Mr Abdul Razak vs Mr Mahammad Anwar
2021 Latest Caselaw 2123 Kant

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     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.3986 OF 2019 (MV-D)

BETWEEN:

1. MR. ABDUL RAZAK
   S/O LATE MOIDINABBA
   AGED ABOUT 57 YEARS.

2. MRS. ZUBEDA
   W/O ABDUL RAZAK
   AGED ABOUT 47 YEARS.

     BOTH ARE R/AT 4-115
     NEW PADPU HOUSE, SHANTHI NAGARA
     HAREKALA, MANGALORE
     MANGALORE TALUK, D.K. DISTRICT-575016.
                                              ... APPELLANTS
(BY SRI. RAVISHANKAR SHASTRY G, ADV.,)

AND:

1.     MR. MAHAMMAD ANWAR
       S/O ABDUL RAZAK, MAJOR
       R/AT 4-115, NEW PADPU HOUSE
       SHANTHI NAGARA, HAREKALA
       MANGALORE, MANGALORE TALUK
       D.K. DISTRICT-575016.

2.     THE BRANCH MANAGER
       UNIVERSAL SOMPO GENERAL
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      INSURANCE COMPANY LTD.,
      TRADE CENTRE, 1ST FLOOR
      NEAR CITY HOSPITAL, KADRI
      MANGALORE TALUK
      D.K. DISTRICT-575001.
                                             ... RESPONDENTS
(R1 & R2 SERVED)
                             ---

     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 11.01.2019 PASSED
IN MVC NO.1613/2016 ON THE FILE OF THE I ADDITIONAL
DISTRICT JUDGE AND II ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL,   MACT-II,   DAKSHINA   KANNADA,    MANGALURU
(DAKSHINA KANNADA), DISMISSING THE CLAIM PETITION FOR
COMPENSATION.

     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 claimants against the judgment dated

11.01.2019 passed by the Motor Accident Claims Tribunal, by

which the petition filed by the claimants under Section

166(1) of the Act has been dismissed.

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

stated are that on 12.09.2016 at about 1 p.m. one

Aboobakkar Siddique was proceeding in a motor cycle

bearing registration No.KA-19 EP.7215 as a pillion rider

which was being driven by one Mohammad Rizwan. It is the

case of the claimants that the rider of the bike was driving

the vehicle in a rash and negligent manner and when they

reached near Harekala Village, Mangalore Taluk, the rider of

the bike suddenly applied brake and lost control over the

bike as a result of which the vehicle capsized. Due to the

impact of the accident, deceased who was traveling as a

pillion rider, was thrown out to the road and he sustained

grievous injuries and succumbed to the injuries on

15.09.2016.

3. The claimants thereupon filed a petition under

Section 166 of the Act claiming compensation on the ground

that the accident took place solely on account of rash and

negligent driving of the driver of the bike namely Mohammad

Rizwan. It was further pleaded that the deceased was aged

about 20 years and was carrying on scrap business and used

to earn Rs.20,000/- p.m. Accordingly, compensation to the

extent of Rs.45,00,000/- along with interest was sought.

4. Respondent No.1 did not appear and was proceeded

exparte. Respondent No.2 disputed the age, avocation and

income of the deceased as well as the manner of the

accident. It was further pleaded that the deceased was

riding the vehicle on the date of accident and the liability of

the Insurance Company to pay compensation is also

disputed. It was further pleaded that the deceased did not

have a valid and effective driving licence on the date of

accident.

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

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimants, in order to prove their case

examined claimant No.1 as PW-1 and one Zabeer as PW-2

and got exhibited documents namely Ex.P1 to Ex.P18. The

respondents neither adduced any oral or any documentary

evidence. The Claims Tribunal, vide impugned judgment

dated 11.01.2019, inter alia, held that the driver of the bike

was acquitted in the criminal case and the evidence of

Zabeer namely PW-2 who was an eye witness to the incident

had not been relied upon as the mobile number in spot

mahazar and in the cross-examination of the aforesaid

witness is different. Accordingly, the petition filed by the

claimants was dismissed. In the aforesaid factual

background, this appeal has been filed.

6. Learned counsel for the claimants submitted that the

Tribunal grossly erred in placing reliance on the judgment of

the criminal case in recording a finding that the claimants

have failed to prove that the deceased was not traveling as a

pillion rider on the date of accident in the motor cycle in

question. It is further submitted that the testimony of the

eye witness could not have been discarded merely on the

ground of discrepancy with regard to his mobile number in

spot mahazar as well as in his cross-examination. It is

further submitted that the Tribunal ought to have taken into

account the notional income of the deceased and should have

awarded the compensation in the well settled legal principles.

7. We have considered the submissions made by

learned counsel for the appellant and have perused the

record. It is well settled in law that the proceeding under the

Act is an independent proceeding in which the findings have

to be recorded on the basis of the evidence adduced by the

parties and the findings recorded in a criminal case cannot be

made the basis for the finding recorded in motor vehicle

case. It is pertinent to note that the finding in a motor

vehicle case has to be recorded on the basis of

preponderance of probabilities whereas in a criminal case,

the same has to be recorded on the basis of the evidence, by

which the offence has to be proved beyond reasonable doubt.

Thus, the standing of proof in both the cases is different.

The Supreme Court in 'MANGALA RAM VS. ORIENTAL

INSURANCE CO.', (2018) 5 SCC 656 has held that in a

motor vehicle case, the claimants are required to prove the

accident on the basis of preponderance of probabilities. It

has further been held that holistic view of the entire

pleadings and the evidence by applying the test of

preponderance of probabilities is required to be effected and

standard of proof beyond reasonable doubt cannot be made

applicable. In the instant case, the appellants have

examined the eye witness to the accident namely Zabeer

who has stated in his evidence that Mohammad Rizwan was

driving the bike in a rash and negligent manner, as a result

of which the accident took place in which deceased sustained

injuries and expired. No evidence in rebuttal has been led on

behalf of the respondents and therefore, merely on the basis

of the fact that the driver of the bike was acquitted in the

criminal case, the same cannot be made the basis for

recording a finding in this case. Therefore, the findings

recorded by the Tribunal cannot be upheld and the same are

set aside and it is held that on the date of accident, the

vehicle was being driven by one Mohammad Rizwan who

drove the same in a rash and negligent manner as a result of

which the deceased sustained injuries and eventually

succumbed to the same.

8. Now, we may advert to the question of quantum of

compensation. The deceased was aged 20 years and was

engaged in scrap business. Though it is pleaded by the

claimants that the deceased used to earn Rs.20,000/-,

however, no evidence has been adduced with regard to his

income. Therefore, the same has to be assessed on notional

basis in view of the chart prepared by the Karnataka State

Legal Services Authority. Taking into account the year of

accident which is 2016, the notional income of the deceased

has to be assessed at Rs.9,500/- p.m. To the aforesaid

amount, 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. Thus, the income comes to

Rs.13,300/-. Out of the aforesaid amount, 50% has to be

deducted towards personal expenses as the deceased was a

bachelor and therefore, the monthly dependency comes to

Rs.6,650/-. Taking into account the age of the deceased

which was 20 years at the time of accident, the multiplier of

'18' has to be adopted. Therefore, the claimants are held

entitled to Rs.14,36,400/- (Rs.6650 x 12 x 18) on account of

loss of dependency.

9. 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.'

AIR 2020 SC 3076 each of the claimants are entitled to a

sum of Rs.40,000/- on account of loss of consortium and loss

of love and affection. Thus, the claimants are held entitled to

Rs.80,000/-. In addition, claimants are held entitled to

Rs.30,000/- on account of loss of estate and funeral

expenses. From perusal of Ex.P18, it is evident that the

claimants have expended a sum of Rs.49,214/- on account of

medical expenses for the treatment of the deceased. Thus,

the aforesaid amount of Rs.49,214/- is also paid to the

claimants. In all, the claimants are held entitled to a total

compensation of Rs.15,95,614/- along with interest at the

rate of 6% from the date of filing of the petition till the

realization of the amount of compensation.

10. For the aforementioned reasons, the judgment

passed by the Claims Tribunal is set aside and the claim of

the appellants is allowed and they are held entitled to sum of

Rs.15,95,614/- along with interest at the rate of 6% from the

date of filing of the petition till the realization of the amount

of compensation.

Accordingly, the appeal is partly allowed.

Sd/-

JUDGE

Sd/-

JUDGE

RV