Smt.Mahibub S/O. Gaibusaheb Niak ... vs Iqbal S/O. Sultan Nadaf And Anr
2021 Latest Caselaw 3273 Kant

                         1         MFA No.200640/2016




           IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 1st DAY OF SEPTEMBER, 2021

                      PRESENT

     THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

                        AND

      THE HON'BLE MRS. JUSTICE J.M.KHAZI


 MISCELLANEOUS FIRST APPEAL No.200640/2016 (MV)


BETWEEN:

1.   MAHIBUB S/O GAIBUSAHEB NAIK
     AGED ABOUT 43 YEARS
     OCC:AGRICULTURE

2.   SMT. CHANDBIBI W/O MAHIBUB NAIK
     AGED ABOUT 39 YEARS
     OCC:HOUSEHOLD WORK

3.   APSANA D/O MAHIBUB NAIK
     AGED ABOUT 19 YEARS
     OCC:STUDENT

4.   SIMRAN D/O MAHIBUB NAIK
     AGED ABOUT 18 YEARS
     OCC:STUDENT

5.   GAIBISAHED S/O MAHIBUB NAIK
     AGED ABOUT 16 YEARS
     OCC:STUDENT
                             2          MFA No.200640/2016




       (APPELLANT NO.5 IS MINOR
       REP. BY HIS NATURAL FATHER
       & M/G THE 1ST APPELLANT)
       ALL ARE R/O TIKOTA,
       TQ & DIST. VIJAYAPUR-586101
                                            ...APPELLANTS

(BY SRI. S. S. MAMADAPUR, ADVOCATE)


AND:

1.     IQBAL S/O SULTAN NADAF
       AGE: 43 YEARS, OCC:BUSINESS,
       R/O NADAF GALLI, WARD-I, JATH
       DIST.SANGLI.

2.     THE BRANCH MANAGER
       NEW INDIA ASSURANCE COMPANY LTD.,
       HANAMASHETTI BUILDING
       S.S ROAD, VIJAYAPUR - 586101.
                                           ...RESPONDENTS

(BY SRI. UDAY P. HONGUNTIKAR, ADVOCATE FOR R2;
R1 SERVED)

       THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGEMENT AND
AWARD DATED 30.12.2015 PASSED BY THE LEARNED PRINIPAL
SENIOR CIVIL JUDGE AND MEMBER, MACT-V, VIJAYAPURA, IN
MVC NO.1616/2013 AND ALLOW THE CLAIM PETITION AS
PRAYED FOR, IN THE INTEREST OF JUSTICE AND EQUITY.


       THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
29.07.2021, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, J.M.KHAZI J., DELIVERED THE FOLLOWING:
                                   3             MFA No.200640/2016




                           JUDGMENT

Aggrieved by the dismissal of the claim petition in

MVC No.1616/2013 by the Principal Senior Civil Judge and

MACT-V, Vijayapura claimants have preferred the above

appeal.

2. The appellants were claimant Nos.1 to 5 and

respondents were respondent Nos.1 and 2 in MVC

No.1616/2013 before the Tribunal.

3. Appellant Nos.1 and 2 are the parents.

Appellant Nos.3 to 5 are the siblings of deceased

Paigambar S/o Mahibub Naik. On 13.07.2013 at about

8.30 p.m. he met with an accident near Gholeshar village

within the limits of Jath police station.

4. Regarding the accident on 02.08.2013, the 1st

claimant filed a complaint as per Ex.P.1 before the Jath

police alleging that on the fateful day deceased Paigambar

S/o Mahibub Naik was traveling as pillion rider on

motorcycle bearing Reg.No.MH-10/BL-3512 along with

Fayaz Veersen Mujawar. He further alleged that Syed

Veersen Mujawar rode the motorcycle in a rash or

negligent manner rammed the road side pit, resultantly

Paigambar S/o Mahibub Naik was tossed from the vehicle,

suffered head injuries and died.

5. During the said period, respondent No.1 was

the registered owner and respondent No.2 was the insurer

of the said vehicle.

6. On the basis of such complaint, Jath police

registered FIR as per Ex.P.3 (Ex.P4 is English translation

copy) in Crime No.102/2013 of their police station against

Fayaz Veersen Mujawar for the offences punishable under

Sections 279 and 304-A of IPC. On investigation, the said

police filed the charge-sheet as per Ex.P.9 against Fayaz

Veersen Mujawar for the offences punishable under

Sections 279 and 304-A of IPC alleging that the accident

and the consequential death occurred due to rash and

negligent driving of motorcycle bearing Reg.No.MH-10/BL-

3512.

7. The appellants filed MVC No.1616/2013 before

the Principal Senior Civil Judge & MACT-V, Vijayapura

claiming that they were all depending on the income of

deceased Paigambar S/o Mahibub Naik and accident took

place due to the actionable negligence of rider of the

motorcycle. They claimed that the deceased was working

as mechanic and earning Rs.15,000/- per month and

claimed compensation of Rs.24,00,000/- from the

respondents.

8. Respondent No.1 did not contest the petition.

Respondent No.2, the insurer alone contested the petition

denying the accident, rashness and negligence and the

involvement of the motorcycle in question in the accident.

They claimed that claimants in collusion with respondent

No.1 and the police have planted the motorcycle as

offending vehicle to claim compensation from respondent

No.2. Respondent No.2 contended that the rider of the

motorcycle was not holding valid driving licence and

therefore it was not liable to pay the compensation.

9. Before the Tribunal, the parties adduced

evidence. On behalf of the appellants, appellant No.1 was

examined as P.W.1 and one Mohammad Bandu @ Baiso

Bandu Naik who claimed to be the eyewitness to the

accident was examined as P.W.2. On their behalf Ex.Ps.1

to 21 were marked. The Assistant Manager of respondent

No.2 was examined as R.W.1 and the policy was marked at

Ex.R.1.

10. The Tribunal on hearing the parties by the

impugned award dismissed the claim petition on the

ground that the appellants in collusion with respondent

No.1 and the police have falsely planted the motorcycle in

question to claim compensation. The Tribunal held that

the fact of appellant No.1 filing the complaint on

02.08.2013 after about 20 days substantiates the

contention of the 2nd respondent about the fraud and

collusion.

11. The Tribunal further held that despite its

finding on involvement of the vehicle in the accident it has

to give findings on all the issues. After analyzing the

evidence, the Tribunal quantified the compensation as

follows:

                    Heads                        Amount
Loss of dependency                             Rs.6,48,000/-
Loss of love and affection                       Rs.20,000/-
Funeral expenses                                 Rs.10,000/-
Charges of transportation of dead body           Rs.10,000/-
Loss of estate                                   Rs.10,000/-
                                      Total   Rs.6,98,000/-

12. The learned counsel for the claimants assails

the impugned award on the following grounds:

i) Soon after the accident, the rider of the

motorcycle himself gave report before the police as per

Ex.P.16 (Ex.P.17 is the Kannada translated copy). The

said Fayaz Veersen Mujawar himself shifted the injured to

the Government Hospital, Jath, where he was declared as

brought dead. Based on such information, UDR

No.70/2013 was registered.

ii) Jath Government Hospital issued medico legal

intimation as per Ex.P.18 (Ex.P.19 is the Kannada

translation copy) to Police Inspector, Jath police station

and on that basis inquest mahazar was conduced as per

Ex.P.14 ( Ex.P.15 is the Kannada translation copy).

iii) On appellant No.1 filing the complaint case was

investigated and charge-sheet was filed. The Tribunal

overlooked such information.

iv) Respondent No.2 did not lead any evidence to

prove the fraud and collusion. The Tribunal without any

evidence jumped to the conclusion of implication of the

vehicle by fraud and collusion.

v) The compensation quantified by the Tribunal is

on the lower side.

13. Sri Uday P. Honguntikar, learned counsel for

respondent No.2, the insurer justifies the award of the

Tribunal on the following grounds:

i) Exs.P.14 to 19 were got up documents. If at

all the rider of the vehicle gave a statement, the police

should have registered the FIR against him.

ii) The delay in filing the complaint shows that

later the appellant and respondent No.1 in collusion with

the police manipulated the charge-sheet.

iii) The compensation awarded is just and proper.

14. Having regard to the rival contentions the

questions that arise for consideration are:

i) Whether claimants proved that the accident

took place due to rash or negligent driving of motorcycle

bearing Reg.No.MH-10/BL-3512 by Fayaz Veersen

Mujawar?

ii) Whether the compensation quantified by the

Tribunal is just?

Reg. Rashness or negligence:

15. The relationship of the appellants and the

deceased was not disputed during the course of evidence.

The evidence of appellant No.1 that at the time of accident

he was residing in Mumbai is also not disputed. He claimed

that his son Paigambar S/o Mahibub Naik was not residing

with him. The accidental death of Paigambar S/o Mahibub

Naik was also not disputed. What was disputed was of

the involvement of vehicle bearing Reg.No.MH-10/BL-

3512.

16. Respondent No.1 being the owner of the said

vehicle was also not disputed. The Tribunal disbelieved

the case of the claimants only on the ground of delay on

the part of appellant No.1 in filing the complaint.

17. To substantiate their contention the claimants

relied on Exs.P.14 to 20 i.e, inquest mahazar, statement of

the Fayaz Veersen Mujawar the rider of the vehicle dated

14.07.2013, the medico legal certificate and the kannada

translation of the said documents, Exs.P.7 to 11, the post

mortem report of the deceased, accident report, charge

sheet, investigation notes and the copies of the same.

18. Ex.P.7 shows that the Medical Officer of Jath

Rural hospital conducted the post mortem on the dead

body of Paigambar S/o Mahibub Naik on 14.07.2013 at

12.45 p.m. The said document further shows that the

dead body was sent to the hospital on 13.07.2013 at 9.35

p.m. by Jath Police.

19. Ex.P.14, the inquest mahazar (Ex.P.15 is the

translation copy) shows that the investigating officer

conducted the inquest on the dead body on 13.07.2013

between 23.15 and 23.45 hours in Primary Health Center,

Jath Rural, inquest and PM report show that victim was

shifted to the hospital with the history of motorcycle

accident and death was due to hemorrhage consequential

to head injury. Therefore, one thing becomes clear that

death was due to motorcycle accident.

20. The charge sheet and other police records

were suspected only on account of P.W.1 filing of

complaint belatedly. P.W.1 in the complaint stated that

since he was in the grief of death of his son, there was

delay in filing the complaint. On investigation, charge

sheet was filed. As per illustration (e) to Section 114 of the

Indian Evidence Act, the court may presume that an

official act is regularly performed.

21. When the respondents claimed that the

charge-sheet was outcome of the fraud and collusion

between the police, claimants and the respondent No.1,

Order 6 Rule 4 of CPC requires respondent No.2 to plead

the particulars of the same. The burden of proving such

fraud and collusion was on the respondent No.2.

22. R.W.1 was not an eyewitness to the incident.

In his cross-examination he admitted that respondent No.2

did not get any investigation done through it's agency in

respect of the alleged fraud. The Tribunal relied on his

oral evidence which was disputed by the claimants in his

cross-examination. Thereby the burden of respondent No.2

in proving the fraud and collusion was not discharged.

23. The Hon'ble Supreme Court in the case of

Sunita and Ors. vs Rajasthan State Road Transport

Corporation and Anr., reported in AIR 2019 SC 994

relying of its earlier judgment in Mangla Ram Vs.

Oriental Insurance Company Limited & Ors., reported

in (2018) 5 SCC 656 in para-28 of the judgment held as

follows:

"28. ........... This approach of the High Court is mystifying, especially in light of this Court's observation [as set out in Parmeshwari (AIR 2011 SC 1504) (supra) and reiterated in Mangla Ram (AIR 2018 SC 1900) (supra) that the strict principles of proof in a criminal case will not be applicable in a claim for compensation under the 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. There is nothing in the Act to preclude citing of a witness in motor accident claim who has not been named in the list of witnesses in the criminal case. What is essential is that the opposite party

should get a fair opportunity to cross-examine the concerned witness."

(emphasis supplied)

24. Relying on the aforesaid judgment of the

Hon'ble Supreme Court, this Court in Claim Manager,

Oriental Insurance Co. Ltd. and others vs. Sabeeha

Banu and others reported in MANU/KA/2551/2020 held

that in terms of law declared by the Apex Court the

evidence adduced by the claimant by the documents like

complaint, FIR, charge sheet was sufficient to hold that

claimants have discharged their burden of proving the

involvement of the vehicle in the accident. It was further

held that though such documents are not conclusive proof

of guilt, but nonetheless are a vital piece of evidence that

would be material in deciding a claim arising out of a

motor vehicle accident. Such claim is required to be

decided on the touchstone of preponderance of probability

and not by standard of proof beyond reasonable doubt.

25. Having regard to the aforesaid evidence more

particularly filing of the charge-sheet and the judgment of

the Hon'ble Supreme Court and this court the

preponderance of probability is that the accident in

question occurred due to rash and negligent driving of

motorcycle by Fayaz Veersen Mujawar as alleged. The

Tribunal acted contrary to the aforesaid judgment of

Hon'ble Supreme Court and this court, Order VI Rule 2 of

CPC and illustration (e) to Section 114 of the Indian

Evidence Act in appreciation of the pleadings and evidence

on the point of rashness and negligence. Therefore, the

same is liable to be set aside.

Reg. Quantum of compensation:

26. The next question that would fall for

consideration is whether the claimants are entitled for

compensation and what would be the just compensation.

27. As on the date of the accident, the deceased

was aged about 19 years. In the claim petition, the

claimants have pleaded that he was a mechanic earning

Rs.15,000/- per month. However, in the complaint, the

father of the deceased has specifically stated that the

deceased was a student of final year B.Com and he was

also looking after the Darga, the worship of which was

assigned to their family.

28. As appellant No.1 was employed and appellant

Nos.2 to 5 his wife and children are under his care, it

cannot be accepted that all the claimants were dependents

of the deceased. At the most only claimant No.2 being the

mother of the deceased can be considered as a dependent

of deceased.

29. The claimants have failed to prove the actual

income of the deceased. Therefore, the compensation is

required to be calculated based on notional income. The

Tribunal has taken the notional income of deceased as

Rs.6,000/- per month. However, based on the minimum

wages, during the year 2013, the notional income could be

taken at Rs.7,000/- per month. To this, future prospects

is to be added as per the judgment of the Hon'ble

Supreme Court in the case of National Insurance

Company Limited vs. Pranay Sethi and Others

reported in (2017) 16 SCC 680.

30. Since the deceased was not employed and the

compensation being calculated on the basis of the notional

income, 40% is required to be added to the notional

income which comes to Rs.2,800/-. Therefore, the total

loss of income per month comes to Rs.9,800/-.

31. Having regard to the fact that the deceased

was bachelor and mother of deceased is the only

dependent, 50% of the income is required to be deducted

as personal and living expenses of the deceased and the

remaining 50% is to be taken into consideration for

calculating the compensation. 50% of Rs.9,800/- comes

to Rs.4,900/-. Since the deceased was aged 19 years at

the time of death, the appropriate multiplier is '18'. If the

annual loss of dependency is multiplied with the

appropriate multiplier, the total loss of dependency comes

to Rs.10,58,400/- (Rs.4,900/- x 12 x 18).

32. To this compensation is required to be added

under the conventional heads, namely, loss of estate, loss

of consortium and funeral expenses. As held by the

Hon'ble Supreme Court in Pranay Sethi case, a sum of

Rs.15,000/- under the head of loss of estate, a sum of

Rs.15,000/- under the head of funeral expenses have to be

added. Appellant Nos.1 and 2 being the parents of the

deceased are entitled to filial consortium of Rs.40,000/-

each due to the death of their son. The funeral expenses

added includes the transportation charges. Therefore, the

total compensation payable comes to Rs.11,68,400/-.

33. For the aforesaid reasons, claimant No.2 being

the mother of the deceased is entitled for compensation of

Rs.11,28,400/- and claimant No.1 is entitled to

compensation of Rs.40,000/-. Since the vehicle in

question was duly insured with the respondent No.2, it is

liable to pay the same with interest at 6% per annum from

the date of petition till realization. Accordingly, the appeal

is partly allowed.

The impugned judgment and award dated

30.12.2015 in MVC No.1616/2013 on the file of Principal

Senior Civil Judge and MACT No.V, Vijaypur is set hereby

aside.

MVC No.1616/2013 is partly allowed. Appellant

No.1/claimant No.1 is entitled to compensation of

Rs.40,000/- and appellant No.2/claimant No.2 is entitled

for compensation of Rs.11,28,400/- together with interest

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

Respondent No.2 shall deposit the compensation

along with the interest within four weeks from the date of

receipt of copy of this judgment.

Out of the compensation awarded to appellant

No.2/claimant No.2, 50% shall be disbursed to her and

remaining 50% shall be invested in fixed deposit in her

name for a period of 3 years in the nationalized bank of

her choice.

The compensation awarded to appellant

No.1/claimant No.1 shall be released to him.

Sd/-

JUDGE

Sd/-

JUDGE

sdu/smp/BL