Karnataka High Court
Sri Nagegowda vs Sri K N Nagaraju on 5 January, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.5750/2013 (MV-D)
BETWEEN:
1. SRI NAGEGOWDA,
S/O LATE JAVAREGOWDA,
AGED ABOUT 50 YEARS.
2. SMT. MAHADEVAMMA,
D/O NAGEGOWDA,
AGED ABOUT 28 YEARS.
3. SRI NAGARAJEGOWDA,
S/O NAGEGOWDA,
AGED ABOUT 25 YEARS.
ALL ARE R/AT KANCHINA KERE GRAMA,
K.R.NAGAR TALUK,
MYSORE - 570 005.
...APPELLANTS
(BY SRI S.A. SABOOR, ADVOCATE)
AND:
1. SRI K.N. NAGARAJU,
S/O NAGEGOWDA,
AGED ABOUT 32 YEARS,
R/AT ALAMBADI KAVALU,
K.R.PETE TALUK, MANDYA DISTRICT.
PRESENTLY RESIDING AT NO.406
2ND STAGE, KUVEMPU NAGAR,
MYSORE - 570 005.
(OWNER CUM INSURER OF THE KSRTC BIKE
BEARING NO.REG KA 09 EB 231 1593).
2
2. THE UNITED INDIA INSURANCE CO. LTD.,
1134, PRINCE OF WALES ROAD,
CHAMARAJAPURAM,
MYSORE - 570 005.
(INSURER OF POLICE NO.072000/31/09/01/00014347
VALID FROM 20.3.10 TO 19.3.11).
...RESPONDENTS
(BY SRI JANARDHAN REDDY, ADVOCATE FOR R2,
R1 SERVED AND UNREPRESENTED)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 20.4.2012 PASSED
IN MVC NO.431/2011 ON THE FILE OF THE FAST TRACK COURT III
AND MACT, MYSORE, DISMISSING THE CLAIM PETITION FOR
COMPENSATION.
THIS M.F.A. COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and the
learned counsel for respondent No.2.
2. This appeal is filed challenging the judgment and
award dated 20.04.2012, passed in M.V.C.No.431/2011, on the
file of the Fast Track Court III and MACT, Mysore ('the Tribunal'
for short).
3. The factual matrix of the case of the claimants
before the Tribunal is that Lakshmamma, who was a house-wife
and agriculturist, aged about 45 years was a pillion rider in the
motorcycle bearing registration No.KA-09-EB-2311 ridden by
respondent No.1 at about 12.00 p.m. on 05.08.2010. When
respondent No.1 was riding the said motorcycle with
Lakshmamma on his pillion seat near Badakanakoppalu Village
at about 12.00 p.m., dogs came across the bike. Thereby,
respondent No.1 hit the said dogs, as a result, the wife of
petitioner No.1 fell down from the motorcycle and sustained
grievous injury on her head and respondent No.1 also sustained
simple injuries. Immediately after the accident, Smt.
Lakshmamma - wife of first petitioner was shifted to K.R.Nagar
Government hospital and thereafter to K R Hospital, Mysuru for
better treatment on 05.08.2010 and in the said hospital she was
an inpatient from 05.08.2010 to 08.08.2010 and died in the
hospital on 08.08.2010 and post mortem was also conducted. It
is the case of the claimants that they have spent an amount of
Rs.15,000/- to take the dead body to their village and the
deceased was earning Rs.2,00,000/- per year and as a result of
the alleged accident, the family members have lost their earning
member and the claimants are the dependants on the income of
the deceased. Hence, they filed the claim petition before the
Tribunal. In pursuance of the claim petition, notice was issued
to the respondents and they have appeared through their
respective counsel but respondent No.2-Insurance Company only
filed the objections denying all the averments made in the claim
petition and contended that the compensation awarded by the
Tribunal is exorbitant and also contended that the claimants are
not the legal representatives of the deceased. The liability is
also subject to the conditions of the policy. The claimants in
order to substantiate their claim, examined third claimant as
PW1 and also examined one witness as PW2 and got marked the
documents at Ex.P1 to P10. The respondents have not
examined any witnesses and also not produced any documents
to disprove the case of the claimants. The Tribunal after
considering both the oral and documentary evidence dismissed
the claim petition on the ground that the accident has not been
proved. Hence, the present appeal is filed by the claimants.
4. The main contention of the learned counsel
appearing for the claimants that Tribunal has committed an error
in dismissing the claim petition and not considered the fact of
the accident and not believed the evidence of PW2 who is an
eye-witness to the incident. The Tribunal also not considered
the medical report and PM report and also not considered the
IMV report and FIR and dismissed the claim petition only on the
ground that the records of the K R Hospital are not produced
before the Tribunal. The counsel also brought to notice of this
Court that an application was filed before this Court to summon
the document from the K R hospital and K R hospital records
have been received by this Court and those documents also
clearly evident that on the date of the accident dog came across
the motorcycle, as a result, the accident was occurred and the
deceased was proceeding as a pillion rider in the said motorcycle
at the time of the accident and history also mentioned the same
hence, the very approach of the Tribunal is erroneous. Hence, it
requires interference.
5. Per contra, the learned counsel appearing for the
Insurance Company vehemently contend that in order to
substantiate the claim of the claimants, no documents are placed
before the Tribunal and hence, the Tribunal rightly comes to the
conclusion that the records of K R hospital are not produced to
prove the accident. Hence, this Court cannot find fault with the
finding of the Tribunal. However, the counsel would submit that
the records which have been received by this Court from the K R
hospital though discloses that the intimation was given
immediately after the accident as well as the history was given
as what they have claimed in the claim petition, the same has to
be proved hence, the matter requires to be remanded to the
Tribunal for fresh consideration and the matter has to be
adjudicated with regard to the proof of the accident.
6. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material available
on record the points that would arise for consideration of this
Court are:
(1) Whether the Tribunal has committed an
error in dismissing the claim petition?
(2) Whether the matter requires to be
remanded to the Tribunal for fresh
consideration of the claim petition?
(3) What order?
Point No.1:
7. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material available
on record it discloses that it is the case of the claimants that the
deceased was proceeding as a pillion rider along with respondent
No.1 in a motorcycle at the time of the accident. The Insurance
Company in the written statement filed before the Tribunal took
the defence that they have no knowledge of the accident and the
claimants are not the legal representatives of the deceased and
a formal objection was filed that rider has not having effective
driving licence and no specific defence is taken that the vehicle
was not involved in the accident but the Tribunal having
considered the material available on record comes to the
conclusion that the accident has not been proved.
8. No doubt, in the cross-examination PW1 has stated
that respondent No.1 is his relative and also admitted that the
accident was witnessed by one Papegowda and also admits that
the deceased was aged about 45 years as per the documents
and also admits that no document is produced to show that the
deceased was aged about 45 years. The eye-witness is also
examined as PW2 and in his affidavit he stated that he had
witnessed the accident. But in the cross-examination, he says
that he was waiting for the bus at Koppal bus stand but he did
not notice the motorcycle number since he was at the distance of
20 feet and he is not a relative of the deceased and he has not
given any complaint and police enquired him after 4 to 6 days
and they have not obtained any signature.
9. The Tribunal having considered the material on
record comes to the conclusion that there is a delay of five days
in lodging the complaint and also comes to the conclusion that
there is no explanation for the delay in lodging the complaint.
This Court has summoned the documents from K R Hospital
wherein also it is mentioned that on the date of the accident
itself a history was given that when the dog came across the
motorcycle, the rider hit the dog, as a result, the pillion rider fell
down but no document is placed before the Tribunal with regard
to the treatment taken at K R hospital. However, Tribunal has
committed an error in coming to the conclusion that PW2 has
spoken about the accident when he was not present at the spot
at the time of the accident and according to his reply, he came
to the spot at about 1.30 or 2.00 p.m. therefore, there is no
chance of PW2 witnessing the accident which was said to have
taken place at about 12.00 noon and this observation of the
Tribunal is erroneous. But on perusal of the evidence of PW2 it
discloses that no such admission was elicited as discussed by the
Tribunal. However, it is observed that Insurance Company has
not seriously disputed the accident but observed that even the
undisputed evidence is not sufficient to hold that a road accident
was occurred and very approach of the Tribunal is erroneous
when immediately after the accident, the injured was taken to
the hospital and history was given. No doubt, in the cross-
examination of PW1, he admitted that respondent No.1 was a
relative and it is also the fact of the claimants that he was
proceeding along with the rider of the motorcycle of respondent
No.1 who is a relative and the very approach of the Tribunal is
erroneous hence, the Tribunal fails to take note of the answers
elicited from the mouth of PW1 and PW2 and the discussion is
against the evidence of PW1 and PW2 in the petition. Hence, the
very approach of the Tribunal is erroneous and hence, it requires
to be set aside when the material discloses that the accident was
occurred, case was registered and the police have investigated
the matter and filed the chare-sheet and document which was
summoned by this Court is also evident that the accident was
taken place and history was given as RTA and history is also
noted in the hospital records as pleaded by the claimants. Thus,
the Tribunal has committed an error in dismissing the claim
petition. Hence, I answer point No.1 as affirmative.
Point No.2:
10. The very contention of the Insurance Company that
the matter has to be remanded to the Tribunal. This matter is of
the year 2010. No doubt, when the documents are summoned
from the K R hospital, those documents are with regard to
consider the Point No.1 and not pertaining to decide the
quantum of compensation and hence, it is not necessary to
remand the matter to the Tribunal for fresh consideration as
contended by the learned counsel for the Insurance Company
since already 12 years has been elapsed from the date of the
accident and the available pleadings and evidence is sufficient to
decide the case. Hence, I answer Point No.2 as negative.
11. Now, this Court is considering the quantum of
compensation in favour of appellants. The claim of the claimants
that the deceased was an agriculturist and also a house wife and
aged about 45 years at the time of the accident. Under such
circumstances, the Court has to take only the notional income of
that time in the absence of documentary proof and the notional
income is taken as Rs.5,000/-. Hence, this Court considering
the income of the deceased as Rs.5,000/- calculated the
compensation on the head of loss of dependency as follows:
Monthly income - Rs.5,000.00
Add: 25% towards
Future prospects - Rs.1,250.00
--------------
- Rs.6,250.00
Less: 1/3rd towards
Personal expenses - Rs.2,083.00
--------------
- Rs.4,167.00
--------------
Loss of dependency = Rs.7,00,056.00
(4,167 x 12 x 14) --------------
12. The claimants are the husband and children of the
deceased hence, they are entitled for Rs.40,000/- each towards
loss of love and affection and the same comes to Rs.1,20,000/-
(40,000x3) and the claimants are also entitled for an amount of
Rs.33,000/- towards loss of estate and funeral expenses. Hence,
in all, the claimants are entitled for total compensation of
Rs.8,53,056/-.
Point No.3:
13. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and award of the
Tribunal dated 20.04.2012 passed in
M.V.C.No.431/2011 is set aside granting
compensation of Rs.8,53,056/- with interest at
6% per annum from the date of petition till
deposit.
(iii) The claimants are the husband and children of
the deceased. Hence, the compensation is
apportioned at the rate of 40% in respect of
first claimant-husband and 30% each in
respect of second and third claimants-children
with proportionate interest.
(iv) On deposit, the compensation amount i.e.,
50% has been released in favour of the
claimants on proper identification and
remaining 50% of the compensation has to be
deposited in any Nationalised Bank for a period
of three years.
(v) The Insurance Company is directed to pay the
compensation amount with interest within six
weeks from today.
(vi) The appellants are not entitled for the interest
for the delayed period of 324 days in filing the
appeal.
(vii) The Registry is directed to send the records to
the concerned Tribunal, forthwith.
Sd/-
JUDGE
MD/SN
