Smt. V. Roopa vs Ramakrishna N
2021 Latest Caselaw 2473 Kant

                               1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 29TH DAY OF JUNE 2021

                        PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                          AND

THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

              M.F.A. NO.3827 OF 2020 (MV-D)


BETWEEN:

1.     SMT. V. ROOPA
       W/O. LATE H.V. NAGALINGAPPA,
       AGED ABOUT 33 YEARS,

2.     BHUVANA PAVANI
       D/O LATE H.V. NAGALINGAPPA,
       AGED ABOUT 12 YEARS,

3.     SURAYA TEJA
       S/O. LATE H.V. NAGALINGAPPA,
       AGED ABOUT 11 YEARS,

4.     H.M. VEERAPPA
       S/O. LATE H. MARAPPA,
       AGED ABOUT 73 YEARS,

5.     THIMMAKKA
       W/O. LATE H. MARAPPA,
       AGED ABOUT 65 YEARS,

       THE APPELLANTS NO.2 AND 3 ARE MINORS
       REPRESENTED BY THEIR NATURAL GUARDIAN
       MOTHER APPELLANT NO.1.
                            2



       ALL ARE R/O HAMAYYANAHAMALIGE,
       DYAMAVVANAHALLY POST,
       CHITRADURGA TALUK-577 501.

                                           ...APPELLANTS

(BY SRI R. SHASHIDHARA, ADVOCATE)

AND:

1.     RAMAKRISHNA N
       S/O NINGAMMA,
       AGED ABOUT 48 YEARS,
       OWNER OF LORRY BERING
       NO.KA-16/C-5735,
       R/O. YALAGATTE VILLAGE,
       DEVARAMARIKUNTE,
       BELAGERE ROAD,
       KADRAPPA TEMPLE,
       CHALLAKERE TALUK-577 522,
       CHITRADURGA DISTRICT.

2.     THE GENERAL MANAGER,
       RELIANCE GENERAL INSURANCE CO LTD.,
       MAGANUR COMPLEX, B.D. ROAD,
       CHITRADURGA-577 501.

                                         ...RESPONDENTS

(BY SRI H.C. BETSUR, ADVOCATE FOR R-2;
    R-1 SERVED AND UNREPRESENTED)

                          ---

       THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV
ACT    AGAINST   THE   JUDGMENT    AND   AWARD   DATED
31.12.2019 PASSED IN MVC NO.953/2017, ON THE FILE OF
THE PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL
                                   3



MACT-III, CHITRADURGA, DISMISSING THE CLAIM PETITION
FOR COMPENSATION.


        THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY,
HEMANT         CHANDANGOUDAR              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) is

filed by the claimants against the judgment dated

31.12.2019 in MVC.No.953/2017 passed by the Principal

Senior Civil Judge and Additional Motor Accident Claims

Tribunal-III, Chitradurga (hereinafter referred to as 'the

Tribunal' for short).

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

stated are that, on 23.02.2017, when H V Nagalingappa was

proceeding on his motorcycle towards Hampayyanahamalige

village, at that time, a lorry driven by its driver came from

Chitradurga in a rash and negligent manner and dashed

against the motorcycle. As a result of the said accident,

H.V.Nagalingappa 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 40 years at the time of

accident and was an agriculturist and was earning

Rs.25,000/- per month. It was further pleaded that the

accident took place solely on account of rash and negligent

driving of the lorry by its driver. The claimants claimed

compensation to the tune of Rs.40,00,000/- along with

interest.

4. The 1st respondent filed a written statement

denying all the petition averments. The 2nd respondent-

Insurance Company filed a written statement contending that

the petition is not maintainable in law or on facts. The

liability to pay compensation, if any, is subject to terms

contained in the policy. It was further contended that the

claimants in collusion with the owner of the lorry and the

police have falsely implicated the lorry in question which is

insured with the 2nd respondent so as to get compensation.

It was further contended that the Investigating Officer has

filed charge sheet against the driver after a lapse of 90 days

without obtaining the permission from his superior and there

are several lacuna in the investigation. Hence, sought to

dismiss the claim petition.

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

Tribunal framed the issues and thereafter recorded the

evidence. The claimant No.1 examined herself as PW1 and

examined one witness as PW2 and got exhibited documents

namely Ex.P1 to Ex.P25. On behalf of the 2nd respondent,

CPI of Rural Circle, Chitradurga/I.O. was examined as RW1

and Manager Legal Claims was examined as RW2 and owner

of lorry i.e., respondent No.1 was examined as RW3, driver

of the lorry was examined as RW4 and Investigator of 2nd

respondent was examined as RW5 and got exhibited

documents as Ex.R1 to Ex.R3.

6. The Tribunal, by the impugned judgment, inter

alia, held that the claimants failed to prove that

H V Nagalingappa succumbed to the accidental injuries

sustained by him in the road traffic accident, which occurred

on 23.3.2017 due to rash and negligent driving by the driver

of the offending vehicle in question and taking into

consideration both rival contentions, the Tribunal dismissed

the claim petition. Hence, this appeal.

7. Learned counsel for the claimants submitted that

the Tribunal has grossly erred in not considering the police

papers which establishes that due to rash and negligent

driving by the driver of the offending vehicle, the accident

occurred. The Tribunal without any basis has discarded the

statement of PW2 who is an eye witness to the accident and

who has specifically stated that the accident occurred due to

rash and negligent driving by the driver of the lorry in

question. It is further submitted that the Investigating

Officer, who was examined as RW1, the owner of the lorry in

question who was examined as RW3 and the driver of the

lorry as on the date of accident who was examined as RW4

have specifically stated that the accident occurred due to

rash and negligent driving by the driver of the lorry in

question. However, the Tribunal without any valid reason

discarded the said evidence and dismissed the claim

petition. He further submitted that the claimants are entitled

for just and proper compensation. In support of his

submission, he placed reliance on the decision of the Hon'ble

Supreme Court in the case of SUNITA AND OTHERS Vs.

RAJASTHAN STATE ROAD TRANSPORT CORPORATION

AND OTHERS reported in (2020) 13 SCC 486.

8. On the other hand, learned counsel for the

Insurance Company submitted that the Tribunal by

considering the evidence of PW1, PW2, RW4 and

documentary evidence at Exs.P3 to P6 and discrepancies in

the evidence with regard to the timing of the accident has

rightly held that the claimants colluding with RW3, RW4 and

police have falsely implicated the lorry in question. He

submitted that the Tribunal, considering the evidence on

record in a proper perspective has dismissed the claim

petition and the same does not warrant any interference by

this Court.

9. We have considered the submissions made by

the learned counsel for the parties and have perused the

record. The question which arises for our consideration in

this appeal is whether the Tribunal was justified in

dismissing the claim petition and not awarding any

compensation to the claimants.

10. The claimants to substantiate their claims have

got marked the documents at Ex.P1-FIR and Ex.P2 -

complaint. A reading of these documents would indicate that

the complaint was lodged by one Mahesh, son of Lingappa

who has stated that when he was proceeding in a car to

Hampayyanamalige Village and on seeing that an accident

has occurred, stopped the car and on verifying from the

bystander, he was informed that some vehicle coming from

Challakere which was driven in a rash and negligent manner

after overtaking the vehicle in front of it dashed against the

motorcycle which was ridden by H V Nagalingappa. After

seeing the body, he identified that H V Nagalingappa who

belongs to his community has succumbed to the accidental

injuries. Hence, he requested the police to take suitable

action against the unknown vehicle in accordance with law.

RW1 -Investigating Officer during the course of investigation

seized the lorry as per Ex.P4 and after concluding the

investigation filed charge sheet against the driver of the lorry

who was examined as RW4 by the Insurance Company.

11. The claimants examined PW2 who was traveling

in the lorry in question at the time of the accident as a

cleaner in the lorry. He has categorically stated that the

accident occurred due to rash and negligent driving by the

driver of the lorry in question. In the cross-examination,

nothing is elicited to disbelieve the statement of PW2 except

that PW2 admitted that he has not taken any steps to take

the deceased to the hospital and also has not informed the

police.

12. RW1 - Investigating Officer, RW3 - owner of the

lorry and RW4 - driver of the lorry, who were examined on

behalf of the Insurance Company, have categorically stated

that H V Nagalingappa succumbed to the accidental injuries

due to rash and negligent driving by the driver of the lorry in

question. Nothing is elicited in the cross-examination by the

Insurance Company to disbelieve the statement of the said

witnesses that the accident occurred due to rash and

negligent driving by the driver of the lorry in question.

13. No doubt, there are minor discrepancies in the

statements of PW2, RW1, RW3 and RW4 with regard to the

timing of the accident. But, the evidence of these witnesses

if read in its entirety would clearly establish that the accident

occurred due to rash and negligent driving by the driver of

the lorry in question and in the absence of contrary evidence,

the evidence of these witnesses cannot be discarded. The

Apex Court in the case of Sunita and others (supra) has held

that the strict principles of proof in a criminal case will not be

applicable in a claim for compensation under the Motor

Vehicles Act and further that the standard to be followed in

such claims is one of preponderance of probability rather

than one of proof beyond reasonable doubt, and it was

further held that what is essential is that the opposite party

should get a fair opportunity to cross-examine the witness

concerned and once that is done, it will not be open to them

to complain about any prejudice caused to them. In the

present case, the evidence on record clearly establishes the

manner in which the accident occurred and the identity of the

parties involved. The owner and the driver of the lorry in

question have admitted the occurrence of the accident and

there is no material on record to establish that the claimants

have colluded with them falsely implicating the lorry so as to

get compensation. The Tribunal without assigning any valid

reasons has discarded the evidence on record only on the

ground that the lorry was seized after the lapse of five

months and charge sheet was filed beyond 90 days which is

not sustainable in the eye of law. Further, the Tribunal

seems to have been influenced by the statement of PW2 in

his cross examination wherein he has stated that deceased,

RW3 and RW4 are close relatives and the same is not

disclosed by the claimants. The said admission is not

supported by any corroborate evidence and this suggestion is

not made by the Insurance Company to PW1 during the

course of cross examination. The finding recorded by the

Tribunal is contrary to the evidence on record which

otherwise establishes that the accident occurred due to rash

and negligent driving by the driver of the lorry in question.

Hence, the impugned judgment dismissing the claim petition

requires to be set aside and the same is accordingly set

aside.

14. The next question that arises for our

consideration is with regard to the entitlement of quantum of

compensation payable to the claimants.

15. The accident is of the year 2017. The deceased

was aged 42 years 8 months at the time of accident. In the

absence of proof of income, the notional income of the

deceased is assessed at Rs.11,000/- per month as per the

chart prepared by the Karnataka Legal Service Authority.

16. 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, 25% of the amount has to be added on

account of future prospects as the deceased was aged 42

years 8 months as per Ex.P11 - Adhar card copy. Thus, the

monthly income comes to Rs.13,750/-. Since, the number of

dependents are 5, therefore, 1/4th of the amount has to be

deducted towards personal expenses and therefore, the

monthly dependency comes to Rs.10,312/-. Taking into

account the age of the deceased who was aged 42 years 8

months as per Ex.P11 - Adhar card copy at the time of

accident, the multiplier of '14' has to be adopted. Therefore,

the claimants are held entitled to (Rs.10,312 x 12 x 14) i.e.,

Rs.17,32,416 /- on account of loss of dependency.

17. In view of law 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.'

INCIVIL 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 of love

and affection. Thus, the claimants are held entitled to

Rs.2,00,000/-. In addition, claimants are held entitled to

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

expenses.

18. Accordingly, the appeal is allowed . The

impugned judgment and award passed by the Tribunal is set

aside. The claimants are held entitled to total compensation

of Rs.19,62,416/-. The compensation awarded shall carry

interest at the rate of 6% p.a. from the date of petition till

realization.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

bkm