Karnataka High Court

The Claim Manager vs Smt. Bhagyamma 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.6553 OF 2018(MV)

BETWEEN:

THE CLAIM MANAGER
ROYAL SUNDRAM ALLIANCE
GENERAL INSURANCE COMPANY LIMITED
NO.30, 3RD FLOOR
JNR CITY COMPLEX
RAJARAM MOHANRAO ROAD
SAMPANGIRAMANAGARA
BANGALORE-560 027

BY

ROYAL SUNDARAM GENERAL
INSURANCE COMPANY LTD.,
SUBRAMANIAM BUILDING
II FLOOR, NO.1
CLUB HOUSE ROAD,
ANNASASALAI
CHENNAI-600 002.
BY ITS MANAGER.
                                    ...APPELLANT

(BY SRI.O MAHESH, ADV.)
                         2




AND

1.    SMT. BHAGYAMMA
      AGED ABOUT 43 YEARS
      W/O. LATE CHANDRAIAH C.C.

2.    NAVEENKUMAR
      AGED ABOUT 23 YEARS
      S/O. LATE CHANDRAIAH. C.C.

3.    VEENA
      AGED ABOUT 21 YEARS
      D/O. LATE CHANDRAIAH. C.C.

4.    SAKAMMA
      AGED ABOUT 71 YEARS
      W/O. LATE CHANNAMALLAIAH @
      CHANNAMALLEGOWDA
      ALL ARE RESIDING AT
      CHAKENAHALLI VILLAGE
      YEDIYUR HOBLI
      KUNIGAL TALUK
      TUMAKURU DISTRICT-572 101.

5.    BHAGAVANDAS. M
      AGED ABOUT 43 YEARS
      S/O. POOVAPPA.K
      "ARAMANE"
      NO.11, 10TH CROSS
      10TH MAIN,NANDANAM COLONY
      BANGALORE-560 043.
                                   ...RESPONDENTS

(BY SRI.M.V. MAHESHWARAPPA, ADV. FOR R1 TO R4:
SRI. R.S HEGDE, ADV. FOR R5)
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     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED
24/05/2018, PASSED IN MVC NO.41/2017, ON THE
FILE OF THE SENIOR CIVIL JUDGE & MACT-XV,
KUNIGAL,     AWARDING      COMPENSATION      OF
RS.15,19,000/- WITH INTEREST AT THE RATE OF 9%
PER ANNUM FROM THE DATE OF PETITION TILL DATE
OF DEPOSIT.

     THIS MFA COMING ON FOR ADMISSION THIS
DAY, THE COURT 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

being aggrieved by the judgment dated 24.5.2018

passed by the Motor Accident Claims Tribunal, Kunigal

in MVC 41/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 4.7.2016 the deceased

Chandraiah was standing on the extreme left side of

NH-75 after supplying the milk at MPCS diary

Chakenhalli, at that time, a car bearing registration

No.KA-04-MF-2936 which was being driven in a rash

and negligent manner, dashed against the deceased.

As a result of the aforesaid accident, the deceased

sustained grievous injuries and succumbed to the

injuries on the spot.

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.

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 got exhibited documents namely Ex.P1 to Ex.P12.

On behalf of respondents, no witness was examined

and got exhibited documents namely Ex.R1. 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.15,19,000/- along with interest at

the rate of 9% p.a. and directed the Insurance

Company to deposit the compensation amount along

with interest. Being aggrieved, this appeal has been

filed.

6. The learned counsel for the Insurance

Company has raised the following contentions:

Negligence:

Firstly, the finding of the tribunal on issue of

negligence is inappropriate and cryptic beside suffer

from non-consideration of material on record in a

pragmatic manner. There was no independent

positive legal evidence to corroborate self serving

testimony of P.W-1, wife of deceased, who was

admittedly not a eye Witness and produced police

investigation reports, that is, Exhibits P-1 to 8 which

were neither primary or secondary evidence and did

not comply with requirement of section 76 of I.E.Act.

Secondly, the Tribunal ought to have seen that

compliant, Exhibit P-2, was stated to be by one

Mr.B.H.Ramegowda and he was not examined for

obvious reason that this false complaint that deceased

was hit by insured car while standing by road side

would be exposed since deceased was crossing busy

National High way unmindful of his own safety at

about 07-30 P.M and deceased would not have missed

sighting of high beam headlight of insured car if were

to care for his safety like any other diligent and

reasonable user of public road at night time.

Thirdly, the Tribunal, further, ought to have seen

that injuries sustained by deceased and recorded in

PMR, Exhibit P-6 coupled with damages found on

insured car and recorded in IMV report, Exhibit P-7,

indicated and established that such type of injuries of

deceased and type of damages found caused to

insured car was due to deceased crossing the road

and deceased was guilty of higher degree of

contributory negligence if not solely responsible and

negligent.

Fourthly, the sketch is not bearing the signature

and date of the competent officer. The Tribunal only

relying on the documents such as complaint, FIR,

mahazar, sketch has wrongly come to the conclusion

that the accident occurred due to the rash and

negligent driving of the car by its driver. The said

finding of the Tribunal is not correct.

Quantum of compensation:

The claimants claim that the deceased was aged

about 48 years at the time of the accident and he was

earning Rs.2,00,000/- per annum by doing

agricultural work and Rs.10,000/- from cattle

business. The claimants are the wife, son and parents

of the deceased. They have produced only RTC

extracts to show that the properties stand in the name

of the deceased and they have not proved the income

of the deceased. Due to the death of the deceased,

there is no loss of income and there is only loss of

supervision of the property. The claimants are not

entitled for 'loss of dependency'. Moreover, the

monthly income of the deceased assessed by the

Tribunal at Rs.12,000/- p.m. is not based on materials

available on record and it is on higher side.

Secondly, the claimants are wife, major children

and mother of the deceased. Claimant No.2 is the

major son of the deceased and he is not depending on

the income of the deceased. The Tribunal instead of

deducting 1/3rd of the income of the deceased has

erred in deducting 1/4th of the income of the deceased

towards personal expenses.

Thirdly, the compensation awarded by the

Tribunal under the head of loss of estate and loss of

love and affection is also on the higher side.

Fourthly, the interest awarded by the Tribunal at

9% p.a. on the compensation amount is on the higher

side. Hence, he sought for allowing the appeal.

7. The learned counsel for the owner of the

offending vehicle has contended that as on the date of

accident, the offending vehicle was covered with valid

insurance policy and the driver of the offending

vehicle was having valid driving licence and to that

effect, he has produced the driving licence along with

the memo before this court and hence the Insurance

Company has to indemnify the insured. The Tribunal

has rightly fastened the liability on the Insurance

Company.

8. The learned counsel for claimants has

contended that the Tribunal on appreciation of oral

and documentary evidence has held that the accident

occurred due to negligence of the driver of the car and

rightly fastened liability on the Insurance Company.

Further the Tribunal considering the age and

avocation of the deceased has awarded just and

reasonable compensation. Hence, he sought for the

dismissal of the appeal.

9. Heard the learned counsel for the parties

and perused the records.

10. The case of the claimants is that on

4.7.2016, the deceased Chandraiah was standing on

the extreme left side of NH-75 after supplying the milk

at MPCS diary, Chakenahalli, at that time, a car

bearing registration No.KA-04-MF-2936 which was

being driven in a rash and negligent manner, dashed

against the deceased. As a result of the aforesaid

accident, the deceased sustained grievous injuries and

succumbed to the injuries.

The claimants to prove the case have examined

claimant No.1 as PW-1 and produced 12 documents.

11. 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."

12. PW-1, the claimant in her deposition has

reiterated the averments made in the claim petition.

She has stated that on 4.7.2016, when her husband

was standing on the extreme left side of NH-75 road,

at that time, a car which was being driven in a rash

and negligent manner, dashed against the deceased.

Due to the impact, the deceased succumbed to the

injuries on the spot. To prove the case, she has

produced complaint, FIR. As per complaint Ex.P-2,

given by Ramegowda, who is also the eye witness,

has categorically stated that the deceased was

standing on the extreme left side of the road, at that

time the driver of the car came in a rash and negligent

manner and dashed to the deceased. Pursuant to the

complaint, the police registered FIR and after

investigation, charge sheet is filed against the driver

of the car. The police has drawn mahazar as per Ex.P-

3 in the presence of Mr.Ramegowda. In the mahazar,

it is stated the accident occurred on NH-75 road which

proceeds from Hassan-Bangalore and the width of the

road is 30 feet. There is a median line in the said

road. The driver of the car was proceeding from

Hassan-Bangalore. As per Ex.P-4, sketch, the accident

occurred on extreme left side of the road. It is clear

that driver of the car took extreme left side of the

road and dashed to the deceased who was standing

on the road. Immediately after the accident, police

have registered FIR against the driver of the car and

after thorough investigation charge sheet is filed

against the driver of the car. Therefore, it is clear

from the materials available on record that the driver

of the car was negligent in causing the accident.

To disprove the version of the claimants, the

respondent has not examined any witness much less

the driver of the car. Even though they have taken a

specific contention that the deceased tried to cross the

road without following the traffic rules and deceased

was negligent, they have not examined any witness

and produced any documents. The driver of the car

has not challenged the charge sheet filed against him

before any court of law.

Even though the sketch does not bear the date

and signature, the sketch has been drawn on the

same date the mahazar has been drawn by the

competent officer and it bears the signature of Sub-

Inspector of the Police.

Therefore, it is clear from FIR, complaint,

mahazar, sketch, charge sheet and IMV report that

the driver of the car was negligent in causing the

accident. Hence, I am of the opinion that the Tribunal

has rightly answered issue No.1 in the affirmative.

There is no error in the finding of the Tribunal

regarding negligence.

RE: QAUNTUM OF COMPENSATION

13. The claimants claim that deceased was

aged about 48 years and earning Rs.2,00,000/- per

annum and except producing RTC extracts they have

not produced any documents to prove the income of

the deceased. In the absence of proof of income, the

notional income has to be assessed. As per the

guidelines issued by the Karnataka State Legal

Services Authority, for the accident taken place in the

year 2016, the notional income of the deceased has to

be taken at Rs.9,500/- p.m.

As per the decision of the Hon'ble Supreme

Court in the case of HEM RAJ -V- ORIENTAL

INSURANCE CO. LTD AND OTHERS reported in

2018 ACJ 5, even if the income of the deceased is

determined on guess work, based on the facts and

circumstances of the case the claimants are entitled

for 'future prospects'. Hence, the claimants are

entitled for future prospects. Therefore, in view of the

law laid down by the Constitution Bench of the

Supreme Court in NATIONAL INSURANCE CO. LTD.

-v- PRANAY SETHI AND OTHERS [AIR 2017 SC

5157], to the monthly income of the deceased i.e.,

Rs.9,500/-, 25% has to be added on account of future

prospects, which comes to Rs.11,875/- p.m. The

claimants are wife, major children and mother of the

deceased. Claimant No.2 is the major son of the

deceased and he is not depending on the income of

the deceased. Hence, it is appropriate to deduct 1/3rd

of the income of the deceased towards personal

expenses and remaining amount has to be taken as

his contribution to the family instead of 1/4th deducted

by the Tribunal. The deceased was aged about 48

years at the time of the accident and multiplier

applicable to his age group is '13'. Thus, the

claimants are entitled to compensation of

Rs.12,35,000/- (Rs.11,875*12*2/3*13) 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'.

Claimant No.1, wife of the deceased is entitled for

compensation of Rs.40,000/- under the head of 'loss

of spousal consortium'.

In view of the law laid down by the Supreme

Court in the case of 'MAGMA GENERAL

INSURANCE' (supra), claimant Nos.2 and 3, children

of the deceased are entitled for compensation of

Rs.40,000/- each under the head of 'loss of parental

consortium' and claimant No.4, mother of the

deceased are entitled for compensation of Rs.40,000/-

under the head 'loss of filial consortium' .

14. Thus, the claimants are entitled to the

following compensation:

          Compensation under           Amount in
             different Heads             (Rs.)
         Loss of dependency             12,35,000
         Funeral expenses                  15,000
         Loss of estate                    15,000
         Loss of spousal                   40,000
         consortium
         Loss of Parental                     80,000
         consortium
         Loss of Filial consortium             40,000
                         Total             14,25,000

15. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is modified.

The claimants are entitled to a total

compensation of Rs.14,25,000/- as against

Rs.15,19,000/- awarded by the Tribunal.

In view of the Division Bench decision of this in

the case of Ms.Joyeeta Bose and others -v-

Venkateshan.V and others (MFA 5896/2018 and

connected matters disposed of on 24.8.2020),

the interest granted by the Tribunal at the rate of 9%

p.a. on the compensation amount is reduced to 6%

p.a.