Karnataka High Court
National Insurance Co Ltd vs Sarojamma on 17 December, 2018
Author: H.P.Sandesh
Bench: H.P. Sandesh
1 M.F.A. No. 3671/2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE Mr. JUSTICE H.P. SANDESH
M.F.A. No. 3671/2010
BETWEEN :
National Insurance Co. Ltd.,
Mandya Branch
Through its Regional Office
# 144, Subharam Complex
M.G. Road
Bangalore - 560 001
Rep. by its Administrative Officer
Smt. D. Karthika. ... APPELLANT
(By Sri. Lakshmi Narasappa, Adv., for
Sri. B.C. Seetharama Rao, Adv.)
AND :
1. Smt. Sarojamma
Aged about 44 years
W/o. late N, Srinivas
Agriculturist
R/o. Sollepura Village
Kasaba Hobli, Maddur Taluk.
2. Sri. B.C. Venkataswamy
Major
2 M.F.A. No. 3671/2010
S/o. Chikkaputtegowda
R/o. Venkateshwara Nilaya
Shivapura, B.M. Road
Maddur Town
(owner of Swaraj Mazda
KA.11/D-9599).
3. Sri. N.B. Manjunatha
Major
S/o. Bommaiah
R/a. No. 55, 3rd Main
Ranganathapura
Magadi Road
Kamakshipalya
Bangalore - 79.
(owner of Bajaj Boxer M/C
KA02/EH-9649).
4. The Manager
The Oriental Insurance
Co. Ltd., DO-II, No. 2911
Saraswathipuram
New Muslim Hostel Complex
Mysore. ... RESPONDENTS
(By Sri. S. Raju, Adv., for R-1
Sri. M.Y. Srinivasan, Adv., for R-2
Sri. R. Anil Kumar, Adv., for
M/s. Kesvy & Co., for R-3
Sri. M.S. Sriram, Adv., for R-4 )
---
3 M.F.A. No. 3671/2010
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated 13.10.2009 passed
in MVC No. 243/2008 on the file of Civil Judge (Senior
Division) and MACT, Maddur.
This MFA coming on for Hearing this day, the court
delivered the following;
JUDGMENT
This Miscellaneous First Appeal is filed by the Insurance Company challenging the judgment and award dated 13.10.2009 passed in MVC No. 243/2008 on the file of Civil Judge (Senior Division) and MACT, Maddur, challenging the fastening of liability on the Insurance Company to pay the entire compensation and not considering the contributory negligence on the part of the deceased himself and also the quantum of compensation.
2. The claimant is the mother of the deceased. The claimant has filed the claim petition under Section 166 of Motor Vehicles Act claiming compensation of Rs.14,00,000/- contending that on 06.05.2008, at about 4 M.F.A. No. 3671/2010 02.00 pm, when her son was proceeding to Maddur from Mandya in a Bajaj Boxer bearing registration No.KA.02/EH.9649 on the left side of the Bangalore Mysore main road slowly and cautiously, when he reached Gejjalagere near KMF, a canter vehicle Swaraj Mazda bearing No. KA-11/D-9599 being driven by its driver in a rash and negligent manner with high speed, suddenly crossed the road without any signal and the accident occurred. Due to the accident, her son fell down and sustained grievous multiple injuries. Immediately thereafter, he was shifted to General Hospital, Mandya and he succumbed to the injuries.
3. It is her case that her son was aged about 26 years and he was doing tender coconut business in addition to agricultural operations and he was earning a sum of Rs.10,000/- per month. He was the bread earning member of the family and claimed compensation.
5 M.F.A. No. 3671/2010
4. The appellant herein was arrayed as respondent No.2. In pursuance of the notice of the Tribunal, the respondent appeared through counsel and filed objections contending that the accident occurred on account of negligence on the part of the deceased himself. In this regard the driver of the vehicle, Swaraj Mazda gave complaint to the concerned Police. The Police have investigated the case and filed charge-sheet against the deceased. Hence, there cannot be any liability against the Insurance Company.
5. Before the Tribunal, the claimant in support of her claim examined herself as P.W.1 and also examined P.W.3 and P.W.4 as eye witnesses to the accident and got marked Ex.P.1 to Ex.P.10. The respondent Insurance Company though contended that the accident occurred on account of negligence on the part of the deceased, did not choose to 6 M.F.A. No. 3671/2010 examine any witnesses and have not marked any documents.
6. The Tribunal, after considering the oral and documentary evidence available on record answered issue No.1 in the affirmative by coming to the conclusion that the accident occurred on account of negligence on the part of driver of Swaraj Mazda and allowed the claim petition in part granting compensation of Rs.3,79,000/- with 6% interest. Being aggrieved by the said judgment and award of the Tribunal, the Insurance Company has filed this appeal.
7. In the grounds of appeal, the Insurance Company has contended that the very finding of the Tribunal is perverse since it is contrary to the documents admitted on behalf of the claimant before the Tribunal as Ex.P.1, Ex.P.2, Ex.P.9 and Ex.P.10. The fact that the police having examined 15 witnesses had laid the charge-sheet against 7 M.F.A. No. 3671/2010 the deceased was not given due consideration by the Tribunal while preferring to rely upon the changed version of P.W.4. The other contention of the Insurance Company that the Tribunal ought to have noticed that at 02.00 pm, in day light, the deceased had dashed his motorcycle on the right back side portion of the Canter and suffered fatal injuries. When the matter stood thus, the Tribunal had no reason to hold that the driver of the Canter was negligent. The deceased had not taken any care while riding his motorcycle and he had dashed the goods vehicle in high speed. Therefore, the findings of the Tribunal are erroneous and are liable to be set aside.
8. The other contention of the Insurance Company is that the Tribunal acted arbitrarily in taking 2/3rd of the income of the bachelor towards loss of dependency of the sole claimant and ought to have deducted 50%. The Tribunal awarded a sum of Rs.43,000/- under 8 M.F.A. No. 3671/2010 conventional heads to the death of bachelor and the same is excessive and arbitrary.
9. Learned counsel for the appellant in his arguments vehemently contended that even though the material on record are against the deceased, the Tribunal has committed an error in coming to the conclusion that the accident was on account of negligence on the part of the driver of Swaraj Mazda. In fact the accident occurred on the sole negligence of the deceased. In support of his contention the learned counsel has relied on the unreported decision of Division Bench of this Court in M.F.A. No. 4026/2015 c/w. 4816/2015 and brought to my notice paragraph Nos. 9, 10 and 17 of the judgment. By relying upon this judgment he contends that this Court having considered the material on record apportioned the contradictory negligence and hence this is a fit case to set 9 M.F.A. No. 3671/2010 aside the judgment and award insofar as negligence is concerned.
10. The other contention of the learned counsel for the appellant is that the Tribunal has committed error in deducting only 1/3rd and taking 2/3rd income for calculating the loss of dependency for a bachelor and the said judgment is erroneous to that extent. The learned counsel further contends that under the conventional heads the compensation awarded by the Tribunal is on higher side. The learned counsel also relied upon the judgment of the Apex Court in the case of Shivawwa and another Vs. Branch Manager, National India Insurance Co. Ltd., and another, AIR 2018 SC 1640 and contends that the Apex Court in the said judgment has held as under:
New plea - Award of compensation passed by Tribunal - Claimant neither filed appeal for enhancement of compensation - Nor chose to 10 M.F.A. No. 3671/2010 file any cross-objection in first appeal filed by the insurer before High Court - Relief claimed by claimant only to set aside decision of High Court - Plea regarding quantum of compensation at the instance of claimants - Cannot be allowed to be raised for first time in appeal.
Hence, the learned counsel contends that in the absence of any appeal by the claimant, this Court cannot reconsider the quantum of compensation.
11. Per contra, learned counsel for the claimant in his arguments vehemently contends that though the Police have filed charge-sheet against the deceased, the Tribunal has taken note of the evidence available before the Court, that too, the evidence of eye witnesses who have been examined before the Tribunal as P.W.3 and P.W.4. Nothing is elicited in their cross-examination regarding negligence is concerned except a denial of suggestion that witnesses 11 M.F.A. No. 3671/2010 were not present in the place of accident. In the absence of any cogent and contra evidence, the Tribunal has rightly considered the material on record and came to the conclusion that the accident was on account of sole negligence on the part of the driver of Swaraj Mazda. The learned counsel also relied on the judgment of the Hon'ble Supreme Court in the case of Rani and others Vs. National Insurance Company Limited and others (Civil Appeal Nos. 9078-9079/2017) (2018) 8 SCC 492. In the said judgment the Court has observed that considering the claim of claimants, even in the absence of counter appeal or cross-objections, the High Court considered Order 41 Rule 33 of CPC and revised the compensation and has upheld the same and hence, in the absence of counter appeal or cross-objections, the High Court can award just and reasonable compensation. He further contends that the said judgment is by a larger Bench and the recent judgment of Shivawwa's (supra) case is by a Division 12 M.F.A. No. 3671/2010 Bench and hence the large Bench judgment prevails. Therefore, the learned counsel contends that this Court has to reconsider the quantum of compensation by awarding just and reasonable compensation.
12. After having heard the arguments of learned counsel appearing for the appellant and the claimant and on perusal of the judgment and award of the Tribunal, the following points arise for my consideration. I. Whether the Tribunal has committed an error in coming to the conclusion that the accident is on account of sole negligence on the part of the driver of Swaraj Mazda?
II. Whether the Tribunal has committed an error in awarding higher compensation by deducting only 1/3rd and taking 2/3rd income for calculating loss of dependency and also compensation under conventional heads?
III. Whether this Court can reconsider the quantum of compensation in the absence of appeal or cross- objections filed by the claimant and this Court can 13 M.F.A. No. 3671/2010 reconsider the compensation in the appeal filed by the Insurance Company?
On Issue No. I
13. On perusal of records, it is clear that no doubt the police have filed the charge-sheet against the deceased. The records of the police discloses that based on the complaint of the driver of Swaraj Mazda a case has been registered against the deceased. The claimant who is the mother of the deceased filed the claim petition and made an allegation against the driver of Swaraj Mazda and in support of her claim she examined two witnesses, P.W.3 and P.W.4 as eye witnesses. In the evidence of P.W.3 and P.W.4 they claim that they were sitting by the side of the place of accident and the motorcyclist was proceeding from Mandya side towards Maddur on the left side of the road and the driver of Swaraj Mazda, without any signal, came from KMF Diary side to go to Mandya in a rash and negligent manner, took turn and at that time the 14 M.F.A. No. 3671/2010 motorcyclist who came from Mandya side hit the rear portion of the said lorry. This specific evidence is given as to how the accident had taken place. He was subjected to cross-examination by respondent No.4 and in the cross- examination it is elicited that he has not given any statement before the Police and only a suggestion was made that he was not in the accident spot and he did not witness the accident and in order to help the claimant he was giving false evidence before the Tribunal. The said cross-examination was adopted by the learned counsel appearing on behalf of the appellant and P.W.4 also reiterated the same in his affidavit. In the cross- examination of P.W.4 he says that while recording the statement before the police he has stated that the accident had occurred due to the negligence on the part of the driver of the goods vehicle but he did not read the said statement. For him also a suggestion was made that he did not witness the accident and he has filed false affidavit 15 M.F.A. No. 3671/2010 before the Tribunal. On the other hand though the learned counsel for the Insurance Company took the defence that the accident was on account of sole negligence of the deceased himself, both the insurers did not choose to examine any witnesses before the Tribunal and only relied upon the documentary evidence of police papers, i.e., Ex.P.1, Ex.P.2, Ex.P.9 and Ex.P.10.
14. The contention of the learned counsel for the appellant Insurance Company is that the Tribunal ought not to have come to the conclusion that the accident was on account of negligence on the part of driver of Swaraj Mazda. On perusal of the judgment and award of the Tribunal, it is clear that the Tribunal while considering issue No.1 in paragraph No.11 discusses with regard to the pleadings and also made an observation that the driver of the Canter in his complaint made an allegation that he was trying to take turn near KMF Diary, Gejjalagere to go to 16 M.F.A. No. 3671/2010 Mandya by giving all signals and the deceased motorcyclist came in a high speed and dashed against his Canter from behind. In his complaint, he has stated that he had parked his Canter vehicle in front of KMF diary Gejjalagere to go to his regular route to collect milk, that is, towards Mandya and he was trying to take turn to go to Mandya by giving all signals. Actually the driver of the Canter vehicle had parked his vehicle in front of KMF diary Gejjalagere. To take turn to go towards Mandya firstly he should enter Mandya-Bengaluru main road and then take right turn. In Ex.P.2 there is clear narration as to how the accident occurred on Mysore-Bengaluru highway and in between the said road, there is a divider. Even in the sketch it is made clear that from KMF diary the Canter vehicle should enter the main road first and then take a right turn to go towards Mandya. If actually the driver of the Canter vehicle had taken all possible care while turning the vehicle, he could have avoided the accident. Further, it is not in 17 M.F.A. No. 3671/2010 dispute that the deceased was coming from Mandya towards Maddur. Therefore, a duty was cast upon the driver of the Canter vehicle who was taking turn on the highway to take all possible precautions. It is probable that the deceased sustained severe bleeding injuries and immediately he was shifted to the Hospital. The driver of the Canter vehicle lodged complaint after coming to know that the motorcyclist died on the way to hospital. When such being the case, it is always probable that complainant will make the other person liable by concealing his involvement for such occurrence. Considering these probabilities, the Tribunal has held that the accident had occurred due to negligence of the driver of Canter vehicle. The Insurance Company denied the involvement of driver of Canter but has not made any efforts to secure the driver and to examine him before the Tribunal. On the other hand none of the respondents stepped into the witness box to substantiate their case. 18 M.F.A. No. 3671/2010 Under such circumstances, considering the manner of occurrence narrated in the sketch and the oral testimony of witnesses examined, the Tribunal comes to the conclusion that the accident occurred on account of sole negligence on the part of driver of Swaraj Mazda.
15. Now coming to the evidence available before the Court and as I have already pointed out that the charge- sheet has been filed against the deceased, the Tribunal has considered the evidence of P.W.3 and P.W.4 who are the eye witnesses to the accident. A perusal of the cross- examination of P.W.3 and P.W.4 indicates that except the suggestion that P.W.3 and P.W.4 were not there in the spot of accident, nothing is elicited in their cross-examination with regard to the negligence on the part of the deceased himself. P.W.3 and P.W.4 who have been examined as eye witnesses. In their chief evidence they have categorically stated how the accident had taken place and the Tribunal 19 M.F.A. No. 3671/2010 also considered the sketch which has been relied upon by the Insurance Company. The accident had taken place near KMF diary when the driver of the Canter was about to take right turn. The right person to speak with regard to the negligence of the deceased is the driver of the Swaraj Mazda and he has not been examined before the Tribunal and no cross-examination in respect of P.W.3 and P.W.4 with regard to the negligence is forthcoming. The Tribunal has observed that taking advantage of the fact that the injured has sustained severe injuries and he was unconscious, a complaint was lodged and police were also carried away by the complaint given by the driver of Swaraj Mazda that while taking right turn, the deceased came and dashed against the Canter. Though the driver of Swaraj Mazda contends that he has given signals, he has not been examined before the Tribunal. Though the respondents have taken the defence that the accident was on account of negligence on the part of deceased himself, they did not 20 M.F.A. No. 3671/2010 choose to examine any of the charge-sheet witnesses. P.W.4 is a charge-sheet witness. Though P.W.3 states that he did not give any statement before the Police, his evidence has not been rebutted by the learned counsel for the Insurance Company except a suggestion that they did not witness the accident. In support of the defence taken by the Insurance Company, no effort has been made to examine the driver of Swaraj Mazda or to effectively cross- examine the eye witnesses. Therefore, I do not find any grounds to interfere with the judgment and award of the Tribunal and the Tribunal has given the reasons as to why it answered point No. 1 in the affirmative to come to the conclusion that the accident had taken place on account of negligence on the part of the driver of Swaraj Mazda.
16. Learned counsel for the appellant vehemently argued that the findings of the Division Bench in the unreported judgment in M.F.A. No. 4026/2015 c/w. 21 M.F.A. No. 3671/2010 4816/2015 is aptly applicable to the case on hand. I do not find any force in the said contention of the learned counsel for the appellant. In the said case, the vehicles were proceeding in the very same direction. Regulation 23 of Rules of Road Regulations, 1989 prescribes that sufficient distance is to be maintained. But, in the instant case the driver of Swaraj Mazda who had parked his vehicle by the side of the road had suddenly taken right turn towards the main road. Though he contends that he had given all signals while taking the right turn, he has not been examined before the Tribunal. Except police records no other documents are produced. Merely filing a case against the deceased himself is not a ground to come to the conclusion that negligence is on the part of the deceased and the Court has to take into consideration all the material available before it in detail. In view of the above, I am of the opinion that the judgment relied on by the learned counsel for the appellant is not applicable to 22 M.F.A. No. 3671/2010 the case on hand. Accordingly, issue No. I is answered in the affirmative.
On Issue Nos. II & III
17. Learned counsel for the appellant in his arguments regarding quantum of compensation contends that the Tribunal has deducted 1/3rd of the income and admittedly it is the case of death of a bachelor. The Tribunal has committed an error in deducting 1/3rd income and taking 2/3rd of the income for calculating loss of dependency. Now the question that arises before this Court is, in the absence of an appeal or cross-objection by the claimant whether this Court can reconsider the quantum of compensation. Learned counsel for the claimant by relying upon the observations made by the Apex Court in Rani's case contends that in the absence of an appeal or cross-objections, by invoking Order 41 Rule 33 of CPC this Court can reconsider the quantum of 23 M.F.A. No. 3671/2010 compensation. In the said decision by the three Judges Bench, the Court has observed that the High Court has invoked Order 41 Rule 33 of CPC in the absence of claimant's appeal and cross-appeal and the same has been considered by the Apex Court.
18. Per contra, learned counsel for the Insurance Company relied upon the judgment of the Apex Court in Shivawwa's case wherein the Apex Court has held that the claimants neither filed appeal for enhancement of compensation nor chose to file any cross-objections in the first appeal filed by the insurer before the High Court and now they cannot be allowed to raise the said ground for the first time in the appeal. The judgment in Shivawwa's case is by a Division Bench of the Apex Court and the judgment in Rani's case is by a Bench of three Judges. In Rani's case the Apex Court has taken note of Order 41 and Rule 33 and held that the High Court in the absence of appeal and 24 M.F.A. No. 3671/2010 cross-objections considered the case of the claimants and has upheld the same.
19. Having considered the principles laid down by the judgment referred supra, in the case on hand, in the absence of any appeal or cross-objections, I am of the view that this Court can reconsider the compensation awarded by the Tribunal and award just and reasonable compensation since the motto of the said enactment is to award just and reasonable compensation under Section 168 of MV Act.
20. I have already pointed out that the Tribunal while considering the deductions has committed an error in deducting only 1/3rd income as it is the case of death of a bachelor and the Tribunal ought to have deducted 50%. The Tribunal has taken the income of the deceased as Rs.3,000/- per month. The claimant has also got examined P.W.2 with regard to the income of the deceased, says that 25 M.F.A. No. 3671/2010 the deceased was doing tender coconut business and he was earning Rs.10,000/- per month. In the cross- examination of P.W.2, it is elicited that he is not having any document to show that the deceased was earning Rs.10,000/- per month. However, a suggestion was made that in order to do tender coconut business he has to obtain licence and the said suggestion was denied. The claimant has not produced any documentary proof to show that the deceased was doing tender coconut business. In the absence of documentary proof in respect of the income of the deceased, the Tribunal has taken his income as Rs.3,000/- per month. The accident is of the year 2008. Therefore, the Tribunal ought to have taken the notional income of the deceased as Rs.4,500/- instead of Rs.3,000/-. Further, the Tribunal while calculating the loss of dependency by taking the income as Rs.3,000/- had taken the age of the mother and not the deceased and applied the multiplier as 14. The claimant has also not 26 M.F.A. No. 3671/2010 produced any documentary proof regarding the age of the deceased and only relied on the postmortem report. Ex.P.3
- the postmortem report discloses that the age of the deceased is about 25 years. The claimant also relied upon Ex.P.4 - the Ration Card wherein the age of the deceased is mentioned as 25 years, but, the date of issue of the said Ration Card has not been mentioned. Hence, this Court has to rely upon the age mentioned in the postmortem report and therefore, the relevant multiplier applicable to the case on hand is 18. Having taken the income of the deceased as Rs.4,500/- per month, in view of the judgment of the Apex Court, 40% has to be added as future prospects. This has not been done by the Tribunal and this has to be reconsidered by this Court. Further, 50% has to be deducted. After adding 40% to Rs.4,500/-, it comes to Rs.6,300/-. Thus, the loss of dependency works out to Rs.6,80,400/- (Rs.6,300/- x 12 x 18 x 50/100). 27 M.F.A. No. 3671/2010
21. The Tribunal has awarded a sum of Rs.43,000/- under the conventional heads. In view of the observations made by the Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others, (2017) 16 SCC 680, in case of a bachelor a sum of Rs.30,000/- has to be awarded under the other conventional heads. Therefore, the compensation awarded by the Tribunal under conventional heads is reduced from Rs.43,000 to Rs.30,000/-. Accordingly I answer point Nos. II in the negative and point No. III in affirmative.
22. In view of the above discussion, the appellant is entitled for compensation under different heads as under:
Sl. Different heads Amount
No.
1. Loss of dependency 6,80,400.00
2. Conventional heads 30,000.00
TOTAL 7,10,400.00
28 M.F.A. No. 3671/2010
23. In view of the above, the following;
ORDER
1) The appeal filed by the Insurance Company is dismissed.
2) The impugned judgment and award dated 13.10.2009 passed in MVC No. 243/2008 on the file of Civil Judge (Senior Division) and MACT, Maddur, is hereby modified enhancing the compensation to Rs.7,10,400/- with interest at the rate of 6% per annum.
3) The Insurance Company is directed to pay the amount within six weeks from the date of receipt of copy of this order.
4) The amount in deposit is ordered to be
transmitted to the Tribunal.
Sd/-
JUDGE
LRS.