Karnataka High Court
The Magma Hdi General Insurance Company ... vs C A Aswatha Narayana Reddy @ Aswatha ... on 22 October, 2020
Bench: Alok Aradhe, H T Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER 2020
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA NO.811 OF 2018(MV)
C/W
MFA NO.2517 OF 2018(MV)
IN MFA 811/2018
BETWEEN:
The Magma HDI General Insurance
Company Limited,
Office at No.606, 2nd Floor,
9th Cross, WEST of Chord Road,
Basaveshwaranagara,
Bengaluru-560 086.
By
The Claim Manager,
Magma HDI General Insurance
Company Limited,
No.36, HMJC Building,
2nd Floor, above Axix Bank,
J.C.Road, Bangalore-560 002.
.... Appellant
(By Sri. O.Mahesh, Adv.)
2
AND
1. C.A. Aswatha Narayana Reddy,
@ Aswatha Reddy C.,
Aged about 49 year,
S/o C.K.Adinarayana Reddy,
R/at Cholashettyhalli,
Gowribidanuru Taluk,
Chikkaballapura District,
Pin Code-561 209.
2. Sri. Gangaiah,
Age 51 years,
S/o Gangappa,
R/o Hulekunte Village, D.Palya Hobli,
Gowibidanuru Taluk,
Chikkaballapura District.
...Respondents
(By Sri.C.Chandra Shekara N., Adv. for C/R1:
Notice to R2 is dispensed with
v/o dated:19.09.2018)
This MFA is filed under section 173(1) of MV Act
against the judgment and award dated:17.10.2017
passed in MVC No.5201/2016 on the file of the
Member, MACT, XVI Additional Judge, Court of Small
Causes, Bengaluru, an awarding a compensation of
Rs.14,18,300/- with interest @ 9% p.a. from the date
of petition till the date of payment.
IN MFA 2517/2018
BETWEEN
C.A. Aswatha Narayana Reddy,
@ Aswatha Reddy C.,
3
S/o C.K.Adinarayana Reddy,
Aged about 50 year,
R/at Cholashettyhalli,
Gowribidanuru Taluk,
Chikkaballapura District,
Pin Code-561 209.
...Appellant
(By Sri. Chandrasekara N., Adv.)
AND
1. The Magma HDI General Insurance
Company Limited,
Office at No.706, 2nd Floor,
9th Cross, WEST of Chord Road,
Basaveshwaranagara,
Bengaluru-560 086.
2. Sri. Gangaiah,
S/o Gangappa,
Age 52 years,
R/o Hulekunte Village, D.Palya Hobli,
Gowibidanuru Taluk,
Chikkaballapura District,
Pin code-562109.
...Respondents
(By Sri.O.Mahesh, Adv. for R1:
Notice not issued to R2 for
Want of PF v/o dated:31.05.2019
This MFA is filed under section 173(1) of MV Act
against the judgment and award dated: 17.10.2017
passed in MVC NO.5201/2016 on the file of the
Member, MACT, 16th Additional Judge, Court of Small
Causes, Bengaluru(SCCH-14), partly allowing the
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claim petition for compensation and seeking
enhancement of compensation.
These MFAs coming on for admission, this day,
H.T. Narendra Prasad J., delivered the following:
JUDGMENT
MFA No.811/2018 has been filed by the insurance company, whereas MFA No.2517/2018 has been filed by the claimant under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) being aggrieved by the judgment dated 17.10.2017 passed by the Motor Accident Claims Tribunal. Since both these appeals arise out of the same accident as well as a common judgment, they are heard together and are being decided by this common judgment.
2. Facts giving rise to the filing of the appeals briefly stated are that on 26.4.2016 at about 2.30 p.m. the claimant was proceeding on his Honda Shine motorcycle bearing registration No.KA-40-V-7686 5 along with his friend Dinesh Babu near D-Palya Village Lake, at that time, a tractor-trailer bearing registration No.KA-40-TA-0538/KA-40-TA-0539 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.
3. The claimant filed a petition under Section 166 of the Act on the ground that he was doing agricultural activities, sericulture, milk vending business and was earning Rs.70,000/- p.m. It was pleaded that he also spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.
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4. On service of notice, the respondent Nos.1 and 2 appeared through their respective counsel and filed separate written statements in which the averments made in the petition were denied. Respondent No.1 pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident was due to the rash and negligent riding of the vehicle by the claimant himself. The driver of the tractor trailer did not possess valid driving licence since the tractor when attached to the trailer becomes a goods vehicle and hence the driver did not possess valid licence to drive goods vehicle. The age, avocation and income of the claimant and the medical expenses are denied. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition. Respondent No.2 has pleaded that the petition is not maintainable. It was 7 further pleaded that the accident was due to the rash and negligent driving of the tractor-trailer by its driver. The driver of the tractor trailer possessed valid driving licence. The age, avocation and income of the claimant and the medical expenses are denied. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and Dr.Anirudh as PW-2 and got exhibited documents namely Ex.P1 to Ex.P32. On behalf of the respondents, neither any witness was examined nor any document was produced. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its 8 driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.14,18,300./- along with interest at the rate of 9% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, these appeals have been filed.
6. The learned counsel for the Insurance Company has raised following contentions:
Firstly, the Tribunal ought to have observed that there was no compliance of mandatory provisions of Section 134(c) of MV Act either by insured or of Section 158(6) of MV Act both by insured and concerned investigating police officer.
Secondly, the Tribunal ought to have observed that it is statutory obligation under Rule 235 of Karnataka Motor Vehicles Rules, 1989 to send notices to owners/driver of the vehicle said to have been 9 involved in the accident and call upon them to produce any evidence as they may wish to tender on issue of negligence as held by Apex Court in the case of Machindranath Kernath Kasar -v-
D.S.Mylarappa and Ors (2008 ACJ page 1964) wherein it is held that 'driver is a necessary party to decide issue of negligence'.
Thirdly, he further contended that driver of the tractor-trailer, Mr.Narayanappa pleaded guilty on
7.10.2016 even before the issuance of summons in C.C.No.144/2016 on the file of JMFC Gauribidanur. Therefore, it is clear that they have implicated the vehicle by colluding with the jurisdictional police.
Fourthly, even though the claimant claims that he was doing agricultural, sericulture, milk vending business and earning Rs.70,000/- per month, he has not produced any documents to establish his income. In the absence of proof of income, the income of the 10 claimant assessed by the Tribunal at Rs.15,000/- p.m. is on the higher side. PW-2, the doctor has stated in his evidence that the claimant has suffered disability of 50%, but he has not stated the disability caused to whole body. But the Tribunal has considered the whole body disability at 38% which is on the higher side. Considering the injuries sustained by the claimant, the compensation awarded by the Tribunal is on the higher side. Hence, he sought for allowing the appeal filed by the insurance company and dismiss the appeal filed by the claimants.
7. On the other hand, the learned counsel for the claimant has contended that in respect of negligence is concerned, the Tribunal after considering the oral and documentary evidence available on record has rightly held that the accident occurred due to rash and negligent driving of the tractor-trailer by its driver and fastened the liability on the Insurance 11 Company. In the claim petition filed by the pillion rider namely Mr.Dinesh Babu in MVC 4944/2016 arising out of the same accident, the Tribunal has held that the accident occurred due to rash and negligent driving of the tractor-trailer by its driver and awarded compensation. The Insurance Company has satisfied the award. Therefore, now the Insurance Company cannot contend that there is negligence on the part of the rider of the motorcycle i.e., claimant.
Secondly, regarding quantum of compensation is concerend, even though the claimant claims that he was doing agricultural, sericulture and milk vending business and earning Rs.70,000/- per month, but the Tribunal has taken the notional income as merely as Rs.15,000/- per month. PW-2, the doctor has stated in his evidence that neuropyschological evaluation report of the claimant showed impairment in verbal learning, verbal memory, visual learning and visual 12 memory functions and bilateral temporal lobe involvement and considering the same, he has stated that claimant has suffered disability of 50%. But the Tribunal has erred in taking the whole body disability at only 38%. Due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 11 days. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain during treatment. Considering the same, the compensation granted by the Tribunal is on the lower side. Hence, he sought for allowing the appeal filed by the claimant and dismiss the appeal filed by the Insurance Company.
8. We have considered the submissions made by the learned counsel for the parties and have perused the records.
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9. It is the case of the claimants that on 26.4.2016 at about 2.30 p.m. the claimant was proceeding on his Hone Shine motorcycle bearing registration No.KA-40-V-7686 along with his friend near D-Palya Village Lake, at that time, a tractor- trailer bearing registration No.KA-40-TA-0538/KA-40- TA-0539 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and immediately he was shifted to the hospital.
10. Under the Motor Vehicles Act in the claim petition before the Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in the civil case. No doubt, before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to decide for awarding 14 compensation, but the Tribunal is not expected to take or to adopt a nicety of a civil or criminal case. After all it is a summary enquiry and it is the legislation for the welfare of the Society. The proceedings under the Motor Vehicles Act are not akin to the proceedings under civil rules. Hence, strict rules of evidence are not required to be followed in this regard. In the case of MANGLA RAM -v- ORIENTAL INSURANCE COMPANY LIMITED (2018) 5 SCC 656 the Hon'ble Apex Court has held as hereinbelow:
"25. In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court 15 restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied."
11. In respect of Sections 134(c) and 158(6) of MV Act is concerned, it is not a mandatory provision and non compliance of this provision will not exonerate the Insurance Company from paying compensation. The Insurance Company has been made as party before the Tribunal, served notice and they have been represented through their counsel and filed written statement. Further, they have been permitted to examine their witness and also cross- examine the claimant/s. Therefore, there is no prejudice caused to the Insurance Company, Hence the contention of the Insurance Company that the 16 petition is not maintainable in view of non-compliance of mandatory provisions of Section 134(c) and 158(6) of MV Act is not maintainable.
12. So far as submission made by the learned counsel for the appellant on account of non compliance of Section 235 of Karnataka Motor Vehicles Rules, 1989, the matter deserves to be remitted to the Tribunal needs to be stated to be rejected. Rule 235(1) reads as under:
"Rule 235 Notice to the parties
involved
(1) The claims Tribunal shall on an
application made to it by the applicant send to the owner or the driver of the vehicle or both from whom the applicant claims relief and the insurer, a copy of the application, together with the notice of the date on which it will dispose of the application, and may call upon the parties to produce on 17 that date any evidence which they may wish to tender."
13. Further, this court in the case of M/S. PATEL ROADWAYS & ANOTHER -V- MANISH CHOTALAL THAKKAR AND OTHERS (ILR 2000 KAR 3286) regarding whether the driver of the vehicle involved in a Motor Accident is a necessary party in a claim petition against the owner of the Motor Vehicle and the Insurer, it is held that the Driver is a proper party, but not a necessary party as the liability of the owner (as master) and the driver (as servant) is joint and several. The position is clarified as follows:
"(a) Neither the Motor Vehicles Act nor Rules thereunder require the driver to be impleaded as a party to the claim petition;
(b) Under law of Torts, the owner and driver of the Motor vehicle being joint tort-
feasors, who are jointly and severally liable 18 for the negligence of the driver, the claimant can sue either the owner or the driver or both. But, whether driver is impleaded or not, a owner (master) can be made vicariously liable for the acts of his driver (servant) only by proving negligence on the part of the driver (servant), (c) Therefore a claim petition can be maintained against the owner and insurer of the vehicle causing the accident, without impleading the driver. However proving the negligence of the driver is a condition precedent, to make the owner vicariously liable for the act of the driver. (d) But where the driver is not impleaded as a party, no decree or award can be made against him. A driver can be held liable personally only when he is impleaded as a party and notice of the proceedings is issued to him.
14. Thus, from perusal of the aforesaid rule and decision, it is evident that the claims Tribunal has to send notice to the owner of the driver of the vehicle 19 or both from whom the applicant claims relief. In the instant case, the applicant has not chosen to claim any relief from the drivers of the vehicles. Therefore, it was not necessary for the claims Tribunal to issue notice to the drivers of the vehicles and therefore, it is not necessary to remand the matter to the Tribunal.
15. To prove the negligence on the part of the driver of the offending vehicle, the claimant has examined himself as PW-1 and he has deposed that the accident has occurred due to rash and negligent driving of the tractor-trailer. The police has registered FIR as per Ex.P-1 and after detailed investigation has filed charge sheet against the driver of the tractor- trailer. The Tribunal on the basis of the evidence of the parties and considering Ex.P-1-FIR, Ex.P-2-Charge sheet and Ex.P-3-IMV report, has rightly held that the accident has occurred due to rash and negligent driving of the tractor-trailer by its driver. Moreover, in 20 the claim petition filed by the pillion rider, namely, Mr.Dinesh Babu in MVC 4944/2016 arising out of the same accident, the Tribunal has held that the accident occurred due to rash and negligent driving of the tractor-trailer by its driver and awarded compensation. The Insurance Company has satisfied the award. Therefore, the Tribunal has rightly answered issue No.1 in the affirmative. There is no error in the said finding of the Tribunal. Re: Quantum of compensation:
16. The claimant claims that he was doing agricultural, sericulture and milk vending business and earning Rs.70,000/- per month, but he has not produced any evidence with regard to his income. Ex.P-22, Extract of payment ledger produced by the claimant does not bear the seal of the issuing authority. Therefore, the Tribunal considering the age, avocation and documents produced on record has 21 rightly assessed the income of the claimant at Rs.15,000/- p.m. As per wound certificate, the claimant has sustained head injury and right ear bleeding and CT scan reveals that left fronto temporal parietal SDH and left temporal contusion of brain. PW-2, the doctor has stated in his evidence that neuropyschological evaluation report of the claimant showed impairment in verbal learning, verbal memory, visual learning and visual memory functions and bilateral temporal lobe involvement and considering the same, he has stated that claimant has suffered disability of 50%. Considering the same, the Tribunal has rightly assessed the whole body disability at 38%.
Further, taking into consideration the evidence of claimant, doctor and documents available on record and considering the injuries sustained by the claimant 22 as per wound certificate, the Tribunal has awarded just and reasonable compensation under all heads.
In the result, both the appeals are dismissed. The amount in deposit is ordered to be transferred to the Tribunal for disbursement.
Sd/-
JUDGE Sd/-
JUDGE DM/-