The Divisional Manager vs S. Jaahidabee, Aged 49 Years
2022 Latest Caselaw 8182 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 6TH DAY OF JUNE 2022

                          BEFORE

    THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

                MFA No.371 OF 2019 (MV)
                         C/W
                MFA NO.372 OF 2019 (MV)

IN MFA NO.371/2019:

BETWEEN:

The Divisional Manager,
Cholamandalam MS General
Insurance Company Limited.,
R/o Davanagere.
By
The Claims Manager,
Cholamandalam MS General
Insurance Company Limited.,
Unit No.04, Ninth Floor(level-06),
"Golden Heights" Complex,
59th 'C' Cross, Industrial Suburb,
Rajajinagar, 4th 'M' Block,
Bengaluru - 560 010.
By it's Claim Manager.
                                          ... Appellant
(By Sri.O.Mahesh., Advocate)

AND:

1. S.Jaahidabee, Aged 49 years,
   W/o Late. S.Abdul Latheef,

2. S.Salman, Aged 28 years,
   S/o Late. S.Abdul Latheef,
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3. S.Rubiyaa, Aged 26 years,
   S/o Late. S.Abdul Latheef,

4. S.Najiyaa, Aged 24 years,
   D/o Late. S.Abdul Latheef,

5. S.Mohammed Musaveer,
   Aged about 22 years,
   S/o Late. S.Abdul Latheef,

6. S.Seema, Aged 19 years,
   D/o Late. S.Abdul Latheef,

7. S.Mohammed Sahil, Minor,
   Aged 17 years,
   S/o Late. S.Abdul Latheef,

8. S.Meharunbee, Aged 76 years,
   W/o Late S.Abdul Rahim Sab,

All are R/o 8th Ward, Gajikere street,
Harapanahlli Taluk,
Davanagere District - 577 001.

9. Basavaraja, Major,
   S/o Parushuramappa,
   R/o Anaji village,
   Davanagere Taluk & District - 577 001.

10. G.M.Kumara Swamy, Major,
   S/o Marula siddappa,
   R/o Kammathahalli Village,
   Harapanahalli Taluk,
   Davanagere District - 577 001.
                                            ... Respondents
(By Sri.Faiyaz Sab.B.G., Advocate for R1 to R8;
    Sri.A.Hanumanthappa, Advocate for R10;
     Notice to R9 is dispensed with)
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       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 24.09.2018 passed
in MVC No.655/2015 on the file of the Senior Civil Judge &
MACT-IX, Harapanahalli, awarding compensation of
Rs.9,23,000/- with interest 6%.p.a., from the date of
petition till realization.

IN MFA NO.372/2019:

The Divisional Manager,
Cholamandalam MS General
Insurance Company Limited.,
R/o Davanagere.
By
The Claims Manager,
Cholamandalam MS General
Insurance Company Limited.,
Unit No.04, Ninth Floor(level-06),
"Golden Heights" Complex,
59th 'C' Cross, Industrial Suburb,
Rajajinagar, 4th 'M' Block,
Bengaluru - 560 010.
By it's Claim Manager.
                                              ... Appellant
(By Sri.O.Mahesh., Advocate)

AND:

1. S.Jaahidabee, Aged 49 years,
   W/o Late. S.Abdul Latheef,
   R/o 8th Ward, Gajikere street,
   Harapanahlli Taluk,
   Davanagere District - 577 001.

2. Basavaraja, Major,
   S/o Parushuramappa,
   R/o Anaji village,
   Davanagere Taluk & District - 577 001.
                               4



3. G.M.Kumara Swamy, Major,
   S/o Marula siddappa,
   R/o Kammathahalli Village,
   Harapanahalli Taluk,
   Davanagere District - 577 001.
                                          ... Respondents
(By Sri.Faiyaz Sab.B.G., Advocate for R1;
    Sri.A.Hanumanthappa, Advocate for R3;
     Notice to R2 is dispensed with)

       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 24.09.2018 passed
in MVC No.654/2015 on the file of the Senior Civil Judge &
MACT-IX, Harapanahalli, awarding compensation of
Rs.2,25,380/- with interest 6%.p.a., from the date of the
petition till realization.

      These appeals coming on for Final Hearing, this day,
this Court, delivered the following:

                    JUDGMENT

These appeals are filed by the Insurance

Company under Section 173(1) of the Motor Vehicles

Act, (for short, 'the Act') being aggrieved by the

judgment and award dated 24.09.2018 passed by the

MACT, Harappanahalli in MVC Nos.654/2015 and

655/2015. 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 23.04.2015 at about 8.00

p.m. the deceased Abdul Lathief along with his wife

was proceeding on the motorcycle bearing registration

No.KA-17/EN-5045 from Hallada road to via Ambedkar

Badavane road to reach their home. When the

deceased was going through the Arsikere byepass

road, at that time, Ashoka Leyland bus bearing

registration No.KA-17/A-8235 being driven by its

driver at a high speed and in a rash and negligent

manner dashed to the motorcycle. As a result of the

aforesaid accident, the deceased sustained grievous

injuries and succumbed to the injuries at the spot and

his wife suffered grievous injuries and was

hospitalized.

3. The claimants filed a petition under Section

166 of the Act seeking compensation for the death of

the deceased and also for the injuries sustained by the

claimant along with interest.

4. On service of summons, the respondent

Nos.1 to 3 appeared through counsel and filed

separate written statements in which the averments

made in the petition were denied. The age,

occupation and income of the deceased and injured

claimant are denied. It was pleaded that the petition

itself is false and frivolous in the eye of law. It was

further pleaded by respondent No.2 that the driver of

the offending vehicle had a valid driving licence as on

the date of the accident and respondent No.3 is liable

to pay the compensation.

The said written statement has been adopted by

respondent No.1.

It was pleaded by respondent No.3 that the

driver of the offending vehicle had no valid driving

licence as on the date of the accident. It was further

pleaded that the bus had no permit to ply at the place

in which the accident has occurred. It was further

pleaded that the petition is bad for non-joinder of

necessary parties. It was further pleaded that the

liability is subject to terms and conditions of the

policy. It was further pleaded that the quantum of

compensation claimed by the claimants is exorbitant.

Hence, they sought for dismissal of the petition.

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 Dr.Umanth R.Ullal as PW-2 and got exhibited

documents namely Ex.P1 to Ex.P14 in MVC

No.654/2015 and examined claimant No.1 as PW-1

and got exhibited Ex.P1 to Ex.P10 in MVC

No.655/2015. On behalf of respondents, 5 witnesses

were examined as RW-1 to RW-5 and got exhibited 8

documents namely Ex.R1 to Ex.R8 in both the

matters. 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 and other claimant suffered injuries. The

Tribunal further held that the claimants are entitled to

compensations of Rs.2,25,380/- in MVC No.654/2015

and Rs.9,23,000/- in MVC No.655/2015 along with

interest at the rate of 6% p.a. and directed the

Insurance Company to deposit the 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, there was no compliance of mandatory

provisions of Section 134(c) of the Motor Vehicles Act

either by the insured or his driver and the concerned

investigating officer has not complied the mandatory

provision of Section 158(6) of the M.V.Act.

Secondly, the finding of the Tribunal on issue of

negligence is improper besides being cryptic since it

failed to consider the fact that deceased was crossing

the intersection of roads and which fact was

specifically stated in the compliant.

Thirdly, the Tribunal has failed to notice and

consider the admission of PW-1 - wife of the deceased

who was the pillion rider as to how far the bus was

from their motorcycle and as such her sole evidence is

not corroborated by complainant who stated to be

alleged eyewitness was not sufficient to prove the

negligence of the driver of the bus alone.

Fourthly, the Tribunal ought to have seen that

the damages caused to motorcycle of deceased noted

in IMV report was 'front head light, guard, left foot

rest and left mirror' which establishes that deceased

had dashed to bus wheel and therefore there is no

visible damages found on bus as per the IMV report -

Ex.P5.

Fifthly, the notional income of the deceased

assessed by the Tribunal is not based on any

evidence. Since the children were all majors, the

Tribunal ought to have deducted 50% of the income of

the deceased for personal expenses but erred in

deducting 1/3rd. The overall compensation awarded

by the Tribunal in both the cases is on the higher side.

Sixthly, the Tribunal has grossly erred in

saddling peremptorily liability on the insurer without

reference and without considering the specific

pleading and proof by insurer that insured bus had no

permit and thereby there was violation of law as well

as terms and conditions of the policy by both driver

and insured and which fact has been substantiated by

evidence of RW-2 - an officer of concerned

Davanagere RTO, coupled with evidence of an officer

of the Insurance Company who was examined as RW-

1.

Lastly, the Tribunal has failed to consider the

defence of insurer in respect of permit issue and

specific oral as well as documentary evidence let in in

respect thereof. Hence, he sought for allowing the

appeals.

7. On the other hand, learned counsel appearing

for the owner of the offending vehicle has raised the

following contentions:

Firstly, the accident has occurred due to the

negligence of the rider of the motorcycle. The rider of

the motorcycle was crossing the road without

observing the vehicles coming from main road. The

Tribunal is not justified in holding that the driver of

the bus is negligent in causing the accident.

Secondly, even to prove his case he has

examined the driver of the bus and owner himself was

also examined. They have categorically stated that

the driver of the motorcycle alone is negligent in

causing the accident. But the Tribunal has failed to

consider this aspect of the matter.

Thirdly, as on the date of the accident, the

offending vehicle was having a temporary permit. The

vehicle was taken to garage for repair. To prove the

same he has examined the owner of the garage as

RW-5. Since he has used the vehicle only for the

purpose of repair, the permit is not required under the

law. Therefore, there is no violation of provisions of

the Motor Vehicles Act. Since the offending vehicle

was covered with valid insurance policy, the Insurance

Company is liable to pay the compensation.

Fourthly, considering the age and avocation of

the deceased, the overall compensation awarded by

the Tribunal is on the higher side.

8. Learned counsel appearing for the claimants

has raised the following contentions:

Firstly, the accident has occurred due to rash

and negligent driving of the driver of the bus. The

deceased was riding the motorcycle after following the

traffic rules. He has crossed the main road almost. At

that time the driver of the bus has come in a rash and

negligent manner and dashed against the motorcycle.

Due to the impact, the rider of the motorcycle fell

down and sustained injuries and succumbed to the

injuries and pillion rider has suffered injuries.

Secondly, the offending vehicle was covered with

valid insurance policy. Even if the offending vehicle

was not having a valid permit, but in view of the law

laid down by the Hon'ble Apex Court in the case of

RANI vs. NATIONAL INSURANCE COMPANY

LTD. reported in (2018) 8 SCC 492 and AMRIT

PAUL SINGH AND ANOTHER vs. TATA AIG

GENERAL INSURANCE COMPANY LIMITED AND

OTHERS reported in (2018) 7 SCC 558, Insurance

Company has to pay the compensation at the first

instance with liberty to recover the same from the

owner of the offending vehicle.

Lastly, considering the evidence of the parties

and the materials available on record, the overall

compensation awarded by the Tribunal in both the

cases is just and reasonable. Hence, he sought for

dismissal of the appeals.

9. Heard the learned counsel for the parties

and perused the records.

10. It is the case of the claimants that on

23.04.2015 at about 8.00 p.m. the deceased Abdul

Lathief, along with his wife was proceeding on the

motorcycle bearing registration No.KA-17/EN-5045

from Hallada road to via Ambedkar Badavane road to

reach their home. When the deceased was going

through the Arsikere bye-pass road, at that time,

Ashoka Leyland bus bearing registration No.KA-17/A-

8235 being driven by its driver at a high speed and in

a rash and negligent manner dashed to the

motorcycle. As a result of the aforesaid accident,

the deceased sustained grievous injuries and

succumbed to the injuries at the spot and his wife

suffered grievous injuries and was hospitalized.

11. To prove their case, the claimants have

examined claimant No.1 in both the cases as PW-1

and produced 14 and 10 documents respectively in

both the cases.

12. 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."

13. PW-1, in her evidence has reiterated the

statement made in the claim petition. She has

produced FIR, complaint, panchanama, inquest, IMV

report and charge sheet. Immediately after the

accident one Athaulla has lodged a complaint against

the driver of the offending vehicle as per Ex.P2. The

police have registered FIR against the driver of the

offending vehicle as per Ex.P1, drawn panchanama as

per Ex.P3. Afterwards, they have seized the vehicle

by drawing a panchanama as per Ex.P4. They have

requested the transport officer to give a report and

IMV report has been produced as per Ex.P5. The

police after thorough investigation have filed charge

sheet against the driver of the offending vehicle as per

Ex.P9. Even in the cross-examination of PW-1 except

eliciting that she has not seen the distance of the bus,

nothing worthwhile has been elicited.

14. To disprove the case of the claimants, the

respondents have examined the owner of the

offending vehicle as RW-3, driver of the offending

vehicle as RW4 and vehicle inspector as RW2. The

owner and driver of the offending vehicle have

categorically stated that the accident has occurred due

to rash and negligent riding of the rider of the

motorcycle. He has also stated that the rider of the

motorcycle, without observing traffic rules was

crossing the road and he has not made any effort to

stop the vehicle. The respondents have also examined

the RTO Officer. He has categorically stated that the

offending vehicle was not having valid permit as on

the date of the accident. As per panchanama Ex.P3,

the offending vehicle was proceeding from Arasikere

side and the rider of the motorcycle was coming from

Hallada road via Arasikere bye-pass road. As per the

evidence of PW1 they have crossed 90% of the road.

At that time the driver of the offending vehicle came

from Arasikere side at a high speed and in a rash and

negligent manner and dashed against the motorcycle.

As per IMV report the following are the damages to

the vehicles:

KA-17/A-8235 (bus):

No visible damages were found at the time of my

inspection.

KA-17/EN-5045 (motorcycle):

(1) Front head light doom found scratched.

     (2)      Steering handle found bent

     (3)      Crash guard found bent and twisted

     (4)      Left side foot rest found bent.

     (5)      Left side rear view mirror found broken.

15. Even, in the evidence, the driver of the

offending vehicle has made an admission saying that

he has not made any complaint with regard to

accident higher officers. He has also not challenged

the charge sheet filed against him and it is also not in

dispute that the offending vehicle has been seized by

the police as per Ex.P4. By looking into the aforesaid

records and the evidence of the parties, I am of the

opinion that the Tribunal is justified in holding that the

driver of the offending vehicle is negligent in causing

the accident.

Re.quantum (MFA No.371/2019 arising out of

MVC No.655/2015):

16. Considering the injuries suffered by the

claimant, evidence of the doctor and age and

avocation of the claimant, the overall compensation

awarded by the Tribunal is just and reasonable.

Re.quantum (MFA No.372/2019 arising out of

MVC No.654/2015):

17. Considering the judgment of the Hon'ble

Apex Court in the case of NATIONAL INSURANCE

CO. LTD. vs. PRANAY SETHI AND OTHERS

reported in AIR 2017 SC 5157 and MAGMA

GENERAL INSURANCE CO. LTD. Vs. NANU RAM

reported in 2018 ACJ 2782, the overall

compensation awarded by the Tribunal is just and

reasonable.

Re.liability:

18. The Insurance Company has taken a specific

contention that the offending vehicle was not having

valid permit as on the date of the accident and also

they have sought for summoning the documents from

the Transport Authority.

It has come in the evidence of RW2 - Veeresha,

an officer from the RTO, Davanagere that as on the

date of the accident the offending vehicle was not

having any permit. The Tribunal has not framed any

issues in respect of the permit and also not discussed

as to whether as on the date of the accident the

offending vehicle was having a valid permit and also

not considered the defence taken by the owner of the

offending vehicle. There is no such finding. The

Tribunal instead of deciding the permit has wrongly

considered the driving licence. Therefore, the finding

given by the Tribunal in respect of liability is

concerned has to be reconsidered.

Since the claimants are third parties, the

Insurance Company has to pay the compensation

amount. The Insurance Company is directed to

deposit the compensation amount along with interest

@ 6% p.a. from the date of petition till the date of

realization within a period of six weeks from the date

of receipt of a copy of this order.

If Insurance Company succeeds before the

Tribunal and the Tribunal holds that the offending

vehicle was not having valid permit, Insurance

Company is at liberty to recover the same from the

owner of the offending vehicle. In respect of

negligence and quantum of compensation is

concerned, the same is confirmed.

19. Accordingly, appeals are allowed in part. The

judgment and award passed by the Tribunal is

modified. In respect of negligence and quantum is

concerned, it is confirmed. In respect of liability is

concerned, the same is set aside. The matter is

remanded back to the Tribunal with liberty to the

parties to adduce additional evidence and produce

additional documents. The Tribunal is directed to

decide the question of liability only.

Since the parties are represented by the learned

counsel, parties are directed to appear before the

Tribunal on 11.07.2022 at 11.00 a.m., without any

further notice. The Tribunal is directed to decide the

matter within three months from the date of

appearance of the parties.

All the contentions of the parties are left open.

The amount in deposit is ordered to be

transferred to the Tribunal forthwith.

Sd/-

JUDGE

Cm/-