Karnataka High Court
Manjunath Ganapati Pandit vs Purandar S/O Rama Naik on 1 July, 2024
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NC: 2024:KHC-D:8941
MFA No. 22297 of 2012
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 1ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 22297 OF 2012 (MV)
BETWEEN:
MANJUNATH GANAPATI PANDIT,
AGED ABOUT: 46 YEARS,
OCC: MANAGER CANARA BANK,
R/O: HEDGE, KUMTA, DIST: UTTARA KANNADA.
...APPELLANT
(BY SRI. T.M. NADAF, ADVOCATE)
AND:
1. SRI. PURANDAR S/O. RAMA NAIK
REGD. OWNER OF TATA 407,
TRUCK NO.KA-47/1535,
R/O: SALKOD, TQ: KARWAR.
Digitally signed
2. THE BRANCH MANAGER,
by GIRIJA A BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
BYAHATTI
107, 1ST FLOOR, CRYSAL ARE, NEAT HOTEL ROOPA,
Location: HIGH
COURT OF BALAMATTA ROAD, BANGALORE-03.
KARNATAKA
3. SRI. VINAYAK GANAPATI PANDIT
AGED ABOUT: 52 YEARS,
OCC: BANK EMPLOYEE,
4. SRI. SHRIDHAR GANAPATI PANDIT
AGE: 52 YEARS, OCC: WORKING FOR H.A.L.,
5. SMT. MANGALAGOURI MAHABALESHWAR BHAT,
AGE: 48 YEARS, OCC: BANK EMPLOYEE,
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MFA No. 22297 of 2012
RESPONDENTS NO.3 TO 5 ARE
R/O. NO. 84, WEST PARK ROAD, 18TH CROSS,
MALLESHWARAM, BANGALORE.
...RESPONDENTS
(BY SRI. B.V. SOMAPUR, ADVOCATE FOR R1;
SRI. R.R. MANE, ADVOCATE FOR R2;
NOTICE TO R3, R4 AND R5 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO
CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND
AWARD DATED 20.09.2011, PASSED BY THE ADDITIONAL
M.A.C.T. AT KUMTA, IN M.V.C. NO.1/2009, CONSEQUENTLY
ALLOW THE CLAIM PETITION AND GRANT COMPENSATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the petitioner has challenged the
judgment and award dated 20.09.2011 passed by the
Addl. MACT, Kumta (for short, 'Tribunal') in M.V.C.
No.1/2009.
2. The appellant is the petitioner and respondents
are the respondents before the Tribunal. For the sake of
convenience, the rank of the parties will be referred to as
per their status before the Tribunal.
3. Brief facts of the case are, on 13.10.2008, at
about 5.00 a.m., one Ganapati Shmbhu Pandit (in short,
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'deceased') who is the father of the petitioner and
respondent Nos.3 to 5, while walking at Hegde-Kumta
road, a Tata 407 Truck bearing No.KA-47/1535 came from
Kumta side towards Hegde, hit against the deceased killing
him at the spot. The complaint was filed against an
unknown vehicle. On 14.10.2008, the vehicle in question
was surrendered to the police by the owner reporting the
accident on the previous day. Police after investigation
filed the charge sheet against the said vehicle. The
petitioner filed a petition under Section 166 of Motor
Vehicle Act, 1988 (for short, 'M.V. Act') claiming
compensation of Rs.2,00,000/-. The claim was opposed
by the insurance company. The Tribunal after taking
evidence and hearing both the sides, dismissed the claim
petition by imposing the cost of Rs.3,000/-. Aggrieved by
the same, the petitioner has filed this appeal on various
grounds.
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4. Heard the arguments of Sri T.M. Nadar, learned
counsel for petitioner and Sri R.R. Mane, learned counsel
for respondent No.2.
5. It is contended by the learned counsel for
petitioner that accident took place on 13.10.2010 at 5.00
a.m., the deceased was killed at the spot and there were
no eyewitnesses to the incident. Hence, a complaint was
filed to the police as 'hit and run case'. On the very next
day, the owner of the offending vehicle reports the
occurrence of accident in question and surrendered the
vehicle to the police. Police investigation confirmed the
involvement of the said vehicle and charge sheet was filed
against the driver of the said vehicle. The petitioner and
respondent Nos.3 to 5 being the children of the deceased
are entitled to claim compensation towards loss of estate,
funeral expenses and towards loss of consortium. The
Tribunal doubted the credibility of the evidence and came
to the erroneous conclusion that fraud has been played
and he sought for interference.
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6. Per contra, learned counsel for insurance
company contended that the accident took place at 5.00
a.m. and there were no eyewitnesses to the incident. The
complaint was filed against an unknown vehicle. All of a
sudden, the owner of the vehicle comes to the police
station and states that his vehicle has caused the accident.
The Investigation Officer who has examined before the
Tribunal as PW-2 has been attributed that he has joined
hands with the petitioner in creating a false case to
facilitate the petitioner and his family members to get the
compensation. The Tribunal has given cogent reasons and
rightly come to the conclusion that fraud has been played
for the sake of convenience and imposed the cost of
Rs.3,000/-. It is further contended that the petitioner and
respondent Nos.3 to 5 are of highly qualified and
employed and there is no question of they depending on
the deceased. The Tribunal has rightly observed that the
petitioner and respondent Nos.3 to 5 are not entitled for
compensation, dismissed the claim petition and supported
the impugned judgment.
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7. I gave anxious consideration to the arguments
addressed by the learned counsel for both the parties and
perused the material on records.
8. The material on record points out that there
was an accident on 13.10.2008 at 5.00 a.m. while the
deceased being a retired Teacher, aged 76 years, walking
by the side of the road, an unknown vehicle came and hit
injuring him resultantly he succumbed to death at the
spot. Since there were no eyewitnesses one Harihar S/o.
Prameshwar Hegde, who is not an eyewitness has filed the
complaint to the police that some unknown vehicle hit
against the deceased and killed him on the spot. For this
reason, FIR was registered against an unknown vehicle. It
is pertinent to note that it is not the case of the insurance
company that there was no accident at all. When the
report was filed to the police that the deceased was died
on account of the accident hit by an unknown vehicle,
which is confirmed in the prosecution papers. The
complainant being not an eyewitness, when reports the
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occurrence, it is not expected from him to state how the
accident occurred. It is for the Investigation Officer to
ascertain during investigation. Before commencement of
investigation, the owner of the vehicle reports to the police
about involvement of his vehicle in the accident in
question.
9. In order to explain the accident, the petitioner
has chosen to examine the Investigation Officer himself as
PW-2/Sri P.A. Suraj, CPI, Kumta who has investigated the
case. His evidence explains the registration of FIR against
an unknown vehicle. The vehicle bearing No.KA-47/1537
is a TATA 407 vehicle having a driver namely Bhaskar
Lingappa Naik was seized having involved in the accident.
An application was filed by the insurance company under
Order XVI Rule 1 and 6 of Code of Civil Procedure bearing
I.A.No.3 to summon the case diary pertains to the case
No.234/2008. After securing the said case diary, the
Investigation Officer has been cross-examined on behalf of
the insurance company. When he went to the spot, he
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was not able to collect any information that which was the
vehicle involved in the accident as there are no
eyewitnesses. But the Investigation Officer says that on
14.10.2008, the owner of the vehicle himself brought the
vehicle at 11.00 a.m. stating that his driver has caused
the accident. The driver has confessed that while carrying
the milk, the accident had occurred and for this reason,
the driver has been charge sheeted. It is expected from a
prudent owner when a vehicle belonging to him involves in
the accident to report the same to the nearest police
station. Here in this case. On 13.10.2008 at 5.00 a.m.,
the accident has taken place and on 14.10.2010 at 11.00
a.m., the owner of the vehicle produced the vehicle to the
police station. Only after enquiry with the driver, he came
to know about the involvement of the said vehicle in the
accident in question. Ex.R-10 is the certified copy of the
order sheet which shows that the driver has faced the trial
for the offence punishable under Sections 279, 304-A read
with Section 134 of IPC and he has been acquitted of the
said charges. The owner of the vehicle has not challenged
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the charge sheet. Therefore, the petitioner has placed
proper evidence in support of the accident in question.
10. Ex.P-6 is the seizure panchanama of the vehicle
in question. It clearly points out that there was damage to
the front number plate which is corresponding to the
allegation made in the complaint. The Tribunal is not
proper to ignore the said evidence. Hence the evidence is
persuasive that the vehicle in question has involved in the
accident.
11. The petitioner, respondent Nos.3 and 4 are the
sons and 5th respondent is the daughter of the deceased.
All are major, employed and settled in life. The material
on record says that the deceased was a retired Teacher,
aged 76 years and he was getting Rs.7,043/- pension per
month. As rightly contended by the Learned counsel for
the insurance company that the petitioner, respondent
Nos.3 to 5 are not the dependants of the deceased rather
it was the deceased who was depended on his sons and
daughter. Therefore, the petitioner and respondent Nos.3
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to 5 cannot to be treated as dependants. Per contra,
learned counsel for petitioner submitted that though the
petitioner and the respondent Nos.3 to 5 are major sons
and daughter, they are entitled to claim funeral expenses,
loss of consortium and loss of estate as the deceased was
getting pension and could have saved the money for his
sons and grandchildren and they are entitled to loss of
estate and incidental expenses. There is a force in the
said submission.
12. As rightly contented by the learned counsel for
petitioner, in a case of this nature, though the petitioner
and respondent Nos.3 to 5 are major and they are entitled
to claim loss of estate, funeral expenses and loss of love
and affection. As discussed above, the deceased was
getting pension of Rs.7,043/-, 50% has to be deduced
towards personal expenses and applicable multiplier is 5.
Therefore, the loss of estate is calculated as under:
Rs.7,043 - 3,521 (50%) = 3,522 x 12 x 5 = 2,11,320/-.
Out of Rs.2,11,320/-, if 30% is taken as loss of estate, it
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comes to Rs.63,396/-. Accordingly, the petitioner and
respondent Nos.3 to 5 are entitled towards loss of estate.
Towards funeral expenses a sum of Rs.5,000/-, towards
loss of love and affection the sons and daughter are
entitled to Rs.5,000/- each i.e. Rs.20,000/-. Rs.88,400/-
is the just compensation that the petitioner and
respondent Nos.3 to 5 are entitled to in the facts and
circumstances of the case.
13. The petitioner and respondent Nos.3 to 5 are
entitled to the compensation as under:
1. Loss of estate Rs.63,390/-
2. Funeral expenses Rs.5,000/-
3. Loss of love and affection Rs.20,000/-
Total Rs.88,396/-
Rounded off to Rs.88,400/-
14. As regarding liability is concerned, the validity
of the insurance is not disputed so also the driving licence
of the driver. Ex.R-5 is the driving licence of the driver of
the vehicle. Hence, the first respondent being the owner
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of the vehicle is liable to pay the compensation and the
second respondent being the insurer is liable to indemnify
the owner and hence, respondent Nos.1 and 2 are liable to
pay the compensation along with interest.
15. In view of the above discussion, the appeal
merits consideration and in the result, the following:
ORDER
(i) Appeal is allowed.
(ii) The judgment and award dated 20.09.2011
passed by the Addl. MACT, Kumta in M.V.C.
No.1/2009 is set aside.
(iii) Claim petition filed by the petitioner under
Section 166 of M.V. Act is hereby allowed.
(iv) The petitioner and respondent Nos.3 to 5 are
entitled to Rs.88,400/- along with interest at
6% p.a. from the date of petition till the date of
deposit.
(v) Insurance company shall deposit the
compensation amount within eight weeks from
the date of receipt of the certified copy of this
judgment.
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(vi) The compensation of Rs.88,400/- along with
accrued interest shall be disbursed among the
petitioner and respondent Nos.3 to 5 in equal
proportion on proper identification.
Sd/-
JUDGE
NAA
