Sri Nagaraju M R vs Reliance General Insurance
2021 Latest Caselaw 583 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 11TH DAY OF JANUARY 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                              AND

     THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY

                  M.F.A. NO.5712 OF 2015
                              C/W
              M.F.A. NO.5971 OF 2015 (MV-D)


M.F.A. NO.5712 OF 2015
BETWEEN:

SRI. NAGARAJU M R
SON OF LATE RANGAPPA
AGED ABOUT 67 YEARS
NO.15, 1ST CROSS, NEAR
KUVEMPU COLLEGE
MALLASANDRA, T. DASARAHALLI
BANGALORE-560 057.
                                              ... APPELLANT
(BY MR. K.P. BHUVAN, ADV.,)

AND:

1.     RELIANCE GENERAL INSURANCE
       CO. LIMITED
       NO.28, EAST WING
       5TH A CROSS
       REGIONAL OFFICE
       CENTURY BUILDING
       5TH FLOOR, M.G. ROAD
       BANGALORE-560 001
       REPRESENTED BY
       REGIONAL MANAGER.
                                2




2.     SRI. SASIKUMAR
       SON OF KRISHNA
       NO.A 93, PERIYA KURUMBAPALYAM
       MANICKAMPALYAM
       BHAVANI TALUK
       ERODE DIST:-638311.
                                          ... RESPONDENTS
(BY MR. B. PRADEEP, ADV., FOR R1
        R2 SERVED)

                              ---

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.03.2015 PASSED IN MVC NO.1865/2013 ON THE FILE OF THE 20TH ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITON FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

M.F.A. NO.5971 OF 2015 BETWEEN:

SRI. MADHU D G SON OF GUJJARAPPA AGED ABOUT 24 YEARS NO.92, 14TH CROSS 16TH MAIN J C NAGAR KURUBARAHALLI, BANGALORE OWONER OF THE CAR BEG NO. AA 02 8206.

... APPELLANT (BY MR. K.P. BHUVAN, ADV.,)

AND:

1. RELIANCE GENERAL INSURANCE CO. LIMITED NO.28, EAST WING, 5TH A CROSS REGIONAL OFFICE CENTURY BUILDING 5TH FLOOR, M G ROAD BANGALORE 560001 REPRESENTED BY REGIONAL MANAGER.

2. SRI. SASIKUMAR SON OF KRISHNA NO.A93, PERIYA KURUMBAPALYAM MANICKAMPALYAM, BHAVANI TALUK ERODE DIST 638311.

... RESPONDENTS (BY MR. B. PRADEEP, ADV., FOR R1 V/O DTD:24.11.2017 NOTICE TO R2 IS D/W)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.03.2015 PASSED IN MVC NO.2195/2013 ON THE FILE OF THE XX ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THESE M.F.As. COMING ON FOR ADMISSION, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

M.F.A.No.5712/2015 has been filed by the

claimants seeking enhancement of the amount of

compensation, whereas, M.F.A.No.5971/2015 has been

filed by the owner of car bearing Registration No.KA-02-

AA-8206 (hereinafter referred to as 'the Indica car' for

short) under Section 173(1) of the Motor Vehicles Act,

1988 (hereinafter referred to as 'the Act', for short)

against the judgment dated 26.03.2015 passed by the

Motor Accident Claims Tribunal (hereinafter referred to

as 'the tribunal' for short). Since, both the appeals arise

out of the same accident and from the same judgment,

they were heard together and are being decided by this

common judgment.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 27.01.2013, the deceased

Shubharaju N was proceeding in car bearing Registration

No.KA-02-AA-8206 as an inmate. When he reached

near Hebbal Toll Gate, a lorry bearing registration No.

TN-36-S-8593, which was being driven by its driver in a

rash and negligent manner, suddenly applied brakes

without any signal or indication, thereby, causing the

Indica car to hit the offending lorry. As a result of the

aforesaid accident, the deceased sustained grievous

injuries and succumbed to the same.

3. The claimant in M.F.A.No.5712/2015

thereupon filed a petition under Section 166 of the Act

claiming compensation on the ground that the deceased

was aged about 25 years at the time of accident and

was employed as a car driver and was earning a sum of

Rs.11,500/- per month. It was further pleaded that

accident took place solely on account of rash and

negligent driving of the offending lorry by its driver. The

claimants claimed compensation to the tune of

Rs.30,00,000/- along with interest whereas, the

claimant in M.F.A.No.5917/2015 filed a petition under

Section 166 of the Act claiming compensation on the

ground that the Indica Car has been heavily damaged on

account of the accident, which occurred due to the

negligence of the driver of the offending lorry and

claimed compensation for the loss incurred by him on

account of repairs to the Indica car.

4. The insurance company filed written

statement, in which the mode and manner of the

accident was denied. It was further pleaded that the

accident occurred on account of negligence of the driver

of the Indica car. It was also pleaded that the driver of

the Indica car did not hold a valid and effective driving

licence at the time of accident. It was pleaded that the

liability of the insurance company, if any, would be

subject to the terms and conditions of the insurance

policy. The age, avocation and income of the deceased

was also denied and it was pleaded that the claim of the

claimants is exorbitant and excessive.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant No.1 in

M.F.A.No.5712/2015 examined himself as PW-1, Madhu

DG (PW2) and got exhibited documents namely Ex.P1 to

Ex.P15 where as the claimant in M.F.A.No.5971/2015

examined himself as PW1, Aruna MP (PW2) and got

exhibited documents viz., Ex.P1 to Ex.P16. The

respondents examined Guruprasad (RW1) and got

exhibited documents viz., Ex.R1 and R2. The Claims

Tribunal, by the impugned judgment, inter alia, held

both the driver of the offending lorry as well as the

driver of the Indica car were negligent in causing of the

accident equally to the extent of 50% each. It was

further held, that as a result of aforesaid accident, the

deceased sustained injuries and succumbed to the

same. The Tribunal further held that the claimants in

M.F.A.No.5712/2015 are entitled to a compensation of

Rs.1,30,000/- along with interest at the rate of 8% per

annum whereas, the claimant in M.F.A.No.5971/2015 is

entitled to a compensation of Rs.1,25,000/- along with

interest at the rate of 8% per annum. Being aggrieved,

these appeals have been filed seeking enhancement of

the amount of compensation.

6. Learned counsel for the claimant in

M.F.A.No.5712/2015 submitted that the Tribunal has

grossly erred in attributing negligence to the extent of

50% on the part of the driver of the Indica Car on the

ground that no independent eye witness has been

examined by the claimants to prove their claim. It is

further submitted that the Tribunal grossly erred in

assessing the income of the deceased at Rs.3,500/- per

month and in any case, the same ought to have been

assessed as per the guidelines framed by the Karnataka

State Legal Services Authority. It is also submitted that

the sums awarded under the heads 'loss of consortium'

and 'funeral expenses' are on the lower side and

deserves to be enhanced suitably. Learned counsel for

the claimant in M.F.A.No.5971/2015 submitted that

Tribunal erred in attributing negligence on the part of

the driver of the Indica Car to the extent of 50% on the

ground that the claimants have not produced any

documents such as the spot sketch or any other

independent evidence, which corroborates the version of

accident as put forth by the claimants in their claim

petition.

7. On the other hand, learned counsel for the

insurance company has invited our attention to

paragraph No.13 of the judgment of the Tribunal and

submitted that the Tribunal has rightly attributed

negligence to the extent of 50% on the part of the driver

of the Indica car as the claimants have not produced any

independent oral or documentary evidence to

corroborate the version of accident as put forth by them

and an adverse inference has rightly been drawn against

them for the same. It is further submitted that no

evidence has been adduced by the claimant to prove the

income of the deceased before the Tribunal and that the

Tribunal has rightly taken the income of the deceased

notionally at Rs.3,500/- per month. It is also submitted

that the judgment of the Tribunal is just and proper and

does not call for any interference. In support of the

aforesaid submissions, reliance has been placed on the

decision of Supreme Court in 'NISHAN SINGH AND

ORS VS. ORIENTAL INSURANCE COMPANY', AIR

2018 SC 2118.

8. We have considered the submissions made

by learned counsel for the parties and have perused the

record. The general rule is that the vehicle should be

driven at a speed, which enables the driver to stop

within the limits of his vision and failure to do this will

almost always result in the driver being held, in whole or

in part, responsible for the collision. [See: CLERK AND

LINDSELL ON TORTS, ELEVENTH EDITION, 1954

PAGES 368-370]. It is equally well settled legal

proposition that burden of proving negligence lies on the

person who alleges it. It is well settled in law that

burden to prove breach of duty on the part of the victim

lies on the insurance company and the insurance

company has to discharge the burden. [SEE: 'USHA

RAJ KHOWA VS. PARAMOUNT INDUSTRIES',

(2009) 14 SCC 71]. In 'MANGALA RAM VS.

ORIENTAL INSURANCE CO. LTD.', (2018) 5 SCC

656]. The Supreme Court in 'MANGALA RAM VS.

ORIENTAL INSURANCE CO.', (2018) 5 SCC 656 has

held that the proceeding under the Act has to be decided

on the basis of preponderance of probabilities and

claimant is not required to prove the accident beyond

reasonable doubt. The court reiterated the principles laid

down in DULCINA FERNANDES v. JOAQUIM XAVIER

CRUZ (2013) 10 SCC 646 and held that the approach

of the Tribunal should be holistic of the entire pleading

and evidence by applying the test of preponderance of

probabilities. It was held that it was necessary to be

borne in mind that strict proof of an accident caused by

a particular bus in a particular manner may not be

possible to be done by the claimants. The court restated

that the settled principle is that the evidence of the

claimants ought to be examined on the touchstone of

preponderance of probabilities and certainly the

standard of proof beyond reasonable doubt could not be

have been applied.

9. In the instant case, the claimant has produced

Ex.P1 FIR and Ex.P8 Charge sheet, which have been

filed against the driver of the offending lorry. Ex.P2 and

Ex.P5 are statements of complainant to the jurisdictional

police. Ex.P3-Spot Mahazhar discloses that the accident

occurred on left side of a 40 feet wide road. Ex.P7 IMV

Report and Ex.P15 Photographs indicate that the front

portion of the Indica car is totally damaged while there

is slight damage to the rear side of the lorry. It is

pertinent to note here that the insurance company has

failed to examine the driver of the offending lorry or

adduce any other evidence to prove its plea of

contributory negligence. The Tribunal has applied strict

standard of proof to conclude that the driver of the car

was also negligent in causing of the accident to the

extent of 50 %. Therefore, in view of legal principles and

on the basis of preponderance of probabilities, the

finding of the Tribunal with regard to the negligence on

the part of the driver of the Indica car is set aside and it

is held that the accident occurred solely on account of

negligence of the driver of the offending lorry.

10. Now we may advert to the quantum of

compensation in M.F.A.No.5712/2015. Admittedly, the

claimant has not produced any evidence with regard to

the income of the deceased. Therefore, the notional

income of the deceased is to be assessed as per the

guidelines issued by the Karnataka Legal Services

Authority. Since the accident is of the year 2013, the

notional income is assessed at Rs.8,000/- per month. In

view of the law laid down by the Constitution Bench of

the Supreme Court in 'NATIONAL INSURANCE

COMPANY LIMITED Vs. PRANAY SETHI AND

OTHERS' AIR 2017 SC 5157, 40% of the amount has

to be added on account of future prospects as the

deceased was self employed. Thus, the monthly income

comes to Rs.11,200/-. Since, the deceased is a

bachelor, therefore, 50% of the amount has to be

deducted towards personal expenses and therefore, the

monthly dependency comes to Rs.5,600/-. Taking into

account the age of the deceased which was 25 years at

the time of accident, the multiplier of '16' has to be

adopted. Therefore, the claimants are held entitled to

(Rs.5,600x12x18) i.e., Rs.12,09,600/- on account of

loss of dependency.

11. In view of laid down by the Supreme Court in

'MAGMA GENERAL INSURANCE CO. LTD. VS. NANU

RAM & ORS.' (2018) 18 SCC 130, which has been

subsequently clarified by the Supreme Court in 'UNITED

INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR

AND ORS.' IN CIVIL APPEAL NO.2705/2020

DECIDED ON 30.06.2020 each of the claimant's are

entitled to a sum of Rs.40,000/- on account of loss of

consortium and loss love and affection. Thus, the

claimant is held entitled to Rs.40,000/-. In addition,

claimants are held entitled to Rs.30,000/- on account of

loss of estate and funeral expenses. Thus, in all, the

claimant in M.F.A.No.5712/2015 is held entitled to a

total compensation of Rs.12,79,600/-.

12. Now we may advert to the quantum of

compensation in M.F.A.No.5971/2015. The Tribunal has

held the claimant to be entitled to Rs.2,50,000/- on the

basis of Ex.P11 Estimation and evidence of PW2 Aruna

MP. No grounds for enhancement of the aforesaid

compensation is made out. In view of the finding of this

court with regard to the negligence of the driver of the

Indica car in M.F.A.No.5712/2015, the claimant in

M.F.A.No.5971/2015 is held entitled to Rs.2,50,000/-.

To the aforesaid extent, the judgment passed by the

Claims Tribunal in MVC 1865/2013 and MVC 2195/2013

is modified.

Accordingly, the appeals are disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

ss