Karnataka High Court
Smt. Sunitha vs Balachandra on 6 September, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
MFA.NO.2837/2016 C/W
MFA.NO.8804/2015 (MV-D)
MFA.NO.2837/2016
BETWEEN:
THE ORIENTAL INSURANCE CO. LTD.
REGIONAL OFFICE,
SUMANGALA COMPLEX,
OPPOSITE TO HDMC,
LAMINGTON ROAD,
HUBLI - 58020
REP. BY ITS DEPUTY MANAGER.
REPRESENTING
THE LEGAL MANAGER,
M/S. ORIENTAL INSURANCE CO LTD.,
THILUVALLI COMPLEX,
P.B.ROAD, DAVANAGERE-577001.
...APPELLANT
(BY SRI SURESH K, ADV. -THROUGH V.C.)
AND:
1. SMT. SUNITHA
W/O LATE SURESH,
AGED ABOUT 28 YEARS,
HOUSE WIFE,
2
2. SMT. MARAKKA
W/O LATE MUTHAPPA,
AGED ABOUT 67 YEARS,
HOUSE WIFE,
MOTHER OF THE DECEASED SURESH
BOTH ARE R/AT
KANAKATTE VILLAGE,
JAGALUR TALUK-577528.
3 . SRI BALACHANDRA
S/O M PANDURANGAPPA,
AGED ABOUT 34 YEARS,
DRIVER OF THE MOTOR BIKE
BEG.REG NO.KA.16.Y.8077
R/AT HALEHALLI VILLAGE,
JAGALUR TALUK-577528.
4. SRI O PRAHALAD
S/O SRI OBANNA,
OWNER OF THE MOTOR BIKE
BEG REG.NO.KA.16.Y. 8077,
R/AT JOGIBORAINAHATTI VILLAGE,
MUDDAPURA POST,
CHITRADURGA DISTRICT-577521.
...RESPONDENTS
(BY SRI R SHASHIDHARA, ADV. FOR R1 & R2
SRI N.R. RANGEGOWDA, ADV. FOR R3
SRI A HANUMANTHAPPA, ADV. FOR R4)
THIS APPEAL IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 21.10.2015
PASSED IN MVC NO.800/2014 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE, & MEMBER, MACT-V,
DAVANAGERE, AWARDING COMPENSATION OF
RS.7,41,000/- WITH INTEREST @ 6% P.A. FROM THE
DATE OF PETITION TILL REALIZATION.
3
MFA.NO.8804/2015
BETWEEN:
1. SMT. SUNITHA
W/O LATE. SURESH,
AGED 27 YEARS,
HOUSE WIFE,
2. SMT. MARAKKA
W/O LATE. MUTHAPPA,
AGED 66 YEARS,
HOUSE WIFE,
MOTHER OF DECEASED SURESH
BOTH ARE R/O. KANAKATTE
VILLAGE,
JAGALUR TALUK-577528.
...APPELLANTS
(BY SRI SHASHIDHARA R, ADV.)
AND:
1. BALACHANDRA
S/O PANDURANGAPPA M,
AGED ABOUT 33 YEARS,
DRIVER OF MOTOR BIKE,
BEARING NO. KA-16/Y-8077,
R/O HALEHALLI VILLAGE,
JAGALUR TALUK-577528.
2. O PRAHALAD S/O OBANNA
AGE: MAJOR
OWNER OF MOTOR BIKE
BEARING NO. KA-16/Y-8077,
R/O JOGIBORAINAHATTI VILLAGE,
MUDDAPURA POST,
CHITRADURGA DISTRICT-577501.
4
3. THE LEGAL MANAGER
ORIENTAL INSURANCE CO. LTD,
THILUVALLI COMPLEX, P.B. ROAD,
DAVANAGERE-577001.
...RESPONDENTS
(BY SRI K SURESH FOR R3 -THROUGH V.C.
R1 & R2 - NOTICE D/W V/O DATED 08.11.2017)
THIS APPEAL IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 21.10.2015
PASSED IN MVC NO.800/2014 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE, & MEMBER, MACT-V,
DAVANAGERE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA.No.2837/2016 is filed by the appellant- Insurance Company challenging the judgment and award dated 21.10.2015 passed in MVC.No.800/2014 by 1st Addl. Senior Civil Judge & MACT-V, Davanagere, contending that the offending Motor Bike bearing No.KA-16/Y-8077 had not caused the accident and the said motor bike has been also falsely implicated in the case and also challenging the quantum of compensation.
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MFA.No.8804/2015 is filed by the claimants for seeking enhancement of compensation.
2. Brief facts of the case are as under:
On 23.08.2014 at about 1.00 pm., the deceased
-Suresh S/o Muthappa was traveling from Kanakana Katte Village to Jagalur on his motor cycle bearing No.KA-16/K-8439, near Bharamasamudra village, respondent No.1 came by riding his motor cycle bearing No.KA-16/Y-8077 on back side in rash and negligent manner, so as to cause endangering to human life and dashed to the motor cycle of deceased-Suresh, due to which, he fell down from his motor cycle and sustained grievous chest injuries and other injuries to all over the body. Immediately, he was brought to Government Hospital, Jagalur, for treatment. Thereafter, he was shifted to SSIMS Hospital, Davanagere, for higher treatment as inpatient for a period of 8 days in SSIMS Hospital, Davanagere, but he succumbed to the injuries 6 sustained to his head and died in the hospital on 31.08.2014.
Submission of counsel for Insurance Company:
3. Learned counsel for the Insurance Company vehemently submitted that, in the present case, Motor Bike No.KA-16/Y-8077 was falsely implicated in the case just to make claim against the appellant-Insurance Company. He submitted that, in the complaint, it is not stated as to how the complainant came to know the motor bike number and the rider of the Motor Bike No.KA-16/Y-8077. It is only stated that the complainant came to know the number of offending motor bike and its rider, but how he came to know that is not forthcoming in the complaint or in any other statement and also in the evidence. Further submitted that P.W.1 is not eye witness, but the complainant is eye witness who is none other than the elder brother of the deceased. Therefore, there was no impediment for the 7 complainant to depose before the Tribunal regarding the factum of accident that he had seen the accident, but the complainant is not examined before the Tribunal. Therefore, learned counsel for the Insurance Company raised doubt that there is no positive evidence on the part of the claimants as to how the complainant came to know the number of offending motor bike and its rider. Therefore, submitted that the said Motor Bike No.KA-16/Y-8077 was falsely implicated in the case for the purpose of making claim against the Insurance Company.
4. Further submitted that upon perusal of Ex.P-12-IMV report the hind portion of the motor bike No.KA-16/K-8439 has not got damaged. Therefore, it is submitted that when it is the specific case of the claimants that Motor Bike No.KA-16/Y-8077 dashed the hind portion of the motor bike No.KA-16/K-8439, but hind portion of the motor bike No.KA-16/K-8439 has not got damaged. Therefore, raised doubt 8 regarding factum of accident as contended by the claimants. Therefore, submitted that the complainant is not eye witness and more over, even the above stated motor bike was not involved and it was falsely implicated in the case. Therefore, on these grounds, prays to allow appeal filed by the Insurance Company by setting aside the judgment and award passed by the Tribunal and also dismiss the appeal filed by the claimants.
Submission of counsel for claimant:
5. On the other hand, learned counsel for the appellants/claimants in MFA.No.8804/2015 submitted that the Insurance Company has not taken the contention before the Tribunal that fraud is played and Motor Bike No.KA-16/Y-8077 was not involved. Further submitted that the Insurance Company has denied the petition averments, but not specifically pleaded that fraud is played by falsely implicating Motor Bike No.KA-16/Y-8077. Further submitted that 9 in this regard when it is the allegation pleaded in the appeal that the claimants had played fraud, but that must have been established by the Insurance Company by leading evidence before the Tribunal, but without doing so, for the first time in the appeal, such contention is raised by the Insurance Company, but that is not tenable. Therefore, prays to dismiss the appeal.
6. Further submitted that in Ex.P.12-IMV Report the front left side indicator and head light mask was got damaged. Therefore, it proves that the front portion of the offending motor bike hit the motor bike of the deceased from behind and this proves the probability that the Motor Bike No.KA-16/Y-8077 had dashed the motor bike of the deceased. Therefore, submitted that this proves the fact that the Motor Bike No.KA-16/Y-8077 was involved in the accident. Further submitted that in the absence of any plea to be taken before the Tribunal, 10 no new grounds are allowed to urge in the appeal for the first time and he places reliance on the decision of the Division Bench of this Court in the case of Ramakrishna Reddy Vs, The Manager, Purchase, HMT Limited, Bangalore and Another reported in ILR 2002 KAR 1905. Further submitted that when the Insurance Company for the first time in the appeal urging that the fraud is played while filing the claim petition, but that ought to have been taken plea in the written statement as well as by leading evidence and to establish, but that is not done by the Insurance Company. Therefore, submitted that in the appeal the said contention is only for the sake of contention without having any proof. Therefore, submitted that the appeal filed by the Insurance Company may be dismissed.
7. Further submitted that the if such plea taken before the Tribunal, then that would have been suitably countered by the claimants, but the Insurance 11 Company has not led any evidence. Hence, the contention raised for the first time in the appeal cannot be entertained. Therefore, prays to dismiss the appeal.
Analyses:
8. As for the facts pleaded by the claimants in the claim petition that on 23.08.2014 at about 1.00 p.m., the deceased- Suresh S/o Muthappa was travelling from Kanakana Katte Village to Jagalur on his motor bike No.KA-16/K-8439, NEAR Bharamasamudra Village, the driver of another motor bike No.KA-16/Y-8077 (respondent No.3 herein) came in a rash and negligent manner had dashed the hind side of the motor bike No.KA-16/K-8439, due to which, the deceased fell on the road and sustained grievous injuries on the chest and other injury all over the body and he was shifted to the Government Hospital, Jagalur, and thereafter he was shifted to SSIMS Hospital, Davanagere, for higher treatment. 12 But the deceased succumbed to the injuries on 31.08. 2014. The complainant who is none other than the elder brother of the deceased has lodged the complaint before the police. The said complainant is not examined before the Tribunal. In the complaint- Ex.P.2, the complainant had stated that on 23.08.2014 his younger brother deceased had taken his motor bike to go to market at Jagaluru Town and at that time, the complainant was also going in an Autorickshaw to Jagalur Town and saw the incident and immediately taken the deceased to the hospital at Jagaluru and then to the SSIMS Hospital, Davanagere, for higher treatment. Therefore, the complainant has stated in the complaint that he had seen the factum of accident. The complaint was given on 24.08.2014. In the complaint, the complainant has stated that he came to know the number of motor bike as KA-16/Y- 8077 and its rider is Balachandra who is respondent No.3 herein.
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9. Therefore, the learned counsel for the Insurance Company vehemently contended that the complainant is not eye witness as he stated in the complaint that he came to know the motor bike number as KA-16/Y-8077. Therefore, he is not eye witness. It is further contended that had the complainant witnessed the accident, then he would have noted down the motor bike number at the spot itself, then upon his personal knowledge, he could have stated in the complaint. But the complainant has stated in the complaint that he came to know the number of offending vehicle that means he has not witnessed the accident.
10. Therefore, considering these strenuous submissions as contended by the learned counsel for the Insurance Company that in the complaint itself stated that he was going in Autorickshaw towards Jagalur for market purpose and he saw the accident and then shifted the deceased to the Government 14 Hospital firstly at Jagalur and then shifted the deceased to the SSIMS Hospital at Davanagere for higher treatment, quite naturally, at that point of time, it would have happened that eye witnesses may not be able to note down the number of offending vehicle. If after the accident, the offending vehicle runs away and in such an event, it is not possible to note down the number of offending vehicle. Therefore, quite naturally, there may be chances of not noting down the number of offending vehicle soon after the accident. Therefore, just because, there is no averments in the complaint that he has noted down the number of offending vehicle, the complaint cannot be doubted. After one or two days, upon enquiry, the complainant might have known as to who has caused the accident. Then after coming to know such particulars of the offending vehicle, quite naturally, in the complaint it is stated the number of offending 15 vehicle and name of rider of the vehicle who caused the accident.
11. Therefore, in this regard, because of these discrepancies raised by the Insurance Company, the complaint cannot be doubted and also the complainant is not eye witness to the accident. No doubt, P.W.1 is not eye witness, but in the evidence the P.W.1 in the cross-examination has stated that soon after the accident, she came to know about the accident from the mouth of the complainant who is none other than her brother-in-law. It is true that the complainant is not examined before the Tribunal. If the Insurance Company had specifically pleaded that the motor bike No. KA-16/Y-8077 is not involved and falsely implicated in the case and fraud is played, then the complainant would have examined the eye witnesses, but the Insurance Company has not pleaded specifically on this aspect in the written statement as well as not lead any evidence in order to prove the 16 alleged fraud played as contended by the Insurance Company.
12. No doubt, in the claim petition before the Tribunal, the strict rules of pleadings as contained in Code of Civil Procedure and strict rules of evidence as stipulated in the Indian Evidence Act are not applicable, but to some extent, the pleadings are necessary in order to know the contention of the parties by other side. When it is the contention by the Insurance Company that fraud is played before the Tribunal, it is not only sufficient to urge for the first time in the appeal, but also by leading evidence, which has to be established. The allegation of fraud against the complainant is not a trivial issue, but a serious issue as contented by the Insurance Company. When that being so, the fraud is to be established by the Insurance Company before the Tribunal by leading evidence, but the Insurance Company has not led any 17 evidence in order to establish the fraud, as alleged for the first time in the appeal.
13. Upon reading the averments in the written statement, the Insurance Company has simply denied the factum of accident and manner of accident as false. The denial of averments as false alone is not sufficient.
14. In the present case, the first informant, who is the brother of the deceased is not examined before the Tribunal. According to the contention of the learned counsel for the Insurance Company, the said non-examination of the first informant, who is stated to have witnessed the accident, is a set back to the claimants. Considering these submissions as urged by the Insurance Company, just because the first informant is not examined, that cannot be a ground to reject the claim made by the claimants. The proceeding before the Tribunal is to adjudicate 18 the claim petition, but not the criminal trial. Even in the absence of the evidence of the eye-witness to the accident, if the evidence of the claimant who is witness and also from other evidences, probable lies the factum of accident occurred as averred in the claim petition. Then the claim petition can be considered on its merits on the principle of preponderance of probabilities and there is no need to go into the aspect of proving the accident and involving the vehicles in the accident on the theory beyond reasonable doubt. Moreover, if the claim petitions before the Tribunal are conducted in the summary procedure, then evidence is necessary. But the degree of appreciation of evidence in the claim proceedings is not that of proving the fact beyond reasonable doubt. But the theory has to be followed on the principle of preponderance of probability. That means, whose contention is found to be more probable, his plea can be accepted. In this regard, I 19 place reliance on the judgment of the Hon'ble Apex Court in the case of ANITHA SHARMA AND OTHERS v. NEW INDIA ASSURANCE COMPANY LIMITED AND ANOTHER reported in (2021) 1 SCC 171. Paragraph No.21 reads as follows:
"21. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eye-witnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true."
15. If the Insurance Company is contending that fraud is played before the Tribunal, then it has to 20 be established by the Insurance Company. Even assuming that there is no occasion to find out the fraud played before the claim Tribunal, that has to be established basing the evidence adduced already before the Tribunal which are on record. The Insurance Company failed to prove as to how the fraud is played in the case. According to the contention of the Insurance Company, in the first information statement given by the brother of the deceased, it is stated that the first informant came to know the number of the offending vehicle and the name of the rider. The word 'came to know' occurred in the complaint is much stressed and submitted if the first informant is the eye-witness, then he would have stated in a straight way mentioning the number, but not stated in a straight way. But by stating 'came to know' about the number of the vehicle and name of the rider, hence interpreted the averments in the first information statement that there are chances of 21 implanting the vehicle. But here judicial notice of fact is to be taken into consideration that it is quite natural happening that soon after the accident, the offending vehicle may escape or run away. Under these circumstances, there could not be chances of noting down the number of the offending vehicle. Also for various reasons, the number of the offending vehicle could not be noted down because the primary attention must be given to the injured to give some treatment on the spot, like providing drinking water and washing mud stains on the wound, etc. Therefore, just because it is not stated in the complaint that the first informant has not stated the number of the vehicle and the name of the rider in a straight way, but by saying he came to know that, it does not mean that first informant is telling lie. Exs.P.4 to 7 are the true copy of the statements given under Section 161 of Cr.P.C. of the claimants, other witnesses and first informant. Ex.P.8 is the copy of 22 the statement of Raju, the complainant. Even though the claimants and other persons have not witnessed the accident, but during the course of investigation, the Investigating Officer has collected the evidence and recorded the statement, which is also part of the investigation of the crime alleged. Even though Ex.P.8 is the statement given by the first informant under Section 161 of Cr.P.C., there are other three persons who have witnessed the accident, but they are not examined before the Tribunal and that cannot be made a ground to reject the claim of the claimants. Therefore, In this regard, the contention urged by the Insurance Company is liable to be rejected.
16. The another contention urged by the learned counsel for the Insurance Company is that the criminal case registered for the alleged offence against the driver of the motorcycle, who is respondent No.3 herein was acquitted and thus, the driver had not committed the alleged offence. To answer this 23 contention, the result in the criminal case whether conviction or acquittal of the accused cannot be impact to decide the claim petitions before the Tribunal. Irrespective of the conviction or acquittal in the criminal cases pertaining to the said accident, the Tribunal shall evaluate and appreciate the evidence on record independently on its own as per evidence produced before the Tribunal. These result of the conviction or acquittal in criminal case may be relevant, but not conclusive proof regarding manner of accident and negligence aspect and regarding the vehicle. In the criminal cases, the paramount thing to be considered is that whether the accused against whom offence is foisted has committed the offence or not. This is the only parameter to be considered in criminal cases. But regarding the manner of accident and involvement of the vehicle are not at all the questions to be considered in the criminal Courts in the criminal case. Considering the present case, the 24 dispute raised by the Insurance Company is that the vehicle No.KA-16-Y-8077 is not involved. It is true that the judgment rendered in the criminal case is produced by the claimants and the accused in the said case was acquitted. But, such acquittal does not bear any impact on the claim proceedings before the Tribunal.
17. The learned counsel for the Insurance Company places reliance on the judgment of the Hon'ble Supreme Court and of this High Court, which are as follows:
(i) CDJ 2000 SC 163 - United India Insurance Co. Ltd. v. Rajendra Singh and others.
(ii) MFA No.962/2007 - New India Assurance
Co. Ltd. v. Jegadeesh Reddy and
another.
(iii) 2010 ACJ 1667 - Bajaj Allainz General Insurance Co. Ltd. v. B.C.Kumar and another.
25
(iv) MFA No.7025/2011 - Smt. Arathy and another v. S.M. Umesha and another.
(v) MFA Nos.3651/2010 c/w. 8416/2010 -
Manju v. R.R. Ravi and another.
(vi) MFA Nos.7279/2016 c/w. 7110/2016 -
The Divisional Manager v. Rayan
Fernandes and another.
18. Upon considering the facts and
circumstances in the case of Rajendra Singh (supra), the facts are that when the Insurance Company appeal before the Supreme Court, at that time, the Insurance Company has received the materials that fraud is played and therefore before the Supreme Court when the appeal is filed, the said materials are placed and after perusal of the same, the Supreme Court is of the opinion that fraud is played in the Court and that can be established at any stage of the proceedings during the trial or at appellate stage and considering the material placed regarding fraud played, the appeal of the Insurance Company was 26 allowed. But in the present case, there is no material placed before this Court even assuming that there was no occasion for the Insurance Company to take that contention before the Tribunal. Therefore, this makes the difference between the above said case and the present case. In the above said case, material was found proving fraud is placed. Therefore, the Supreme Court has opined that fraud vitiates entire thing. Therefore, in the above said case, the fraud is established, but in the present case there is no material placed, hence, fraud is not established. Whatever the evidences placed by the claimants, only on the basis of that, the Insurance Company has tried to make interpretation of the evidence without adducing any evidence on the question of fraud played. Therefore, in the present case, the fraud is not established, but the contention remained only as contention and that is dealt with as above stated. 27 Therefore, the above said ruling is not helpful to the Insurance Company.
19. Further, the learned counsel for the Insurance Company places reliance on the judgments of this Court in the cases of Jegadeesh Reddy, B.C.Kumar, Smt. Arathy, Manju and Rayan Fernandes (supra), wherein it was held that fraud vitiates entire thing. Therefore, the finding in the above stated judgments that upon appreciating the evidence on record, it was found that fraud was played and the fraud was proved in the context of the said judgments rendered. It is true that fraud vitiates the entire proceedings. In the present case, had the Insurance Company proved the fraud, then the entire claim proceedings would have been vitiated. Therefore, it depends upon the truth whether fraud is established or not established. But, as discussed above in the present case regarding the evidence on record, whether fraud is played or not, this Court found that 28 by the aforesaid discussions, the Insurance Company has failed to prove the fraud. Therefore, the judgments placed by the learned counsel for the Insurance Company are not applicable in the present case, because the fraud is not proved/established in the present case by the Insurance Company.
20. The Insurance Company need not look or see only the evidence placed by the claimants. The Insurance Company has every liberty to place its best evidences and also the Insurance Company is at liberty to request the Tribunal/ Court to summon any documents from any person or any authorities as per Code of Civil Procedure. But in the present case, the Insurance Company has not done so before the Tribunal. The Insurance Company is much harping on some discrepancies on the part of the claimants, but these discrepancies are found to be of trivial nature to be ignored as they are not coming in the way of considering the claim petition on its core. Just 29 because claimant No.1, who is the wife of the deceased is the daughter of Bhagyamma, who is the sister of the deceased is not stated either in the claim petition or in the evidence, that cannot be a ground to reject the evidence of the claimants. The deceased had married the daughter of his own sister Bhagyamma and just because the claimant No.1 has not stated that Bhagyamma is her mother, that cannot be a ground to reject the evidence of the claimant P.W.1. The pleadings and evidences in the form of affidavit in lieu of examination-in-chief are prepared by the advocates. Sometimes this minor/trivial things may be omitted and if such omission is not affecting the claim made by the claimant, then that can be ignored if it did not affect the merits of the case.
21. The learned counsel for the claimants has produced the certified copy of the judgment in Criminal Case No.728/2015 dated 22.04.2019 on the 30 Court of the Civil Judge and JMFC, Jagalur, that respondent No.3 who is accused in the above said criminal case was acquitted. Upon perusal of the same, respondent No.3 was acquitted for the reason that all the prosecution witnesses, except the official witnesses have turned hostile. Just because the witness turns hostile, that cannot be categorised as that the witness is false. The only thing to be considered when the witness turns hostile is that he has not supported the case of the prosecution and nothing more. But the truth lies somewhere else. That is to be found out by the Tribunal in the claim Tribunal upon the evidence placed before it independently without bearing in its mind the result in the criminal case. Therefore, the Tribunal has to assess the evidence independently of its own wisdom without getting influenced by the judgment rendered in the criminal case. Therefore, in this regard the Tribunal is correct in holding that the Insurance 31 Company is liable to pay the compensation. I do not find any perversity in the observation and finding reached by the Tribunal.
22. There are certain duties cast on the Insurance Company. Rule 232 of the Karnataka Motor Vehicles Rules, reads as follows:
"232. Duties of Insurance Company.- It shall be the duty of the Divisional Manager or the Branch Manager of the Insurance Company, as expeditiously as possible, to.-
(a) move an application in Form 63 before the Investigating Police Officer with prescribed fees, if any and gather full information about the accident, at the earliest, after receiving information about it, or on receipt of notice from the Claims Tribunals under Rule 235;
(b) ascertain and verify facts about
insurance of motor vehicle(s)
involved in the accident and confirm the same to the Claims Tribunal within thirty days of receiving notice of the claim case;32
(c) move application before the
concerned registering authority in
Form 63-A and gather information
about the motor Vehicle(s) involved, and the driving licence(s) held by the driver(s) thereof as per details mentioned in Form 63-B;
(d) deposit with the written statement in the Claims tribunal, the amount equivalent to the compensation, awardable on the principle of no fault liability under Section 140 of the Act in such cases where the information received in Form 63 confirms death or permanent disability to have been caused as a result of the use of the motor vehicle covered by the insurance certificate/policy issued by it."
23. Therefore, as per Rule 232 of the said Rules, it is essentially the duty cast on the Insurance Company to gather and secure full information about the accident from the investigating police officer and also to gather full information about the accident on 33 receipt of information or notice from the Claims Tribunal. It is the obligation on the part of the Insurance Company to ascertain and verify the facts regarding the insurance of the motor vehicle involved in the accident and confirm the same to the Claims Tribunal within 30 days of the date of receipt of the notice of the Claims Tribunal and also the Insurance Company is required to take particulars/information from the concerned registered authority of the vehicles regarding the motor vehicles involved and the driving licence held by the drivers. Therefore, there are various duties conferred on the Insurance Company, but in the present case, there is no evidence on the part of the Insurance Company that the Insurance Company has discharged its duties as per the provisions of the Motor Vehicles Act and Karnataka Motor Vehicles Rules. Therefore, in this regard, this Court in the judgment in the case of RAVI @ RAVINDRA v. THAMANNA AND ANOTHER 34 passed in MFA No.6863/2014 c/w. MFA No.1541/2015 dated 25.03.2021 is placed as appropriate one. In the said case also, the question was regarding involvement of the vehicle as contended in the present case by the Insurance Company and therefore while dealing with the said case, this Court had issued the guidelines to the Insurance Company what are the mandatory duties to be followed by the Insurance Company. Therefore, the principle of law laid down therein are applicable in the present case also. Therefore as discussed aforesaid, it can be said in a nutshell that there are two motorcycles involved in the accident bearing No.KA-16-K-8439 and KA-16-Y-8077 and the rider of motorcycle No.KA-16-Y-8077 had dashed motorcycle No.KA-16-K-8439 on which the deceased was riding and due to the said impact, the deceased died. The complaint lodged cannot be said as a delayed one as the accident occurred on 23.08.2014 and the first information statement was 35 given to the police on 25.08.2014 and even though there is a delay of two days, but it is occurred in a quite natural force for the reason that paramount thing is to consider to attend the injured for providing medical treatment to save the life of the injured rather than lodging of the complaint. Therefore, even though there is two days delay, it cannot be said to be significant one. Further, even though charge-sheet cannot be said to be gospel truth, but the statutory investigation made by the police has its own sanctity and weightage. The charge-sheet material can be discarded if rebuttal evidence is placed by the Insurance Company proving that the charge-sheet materials are false. Therefore, even in the judgment rendered in criminal case is considered before the criminal Court, there was an offence of accident caused by respondent No.3 between two vehicles above stated.
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24. Upon considering the contention of the Insurance Company, if the claimants and the owner of motor vehicle No.KA-16-Y-8077 are colluded to each other, then the rider of the motorcycle who is respondent No.3 herein could have pleaded guilty before the Magistrate Court, but that is not done by the rider of the motorcycle No.KA-16-Y-8077, who is respondent No.3 herein. Consideration of these fact assumes importance for the reason that to see the conduct of the parties involved in the case. If the driver pleads guilty, that could be an added advantage to the claimants to prove the factum of accident on part of the rider of the offending motor cycle. But this is not in the present case. Therefore, in this regard, the natural conduct of the parties are also to be considered. Just because the fraud is being played in the claim proceedings before the Tribunal are rampant that cannot be generalised in each and every claim cases. Each claim petitions can be considered on its 37 own merits, facts and circumstances on the evidence adduced before the Tribunal/Court. Therefore, in this regard, the judgments relied upon by the learned counsel for the Insurance Company as above stated are not applicable in the present case. Therefore, the Tribunal is correct and justified in fastening the liability on both the owner and the insurer of the offending vehicle No.KA-16-Y-8077. There is no dispute regarding existence and the validity of the insurance policy as on the date of accident as the same is produced as Ex.R.1 by the Insurance Company before the Tribunal. Therefore, the Tribunal is correct in directing the Insurance Company and the owner to pay the compensation to the claimants. Quantum of compensation:
25. In the present case, the Tribunal has awarded the compensation under various heads as follows:
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1. Loss of dependency Rs.6,12,000/-
2. Loss of consortium Rs.10,000/-
3. Loss of estate Rs.10,000/-
4. Loss of love and affection Rs.15,000/-
5. Transportation charges of Rs.10,000/-
dead body and funeral
expenses
6. Medical expenses Rs.84,000/-
Total Rs.7,41,000/-
26. In the present case, the Tribunal had taken the notional income as Rs.4,500/- per month and applying the relevant multiplier and deducting 1/3rd towards the personal expenses of the deceased, awarded an amount of Rs.6,12,000/- under the head loss of dependency. The accident was caused on 23.08.2014. Therefore, the notional income ought to be taken as Rs.8,500/- per month as per the chart prepared by the Karnataka State Legal Services Authority for the year 2014. Even though the claimants have stated that the deceased was earning Rs.10,000/- per month, but there is no evidence to prove that income. Therefore, in the absence of it, 39 the notional income of Rs.8,500/- per month is taken into consideration. The deceased was 38 years as on the date of the accident as stated in the claim petition by the claimants themselves.
27. The learned counsel for the claimants submitted that in the post mortem report, the age of the deceased is stated as 30 years and that can be considered. Therefore, where two evidences are available regarding the age of the deceased, the age stated by the claimant is more relevant than other documents. The doctor at the most, after seeing the physical feature of the body had stated the approximate age in the post mortem report. The age mentioned in the post mortem report is not based on scientific tests. Only upon seeing the physical feature of the body, it is stated approximately by the doctor in the post mortem report. Therefore, the age admitted by the claimants is to be taken into consideration. In the present case, the claimants themselves have 40 stated the age of the deceased as 38 years.
Therefore, the appropriate multiple would be '15'. Therefore, the Tribunal has committed an error in this regard while considering the age and applying the multiplier. Therefore, it is corrected as 38 years and multiplier applicable is '15'.
28. Considering the principle of law laid down by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, 40% of income has to be added towards loss of future prospectus in life. Considering the size of the family members/claimants, 1/3rd of the income has to be deducted towards personal expenses of the deceased. Therefore, the loss of dependency is re- calculated as under:
Monthly income - Rs.8,500/-
Add: 40% towards
Future prospects - Rs.3,400,/-
--------------
- Rs.11,900/-
41
Less: 1/3rd towards
Personal expenses - Rs.3,967/-
--------------
- Rs.7,933/-
-----------------
Loss of dependency = Rs.14,27,940/-
(Rs.7,933/- x 12 x 15) -----------------
29. The same is rounded off to Rs.14,28,000/-. Accordingly, under the head loss of dependency, an amount of Rs.14,28,000/- is awarded including loss of love and affection in life.
30. The Tribunal has awarded a compensation of Rs.10,000/- only under the head loss of consortium, which is on the lesser side. The claimants are the wife and mother of the deceased. Therefore, both are entitled to compensation of Rs.40,000/- each under the head loss of consortium. Accordingly, Rs.80,000/- is awarded under the head loss of consortium.
31. Towards loss of love and affection, granting an amount of Rs.15,000/- is amounting to repetitive 42 as the same has fallen under the head loss of consortium. Accordingly, granting compensation of Rs.15,000/- under the head loss of love and affection is liable to be set aside. The compensation of Rs.10,000/- awarded under the head loss of estate is found to be correct.
32. The compensation under the head transportation charges of dead body and funeral expenses at Rs.10,000/- is found to be on lesser side and the same is enhanced to Rs.15,000/-. The amount of Rs.84,000/- awarded under the head medical expenses is upheld and therefore, the same is kept intact.
33. Thus, in all, this Court determined the compensation as stated above stated:
1. Loss of dependency Rs.14,28,000/-
2. Loss of consortium Rs.80,000/-
3. Loss of estate Rs.10,000/-
4. Transportation charges of dead Rs.15,000/-
body and funeral expenses
5. Medical expenses Rs.84,000/-
Total Rs.16,17,000/-43
34. The Tribunal has awarded compensation of Rs.7,41,000/-, but the claimants are entitled to total compensation of Rs.16,17,000/-. Hence, the claimants are entitled to enhanced compensation of Rs.8,76,000/- (Rs.16,17,000/- - Rs.7,41,000/-) along with interest at 6% per annum from the date of petition till its realization. Accordingly, the appeal filed by the claimants is liable to be allowed in part and the appeal filed by the Insurance Company insofar as age of the deceased and multiplier is concerned is allowed in part. Accordingly, I proceed to pass the following:
ORDER
(i) The appeal filed by the claimants in MFA No.8804/2015 is allowed in part.
(ii) The impugned judgment and award dated 21.10.2015 passed in MVC No.800/2014 on the file of the I Additional Senior Civil Judge and MACT, Davanagere, is modified to the 44 extent that the claimants are entitled to enhanced compensation of Rs.8,76,000/- along with interest at 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal.
(iii) The other observations made by the Tribunal are not disturbed.
(iv) The amount in deposit made before this Court shall be transmitted to the Tribunal along with TCR and a copy of the order forthwith.
(v) Costs made easy.
(vi) Draw the award accordingly.
Sd/-
JUDGE
PB/MD