioners' side evidence, respondent No.2 is examined as RW1 and got marked nine documents as Exhibits R1 to R9. On hearing arguments on both sides, Tribunal allowed the claim petitions in part and awarded compensation of
- 12 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 Rs.12,90,000/- and Rs.10,70,000/- in MVC No.1555 and 1651 of 2015 respectively. The Tribunal has dismissed the claim petitions against Respondents 2 and 3 in both cases and directed the first respondent to pay the compensation. The Tribunal, holding that the rider of the motorcycle has also contributed for the accident in the ratio of 50:50, has directed the respondent No.1 to pay the compensation of Rs.6,45,000/- and Rs.5,35,000/- with interest at the rate of 9% per annum from the date of petition till realisation, but excluding the interest for the period from 04th April 2016 to 07th October, 2016 in MVC No.1555 of 2015 and from 20th April 2016 to 07th October, 2016 in MVC No.1651 of 2015.
9. Being aggrieved by the judgment and award passed by the Tribunal, MFA No.102188 of 2017 is filed by Pirsab Hasansab Mulla and others against respondents 1 to 4; and MFA No.102189 of 2017 is filed by Akkubai and others against respondents 1 to 3, seeking enhancement in the compensation.
10. MFA No.101595 of 2018 is filed by Damodar Vishwanath Shanke, against the judgment and award passed
- 13 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 in MVC No.1651 of 2017 against respondents 1 to 7 in the appeal seeking to modify the liability saddled on him and to fix the liability on respondents 1 and 2-Insurance Companies to pay the compensation.
11. Sri Sanjay S. Katageri, learned counsel for the claimants/appellants submits that common judgment and award dated 22nd February, 2017 by fastening the liability to the extent of 50% on the owner of the motorcycle is error, illegal and against the facts and documentary evidence. Learned counsel submits that Tribunal has committed an error in holding that the deceased rider of the motorcycle bearing registration No.MH-12/ED-262 was rash and negligent and dashed to the truck and trailers, as the documents, such as First Information Report, complaint and charge sheet which are marked as Exhibits P1, P2 and P11 respectively, are against both the vehicles. He submits that as is stated in spot panchanama-Exhibit P3, the truck and trailers were loaded with heavy machineries and some parts of the same were protruded causing obstruction to the vehicles that are coming from behind. Merely, attributing the charge only in respect of
- 14 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 negligent aspect as per Section 283 of Indian Penal Code cannot be the sole reason to hold that the deceased rider of motorcycle was negligent to an extent of 50% in causing the alleged accident, so also, on the basis of charge leveled against Sections 279 and 304A of Indian Penal Code. He submits that the approach and reasoning of the Tribunal is not in accordance with documentary evidence and as such, the said finding recorded by the Tribunal is illegal and same needs to be set aside. The learned counsel further submits that the Tribunal has not all discussed Exhibits P3 and P5 spot panchanama and spot mahazar. The truck belonging to Hindustan Petroleum Company, is a multi-axle vehicle attached with two trailers. The same was fitted with protruding fans/parts and were not equipped with any precautionary measures. The motorcycle which was coming from Kolhapur towards Nippani, was driving the same at the marked edge line of the Highway and the truck and trailers were parked on the road without any precautionary measures, which is specifically reflected in the spot panchanama Exhibit P3. Hence, the rider of the motorcycle was hit by the protruding fan fitted to the said trailers, which itself shows
- 15 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 that the rider was not negligent while riding the motorcycle and this aspect ought to have considered by the Tribunal. Instead the Tribunal proceeded on the basis of complaint, First Information Report and charge sheet and saddling 50% contributory negligence on the part of the rider of the motorcycle is an error. It is further submitted that the Tribunal has not properly appreciated the evidence on record in accordance with law. On all these grounds, the learned counsel sought for allowing the appeals by modifying the judgment and award of the Tribunal and fastening the entire liability on respondents 1 to 3 as jointly and severally liable to pay compensation to the claimants.
12. Sri R.H. Angadi, learned counsel appearing on behalf of the appellant in MFA No.101595 of 2018 who is the owner of the motorcycle bearing registration No.MH-12/ED- 262, submits that the impugned judgment and award passed by the Tribunal is erroneous and contrary to evidence on record. The Tribunal ought to have properly considered the evidence on record in accordance with law and ought to have directed the claimants to take substitute service against
- 16 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 respondent No.4 and in the absence of appropriate service against respondent No.4, the impugned judgment and award amounts to ex-parte judgment and no proper and fair opportunity was provided to respondent No.4 to put forth his claim as to the accident. Respondent-Insurance Company has not let in any evidence to prove the fact that the rider of the motorcycle had ridden the same in a negligent manner and he is sole attributor of negligence. The deceased is a pillion rider and he has not at all contributed any negligence in the accident. In the absence of any evidence attributable to the rider of motorcycle, the Tribunal has erred in fastening the liability on the owner of the motorcycle. On all these grounds sought to allow the appeal.
13. Sri S.K. Kayakmath, learned counsel appearing for respondent-Royal Sundaram Allianz Insurance Company Limited, submits that the driver of the truck and trailers had parked the same in a broad day-light time and the same might have been parked due to technical defect. During the course of cross-examination of PW1, he has admitted that the rider of motorcycle was not holding driving licence and the
- 17 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 motorcycle was not insured and the Tribunal has properly appreciated the evidence on record in accordance with law and facts and that there are no grounds to interfere with the impugned judgment and award passed by the Tribunal and hence, sought for dismissal of the appeal MFA No.101595 of 2018 preferred by the owner of the motorcycle.
14. Having heard the learned counsel for the parties and on perusal of records, the following points would arise for our consideration in these appeals:
1) Whether the appellant in MFA No.101595 of 2018 has made out a ground to interfere with the impugned judgment and award as to the fastening of liability against the respondent No.4;
2) Whether the appellants in MFAs No.102118
and 102189 of 2017 are entitled for
enhancement of compensation as sought for and for modification of award as to liability of insurance company?
3) What order?
15. Our answer for the above points are as under:
- 18 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 Point No.1: in the affirmative;
Point No.2: partly in the affirmative; Point No.3: as per final order Regarding Point No.1:
16. Brief facts of the case of the petitioner in MVC No.1651 of 2015 is that on 23rd March, 2015, on National Highway near Sales Tax Office, Kognoli, the driver of the truck bearing registration No.NL-02/L-5213 attached with trailers bearing registration No.HR-55/R-584 and HR-55/H-0020, had parked the same on express highway negligently. At about 2.00 pm, motorcycle bearing registration No.MH-12/ED-262, owned by respondent No.4 in MVC No.1555 of 2015, which was ridden by the Shahanavaj along with pillion rider viz.
Madhukar, dashed the motorcycle to the said lorry resulting in death of both the rider and pillion rider of motorcycle. Respondent No.1 is the Roadlines and respondents 2 and 3 are insurance companies viz. Royal Sundaram Allianz Insurance Co. Ltd. and SBI General Insurance Co. Ltd., respectively. To substantiate the case of petitioners, three witnesses were examined as PWs1 to 3 and 11 documents
- 19 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 were marked as Exhibits P1 to P11. On closure of petitioner's side evidence, one Bahubali S. Kuge was examined as RW1 on behalf of respondents and nine documents were marked as Exhibits R1 to R9. PW1-Smt. Surayya w/o Shahnavaj and PW2-Manik Madhukar Mane, have deposed in their evidence that the accident occurred due to negligence on the part of the driver of Truck and Trailers as it was parked on the express highway where vehicles were not allowed to park, that too without taking any precautionary measures. PW3- Prakash Dattu Gurav, the Proprietor of Hotel Garava Garden, who is the eye-witness to the incident, has deposed in his evidence that on 23rd March, 2015 at about 14.00 hours when he was waiting in front of his hotel for unloading the goods of his Hotel, the said Truck and Trailers were wrongly parked on the Express Highway without any indicator and at that time, the motorcycle which came from Kolhapur side dashed to the truck and the accident caused solely due to the negligent act of the driver who had wrongly parked the truck and trailers on the express highway without indicators. Apart from the oral evidence, the petitioners have produced material documents. On perusal of these documents, it makes clear that on the
- 20 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 basis of the complaint filed by one Suresh Masnu Maskar, Nippani Police have registered case in Crime No.0036 of 2015 against Shahnavaj Pirsab-Accused No.1 and Surinder Singh- Accused No.2, for commission of offence punishable under Sections 279, 283 and 304A of the Motor Vehicles Act, 1988 and submitted First Information Report to the Court. Thereafter, police visited the spot, conduct spot panchmana, prepared rough sketch in front of panchas and obtained post mortem report and the report of motor vehicle inspector and submitted charge sheet against accused No.1 Shahnavaj for commission of offence punishable under Section 279 and 304A of Indian Penal Code and Surinder Singh for commission of offence punishable under Section 283 Indian Penal Code. PW3 i.e. CW8 is shown as eye-witness in the charge sheet. He has clearly deposed as to the accident which has caused due to wrong parking of the vehicle. Sri Bahubali S Kuge, Senior Legal Executive in Respondent No.2 who is examined as RW1, has deposed that there was no negligence on the part of the driver of Truck and trailers, hence, Insurance is not liable to pay the compensation. But the charge sheet discloses that on the date of alleged accident, deceased was
- 21 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 riding the motorcycle in a rash and negligent manner and dashed to the truck bearing registration No.NL-02/L-5213 which was attached with two Trailers bearing Registration No.HR-55/R-0584 and HR-55/H-0020 which was parked on the left side of the road. Accordingly, police have filed charge sheet against the rider of motorcycle. Hence, respondent- Insurance Companies are not liable to pay compensation. Further, he has deposed that the vehicle bearing No.NL-02/L- 5213 is a transport vehicle and on the alleged date of accident, the driver of the vehicle was not having valid and effective driving licence and in view of the same, the respondent No.2 has filed application under Order XII Rule 8 read with Section 151 of Code of Civil Procedure calling upon the Driver and respondent No.1 to produce driving licence of the Driver and the Court Notice by way of RPAD was served on the owner of the Truck. In spite of the Court notice, the owner has not produced the driving licence particulars of the Driver. Hence, respondent No.2 has secured the Driving Licence particulars of the driver Surinder Singh from Tardeo RTO, Mumbai, Maharashtra, which reveals that the driver Surinder Singh is authorised to drive the transport vehicle till
- 22 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 15th November, 2018 and the date of accident is 23rd March, 2015. The Driving Licence is renewed for a period of three years after the alleged date of accident. Hence, it is clear that on the alleged date of accident, the Driver was not holding valid and effective driving licence and the owner has entrusted the vehicle to an unauthorized person and hence the Insurance Company is not liable to indemnify the owner truck and trailers as the owner has violated the terms and conditions of the policy.
17. Learned Counsel for the Insurance further submits that during the course of cross-examination of PW3-eye witness, respondents have not disputed the fact that he was an eye-witness to the accident. Further, the contents of the charge sheet itself reveal that he is the proprietor of Hotel Garava Garden which is situated near the place of accident. During the course of cross-examination, the respondent counsel has suggested that only in order to help the petitioner No.1, he is deposing falsely, but the same is denied by this witness. The learned counsel appearing for respondent No.3 has not specifically suggested to this witness that the accident
- 23 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 has not occurred due to negligent act on the part of the driver of truck and trailers who had wrongly parked the same on the express highway without any indicators. Apart from this, Exhibit P3-Panchanama, reveals that the place of accident is Kognoli village jurisdiction near Sales Tax Check Post, Opposite to Hotel Garava Garden and the accident occurred on NH47 and towards eastern side at a distance of five feet and the Highway, which is 28 feet wide, is running South- North. Further, it reveals that at the place of accident, one TVS Star white colour Motorcycle bearing registration No.MH- 12/ED-262 was found of which the front side indicator, mirror, bumper and handle were broken and damaged and the motorcycle was not in running condition. From the place of accident, towards southern side at the distance of 100 meters a Volvo-400 make heavy goods truck bearing registration No.NL-02/L-5213 attached with two trailers bearing No.HR- 55/R-0584 and HR-55/H-0020 belonging to Sandhu Roadlines Private Limited which was loaded with heavy machineries belonging to Hindustan Petroleum Company, was parked. Exhibit P3 does not reveal as to whether the driver of the above truck and trailers has taken precautionary measures
- 24 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 before parking the vehicle on express highway. The reason for parking the vehicle on the express highway has also not been disclosed by the Investigating Officer. Exhibit P6-Motor Vehicle Accident Report reveals that the stoppage of the truck and trailers on the express highway is not due to the mechanical defect. RW1 has not whispered anything contrary to the contents of the motor vehicle accident report. However, the learned counsel appearing on behalf of the Insurance Company has submitted that the accident occurred in broad day-light at 2.00 pm. The driver of the truck and trailer might have parked the vehicles due to mechanical defect. The said argument of the learned counsel is not in consonance of the contents of Exhibit P6, which apparently, is not disputed by Insurance Companies. The undisputed document-Exhibit P6 does not reveal that the accident was not due to mechanical defect of the vehicles involved in the accident. When the truck and trailers were not having any mechanical defect, the driver of the said vehicle should not have parked the same on the express highway. However, the Investigating Officer has not disclosed as to whether the driver of the above said truck and trailers had taken
- 25 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 precautionary measures before parking the same on the express highway and the Investigating Officer has also not disclosed anything about the compliance of provisions of Motor Vehicles Act and Rules and the Karnataka Traffic Control Act, 1960 and the Karnataka Motor Vehicle Rules, 1989 and Regulations, 2017. Had the driver of the above said truck and trailers taken precautionary measures while parking the truck and trailers on the express highway, the unfortunate accident would not have occurred. The evidence placed by the petitioners along with the material eye-witnesses PW3 reveals that the accident occurred due to negligent act on the part of the driver of the truck and trailers. The Tribunal has ignored the material evidence of PW3, the contents of panchanama and also the provisions of Motor Vehicles Act, Rules and Regulations and only on the basis of the charge sheet submitted by the Investigating Officer who has not properly investigated the case, has come to the conclusion that the accident occurred due to rash and negligent act on the part of the rider of motorcycle, which is not sustainable in law. On meticulous examination of the evidence on record, we are of the considered view that the accident occurred due
- 26 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 to negligent act on the part of the driver of the truck and trailers, who has parked the truck on the express highway in violation of provisions of aforesaid Act, Rules and Regulations. Apart from this, Investigating Officer has not submitted charge sheet against the driver of the Truck and Trailers for commission of offence under Section 3 read with 181 of Motor Vehicles Act and also has not filed any charge sheet against the owner of the vehicle for commission of offence punishable under Section 5 read with Section 180 of the Motor Vehicles Act. Since the accident has occurred due to negligence on the part of the driver of the truck and trailers, the owner of the truck/trailers and the Insurance Company are liable to pay the compensation to the claimants. Be that as it may, Exhibit R9, extract of Driving Licence of Surinder Singh, reveals that he was possessing driving licence of HMV transport vehicle with effect from 05th August, 1975 till 15th April, 2018 which is issued by Regional Transport Officer, Mumbai Central. Moreover, it is an admitted fact that respondent No.3-SBI General Insurance Company is the insurer of Trailer bearing registration HR-55/R-0584 in MVC No.1551 of 2016 and Royal Sundaram Allianz Insurance Company is the insurer of Truck
- 27 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 bearing registration No.NL-02/L-5213 and Trailer bearing registration No.HR-55/H-0020. Therefore, the arguments advanced on behalf of the insurance Companies cannot be accepted. Accordingly, the owner of the Truck and Trailers and the Insurance Companies are jointly and severally liable to pay compensation to the claimants, of which SBI General Insurance Company which is the insurer of Trailer bearing registration No.HR-55/R-0584 is liable to pay the compensation at the rate of one-third; and Royal Sundaram Allianz Insurance Company which is the insurer of Truck bearing registration No.NL-02/L-5213 and Trailer bearing registration No.HR-55/H-0020 is liable to pay compensation at the rate of two-third. The owner of the motorcycle bearing registration No.MH12/ED-262 is not liable to pay any compensation to the claimants. Hence, we answer point No.1 in the affirmative.
Regarding Point No.2:
18. As regards quantum of the compensation to the petitioners in MFA No.102188 of 2017 which is pertaining to MVC No.1555 of 2015 is concerned, the claimants have filed
- 28 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 claim petition seeking compensation for the death of one Shahnavaj Mulla, aged about 40 years who died in the accident. To substantiate their claim, the Petitioner No.3 Smt. Surayya, wife of Shahnavaj, has deposed in her evidence that the deceased Shahnavaj was aged 40 years, was hale and healthy prior to accident and he was running Dhandoulat Bakery and earning Rs.25,000/- per month. He was purchasing material from the market, preparing bakery items and was selling the same to various shops. She has further deposed that the licence of the bakery was standing in the name of her father-in-law and her father-in-law was not doing bakery work due to his old age and her husband deceased-Shahnavaj was looking after the bakery and due to accidental death of Shahnavaj, they had to close the bakery. She has further deposed that their future has become dark and miserable. The postmortem report of Shahnavaj which is marked as Exhibit P4 reveals that the age of the deceased was 42 years. She has also produced the certified copy of the licence Exhibit P7. Exhibit P8 consists of goods purchase bills which are 13 in number. Licence issued by the Food Safety and Standards Authority of India (FSSAI) in favour of Pirsab
- 29 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 Hassan Mulla is also produced. But the claimants have not furnished any documents to show the exact income of the deceased-Shahnavaj Mulla. Hence, in view of the guidelines issued by the Karnataka State Legal Services Authority the notional income has to be taken. For the accidents of the year 2015, the notional income as per the chart issued by Karnataka State Legal Services Authority is Rs.8,000/- per month. In view of the judgment of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157, 25% has to be added to the income towards future prospects. If that is added, the monthly income of deceased- Shahnavaj would come to Rs.10,000/-. Since there are four dependents, as per the decision of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION LIMITED AND ANOTHER reported in (2009)6 SCC 121, one-forth has to be deducted towards the personal expenses of the deceased. Accordingly, the monthly income comes to Rs.7,500/-. as per the decision of the Hon'ble Supreme Court in the case of SARLA VERMA (supra), the appropriate multiplier would be
14. Hence, the compensation under the head loss of future
- 30 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 income comes to Rs.12,60,000/- (Rs.7,500/- x 12 x 14). Keeping in mind the decisions of Hon'ble Supreme Court in the case of SARLA VERMA and PRANAY SETHI (supra); and the decision of Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE COMPANY LIMITED v. NANU RAM ALIAS CHUHRU RAM AND OTHERS reported in (2018)18 SCC 130, it is just and proper to award compensation as under:
Sl.No. Head Amount (Rs.)
1. Loss of dependency 12,60,000.00
2. Loss of consortium (Rs.40,000/- x 4) 1,60,000.00
3. Towards funeral expenses 15.000.00
4. Towards loss of estate 15,000.00
Total 14,50,000.00
19. As regards quantum of compensation in
Miscellaneous First Appeal No.102189 of 2017 in MVC No.1651 of 2015 is concerned, petitioners No.1 to 4 have filed the claim petition for the death of one Madhukar Mane in the accident. To substantiate their claim, petitioner No.3-Manik Madhukar Mane who was examined as PW2, has deposed in his evidence that the deceased was hale and healthy prior to accident and was having a cycle shop and jewelry shop, through which he was earning Rs.20,000/- per month and
- 31 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 maintaining his family. Due to untimely death of Madhukar Mane, the family has put to great financial loss and are undergoing mental agony. It is also deposed that after the death of Madhukar Mane, the brothers have discontinued their studies and are doing private jobs to maintain the family, and the future of the family has become dark. To substantiate their claim, petitioners have produced Exhibit P9-Licence and Exhibit P10-Postmortem report. Exhibit P10 reveals that the age of the deceased was 48 years. Petitioners have not placed any legal and acceptable evidence before the Court as to the income of the deceased. The claimants have not produced any documentary proof to substantiate the income of the deceased. In the absence of documentary proof, as per the guidelines issued by the Karnataka State Legal Services Authority, the notional income has to be taken. Accordingly, Rs.8,000/- is taken, to which, as per the decision of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157, 40% is to be added towards future prospects. According to the age of the deceased, the appropriate multiplier is 13. Though, there are four
- 32 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018 dependents as per the cause-title, the Tribunal has observed that since the respondents 3 and 4 are employed, they are not considered to be as dependents and accordingly taking the dependents as three, has deducted one-third towards personal expenses of the deceased. Accordingly, the loss of dependency comes to Rs.11,70,000.00 (Rs.7,500/- x 12 x
13). Keeping in mind the decisions of Hon'ble Supreme Court in the cases of SARLA VERMA and PRANAY SETHI (supra); and the decision of Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE COMPANY LIMITED v. NANU RAM ALIAS CHUHRU RAM AND OTHERS reported in (2018)18 SCC 130, it is just and proper to award compensation as under:
Sl.No. Head Amount (Rs.) 1. Loss of Dependency 11,70,000.00
2. Loss of consortium (Rs.40,000/- 1,60,000.00 x 4)
3. Towards funeral expenses 15.000.00
4. Towards loss of estate 15,000.00 Total 13,80,000.00 Accordingly we answer point No.2, partly in the affirmative.
- 33 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018
20. During the course of arguments, the learned counsel for the claimants submitted that the appellant No.1- the mother of the deceased and appellant No.4-son of the deceased in MFA No.102189 of 2017 arising out of MVC No.1651 of 20125, are no more and appellants No.2 and 3 in the said appeal are the legal representatives of appellants No.1 and 4.
Regarding Point No.3:
For the aforesaid discussions and reasons, we proceed to pass the following:
ORDER
1. MFA No.101595 of 2018 is allowed;
2. MFA No.102188 of 2017 and MFA No.102189 of 2017 are allowed in part. The impugned judgment and award dated 22nd February, 2017 passed in MVC No.1651 of 2015 and 1555 of 2015 by the VI Additional District Judge and Additional Motor Accident Claims Tribunal, Belgaum, is modified as under:
(i) The compensation awarded by Tribunal in MVC No.1555 of 2015 at Rs.12,90,000/- is enhanced the compensation to Rs.14,50,000/-;
- 34 -
NC: 2023:KHC-D:12467-DB MFA No.102188 of 2017 C/W MFA No.102189 of 2017, MFA No.101595 of 2018
(ii) The compensation awarded by the Tribunal in MVC No.1651 of 2015 at Rs.10,70,000/- is enhanced to Rs.13,80,000/-.
3) The compensation shall carry interest at the rate of 6% per annum from the date of petition till its realisation;
4. The insurance Companies shall deposit their liability of compensation as stated in the body of the judgment, within 60 days from the date of receipt of certified copy of this judgment;
5. After deposit, the Tribunal, shall disburse the same to the claimants in accordance with law;
6. Registry to draw the award accordingly;
7. Send the trial Court records and the copy of this judgment and award to the Tribunal for onward disbursal of compensation amount to the claimants.
Sd/-
JUDGE Sd/-
JUDGE lnn/RH LIST NO.: 1 SL NO.: 47