Karnataka High Court
Shri. Prakash S/O Krishna Patil vs Shri. Bhujang S/O Laxman Astekar on 23 February, 2022
Bench: S.Vishwajith Shetty
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
MISCELLANEOUS FIRST APPEAL No.104537/2017(MV)
C/w.
MISCELLANEOUS FIRST APPEAL Nos.104077/2017 &
104078/2017(MV)
IN MFA NO 104537 OF 2017
BETWEEN:
1. SRI. BHUJANG S/O LAXMAN ASTEKAR
AGE: 52 YEARS, OCC: MASON,
R/O: KACHERI GALLI, BELAGAVI,
TQ. & DIST. BELAGAVI 590020
2. SMT. TAYAKKA @ TAYI W/O BHUJANG ASTEKAR,
AGE: 44 YEARS, OCC: HOUSEHOLD WORK,
R/O: KACHERI GALLI, BELAGAVI,
TQ. & DIST. BELAGAVI 590020.
3. SMT. BALABAI @ SUVARNA
W/O. PARASRAM NILAJKAR,
AGE: 32 YEARS, OCC: HOUSEHOLD WORK,
R/O: SULGA, TQ & DIST.BELAGAVI 590021.
...APPELLANTS
(BY SRI.ASHOK A. NAIK, ADVOCATE)
AND:
1. SRI. PRAKASH KRISHNA PATIL
AGE: 52 YEARS, OCC: BUSINESS,
R/O: 46/A, HONAGA INDUSTRIAL ESTATE,
HONAGA, TQ and DIST: BELAGAVI-590020.
MFA NO.104537/2017
C/w. MFA NOS.104077/2017 & 104078/2017
2
2. THE AUTHORIZED SIGNATORY
TATA AIG GENERAL INSURANCE COMPANY LTD.,
RPD CROSS, ICICI BANK,
ABOVE TILAKWADI,
BELAGAVI-590020.
...RESPONDENTS
(BY SRI. SANTOSH B. RAWOOT, ADVOCATE FOR R1;
SRI. G. N. RAICHUR, ADVOCATE FOR R2 - THRU VC)
MFA NO.104537/2017 IS FILED UNDER SECTION 173(1)
OF THE MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD
DATED 24.8.2017 PASSED IN MVC NO.165/2015 ON THE FILE
OF THE PRINCIPAL VI ADDITIONAL DISTRICT AND SESSIONS
JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
BETWEEN:
SHRI. PRAKASH S/O KRISHNA PATIL
AGE: 52 YEARS, OCC: BUSINESS,
R/O: 46/A, HONAGA INDUSTRIAL ESTATE,
HONAGA, TQ and DIST: BELAGAVI.
...APPELLANT
(COMMON IN MFA NOS.104077/2017
& 104078/2017)
(BY SRI. SANTOSH. B. RAWOOT, ADVOCATE)
AND:
1. SHRI. BHUJANG S/O LAXMAN ASTEKAR
AGE: 52 YEARS, OCC: MESON,
R/O: KACHERI GALLI,
TQ. and DIST. BELAGAVI-590001.
2. SMT.TAYAKKA @ TAYI W/O BHUJANG ASTEKAR
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O: KACHERI GALLI,
TQ: and DIST: BELAGAVI-590001.
MFA NO.104537/2017
C/w. MFA NOS.104077/2017 & 104078/2017
3
3. SMT.BALABAI @ SUVARNA
W/O PARASRAM NILAJKAR
AGE: 32 YEARS, OCC: HOUSEHOLD WORK,
R/O: SULAGA VILLAGE,
TQ: and DIST: BELAGAVI-590003.
4. THE AUTHORIZED SIGNATORY
TATA AIG GENERAL INSURANCE
COMPANY LIMITED,
RPD CROSS, ICICI BANK ABOVE,
TILAKWADI, BELAGAVI.
...RESPONDENTS
(IN MFA NO.104077/2017)
(BY SRI.ASHOK A. NAIK, ADVOCATE FOR R1-R3;
SRI. G. N. RAICHUR, ADVOCATE FOR R4 - THRU VC)
1. SHRI. MAYUR @ MAHESH
S/O SHANKAR NITTURKAR
AGE: 21 YEARS, OCC: CENTERING WORK,
R/O: HONAGA, TQ: and DIST: BELAGAVI-590013.
2. THE AUTHORIZED SIGNATORY
TATA AIG GENERAL INSURANCE
COMPANY LIMITED,
RPD CROSS, ICICI BANK ABOVE,
TILAKWADI, BELAGAVI-590002.
...RESPONDENTS
(IN MFA NO.104078/2017)
(BY SRI.ASHOK A. NAIK, ADVOCATE FOR R1;
SRI. G. N. RAICHUR, ADVOCATE FOR R2 - THRU VC)
---
MFA NO.104077/2017 IS FILED UNDER SECTION 173(1)
OF THE MV ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD DATED 24.8.2017 PASSED IN MVC NO.165/2015
ON THE FILE OF THE PRINCIPAL VI ADDITIONAL DISTRICT AND
SESSIONS JUDGE AND MEMBER, ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, BY SADDLING THE
LIABILITY ON THE RESONDENT NO.4 HEREIN.
MFA NO.104537/2017
C/w. MFA NOS.104077/2017 & 104078/2017
MFA NO.104078/2017 IS FILED UNDER SECTION 173(1)
OF THE MV ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD DATED 24.8.2017 PASSED IN MVC NO.166/2015
ON THE FILE OF THE PRINCIPAL VI ADDITIONAL DISTRICT AND
SESSIONS JUDGE AND MEMBER, ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, BY SADDLING THE
LIABILITY ON THE RESONDENT NO.2 HEREIN.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
COMMON JUDGMENT
These appeals are filed by the claimants and the
owner of the offending vehicle bearing registration
No.KA-27/4310, challenging the judgment and award
dated 24.08.2017 passed by the Addl. MACT,
Belagavi (hereinafter referred to as 'the Tribunal', for
brevity), in MVC Nos.165/2015 and 166/2015.
2. Though these appeals are listed for
admission, with the consent of learned counsel
appearing on both sides, the same are taken up for
final disposal.
MFA NO.104537/2017
C/w. MFA NOS.104077/2017 & 104078/2017
3. The parties to these appeals are referred to
by their rankings assigned to them before the
Tribunal for the sake of convenience.
4. The brief facts of the case that would be
relevant for the purpose of disposal of these cases
are;
On 23.07.2014 at about 8.30 pm, the deceased
Bhima S/o. Bhujang Astekar was riding his
motorcycle bearing registration No.KA-22/EB-5360
along with one Mayur, who was a pillion rider. When
the motorcycle reached near Mutyanatti cross over
bridge NH-4 road near Kakati, the offending Tempo
bearing registration No.KA-27/4310 was parked on
NH-4 Express Highway without any signals or
indicators. The deceased Bhima Astekar, who was
riding the motorcycle, dashed against the parked
lorry and caused the accident. In the said accident,
Bhima Astekar, who had suffered grievous injuries,
succumbed on the spot and the pillion rider, who was
MFA NO.104537/2017
C/w. MFA NOS.104077/2017 & 104078/2017
injured, was shifted to a private hospital, wherein he
was treated for the injuries suffered by him.
It is under these circumstances, the claimants
herein, who are the parents and sister of the
deceased Bhima Astekar and the injured, had filed
two separate claim petitions under Section 166 of the
Motor Vehicles Act, 1988, before the Tribunal,
claiming compensation towards the death of Bhima
Astekar and the injuries suffered by the claimant in
MVC No.166/2015, in the accident that had taken
place on 23.07.2014, from the owner and insurer of
the offending tempo bearing registration No.KA-
27/4310. The claim petitions were partly allowed by
the Tribunal and a compensation of `10,72,000/- with
interest at 6% p.a. from the date of petition till
realization was awarded to the claimants in MVC
No.165/2015 and `10,000/- to the claimant in MVC
No.166/2015.
On the ground that the driver of the offending
tempo was not holding a valid and effective driving
licence as on the date of the accident, the liability of
MFA NO.104537/2017
C/w. MFA NOS.104077/2017 & 104078/2017
the Insurer of the offending vehicle was exonerated
and the Tribunal had directed the owner of the
offending Tempo to deposit the compensation
amount.
It is under these circumstances, the owner of
the offending tempo bearing registration No.KA-27-
4310 has filed MFA Nos.104077/2017 and
104078/2017, while the claimants in MVC
No.165/2015, who are the parents and sister of
deceased Bhima Astekar, have filed MFA
No.104537/2017, seeking enhancement of
compensation.
5. Learned counsel for the owner of the
offending Tempo submits that the liability of the
Insurer has been exonerated on the ground that the
driving licence produced before the Court was a fake
licence. He submits that the owner after taking
reasonable care had allowed the driver to drive the
offending vehicle with a bona fide belief that he was
holding a valid and effective driving licence. He
MFA NO.104537/2017
C/w. MFA NOS.104077/2017 & 104078/2017
submits that the said licence was produced before the
police immediately after the accident and therefore,
Section 3 of the Motor Vehicles Act was not invoked
by the police while filing the charge sheet. He
further submits that, he came to know that the
alleged licence of the driver was fake licence only
when the official from Mumbai RTO came before the
Tribunal and deposed that the said licence was a fake
licence.
He has placed reliance on the judgment of the
Hon'ble Apex Court in the case of National Insurance
Co. Ltd vs Swaran Singh & Ors, reported in (2004) 3
SCC 297, in support of his contention and submits
that the Tribunal had erred in exonerating the
liability of the Insurer of the offending vehicle, when
admittedly the Insurance Policy issued in support of
the offending vehicle was in force as on the date of
accident.
6. Learned counsel for the claimants submits
that the compensation awarded to the claimants is on
MFA NO.104537/2017
C/w. MFA NOS.104077/2017 & 104078/2017
the lower side. He submits that the future prospects
of the deceased has not been taken into
consideration by the Tribunal and the compensation
awarded under the conventional heads is also on the
lower side. Accordingly, he prays to enhance the
compensation amount.
7. Per contra, learned counsel appearing for
the Insurer of the offending vehicle submits that the
Tribunal was justified in exonerating the liability of
the Insurer. He submits that the driving licence of
the driver of the offending vehicle is proved to be a
fake licence and therefore, it amounts to fundamental
breach of the policy conditions and in view of the
judgment of the Full Bench of this Court in the case
of New India Assurance Co. Ltd., Vs. Yallavva and
Another reported in 2020 ACJ 2560, the Tribunal was
justified in exonerating the liability of the Insurer.
He also submits that the deceased was also guilty of
contributory negligence and the FIR and charge sheet
has been filed as against the driver of the offending
MFA NO.104537/2017
C/w. MFA NOS.104077/2017 & 104078/2017
vehicle as well as the deceased. He submits that,
from the evidence of eyewitness PW3, it is very clear
that the deceased was riding the motorcycle
negligently and therefore, he was guilty of
contributory negligence. He submits that the
compensation awarded by the Tribunal is just and
proper and needs no interference. Accordingly, he
prays to dismiss all the appeals.
8. I have carefully considered the arguments
addressed on both sides and also perused the
material on record.
9. The undisputed facts of the case are that,
on 23.07.2014, at about 8.30 pm, when the deceased
Bhima Astekar was proceeding in his motorcycle
along with the claimant in MVC No.166/2015, who
was a pillion rider, the offending Tempo bearing
registration No.KA-27/4310 was parked on NH-4
Express Highway and the deceased Bhima Astekar
without noticing the said Tempo had dashed his
motorcycle against the same and had caused the
MFA NO.104537/2017
C/w. MFA NOS.104077/2017 & 104078/2017
accident. In the said accident Bhima Astekar died on
the spot and the pillion rider, who is the claimant in
MVC No.166/2015, had suffered injuries. It is not in
dispute that the offending Tempo was duly insured by
the respondent Insurance Company and the policy
was in force as on the date of the accident.
10. The questions that arises for consideration
in these appeals would be:
i. Whether the Tribunal was justified in
exonerating the liability of the Insurer
of the offending tempo and saddling the
liability to pay the compensation on the
owner of the offending Tempo bearing
registration No.KA-27/4310?
ii. Whether the Insurer of the offending
vehicle has proved that the Insured was
guilty of not taking proper care before
permitting the driver to drive the
offending vehicle?
iii. Whether the deceased/rider of the
motorcycle was guilty of contributory
negligence in the accident that had
occurred on 23.07.2014, in which the
MFA NO.104537/2017
C/w. MFA NOS.104077/2017 & 104078/2017
offending Tempo bearing registration
No.KA-27/4310 was involved?
iv. Whether the compensation awarded by
the Tribunal to the claimants towards
death of deceased Bhima Astekar was
just and proper?
11. Re: Question Nos.i and ii
(a) The material on record would o to show that,
immediately after the accident had occurred on
23.07.2014, a complaint was lodged and FIR was
registered by the jurisdictional police as against the
deceased Bhima Astekar and also the driver of the
offending Tempo. Subsequently, after investigation,
the police have filed a charge sheet against the
driver of the offending Tempo and abated charge
sheet as against the deceased.
(b) It is relevant to take notice of the fact that
the police have not invoked Section 3 of the Motor
Vehicles Act as against the driver of the offending
Tempo. The material on record would go to show
that the copy of the licence of the driver of the
MFA NO.104537/2017
C/w. MFA NOS.104077/2017 & 104078/2017
offending vehicle was produced before the police
after the accident. The owner of the offending
Tempo was examined before the Tribunal as RW1.
During the course of his evidence, he has stated that
he had verified the licence of his driver and he had
no reason to suspect the same. He had further
stated that he had authorized the driver of the
Tempo, who was driving the said vehicle at the time
of accident, to drive the vehicle under a good faith on
the belief that he was having a valid driving licence
to drive the Tempo and it is only when the RTO
officer of Mumbai came to give evidence before the
Tribunal, he came to know that the licence of the
driver was a fake licence. In his cross-examination,
nothing is elicited by the Insurer to disbelieve his
evidence.
(c) From the appreciation of the material
evidence available on record, it is seen that the
owner of the offending vehicle had verified the
licence furnished to him by the driver and with a
bona fide belief that the driver was holding a valid
MFA NO.104537/2017
C/w. MFA NOS.104077/2017 & 104078/2017
licence, he had permitted him to drive the vehicle in
question and it is only after the Insurer summoned
the officer from the RTO, Mumbai, the owner of the
offending vehicle came to know that the driving
licence in question was a fake licence. Therefore, it
cannot be said that the owner of the offending Tempo
had not taken sufficient care to find out whether the
driver had a valid licence as on the date of accident
or not.
(d) The Hon'ble Supreme Court in the case of
National Insurance Co. Ltd., Vs. Swaran Singh
and Others reported in 2004 (3) SCC 297, has held
that the question as to whether the owner has taken
reasonable care to find out as to whether the driving
licence produced by the driver was a fake one or
otherwise, and the same does not fulfill the
requirements of law or not will have to be determined
in each case.
(e) It is also held in the said case that the
defence to the effect that the licence held by the
person driving the vehicle was a fake one, would be
MFA NO.104537/2017
C/w. MFA NOS.104077/2017 & 104078/2017
available to the insurance companies, but the burden
to prove the said defence is on the Insurer and the
Insurer is required to establish that the owner was
guilty of willful breach of the conditions of the
Insurance Policy or the contract of insurance.
(f) If the evidence available on record is
appreciated in the background of the judgment of the
Hon'ble Supreme Court in Swaran Singh's case
(supra), it has to be held that the Insurer had failed
to prove that the owner of the offending vehicle had
not taken reasonable care to find out as to whether
the driving licence produced by the driver was fake,
before permitting him to drive the vehicle.
Therefore, the Tribunal had erred in exonerating the
liability of the Insurer of the offending lorry and
saddling the liability to pay the compensation on the
owner of the offending lorry.
(g) Though the learned counsel for the Insurer
has placed reliance on the decision of the Full Bench
of this Court in the case of New India Assurance
Co. Ltd., Vs. Yallavva and Another reported in
MFA NO.104537/2017
C/w. MFA NOS.104077/2017 & 104078/2017
2020 ACJ 2560 and submitted that, since the licence
in question is proved to be a fake licence, it amounts
fundamental breach of policy conditions, the said
contention cannot be appreciated for the reason that
the Hon'ble Supreme Court in the case of Swaran
Singh (supra) has held that the question whether the
owner had taken reasonable care to find out as to
whether the driving licence produced by the driver
was fake or not was required to be determined in
each case and the burden to prove that the owner
was guilty of willful breach or that he was guilty of
not taking proper care to find out as to whether the
driving licence was a fake one, was on the Insurer of
the vehicle. Since the Insurer has failed to discharge
this burden of its, it cannot be said, for the reason
that the licence is proved to be fake, it amounts to
fundamental breach of the policy conditions as sought
to be contended by the learned counsel for the
Insurer.
Therefore, questions No.(i) and (ii) are
accordingly answered in the negative.
MFA NO.104537/2017
C/w. MFA NOS.104077/2017 & 104078/2017
12. Re: Question No.iii
(a) The material on record would go to show
that, immediately after the accident, FIR was
registered as against the driver of the offending
Tempo and against the deceased, who was the rider
of the motorcycle. The police after investigation
have filed the charge sheet as against the driver of
the offending tempo and abated charge sheet against
the deceased, who was the rider of the motorcycle.
(b) The claimants have examined PW3, who is
the alleged eyewitness to the accident in question.
PW3 has stated that, on 23.07.2014 at about 8.30
pm, he was proceeding in his motorcycle bearing
registration No.KA-22/EG-3232 and when he reached
near Mutyanatti cross over bridge NH-4, he saw that
a Tempo bearing registration No.KA-27/4310 was
parked on NH-4 Express Highway without parking
lights or parking signals. He further submits that the
motorcycle of the deceased was proceeding ahead of
him and the said motorcycle dashed to the parked
MFA NO.104537/2017
C/w. MFA NOS.104077/2017 & 104078/2017
Tempo from its rear side and it was raining heavily at
that time.
(c) From the evidence of this witness, it is very
clear that he had seen the offending Tempo which
was parked in the Express Highway. Further, it
appears that the deceased, who was ahead of this
witness, had not noticed the same and dashed
against the parked vehicle. Therefore, it is very
clear that the deceased was not driving the
motorcycle carefully, though it was raining heavily at
the time of accident and thereby he had dashed
against the parked Tempo.
(d) Under the circumstances, it is very clear that
the deceased was guilty of contributory negligence
and it is only as a result of his contributory
negligence, the accident in question had occurred. On
appreciation of the oral and documentary evidence
available on record, I am of the considered view that
the contributory negligence of the deceased as well
as the driver of the offending Tempo is required to be
apportioned equally and therefore, the contributory
MFA NO.104537/2017
C/w. MFA NOS.104077/2017 & 104078/2017
negligence of the deceased and the driver of the
Tempo is held to be in the ratio of 50:50.
Accordingly, question No.(iii) is answered in the
affirmative.
13. Re: Question No.iv
The deceased was aged about 25 years as on the
date of the accident and he was a bachelor. The
claimants are the mother and sister of the deceased.
Having regard to the year of the accident, since the
claimants had failed to prove the income of the
deceased, the notional income of the deceased is
required to be taken into consideration at `7,500/-
per month. 40% of the said income is required to be
taken into consideration towards loss of future
prospects of the deceased. Out of the total income,
50% is required to be deducted towards personal
expenses of the deceased. The proper multiplier
applicable having regard to the age of the deceased
would be 18. In the said event, the claimants are
entitled for a total compensation of `11,34,000/-
MFA NO.104537/2017
C/w. MFA NOS.104077/2017 & 104078/2017
(`5,250 x 12 x 18 ) towards 'loss of dependency'. In
addition to the same, the claimants are entitled for a
sum of `40,000/- each towards 'loss of filial love and
affection'. The claimants are also entitled for a
compensation of `30,000/- towards 'loss of estate
and funeral expenses'.
Therefore, in all the claimants are entitled for a
total compensation of `12,84,000/- as against
`10,72,000/- awarded by the Tribunal. Therefore,
question No.(iv) is required to be answered in the
negative.
14. Since the deceased is held to be guilty of
contributory negligence to the extent of 50%, the
claimants in MVC No.165/2015 are entitled only for
50% of the compensation amount awarded to them,
which amounts to `6,42,000/-. The claimants are
entitled for interest on the said compensation amount
at 6% p.a. from the date of petition till realization.
15. The Insurer of the offending tempo bearing
registration No.KA-27/4310 is directed to deposit the
MFA NO.104537/2017
C/w. MFA NOS.104077/2017 & 104078/2017
compensation in both the claim petitions with interest
before the Tribunal within a period of six weeks from
the date of receipt of certified copy of this order.
The amount in deposit in MFA Nos.104077/2017 and
104078/2017 is directed to be refunded to the
appellant/owner of the offending Tempo. The order
passed by the Tribunal insofar as it relates to
apportionment, deposit etc., remains unaltered.
Accordingly, MFA No.104537/2017 filed by the
claimants in MVC No.165/2015 is dismissed.
MFA Nos.104077/2017 and 104078/2017 filed by
the owner of the offending vehicle are allowed. The
impugned judgment and award accordingly stands
modified.
In view of disposal of the main appeal, all
pending I.As. do not survive for consideration.
Sd/-
JUDGE
gab
