The Manager vs Smt. Latha
2021 Latest Caselaw 2115 Kant

                              1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 4TH DAY OF JUNE 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                             AND

THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

              M.F.A. NO.3555 OF 2019 (MV-D)
BETWEEN:

THE MANAGER
SHRIRAM GIC LTD
E-8, EPIP, RIICO INDUSTRIAL AREA
SITAPURA -JAIPUR
RAJASTHAN-302022
NOW REP BY
LEGAL MANAGER
SHRIRAM GENERAL INS. CO. LTD.,
NO.5/4, 3RD FLOOR, S V ARCADE
BELEKALHALLI MAIN ROAD
OPP. BANNERGHATTA ROAD
LIMB POST, BANGALORE-76.
                                              ... APPELLANT
(BY SRI. PRADEEP B, ADV.,)

AND:

1.     SMT. LATHA
       W/O LATE HARISHA
       NOW AGED ABOUT 30 YEARS.

2.     A H DEVU
       S/O LATE HARISHA
       AGED ABOUT 12 YEARS
       SINCE THE RESPONDENT NO.2
       IS MINOR REP BY HIS NATURAL
       GUARDIAN 1ST RESPONDENT.
                                2



3.    NINGAPPA S/O LATE NIGAPPA
      NOW AGED ABOUT 59 YEARS.

4.    MAHADEVAMMA @ RAJAMANI
      W/O NINGAPPA
      NOW AGED ABOUT 54 YEARS.

      ALL ARE R/AT ANCHANAHALLY VILLAGE
      SHEELANERE HOBLI
      K R PET TALUK, MANDYA DIST-587265.

5.    MAHADEVA R
      S/O LATE RAMABOVI, MAJOR
      NO.40, MANJANAYAKANAHALLI PALYA
      HEGGADADEVANAKOTE TALUK
      MYSURU DISTRICT-587265.
                                              ... RESPONDENTS
(BY SRI. P. NATARAJU, ADV., FOR R1 TO R4
         (R2 MINOR REPTD. BY R1)
    SRI. K.L. RAVI, ADV., FOR R5)

                             ---

      THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 23.01.2019,
PASSED IN MVC NO.1030/2015, ON THE FILE OF THE SENIOR
CIVIL JUDGE & JMFC, K.R. PET, AWARDING COMPENSATION OF
RS.15,26,200/- WITH FUTURE INTEREST AT THE RATE OF 9% P.A.
FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION OF
THE ENTIRE AMOUNT.

     THIS M.F.A. COMING ON FOR HEARING,            THIS   DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:


                         JUDGMENT

This appeal under Section 173(1) of the Motor Vehicles

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

been filed by the Insurance Company against the judgment

dated 23.01.2019 passed by the Motor Accident Claims

Tribunal in MVC No.1030/2015.

2. Facts giving rise to the filing of the appeal briefly

stated are that on 14.08.2015, the deceased Harisha was

riding a motor cycle bearing registration No.KA-05-EY-3065

near the land of Gullanna at Hadanuru Village, KR Pet -

Mysore Road. At that time, the deceased who was riding the

motor cycle dashed against a tractor and trailer bearing

Registration Nos. KA-18-T-6899 and KA-18-T-6900 which

was parked in a negligent manner in the middle of the road

without giving any signal or indication. As a result of the

aforesaid accident, the deceased sustained grievous injuries

and succumbed to the same.

3. The claimants thereupon filed a petition under

Section 166 of the Act claiming compensation on the ground

that the deceased was aged about 32 years at the time of

accident and was engaged as an agriculturist and was

earning a sum of Rs.30,000/- per month. It was further

pleaded that accident took place solely on account of

negligent parking of the tractor and trailer in the middle of

the road without giving any signal or indication by its driver.

The claimants claimed compensation to the tune of

Rs.25,50,000/- along with interest.

4. The insurer of the offending tractor and trailer i.e

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 solely on account of the

negligence of the deceased himself in riding the motor cycle.

It was also pleaded that the driver of the tractor and trailer

did not hold a valid and effective driving license at the time

of accident and 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 examined herself as PW-1,

Manjunatha (PW2) and got exhibited documents namely

Ex.P1 to Ex.P4. The respondents examined Abhinandhan

(RW1) and got exhibited documents namely, Ex.R1 and

Ex.R2. The Claims Tribunal, by the impugned judgment, inter

alia, held that the accident occurred on account of the

negligent parking of the tractor and trailer in the middle of

the road without giving any signal or indication by its driver.

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 are entitled to a

compensation of Rs.15,26,200/- along with interest at the

rate of 9% per annum. Being aggrieved, this appeal has been

filed by the Insurance Company.

6. Learned counsel for the Insurance Company

submitted that the Tribunal erred in holding that the accident

occurred on account of the negligent parking of the tractor

and trailer in the middle of the road without giving any signal

or indication by its driver when Ex.R2 Chargesheet has been

filed against the deceased. It is pointed out that the Tractor

and Trailer was parked on extreme left side of the road. It is

further submitted that no explanation has been offered for a

day's delay in lodging the Ex.P1 FIR by PW2 Manjunatha and

therefore, his testimony is not reliable. It is urged that the

rate of interest awarded by the Tribunal is on the higher side.

On the other hand, learned counsel for the claimants

submitted that the Tribunal after proper appreciation of the

entire evidence on record has arrived at the conclusion that

the accident occurred wholly on account of the negligent

parking of the tractor and trailer in the middle of the road

without giving any signal or indication by its driver and that

no interference by this court is called for. In this regard our

attention has been invited to paragraphs 15 to 18 of the

impugned judgment.

7. We have considered the submissions made by

learned counsel for the parties and have perused the record.

The Supreme Court in DULCINA FERNANDES v. JOAQUIM

XAVIER CRUZ (2013) 10 SCC 646 has 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. The aforesaid principle has

been reiterated by the Supreme Court in 'MANGALA RAM

VS. ORIENTAL INSURANCE CO.', (2018) 5 SCC 656. It is

also 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]. The Supreme Court in 'RAVI VS.

BADRINARAYAN AND OTHERS', (2011) 4 SCC 693 has

held that delay in lodging the First Information Report cannot

be a ground to doubt the claimants case in genuine cases. It

has further been held that in Indian conditions it is not

expected that a person who would rush to police station after

the accident and the treatment of the victim is given priority

over lodging of the First Information Report. On the

touchstone of the aforesaid legal principles, the facts of the

case on hand may be examined.

8. Admittedly, PW1 Latha has not witnessed the

accident. PW2 Manjunatha who is an eye witness to the

accident, has stated in his evidence that the accident

occurred on wholly on account of the negligent parking of the

tractor and trailer in the middle of the road without giving

any signal or indication by its driver. He has further stated in

his evidence that no indication or signals in the form of

branches or stones were placed around the tractor and trailer

to indicate the parking of the tractor in the middle of the

road. Nothing to the contrary has been elicited from his cross

examination. The evidence of PW2 Manjunatha stands

corroborated by Ex.P3 Spot Panchanama which indicates that

the accident occurred in the middle of the road with the

eastern and western edges of the road being 9 ft and 12 feet

respectively. The testimony of PW2 Manjunatha cannot be

discarded merely because there was a delay of one day in

lodging the FIR in view of the decision of the Supreme Court

in RAVI VS. BADRINARAYAN SUPRA. It is pertinent to note

here that the ic. Has neither examined the driver of the

tractor and trailer nor any other independent eye witness to

prove the manner of accident as alleged by it. The Tribunal

has rightly arrived at the conclusion that the accident

occurred on wholly on account of the negligent parking of the

tractor and trailer in the middle of the road without giving

any signal or indication by its driver, after meticulous

appreciation of all the evidence on record and on the basis of

preponderance of probabilities. Therefore, we affirm the

finding of the Tribunal with regard to the negligence of the

driver of the tractor and trailer in parking the same in the

middle of the road without giving any signal or indication.

9. As far as the submission of the learned counsel for

the Insurance Company that Ex.R2 Chargesheet has been

filed against the deceased, has to rejected as the same has

to be examined alongside the other evidence on record on

the basis of preponderance of probabilities.

10. The total amount of compensation viz.,

Rs.15,26,200/- is maintained. Since the accident is of the

year 2013, the prevailing rate of interest for the year 2013 in

respect of fixed deposits for one year in nationalized banks

being 8%, the total amount of compensation shall carry

interest at the rate of 8% instead of 9% from the date of

filing of the petition till the realization of the amount of

compensation. To the aforesaid extent, the judgment passed

by the Claims Tribunal in MVC No.1030/2015 is modified.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE ss