Karnataka High Court
The Oriental Insurance Company ... vs Smt. Johara on 26 November, 2021
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.6146 OF 2019(MV)
C/W
MFA No. 797 OF 2021(MV)
IN MFA 6146/2019
BETWEEN:
The Oriental Insurance
Company Limited,
Local office, Beauty Plaza,
2nd Floor, Balmatta,
Mangaluru-575001.
The Oriental Insurance
Company Limited,
TP Hub, Regional Office,
Leo Shopping Complex,
No.44/46, Residency Road Cross,
Bengaluru-560 025.
Now represented by
Manger Legal. ... Appellant
(By Sri. Ashok N Patil., Advocate)
AND:
1. Smt. Johara,
W/o late. Aboobakkar,
Aged about 48 years.
2. Habeeba,
2
D/o late. Aboobakkar,
Aged about 27 years.
3. Raziya @ Raziya Banu,
D/o Late. Aboobakkar,
Aged about 26 years.
4. Mumthaz,
D/o late. Aboobakkar,
Aged about 23 years
All are R/at Nirndi House,
Navoor Village and Post,
Belthangady Taluk-574 214.
Present R/at Manglijar House,
Kilenjar Village,
Kuppepadavu post,
Mangaluru Taluk-574 144.
5. Shivappa,
S/o Duggappa,
Aged about 37 years,
R/at Malegi House,
Navoor Village and post,
Belthangady Taluk-574 214. .. Respondents
(By Sri. Guruprasad B.R., Advocate for R1 to R4:
R5 Served)
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:12.04.2019 passed
in MVC No.355/2017 on the file of the IV Additional
District and Sessions, MACT, Dakshina Kannada,
Mangaluru, awarding a compensation of Rs.17,58,000/-
with interest at 6% from the date of petition till payment
of entire amount.
3
IN MFA 797/2021
BETWEEN:
1. Smt. Johara,
W/o late. Aboobakkar,
Aged about 50 years.
2. Habeeba,
D/o late. Aboobakkar,
Aged about 29 years.
3. Raziya @ Raziya Banu,
D/o Late. Aboobakkar,
Aged about 28 years.
4. Mumthaz,
D/o late. Aboobakkar,
Aged about 23 years
All are R/at Nirndi House,
Navoor Village and Post,
Belthangady Taluk-574 214.
Present R/at Manglijar House,
Kilenjar Village,
Kuppepadavu post,
Mangaluru Taluk-574 144. ... Appellants
(By Sri. Guruprasad B.R., Advocate)
AND:
1. The Oriental Insurance
Company Limited,
Local office, Beauty Plaza,
2nd Floor, Balmatta,
Mangaluru-575001
Represented by its Manager.
4
2. Mr.Shivappa,
S/o Duggappa,
Aged about 39 years,
R/at Malegi House,
Navoor Village and post,
Belthangady Taluk-574 214. ...Respondents
(By Sri. Ashok N Patil, Advocate for R1:
Notice to R2 is D/w
V/o dated: 17.11.2021)
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:12.04.2019 passed
in MVC No.355/2017 on the file of the IV Additional
District and Sessions, MACT, Dakshina Kannada,
Mangaluru, partly allowing the claim petition for
compensation and seeking enhancement of compensation.
These MFAs, coming on for admission, this day, this
Court, delivered the following:
JUDGMENT
MFA No.6146/2019 is filed by the Insurance
Company and MFA No.797/2021 is filed by the
claimants under Section 173(1) of the Motor Vehicles
Act, (for short, 'the Act') being aggrieved by the
judgment and award dated 12.04.2019 passed by the
MACT, D.K., Mangaluru. Since the challenge is to the
same judgment both the appeals are clubbed
together, heard and common judgment is being
passed.
2. Facts giving rise to the filing of the appeals
briefly stated are that on 13.11.2016 at about 8.30
a.m. the deceased Abdul Munaf was riding the
motorcycle bearing registration No.KA-21/R-1776
along with pillion rider from Ujire towards Navoor.
When he reached near Kaikamba of Navoor village
another motorcycle bearing registration No.KA-21/R-
7803 came at a high speed and in a rash and
negligent manner from the cross road and entered the
main road without observing the vehicle going on Ujire
- Navoor road and dashed to the motorcycle of the
deceased. As a result of the aforesaid accident, the
deceased grievous injuries and succumbed to the
injuries at the hospital.
3. The claimants filed a petition under Section
166 of the Act seeking compensation for the death of
the deceased along with interest.
4. On service of summons, the respondent
No.2 appeared through counsel and filed written
statement in which the averments made in the
petition were denied. It was pleaded that the rider of
the offending vehicle was not holding a valid and
effective driving licence as on the date of the accident.
It was further pleaded that the accident occurred due
to the rash and negligent riding of the deceased
himself. Even though insurance policy was admitted, it
was pleaded that the liability is subject to the terms
and conditions of the policy. Hence, he sought for
dismissal of the petition.
The respondent No.1 did not appear before the
Tribunal and hence he was placed ex-parte.
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 5 witnesses as PW-1 to
PW-5 and got exhibited documents as P1 to P25. On
behalf of respondents, one witness was examined as
RW-1 and got marked two documents as Exs. R1 and
R2. The Claims Tribunal, by the impugned judgment,
inter alia, held that the accident took place on account
of rash and negligent driving of the offending vehicle
by its driver, as a result of which, the deceased
sustained injuries and succumbed to the injuries. The
Tribunal further held that the claimants are entitled to
a compensation of Rs.17,58,000/- along with interest
at the rate of 6% p.a. and directed the insurance
company to deposit the entire compensation amount
along with interest. Being aggrieved, these appeals
have been filed.
6. The learned counsel for the Insurance
Company has raised the following contentions:
Firstly, the accident occurred due to negligence
of the deceased himself. He was riding the motorcycle
at a high speed and there is head-on collision.
Secondly, as per the spot sketch - Ex.R2 it is
very clear that the accident has occurred at the edge
of the road. Since the deceased who was the rider of
the motorcycle was riding the motorcycle at a high
speed with two pillion riders he lost control over the
vehicle and due to which the accident has occurred.
Therefore, he has also contributed to the accident. But
the Tribunal has failed to consider this aspect of the
matter.
Thirdly, the deceased was traveling with two
pillion riders without wearing the head gear. It is
very clear from the postmortem report that he
suffered an injury and he succumbed to the injuries.
Since he was not wearing the head-gear, he has
suffered injury, otherwise he would have been
survived. But the Tribunal has failed to consider this
aspect of the matter.
Fourthly, even though the claimants claim that
the deceased was earning Rs.3.00 lakhs to Rs.3.50
lakhs per annum by running chicken shop and
produced the licence issued by the Panchayat as per
Ex.P9, as per the document the licence has been
issued only for a period of 4 months and thereafter it
has not been renewed. As on the date of the accident
there was no licence to run the chicken shop.
Therefore, the contention of the claimant that he was
earning Rs.3.00 lakhs to Rs.3.5 lakhs cannot be
believed. In the absence of any documentary evidence
to show that he was getting income of Rs.12,000/-
per month, the Tribunal is not justified in assessing
the monthly income of the deceased as Rs.12,000/-.
Fifthly, the claimants are the mother and sisters
of the deceased. The deceased was a bachelor. The
Tribunal instead of deducting 50% towards the
personal expenses of the deceased has deducted 1/3rd
Sixthly, considering the age and avocation of the
deceased the overall compensation awarded by the
Tribunal is on the higher side. Hence, he prays for
allowing the appeal filed by the Insurance Company
and dismissal of the appeal filed by the claimants.
7. On the other hand, learned counsel appearing
for the claimants has raised the following contentions:
Firstly, the accident occurred due to rash and
negligent riding of the rider of the offending vehicle.
It is very clear that the offending vehicle which was
coming from cross road entered the main road, while
entering the main road without observing traffic he
has come to east and he dashed against the
deceased. Therefore the Tribunal has rightly held
that the rider of the offending vehicle was negligent in
causing the accident.
Secondly, just because the deceased was
traveling with two pillion riders it cannot be held that
the deceased has contributed to the accident unless it
is proved that he is negligent and he has contributed
to the accident. In support of his contentions, he has
relied on the judgment of the Hon'ble Apex Court in
the case of MOHAMMED SIDDIQUE AND ANOTHER
vs. NATIONAL INSURANCE COMPANY LIMITED
AND OTHERS reported in (2020) 3 SCC 57.
Thirdly, even though the claimants claim that
deceased was earning Rs.3.00 lakhs to Rs.3.50 lakhs
per annum by running chicken shop and produced the
licence obtained from the panchayat as per Ex.P9,
after expiry of licence he filed an application for its
renewal and the same is pending before the
authorities. Therefore, it is very clear that he was
doing business. Hence, the income assessed by the
Tribunal at Rs.12,000/- is on the lower side.
Fourthly, even though the deceased was a
bachelor, the claimants who are the mother and
sisters are depending upon the income of the
deceased. Therefore, the Tribunal has rightly
deducted 1/3rd towards the personal expenses of the
deceased.
Fifthly, as per the law laid down by the Hon'ble
Supreme Court in the case of NATIONAL
INSURANCE CO. LTD. -v- PRANAY SETHI AND
OTHERS [AIR 2017 SC 5157], the claimants are
entitled for addition of 40% towards future prospects.
Sixthly, as per the judgment of the Hon'ble
Supreme Court in the case of MAGMA GENERAL
INSURANCE CO. LTD. -V- NANU RAM reported in
2018 ACJ 2782, each of the claimants are entitled
for compensation under the head of 'loss of love and
affection and consortium'. Hence, he prays for
allowing the appeal file by the claimants and
dismissing the appeal filed by the Insurance Company.
8. Heard the learned counsel for the parties.
Perused the judgment and award and the original
records.
9. It is the case of the claimants that on
13.11.2016 at about 8.30 a.m. the deceased Abdul
Munaf was riding the motorcycle bearing registration
No.KA-21/R-1776 along with pillion rider from Ujire
towards Navoor. When he reached near Kaikamba of
Navoor village another motorcycle bearing registration
No.KA-21/R-7803 came at a high speed and in a rash
and negligent manner from the cross road and
entered the main road without observing the vehicle
going on Ujire - Navoor road and dashed to the
motorcycle of the deceased. As a result of the
aforesaid accident, the deceased grievous injuries and
succumbed to the injuries at the hospital. To prove
their case the mother of the claimant was examined
as PW-1 and an eyewitness Sirajuddin was examined
as PW-5 and produced 25 documents.
10. Under the Motor Vehicles Act in the claim
petition before the Claims Tribunal the standard of
proof is much below than what is required in a
criminal case as well as in the civil case. No doubt,
before the Tribunal, there must be some material on
the basis of which the Tribunal can arrive or decide
things necessary to decide for awarding
compensation, but the Tribunal is not expected to take
or to adopt a nicety of a civil or criminal case. After
all it is a summary enquiry and it is the legislation for
the welfare of the Society. The proceedings under the
Motor Vehicles Act are not akin to the proceedings
under civil rules. Hence, strict rules of evidence are
not required to be followed in this regard. In the case
of MANGLA RAM -v- ORIENTAL INSURANCE
COMPANY LIMITED (2018) 5 SCC 656, the Hon'ble
Apex Court has held as hereinbelow:
"25. In Dulcina Fernandes, this Court
examined similar situation where the
evidence of claimant's eyewitness was
discarded by the Tribunal and that the
respondent in that case was acquitted in
the criminal case concerning the accident.
This Court, however, opined that it cannot
be overlooked that upon investigation of
the case registered against the respondent,
prima facie, materials showing negligence
were found to put him on trial. The Court
restated the settled principle that the
evidence of the claimants ought to be
examined by the Tribunal on the
touchstone of preponderance of probability
and certainly the standard of proof beyond
reasonable doubt could not have been
applied."
11. PW-1, in her evidence has reiterated the
averments made in the claim petition. PW-5 who is
the complainant as well as an eyewitness has deposed
that the accident has occurred due to the rash and
negligent riding of the rider of the offending vehicle.
He was coming from the cross road and entered the
main road without observing the vehicles in the main
road and in a rash and negligent manner dashed to
the motorcycle of the deceased. Due to the impact
the deceased sustained injuries and succumbed to
the injuries. Immediately after the accident he has
given a complaint as per Ex.P1 against the rider of the
offending vehicle. The police have registered the FIR
as per Ex.P2. After thorough investigation have filed
charge sheet against the rider of the offending vehicle.
The police have drawn mahazar as per Ex.P4. It is
very clear from the said documents that the accident
has occurred in Beltangadi road which was proceeding
from South to North, the deceased was riding the
motorcycle from South to North, there is a cross road
called Aranya Bungalow road. The offending vehicle
was coming from that cross road. It is very clear from
the evidence of PW-5 and the complaint Ex.P1 that
the rider of the offending vehicle has come from cross
road at a high speed. Before entering the main road
he has not seen the vehicle passing in the main road,
straightaway he entered the main road and dashed to
the motorcycle of the deceased. It is the obligation of
the person riding motorcycle from the cross rood to
take care while entering the main road. Since he has
failed to do the same and suddenly entered the main
road without observing the vehicles, the said accident
has occurred. Therefore, it is very clear from the
evidence of PW1 and PW5 and Exs. P1, P2, and P4
that the rider of the offending vehicle was negligent in
causing the accident.
12. Just because the motorcycle was carrying
two pillion riders it will not amount to negligence
unless respondent proves contrary. The Hon'ble Apex
Court in the case of MOHAMMED SIDDIQUE
(supra) has held as hereinbelow:
"12. The fact that the deceased was riding
on a motor cycle along with the driver and
another, may not, by itself, without
anything more, make him guilty of
contributory negligence. At the most it
would make him guilty of being a party to
the violation of the law. Section 128 of the
Motor Vehicles Act, 1988, imposes a
restriction on the driver of a two wheeled
motor cycle, not to carry more than one
person on the motor cycle. Section 194-C
inserted by the Amendment Act 32 of
2019, prescribes a penalty for violation of
safety measures for motor cycle drivers
and pillion riders. Therefore, the fact that a
person was a pillion rider on a motor cycle
along with the driver and one more person
on the pillion, may be a violation of the
law. But such violation by itself, without
anything more, cannot lead to a finding of
contributory negligence, unless it is
established that his very act of riding along
with two others, contributed either to the
accident or to the impact of the accident
upon the victim. There must either be a
causal connection between the violation
and the accident or a causal connection
between the violation and the impact of the
accident upon the victim. It may so happen
at times, that the accident could have been
averted or the injuries sustained could
have been of a lesser degree, if there had
been no violation of the law by the
victim. What could otherwise have
resulted in a simple injury, might have
resulted in a grievous injury or even death
due to the violation of the law by the
victim. It is in such cases, where, but for
the violation of the law, either the accident
could have been averted or the impact
could have been minimized, that the
principle of contributory negligence could
be invoked. It is not the case of the
insurer that the accident itself occurred as
a result of three persons riding on a motor
cycle. It is not even the case of the insurer
that the accident would have been
averted, if three persons were not riding
on the motor cycle. The fact that the
motor cycle was hit by the car from behind,
is admitted. Interestingly, the finding
recorded by the Tribunal that the deceased
was wearing a helmet and that the
deceased was knocked down after the car
hit the motor cycle from behind, are all not
assailed. Therefore, the finding of the High
Court that 2 persons on the pillion of the
motor cycle, could have added to the
imbalance, is nothing but presumptuous
and is not based either upon pleading or
upon the evidence on record. Nothing was
extracted from PW3 to the effect that 2
persons on the pillion added to the
imbalance.
13. Therefore, in the absence of any
evidence to show that the wrongful act on
the part of the deceased victim contributed
either to the accident or to the nature of
the injuries sustained, the victim could not
have been held guilty of contributory
negligence."
13. Therefore, it is very clear that unless it is
proved that the deceased was negligent in causing the
accident, it cannot be held that he has contributed to
the accident. Even to disprove the case of the
claimants the respondent has not examined any
witnesses. Except examining RW1 who is an officer of
the insurance company who is not an eyewitness to
the accident no other witness was examined.
Therefore, considering the evidence available on
record, the Tribunal is justified in answering issue
No.1 in the affirmative.
Re.quantum:
14. Even though the claimants have produced
the licence issued by the Panchayat for running the
chicken shop the said licence has expired and it has
not been renewed. They have not produced any
document either the bank statement or income tax
returns to show that the deceased was earning
Rs.12,000/- per month. Hence, the income of the
deceased has to be assessed as per the guidelines
issued by the Karnataka Legal Services Authority. For
the accident occurred in the year 2016, notional
income has to be fixed at Rs.9,500/-. To the
aforesaid amount, 40% has to be added on account of
future prospects in view of the law laid down by the
Constitution Bench of the Supreme Court in 'PRANAY
SETHI' (supra). Thus, the monthly income comes to
Rs.13,300/-, out of which, even though the deceased
was a bachelor, the Tribunal considering the evidence
of PW-1 that all the claimants are depending upon the
income of the deceased has rightly deducted 1/3rd
towards the personal expenses of the deceased.
Thus, the monthly income comes to Rs.8,867/-. The
deceased was aged about 23 years at the time of the
accident and multiplier applicable to his age group is
'18'. Thus, the claimants are entitled to compensation
of Rs.19,15,272/- (Rs.8,867*12*18) on account of
'loss of dependency'.
In addition, the claimants are entitled to
Rs.15,000/- on account of 'loss of estate' and
Rs.15,000/- on account of 'funeral expenses'.
In view of the law laid down by the Supreme
Court in 'MAGMA GENERAL INSURANCE', claimant
No.1 mother of the deceased is entitled for
compensation of Rs.40,000/- under the head of 'loss
of filial consortium' and claimant Nos. 2 to 4 - sisters
of the deceased are entitled to Rs.40,000/- each
under the head of 'loss of love and affection'.
15. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 19,15,272
Funeral expenses 15,000
Loss of estate 15,000
Loss of filial consortium 40,000
Loss of love and affection 1,20,000
Total 21,05,272
The claimants are entitled to a total
compensation of Rs.21,05,572/-.
The Insurance Company is directed to deposit
the compensation amount along with interest at the
rate of 6% p.a. from the date of petition till the date
of payment, within a period of six weeks from the date
of receipt of copy of this judgment excluding interest
for the delayed period of 222 days in filing the appeal.
.
To the aforesaid extent, the judgment of the
Claims Tribunal is modified.
Accordingly, the appeals are disposed of.
The amount in deposit is ordered to be
transferred to the Tribunal forthwith.
Sd/-
JUDGE
Cm/-
