The Manager vs Sri.R.C. Lingaraju
2021 Latest Caselaw 1791 Kant

                               1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 22ND DAY OF MARCH 2021

                            PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                             AND

         THE HON'BLE MR. JUSTICE M.G.S. KAMAL

              M.F.A. NO.136 OF 2016 (MV-D)
BETWEEN:

THE MANAGER
ROYALSUNDRAM GENERAL
INSURANCE COMPANY LIMITED
NO.186/7, 1ST CROSS
RAGAVENDRA PLAZA, GROUND FLOOR
WILSON GARDEN, HOSUR MAIN ROAD
BANGALORE-560068.
BY
ROYAL SUNDARAM ALLIANCE COMPANY LTD.,
SUBRAMANIAN BUILDING, II FLOOR
NO.1, CLUB HOUSE ROAD
ANNSASALAI, CHENNAI-600 002.

BY ITS MANAGER.
                                             .... APPELLANT
(BY MR. O. MAHESH, ADV.,)

AND:

1.     SRI. R.C. LINGARAJU
       AGED ABOUT 52 YEAR
       S/O CHIKKAVEERABADRAIAH.

2.     SMT. PARVATHAMMA
       AGED ABOUT 47 YEAR
       W/O R.C. LINGARAJU.
                                2



      BOTH R/AT NO.4, KANAKAPURA MAIN ROAD
      BASAPPANAPALYA, THATAGUNI POST
      BANGALORE SOUTH, BANGALORE-560062.

3.    SRI. BALARAJU F
      MAJOR, NO.741, BEGUR ROAD
      BANGALORE-560068.
                                          ... RESPONDENTS
(BY MRS. BHUSHANI KUMAR, ADV., C/R1 & R2
R3 SERVICE OF NOTICE HELD SUFFICIENT V/O DTD:23.2.2021)
                           ---

      THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 29.9.2015 PASSED
IN MVC NO.1424/2014 ON THE FILE OF THE MEMBER, PRL. MACT
(SCCH-1),   BANGALORE,     AWARDING   COMPENSATION    OF
RS.24,17.200/- WITH INTEREST @ 9% FROM THE DATE OF
PETITION TILL REALIZATION.

     THIS M.F.A. COMING ON FOR ORDERS,               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 29.09.2015 passed by the Motor Accident Claims

Tribunal.

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

stated are that on 01.03.2014, the deceased RL Prasanna

was proceeding on his motorcycle bearing Registration

No.KA-01-EQ-5311 along with one Praveen as a pillion rider.

When he reached near Veerasandra Gate Junction, Hosur

Road, a tipper lorry bearing Registration No.KA-51-A-6629,

which was being driven by its driver in a rash and negligent

manner, came from the behind and dashed against the

motorcycle of the deceased. 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 26 years at the time of

accident and was employed at Maini Precision Products,

Bangalore and was earning a sum of Rs.22,000/- per month.

It was further pleaded that accident took place solely on

account of rash and negligent driving of the tipper lorry by its

driver. The claimants claimed compensation to the tune of

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

4. The insurance company filed written statement,

in which the mode and manner of the accident was denied. It

was pleaded that the accident occurred on account of

negligence of the deceased himself in riding the motorcycle.

It was also pleaded that the driver of the lorry 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,

Praveen Doddamani and got exhibited documents namely

Ex.P1 to Ex.P.26. The respondents examined Sandeep (RW1)

and examined Ex.R1 to Ex.R4. The Claims Tribunal, by the

impugned judgment, inter alia, held that the accident took

place on account of rash and negligent driving of the tipper

lorry 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.24,17,200/-

along with interest at the rate of 9% per annum. Being

aggrieved, this appeal has been filed.

6. Learned counsel for the Insurance Company

submitted that there was no compliance of mandatory

provisions of Section 134(c) and Section 158(6) of the Act

either by the insured or by the jurisdictional police. It is

further submitted that the Tribunal erred in holding that the

accident occurred on account of negligence of the driver of

the Tipper Lorry when the claimants have failed to produce

any eye witness with regard to the manner of accident

especially when one Praveen who was the pillion rider could

have deposed as to the manner of the accident. It is also

submitted that one Mr.Karthik and Mr.Siddatama, who

assisted the investigating officer in the preparation of the

Spot sketch were also not examined as witnesses to testify

with regard to the manner of the accident. It is contended

that the Ex.P6 IMV Report as well as Ex.P8 PM Report

indicate that the accident occurred on account of negligence

of the deceased in riding the motorcycle. It is also contended

that the Tribunal erred in making an addition to the extent of

50% on account of future prospects in the absence of

pleadings as well as evidence of the employer to that effect.

It is urged that the Tribunal erred in holding in the insurer of

the tipper lorry liable to pay the compensation in view of

Ex.R3 and Ex.R3 (a). It is also urged that the Tribunal erred

in not deducting the medical reimbursements received by the

claimants under the ESI Scheme. In support of his aforesaid

submission reliance has been placed on an interim order of

the Supreme Court dated 16.03.2021 passed in WP (Civil)

No.534/2020.

7. On the other hand, the learned counsel for the

claimants submitted that the no evidence has been adduced

by the Insurance Company to prove the manner of accident

as alleged by it. It is further submitted that Tribunal has

rightly held the Insurance Company was liable to pay

compensation to the claimants. In this regard, our attention

has been invited to Paragraph No.19 of the impugned

judgment. It is also submitted that the amount of

compensation awarded by the Tribunal is just and reasonable

and does not call for any interference.

8. We have considered the submissions made by

learned counsel for the parties and have perused the record.

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. It is equally

well settled legal proposition that burden of proving

negligence lies on the person who alleges it. The finding with

regard to negligence has to be recorded on the basis of

proper consideration of the pleadings and legal evidence

adduced by both the parties and the same cannot be based

merely on police records. [See: 'MINUROUT VS. SATYA

PRADYUMNA MOHAPATRA', (2013) 10 SCC 695 AND

'SARALA DEVI VS. ROYAL SUNDARAM ALLIANCE

INSURANCE CO. LTD.,', (2014) 15 SCC 450]. 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].

9. From perusal of the record it is evident that PW1

viz., the father of the deceased is not an eye witness. Ex.P1

FIR and Complaint has been filed against the driver of the

tipper lorry. The Tribunal has found that the manner of

accident as stated by PW1 is corroborated by Spot sketch

Ex.P5, Spot Mahazhar Ex.P4 as well as IMV report at Ex.P6,

which discloses that the motorcycle has sustained heavy

damage to rear portion while the offending tipper lorry has

sustained damage to the front right portion. The Tribunal,

therefore, on the basis of meticulous appreciation of evidence

on record has recorded a finding that the driver of the

offending tipper lorry was negligent in driving the lorry, as a

result of which the accident took place in which the deceased

sustained injuries and succumbed to the same. It is pertinent

to mention here that insurance company has neither

examined the driver of the tipper lorry nor adduced any

documentary evidence to prove their version of manner of

accident as alleged by it. For the aforementioned reasons, we

affirm the finding recorded by the Claims Tribunal with

regard to negligence. So far as the submission made by the

learned counsel for the Insurance Company that the pillion

rider who was the best witness to testify with regard to the

manner of the accident has not been examined, suffice it to

say that the non examination of the best witness cannot be

said be fatal to the proceeding under Section 166 of the Act,

which has to be decided on the basis of preponderance of

probabilities. (SEE: SUNITHA AND ORS VS. RAJASTHAN

STATE ROAD TRANSPORT CORPORATION 2019 SCC

Onlince SC 195). The submission of the learned counsel for

the Insurance Company that the provisions of Section 134(c)

and Section 158 (6) of the Act have not been complied with,

also cannot be accepted as the aforesaid provisions are not

mandatory in nature as consequences for its non compliance

are not specified in the Act.

10. Now we may advert to the quantum of

compensation. The Tribunal has assessed the income of the

deceased at Rs.13,991/- per month on the basis of Ex.P11

Pay Slip which has been duly proved by examining the

employer of the deceased PW2. 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 in private employment where

security of tenure is not assured. Thus, the monthly income

comes to Rs.19,588/-. Since, the deceased is a bachelor,

therefore, half of the amount has to be deducted towards

personal expenses and therefore, the monthly dependency

comes to Rs.9,794/-. Taking into account the age of the

deceased which was 26 years at the time of accident, the

multiplier of '17' has to be adopted. Therefore, the claimants

are held entitled to (Rs.9,794x12x17) i.e., Rs.19,97,976/- 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.'

AIR 2020 SC 3076 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 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.

12. As far as the contention raised by the learned

counsel for the Insurance Company that an amount to the

tune of Rs.1,10,000/- has to be deducted from the amount of

compensation on account of the death benefits received by

the claimants from the employer of the deceased is

concerned, the same has to be rejected in view of the

decisions of the Supreme Court in SEBESTIANI LAKRA

AND ORS VS. NATIONAL INSURANCE CO. LTD. AIR

2018 SC 5034 and HELEN REBELLO VS MAHARASHTRA

ROAD TRANSPORT CORPORATION (1999) 1 SCC 90 in

which, inter alia, it has been held that the death benefits

received by the claimants from the employer on account of

group insurance, provident fund or other pensionary benefits

cannot be deducted from the compensation payable to the

claimants as the same accrues to the claimants on account of

the contractual transaction which the deceased would have

entered into.

13. The amount of compensation awarded under the

head 'medical expenses' is maintained. Thus, in all, the

claimants are held entitled to a total compensation of

Rs.22,74,476/-. Needless to state that the aforesaid total

amount of compensation shall carry interest at the rate of

6% per annum from the date of filing of the petition till the

payment is made. To the aforesaid extent, the judgment

passed by the Claims Tribunal is modified. The amount in

deposit, if any, shall be transmitted to the Tribunal.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

SS