Karnataka High Court
Smt. Shilpa W/O. Mahantesh ... vs The Divisional Controller on 2 July, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No. 102152 of 2017
C/W MFA No. 101275 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.102152 OF 2017 (MV-D)
C/W MISCELLANEOUS FIRST APPEAL NO.101275 OF 2017
IN MFA NO.102152 OF 2017
BETWEEN:
UNITED INDIA INSURANCE COMPANY LTD.,
THROUGH ITS DIVISIONAL MANAGER,
9, ROHIT CHAMBERS, 5TH FLOOR,
JARMBHOOMI MARG, FORT, MUMBAI-400001,
REPRESENTED BY DIVISIONAL MANAGER/
AUTHORIZED SIGNATORY.
- APPELLANT
(BY SRI R.R. MANE, ADVOCATE)
AND:
1. SMT. SHILPA W/O. MAHANTESH
YAMMINAKATTI @ LAKKIBAIL, AGE: ABOUT 26 YEARS,
Digitally signed by OCC:HOUSEHOLD, R/O: DASTIKOPPA, TQ:BAILHONGAL,
VINAYAKA B V
DIST: BELAGAVI-591102.
Location: HIGH
COURT OF
KARNATAKA 2. KUMARI NAYANA D/O. MAHANTESH
YAMMINAKATTI @ LAKKIBAIL, AGE: ABOUT 7 YEARS,
OCC: STUDENT, R/O: DASTIKOPPA, TQ:BAILHONGAL,
DIST: BELAGAVI-591102.
3. KUMARI NAMRATA D/O. MAHANTESH
YAMMINAKATTI @ LAKKIBAIL, AGE: ABOUT 4 YEARS,
OCC: NIL, R/O: DASTIKOPPA, TQ:BAILHONGAL,
DIST:BELAGAVI-591102.
(RESPONDENT NOS.2 AND 3 BEING MINORS,
THEY ARE REPRESENTED BY THEIR NATURAL
GUARDIAN MOTHER, RESPONDENT NO.1 HEREIN)
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MFA No. 102152 of 2017
C/W MFA No. 101275 of 2017
4. SHRI SHIVAPPA BALAPPA YAMMINAKATTI @ LAKKIBAIL,
AGE: ABOUT 68 YEARS, OCC: AGRICULTURE,
R/O: DASTIKOPPA, TQ:BAILHONGAL,
DIST: BELAGAVI-591102.
5. SMT. ANNAWWA W/O. SHIVAPPA
YAMMINAKATTI @ LAKKIBAIL, AGE: ABOUT 58 YEARS,
OCC: HOUSEHOLD, R/O: DASTIKOPPA, TQ:BAILHONGAL,
DIST:BELAGAVI-591102.
6. THE DIVISIONAL CONTROLLER, NWKRTC,
BELAGAVI-590001 (OWNER-CUM-INSURER OF BUS
BEARING NO.KA-22/F-2018).
7. SHRI VASANTKUMAR M.S. S/O. SIDDAPPA,
AGE: MAJOR, OCC: BUSINESS, R/O: MOSALE (V),
SANKIHALLY (P)-573125, JAVAGAL (H), TQ:ARASIKERE,
DIST:HASAN, (OWNER OF THE TATA INDICA V2 CAR
BEARING KA-13/B-2627).
- RESPONDENTS
(BY SRI HANUMANTH R.LATUR, ADVOCATE FOR R1 TO R5;
SRI MADANMOHAN M.KHANNUR, ADVOCATE FOR R6;
NOTICE TO R7 IS DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF
M.V. ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
17.02.2017 PASSED IN MVC NO.1188/2015 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL, BAILHONGAL & ETC.
IN MFA NO.101275 OF 2017
BETWEEN:
1. SMT. SHILPA W/O. MAHANTESH
YAMMINAKATTI @ LAKKIBAIL,
AGE: 26 YEARS, OCC: HOUSEHOLD,
R/O: DASTIKOPPA, TQ:BAILHONGAL, DIST: BELAGAVI.
2. KUMARI NAYANA D/O. MAHANTESH
YAMMINAKATTI @ LAKKIBAIL,
AGE: 7 YEARS, OCC: STUDENT,
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MFA No. 102152 of 2017
C/W MFA No. 101275 of 2017
R/O: DASTIKOPPA, TQ:BAILHONGAL, DIST: BELAGAVI.
3. KUMARI NAMRATA D/O. MAHANTESH YAMMINAKATTI @
LAKKIBAIL, AGE: 4 YEARS, OCC: HOUSE HOLD,
R/O: DASTIKOPPA, TQ: BAILHONGAL, DIST:BELAGAVI.
SINCE APPELLANTS NO.2 AND 3 MINORS RPTD BY THEIR
NATURAL GUARDIAN MOTHER APPELLANT NO.1
SMT. SHILPA W/O. MAHANTESH YAMMINAKATTI @
LAKKIBAIL, AGE: 26 YEARS, OCC: HOUSEHOLD,
R/O: DASTIKOPPA, TQ:BAILHONGAL, DIST: BELAGAVI.
4. SHRI SHIVAPPA S/O. BALAPPA YAMMINAKATTI @
LAKKIBAIL, AGE: 68 YEARS, OCC: AGRICULTURE,
R/O: DASTIKOPPA, TQ:BAILHONGAL, DIST: BELAGAVI.
5. SMT. ANNAWWA W/O. SHIVAPPA YAMMINAKATTI @
LAKKIBAIL, AGE: 58 YEARS, OCC: HOUSEHOLD,
R/O: DASTIKOPPA, TQ:BAILHONGAL, DIST:BELAGAVI.
- APPELLANTS
(BY SRI HANUMANTH R.LATUR, ADVOCATE)
AND:
1. THE DIVISIONAL CONTROLLER,
NWKRTC, BELAGAVI, PIN-590001.
2. SHRI VASANTKUMAR M.S. S/O. SIDDAPPA,
AGE: 50 YEARS, OCC: BUSINESS, R/O: MOSALE (V),
SANKIHALLY (P), JAVAGAL (H), PIN-
TQ: ARASIKERE, DIST:HASAN.
3. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
9, ROHIT CHAMBERS, 5TH FLOOR,
JARMBHOOMI MARG, FORT, MUMBAI-400001.
- RESPONDENTS
(BY SRI MADANMOHAN M.KHANNUR, ADVOCATE FOR R1;
NOTICE TO R2 IS DISPENSED WITH;
SRI R.R. MANE, ADVOCATE FOR R3)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF
M.V. ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
17.02.2017 PASSED IN MVC NO.1188/2015 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL, BAILHONGAL & ETC.
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MFA No. 102152 of 2017
C/W MFA No. 101275 of 2017
THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR
ORDERS, THIS DAY, BASAVARAJA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
Both the appeals arise out of the judgment passed in
M.V.C. No. 1188/2015 dated 17.02.2017 by the learned Senior
Civil Judge & Addl. M.A.C.T. Bailhongal (for short 'Tribunal').
M.F.A. No. 102152/2017 is filed by the insurer challenging
liability and compensation fastened on it whereas M.F.A. No.
101275/2017 is filed by the claimants seeking enhancement of
compensation. Parties are referred to as per their ranking
before the Tribunal.
2. The brief relevant facts leading to this appeal is that the
claimants had filed claim petition u/S 166 of M.V. Act for the
death of Mahantesh Yamminakatti @ Lakkibail who died in the
road traffic accident. It is stated that on 30/04/2024, the
husband of petitioner No.1, father of petitioner No.2 & 3 and
son of petitioner No.4 & 5 by name Mahantesh Yamminakatti @
Lakkibail was proceeding from Belagavi towards Dastikoppa on
his Motorcycle bearing No.KA-22/EE-1150 in a moderate speed
by observing all traffic rules and regulations, while going so,
when he came near the spot of accident i.e., near Suvarna
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Soudha on Halaga-Belagavi road, at that time in front of his
Motorcycle driver of one TATA Indica V2 Car bearing No.KA-
13/B-2627 was also proceeding, the driver of said Car without
any indication abruptly took the car on his left side and
suddenly applied the brake, due to said act of driver of Car, the
rider of Motorcycle has also suddenly applied the brake and
dashed the Car and fell down on right side of the Road. At the
same time of NWKRTC bus bearing No.KA-22/F-2018 came
from Belagavi in a very high speed with rash and negligent
manner, so as to endanger to human life and personal safety of
others, lost control over it and made the back side wheel of the
bus to run on the head of Mahantesh i.e., rider of Motorcycle
and thereby caused accident. Due to the said impact said
Mahantesh Yamminakatti @ Lakkibail had sustained fatal
injuries on his vital parts of the body and he succumbed to the
injuries on the spot. It is further submitted that, thereafter the
body was shifted to Dist. Hospital, Belagavi for P.M. and after
P.M. the body was handed over to the petitioners fro
cremation, the petitioners have took the same to their native in
a hired vehicle and performed funeral and other obsequies
ceremonies as per the customs prevailing in their community
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by spending Rs.25,000/-. It is further submitted prior to
incident the deceased was aged about 32 years hale and
healthy and doing Boiler Supervisor at Vijayakant Daily Food
and Product Ltd., Neginhal and thereby getting salary of
Rs.15,000/- p.m. and maintaining his family. The petitioners
have been put to untold hardship due to accidental death of the
deceased. It is submitted that, the accident in question was
occurred solely due to rash and negligent driving of drivers of
both NWKRTC Bus and TATA Indica V2 Car, against whom
Bagewadi Police have registered a case in their crime No.85/14
for the offences punishable U/Sec.279 & 304-A of IPC. The
Respondents being owner and insurers NWKRTC Bus and TATA
Indica V2 Car are jointly and severally liable to pay
compensation to the Petitioners.
3. In pursuance of the notice, respondent no.1 being the
owner cum insurer of the bus bearing Reg. No. KA-22-F-2018
appeared through its counsel and filed statement of objections
contending that on the date of accident the driver of NWKRTC
Bus bearing No.KA-22/F-2018, was plying from Belagavi to
Bailhongal, when the Bus came near Suvarna Vidhan Soudha
on NH-4, at that time one TATA Indica V2 Car bearing No.KA-
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13/B-2627 was also coming behind the bus and one
Motorcyclist bearing No.KA-22/EE-1150, who abruptly came
behind the car and while overtaking the said Car, dashed
against the Car and fell down near the left back wheel of the
Bus and accident is caused due to the Motorcyclist as well as
driver of the Car and there is no fault on the driver of the Bus,
accordingly prayed to dismiss the petition.
4. Respondent No.3 being the insurer of the TATA Indica V2
Car bearing No. KA-13/B-2627 appeared through its counsel
and filed objections statement denying all the material facts
averred in the petition with regard to the occurrence of the
accident due to the rash and negligent driving of the offending
car by its driver, injuries sustained which resulted in death of
Mahantesh. It is further contended that the driver of TATA
Indica V2 Car bearing No.KA-13/B-2627 was driven by its
driver in a moderate speed on his left side, at that time the
rider of Motorcycle deceased Mahantesh was ridden his
Motorcycle in great speed and negligent manner and tried to
over taken the TATA Indica V2 Car bearing No.KA-13/B-2627
and in that process, he lost control over the Motorcycle and fell
down on the middle of the road and at the same time the
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NWKRTC Bus, which was coming great speed and ran over the
rider Mahantesh and thereby caused the accident. There is no
negligence on part of the driver of TATA Indica V2 Car bearing
No.KA-13/B-2627 in causing the accident. The accident in
question had occurred due to the fault of rider of Motorcycle
Mahantesh and driver of NWKRTC Bus, accordingly petition is
liable to be dismissed against this Respondent. It is submitted
that, at the time of accident the driver of TATA Indica V2 Car
bearing No.KA-13/B-2627 did not possess valid and effective
D.L. to drive the same. It is further contended that the liability
of this Respondent is subject to terms and conditions of the
policy and provisions of M.V.Act and also production of valid
driving license. It is further contended that the rate of interest
claimed by the petitioners is highly exorbitant, on these
grounds and amongst other, this Respondent prayed to dismiss
the petition.
5. Respondent no.2 being the owner of the offending car is
placed exparte.
6. To prove the case of the petitioners, two witnesses were
examined as PWs.1 and 2, 15 documents were marked as
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Exs.P.1 to P.15. On closure of petitioners' side, two witnesses
were examined as RWs.1 and 2 and got marked documents as
per Exs.R.1 to R.4. Having heard the arguments of both sides
the Tribunal has allowed the claim petition in part with costs. It
awarded a sum of Rs.12,30,000/- with interest at the rate of
9% p.a. from the date of petition till deposit. Further it is held
that respondents no.2 and 3 being the owner and insurer
respectively of the offending car are jointly and severally liable
to pay the compensation.
7. Being aggrieved by fastening liability to pay
compensation, the insurer is in appeal whereas being
dissatisfied with the quantum of compensation the claimants
are seeking for enhancement of compensation.
8. Learned counsel for the appellant-insurer would submit
that the judgment and award passed by the Tribunal is contrary
to the evidence, facts and circumstances. That the deceased
was riding the motorcycle without having valid and effective
driving licence which has been established by the documents
produced by the claimants themselves. Further, the deceased
himself dashed the motorcycle to the hind portion of the car,
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due to which he fell down and the bus which was coming from
behind the motorcycle ran over the deceased. The Tribunal
ought to have held that primary cause of the accident was
incompetence of the deceased himself and dismissed the claim
petition. Further, in the alternative he submits that Tribunal
has committed grave error in holding that the accident in
question was caused solely due to the rash and negligent
driving of the offending car by its driver though the Police
Authorities have filed charge sheet against the driver of car u/S
279 of IPC whereas charge sheet is filed against the driver of
the bus for the offences u/S 279, 338 and 304(A) IPC. Charge
sheet was also filed against the deceased for riding the
motorcycle without holding valid driving licence. Charge sheet
was also filed against the owner of the motorcycle for having
allowed the deceased to ride. Under these circumstances, the
Tribunal ought to have held that the deceased, driver of the
offending car and driver of the bus were equally negligent in
driving their respective vehicles and consequently the Tribunal
ought to have apportioned liability on each of them at the rate
of 1/3. However, quite surprisingly the Tribunal ignoring the
evidence on record and relying on the interested oral testimony
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of the driver of the bus who was examined as PW2, has held
that primary cause of accident is sudden application of brakes
by the driver of the offending car and saddled entire liability on
the car. The Tribunal has failed to appreciate that driver of the
bus did not exercise due diligence to control the bus and the
fact of incompetence of the riding of the motorcycle. Further,
the Tribunal has failed to appreciate the oral evidence of RW1,
official of the insurer. In the light of the non appreciation of
the oral and documentary evidence on record in the right
perception, the Tribunal has erred in fastening liability on the
car alone. Further, the Tribunal has erred in granting interest
at the rate of 9% p.a. instead of 6% which is contrary to the
decision of the Hon'ble Apex Court in Oriental Insurance Co.
Ltd., Vs. Jagadish and others1. On all these grounds sought
for allowing the appeal.
9. As against this, learned counsel for the claimants/
appellants would submit that the Tribunal has awarded
compensation of Rs.10,80,000/- towards loss of dependency
considering the income of the Rs.8,000/- per month even
199 ACJ 1105
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though the deceased was drawing salary of Rs.10,500/- per
month. Deceased was working as Boiler Supervisor under
Vijayakanth Dairy Food and Products Ltd., Neginhal. As on the
date of accident deceased was hale and healthy, aged 36 years
and in view of National Insurance Co. Ltd., Vs. Pranay
Sethi & Ors.2 50% of the assessed income should have been
added towards future prospects. Further, the Tribunal has
awarded a sum of Rs.1,50,000/- towards conventional heads
which is on the lower side since the deceased was having wife,
two minor children and parents. On all these grounds sought
for enhancement of compensation.
10. Having heard arguments of both sides and on perusal of
the appeal papers and original records, the following points
would arise for our consideration.
(1) Whether the Tribunal is justified in fastening liability
on the owner and insurer of the car bearing Reg.
No. KA-13-B-2627?
(2) Whether the appellants/claimants are entitled for
enhancement of compensation?
(3) Whether the Tribunal is justified in awarding
interest at the rate of 9% p.a. instead of 6% p.a.?
AIR 2017 SC 5157
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(4) What order of award?
11. We answer the above points as under:
Point No.1 : In the affirmative
Point No.2 : Partly in the affirmative
Point No.3 : In the negative
Point No.4 : As per final order for the following
REASONS
12. Point No. 1: We have examined the material on
record. It is the case of the petitioners that on 30/04/2024,
the husband of petitioner No.1, father of petitioner No.2 & 3
and son of petitioner No.4 & 5 by name Mahantesh
Yamminakatti @ Lakkibail was proceeding from Belagavi
towards Dastikoppa on his Motorcycle bearing No.KA-22/EE-
1150 in a moderate speed by observing all traffic rules and
regulations, while going so, when he came near the spot of
accident i.e., near Suvarna Soudha on Halaga-Belagavi road, at
that time in front of his Motorcycle driver of one TATA Indica
V2 Car bearing No.KA-13/B-2627 was also proceeding, the
driver of said Car without any indication abruptly took the car
on his left side and suddenly applied the brake, due to said act
of driver of Car, the rider of Motorcycle has also suddenly
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applied the brake and dashed the Car and fell down on right
side of the Road. At the same time of NWKRTC bus bearing
No.KA-22/F-2018 came from Belagavi in a very high speed with
rash and negligent manner, so as to endanger to human life
and personal safety of others, lost control over it and made the
back side wheel of the bus to run on the head of Mahantesh
i.e., rider of Motorcycle and thereby caused accident. Due to
the said impact said Mahantesh Yamminakatti @ Lakkibail had
sustained fatal injuries on his vital parts of the body and he
succumbed to the injuries on the spot. To substantiate this,
two witnesses were examined as P.Ws.1 and 2 and 15
documents were marked as Exs.P.1 to P.15. The respondent
no.1-NWKRTC have filed their statement of objections
contending that the accident occurred due to sole negligence of
the driver of the offending car and the driver of the bus is not
responsible for the alleged accident. Respondent no.3-insurer
of the offending car has contended that the accident in question
had occurred due to the sole negligence of the rider of the
motorcycle and the driver of the bus and sought for dismissal of
the claim petition as against it.
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13. Before appreciating the evidence on record, it is
appropriate to mention here as to the recent decision of the
Hon'ble Apex court in the case of Mathew Alexander Vs.
Mohammed Shafi and Anr.3 as regards the standard of proof
to be applied by the MACT while considering the claim petition
for compensation for death or injury in a road accident,
preponderance of probabilities and the standard of proof of
beyond reasonable doubt would not apply and that the final
report in the criminal investigation connected to the accident
would not have a bearing on the claim petition and that the
claim petition must be considered on its own merits. At
paragraph nos.9 and 10 it is observed as under:
"9. Insofar as the claim petition filed by the Appellant herein is
concerned, alleged negligence on the part of the driver of the
tanker lorry and pickup van in causing the accident has to be
proved. That is a matter which has to be considered on the basis
of preponderance of the possibilities and not on the basis of proof
beyond reasonable doubt. It is left to the parties in the claim
petitions filed by the Appellant herein or other claimants to let in
their respective evidence and the burden is on them to prove
negligence on the part of the driver of the Alto car, the tanker
lorry or pickup van, as the case may be, in causing the accident.
In such an event, the claim petition would be considered on its
2023 LiveLaw (SC) 531
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own merits. It is needless to observe that if the proof of
negligence on the part of the drivers of the three vehicles is not
established then, in that event, the claim petition will be disposed
of accordingly.
In this context, we could refer to judgments of this Court in
the case of N.K.V. Bros. (P) Ltd. vs. M. Karumai Anmal reported in
AIR 1980 SC 1354, wherein the plea that the criminal case had
ended in acquittal and that, therefore, the civil suit must follow
suit, was rejected. It was observed that culpable rashness
under Section 304-A of IPC is more drastic than negligence under
the law of torts to create liability. Similarly, in (2009) 13 SCC
530, in the case of Bimla Devi vs. Himachal Road Transport
Corporation ("Bimla Devi"), it was observed that in a claim
petition filed under Section 166 of the Motor Vehicles Act, 1988,
the Tribunal has to determine the amount of fair compensation to
be granted in the event an accident has taken place by reason of
negligence of a driver of a motor vehicle. A holistic view of the
evidence has to be taken into consideration by the Tribunal and
strict proof of an accident caused by a particular vehicle in a
particular manner need not be established by the claimants. The
claimants have to establish their case on the touchstone of
preponderance of probabilities. The standard of proof beyond
reasonable doubt cannot be applied while considering the petition
seeking compensation on account of death or injury in a road
traffic accident. To the same effect is the observation made by
this Court in Dulcina Fernandes vs. Joaquim Xavier Cruz, (2013)
10 SCC 646 which has referred to the aforesaid judgment in Bimla
Devi.
10. In that view of the matter, it is for the Appellant herein to
establish negligence on the part of the driver of the tanker lorry in
the petition filed by him seeking compensation on account of
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death of his son in the said accident. Thus, the opinion in the final
report would not have a bearing on the claim petition for the
aforesaid reasons. This is because the Appellant herein is seeking
compensation for the death of his son in the accident which
occurred on account of the negligence on the part of the driver of
the tanker lorry, causing the accident on the said date. It is
further observed that in the claim petitions filed by the
dependents, in respect of the other passengers in the car who
died in the accident, they have to similarly establish the
negligence in accordance with law.
14. As could be seen from the records that on the basis of the
complaint filed by one Udaya Basappa Yemminagi,
Hirebagewadi Police have registered the case against the driver
of the NWKRTC bus for the offences punishable u/S 279, 338
and 304(A) of IPC and submitted FIR to the Court and
thereafter the Police rushed to the spot, conducted spot
panchanama, prepared rough sketch in the presence of
panchas, took photos of the vehicles involved in the accident,
conducted inquest panchanama in the presence of panchas,
recorded statement of witnesses, obtained postmortem report
and M.V. report. Upon thorough investigation the investigating
officer has submitted charge sheet against the accused no.1,
driver of the offending car for the offence punishable u/S 279
IPC, against accused no.2, driver of the bus for commission of
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offences punishable u/S 279, 338 and 304(A) IPC and against
accused no.3, owner of the motorcycle for the offence
punishable u/S 5 r/w 180 of M.V. Act and also against the
deceased for the offence punishable u/S 3 r/w 181 of M.V. Act.
15. Ex.P.9 is the driving licence of the deceased Mahantesh
issued by the Assistant Director of Transport (South),
Madagaon, Goa. It reveals that date of birth of deceased is
22.07.1987, deceased obtained driving licence pertaining to
motorcycle with gear bearing no. 76196/ADT(S)/Mar/2005-06
on 12.09.2005. The accident had taken place on 30.04.2014.
RW1, working as an Assistant in the United India Insurance
Company has not disputed this document. Without
commenting on this document he has mechanically stated
before the Court on oath that the deceased had no riding
experience of a two-wheeler and that he had no driving licence
only on the ground that Hirebagewadi Police have submitted
charge sheet against the deceased for the offence punishable
u/S 3 r/w Sec.181 of M.V. Act. Without proper investigation
the investigating officer has mechanically filed the charge sheet
against the deceased which is not sustainable under law. When
the rider of the motorcycle was having valid and effective
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driving licence as on the date of accident, no fault can be found
with entrusting the motorcycle by the owner to the deceased
and filing of charge sheet u/S 5 r/w 181 of M.V. Act against the
owner of the motorcycle cannot be sustainable in law.
16. Ex.P.17 is the copy of the driving licence of the driver of
the offending car who is accused no.1. It reveals that he had
valid and effective driving licence to drive the car (LMV). The
investigating officer has also not submitted any charge sheet
against the driver of the car u/S 3 r/w 181 of M.V. Act.
However, RW1 has not disputed the document at Ex.P.17 but in
the statement of objections it is mechanically stated that the
driver of the offending car had no valid and effective driving
licence as on the date of accident which is also not sustainable
under law.
17. Now we have to analyze as to whether the accident
occurred due to the sole negligence on the part of the driver of
the offending car as held by the Tribunal or that the accident
occurred due to the rash and negligence on the driver of the
offending car as well as the driver of the bus. In this regard
this Court has to consider it on the basis of preponderance of
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probabilities and not on the basis of proof beyond all
reasonable doubt. The final report in criminal investigation
connected to the accident would not have a bearing on the
claim petition and the claim petition must be considered on its
own merits as held by the Hon'ble Apex Court in Mathew
Alexander (supra). The Tribunal has to appreciate the
evidence on record and the evidence adduced before it.
Accordingly, the Tribunal has observed that though the
investigating officer has filed charge sheet against the driver of
the bus, RW2 who is none other than the driver of the bus has
deposed that driver of the offending car without giving signal,
all of a sudden took the car towards left side, in the meantime
rider of the motorcycle without expecting stopping of the car,
dashed the car, fell on the right side of the road, at that same
time the bus passed on the head of the deceased. The Tribunal
has observed that if the driver of offending car has not stopped
the car suddenly and he has followed the road safety rules,
definitely rider of the motorcycle was in a position to judge
properly. However, the driver of the offending car did not give
such time to the rider of the motorcycle, instead of following his
way, he took the car towards the suddenly and thereby the
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motorcyclist dashed the car, because of the said impact,
motorcyclist fell down towards right side of the road, driver of
the bus without expecting fall of the motorcyclist, naturally
moved the bus, that is the reason the wheel of the bus has
passed on the head of the motorcyclist. All these
circumstances reveal that it is only fault of the driver of the car
and not the rider of the motorcycle or the driver of the bus.
Hence the Tribunal has held that the accident occurred only due
to the negligence of the driver of the offending car. Keeping in
mind the decision of the Hon'ble Apex Court in Mathew
Alexander (supra) we have re-appreciated/ re-considered and
on re-examination of the entire evidence on record and we do
not find any error or infirmity in the finding of the Tribunal.
Hence, we answer point no.1 in the affirmative.
18. Point No.2: With regard to the quantum of
compensation is concerned, PW1-wife of the deceased has
stated that deceased was hale and healthy, working as Boiler
Supervisor under Vijayakanth Dairy Food and Products Ltd.,
Neginhal and getting salary of Rs.15,000/- per month. To
substantiate this, petitioners have produced Ex.P.10-letter
issued by The H.R.Manager, Vijayakanth Dairy Food and
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Products Ltd., Neginhal wherein it is stated that deceased was
working as Senior Boiler Supervisor and drawing salary of
Rs.10,500/- per month. Ex.P.11 is the PAN card, Ex.P.12 is the
certified true copy of Form 'C' issued by the Director of
Factories and Boilers in Karnataka, Bangalore which reveals
that deceased was having requisite knowledge and qualification
about the boiler operations. But the Tribunal has observed that
without any corroborative evidence the Court cannot come to
the conclusion that deceased was drawing salary of Rs.10,500/-
per month. By considering the evidence of PW1 and
qualification of the deceased the Tribunal has assessed notional
income of the deceased at Rs.8,000/- per month.
19. PW2-Noorahamad M. Makandar has deposed that
deceased was working as Boiler Operator in the milk diary.
Ex.P.10 is the salary certificate of the deceased which reveals
that deceased was working as Senior Boiler Supervisor under
Vijayakanth Dairy Food and Products Ltd., Neginhal from
01.12.2011 to 30.04.2014 and drawing salary of Rs.10,500/-
per month. Ex.P.11 is the PAN card which reveals that date of
birth off the deceased was 22.08.1977. Ex.P.12 is the
notarized copy of the Boiler Certificate issued by the Director of
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NC: 2024:KHC-D:9016-DB
Factories and Boilers in Karnataka, Bangalore, which is a public
document. This document is issued by a public servant which
is having presumptive value u/S 114-(e) and Sec. 74 of the
Indian Evidence Act, 1872. These documents at Exs.P.1 to
P.12 have not been disputed by the other side. The
respondents have not produced any rebuttal evidence to
discard the documents issued by the public authority. However
the Tribunal has ignored this public document and come to the
conclusion that without any corroborative evidence Court
cannot come to the conclusion that accused was drawing salary
of Rs.10,500/- per month which is contrary to the legal
evidence placed by the petitioners. Hence, this Court has
assessed the income of the deceased at Rs.10,500/- per
month.
20. The Tribunal has erred in not adding future prospects of
the deceased in view of the ratio laid down by the Apex Court
in Pranay Sethi (supra) as per which 50% of the assessed
income of the deceased should be added towards future
prospects as deceased was in permanent job. If the same is
applied, the monthly income of the deceased would be
Rs.15,750/- (Rs.10,500/- + Rs.5,250/-). The date of birth of
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NC: 2024:KHC-D:9016-DB
the deceased was 22.08.1977. The accident had occurred on
30.04.2014. As on the date of accident, deceased was aged 36
years 8 months and 8 days. Accordingly, the Tribunal has
applied multiplier of '15' as per Smt. Sarla Verma & Ors. Vs.
Delhi Transport Corporation & Anr.4 case. The Tribunal has
rightly deducted 1/4th towards personal and living expenses of
the deceased as the dependents are five. Thus, the claimants
are entitled for a sum of Rs.21,25,800/- (Rs.15,750/- - 3,940/-
x 12 x 15) towards loss of dependency.
21. The Tribunal has awarded a total sum of Rs.1,50,000/-
towards loss of estate, loss of love and affection, loss of
consortium, transportation of dead body, funeral and obsequies
which is not in consonance with the ratio laid down by the Apex
Court in Magma General Insurance Co. Ltd. Vs. Nanu Ram
Alias Chuhru Ram & Ors.5 Considering the decision of the
Apex Court in Sarla Verma (supra), Pranay Sethi (supra),
and Magma (supra) the claimants no.1 to 5 are each entitled
for a sum of Rs.40,000/- each towards loss of consortium.
Further, a sum of Rs.15,000/- each is awarded towards loss of
AIR 2009 SC 3104
AIR ONLINE 2018 SC 1249
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estate and funeral expenses. Thus, the claimants are entitled
for modified compensation as under:
1. Loss of dependency 21,25,800.00
2. Loss of consortium (Rs.40,000/-x5) 2,00,000.00
3. Loss of estate 15,000.00
4. Funeral expenses 15,000.00
Total 23,55,800.00
Award of Tribunal 12,30,000.00
Enhancement 11,25,800.00
For the aforesaid reasons, point no.2 is answered partly in the
affirmative.
22. Point No.3: With regard to the rate of interest
awarded by the Tribunal is concerned, it has awarded 9% p.a.
which is on the higher side considering the rate of interest on
fixed deposits in Nationalized Banks as on the date of accident.
Hence, we are of the considered opinion that it is just and
appropriate to award interest at 6% p.a. instead of 9% p.a.
Accordingly, it is awarded at 6% p.a. Hence, point no. 3 is
answered in the negative.
23.Point No.4: For the aforesaid reasons and discussions, we
proceed to pass the following:
ORDER
a) Both the appeals are allowed in part.
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b) The impugned judgment & award of Tribunal is
modified holding that the claimants are entitled to
total compensation of Rs.23,55,800/- as against
Rs.12,30,000/- awarded by the Tribunal along with
interest at the rate of 6% p.a. from the date of
claim petition till realization.
c) The appellant-Insurer shall deposit the enhanced
compensation amount with accrued interest before
the Tribunal within a period of six weeks from the
date of receipt of certified copy of this judgment.
d) Apportionment, deposit & disbursement shall be
made as per award of Tribunal.
e) The amount in deposit, if any, be transmitted to the
concerned Tribunal forthwith along with original
records.
f) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
BVV
