Karnataka High Court
The Divisional Manager vs Tahasinbanu @ Hasheshin Rafiq Kudachi on 29 August, 2019
Author: K.Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29th DAY OF AUGUST 2019
BEFORE
THE HON'BLE MR.JUSTICE K. NATARAJAN
MISCELLANEOUS FIRST APPEAL NO.24493 of 2013
c/w MISCELLANEOUS FIRST APPEAL NO.23123 of 2013 (MV)
IN MFA NO.24493 OF 2013
BETWEEN:
1. TAHASINBANU @ HASHESHIN
W/O. RAFIQ KUDACHI
AGE: 23 YEARS, OCC:HOUSEHOLD WORK
2. KUMARI MADINA D/O. RAFIQ KUDACHI
AGE: 05 YEARS, OCC:NIL
3. KUMAR RIHAN S/O. RAFIQ KUDACHI
AGE: 2 1/2 YEARS, OCC:NIL
SINCE APPELLANTS 2 AND 3 ARE
MINORs, R/BY THEIR MOTHER
MINOR GUARDIAN, APPELLANT NO.1
ALL ARE R/O. BANHATTI,
TQ:JAMAKHANDI NOW AT KUDACHI,
TQ: RAIBAG DIST: BELGAUM
... APPELLANTS
(By Sri. HARISH S.MAIGUR, ADVOCATE)
AND:
1. RACHAPPA S/O. GURAPPA PAWADASHETTI
AGE: MAJOR, OCC: OWNER OF THE VEHICLE
R/O. KULALI, TQ:MUDHOL
DIST: BAGALKOT
2
2. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO,. LTD
OPP. SIDDESHWAR TEMPLE ROAD
BIJAPUR
3. REHMATBEE W/O. SAHEBLAL KUDACHI
AGE: 61 YEARS, OCC: HOUSEHOLD WORK
R/O. NEAR MALINGARAY TEMPLE
KURABAR ONI, BANHATTI,
TQ:JAMKHJANDI DIST: BAGALKOT
... RESPONDENTS
(By Sri. MRUTYUNJAY TATA BANGI, ADVOCATE FOR R1.
SRI. C.V. ANGADI, ADV FOR R2.
R3 SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:08-05-2013 PASSED
IN MVC NO.393/2012 ON THE FILE OF MEMBER, MACT-
IX, MUDHOL, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
In MFA NO. 23123 OF 2013
BETWEEN:
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD
OPP. SIDDESHWAR TEMPLE ROAD, BIJAPUR.
... APPELLANT
(By Sri. C.V. ANGADI, ADVOCATE)
AND:
1. TAHASINBANU @ HASHESHIN RAFIQ KUDACHI
AGE: 23 YEARS, OCC:HOUSEHOLD WORK,
R/O : BANAHATTI, TAL : JAMKHANDI,
NOW AT KUDACHI, TAL : RAIBAG
DIST. BELGAUM.
3
2. KUMARI MADINA D/O RAFIQ KUDACHI
AGE: NOW ABOUT 5 YEARS,
OCC : NIL, R/O : BANAHATTI
TAL : JAMKHANDI, NOW AT
KUDACHI, TAL : RAIBAG, DIST. BELGAUM.
3. KUMAR RIHAN S/O RAFIQ KUDACHI
AGE : NOW ABOUT 2 AND 1/2 YRS
OCC : NIL, R/O : BANAHATTI,
TAL : JAMKHANDI, NOW AT
KUDACHI, TAL : RAIBAG DIST. BELGAUM.
RESPONDENT NOS.2 AND 3 ARE MINORS,
REPRESENTD BY THEIR M/G NATURAL MOTHER
SMT TAHASINBANU W.O RAFIQ KUDACHI
RESP.NO.1
4. REHMATBEE W/O SAHEBLAL KUDACHI
AGE: 60 YEARS, OCC: HOUSEHOLD
WORK, R/O : NEAR MALINGARAY
TEMPLE, KURABAR ONI,
BANHATTI, TAL : JAMKHANDI
5. RACHAPPA S/O GURAPPA PAWADASHETTI
AGE: MAJOR, OCC: OWNER OF
VEHICLE, R/O : KULLALI,
TAL : MUDHOL, DIST. BAGALKOT.
... RESPONDENTS
(By Sri. AHAMED ALI REHAMAN SHAH, ADVOCATE FOR R4
SRI. MRUTYUNJAY TATA BANGI, ADV. FOR R5
R1 SERVED. R2 AND R3 MINORS REP. BY R1.)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
8,5,2013 PASSED IN MVC NO.393/2012 ON THE FILE OF
THE MEMBER MACT,-IX MUDHOL AWARDING
COMPENSATION OF RS.7,38,500/- WITH INTEREST AT
THE RATE OF 9% P.A. FROM THE DATE OF PETITION TILL
ITS DEPOSIT.
4
THESE MISCELLANEOUS FIRST APPEALS COMING
ON FOR ADMISSION THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
JUDGMENT
1. Though these appeals came up for admission, with the consent of learned counsel
appearing for both parties, they are heard finally.
2. Miscellaneous First Appeal No.24493 of 2013 is filed by the claimants whereas Miscellaneous First Appeal No.23123 of 2013 is filed by the insurer assailing the judgment and award dated 8th May 2013 passed by the Motor Accident Claims Tribunal IX, Mudhol (hereinafter referred to as the 'Tribunal', for short), in MVC No.393 of 2012.
3. Heard the arguments of both the counsel for the parties.
4. Rank of the parties before the Tribunal is retained for convenience.
5
5. The claimants filed a petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'Act', for brevity) claiming compensation of Rs.14,50,000/- inter alia contending that on 12.05.2011 at about 4.00 pm, when the husband of the first claimant namely Rafiq Kudachi was proceeding on his motorcycle bearing registration No.KA-48-K-4934, near Rohini Bio-Tech and was about to stop his motorcycle for attending natures call, at that time, the driver of the tractor bearing registration No.KA-23-T- 4392 and trailer bearing registration No.KA-23-TA-144 and KA-23-TA-145 came in high speed in a rash and negligent manner and dashed to the motorcycle of Rafiq Kudachi from back side, due to which, he fell down and was dragged to 16 feet and died on the spot. Therefore, claimants filed petition claiming compensation on various heads.
6. In pursuance to the notice, respondent No.1- owner of the vehicle appeared through counsel and filed written statement denying the averments made in the 6 petition as false. However, admitted that he is the owner of the tractor- trailer in question but disputed the age, occupation and income of the deceased and stated that the driver had valid driving licence as on the date of the accident. If any liability, the same shall be fastened on the second respondent-insurance company. The second respondent-insurance company appeared through counsel and filed statement of objections by denying the averments made in the petition and the manner of the accident in question as false. Though it admitted issuance of policy in respect of the vehicle in question but has contended that the issuance of policy is subject to terms and condition and that the driver of the tractor-trailer was not holding an effective driving licence to drive the vehicle at the time of the accident and further taken contention that the name of the driver mentioned in the complaint and FIR was one Gurupad Paramanand Guggodagi @ Kamatagi of Mugalkhod but subsequently in the charge sheet name of one Nagappa Rachapa Shivashimpi has been 7 mentioned which shows the claimants are making a wrongful gain in collusion with the police authorities. The deceased had not met with an accident. The vehicle is involved in the accident in collusion with the police authorities. The respondent is in no way concerned with the alleged accident. However, it has contended that the claim by the petitioners is excessive and exorbitant and prayed for dismissal of the claim petition.
Though the 3rd respondent being the mother of the deceased not shown as a claimant but has supported the claim of the petitioners and prayed for allowing the petition.
7. Based on the rival pleadings, the Tribunal framed the following issues:
1. Whether petitioners proves that on 12.05.2011 at about 4.00 pm deceased Rafiq and another were moving from Banahatti to Mudhol in Motor-Cycle No.KA-
48-K-4934 and reached near Bio-Tech, 8 deceased was about to stop his vehicle to attend nature call, i.e., urinals, at that time driver of tractor No.KA-23-T-4392 and trailer No.KA-23-TA-144 and KA-23-TA-145 came in high speed in a rash and negligent manner and dashed to the motorcycle of deceased Rafiq from back side. Due to which deceased Rafiq Kudachi sustained severe fractural injuries all over the body and died on the spot as stated in the petition?
2. Whether the petitioners prove age and income of the deceased as stated in the petition?
3. Whether petitioners are entitled for the compensation as claimed? If so, to what extent and from whom?
4. What order or award?
8. To substantiate their contentions, first claimant examined herself as PW-1 and got marked six documents as Exs.P-1 to P-6. On the other hand, on behalf of the second respondent, the Branch Manager of 9 the insurance company was examined as RW-1 and the first respondent-owner of the tractor examined himself as RW-2 and got marked Exs.R-1 and R-2.
9. After considering the evidence on record, the Tribunal answered issue No.1 in the affirmative, issue No.2 partly in the affirmative and awarded compensation of Rs.7,38,500/- together with interest at the rate of 9% per annum and fastened the liability on the insurance company. The compensation awarded is as under:
Rs.
1 Towards loss of dependency 6,88,500/- 2 Towards loss of consortium 15,000/- 3 Towards loss of love and affection 20,000/- 4 Towards loss of estate 5,000/-
5 Towards funeral expenses 10,000/-
Total 7,38,500/-
10. Assailing the judgment and award with respect to fastening the liability on the insurer, the 10 insurance company has filed MFA No.23123 of 2013 whereas the claimants have filed MFA No.24493 of 2013 seeking enhancement of compensation.
11. Learned counsel for the insurer strenuously argued that the Tribunal committed an error in fastening the liability on the insurer. The police have filed charge sheet against one Nagappa Rachappa Shivashimpi for the offences punishable under Sections 279, 337 and 304(A) of IPC read with Section 187 and under Section 3 read with Section 181 of the Act as the driver of the tractor-trailer did not have valid licence to drive the vehicle as on the date of the accident. Though the name of one Gurupad Paramanand Guggodagi was shown in the FIR but the charge sheet filed by the investigating officer clearly shows that the driver of the vehicle did not have any valid licence as on the date of the accident. This contention was raised by the insurer before the Tribunal but, without proper appreciation of the documents on record, the Tribunal fastened the liability on the insurer, which is not correct. When the 11 driver of the vehicle did not possess valid licence to drive the vehicle as on the date of the accident, there is clear violation of the terms and conditions of the policy.
Therefore, no liability could have been fastened on the insurer. Hence, prayed for allowing the appeal. Alternatively, learned counsel contended that though the claimants claimed that the deceased was a mechanic, no documents are produced. In the absence of the same, the Tribunal rightly considered Rs.4,500/- per month as notional income and has awarded the compensation. Therefore, it need not be enhanced by this Court. Hence, prayed for dismissing the appeal filed by the claimants.
12. Learned counsel for respondent No.5-owner of the vehicle contended that the owner appeared before the Court and examined himself as RW-2 and has categorically stated in his evidence that Gurupad Paramanand Guggodagi was the driver of the tractor- trailer as on the date of the accident and was holding driving licence as per the endorsement issued by the 12 RTO as per Ex.R-2. He did not know about Nagappa Rachapa Shivashimpi against whom charge sheet is filed by the police and there is no evidence let in by the insurer to show that the vehicle was driven by Nagappa son of Rachappa and moreover the investigating officer is not examined by the insurance company to prove that the driver of the vehicle was Nagappa but not Gurupad Pramanand Guggodagi. When owner himself has admitted about the name of the driver as Gurupad Paramanand Guggodagi, the question of disbelieving his evidence does not arise when there is no rebuttal evidence from the insurance company. Therefore, he supported the judgment and award passed by the Tribunal and fastening of liability on the insurer and hence prayed for allowing the appeal.
13. Upon haring the arguments of the learned counsel for the parties and on perusal of the records, the points that arise for consideration in these appeals are:
13
i. Whether the Tribunal was justified in fastening the liability on the insurer when the charge sheet was filed against one Nagappa Rachappa?
ii. Whether the claimants are entitled for enhancement of compensation?
iii. What order?
14. The claimant examined herself as PW-1 and she has reiterated the averments made in the claim petition by way of evidence in her affidavit. To corroborate her evidence, she has got marked 6 documents. Though the insurer has taken a contention before the Tribunal in the statement of objections by denying the very factum of accident and involvement of the vehicle in question but on perusal of the evidence on record and the statement made by the complainant before the police in registering FIR, it is clear that the vehicle was driven by Gurupad in a rash and negligent manner and dashed against the said Rafiq and he was dragged to 16 feet from the place of accident, who died 14 at the spot. The police have also prepared spot panchanama as per Ex.P-3 which shows that the vehicle was lying at the place of incident and the same was seized by the police. When such being the case, the contention taken by the insurer that the vehicle was not at all involved in the accident cannot be accepted. That apart, the insurer also taken a contention that the driver of the tractor was not holding licence at the time of the accident. On perusal of Ex.P-1-FIR, it shows that a case was registered by the police at 16.30 hours i.e. at 4.30 pm against one Gurupad Paramanand Guggodagi, who was the driver of the vehicle in question. So within half an hour after the accident, the case has been registered against the driver of the vehicle showing the name of the driver as Gurupad Pramanand Guddodagi.
However, Ex.P-6 charge sheet produced by the claimant shows the name of the accused as Nagappa Rachappa Shivashimpi and the investigating officer has deleted the name of Gurupad Pramanand Guggodagi in the charge sheet. It is also brought to the notice of this 15 Court that the investigating officer recorded the further statement of the brother of the deceased on 29.11.2011 wherein he is said to have stated that Nagappa son of Rachappa was the driver but not Gurupad Paramanand Guggodagi and on the same day, the investigating officer has filed the charge sheet. Admittedly, name of Gurupad Pramanand Guggodagi was shown as accused in the FIR whereas his name was deleted in the charge sheet. Though the investigating officer, who is said to have recorded the statement of the pillion rider, who was an eyewitness to the incident and based upon his statement, the police have registered the case but the investigating officer has filed charge sheet against one Nagappa Rachappa Shivashimpi, based upon a witness who is not an eyewitness. The insurer has not chosen to examine the investigating officer or the eyewitness to show that Nagappa was driving the vehicle as on the date of the accident and not Gurupad Paramanand Guggodagi. Whereas the first respondent-owner of the vehicle, is a right person to say who was the driver of 16 the vehicle as on the date of the accident and he has entered into witness box as RW-2 and has categorically stated that Gurupad Pramanand Guggodagi was the driver of the vehicle and he was holding licence as per Ex.R-2-endorsement issued by the RTO authorities. He has stated that he do not know who is Nagappa Rachappa Shivashimpi against whom police have filed charge sheet. Ex.R-2 clearly shows that said Gurupad Paramanand Guggodagi was holding driving licence issued by the RTO to drive the tractor-trailer as on the date of the accident. The endorsement so issued by the transport authority was valid from 22.02.2011 to 21.02.2014. The date of the accident is 12.05.2011 which shows that the said Gurupad Pramanand Guggodagi was holding valid driving licence. In the cross-examination of RW-2 by the advocate for the insurer, it is elicited that the accident occurred not due to the driving by the driver of the tractor-trailer and due to the negligence on the part of the deceased himself. The same was admitted by him. But in spite of that, 17 RW-2 stated that Gurupad Paramanand Guggodagi was driving the vehicle at the time of the accident but he do not know about Nagappa Rachappa Shivashimpi. The same was not denied by the counsel for the insurer in the cross-examination of RW-2. Even after the evidence of RW-2, the insurance company did not try to summon the investigating officer or any other witnesses to dis- prove the evidence of RW-2 or the claimants. The insurer tried to demonstrate that the accident occurred due to some other vehicle and not due to the negligence on the part of the tractor-trailer but not disputed the very fact of driving of the vehicle by Gurupad Pramanand Guggodagi. Merely because the police have filed charge sheet against Nagappa Rachappa Shivashimpi that itself is not a ground to say that Nagappa Rachappa Shivashimpi was driving the vehicle. On the other hand, on the evidence on record and admission by RW-2, the contention of the insurance company that the driver of the vehicle did not have any valid licence as on the date of the accident, cannot be 18 accepted. Even on perusal of Ex.P-1, the police registered a case under Section 3 of the Act by the investigating officer by showing the name of the driver as Nagappa Rachappa Shivashimpi. The insurance company has not chosen to discharge its burden in taking a specific contention and also in rebutting the evidence of RW-2. Therefore, the Tribunal by considering the evidence on record, has rightly held that the driver of the tractor-trailer was responsible for causing the accident and not the deceased. Therefore, the finding of the Tribunal in fastening the liability on the insurance company do not call for interference. Hence, I answer point No.1 in favour of the claimants and against the insurer.
15. As regards the quantum of compensation awarded by the Tribunal, the claimants have stated that the deceased was a mechanic but no documents were produced. In the absence of any documents, there is no option for the Court but to consider the notional income of Rs.6,000/- per month which normally this 19 Court chooses to consider in the Lok Adalat. As per the judgment of the Hon'ble Apex Court in the case of National Insurance Company Vs. Pranay Sethi reported in (2017) 16 SCC 680, 40% of the income shall be considered towards future prospects which comes to Rs.2,400/- totaling to Rs.8400/-(Income +40%). The claimants are 4 in number and as per the judgment of the Hon'ble Apex Court in Sarala Verma and others Vs. Delhi Transport Corporation and Others reported in 2009 (6) SCC 121 1/4th of the income shall have to be deducted towards personal expenses of the deceased which comes to Rs.2,100/-. Thus, loss of dependency would be Rs.12,85,200/- (6,300x12x17(appropriate multiplier). As per the judgment of the Hon'ble Apex Court in Magma General Insurance Co. Ltd. v. Nanu Ram and others reported in 2018 ACJ 2782 first claimant being the wife is entitled for a sum of Rs.40,000/- towards loss of spousal consortium and claimants 2 and 3 being the children of the deceased are entitled to Rs.30,000/- each towards 20 loss of parental consortium and 3rd respondent-mother of the deceased is entitled to Rs.30,000/- towards loss of filial consortium. They are also entitled to a sum of Rs.15,000/- towards transportation and funeral expenses and Rs.15,000/- towards loss of estate. In all, the claimants are entitled to re-assessed compensation as under:
Rs.
1 Towards loss of dependency 12,85,200/- 2 Towards loss of spousal consortium 40,000/- 3 Towards loss of parental consortium 60,000/- 4 Towards loss of filial consortium 30,000/- 5 Towards transportation and funeral 15,000/-
expenses 6 Towards loss of estate 15,000/-
Total 14,45,200/-
16. Awarding of interest at the rate of 9% requires to be reduced. The Tribunal has awarded interest at the rate of 9% per annum. Learned counsel for the insurer contended that it is exorbitant and 21 normally in many cases, this Court used to consider interest at the rate of 6% per annum on the compensation. Therefore, taking into consideration the economic conditions of the country and even as per Section 34 of the CPC, the claimants are entitled to interest at the rate of 6% per annum, therefore, interest of 9% awarded by the Tribunal requires to be reduced to 6%.
Consequently, though the insurer succeeded in reducing the rate of interest but on the quantum of compensation and liability, the appeal filed by the insurer will have to be dismissed. Accordingly, MFA No.23123 of 2013 filed by the insurer is dismissed.
MFA No.24493 of 2013 filed by the claimants is allowed in part. The judgment and award dated 8th May 2013 passed by the Motor Accident Claims Tribunal IX, Mudhol, in MVC No.393 of 2012, is hereby modified. The claimants are entitled to re-assessed compensation of Rs.14,45,200/- as against Rs.7,38,500/- awarded by 22 the Tribunal. The insurance company is directed to pay the reassessed compensation together with interest at the rate of 6% per annum from the date of petition till realization within four weeks from the date of receipt of a certified copy of this judgment. Amount in deposit is ordered to be transmitted to the Tribunal forthwith along with the LCR.
The Tribunal's order with respect to apportionment, deposit and release of the compensation amount is undisturbed.
Sd/-
JUDGE kmv