Karnataka High Court
Shri. Pintu S/O. Sadashi Kadam vs Smt. Chaya W/O. Satish Latane on 4 July, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No.100026/2021 C/W
MFA No.100259/2021,
MFA No.101043/2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 04TH 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.100026 OF 2021 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO.100259 OF 2021
MISCELLANEOUS FIRST APPEAL NO.101043 OF 2022
IN MFA NO.100026 OF 2021
BETWEEN:
THE MANAGER,
SHRIRAM GENERAL INSURANCE COMPANY LTD.,
S-5, 2ND FLOOR, MONARK CHAMBER,
INFANTRY ROAD, BANGALURU-01,
NOW REPRESENTED BY ITS
AUTHORIZED SIGNATORY.
- APPELLANT
(BY SRI S.K. KAYAKAMATH, ADVOCATE)
AND:
1. SMT. CHAYA W/O. SATISH LATANE,
Digitally signed AGE. 29 YEARS, OCC. HOUSEHOLD WORK,
by VINAYAKA B V R/O. VITHAL NAGAR, YALIHADALAGI,
Location: HIGH TQ. ATHANI, DIST. BELAGAVI.
COURT OF
KARNATAKA
2. KUMARI. ARATI D/O. SATISH LATANE,
AGE. 09 YEARS, OCC. STUDENT,
R/O. VITHAL NAGAR, YALIHADALAGI,
TQ. ATHANI, DIST. BELAGAVI.
RESPONDENT NO.2 SINCE MINOR
REPRESENTED BY NATURAL MOTHER
GUARDIAN RESPONDENT NO.1.
3. SRI RAMACHANDRA S/O. YASHWANT LATANE,
AGE. 59 YEARS, OCC. NIL,
R/O. VITHAL NAGAR, YALIHADALAGI,
TQ. ATHANI, DIST. BELAGAVI.
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MFA No.100026/2021 C/W
MFA No.100259/2021,
MFA No.101043/2022
4. SMT. GANGUBAI W/O. RAMACHANDRA LATANE,
AGE. 55 YEARS, OCC. HOUSEHOLD WORK,
R/O. VITHAL NAGAR, YALIHADALAGI,
TQ. ATHANI, DIST. BELAGAVI.
5. SRI PINTU S/O. SADASHIV KADAM,
AGE. MAJOR, OCC. BUSINESS,
R/O. 1028. KADAM ONI, KHOTANATTI,
TQ. ATHANI, DIST. BELAGAVI.
- RESPONDENTS
(BY SRI B.SHARANABASAVA, ADVOCATE FOR R1 TO R4;
SRI. SANJAY S.KATAGERI, ADVOCATE FOR R5)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 10.06.2020 PASSED IN MVC
NO.1070/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE
AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ATHANI
AND ETC.,
IN MFA NO.100259 OF 2021
BETWEEN:
1. SMT. CHAYA W/O. SATISH LATANE,
AGE. 29 YEARS, OCC. HOUSEHOLD WORK,
2. KUMARI. ARATI D/O. SATISH LATANE,
AGE. 10 YEARS, OCC. STUDENT,
3. SRI RAMACHANDRA S/O. YASHWANT LATANE,
AGE. 60 YEARS, OCC. NIL,
4. SMT. GANGUBAI W/O. RAMACHANDRA LATANE,
AGE. 55 YEARS, OCC. HOUSEHOLD WORK,
ALL THE APPELLANTS ARE RESIDING AT
R/O. VITTHAL NAGAR, YALIHADALAGI,
TQ. ATHANI, DIST. BELAGAVI,
PIN CODE-591304.
(NOTE: SINCE THE APPELLANT NO.2 HEREIN
BEING MINOR IS REPRESENTED BY HER NEXT
FRIEND NATURAL GUARDING
MOTHER-APPELLANT NO.1)
- APPELLANTS
(BY SRI B.SHARANABASAVA, ADVOCATE)
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MFA No.100026/2021 C/W
MFA No.100259/2021,
MFA No.101043/2022
AND:
1. SRI PINTU S/O. SADASHIV KADAM,
AGE. MAJOR, OCC. BUSINESS,
R/O. HOUSE NO.1028. KADAM ONI,
KHOTANATTI, TQ. ATHANI, DIST. BELAGAVI,
PINCODE-591304.
(OWNER OF TRACTOR BEARING
REGD.NO. KA-23/TA-6423)
2. THE MANAGER,
SHRIRAM, GENERAL INSURANCE COMPANY LTD.,
S-5, 2ND FLOOR, MONARCH CHAMBERS,
INFANTRY ROAD, BANGALURU-560001.
(OWNER OF TRACTOR BEARING
REGD.NO. KA-23/TA-6423)
- RESPONDENTS
(BY SRI SANJAY S.KATAGERI, ADVOCATE FOR R1;
SRI S.K. KAYAKAMATH, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 10.06.2020 PASSED IN MVC
NO.1070/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE
AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ATHANI
AND PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,
IN MFA NO.101043 OF 2022
BETWEEN:
SRI PINTU S/O. SADASHIV KADAM,
AGE. 45 YEARS, OCC. BUSINESS,
R/O. HOUSE NO.1028. KADAM ONI,
KHOTANATTI VILLAGE, TQ. ATHANI,
DIST. BELAGAVI, PINCODE-591304.
(OWNER OF TRACTOR BEARING
REGD. NO.KA-23/A-6423)
- APPELLANT
(BY SRI SANJAY S.KATAGERI, ADVOCATE)
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MFA No.100026/2021 C/W
MFA No.100259/2021,
MFA No.101043/2022
AND:
1. SMT. CHAYA W/O. SATISH LATANE,
AGE. 29 YEARS, OCC. HOUSEHOLD WORK,
2. KUMARI. ARATI D/O. SATISH LATANE,
AGE. 10 YEARS, OCC. STUDENT,
3. SRI RAMACHANDRA S/O. YASHWANT LATANE,
AGE. 60 YEARS, OCC. NIL,
4. SMT. GANGUBAI W/O. RAMACHANDRA LATANE,
AGE. 55 YEARS, OCC. HOUSEHOLD WORK,
ALL THE RESPONDENTS
HEREIN ARE RESIDING AT
R/O. VITTHAL NAGAR,
YALIHADALAGI, TQ. ATHANI,
DIST. BELAGAVI, PIN CODE-591304.
(NOTE: SINCE THE RESPONDENT NO.2
HEREIN IS MINOR,
REPRESENTED BY HER NEXT
FRIEND NATURAL GUARDING
MOTHER-RESPONDENT NO.1)
5. THE MANAGER,
SHRIRAM, GENERAL INSURANCE COMPANY LTD.,
S-5, 2ND FLOOR, MONARCH CHAMBERS,
INFANTRY ROAD, BANGALURU-560001.
(OWNER OF TRACTOR BEARING
REGD. NO.KA-23/A-6423)
- RESPONDENTS
(BY SRI B.SHARANABASAVA, ADVOCATE FOR R1 TO R4;
SRI S.K. KAYAKAMATH ADVOCATE FOR R5)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, amended act,
2018, AGAINST THE JUDGMENT AND AWARD DATED 10.06.2020
PASSED IN MVC NO.1070/2015 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, ATHANI PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION
AND ETC.,
IN THESE MISCELLANEOUS FIRST APPEALS, ARGUMENTS
HAVING BEEN HEARD AND JUDGMENT RESERVED ON 18.06.2024,
COMING ON FOR "PRONOUNCEMENT OF ORDERS" THIS DAY,
BASAVARAJA J., DELIVERED THE FOLLOWING:
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MFA No.100026/2021 C/W
MFA No.100259/2021,
MFA No.101043/2022
JUDGMENT
All these appeals arise out of the judgment and award
dated 10th June, 2020 passed in MVC No.1070 of 2015 by the
Principal Senior Civil Judge and Additional Motor Accident
Claims Tribunal, Athani (for short hereinafter referred to as
"the Tribunal").
2. For the sake of convenience, the parties in these
appeals are referred to with their rank and status before the
Tribunal.
3. Brief facts of the case leading to filing of these
appeals are:
The petitioners filed claim petition under Section 166 of
the Motor Vehicles Act, 1988 seeking compensation for the
death of one Satish Latane in the road traffic accident. It is
stated in the claim petition that on 11th May, 2015 at about
8.00 pm, when the said Satish was proceeding near the garden
land of Pintu Kadam at Yalihadlagi village, the driver of tractor
bearing Registration No.KA-23/TA-6423 drove the said tractor
at a high speed and in rash and negligent manner and dashed
to said Satish. Due to the impact, he suffered grievous injuries
and died. It is stated that petitioners spent Rs.50,000/-
MFA No.100026/2021 C/W
MFA No.100259/2021,
towards funeral expenses and transportation of the dead body.
It is further stated that prior to accident, deceased Satish was
hale and healthy and was aged 35 years. He was working in
Army and getting a salary of Rs.50,000/- per month along
other benefits. Due to his sudden death, the petitioners have
lost the earning member of the family. Petitioner No.1 has lost
her husband, petitioner No.2 has lost her father and petitioners
3 and 4 have lost their loving son. It is submitted that the
accident occurred due to rash and negligent driving of the
tractor by iis driver. Respondents 1 and 2 are the owner and
insurer respectively of the offending tractor and are jointly and
severally liable to compensate the petitioners. Hence, they
sought to allow the claim petition.
4. In response to summons respondents appeared
through their counsel and filed separate objections denying the
occurrence of accident due to rash and negligent driving of the
driver of Tractor and further denied as to the dependency of
petitioners.
5. The sum and substance of objections of respondent
No.1-owner of the vehicle, is that the accident occurred due to
the negligence of the deceased himself. It is contended that
MFA No.100026/2021 C/W
MFA No.100259/2021,
the vehicle is insured with the respondent No.2-Insurer and if
the petitioners are entitled for any compensation, the
respondent No.2 is liable to pay the same.
6. The contention of the respondent No.2-Insurance
Company in statement of objections is that the driver of the
tractor did not possess valid driving licence and hence there is
violation of policy conditions. Accordingly, the respondent No.2
is not liable to pay compensation. Hence, sought to dismiss the
claim petition. The respondent No.2 also filed additional
written statement contending that trailer No.KA-23/T-4236 ran
over the deceased and caused his death. The said trailer was
not insured as on the date of accident. It is submitted that
there is no contract of insurance between the respondent No.1
with regard to the trailer No.KA-23/T-4236 which has caused
the accident. The petitioners have suppressed this fact and
have not come to court with clean hands. Therefore, it is clear
that the respondent No.2 is in no way liable to pay the
compensation to the petitioners. The owners of the tractor
bearing No.KA-23/TA-6423 and trailer No.KA-23/T-4236 had
lent the tractor-trailer unit for marriage procession as on the
date of accident, which unit is meant to be used for agriculture
purposes only and hence, using the tractor-trailer unit for other
MFA No.100026/2021 C/W
MFA No.100259/2021,
purposes amounts to violation of policy conditions and hence
the respondent No.2 cannot be held liable to pay the
compensation in the light of violation of policy conditions and
hence, the claim petition needs to be dismissed with costs as
against respondent No.2. This Additional statement was filed
on 20th February, 2017 along with application under Section
151 of Code of Civil Procedure and also filed application under
Order VI Rule 17 of Code of Civil Procedure. Both applications
were dismissed by the Tribunal on 09th March, 2017. The same
is not questioned by respondent No.2.
7. Based on the pleadings, the Tribunal framed
appropriate issues. To prove their case, petitioners examined
two witnesses as PWs.1 and 2 and twelve documents were
marked as Exhibits P1 to P12. On closure of petitioners' side
evidence, three witnesses were examined on behalf of
respondents as RWs.1 to 3 and twenty documents were marked
as Exhibits P1 to P20. Having heard the arguments on both
sides, the Tribunal partly allowed the claim petition and
awarded compensation of 67,59,408/- with interest at 6% per
annum from the date of filing the petition till realisation and
directed respondent No.2 to deposit the award amount along
with accrued interest within two months from the date of award
MFA No.100026/2021 C/W
MFA No.100259/2021,
failing which the award shall carry interest at the rate of 9%
per annum. It was also held that the respondent No.2-Insurer
is at liberty to take action against respondent No.1 for recovery
of amount paid by it to the petitioners under the principle of
"pay and recover".
8. Being aggrieved by the judgment and award passed
by the Tribunal, the Insurance Company has preferred MFA
No.100026 of 2021 questioning the liability of the Insurance
company under principal of pay and recover as well as the
quantum of compensation; the owner of the tractor has
preferred MFA No. 101043 of 2022 questioning the fastening of
liability on him under the principle of pay and recover; and the
petitioner/claimants have preferred MFA No.100259 of 2021
questioning the liability of the owner under the principle of pay
and recover and also seeking enhancement of compensation.
Submission of learned counsel for the
petitioner/claimants:
9. Sri B. Sharanabasawa, learned counsel appearing
for the petitioner/claimants, submitted that the Tribunal has
committed grave error in holding that there is difference in the
name of the driver of the tractor who has caused the accident
which led to death of the deceased. He submitted that in the
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MFA No.100026/2021 C/W
MFA No.100259/2021,
charge sheet filed by the police as per Exhibit P8, the name of
the driver is mentioned as Bapuso S/o Appaso Kodag whereas
in the driving licence produced as per Exhibit R15, the name of
the driver is mentioned as Appaso and Bapuso Machendra
Kodag. Whereas in Exhibit-R20 the driving licence extract, the
name is mentioned as Appashiv S/o Machendra Kodage. Thus,
it is the same person one who was examined before the
Tribunal as RW2 and cross-examined by Respondent No.2-
Insurance Company and nothing is stated as to the name
mentioned are of different persons. Hence, the observations
made by the Tribunal in this regard that unless the author of
the said document is examined, the genuineness of the same
could not be decided, is not valid. The documents were marked
without objection and are public documents. Thus, in view of
the evidence on record, there was no justification for the
Tribunal to hold that the driving licence does not belong to the
person who has caused the accident and as such, the said
finding needs to be set aside and the liability be saddled upon
the Insurer as indemnifier of respondent No.1-owner of the
trailer. He further submitted that the Tribunal has failed to
consider the fact that the said driver has been called as Bapuso
as well as Appaso and as such there is reference of the same in
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MFA No.100026/2021 C/W
MFA No.100259/2021,
the driving licence as Per Exhibits R15 and R20. Further,
Exhibit P15 has been produced by the driver in his evidence
along with Exhibits P16 to P18 which pertain to RC Book and
Exhibit P18-Aadhar Card, wherein it is mentioned the name of
the driver as Bapuso @ Appaso Machendra Kodag and the date
of birth is mentioned as 20th May, 1981 the same is also
mentioned in Exhibit R20-Driving licence extract of the driver.
The place of residence, as mentioned in the Aadhar card and in
the Driving Licence extract, are different. However, it does not
make any difference since the person and the date of birth are
one and the same and the residence mentioned in the said
documents will not have any bearing. He submitted that the
Tribunal has not considered this aspect at all even though the
appellant has filed written arguments in the said case. Hence,
the reasoning of the Tribunal in this regard is perverse,
arbitrary and biased and the same requires to be set aside.
The learned counsel further submitted that the Tribunal has not
analysed the documents on record in its proper perspective.
Though the driver of the tractor was holding valid and effective
driving licence as on the date of the accident. The filing of
charge sheet under Section 3 read with 181 of Motor Vehicles
Act, 1988 against the driver and filing of charge sheet under
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MFA No.100026/2021 C/W
MFA No.100259/2021,
Section 5 read with Section 180 of Motor Vehicles Act, 1988
against the respondent No.1-owner of the offending vehicle,
cannot be a base to hold that there is violation of policy
conditions. Hence, mere filing of charge sheet does not
exonerate the insurance company from its liability and more
particularly the claim of the petitioner/claimants being third
parties. His further submission is that the Tribunal has
committed an error in holding that the author of the documents
as per Exhibit P8, R15 and R20 are required to proved by the
person who has issued the same and if the same is permitted,
there would be delay to adjudicate the claim of victims and
thereby there will be great injustice to them in terms of
financial support without proper or satisfactory reason. He
submitted that the matter is pending since 2015 and
respondent-Insurer has sought time to file the statement of
objections on 27th February, 2020 and it was permitted.
Thereafter, the matter was posted on 06th March, 2020 to file
written argument and on 09th June, 2020 the written argument
was submitted by the Counsel for respondent-Insurer and on
the next day itself, i.e. on 10th June, 2020 the judgment is
pronounced without providing any opportunity to the counsel
for the petitioner/claimants and the respondent No.1-Owner of
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MFA No.100026/2021 C/W
MFA No.100259/2021,
the offending tractor and in the Order sheet of the Tribunal it is
noted as to filing of written arguments by respondent-Insurer.
Hence, the approach of the Tribunal is not fair and proper and
thereby sustaining its reasons that there will be delay regarding
adjudication of the claim petition, is not valid and tenable.
Hence it is submitted that since the driver of the offending
vehicle was holding valid and effective driving licence as on the
date of accident, so also, the insurance of the vehicle was also
valid as on the date of accident, the Tribunal holding that
respondent No.1-owner of the tractor is liable to pay the
compensation and the respondent No.2 shall pay and recover
the same from respondent No.1 is completely error and illegal.
He further submitted that the Tribunal ought to have assessed
the income of the deceased at Rs.42,953/- per month as per
the salary certificate Exhibit P13 for the month of October,
2013. However, the Tribunal has erroneously considered the
salary certificate Exhibit P12 which is for the month of April,
2015 wherein the salary mentioned is Rs.34,153/-. His further
submission is that the Tribunal ought to have considered the
highest salary of the deceased as per Exhibit P13 at
Rs.42,953/- per month since the deceased was serving in the
Indian Army as Nayak and he was having another ten years of
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MFA No.100026/2021 C/W
MFA No.100259/2021,
service and thereby, the salary would have naturally increased
at the time of retirement. Hence, he submitted that same
requires interference in this appeal. Further, the Tribunal has
committed an error in deducting 10% of the income towards
income tax of the deceased and the deduction would be only at
Rs.730/- as per Exhibit P13 and the same is an error
committed by the Tribunal. He further submitted that the
Tribunal awarded compensation towards love and affection only
to petitioners No.1 and 2 and it ought to have awarded to
petitioners 3 and 4 also as per the decision of the Hon'ble
Supreme Court in the case of MAGMA GENERAL INSURANCE
COMPANY LIMITED v. NANU RAM AND OTHERS reported in
(2018)18 SCC 130. His further submission is that the Tribunal
awarded the interest at the rate of 6% per annum is on the
lower side and same be awarded at 12% per annum. On all
these grounds, he sought to allow the appeal.
Submission of the learned counsel for Owner of
offending Vehicle:
10. Sri Sanjay S. Katageri, learned counsel appearing
for the owner of the offending tractor-trailer submitted that the
impugned judgment and award in partly holding that the driver
of the tractor was not holding driving licence which were
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MFA No.100026/2021 C/W
MFA No.100259/2021,
produced and marked as Exhibits P8, R15 and R20 are not of
the same person and to prove the same the authorities are
required to be examined and thereby the same would delay in
adjudicating the claim petition and hence ordering for pay and
recovery of the compensation is error and illegal and against
the principles of natural justice. The learned counsel, by
adopting the arguments advanced by the learned counsel for
the claimants, would further submit that the name of the driver
is Bapuso @ Appaso Machendra Kodag and the date of birth as
20th May, 1981, same of which is also mentioned in Exhibit
R20-Driving Licence extract of the driver. It is only the place of
residence is different and the same is because of profession
and providing the address to the transport authority. Thus, the
same will not make any difference and the Tribunal has ignored
the said aspect and has erroneously concluded that the owner
of the offending tractor is liable to pay the compensation to
claimants by granting liberty to Insurer to recover the same
from owner of vehicle under the principle of 'pay and recover' is
contrary to law, facts and evidence on record and on all these
grounds sought to allow the appeal. To substantiate his
submissions, the learned counsel relied upon the Division Bench
judgment of this Court in the case of SUVARNA AND OTHERS v.
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MFA No.100026/2021 C/W
MFA No.100259/2021,
MURTUJSAB AND ANOTHER reported in 2012 ACJ 936 and the
decision rendered in MFA No.103083 of 2019 connected with
MFA No.100027 of 2020 decided on 09th September, 2022
rendered in the case of DIVISIONAL MANAGER, UNITED INDIA
INSURANCE COMPANY LIMITED v. SMT. AKKATAYI AND
OTHERS.
Submission of the learned counsel for the Insurance
Company
11. Sri S.K.Kayakamath, learned counsel appearing for
the Appellant-Insurance Company submitted that the impugned
judgment and award passed by the Tribunal is contrary to the
law and material on record. He submitted that the Tractor
bearing Registration No.KA-23/TA-6423 was alone insured with
the appellant-Insurance Company and the trailer bearing
registration No.KA-23/T-4236 was not insured. The death of
the claimants has occurred by the hit of the said uninsured
trailer, however, the Tribunal has erroneously saddled the
liability against the Insurance Company. He further submitted
that the owner of Trailer bearing registration No.KA-23/T-4236
has been arrayed as accused No.2 and he has been charge
sheeted under Section 5 read with Section 180, 146 and 196 of
the Motor Vehicles Act, 1988 for having plied the vehicle on the
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MFA No.100259/2021,
road without insurance. Exhibit P5-inquest panchanama
discloses that the right side wheel of the trailer has ran over
the head of the deceased due to which the injured succumbed
to death. Though since there is clear evidence, the Tribunal
has apportioned the negligence against the driver of the tractor
which has resulted in miscarriage of justice and hence the
impugned judgment and award is liable to be set aside. His
further submission is that the trailer is also motor vehicle within
the meaning of Section 2(45) of the Motor Vehicles Act, 1988
and as per the provisions of the said Act, the said vehicle is
required to be registered separately and accordingly registered.
When the death has occurred due to use of the trailer, the
liability fastened against the insurer of the tractor is erroneous.
Hence, the same is liable to be set aside. He further submitted
that the Appellant-Insurance Company has filed IAs.4 and 5 for
filing additional objection statements which has been rejected
by the Tribunal by order dated 09th March, 2017 on the premise
that Order VIII Rule 1 of Code of Civil Procedure is applicable to
the proceedings before the Motor Accident Claims Tribunal.
The rejection of applications is contrary to law and not
sustainable. The alleged accident has occurred on 11th May,
2015 at 8.00 pm and the complaint has been lodged on 12th
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MFA No.100259/2021,
May 2015 at 3.00 am by the wife of the deceased, is an
afterthought by falsely alleging that the Tractor has dashed to
the deceased. The averments of complaint Exhibit P1 disclose
that the deceased had been to marriage in a tractor bearing
Registration No.KA-23/TA-6423 and trailer bearing Registration
No.KA-23/T-4236, however, contrary to the averments of the
complaint, it has been pleaded that the deceased was
proceeding as a pedestrian and the Tractor has dashed to the
deceased. PW2 happens to be the brother of the petitioner
No.1-wife of the deceased and also happens to be brother of
respondent No.1-isured. The said witness, in cross-
examination, has deposed that the body of the deceased was
under the engine, which is contrary to Exhibit P5. The finding
of the Tribunal with regard to occurrence of the accident on
account of rash and negligent act of the driver of tractor is
contrary to evidence on record. The reasoning of the Tribunal
that, "once it runs with the help of insured tractor the insurer
cannot avail the liability moreover it is held already while
answering issue No.1 that the accident has occurred due to hit
by the tractor itself, the argument advanced does not hold
water", is farfetched. Learned Counsel further submits that the
Tribunal has failed to note that in order to make the insurer
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MFA No.100259/2021,
liable to pay compensation, both the tractor and trailer deserve
to be insured and if the tractor alone is insured and if it has
caused injury or damage to a third party, then alone the
insurer of the tractor is liable to pay compensation; and if the
trailer is involved in causing the accident, then the insurer of
the trailer would alone be liable. Though the death was due to
use of the trailer and trailer being uninsured, a false story has
been created stating that the tractor has hit the deceased.
Though the insured has participated in the proceedings before
the Tribunal, neither he had produced the driving licence of the
driver of the tractor nor the policy of insurance pertaining to
the trailer. The petitioner No.1 is the sister of the respondent
and there is collusion between the petitioner and respondent
insured wangling the liability against the insured by lodging
belated complaint by fabricating the facts with regard to the
occurrence of accident. The claim has been made by the wife,
minor daughter and parents of the deceased. The father
cannot be considered as dependant unless and until, contrary
has been established. The father of the deceased has not
entered into witness box to depose about his dependency on
the deceased son. If the father is excluded from the number of
dependents, then the dependents on the deceased would be
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MFA No.100026/2021 C/W
MFA No.100259/2021,
three and accordingly, deduction towards personal expenses
would be one-third instead of one-fourth made by the Tribunal.
On all these grounds, sought to allow the appeal of the
appellant-Insurance Company.
12. Having heard the arguments of the parties and on
perusal of judgment and the original records, the following
points would arise for our consideration in these appeals:
1. Whether the Tribunal is justified in holding that
the accident occurred due to the rash and
negligent act on the part of the driver of the
tractor bearing Registration No.KA-23/TA-6423?
2. Whether the Tribunal is justified holding that the
driver of the offending tractor was not holding
valid and effective driving licence, as on the date
of the accident?
3. Whether the Tribunal is justified in directing
respondent No.2-Insurance company to pay
compensation to the claimants and recover the
same from the owner of the trailer bearing
Registration No.KA-23/T-4236?
4. Whether the claimant/appellants are entitled for
enhancement of compensation?
5. What order or award?
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MFA No.100026/2021 C/W
MFA No.100259/2021,
13. Our answer to the above points is as follows for the
following reasons:
Points No.1 to 3; in the negative;
Point No.4: partly in the affirmative;
Point No.5: as per final order
REASONS
Regarding Points 1 to 3:
14. We have carefully examined the material placed
before this Court. It is the case of the petitioner/claimants that
on 11th May, 2015 at about 8.00 pm, when the said Satish was
proceeding near the garden land of Pintu Kadam at Yalihadlagi
village, the driver of the tractor bearing Registration No.KA-
23/TA-6423 drove the same at high speed and in a rash and
negligent manner and dashed to Satish. Due to the impact,
Satish suffered grievous injuries and died. It is stated that
petitioners spent Rs.50,000/- towards funeral expenses and
transportation of the dead body. It is further stated that prior
to accident deceased Satish was hale and healthy and was aged
35 years. He was working in Army and getting salary of
Rs.50,000/- per month along other benefits. Due to sudden
death petitioner No.1 has lost her husband, petitioner No.2 has
lost her father and petitioners 3 and 4 have lost their loving
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MFA No.100026/2021 C/W
MFA No.100259/2021,
son. The owner of Trailer filed his written statement
contending that the driver of the tractor was holding valid
driving licence as on the date of accident and the tractor was
insure with the respondent No.2-Insurance Company. Hence,
is not liable to pay the compensation to claimants. The
respondent No.2-Insurance Company contended that the trailer
was not insured. The accident occurred due to involvement of
trailer as per Exhibit P5-inquest panchanama and the Driver of
the tractor was not holding valid and effective driving licence as
on the date of accident and hence the Insurance Company is
not liable to pay the compensation.
15. On perusal of material placed before this Court,
makes it clear that on the basis of complaint filed by one Smt.
Chaya, Aigali Police have registered a case in Crime No.57 of
2015 against an unknown driver of tractor bearing Registration
No.KA-23/TA-6423 and Trailer bearing Registration No.KA-
23/T-4236 for commission of offence punishable under Sections
279 and 304-A and Section 134 and 187 of Indian Penal Code
and submitted First Information Report to the Court.
Thereafter, police rushed to the spot and conducted spot
panchanama, inquest panchanama, obtained motor vehicle
inspection report, Post-mortem report and recorded the further
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MFA No.100026/2021 C/W
MFA No.100259/2021,
statement of complainant as to the identification of the accused
by name Bapusa Machendra Kodage and recorded statement of
witnesses and on thorough investigation, the Investigating
Officer submitted charge sheet against the driver of tractor
bearing Registration No.KA-23/TA-6423 and Trailer bearing
Registration No.KA-23/T-4236 for commission of offence
punishable under Sections 279 and 304-A and Sections 134 and
187, Sections 3 read with 181 of Motor Vehicles Act and
Section 5 read with Section 180 and Sections 146 read with
Section 196 of Motor Vehicles Act, 1988. Apart from this
documentary evidence, the complainant Smt. Chaya was
examined as PW1. Chandrakanth Sadashiva Kadam, who is
shown as eye-witness in the charge sheet as CW9, is examined
as PW2. RW1-Nitin Shenoy, has not deposed anything against
the charge sheet submitted by the Investigating Officer.
During his cross-examination, he has clearly admitted that in
the charge sheet it is alleged that due to hit by the tractor
engine the accident occurred. RW1-Bapusa @ Appusa S/o
Machendra Kodage, the driver of tractor bearing Registration
No.KA-23/TA-6423, has deposed in his evidence admitting the
accident and also the death of Satish Latane in the accident.
During the course of cross-examination also he has clearly
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MFA No.100026/2021 C/W
MFA No.100259/2021,
admitted that the Investigating Officer has submitted charge
sheet against him as to the rash and negligent act on the part
of the driver. RW3-owner of the tractor has clearly admitted in
his evidence that Satish Latane died in this accident due to
involvement of tractor bearing Registration No.KA-23/TA-6423.
Considering all these oral and documentary evidence, the
Tribunal has come to the conclusion that the accident occurred
due to rash and negligent act on the part of the driver of the
tractor. The learned counsel appearing for the appellant-
Insurance Company submitted that Exhibit P1 discloses that the
deceased was travelling in Tractor KA-23/TA-6423 and Trailer
No.KA-23/T-4236. Contrary to averments of the complainant,
it has been pleaded that the deceased was proceeding as
pedestrian and the tractor dashed to the deceased. Further he
submitted that, in column 7 of Exhibit P5-inquest panchanama,
it was answered that the right side wheel of the trailer has run
over the head resulting in deceased sustaining grievous injuries
on head and succumbed to the injuries. The Tribunal has not
observed anything about the same.
16. We have carefully examined the contents of Exhibit
P1-complaint in which there is no reference that the deceased
had been to marriage in the tractor bearing Registration No.
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MFA No.100026/2021 C/W
MFA No.100259/2021,
KA-23/TA-6423 and hence the arguments advanced in this
regard cannot be accepted. In inquest panchanama-Exhibit P5
at column 7 also there is no reference that right side wheel of
the trailer has run over the head of the deceased. Moreover,
the contents of the complaint or the contents of inquest
panchanama are not material evidence to show that the
deceased died due to hit by the trailer. It is the legal duty of
the Investigating Officer to investigate as to the cause of the
accident. Accordingly, the Investigating Officer has
investigated the case, recorded the statement of eye-witnesses
and submitted charge sheet against the driver of the tractor
alleging that the accident occurred due to rash and negligent
act on the part of the driver of the tractor. Additionally, one of
the eye-witnesses who is shown as CW9 examined by the
petitioners as PW2, has clearly deposed that the driver of the
tractor drove the same in rash and negligent manner and hit to
Satish Latane, who was proceeding towards the left side of the
road and caused accident. During the course of cross-
examination of PW2, respondent-Insurance Company has not
denied that he was not the eye-witness to the accident. The
driver of the tractor himself examined before the Tribunal as
RW1 and the owner of the trailer was examined as RW2. Both
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MFA No.100026/2021 C/W
MFA No.100259/2021,
have clearly admitted that the deceased died due to the
accident as the tractor bearing No. KA-23/TA-6423 hit the
deceased. RW1-Officer of the Insurance Company has also
clearly admitted as to the charge submitted by the
Investigating Officer. Considering all these material evidence
on record, the Tribunal has rightly come to the conclusion that
the accident occurred as the driver of the tractor, who drove
the same in rash and negligent manner hit to Satish Latane
who was proceeding on the left side of the road, and caused
accident. During the course of cross-examination of PW2 by
the respondent-Insurance Company, he has not denied that he
is not eye-witness to the accident. The driver of tractor, was
examined before the Tribunal as RW1 and the owner of the
vehicle was examined as RW2. Both of them have clearly
admitted that the deceased died due to the accident as the
tractor bearing Registration No. KA-23/TA-6423 hit the
deceased. RW1-Officer of the Insurance Company, has also
clearly admitted as to the charge sheet submitted by the
Investigating Officer. Considering all these material evidence,
the Tribunal has rightly come to the conclusion that the
accident occurred as the driver of the tractor hit the deceased
who was going towards left side of the road. The insurance
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MFA No.100026/2021 C/W
MFA No.100259/2021,
Company has also not placed any material before this Court to
show that the said accident occurred due to involvement of
trailer, which was attached to the Tractor and therefore, the
argument advanced on behalf of the insurance company cannot
be accepted.
17. With regard to validity of the driving licence of the
driver of the offending tractor is concerned, the Insurance
Company has strongly raised objection that the investigating
officer has filed charge sheet against the driver of the tractor
for the commission of offence punishable under Section 3 read
with 181 of Motor Vehicles Act, 1988 and also charged sheeted
the owner of the tractor for the offence punishable under
Section 5 read with 180 of Motor Vehicles Act, 1988 for
entrusting the vehicle to the person who had no valid and
effective driving licence to drive the vehicle and also charge
sheeted the owner of the trailer for the offence punishable
under Section 146 read with 196 of Motor Vehicles Act, 1988
who failed to insure the trailer as on the date of accident. On
all these grounds, it was argued that the insurance company is
not liable to pay the compensation.
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MFA No.100026/2021 C/W
MFA No.100259/2021,
18. RW2-Owner of the vehicle, has specifically stated
that the driver of the tractor was having valid and effective
driving licence as on the date of accident. Only on technical
ground as to the discrepancy between Exhibits R15 and R20,
the Tribunal has rejected Exhibit R20 the document issued by
the public authority which is contrary to law. A perusal of
Exhibit R20 which is issued by Deputy Regional Transport
Officer, Beed, which also bears the seal and signature of the
concerned authority, reveals that the age, name of the person
in whose name the driving licence is issued, is Appashiva
Kodage Machendra Kodge and the date of birth is shown as 20th
May, 1981. The address is shown as A/P Saidapura, Taluk
Georai, District Beed-431 127 and the driver has obtained
driving licence for non-transport Hazardous vehicle from 01st
August, 2017 to 31st October, 2017 and for driving transport
vehicle 30th August, 2016 to 29th August, 2019. This Driving
licence was issued on 01st August,, 2007 by Deputy Regional
Transport Office, Beed, MH-23. To substantiate this document,
owner of the vehicle Pintu Kadam Sadashiva was examined as
RW3. In his evidence, he has clearly stated that the driver of
the tractor-Bapusa @ Appusa S/o Machandra Kodge was having
valid driving licence as per Exhibit R20. He has also produced
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MFA No.100026/2021 C/W
MFA No.100259/2021,
Exhibit R19 Aadhar card of the driver of the vehicle. Exhibit
R19(a) reveals that the said Aadar Card is pertaining to Bapusa
Urf Appusa Machendra and the date of birth is shown as 20th
May, 1981 and the number of 5353 6604 7028. RW2 has
clearly stated in his evidence that he has produced these
documents before police, however, the police have submitted
the charge sheet alleging that the driver of the tractor was not
having valid and effective driving licence without perusal of
these documents. A careful examination of material placed
before this Court, reveals that the Investigating Officer has not
issued notice under Section 133 of Motor Vehicles Act, 1988.
Soon after the accident, as per the provisions of Motor Vehicles
Act, 1988, it is the duty of the Investigating Officer to issue
notice to the owner of the vehicle to ascertain the name and
address of the of the Driving Licence and Registration
Certificate. Unfortunately, the Investigating Officer has not
taken any legal steps as required under Section 133 of the
Motor Vehicles Act, 1988. The appellant-Insurance Company
has also not placed any material to show that whether the
Investigating Officer has complied with the provisions of
Section 133 of Motor Vehicles Act, 1988 or not. Additionally, in
view of Rule 232 of Chapter-VII of Karnataka Motor Vehicle
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MFA No.100026/2021 C/W
MFA No.100259/2021,
Rules, 1989, it shall be the duty of the Divisional Manager or
the Branch Manager of the Insurance Company, as
expeditiously as possible, to:
"232. Duties of Insurance Company.-
It shall be the duty of the Divisional Manager or the
Branch Manager of the Insurance Company, as
expeditiously as to/-
(a) move an application in Form 63 before the
Investigating Police Officer with prescribed fees, if
any and gather full information about the
accident, at the earliest, after receiving
information about it, or on receipt of notice from
the Claims Tribunals under Rule 235;
(b) ascertain and verify facts about insurance of motor
vehicle(s) involved in the accident and confirm the
same to the Claims Tribunal within thirty days of
receiving notice of the claim case;
(c) move application before the concerned registering
authority in Form 63-A and gather information
about the motor vehicle(s) involved, and the
driving licence(s) held by the driver(s) thereof as
per details mentioned in Form 63-B;
(d) deposit with the written statement in the Claims
Tribunal, the amount equivalent to the
compensation, awardable on the principle of no
fault liability under Section 140 of the Act in such
cases where the information received in Form 63
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MFA No.100259/2021,
confirms death or permanent disability to have
been caused as a result of the use of the motor
vehicle covered by the insurance certificate/policy
issued by it."
19. In the instant case, the Insurance Company has not
placed any material to show as to the compliance of mandatory
provisions of Rule 232 of Karnataka Motor Vehicles Rules. The
Insurance Company has not placed any material to discard the
public document issued by the public authority, which is having
presumptive value under the provisions of Section 114(e) of
Indian Evidence Act, 1872. However, ignoring all these
aspects, the Tribunal has committed an error in coming to the
conclusion that the genuineness or authenticity of the driving
licence produced by the driver which is marked as Exhibit R15
and the licence which is produced as Exhibit R20, are to be
adjudicated after summoning the authorities who have issued
the same and further evidence to be verified as to whether
Exhibit R20 was issued to the driver of the offending tractor or
to some other person. The Motor Vehicles Act, 1988 claim
petitions have to be adjudicated summarily as contemplated
under Rule 241 of Karnataka Motor Vehicle Rules, 1989. It is
well settled principle of law that the strict proof of evidence is
not at all required in a motor vehicle accident claim case.
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MFA No.100026/2021 C/W
MFA No.100259/2021,
Though owner of the vehicle, who is competent to produce the
document, has produced Exhibits R19 and R20, and the
complaint PW1 has also identified this accused before the police
and the Investigating Officer has recorded the further
statement of the complainant as per Exhibit P7, the Tribunal
has ignored this material evidence and come to the conclusion
that the driver of the tractor was not having valid and effective
driving licence as on the date of accident, which is contrary to
evidence on record.
20. The evidence of RW2 and contents of Exhibit R20
reveals that the driver of the offending tractor was having valid
and effective driving licence as on the date of accident.
Therefore the question of driver driving the offending vehicle
without valid and effective driving licence as on the date of
accident, does not arise, so also, entrustment of offending
tractor to an unauthorized person who was not holding valid
and effective driving licence, also does not arise. The evidence
placed before the Tribunal establishes that the driver of the
offending tractor was having valid and effective driving licence
as on the date of accident. Hence, without applying the
mandatory provisions of Section 133 of the Motor Vehicles Act,
1988, the Investigating Officer has mechanically submitted the
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MFA No.100026/2021 C/W
MFA No.100259/2021,
charge sheet against the driver and owner of the tractor and
trailer for the offence punishable under Sections 3 read with
181 of Motor Vehicles Act, 1988 and Sections 5 read with 180
of the Motor Vehicles Act, 1988, which are unsustainable under
law.
21. On careful reappreciation, re-examination and re-
consideration of the entire evidence on record, this Court holds
that the Tribunal is not justified in holding that the driver of the
offending tractor was not having valid and effective driving
licence as on the date of accident, since the evidence placed
before this Court establishes that as the driver of the offending
tractor was having valid and effective driving licence, the
question of violation of terms of policy conditions does not
arise. Accordingly, directing respondent No.2-Insurance
Company to satisfy the award, with liberty to it to recover the
same from the owner of the tractor under the principle of 'pay
and recover', does not arise. The learned Counsel for the
appellant-Insurance Company vehemently submitted that the
accident occurred due to involvement of trailer which was
uninsured and hence the insurance company is not liable to pay
the compensation. In this regard, the Tribunal as well as this
Court, has held that the accident occurred due to negligent act
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MFA No.100026/2021 C/W
MFA No.100259/2021,
on the part of the driver of the offending tractor bearing
Registration No.KA-23/TA-6423. Hence, on this ground also
the Insurance Company cannot escape from its liability.
Accordingly, we answer points 1 to 3 in the negative.
Regarding Point No.4:
22. With regard to loss of dependency is concerned, the
Tribunal has rightly held that the age of the deceased was 34
years as on the date of accident as the date of birth of the
deceased was 01st June, 1981 as per salary certificate. The
Tribunal has assessed the income of the deceased at
Rs.34,153/- per month. Exhibit P10 is the salary certificate in
respect of the deceased, which shows that the Salary of the
deceased was Rs.34,153/- per month as on 11th May, 2015.
Exhibit P11 is the certificate issued by the Major, Record Officer
for OIC records which reveals as to the date of birth, date of
enrolment, date of death, date of SOS, Service upto date of
death, length of qualifying service and the last Rank and
Promotion Date. During the course of cross-examination of
PW1, she has admitted that the deceased was demoted after
2013, thus he earned less salary as per Exhibit P12. As per
Exhibit P12 which is the statement of account for the month
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MFA No.100026/2021 C/W
MFA No.100259/2021,
ending April, 2015, the gross salary of the deceased was
Rs.34,153/-. Accordingly, the Tribunal has assessed the same,
which is in conformity with the contents of Exhibit P12 and the
same does not call for interference by this Court. The Tribunal
has rightly added 50% to the income of the deceased towards
future prospects as he was in permanent job. The petitioners
have not placed any material as to the exemption from income-
tax out of the salary of the deceased. Considering the gross-
salary of the deceased at Rs.34,153/- per month comes to
Rs.4,09,836/- per annum. The Tribunal has observed that for
the financial year 2014-15, there is no income tax for the
income of Rs.2,50,000/- and then the taxable income of the
deceased would be Rs.1,59,836/- and 10% of it, i.e.
Rs.15,984/- of it is deducted towards income tax, then the total
income would be Rs.3,93,852/- and if 50% of it is added
towards future prospects, then the total annual income of the
deceased would be Rs.5,90,778/-. With regard to dependency,
the learned counsel for the Insurance Company submitted that
the claim has been made by wife, minor daughter and parents
of the deceased, of which the father of the deceased cannot be
considered as dependent, unless and until, contrary has been
established. But this argument cannot be accepted in view of
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MFA No.100026/2021 C/W
MFA No.100259/2021,
the decision of the Hon'ble Supreme Court in the case of N.
JAYASHREE v. CHOLAMANDALAM MS GENERAL INSURANCE
COMPANY LIMITED rendered in Civil Appeal No.6451 of 2021
arising out of SLP(C) No.14558 of 2019 decided on 25th
October, 2021. Accordingly, in the case on hand, since there
are four dependents, one-fourth has to be deducted towards
personal and living expenses of the deceased and the Tribunal
has rightly deducted and the annual income of the deceased
would be Rs.4,43,085/-. Accordingly, the loss of dependency
would come to Rs.70,89,360 (Rs.4,43,085/- x 16). Considering
the parental, filial and spousal consortium, as per the decision
of the Hon'ble Supreme Court in the case of MAGMA GENERAL
INSURANCE COMPANY LIMITED v. NANU RAM AND OTHERS
reported in (2018)18 SCC 130. Accordingly, the claimants are
entitled for modified compensation as under:
Sl.No. Head Amount (in Rs.)
1. Loss of dependency 70,89,360.00
2. Loss of consosrtium (Rs.40,000 x
1,60,000.00
4)
3. Loss of estate 15,000.00
4. Towards transportation of dead
15,000.00
body and funeral expenses
Total 72,79,360.00
In the result, we answer point No.4, partly in the affirmative.
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MFA No.100259/2021,
Regarding Point No.5:
23. For the reasons aforestated, we proceed to pass the
following:
ORDER
1. MFA No.100026 of 2021 preferred by the
appellant-Insurance Company is dismissed;
2. MFA No.101043 of 2022 preferred by the owner
of the vehicle is allowed. The liability fastened
on the owner of the vehicle under the principle of
pay and recover is set aside and the Insurance
Company is directed to deposit the entire award
amount with accrued interest. Amount, if any,
deposited by the appellant, be refunded to him in
accordance with law;
3. MFA No.100259 of 2021, preferred by the
claimants is allowed in part holding that the
claimants are entitled for total compensation of
Rs.72,79,360/- as against Rs. 67,59,408/-. The
enhanced compensation shall carry interest at
the rate of 6% per annum from the date of
petition till realisation;
4. Amount in deposit shall be transmitted to the
Tribunal forthwith;
5. Apportionment and disbursement of the
compensation amount shall be as per the award
of the Tribunal;
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MFA No.100026/2021 C/W
MFA No.100259/2021,
6. Draw modified award accordingly;
7. Registry to transmit the trial court records along
with the copy of this judgment to the concerned
court forthwith for onward disbursal of award
amount to the claimants.
Sd/-
JUDGE
Sd/-
JUDGE
LNN
