Karnataka High Court
Manisha And Ors vs Mr. Vaman And Ors on 21 November, 2023
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
-1-
NC: 2023:KHC-K:8732
MFA No. 202385 of 2019
C/W MFA No. 200902 of 2018
MFA No. 200993 of 2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
MISCL. FIRST APPEAL NO.202385 OF 2019 (MV-D)
C/W
MISCL. FIRST APPEAL NO.200902 OF 2018 (MV-D),
MISCL. FIRST APPEAL NO.200993 OF 2018 (MV-D)
IN MFA NO.202385 OF 2019:
BETWEEN:
1. MANISHA D/O VINAYAK RANPISE,
AGE: 29 YEARS, OCC: HOUSEHOLD WORK,
2. MAHADEV S/O VINAYAK RANPISE,
AGE: 26 YEARS, OCC: COOLIE,
Digitally signed 3. MAYABAI W/O KERAPPA RANPISE,
by LUCYGRACE AGE: 64 YEARS, OCC: HOUSEHOLD WORK,
Location: HIGH
COURT OF ALL ARE R/O PERMANENT ADDRESS IS GURASALE,
KARNATAKA TQ. PANDRAPUR, DIST. SOLAPUR,
NOW R/AT: GANDI NAGAR,
VIJAYAPURA - 586 101.
...APPELLANTS
(BY SRI. KOUJALAGI CHANDRAKANT LAXMAN, ADVOCATE)
AND:
1. MR. VAMAN
S/O RAMCHANDRA SALUNKE,
-2-
NC: 2023:KHC-K:8732
MFA No. 202385 of 2019
C/W MFA No. 200902 of 2018
MFA No. 200993 of 2018
AGE: 44 YEARS, OCC: AGRICULTURE,
AT POST: KHEDBHALAVANI,
TQ. PANDRAPUR, DIST. SOLAPUR,
MAHARASHTRA STATE-413 304.
2. THE BRANCH MANAGER,
THE BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
2ND FLOOR, HASHANI MANJIL,
MADIVAL ARKED, CLUB ROAD,
BELAGAVI - 590 001.
3. THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE COMPANY LTD.,
BIDARI COMPLEX, S.S. FRONT ROAD,
VIJAYAPUR - 586 101.
...RESPONDENTS
(SRI. SUBHASH MALLAPUR, ADVOCATE FOR R2;
SRI. UDAY P. HONGUNTIKAR, ADVOCATE FOR R3;
R1 - SERVED; )
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND
AWARD DATED 29.01.2018 PASSED IN MVC NO.696/2015 ON
THE FILE OF THE III SENIOR CIVIL JUDGE AND MEMBER
MOTOR ACCIDENT CLAIMS TRIBUNAL NO.XII, VIJAYAPURA AT
VIJAYAPURA AND ALLOW THIS APPEAL BY ENHANCING THE
COMPENSATION AMOUNT BY RS.12,18,000/- ONLY AS
CLAIMED BY THE APPELLANTS.
IN MFA NO.200902 OF 2018:
BETWEEN:
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
2ND FLOOR, HASHANI MANJIL,
MADIVAL ARKED, CLUB ROAD, BELAGAVI,
NOW REPRESENTED BY
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
1ST FLOOR, KALABURAGI NOOLVI MAGISTRATE,
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NC: 2023:KHC-K:8732
MFA No. 202385 of 2019
C/W MFA No. 200902 of 2018
MFA No. 200993 of 2018
NEW COTTON MARKET, HUBLI-580 029,
THROUGH LEGAL MANAGER.
...APPELLANT
(BY SRI. SUBHASH MALLAPUR, ADVOCATE)
AND:
1. MANISHA D/O VINAYAK RANPISE,
AGE: 27 YEARS, OCC: HOUSEHOLD WORK,
2. MAHADEV S/O VINAYAK RANPISE,
AGE: 24 YEARS, OCC: COOLIE,
3. MAYABAI W/O KERAPPA RANPISE,
AGE: 62 YEARS, OCC: HH WORK,
ALL ARE R/O PERMANENT ADDRESS IS GURASALE,
TQ. PANDRAPUR, DIST. SOLAPUR,
NOW R/AT GANDI NAGAR,
VIJAYAPUR - 586 101.
4. MR. VAMAN
S/O RAMCHANDRA SALUNKE,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O A/P KHEDBHALAVANI,
TQ. PANDRAPUR, DIST. SOLAPUR,
MAHARASHTRA STATE - 413 304.
5. THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
BIDARI COMPLEX, S.S. FRONT ROAD,
VIJAYAPUR.
...RESPONDENTS
(SRI. KOUJALAGI CHANDRAKANT LAXMAN, ADVOCATE
FOR R2 AND R3;
SRI. UDAY P. HONGUNTIKAR, ADVOCATE FOR R5;
R1 AND R4 - SERVED)
-4-
NC: 2023:KHC-K:8732
MFA No. 202385 of 2019
C/W MFA No. 200902 of 2018
MFA No. 200993 of 2018
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 29.01.2018 PASSED BY THE III SENIOR CIVIL
JUDGE AND MACT NO.XII, VIJAYAPUR IN MVC NO.696/2015.
IN MFA NO.200993 OF 2018:
BETWEEN:
THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE COMPANY LTD.,
1ST FLOOR, BIDARI COMPLEX,
S.S.FRONT ROAD, VIJAYAPUR.
...APPELLANT
(BY SRI. UDAY P. HONGUNTIKAR, ADVOCATE)
AND:
1. MANISHA D/O VINAYAK RANPISE,
AGE: 30 YEARS, OCC: HOUSEHOLD WORK,
2. MAHADEV S/O VINAYAK RANPISE,
AGE: 27 YEARS, OCC: COOLIE,
3. MAYABAI W/O KERAPPA RANPISE,
AGE: 65 YEARS, OCC: HH WORK,
ALL R/O PERMANENT ADDRESS IS GURASALE,
TQ. PANDHARPUR, DIST. SOLAPUR,
NOW R/AT GANDHI NAGAR,
VIJAYPUR - 413 304.
4. MR. VAMAN
S/O RAMCHANDRA SALUNKE,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O A/P KHEDBHALAVANII,
TQ. PANDHARPUR, DIST. SOLAPUR,
MAHARASHTRA STATE-413 304.
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NC: 2023:KHC-K:8732
MFA No. 202385 of 2019
C/W MFA No. 200902 of 2018
MFA No. 200993 of 2018
5. THE BRANCH MANAGER,
THE BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
2ND FLOOR, HASHANI MANZIL, MADIVAL ARKED,
CLUB ROAD, BELAGAVI - 590 001.
...RESPONDENTS
(SRI. KOUJALAGI CHANDRAKANT LAXMAN, ADVOCATE
FOR R1 TO R3;
SRI. SUBHASH MALLAPUR, ADVOCATE FOR R5;
R4 - SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO SET ASIDE AND MODIFY THE
JUDGMENT DATED 29.01.2018 AND AWARD DATED 06.02.2018
BY ALLOWING THIS APPEAL WITH COSTS.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.202385/2019 is filed by the claimants, MFA
No.200902/2018 is filed by the Bajaj Allianz General
Insurance Company Limited and MFA No.200993/2018 is
filed by the Oriental Insurance Company Limited against
the judgment and award dated 29.01.2018 passed in MVC
No.696/2015 on the file of III Senior Civil Judge and Motor
Accident Claims Tribunal No.XII, Vijaypur.
2. Brief facts leading to filing of these appeals are
that, on 29.04.2015, one Vinayak S/o Kerappa Ranpise
NC: 2023:KHC-K:8732
was proceeding as a pedestrian by the side of the road
near his house. At that time, the Tractor bearing Reg.
No.MH-13/AJ-9922 along with two trailers driven by its
driver in a high speed and rash and negligent manner
came from behind and hit him resulting in he falling down
and sustaining grievous injuries, due to which he died on
the spot. Thereupon, a claim petition was filed by the
claimants contending that the deceased was 45 years old
and doing milk vending work and also goundi and
agricultural work and earning Rs.15,000/- per month.
That, the death of deceased on account of rash and
negligent driving of the tractor has caused financial
distress to the claimants.
appeared through their counsel and filed their written
statement.
4. Respondent No.1 in his written statement
contended that as per the complaint, after the accident,
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the villagers had caught hold of one Ravi Jadhav, who was
allegedly driving the tractor. As such, respondent No.1
was not involved in the accident. He also contended that
the tractor and trailer in question are in any case insured
with respondent Nos.2 and 3 - Insurance Companies, the
compensation payable, if any, shall be payable by the
Insurance Companies.
5. Respondent No.2 - Bajaj Allianz General
Insurance Company Limited in the statement of objections
denied the claim petition averments, mode and manner of
accident. It is also specifically contended that respondent
No.1 has been added as the owner and driver of the
vehicle in collusion with the claimants and the police. As
such, it is contended that the liability has to be fastened
on respondent No.1.
6. Respondent No.3 - Oriental Insurance Company
Limited in its written statement denied the claim petition
averments and also contended that the trailers bearing
NC: 2023:KHC-K:8732
Reg. No.MH-12/T-9329 and MH-13/T-9330 which were
attached to the said tractor were not involved in the
accident and that there is implanting of the driver. Hence,
sought for dismissal of the claim petition.
7. Based on the pleading, the Tribunal framed the
issues and recorded evidence. On behalf of the claimants,
two witnesses have been examined as PWs.1 and 2 and 7
documents have been marked as Exs.P1 to P7. Two
witnesses have been examined on behalf of respondents -
Insurance Companies as RWs.1 and 2 and 4 documents
have been marked as Exs.R1 to R4.
8. The Tribunal, on appreciation of the evidence
came to the conclusion that the accident in question had
indeed occurred due to the rash and negligent driving of
the tractor and trailers by respondent No.1 resulting in
death of deceased Vinayak Ranpise and has consequently
awarded compensation of Rs.7,32,000/- directing
respondent Nos.2 and 3 - Insurance Companies to pay the
NC: 2023:KHC-K:8732
said compensation in the ratio of 50% each. Being
aggrieved by the same, claimants are before this Court
seeking enhancement of compensation, while the
Insurance Companies are before this Court disputing the
liability.
9. Sri Koujalagi Chandrakat Laxman, learned
counsel appearing for the appellants in MFA
No.202385/2019 reiterating the grounds urged in the
memorandum of appeal submits that the deceased was
aged about 45 years and was earning Rs.15,000/- per
month from his milk vending business and also doing
goundi and agricultural work. However, the Tribunal has
considered the income only at Rs.6,000/- per month. He
submits that no future prospects has been awarded and
grant of compensation on other heads is also on lower
side. Hence, seeks for enhancement.
10. Sri Subhash Mallapur, learned counsel
appearing for the appellant - Bajaj Allianz General
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Insurance Company in MFA No.200902/2018 reiterating
the grounds urged in the memorandum of appeal submits
that the Tribunal has grossly erred in not appreciating the
contentions raised by the appellant - Insurance Company
about implantation of the driver, despite the material
evidence placed on record proving and establishing the
said fact. He submits that the First Information Report
produced at Ex.P1 would reveal about the eyewitness (who
was examined as PW.2) having stated that the driver of
the vehicle namely, Ravi Ankush Jadhav had been caught
by the villagers and was handed over to the police. He
submits that this being the fact and circumstance of the
case, there was no possibility of changing the name of
driver as Vaman S/o Ramchandra Salunke. This aspect of
the matter has not been taken into consideration by the
Tribunal, warranting interference by this Court. He also
submits that the driver of the vehicle did not have valid
and effective driving licence. Thereby, there is breach of
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terms of the policy and the appellant - Insurance Company
is not liable to pay the compensation.
11. Sri Uday P. Honguntikar, learned counsel
appearing for the appellant - Oriental Insurance Company
Limited in MFA No.200993/2018 submits that the policy
was not issued in respect of the trailers bearing Reg.
No.MH-12/T-9329 and MH-13/T-9330. He submits that the
policy merely refers to new trailer. As such, there is no
question of fastening the liability on the appellant -
Insurance Company. He further submits that the material
evidence in the nature of First Information Report,
Complaint and the Charge Sheet do not reflect that the
trailers were in any manner involved in the accident. That
apart, the Tribunal has not given any reasoning while
rejecting the contention raised by the appellant -
Insurance Company of swapping of the driver. He also
submits that the accident had occurred only by the tractor,
as it had apparently ran over the deceased and the trailers
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had not caused the accident. Hence, seeks for allowing of
the appeal.
12. Heard the learned counsel for the parties and
perused the records.
13. The points that arise for consideration are:
1. Whether the claimants have made out a case
for enhancement of compensation?
2. Whether the appellant in MFA No.200902/2018
- Bajaja Allianz General Insurance Company
and the Appellant in MFA No.200993/2018 -
Oriental Insurance Company have made out a
case for exoneration of their liability to pay the
compensation?
14. The accident in question involving the tractor
resulting in death of the deceased is not disputed by the
appellant - Insurance Company namely, Bajaj Allianz
General Insurance Company, who was insurer of the
tractor. However, learned counsel for the appellant - Bajaj
Allianz General Insurance Company would contend that as
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NC: 2023:KHC-K:8732
per the evidence, not only the tractor had caused grievous
injuries, but also the trailers, as they had ran over the
body of the deceased. Learned counsel for the appellant -
Oriental Insurance Company on the other hand submits
that though the accident and the death of the deceased
cannot be disputed, but the fact of involvement of the
trailers has not been established. It is also the contention
of the appellant - Bajaj Allianz General Insurance
Company that as per the Complaint and FIR, the villagers
who were present at the spot had apparently caught one
Ravi Jadhav, who was allegedly driving the offending
vehicle and had handed over him to the police. However,
in the Charge Sheet, based on the further statement
given, name of Vaman Ramchandra Salunke has been
included and he has been arrayed as respondent No.1 in
the claim petition, thereby, showing the collusion between
claimants, respondent No.1 and the police.
15. From the contents of the FIR, it is seen that one
Raghunath Kerappa Ranpise has given a complaint stating
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that on 29.04.2015 at about 9.00 p.m., when he along
with Suresh Bheemrao Ranpise, Shashikanth Kerappa
Ranpise, Hanmanth Shenkar Ranpise, Vijay Mahadev
Ranpise, Siddeshwar Sanjay Ranpise and others were
standing in a village Gurasale, a tractor and two trailers
driven by its driver came from Ambedkar Nagar towards
Kawatali road and they witnessed the said tractor dashing
against the deceased Vinayaka Kerappa Ranpise and
running over his body, due to which he died on the spot.
The driver of the tractor after causing the accident had
moved on, as such, the villagers chased the said tractor on
a motorcycle and stopped the same and caught hold of the
driver and brought him to the spot and it was learnt that
the number of the tractor is MH-13/AJ-9922. On enquiry,
the driver revealed that his name was Ravi Ankush Jadhav
and accordingly gave the complaint. It appears that a
further statement as per Ex.P4 has been given on
30.04.2015 by the said Raghunath Kerappa Ranpise, in
which he has stated that, as per the complaint and FIR the
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accident in question had occurred at 9:00 p.m., on
29.04.2015 and the complaint has been lodged at about
2:25 a.m., of 30.04.2015. That is just about four hours
from the date of accident. Further in Ex.P4 on the very
date i.e., 30.04.2015 he has stated the name of the
person to whom the villagers had caught was Vaman
Ramchandra Salunke, but due to incorrect information the
name was stated as Ravi Jadhav at the time of filing the
complaint. The charge-sheet has been filed by the
jurisdictional police for the offence punishable under
Sections 279 and 304A of IPC against Vaman Ramchandra
Salunke who has been arrayed as respondent No.1 in the
petition. Referring to the aforesaid statements, learned
counsel Sri Subhash Mallapur, appearing for the Bajaj
Allianz General Insurance Co. Ltd., and learned counsel Sri
Uday P. Honguntikar, appearing for the Oriental Insurance
Company Ltd., vehemently submit that there is delay in
filing the complaint and there is deliberate implantation of
respondent No.1, thereby, the case of the claimant
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requires to be rejected to the extent fastening the liability
on the Insurance Companies. It is necessary to see the
accident has occurred at 9:00 p.m., on 29.04.2015 and
the complaint and FIR has been filed at about 2:30 a.m.,
of 30.04.2015. Thus, there is hardly difference of about 4
hours between the date and time of accident and the filing
of the complaint. Therefore, the contention about the
delay in filing complaint cannot be countenanced.
16. Though the contention that there is an
implantation of respondent No.1 as a driver of the vehicle
appears to be tenable, it is necessary to see when the
claimants have approached the Tribunal by producing the
very material evidence, namely; complaint, FIR, further
statement, the charge-sheet. Respondent No.1 in the
statement of objections has contended that he held valid
driving license and the tractor and trailer involved in the
accident were duly insured with the appellant-Insurance
Companies and the liability, if any, has to be fastened on
them. However, there is also statement in the written
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statement that the driver of the vehicle had ran away. No
doubt, there appears to be inconsistency in the statement
of the complainant in FIR and in the further statement in
referring to the name of the driver as Ravi Jadhav, which
is subsequently changed as Vaman Ramchandra Salunke
and the fact remains the jurisdictional police have filed the
charge-sheet naming Vaman Ramchandra Salunke as the
driver of the vehicle.
17. The complainant Raghunath Kerappa Ranpise has
been examined as PW2. In the cross-examination PW2
has stated that though in the complaint he had given all
the details, in his further statement he has stated that
Ravi Jadhav was working as a Cleaner while Vaman
Ramchandra Salunke was the Driver-cum-Owner of the
offending vehicle. Except making suggestions nothing has
been elicited from the said witness by the appellant-
Insurance Companies to discredit his statements given in
the complaint and in the further statement. Since the
Insurance Company had raised a specific contention of
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violation of terms of policy on account of vehicle being
driven by one Ravi Jadhav, nothing prevented the
Insurance Companies from examining the Investigating
Officer. No attempt of any nature whatsoever had been
made by the appellant-Insurance Companies as the
burden of proving breach of terms of policy is heavily on
them. The same is not discharged in the manner known
to law. The witness namely PW2, who had given
complaint, has withstood the test of cross-examination
and nothing has been brought on record to disbelieve his
version. In that view of the matter, the contention raised
by the appellant-Insurance Companies that there is setting
of the driver cannot be explained.
18. As regards the contention of the appellant-the
Oriental Insurance Company of non-involvement of the
trailer is concerned, it is to be seen in the policy that the
policy had been issued in the name of Vaman Ramchandra
Saklunke who is respondent No.1 and owner of tractor as
well as trailers, merely because the registration number of
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the trailer was not mentioned in the policy and only
reference "as new" is mentioned, the same cannot be a
ground to accept the contention. Besides, the accident is
stated to have been taken place at 9:00 p.m., on
29.04.2004 involving the tractor and two trailers,
preponderance of probabilities suggests that both the
tractor and trailers were involved in the accident. Even as
PW2 in his statement has stated that they were about 15
feet away from the place of accident and it was dark, it
could not be said clearly that the trailers never involved in
the accident in whatsoever as the said contention also be
rejected. The point No.2 for consideration raised above is
answered accordingly.
19. Adverting to the claim of the claimants for
enhancement of the compensation is concerned, deceased
was aged 45 years and though he claimed to have been
earning Rs.15,000/- per month, no material evidence has
been produced. Accident is of the year 2015. In terms of
the chart prepared by the Karnataka State Legal Services
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Authority the notional income of the victims of road traffic
accident of the year 2015 is to be determined at
Rs.8,000/- per month. The same is taken in this case.
20. Considering the age of the deceased 25%
future prospects is to be awarded and multiplier of '14' is
to be applied. Since there are three dependents, 1/3 of
income of the deceased has to be deducted towards his
personal and living expenses.
21. Calculated as above, the claimants are entitled
for a sum of Rs.11,20,000/- towards loss of dependency
as under:
Rs.8,000 + 25% = Rs.10,000 x 12 x 14 x 2/3 =
Rs.11,20,000/-
22. In view of the law laid down by the Hon'ble
Apex Court in the case of Magma General Insurance
Company Limited vs. Nanu Ram Alias Chuhru Ram
and others - (2018) 18 SCC 130, the appellants-
claimants being son, daughter and mother of the deceased
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are entitled for Rs.40,000/- each towards loss of parental
consortium, in total Rs.1,20,000/-. Besides, the
appellants-claimants are entitled for Rs.15,000/- towards
funeral expenses and Rs.15,000/- towards loss of estate.
23. That apart, in view of the law laid down by the
Hon'ble Apex Court in the case of National Insurance
Company Limited v. Pranay Sethi and others reported
in (2017) 16 SCC 680, there shall be increment of 10%
on the compensation awarded under conventional heads.
24. Thus appellants-claimants are entitled for total
compensation of Rs.12,85,000/-instead of Rs.7,32,000/-
under different heads as under:
Heads By the Tribunal By this Court
In Rs. In Rs.
Loss of dependency 6,72,000/- 11,20,000/-
Loss of consortium -- 1,20,000/-
Funeral Expenses 10,000/- 15,000/-
Loss of estate 10,000/- 15,000/-
Transportation of dead body 10,000/- --
Loss of love & affection 30,000/- --
10% increment -- 15,000/-
TOTAL 7,32,000/- 12,85,000/-
Enhancement will be enhancement of Rs.5,53,000/-
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25. Further, as submitted by the learned counsel
for the Insurance Companies the rate of interest granted
by the Tribunal at 9% per annum is not tenable and it is
reduced to 6% per annum on entire compensation from
the date of petition till realization.
26. The Tribunal has fastened the liability of
payment of compensation in the ratio of 50:50 on both the
Insurance Companies, the same is sustained.
27. In view of the above, the following:
ORDER
i. The appeals filed by the Insurance
Companies in MFA No.200902/2018 and
MFA No.200993/2018 are dismissed.
ii. The appeal filed by the claimants in MFA
No.202385/2019 is partly allowed.
iii. The impugned judgment and award
dated 29.01.2018 passed in MVC
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No.696/2015 by the Member, MACT-
XII, Vijayapura, is modified.
iv. Both the Insurance Companies are
directed to pay the enhanced
compensation in the ratio of 50:50 with
interest at 6% per annum, within a
period of six weeks from the date of
receipt of a certified copy of this
judgment.
Sd/-
JUDGE
LG/SBS
