Karnataka High Court
The Manager vs Smt.Sonabai Dundappa Kabadagi on 9 June, 2022
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9th DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
M.F.A.NO.100118/2016 (MV-D)
C/W. M.F.A.NO.103288/2015 (MV-D)
IN MFA.NO.100118/2016
BETWEEN
1. SMT. SONABAI W/O. DUNDAPPA KABADAGI,
AGE:48 YEARS, OCC:HOUSEHOLD WORK,
R/O:LOKUR, TQ:ATHANI,
DIST:BELAGAVI.
2. SHRI SHIVAJI S/O. DUNDAPPA KABADAGI,
AGE:26 YEARS, OCC:AGRICULTURE,
R/O:LOKUR, TQ:ATHANI,
DIST:BELAGAVI.
3. SHRI SHANKAR S/O DUNDAPPA KABADAGI,
AGE:24 YEARS, OCC:STUDENT,
R/O:LOKUR, TQ:ATHANI,
DIST:BELAGAVI.
....APPELLANTS
(BY SRI SANJAY S. KATAGERI AND
SRI M.K.PATIL, ADVOCATES)
AND
1. SHRI MOHAN TATOBA METRE,
AGE:MAJOR, OCC:BUSINESS,
R/O:LOKUR, TQ:ATHANI,
DIST:BELAGAVI
(OWNER OF PICK UP VAN NO.KA.23/A-1482)
2. THE MANAGER,
IFFCO TOKIO GENERAL INSURANCE
COMPANY LIMITED.,
2
HAVING ITS OFFICE AT NO.127A,
BHAVANI ARCADE, 3RD FLOOR, NO.306,307,
NEAR OLD BUS STAND, OPP. BASAVA VAN,
NEAR COTTON MARKET, HUBBALLI,
DIST:DHARWAD
...RESPONDENTS
(NOTICE TO RESPONDENT NO.1-SERVED)
(BY SRI S.K.KAYAKAMATH, ADVOCATE FOR RESPONDENT
NO.2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF MOTOR VEHICLES ACT AND PRAYS THAT
THE JUDGMENT AND AWARD DATED 28.07.2015 PASSED IN
MVC. NO.1330/2009 BY LEARNED ADDITIONAL SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
ATHANI IN AWARDING RS.4,23,034/- AT 6% INTEREST P.A. BE
KINDLY MODIFIED BY ENHANCING TO RS.18,00,000/- WITH
INTEREST @ THE RATE OF 12% PER ANNUM FROM THE DATE
OF PETITION, TILL THE DATE OF PAYMENT BY HOLDING
RESPONDENTS NO.1 AND 2 JOINTLY AND SEVERALLY LIABLE
TO PAY THE COMPENSATION, IN THE INTEREST OF JUSTICE
AND EQUITY.
IN MFA.NO.103288/2015
BETWEEN
THE MANAGER,
IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED.,
HAVING ITS OFFICE AT NO.127A,
BHAVANI ARCADE, 3RD FLOOR, NO.306,307,
NEAR OLD BUS STAND, OPP. BASAVA VAN,
NEAR COTTON MARKET, HUBBALLI,
DIST:DHARWAD
REPRESENTED BY
AUTHORIZED SIGNATORY LEGAL T.P. CLAIMS,
IFFCO-TOKOY GENERAL INSURANCE COMPANY,
CUSTOMER SERVICE CENTRE, SHRI SHANTY TOWERS,
3
5TH FLOOR, 3RD MAIN, 141, EAST OF N.G.E.F. LAYOUT,
KASTURINAGAR, BENGALURU-560 043.
... APPELLANT
(BY SRI S.K.KAYAKAMATH, ADVOCATE)
AND
1. SMT. SONABAI W/O. DUNDAPPA KABADAGI,
AGE:48 YEARS, OCC:HOUSEHOLD WORK,
R/O:LOKUR, TQ:ATHANI, DIST:BELAGAVI.
2. SHIVAJI S/O. DUNDAPPA KABADAGI,
AGE :26 YEARS, OCC: AGRICULTURE,
R/O:LOKUR, TQ:ATHANI,
DIST:BELAGAVI.
3. SHRI SHANKAR S/O DUNDAPPA KABADAGI,
AGE:24 YEARS, OCC:STUDENT,
R/O:LOKUR, TQ:ATHANI,
DIST:BELAGAVI.
4. SHRI MOHAN TATOBA METRE,
AGE:MAJOR, OCC: BUSINESS,
R/O:LOKUR, TQ:ATHANI,
DIST:BELAGAVI
(OWNER OF PICK UP VAN NO.KA.23/A-1482)
....RESPONDENTS
(BY SRI SANJAY S. KATAGERI, ADVOCATE FOR RESPONDENT
NOS.1 TO 3)
(NOTICE TO RESPONDENT NO.4-SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF MOTOR VEHICLES ACT AND PRAYS TO
ALLOW THE APPEAL AS RAYED FOR BY SETTING ASIDE THE
JUDGMENT AND AWARD DATED 28.07.2015 ASSED BY THE
ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, ATHANI IN MVC.NO.1330/2009,
WITH COST IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS ARE COMING ON FOR ORDERS, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
4
JUDGMENT
These appeals are filed challenging the judgment and award passed by the Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal, Athani (for short 'the Tribunal') in MVC.No.1330/2009 dated 28.07.2015.
2. The appeal preferred by claimants is premised on the ground of inadequate and meager compensation. Whereas, the appeal preferred by Insurer is on the ground of exorbitant compensation and also on the ground of no liability against the insurer as deceased was a gratuitous passenger.
3. Parties to the appeals shall be referred to as per their status before the Tribunal.
4. Brief facts of the case are as under:
On 04.06.2009, the deceased-Dundappa was proceeding in pick-up van bearing registration No.KA- 23/A-1482 from Lokur to Mangsuli along with jowar bags and the driver of the said van drove the said 5 vehicle in a rash and negligent manner so as to endanger human life and when he reached near Government Hospital, Mangasuli village on Athani- Kagwad road at 8.30 a.m. driver lost control of the vehicle as a result the said vehicle turned turtle and caused the accident. Due to the said accident, deceased sustained grievous injuries to the vital parts of the body and immediately he was shifted to Bharathi Vidyapeeth Medical College and Hospital, Sangli and thereafter he was shifted to Dr.G.S.Kulkarni Hospital, Miraj, wherein he was admitted as inpatient and further shifted to Dr.Paramashetty Hospital, Miraj, wherein he took further treatment. On 28.06.2009 in order to take better treatment, deceased was taken to K.L.E. Hospital, but on the way to Hospital, deceased succumbed to the injuries. It is the case of claimants that they spent huge amount for the treatment of deceased-Dundappa and also spent amount towards funeral expenses and transportation. 6
5. Prior to the date of accident deceased was hale and healthy and aged about 45 years doing agricultural work and earning Rs.2,00,000/- per annum as he was earning Rs.4,500/- per month by milk vending business. It is also stated that deceased had purchased about 50 sheep by raising loan from the Bank and he was earning Rs.1,00,000/- per annum by getting wool from the sheep. In view of the sudden untimely death caused by road traffic accident, claimants have suffered serious mental, emotional, physical and financial loss. Therefore, they filed claim petition seeking compensation.
6. On service of notice, respondent Nos.1 and 2 appeared before the Court and filed their detailed statement of objections inter alia denying the occurrence of accident, age, income and avocation of deceased-Dundappa and the nature of accident as claimed by the claimants. Respondent No.1-owner of the offending vehicle in his statement has admitted in paragraph No.4 that deceased was traveling by carrying 7 jowar bags in the said vehicle. He further pleaded that his vehicle insured with respondent No.2 and if any liability to be fastened same will have to be fastened on the 2nd respondent. Respondent No.2 filed detailed statement of objections inter alia denying the entire averments made by the claimants including the occurrence of accident, age, avocation and income of the deceased and that he was traveling in the offending vehicle by carrying jowar bags. It is further pleaded that the deceased was traveling as a gratuitous passenger and not with goods as alleged in the complaint and it is in collusion with the police that a claim petition is preferred with a mala fide intention. Based on these pleadings sought for dismissal of the claim petition.
7. On the basis of pleadings, the Tribunal has framed relevant issues for consideration.
8. In order to establish the case and substantiate the issues, the claimant No.2 got examined himself as P.W.-1 and got examined two other independent witnesses as P.Ws.2 and 3. Whereas, 8 P.W.2 died before he could be cross-examined and his evidence could not be taken for the purpose of consideration. Whereas, respondent No.2 got examined himself as R.W.1 and got marked Ex.R.1 and 2.
9. Having heard the submissions of learned counsel for the parties and based on the pleadings and evidence both oral and documentary, the Tribunal awarded a total compensation of Rs.4,23,034/- along with interest at the rate of 6% per annum and held joint liability as against respondent Nos.1 and 2.
10. It is vehement contention of learned counsel appearing for the claimants that the judgment and award passed by the tribunal is erroneous and contrary to the material evidence placed on record both oral and documentary. Hence, the same deserves to be altered and modified for enhancement of compensation. Learned counsel further contends that the tribunal has not considered the correct income for calculation of compensation, where it was pleaded that the deceased Dundappa was earning around Rs.20,000/- to 25,000/- 9 per month. The tribunal has awarded only Rs.6,000/- per month. Despite producing the RTC extract to show that he was doing agricultural work, as per Ex.P67. Learned counsel further contends that the tribunal has failed to add 15% towards future prospects, in view of the fact that the claimant was less than 6o years of age. It is further contended by learned counsel that the tribunal has also committed error in not awarding suitable compensation under the head loss of consortium to the dependants of deceased. Hence, on these grounds learned counsel seeks to enhance the compensation including the enhancement of interest from 6% p.a. to 9% p.a.
11. Per contra, learned counsel appearing for the insurer in the connected appeal vehemently contends that the judgment and award passed by the tribunal is flawed and the tribunal has committed a serious error contrary to the material evidence placed on record. Learned counsel further contends that the deceased was not at all traveling in the goods vehicle belonging to the 10 1st respondent and he was only standing by near the vehicle and even if he was traveling he can only be considered as a gratuitous passenger as policy does not provide any compensation to the gratuitous passenger. Respondent No.1 has violated the terms and conditions of the policy.
12. It is vehemently contended by learned counsel for the insurer Shri S.K.Kayakamath that nowhere in the complaint it is mentioned with regard to the deceased having left the house with jowar bags and neither is it stated categorically in the complaint filed by the complainant. It is also contended by learned counsel that the police records also did not show any seizure of jowar bags or any mention of the same in the panchanama or the spot sketch. Therefore the theory of the complainant that deceased was travelling with jowar bag in the goods vehicle belonging to the 1st respondent is concocted and fictitious. The same cannot be believed and no material evidence having been produced with regard to seizure or carrying of jowar bags, the same is 11 tainted with mala fides and hence out rightly deserves to be rejected and if at all the Court comes to the conclusion that the deceased has met with an accident and succumbed to the injuries, the liability ought not be saddled on the insurance company. The same will have to be fastened on the owner of the vehicle.
13. It is further vehemently contended by the claimant that the policy covering respondent No.1 owner of the vehicle does not cover the risk of gratuitous passenger. Hence on these grounds also the judgment and award is liable to be set aside. It is further contended by the claimant that as there is no mention in the FIR or the police records with regard to carrying of jowar bags by the deceased on the fateful day of occurrence of accident, the said fact is an after thought created for the purpose of claiming compensation and hence the same requires to be set aside and reversed. He further contends that the claimant cannot blow hot and cold at the same time only with the ill motive of claiming compensation. It is also contended that as on 12 the date of occurrence of accident the driver of the offending vehicle, respondent No.1 did not possess a valid and effective driving licence.
14. Learned counsel further contends that claimants No.2 and 3 who are alleged to be dependents of deceased are admittedly aged 20 and 18 years respectively. But however no material is placed before this Court to prove their age and the fact that they are the dependents on the deceased. In the absence of the same, they cannot be treated as dependents. Therefore, the tribunal has committed a gross error in deducting 1/3rd towards personal and living expenses, whereas 50% ought to have been deducted while the widow is the only dependent of the deceased. On overall consideration of the entire judgment and award, learned counsel contends that the same is flawed on several grounds alleged in the appeal. Therefore, he seeks to allow this appeal and to set aside the judgment and award passed by the tribunal.
13
15. Having heard the learned counsel appearing for the claimants and the learned counsel appearing for the insurer, the points that arise for consideration are:
a) Whether the tribunal has awarded
meager and inadequate
compensation?
b) Whether the insurance company is to
be exonerated in view of the deceased
being gratuitous passenger as claimed by the insurer?
c) Whether the liability has to be
fastened on the owner of the
offending vehicle, respondent No.1?
d) What order?
16. It is not in dispute that the accident occurred on the ill fated day of 4.6.2019 when Dundappa was alleged to be travelling in the offending vehicle which was involved in the accident as stated earlier. In order to establish this fact, the claimants have produced Exs.P.1 to P.5 and P.8 to P.12 being the police records. These police records clearly depict that a criminal case 14 has been registered against the driver of the offending vehicle, respondent No.1 and charge sheet has been laid against him as per Ex.P.10. The said charge sheet is not challenged by respondent No.1 and neither is there any contra material placed by the insurer to prove anything contrary with regard to the police records produced as exhibits mentioned as above. In view of the same, it can be safely concluded that the occurrence of accident, rashness and negligence to be attributed against the driver of the offending vehicle, respondent No.1. The veracity and genuineness of the police records stated above cannot be disputed and also are not seriously disputed as the same are to be considered in view of the evidentiary value as per the Evidence Act. Though there is a serious objection by learned counsel appearing for the insurer with regard to there being no mention of carrying jowar bag and that it is an after thought and there is a delay in registration of FIR. Be that as it may, the same will be considered in due course of the judgment.
15
17. Now coming to the aspect of age, avocation and income of the deceased as on the date of occurrence of accident, the claimants have pleaded that deceased was aged about 45 years, but however no evidentiary material has been placed before the Court to establish the same. But in view of charge sheet Ex.P.10, the age of the deceased is taken at 65 years by the tribunal. I do not find any legal infirmity or error committed by the tribunal in assessing the age of the deceased to be 65 years.
18. Admittedly the claimants have not produced any material documents with regard to proof of income of deceased. In the absence of the same, the tribunal has taken the notional income of Rs.6,000/- per month for computation of compensation. This aspect of the matter has been seriously argued by the learned counsel for the insurer that there is no piece of evidence placed by the claimants with regard to income of deceased and when there is no evidence placed, the amount of Rs.6,000/- taken by the tribunal is exorbitant 16 and the same requires to be reduced. I am in agreement with the contention of learned counsel for the insurer that when there is no material proof with regard to income, the tribunal as well as this Court are left with no other alternative but to do guess work. But in order to arrive at such guess work a standard procedure has been laid down by the State Legal Services Authority by providing notional income chart. It would be advisable to adopt the same when there is no proof of income. As per the notional income chart prescribed by the Legal Service Authority, the income for the accident year 2009 is Rs.5,000/- per month. Therefore, in the present case on hand there being no material proof of income, I am of the opinion that the income adopted by the tribunal is on higher side and the same is required to be reduced to Rs.5,000/- in consonance with the notional income chart. The claimants have made the widow and two sons as parties and as dependents of the deceased, though it is vehemently controverted and argued by the learned counsel for the insurer that claimants No.2 and 3 are 17 aged 20 and 18 years and they would not fall within the category of dependents of deceased since they are adults and major in age. I am afraid that this contention of the learned counsel for the insurer cannot be accepted for the reason that admittedly age of the two sons of deceased are 20 and 18 years respectively and so also the same is stated in the evidence and in the FIR registered by the complainant, claimant No.2. Undoubtedly both are young and adolescents passed 7th or 8th standard and have started agricultural assistance to the deceased father. There being no contra material adduced or elicited in the cross-examination by the counsel for insurance company, it cannot be assumed that claimants No.2 and 3 are not dependents on the deceased. Therefore, I am afraid the contention of the learned counsel for the insurer cannot be accepted and the same is negatived.
19. In view of the fact hat there are 3 dependents, 1/3rd of the income will have to be deducted towards personal and living expenses of the 18 deceased. Therefore, if income is taken at Rs.5,000/- per month, Rs.3,333/- will be the amount left for expenditure towards family. In view of the fact of deceased aged 65 years, the appropriate multiplier applicable would be 7 as per the judgment of the Hon'ble Apex Court in the case of Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another, reported in (2009) 6 Supreme Court Cases 121, which is rightly adopted by the tribunal and there is not dispute with regard to the same. Therefore the loss of dependency would be Rs.2,79,972/- (Rs.3,333 x 12 x 7) as against Rs.3,36,000/- awarded by the tribunal.
20. It is seen that the tribunal has failed to award any amount towards compensation under the head loss of consortium. In the present case there being 3 dependents, each one would be entitled to Rs.40,000/- as contemplated in the case of National Insurance Company Limited vs. Pranay Sethi and others, reported in (2017) 16 Supreme Court 19 Cases 680, and thereafter followed in the case of United India Insurance Co. Ltd., v. Satinder Kaur alias Satwinder Kaur and others, AIR 2020 SC 3076. Accordingly the claimants would be entitled to Rs.1,20,000/- under the head loss of consortium. Towards loss of estate and towards funeral expenses and transportation of dead body the tribunal has awarded Rs.20,000/- each. This amount awarded by the tribunal is on higher side. As the Hon'ble Apex Court in the case of Pranay Sethi (supra) has prescribed Rs.15,000/- under the head transportation of dead body & funeral expenses and Rs.15,000/- towards loss of estate. Totally Rs.30,000/- amount to be awarded. In consonance with the judgment of Pranay Sethi (supra), the claimants would be entitled to 10% increase for one block period of three years on the compensation of Rs.1,50,000/- awarded under conventional heads. Accident being of the year 2009, from the date of accident, there are four block periods, to which there would be increase of 40% (10% x 4) 20 which would come to Rs.60,000/-. Then the total amount under this head would be Rs.2,10,000/-.
21. Tribunal has awarded a sum of Rs.47,034/- towards medical expenses as per the actual medical bills and prescriptions produced by the claimants at Exs.P.14 to 57. The same are on actual basis and I do not find any reason to interfere with the same. Hence it is retained.
22. In view of the above, claimants would be entitled to the total compensation as per the table mentioned hereunder:
Sl.No. Heads. Amount in
(Rs.)
1. Loss of dependency. 2,79,972
(5,000 - 1/3rd x 12 x 7)
2. Towards medical expenses. 47,034
3. Loss of consortium 1,20,000
(40,000 x 3)
4. Loss of estate 15,000
5. Towards transportation of dead 15,000
body and funeral expenses.
6. 10% increase on conventional 60,000
heads for four block periods of
three years.
(1,50,000 x 10% x 4)
Total: 5,37,006
Less: awarded by tribunal: 4,23,034
Enhanced compensation: 1,13,972
21
23. Though the learned counsel for the insurer has vehemently contended that in view of the deceased being a gratuitous passenger would not covered under section 147 of the M.V.Act, who was travelling in a goods vehicle, there would be no liability on the insurer to indemnify the insured respondent No.1. However the said contention of the learned counsel cannot be accepted. The same is negatived for the reason that Section 147(1)(b)(i) clearly states as follows:
147. Requirement of policies and limits of liability.--(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--
(a) xxxx xxxx xxxxx..
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)--
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person including owner of the goods or his authorized 22 representative carried in the motor vehicle or damage to any property of a third party caused by or arising out of the use of the motor vehicle in a public place.
(ii) xxxx xxxx xxxxx...
24. In the present case on hand the claimants have stated that the deceased was carrying one jowar bag at the time of occurrence of accident. It is relevant to note that in the written statement filed by respondent No.1, he has clearly admitted at paragraph No.4 that the deceased was carrying jowar bag in the said vehicle. The same has been stated in the evidence, so also the further statement made in the police records. Even if we agree with the contention of the learned counsel for the insurer that police records and statements made are after thought and no cogent and acceptable evidence has been placed before the Court with regard to the deceased carrying jowar bag as on the date of occurrence of accident, this Court cannot lose sight of the admission made by the 1st respondent in the written 23 statement filed before the tribunal which is an admission by itself. The same has not been controverted nor examined to the contrary by the counsel appearing for the insurer before the tribunal. Therefore the said contention is negatived. The liability is to be fastened on the insurance company absolutely as is covered under section 147(1)(b)(i) of the M.V.Act. Therefore, both respondents No.1 and 2 are jointly and severally liable to pay the entire compensation amount. In view of the policy being in force, respondent No.2 insurer is liable to pay the compensation. Accordingly, I pass the following:
ORDER
i) Both the appeals are disposed of.
ii) The judgment and award dated 28.7.2016, passed by the Addl. Senior Civil Judge and Addl. MACT, Athani, in MVC No.1330/2009, is modified.
iii) The claimants are entitled to a total compensation of Rs.5,37,006/- as 24 against Rs.4,23,034/- awarded by the tribunal.
iv) The enhanced compensation amount shall be deposited by the respondent No.2 insurer with interest at the rate of 6% p.a., within a period of six weeks from the date of receipt of a copy of this judgment.
v) All other terms and conditions stipulated by the tribunal stand intact.
vi) The amount in deposit in MFA No.103288/2015 shall be transmitted to the jurisdictional tribunal forthwith.
vii) No order as to costs.
SD JUDGE Ckk/AM/MRK