Karnataka High Court
Bhagya vs The Manager on 24 July, 2023
Bench: G Basavaraja
-1-
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MFA No. 5973 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE G. BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO. 5973 OF 2018 (MV-D)
BETWEEN:
1. BHAGYA
W/O LATE KANTHARAJU
R/AT KODAGATHAVALLI VILLAGE,
ALUR TALUK,
HASSAN DISTRICT-573 201.
2. K K VIRUPAKSHA
S/O LATE KANTHARAJU
R/AT KODAGATHAVALLI VILLAGE,
ALUR TALUK, HASSAN DISTRICT-573 201.
3. BASAMMA
W/O MALLE GOWDA @ MALLI GOWDA,
R/AT KODAGATHAVALLI VILLAGE,
Digitally ALUR TALUK, HASSAN DISTRICT-573 201
signed by ...APPELLANTS
RAMYA D
Location: High (BY SRI. GIRISH B BALADARE .,ADVOCATE)
Court of
Karnataka AND:
1. THE MANAGER
ICICI LOMBARD GENERAL INSURANCE CO.,LTD.,
NO.89,2ND FLOOR,
S.V.R.COMPLEX,
HOSUR MAIN ROAD,
MADIWALA,1ST STAGE,
KORAMANGALA,
BENGALURU-560 068
-2-
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MFA No. 5973 of 2018
2. ARVIND MOTORS PVT.LTD
NO.19,SHIVASHANKAR PLAZA,
LALBAGH ROAD,
RICHMOND CIRCLE,
BENGALURU-560 027
...RESPONDENTS
(BY SRI.D.MANJUNATH, ADVOCATE FOR R1
R2- SERVED)
****
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:02.03.2018,
PASSED IN MVC NO.222/2017, ON THE FILE OF THE III
ADDITIONAL DISTRICT JUDGE AND MACT, HASSAN,
DISMISSING THE CLAIM PETITION FOR COMPENSATION AND
ETC.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT', THIS DAY, THIS COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The petitioners/appellants have preferred this appeal
against the judgment and award dated 02.03.2018 passed by
the III Additional District Judge and MACT, Hassan, in MVC
No.222/2017.
2. The parties are referred to as per their ranks
before the Tribunal.
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MFA No. 5973 of 2018
3. The brief facts of the case of the
petitioners/appellants are as under:
That on 14-01-2016 at about 04.20 p.m. near
Neralekere Village, Birapura , B.M. Road, Hassan, when the
deceased Kanthraju was riding his Hero Honda Passion Pro
Motor Cycle bearing registration No.KA-46-H-2829 along with
one Rudrappa as a pillion rider, one Maruthi Swift Dzire car,
which belonged to respondent No.1 bearing its registration
No.KA-01-MM-2342, driven by its driver in a rash and
negligent manner, dashed to the said Motor Cycle that
belonged to deceased Kanthraju from rear side, as a result of
which, both the rider of said vehicle and its pillion rider fell
down from the said bike and sustained injuries on all the parts
of body, immediately both of them were shifted primarily to
Government Hospital, Hassan and further shifted to N.D.R.K.
Hospital, Hassan and further was referred to B.G.S. Hospital,
Bangalore for higher treatment and at last he was shifted to
Commando Hospital, Bangalore, wherein he succumbed to
injuries on 04.04.2016. The petitioners have spent
Rs.8,00,000/- towards Medical Expenses, Transportation
Charges, Cremation and Obsequies Ceremony of the
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deceased. Prior to the accident, deceased was hale and
healthy and was doing business and agricultural work and
earning Rs.15,000/- p.m. The Petitioners were entirely
depending on the income of the deceased Kanthraju, due to
sudden demise of the said Kanthraju, petitioners were put to
greater hardship. The vehicle that belonged to respondent
No.1 was insured with respondent No.2 at the time of
accident and thus the policy was in force. On all these
grounds, sought for allowing this appeal.
4. Respondent No.1 appeared before the Court and
filed his written statement and he has denied the entire
contents of petition except admitting that the vehicle
belonged to respondent No.1 was insured with respondent
No.2 at the time of alleged accident, which is said to have
been taken place on 14.01.2016. The said insurance was in
force. Further it is alleged that if at all the claims have to be
compensated, the same has to be paid by the respondent
No.2. There is no fault lies with the respondent No.2. The
Maruthi Swift Dzire Car belonged to respondent No.1 has not
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met with the accident. On all these grounds, sought for
dismissal of the claim petition.
5. Respondent No.2 - insurance company has filed
its written statement contending that the petition is not
maintainable, same is bad for non-joinder of driver of the
vehicle that belonged to respondent No.2 and further denied
the fact that petitioners are being the legal representatives of
deceased Kanthraju and petitioner No.2, who being major is
not depending on the earnings of deceased and petitioner
No.3, who also being major not depending on the income of
the petitioner. There is an inordinate delay of 3 days in
lodging the complaint. THE IMV report discloses as to no
visible damages caused on the vehicle and as such there is a
fraud in fixing the vehicles and changing the version of the
accident. Therefore, respondent No.2 is not liable to
indemnify the compensation. The compensation sought by
the petitioners is excessive and speculative. The respondent
No.1 has not complied with the provisions of Section 134(C)
of Motor Vehicles Act, 1988 (for short 'MV Act') and concerned
police have also not complied the provisions of Section 158(6)
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of the MV Act. Respondent No.1 has not submitted the policy
particulars in respect of vehicle for verification of respondent
No.2. Deceased Kanthraju was not having effective driving
licence to ride the bike and contributed for the accident
without observing the Traffic Rules and Regulations. Thus,
the petitioners are not entitled for any compensation. The
theory of negligence needs to be applied while apportioning
the liability if it is held that accident is not solely due to rash
and negligent riding by the deceased. On all these grounds,
sought for dismissal of the claim petition.
6. On the basis above pleadings, the Tribunal has
framed the following issues:
1. Whether the petitioner proves that, on
14.01.2016 at about 04.20 p.m. near
Nerlekere Village, Birapura, B.M. Road,
Hassan, the husband of the Petitioner No.1
namely - Kanthraju was riding the Hero
Honda Passion Pro Motor Cycle bearing
Reg.No.KA.No.46-H-2829 the Respondent
No.1's Swift Dzire Car bearing
Reg.No.KA.No.01-MM-2342, which was
driven by its driver in rash and negligent
manner and dashed against the said Motor
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Cycle from rear side, and hence, the
husband of the petitioner No.1 has
sustained grievous injuries on all parts of
body and succumbed to the said injuries on
04-04-2016 at Commando Hospital,
Bengaluru?
2. Whether the said Kanthraju has contributed
for the said accident?
3. Whether petitioners are entitled for
compensation? If so, what is the quantum
and from whom?
4. What order/award?
7. In order to prove the case of petitioners, wife of
the deceased came to be examined as PW1 and another
witness Shivegowda examined as PW2 and 14 documents
were marked as Exs.P-1 to P-14. On closure of petitioners'
side evidence, the official of respondent No.2 - insurance
company is examined as RW1. No documents were marked
on behalf of respondents. The petitioners have not canvassed
any arguments before the Tribunal. On hearing the
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arguments of respondent No.2 the Tribunal has given its
finding as under:
Issues Nos.1 and 2: Negative
Issue No.3 : Does not survive for consideration
Issue No.4 : As per final order
8. In view of above findings, the Tribunal has
dismissed the claim petition filed under Section 166 of the MV
Act. Being aggrieved by this judgment and award petitioners
have preferred this appeal.
9. Learned counsel for the petitioners has submitted
his arguments that Tribunal has not properly appreciated the
evidence in accordance with law and facts. The alleged
incident took place on 14.01.2016 at about 04.20 p.m. Soon
after the accident, the injured was admitted to BGS Hospital
on the same day at 22.43 hours with the history of road
traffic accident. Same is mentioned in the discharge card
issued by the BGS Hospital, Bengaluru. Ex.P-14 - hospital
discharge summary also reveals the same. When the injured
is admitted to the hospital with the history of road traffic
accident, it is the duty of concerned hospital authorities to
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register the medico legal case and report the same to the
jurisdictional police, but the hospital authorities have not
registered the case.
10. Since the injured was taking treatment in the
hospital, he could not file complaint in time and after 3 days
from the date of accident i.e., on 17.01.2016, one Rudrappa,
S/o. Mallappagowda, who was a pillion rider of the motorcycle
bearing registration No.KA-46-H-2829 and resident of
Neralakere Village had lodged a complaint to the police. On
the basis of this complaint - Ex.P-2, Alur Police have
registered the complaint in Crime No.20/2016 against the
driver of car bearing registration No.KA-01-MM-2342 for the
commission of offences punishable under Sections 273 and
337 of IPC and Section 187 of the Motor Vehicles Act, 1988
and submitted the FIR to the Court as per Ex.P-1. Thereafter,
police have visited the spot and conducted mahazar as per
Ex.P-4 in the presence of panchas and that on 18.01.2016 the
police have seized this motorcycle under seizure mahazar -
Ex.P-5. Ex.P-7 - wound certificate issued by Sri
Chamarajendra Hospital, Hassan, which pertains to
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complainant - Rudrappa, S/o.Mallappagowda, also reveals
that Rudrappa was admitted on 14.01.2016 with the history
of road traffic accident of bike and cab.
11. The injured was discharged from BGS hospital on
20.01.2016. After discharge from BGS Hospital, the injured
was admitted to the Commando Hospital Air Force on same
day i.e., on 20.01.2016 and discharged on 22.02.2016. The
documents issued by the BGS Hospital and Commando
Hospital reveals that the injured was sustained with severe
head injury. Ex.P-14 - hospital discharge slip issued by the
Commando Hospital reveals that the patient was fit for
discharge to home and accordingly, he was discharged. After
the death of injured in the house on 04.04.2016, the inquest
panchanama was conducted and thereafter post mortem
examination was conducted. After the death of injured,
Bhagya who is the wife of Kanthraju, had lodged a complaint
as per Ex.P-2(a). On the basis of this complaint the police
have endorsed on this Ex.P-2(a) and submitted the same to
the jurisdictional police.
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12. After thorough investigation, the Investigating
Officer submitted the charge sheet against the accused -
Lancy Dias for the commission of offences punishable under
Sections 279, 337 and 304A of IPC and Section 187 of MV
Act. To substantiate the case of petitioners, one of the
claimant - wife of the deceased came to be examined as PW1
and another witness who is cited as PW6 in the charge sheet,
Shivegowda K.M. examined as PW2, has clearly deposed as to
the rash and negligent driving on the part of the driver of this
offending vehicle.
13. Further it is submitted that in inquest panchanama
- Ex.P-8 the IO has clearly mentioned that on 22.02.2016 as
per the advise of the doctor injured Kantharju was shifted to
the house of petitioners and the injured was taking food
through pipe, which was installed on his stomach. That on
04.04.2016 injured died in his house and in this regard, Ex.P-
8 - inquest panchanama was conducted and the post mortem
report - Ex.P-9 also came to be conducted. In post mortem
report the doctor has opined that the death was due to the
complication of head injuries sustained.
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14. The Tribunal has dismissed the petition on the
ground that there is a delay in filing the complaint, but in this
regard, in the complaint it is clearly stated that since the
injured was taking treatment in the hospital, he could not file
the complaint in time. When the injured was admitted to the
hospital it is the duty of the concerned medical officer to
intimate the same to the police and he ought to have
registered the case as medico legal case. The petitioners
have placed sufficient materials as to the delay in filing the
complaint, which is not fatal to the case of petitioners and to
substantiate his arguments he relied on the decision of
Hon'ble Supreme Court in the case of RAVI v.
BADRINARAYAN AND OTHERS reported in (2011) 4 SCC
693. The same is not considered by the Tribunal.
15. Further it is submitted by the learned counsel for
the petitioners that Tribunal has rejected the petition on
another ground that, in the evidence of PW1 and PW2, which
is filed in lieu of examination-in-chief, PW1 has striked out the
word "D¸ÀàvÉæ" and written as "ªÀÄ£É". In the affidavit of PW2, the
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word "D¸ÀàvÉæ" is striked out and inserted the word "ªÀÄ£É", which is
not endorsed by the Oath Commissioner. If any mistakes are
crept in the affidavit, the Tribunal ought to have return the
same to the deponent with a direction to file better affidavit,
but the Tribunal has not followed the procedure and dismissed
the petition on technical ground, which is not permissible
under law.
16. Ex.P-10 is the motor vehicle inspection report
which reveals that date, time and place of inspection is shown
as 22.01.2016 and after lapse of 9 days, MV inspection is
conducted. Therefore, no fresh visible damages were noticed
by the MV Inspector. On 04.04.2016, after the death of
deceased, the IO has conducted the seizure mahazar of car
bearing registration No.KA-01-MM-2342. In Ex.P-5 - seizure
mahazar the IO has clearly stated that the right side mirror,
silencer, right side safeguard, right side handle, front side
number plate are damaged. Same is not considered by the
Tribunal.
17. Further it is submitted that respondents have not
placed any legal evidence to discard the oral and documentary
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evidence placed by the petitioners. The Tribunal has ignored
the materials placed by the petitioners. Further it is
submitted as to the quantum of compensation and sought for
allowing this appeal. To substantiate his arguments he relied
on the following decision:
(1) 2009 (6) SCC 121 - SARLA VERMA & ORS vs DELHI
TRANSPORT CORP.& ANR
(2) (2017) 16 SCC 680 - NATIONAL INSURANCE CO. LTD
VS PRANAY SETHI
(3) (2018) 18 SCC 130 - MAGMA GENERAL INSURANCE
CO. LTD vs NANU RAM ALIAS CHUHRU RAM
(4) (2017) 16 SCC 680 - NATIONAL INSURANCE CO. LTD
VS PRANAY SETHI
18. As against this, learned counsel for the respondent
No.1 has submitted his arguments that Tribunal has properly
appreciated the evidence on record in accordance with law
and facts. Absolutely that there are no grounds to interfere
with the impugned judgment and award passed by the
Tribunal and sought for dismissal of this appeal.
19. On hearing the arguments of both sides and on
perusal of records the following points would arise for my
consideration:
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(1) Whether the petitioners/appellants have made
out grounds to interfere with the impugned
judgment and award passed by the Tribunal?
(2) Whether the petitioners/appellants are entitled
for compensation as sought for in the claim
petition?
(3) What order?
20. My findings to the above points are as under:
(1) Affirmative
(2) Partly affirmative
(3) As per final order
RE. POINT NO.1:
21. I have carefully gone through the materials placed
by both the parties. It is the case of appellants that on
14.01.2016 at about 04.20 p.m. near Neralekere Village,
Birapura, B.M.Road, Hassan, when the deceased Kanthraju
was riding his Hero Honda Passion Pro Motor Cycle bearing
registration No.KA-46-H-2829 along with one Rudrappa as a
pillion rider, one Maruthi Swift Dzire car, which belonged to
respondent No.1 bearing its registration No.KA-01-MM-2342,
driven by its driver in a rash and negligent manner, dashed to
the said motorcycle that belonged to deceased Kanthraju from
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rear side, as a result of which, both the rider of said vehicle
and its pillion rider fell down from the said bike and sustained
injuries on all the parts of body, immediately, both of them
were shifted primarily to Government Hospital, Hassan and
further shifted to N.D.R.K. Hospital, Hassan and further was
referred to B.G.S. Hospital, Bangalore, for higher treatment
and at last, he was shifted to Commando Hospital, Bangalore,
wherein he succumbed to the injuries on 04.04.2016. After
investigation, the IO has submitted the charge sheet against
the driver of offending vehicle for the offence under Sections
279, 337 and 304A of IPC.
22. A perusal of records it is crystal clear that on the
basis of the complaint filed by one Rudrappa, who was the
pillion rider of motorcycle bearing registration bearing No.KA-
46-H-2829, Alur Police have registered the case in Crime
No.20/2016 against the driver of car bearing registration
No.KA-01-MM-2342 for the commission of offences punishable
under Sections 279 and 337 of IPC r/w 187 of MV Act and
submitted the FIR to the Court as per Ex.P-1. Thereafter, the
police have rushed to spot and conducted spot panchanama
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as per Ex.P-4 in the presence of panchas. The IO has seized
the bike under seizure mahazar - Ex.P-5. The IO has also
seized the offending vehicle Maruthi Swift Dzire Car bearing
registration No.Ka-01-MM-2342 under seizure mahazar -
Ex.P-6 and obtained wound certificate of Rudrappa. After the
death of Kanthraju the IO has also conducted inquest
panchanama as per Ex.P-8, recorded the statement of
witnesses and obtained PM report as per Ex.P-9. On thorough
investigation, the IO has submitted the charge sheet against
the driver of the car bearing registration No.KA-01-MM-2342
for the offences punishable under Section 279, 337, 304A IPC
r/w 187 of MV Act as per Ex.P-3.
23. Apart from this documentary evidence, one
Bhagya wife of deceased is examined as PW1. She has
deposed in her evidence as to the alleged accident. PW2 -
Shivegowda, who is shown as CW6 - eye witness in the
charge sheet, is examined as PW2. He has deposed as to the
alleged accident.
24. A careful scrutiny of this evidence it is crystal clear
that the alleged accident occurred on 14.01.2016. The
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complaint came to be filed on 17.01.2016 that there is 3 days
delay in filing the complaint, but in this regard, in the
complaint it is clearly stated that the injured were admitted to
the hospital and there were no attendants to look after the
injured, hence he could not file the complaint. Ex.P-7 -
wound certificate of Rudrappa reveals that he is admitted to
Sri Chamarajendra Hospital, Hassan on the date of accident
i.e., on 14.01.2016 with the history of road traffic accident of
bike and cab and he sustained injuries as shown in Ex.P-7.
Soon after the accident the injured was admitted to BGS
Hospital on same day at 22.43 hours with the history of road
traffic accident. Ex.P-14 - discharge card issued by the BGS
Hospital reflects the same. When the injured is admitted to
the hospital with the history of road traffic accident, it is the
legal duty of medical practitioner to register the case as
medico legal case and intimate the same to the concerned
jurisdictional police. But he has not done so. However, after
a lapse of 3 days from the date of accident, explaining the
delay in filing the complaint, Rudrappa who was the pillion
rider of the motorcycle, lodged a complaint to the police as
per Ex.P-1. On the basis of complaint, the police have
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investigated the case and submitted the final report i.e.,
charge sheet against the driver of the offending vehicle. The
owner of vehicle has not adduced any evidence before the
Tribunal, only one Chethan Kumar, Legal Manager working in
ICICI General Insurance Company examined as RW1, has not
whispered anything about the charge sheet submitted by the
investigating officer. On the contrary, during his cross
examination he has clearly admitted that he has no
knowledge as to the contents of charge sheet submitted
against the driver of the offending vehicle. This admission
made by RW1 clearly go to show that without ascertaining the
facts of the case, without the knowledge as to contents of
charge sheet filed by the IO, RW1 has deposed that the delay
in filing the complaint will create doubt about the incident,
which cannot be accepted.
25. When the deceased and another injured Rudrappa
were admitted to the hospital with the history of road traffic
accident, it was the primary legal duty of the concerned
medical practitioner to register the case and intimate the
same to the concerned jurisdictional police. Unfortunately,
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the concerned medical officer who had attended the injured
has not complied the same. Non compliance of mandatory
legal duty of medical practitioner is not fatal to the case of
petitioners. The petitioners are not responsible for the
dereliction of duty of the concerned medical officer.
26. With regard to delay is concerned, the learned
counsel for the appellants has relied on the decision of
Hon'ble Supreme Court in the case of RAVI v.
BADRINARAYAN AND OTHERS reported in (2011) 4 SCC
693, wherein at paras 11 and 12 their Lordships have
observed as under:
"11. For the accident that had taken place
on 7.10.2001 at 8.30 AM, formal FIR was
lodged by Appellant's father with Police
Station, T.P. Nagar, Jaipur on 26.1.2002 at
12.15 PM. Critical perusal thereof shows
that Appellant's father had given the exact
and vivid description of the accident and
the injuries sustained by his son Ravi in
the said accident. He has further disclosed
therein that since 7.10.2001, his son Ravi
was time and again admitted in the
Hospital and was undergoing treatment,
he could not lodge the FIR immediately.
12. He further mentioned that police had
come to the Hospital next day to record
the FIR and complete other formalities,
but everyone present there suggested that
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since Respondent no.1 was the neighbour
of the Appellant, it was not desirable to
lodge an FIR and instead the matter of
compensation could be sorted out in an
amicable manner amongst themselves. In
view of this, FIR was not lodged
immediately or soon after the accident.
Secondly, Ravi was still in Hospital
undergoing treatment, attending to which
was more important for him than lodging
the FIR. Hence, there was delay in
lodging the FIR."
27. In the case on hand, the petitioners and IO has
properly explained as to the 3 days delay in filing the
complaint. Charge sheet submitted by I.O. has not been
challenged by the owner or Insurance Company before
concerned Court Under relevant Act and Rules. The
respondents have not adduced any acceptable legal evidence
to rebut the explanation given by the petitioners and also
investigating officer. In this regard, I am of the considered
opinion that the petitioners have properly explained the delay
in filing the complaint. Keeping in mind the principles of
aforesaid decision of Hon'ble Supreme Court, I am of the
considered opinion that petitioners have proved that deceased
Kanthraju died in the road traffic accident due to rash and
negligent act on the part of the driver of the offending vehicle.
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28. The Tribunal has observed in the impugned
Judgment that in the evidence of PW1 and PW2, which is filed
in lieu of examination-in-chief, PW1 has striked out the word
"D¸ÀàvÉæ" and inserted the word "ªÀÄ£É". In the affidavit of PW2 the
word "D¸ÀàvÉæ" is not endorsed by the Oath Commissioner. When
the petitioners have tendered their evidence by way of
affidavit in lieu of examination-in-chief under Order 18 Rule 4
of Code of Civil Procedure, 1908, it is the duty of the Tribunal
to verify the affidavit before receiving the said affidavit as
evidence. Before accepting that affidavit as evidence, if the
Tribunal finds any mistakes or illegalities in the affidavit, then
it is the duty of Tribunal to return the same to the
petitioners/concerned witnesses with a direction to file better
and proper affidavit in accordance with relevant Act and
Rules. At the time of receiving the affidavits, the Tribunal has
blindly accepted the affidavits filed by PW1 and PW2 and only
at the time of writing the judgment, the Tribunal has
observed that the word "D¸ÀàvÉæ" is striked out and over written
as "ªÀÄ£É". The said examination-in-chief affidavit is sworn
before the Oath Commissioner and he has endorsed in the
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first page of PW1's chief-examination affidavit as number of
corrections shown as 'NIL'. The said corrected part has not
been mentioned by the Oath Commissioner in the
endorsement made by him, which itself establishes that at the
time of swearing of an affidavit the said correction has not
been made, but it might have been made subsequently
without the knowledge of Oath Commissioner. Further it is
observed that in the similar manner on looking into the chief-
affidavit of PW2, which is filed in lieu of chief examination, in
first page it discloses that the said Oath Commissioner has
endorsed that number of correction as 'one only', which is in
respect of month i.e., in place of '9' it is over written as '11'.
But though there is a correction made in PW1's evidence that
Kanthraju died at the 'Hospital', which was computerised, but
same was striked off and over written as 'House'. The Oath
Commissioner has not made any endorsement in the said
endorsement as number of corrections as 'two only'. Hence,
it cannot be presumed that it is subsequently forged and it is
made in order to suit their document, which is produced to
substantiate their contention. Further it is observed that even
though Ex.P-8 - inquest was drawn at the house of Kanthraju
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on 04.04.2016, the post mortem was conducted at
Government Hospital, Alur vide Ex.P-9 on 05.04.2016.
29. On perusal of observation made by the Tribunal, it
reveals that the same is hyper technical. As I already
observed, if there is any mistake by the Tribunal at the time
of receiving/accepting the affidavit as evidence, it was the
primary duty of the Court to see that whether the compliance
of affidavits are in accordance with law or not. Unfortunately,
the Tribunal has not complied the same and only at the time
of judgment, it has expressed the views as to the alleged
mistakes.
30. Now the question is, whether the mistake
committed by the petitioners in the affidavits is fatal to the
case of prosecution. In this regard, as I already referred the
documentary evidence placed by the petitioners, in Ex.P-2(a)
- complaint filed by the petitioner (Bhagya) she has clearly
stated that on 04.04.2016 afternoon her husband died in their
house. Inquest panchanama - Ex.P-8 also reveals the same.
Ex.P-9 - PM report reveals that post mortem was conducted
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on 05.04.2016. The documentary evidence placed by the
petitioners have not been disputed by the other side. It is
well settled principle of law that the documentary evidence
prevails over oral evidence and the documentary evidence
reveals that the deceased died in the house of the petitioner.
Therefore, the alleged over writing in the affidavit of PW1 and
PW2 will not change the nature of case. If I analyze the same
in its entirety, it can be said that the petitioners have proved
that the deceased died in his house. Same is not considered
by the Tribunal. The Tribunal has rejected the claim petition
on technical grounds. It is well settled principle of law that
substantial justice cannot be denied on technical grounds.
The Tribunal has failed to appreciate the oral and
documentary evidence in entirety and wrongly came to the
conclusion that the petitioners have failed to prove that the
deceased Kanthraju died in the accident due to rash and
negligent act on the part of the driver of offending vehicle.
On appreciation of the evidence on record, I am of the opinion
that petitioners have proved that the deceased Kanthraju died
in the road traffic accident due to rash and negligent driving
on the part of driver of the offending vehicle. Accordingly,
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impugned judgment needs interference by this Court and I
answer Point No.1 in the affirmative.
RE. POINT NO.2:
31. With regard to quantum of compensation is
concerned, age of the deceased as per Ex.P-9 was 48 years.
In view of judgment of Apex Court in the case of SARLA
VERMA & ORS VS DELHI TRANSPORT CORP.& ANR
reported in (2009) 6 SCC 121, '13' multiplier is applicable.
PW1 has deposed in her evidence that deceased was hale and
healthy and was getting an income of Rs.15,000/- per month.
In this regard, except oral evidence the petitioners have not
produced any acceptable evidence. Hence, in view of chart
prepared by the Karnataka State Legal Services Authority as
to the notional income where there is no proof of income, a
sum of Rs.9,500/- has to be taken into consideration as the
accident took place in the year 2016. In view of decision of
Hon'ble Apex Court in the case of NATIONAL INSURANCE
CO. LTD VS PRANAY SETHI reported in (2014) 16 SCC
680, 25% has to be taken into consideration as to the future
prospects of the deceased, which could result in Rs.9,500/- +
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25% (Rs.2,375/-) = Rs.11,875/-. Out of the said amount,
1/3rd has to be deducted towards personal expenses of the
deceased, then it comes to Rs.11,875/- - 1/3rd (Rs.3,958/-) =
Rs.7,917/-. Then it comes to Rs.7,917 x 12 x 13 =
Rs.12,35,052/-, which is rounded off to Rs.12,35,000/-.
Accordingly, the petitioners/appellants are entitled for
compensation towards 'loss of dependency'.
32. With regard to medical expenses are concerned,
PW1-Bhagya has deposed that due to this accident her
husband had sustained grievous injuries all over his body and
he was admitted to Government Hospital, Hassan, then he
was shifted to N.D.R.K. Hospital and also to NIMHANS
Hospital and finally he was shifted to Commando Hospital for
treatment. She has spent a sum of Rs.8,00,000/- towards
medical expenses. Apart from this oral evidence, petitioners
have produced inpatient bill issued by the BGS Global
Hospital, which is for Rs.3,46,000/-. The bill No.1562 issued
by the N.D.R.K. Hospital is also produced, which is for
Rs.8,600/-. The ambulance bills are also produced, which are
as follows:
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(1) Tridev Ambulance Service - Rs.18,000/-
(2) Sri Ambulance Care - Rs. 4,500/-
Total - Rs.22,500/-
In view of the above medical bills and ambulance bills
produced, the petitioners are entitled for a total sum of
Rs.3,77,100/- towards medical expenses and ambulance
charges.
33. In view of judgment rendered in the case of
MAGMA GENERAL INSURANCE CO. LTD., v. NANU RAM
ALIAS CHUHRU RAM reported in (2018) 18 SCC 130 and
in the case of NATIONAL INSURANCE CO. LTD., v.
PRANAY SETHI reported in (2017) 15 SCC 680, the
petitioners are entitled to a sum of Rs.44,000/- each towards
'loss of consortium', which would result in Rs.1,32,000/-.
34. Respondent No.1 being the insurance company
and respondent No.2 being the owner of offending vehicle,
both are jointly and severally liable to pay the compensation.
35. Keeping in mind the aforestated decisions, it is
just and proper to assess the compensation as under:
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Sl. Particulars Amount in
No. Rs.
1 Loss of dependency 12,35,000/-
2 Loss of consortium 1,32,000/-
3 Loss of Estate 16,500/-
4 Funeral and transportation expenses 15,000/-
5 Medical expenses and ambulance 3,77,100/-
charges during his treatment of the
deceased
Total 17,75,600/-
Thus, the petitioners/appellants are entitled to a total
compensation of Rs.17,75,600/-.
RE. POINT NO.3:
36. For the aforestated reasons and discussion, I
proceed to pass the following:
ORDER
(a) The appeal is allowed in part.
(b) The judgment and award dated 02.03.2018
passed by the III Additional District Judge
and MACT, Hassan, in MVC No.222/2017, is
set aside.
(c) Consequently, claim petition filed under
Section 166 of the Motor Vehicles Act, 1988,
is allowed in part.
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(d) Appellant Nos.1 to 3 are entitled for
compensation of Rs.17,75,600/- with
interest @ 6% p.a. from the date of petition
till its realisation.
(e) Respondent Nos.1 and 2 are jointly and
severally liable to pay the compensation.
(f) Respondent No.1 - Insurance Company is
directed to deposit the compensation amount
along with interest before the Tribunal, within
a period of 30 days from the date of receipt
of certified copy of this judgment.
(g) After depositing the amount, the Tribunal is
directed to disburse the amount to the
appellants/petitioners in accordance with
relevant Act, Rules, also the guidelines issued
by the Hon'ble Apex Court and High Court.
(h) The Advocate fee is fixed at Rs.5,000/-.
(i) Draw the award accordingly.
Sd/-
JUDGE
DR
