Karnataka High Court
The Divisional Manager,United ... vs Preeti And Ors on 1 February, 2022
Bench: S.R.Krishna Kumar, K S Hemalekha
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 01ST DAY OF FEBRUARY 2022
PRESENT
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
MFA NO.201093/2017 (MV)
BETWEEN:
The Divisional Manager,
United India Insurance Co. Ltd.,
Dr. Jawali Complex,
Super Market, Gulbarga,
Through its Divisional Manager.
... Appellant
(By Sri Shivanand Patil, Advocate)
AND:
1. Preeti W/o Ramesh Punde,
Age: 34 years, Occ: Household,
2. Vasudha D/o Ramesh Punde,
Age: 12 years (minor), Occ: Student,
U/g of her natural mother
Respondent No.1.
3. Vanashree D/o Ramesh Punde,
Age: 10 years (minor), Occ: Student,
2
U/g of her natural mother
Respondent No.1.
4. Rajani D/o Ramesh Punde,
Age: 08 years (minor), Occ: Student,
U/g of her natural mother
Respondent No.1.
5. Rajashree D/o Ramesh Punde,
Age: 05 years (minor), Occ: Student,
U/g of her natural mother
Respondent No.1.
6. Bharatbai W/o Pandurang Punde,
Age: 62 years, Occ: Household,
Respondents Nos.1 to 6 are all
R/o Mirkhal, Tq: Basavakalyan,
Dist: Bidar - 584 101.
7. Ambadas S/o Shankar Rao Muley,
Age: 38 years, Occ: Business &
owner of Hero Honda Splendor Plus
Motor Cycle bearing No.KA-56/E-2483,
R/o Village Kadepur,
Tq: Basavakalyan, Dist: Bidar-584 101.
... Respondents
(Sri Sanjeev Kumar C. Patil, Advocate for R1 to R6'
R7 - served)
This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to call for the
records and hear the parties and set aside the judgment
and award dated 09.02.2017 in MVC No.665/2015 on the
file of the IInd Addl. District and Sessions Court and Addl.
MACT, Bidar, sitting at Basavakalyan as against the
appellant by allowing the appeal.
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This appeal coming on for Final Hearing this day,
K.S. Hemalekha J., delivered the following:
JUDGMENT
The insurance company has preferred this appeal,
assailing the judgment and award dated 09.02.2017
passed in MVC No.665/2015 by the II Addl. District and
Sessions Court & Addl. MACT, Bidar, sitting at
Basavakalyan (hereinafter referred to as 'the Tribunal' for
short) on the ground of liability as well as quantum.
2. The claimants filed a claim petition under
Section 166 of the Motor Vehicles Act before the Tribunal,
seeking compensation of Rs.95,00,000/- on account of
death of one Ramesh, contending that on 27.07.2014, the
deceased was proceeding from Aurad-B towards Mirkhal
village as a pillion rider on a motorcycle bearing
No.KA-56/E-2483 which was ridden by his friend Govind
Biradar and when the motorcycle was near Ambewadi
village bridge cross at around 6.00 p.m., the rider of the
motorcycle rode the same in a rash and negligent manner,
due to which the deceased fell down from the bike and
sustained injuries and died in the hospital. The charge
sheet was laid against the rider of the motorcycle. The
claimants are the wife, minor daughters and mother of the
deceased. The deceased was hale and healthy at the time
of accident and he was working as a Hindi Lecturer in Ram
and Raj Pre-university College, Humnabad, District Bidar
as permanent employee and was getting a monthly salary
of Rs.31,440/- and at the time of accident, he was aged
about 41 years and the claimants were dependent upon
the deceased for their livelihood.
3. In spite of receipt of notice by the Tribunal,
respondent No.1 remained absent and was placed
ex-parte. However, respondent No.2-insurance company
appeared and filed its objections and contended that the
accident was occurred due to the rash and negligent riding
of the rider of the motorcycle and the rider of the
motorcycle was not having valid licence to ride the said
vehicle on the said date. It is also contended that the
owner of the vehicle has violated the terms and conditions
of the insurance policy.
4. On the basis of the pleadings, the Tribunal
framed the following:
ISSUES
1. Does petitioners prove that on
27.07.2014 deceased Ramesh was
proceeding from Aurad-B towards
Mirkhal village as a pillion rider on the
motor bike bearing No.KA-56/E-2483
being ridden by his friend Govind
Biradar and while going so nearby
Ambewadi village bridge cross at about
6 p.m. the rider of the motorcycle rode
it in rash and negligent manner as
such deceased fell down from the bike
and sustained injuries and thereafter
died in the hospital?
2. Does petitioners are entitled for
compensation? If so, to what extent?
3. Does respondents No.1 and 2 are
liable to pay compensation?
4. What order?
5. In order to substantiate the case of the
claimants, claimant No.1- Preeti, the wife of the deceased
examined herself as PW.1 and got marked Exs.P1 to P17
and no evidence was led on behalf of respondents, nor any
document was marked.
6. The Tribunal, on considering the evidence and
material on record, held that the accident occurred due to
the rash and negligent riding of the rider of the motorcycle
bearing Reg.No.KA-56/E-2483 and the rider of the
motorcycle was having valid and effective licence as on the
date of the accident and thus, fastened the liability on the
insurance company and awarded a total compensation of
Rs.48,75,000/- under the following heads:
Gross annual income Rs.4,50,000/-
Less 1/4th deduction towards Rs.1,2,500/-
personal and living expenses
Net annual income Rs.3,37,500/-
Loss of dependency Rs.47,25,000/-
(3,37,500 x 14)
General Damages
Loss of consortium Rs.1,00,000/-
Loss of love and affection Rs.25,000/-
Loss due to transportation and Rs.25,000/-
funeral charges
Total Rs.48,75,000/-
7. Being aggrieved by the fastening of liability
and the quantum of compensation awarded by the
Tribunal, the insurance company has preferred this appeal.
8. Heard the learned counsel for the appellant-
insurance company and respondent Nos.1 to 6-claimants.
9. Sri. Shivanand Patil, learned counsel for the
appellant-insurance company would contend that the
Tribunal has not considered the inordinate delay in lodging
the FIR, as the accident occurred on 27.07.2014 and the
FIR was lodged on 11.08.2014 and would contend that an
inference could be drawn that the alleged accident never
took place on 27.07.2014 and the FIR was lodged in
collusion with the owner of the vehicle and the police and
this aspect was not considered by the Tribunal. It is further
contended that the rider of the vehicle did not possess a
valid and effective licence on the date of the accident.
Insofar as quantum of compensation awarded by the
Tribunal is concerned, it is contended that the income
assessed by the Tribunal at Rs.28,840/- is without any
material and addition of 30% towards future prospects is
not just and proper and the deduction of 1/4th towards
personal expenses of the deceased is also not proper and
1/3rd ought to have been deducted.
10. Per contra, Sri Sanjeev Kumar C. Patil, learned
counsel for respondent Nos.1 to 6-claimants would
contend that the judgment and award passed by the
Tribunal is just and proper and does not call for any
interference and the contention of the insurance company
that there was delay in lodging the complaint/FIR is raised
for the first time in this appeal and the same was not
urged in their objection or cross-examined the PW.1 on
this aspect. This being so, it is contended that the
insurance company is disabled from taking such a
contention in the appeal for the first time. Insofar as the
driving licence of the rider of the motorcycle is concerned,
it is contended that the Tribunal, considering the material
on record has held that the rider of the vehicle possessed a
valid and effective licence and thus, sought to justify the
judgment and award of the Tribunal and also contended
that the award of compensation is just and proper.
11. Having heard the learned counsel for the
parties and in view of the rival contentions, the only point
that arises for consideration in this appeal is,
Whether the judgment and award passed by
the Tribunal requires any interference?
12. The accident that occurred on 27.07.2014 on
which date the deceased Ramesh succumbed to the injury
is disputed by the insurance company on the ground that
there is an inordinate delay in lodging the complaint/FIR
and the delay in filing the FIR would create doubt about
the genuineness of the accident and the death of the
deceased due to the said accident.
13. The insurance company, in the objections filed
before the Tribunal has contended that the accident has
not taken place due to the rash and negligent riding of the
rider of the offending vehicle bearing Reg.No.KA-56/
E-2483 and also contended that the owner of the vehicle
has violated the conditions of the policy and the vehicle
was rode by the rider, who did not possess a valid and
effective driving licence to drive the said particular vehicle.
But, the contention that the FIR was lodged with an
inordinate delay and as such the alleged accident was
created in collusion with the owner and police does not find
place in the objections filed by the insurance company
before the Tribunal, nor the cross-examination by the
insurance company to PW1. The insurance company has
not led any evidence on its behalf to substantiate that the
said accident has not occurred on the said date, on the
contrary the objection and cross-examination of PW.1
speak otherwise only with regard to non-possessing of
valid driving licence.
14. The appeal filed by the insurance company fails
mainly on the ground of not raising the contention of
inordinate delay in filing the FIR in its objection and not
leading supportive evidence in this regard. However, it is
settled preposition that the delay in lodging the FIR cannot
be a ground to doubt the claimant's case, as no one can
expect to go and lodge a complaint immediately when the
family has lost their loved one. The Hon'ble Apex Court in
the case of Ravi vs. Badrinarayan and others reported
in (2011) 4 SCC 693, considering these aspects has held
that merely on the ground of delay in lodging the FIR, it
cannot be held that the accident is not genuine, but other
relevant factor need to be considered. The relevant portion
of the said judgment is extracted hereunder:
"17. It is well settled that delay in lodging
the FIR cannot be a ground to doubt the
claimant's case. Knowing the Indian conditions
as they are, we cannot expect a common man to
first rush to the police station immediately after
an accident. Human nature and family
responsibilities occupy the mind of kith and kin
to such an extent that they give more
importance to get the victim treated rather than
to rush to the police station. Under such
circumstances, they are not expected to act
mechanically with promptitude in lodging the FIR
with the Police. Delay in lodging the FIR thus,
cannot be the ground to deny justice to the
victim."
15. In the present case, the claimants are the wife,
minor daughters and mother of deceased Ramesh and
there could be many reasons attributing to the delay in
lodging the FIR, as the wife has lost her husband, the
children have lost their father and the mother has lost her
son and one cannot expect to lodge a complaint
immediately when the calamity was fallen upon them.
16. The contention of the appellant-insurance
company that the rider of the motorcycle did not possess a
valid and effective licence to ride the particular vehicle is
not acceptable, as Ex.P15-Driving Licence has been
produced and as such an inference can be drawn that the
rider of the motorcycle did possess a valid and effective
licence on the date of accident.
17. Thus, we are of the considered opinion that the
appeal filed by the insurance company on the ground of
liability is devoid of merits.
18. Insofar as the quantum of compensation
awarded by the Tribunal is concerned, the Tribunal has
awarded a sum of Rs.47,25,000/- towards loss of
dependency taking the net monthly income of the
deceased at Rs.28,840/-, as he was working as a Hindi
Lecturer in Ram and Raj PU College, Humnabad and as per
the evidence of PW.2 and the salary certificate at Ex.P16;
added 30% towards future prospects as per the judgment
of the Hon'ble Apex Court in Sanobanu Nazirbhai Mirza
(Civil Appeal No.8251/2013) and in Smt. Savita (Civil
Appeal No.4001/2014); applied the multiplier of 14
considering the age of the deceased and deducted 1/4 th
towards the personal expenses of the deceased, as the
dependents are 6 in number. The Tribunal has rightly
come to the conclusion that the claimants are entitled for a
sum of Rs.47,25,000/- towards loss of dependency.
Further, the Tribunal has awarded a sum of Rs.1,00,000/-
towards loss of consortium and Rs.25,000/-each towards
loss of love and affection and loss due to transportation
and funeral charges. Thus, the compensation of
Rs.48,75,000/- awarded by the Tribunal is just and fair
compensation, which does not call for any interference.
19. In view of the reasons stated above, the point
raised for consideration is answered in the negative
holding that the judgment and award passed by the
Tribunal does not call for any interference.
20. In the result, we pass the following
ORDER
i) The appeal is dismissed.
ii) The impugned judgment and award dated
09.02.2017 passed by the Tribunal in MVC
No.665/2015 is hereby confirmed.
iii) The amount in deposit before this Court is
directed to be transmitted to the Tribunal for
disbursement.
iv) No order as to costs.
SD/-
JUDGE
SD/-
JUDGE
SMP/LG
