Karnataka High Court
Smt. Godabai And Ors vs Sri. Goudappa And Anr on 4 June, 2024
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MFA No. 201022 of 2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MFA NO. 201022 OF 2018 (MV-D)
BETWEEN:
1. SMT. GODABAI
W/O SIDHANGOUDA POLICE BIRADAR,
AGED: 35 YEARS, OCC:COOLIE,
THROUGH HER HUSBAND ACTING AS NEXT FRIEND
NAMELY
SRI.SIDHANGOUDA
S/O AYYAPPAGOUDA POLICE BIRADAR,
AGE:45 YEARS, OCC:AGRICULTURE,
R/O JAMBERAL VILLAGE, TQ.JEWARGI,
DISTRICT: KALABURAGI
Digitally signed SINCE DECEASED BY HER LRS.
by VARSHA N
RASALKAR
Location: HIGH A) SIDHANGOUDA
COURT OF
KARNATAKA S/O AYYAPPAGOUDA POLICE BIRADAR
AGE: 49 YEARS, OCC:AGRICULTURE.
B) SMT.KAREMMA
D/O SIDHANGOUDA POLICE BIRADAR,
AGE: 27 YEARS, OCC:HOUSEHOLD.
C) AYYANGOUDA
S/O SIDHANGOUDA POLICE BIRADAR,
AGE: 25 YEARS, OCC:AGRICULTURE.
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MFA No. 201022 of 2018
D) MADIVALAPPA
S/O SIDHANGOUDA POLICE BIRADAR,
AGE: 23 YEARS, OCC:AGRICULTURE.
E) BHIMARAYA
S/O SIDHANGOUDA POLICE BIRADAR,
AGE: 21 YEARS, OCC:STUDENT.
F) SMT.DODDAMMA
D/O SIDHANGOUDA POLICE BIRADAR,
AGE: 20 YEARS, OCC:STUDENT,
ALL ARE RESIDENT OF VILLAGE JAMBERAL,
TQ.JEWARGI, DISTRICT: KALABURAGI.
...APPELLANTS
(BY SRI. B M KINIKERI, ADVOCATE)
AND:
1. SRI. GOUDAPPA
S/O KAREPPA BIRADAR,
AGE: MAJOR, OCC: BUSINESS,
R/O JAMBERAL VILLAGE, TQ.JEWARGI,
DISTRICT: KALABURAGI - 585 013,
(OWNER OF BOLERO CAMPER BEARING
REG.NO.KA.32/B/0554)
2. SHRIRAM GEN. INSURANCE CO. LTD.
THROUGH ITS MANAGER,
E-18, EPIP, RIICO, SITAPUR, JAIPUR,
RAJASTHAN-302 022.
(INSURER OF BOLERO CAMPER BEARING REG.NO.KA
32/B/0554)
...RESPONDENTS
(BY SRI. SUBHASH MALLAPUR, ADVOCATE FOR R2;
NOTICE TO R1 HAS BEEN DULY DELIVERED )
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MFA No. 201022 of 2018
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO THE JUDGEMENT AND AWARDED DATED 3RD DAY
OF FEBRUARY 2018 PASSED BY THE SENIOR CIVIL JUDGE,
JMFC AND MACT AT JEWARGI IN MVC NO.1113/2014 MAY
KINDLY BE SET-ASIDE AND THE TOP NOTED APPEAL MAY
KINDLY BE ALLOWED AND AWARD THE COMPENSATION AS
PRAYED IN THE CLAIM PETITION IN THE INTEREST OF
JUSTICE.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY RAJESH RAI K J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment dated
03.02.2018 passed in MVC No.1113/2014 on the file of the
Senior Civil Judge, JMFC and MACT at Jewargi, (henceforth
referred as 'Tribunal'), wherein the Tribunal dismissed the
claim petition filed by the petitioners under Section 166 of
M.V.Act.
02. Parties to the appeal shall be referred to as per
their status before the tribunal.
03. The facts giving rise to the filing of the appeal
briefly stated are that:
The case of the original claimant/deceased
Smt.Godabai is that, on 12.01.2014 at about 09.00 a.m.,
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she along with one Muttappagouda were returning to
house after purchasing kirana articles at Jamberal village.
When they were moving on the left side of the road near
Goudappa Sadhu Mutt of Jamberal village on Jamberal-
Kadakola public road, the driver of Bolero-Camper vehicle
bearing registration No.KA-32/B-0554, drove it in a rash
and negligent manner, so as to endanger to the human life
from the back side and suddenly took the turn and slightly
dashed to the claimant/deceased. At the same time, the
cotton bag loaded in the Bolero-Camper vehicle fell on the
neck portion of the claimant. Due to the said impact,
claimant/deceased sustained grievous injuries on her head
and back and she becomes unconscious. Immediately, she
was shifted to BLDE Hospital, Bijapur for medical
treatment. On the same day, she was referred to SP
Institute of Neuroscience Hospital, Solapur for higher
treatment. She obtained treatment from 12.01.2014 to
31.03.2014 as an in-patient. She also sustained fracture of
C-6, C-5 and C-7 disc with hard compression and also
sustained injuries on other parts of the body and
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undergone cervical operation. The claimant spent huge
amount for the medical treatment. Due to the financial
crisis and inability on the part of the family members for
the treatment, doctor advised the claimant to discharge
from the hospital and to take treatment from home. After
discharge, the claimant obtained treatment in the home
and visited to Hospital time and again for follow-up
treatment till her death. Inspite of all treatment provided
to claimant/deceased Godabai succumbed to the fatal
injuries sustained in the said accident and the deceased
Godabai confined to bed as she become crippled and spent
more than Rs.10 Lakhs for the treatment.
04. It is claimed that the deceased was aged about
35 years and hale and healthy, at the time of accident and
earning Rs.300/- per day by doing coolie work. The
petitioners alleged that the accident was due to the rash
and negligent driving by the driver of the offending
vehicle. Therefore, the original claimant/deceased filed
claim petition on 05.12.2014 under Section 166 of the
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Motor Vehicles Act, claiming compensation. Subsequently,
she succumbed to the injuries on 17.03.2015 and her legal
heirs i.e., the petitioners/appellants herein brought on
record and they pursued the claim petition.
05. After service of notice, respondent No.1
appeared through his counsel, however did not file any
objections. Respondent No.2-Insurance Company
appeared and filed written statement denying the contents
of claim made by the petitioners. Respondent No.2 also
denied occurrence of the accident due to rash and
negligent driving on the part of driver of offending vehicle
owned by the respondent and also sustaining of injuries in
the accident. It is specifically contended that there is an
unexplained inordinate delay of 10 days in registering the
FIR. It is also contended that, the claimant sustained
injuries in the road accident, MLC is not registered. It is
further contended that a false case was registered and
false charge sheet was filed by implicating the offending
vehicle by the husband of claimant/deceased and owner of
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vehicle, in collusion with the police officials in order to get
the compensation and sought for dismissal of the claim
petition.
06. On the basis of pleadings, the Tribunal framed
relevant issues for consideration.
07. In order to substantiate the contention of claim
petition, the husband of original claimant/deceased who
was prosecuted the case as a next friend and now
petitioner No.1 was examined as PW.1 and also examined
three witnesses as PWs.2 to 4 and got marked 27
documents as Exs.P.1 to P27. The respondent-Insurance
Company examined its official as RW.1 and got marked 5
documents as Exs.D1 to D5.
08. The Tribunal, after recording the evidence and
considering the material on record, dismissed the claim
petition.
09. Being aggrieved by the dismissal of claim
petition, the petitioners are before this Court seeking to
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set aside the judgment and award passed by the tribunal
and allow the petition by awarding compensation.
10. The learned counsel for the petitioners
contended that the Tribunal committed an error in
dismissing the petition against the oral and documentary
evidence placed by the petitioners. The Tribunal has failed
to consider the FIR, charge sheet, pleading by the driver
of the owner of Bolero-Camper bearing registration No.KA-
32/B-0554 and discharge certificate issued by S.P.
Institute of Neuro Science Solapur dated 12.01.2014,
wherein the said hospital registered a MLC case and issued
MLC report to the concerned police, but the police have
failed to record the statement of injured Godabai. The
complaint is registered before the Yadrami police on
22.01.2014. This being the case, the Tribunal ought to
have taken into consideration the claim of the petitioners
and awarded the compensation. Further, it is submitted
that the Court below has failed to consider the evidence of
PW.3, the doctor of S.P. Institute of Neuro Sciences
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Solapur, who has categorically stated before the Court on
oath that the hospital authority has issued MLC to the
concerned Police. Therefore, the deceased claimant or her
attendants/legal heirs cannot be blamed for non-
registration of MLC case. The Court below has failed to
consider this aspect and dismissed the claim petition.
Hence, the judgment and award under appeal requires re-
consideration by this Court. Accordingly, he prays to allow
the appeal by awarding just and reasonable compensation.
11. Per contra, learned counsel for the respondent
No.2-Insurance Company supports the impugned
judgment and award passed by the tribunal and submits
the same does not call for any interference. Accordingly,
he prays to dismiss the appeal.
12. We have perused the records and considered
the submission made by the learned counsel for the
parties.
13. The following points that arise for our
consideration are :-
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i) Whether the tribunal has committed an
error in dismissing the claim petition filed
by the claimant/deceased by holding that
the deceased Godabai not succumbed due
to the injuries caused in a road traffic
accident dated 02.01.2014 due to the rash
and negligent driving of driver i.e., Bolero-
Camper bearing registration No.KA-32/B-
0554 while she was walking on the side of
the road?
ii) Whether the appellants/petitioners are
entitled for compensation as sought for?
iii) What order?
14. Point No.1: We have gone through the
materials placed by the petitioners before the tribunal. IN
order to substantiate the accident in question due to the
rash and negligent driving by the driver of the vehicle and
the sustaining of grievous injuries by the deceased
Godabai due to the said accident, the petitioners examined
four witnesses on their behalf and also got marked 27
documents. On careful perusal of the evidence and
documents, the Ex.P1 is the FIR registered by Yadrami
Police station in Crime No.10/2014 on 22.01.2014
pertaining to the alleged accident occurred on 12.01.2014
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at about 9.00 a.m., Jamberal village. Though there is an
delay of 10 days in lodging the said complaint, the
complainant explained the said delay in the complaint at
Ex.P2 stating that immediately after the accident, the
injured was shifted to hospital at Bijapur and as per the
advise of the doctor, she was shifted to Solapur for further
treatment. Accordingly, the injured was shifted there. As
such the delay is caused while lodging the complaint. The
jurisdictional police after registering the FIR, investigated
the matter by drawing spot panchanama and also seized
the vehicle in question under the mahazar. Finally, the
charge sheet has been laid against the driver of the
offending vehicle for the offence punishable under Section
279, 337 of IPC and Section 187 of IMV Act. Nevertheless,
the driver of the offending vehicle pleaded guilty before
the Magistrate in C.C.No.484/2014 on 20.11.2014 and he
has been convicted for the aforesaid offences by imposing
cost. Such being the scenario, mere delay in lodging the
complaint itself is not a ground to reject the claim petition.
Further, the Hon'ble Supreme Court in the case of 'RAVI
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VS. BADRINARAYAN AND OTHERS', reported in
(2011) 4 SCC 693, has held that delay in lodging the
First Information Report cannot be a ground to doubt the
claimants case in genuine cases. It has further been held
that in Indian conditions it is not expected that a person
who would rush to police station after the accident and the
treatment of the victim is given priority over lodging of the
First Information Report. In such circumstance, we are of
the view that the tribunal erred in dismissing the petition
holding that the deceased Godabai sustained injuries due
to the others reasons and not in the road accident and
that the petitioners, being her family members and owner
of the vehicle in collusion with the police official managed
to plant the vehicle owned by respondent No.1 in order to
get compensation which was not arisen out of the road
accident.
15. The tribunal neither considered the documents
more particularly the FIR, complaint, charge sheet placed
by the petitioners so also the evidence of PWs.1 to 4.
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Apart from that, the charge sheet filed by the respondent-
police has been not challenged by the Insurance Company.
Such being the scenario, we are unable to accept the
reasoning assigned by the tribunal for dismissing the claim
petition. Accordingly, we answer Point No.1 in the
affirmative.
16. Point No.2: The petitioners have placed
sufficient materials before the tribunal to prove the rash
and negligence act on the part of the driver of the Bolero-
Camper. The tribunal has ignored the provisions of Section
166 of M.V.Act, 1988. Section 166 of the Motor Vehicle
Act offers a pathway to justice for those affected by road
accidents. It ensures that victims or their families can seek
compensation through the Motor Accident Claims Tribunal
(MACT), regardless of where they or the defendant reside.
Further, Ex.P7, is the certified copy of Injury certificate of
deceased Godabai which shows that she has sustained C-6
compression fracture with contusion due to fall of cotton
bag on her head while walking on the street at Jamberal
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Village. Hence, an injury is a harm suffered by a person
due to some act or omission done by another person, and
can generally give rise to a civil tort claim or a criminal
prosecution. An injury or harm done is also an essential
element of unintentional torts. Instead of deciding the fact
as to the quantum of compensation, the tribunal has given
much importance about the delay in lodging the complaint
so also on the MLC report which is not correct and proper.
It is also not in dispute that the offending vehicle is
insured with respondent No.2 as on the date of the
accident.
17. As we already answered point No.1 in the
affirmative insofar as the quantum of compensation is
concerned, the deceased was aged 35 years as on the
date of the accident. It is contended that the deceased
was doing coolie work and earning Rs.3,600/- p.m. In
support of the contention, the petitioners have not
tendered any evidence.
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18. In the absence of any evidence or proof of
income, the notional income has to be assessed as per the
guidelines issued by the Karnataka State Legal Services
Authority. Since the accident has taken place in the year
2013, the notional income has to be taken at Rs.7,500/-
p.m. as per chart. In view of the law laid down by the
Constitution Bench of the Supreme Court in National
Insurance Co., Ltd., vs. Pranay Sethi and others
reported in AIR 2017 SC 5157, to the aforesaid amount,
40% has to be added on account of future prospects as
the deceased was aged about 35 years. Thus, the monthly
income comes to Rs.10,500/-. Out of which, it is
appropriate to deduct 1/4th towards personal expenses and
therefore, the monthly income comes to Rs.7,875/-
(10,500-2625).
19. As on the date of the accident, the deceased
was aged 35 years, as per the decision of Hon'ble Apex
Court in the case of SARLA VERMA (SMT) & OTHERS
VS. DELHI TRANSPORT CORPORATION & ANOTHER,
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reported in (2009) 6 SCC 121, the multiplier applied to
the age group of the deceased is 16. Therefore, the
petitioners are entitled to a sum of Rs.15,12,000/-(7,875/-
x 12 x 18) on account of loss of dependency.
20. Thus, the petitioners are entitled to
compensation of Rs.15,12,000/- on account of 'loss of
dependency'.
21. In addition, the petitioners are entitled to
Rs.15,000/- on account of 'loss of estate' and Rs.15,000/-
on account of 'funeral expenses'.
22. In view of the law laid down by the Hon'ble
Supreme Court in Magma General Insurance Company
Limited vs. Nanu Ram Alias Chuhru Ram & Others
reported in 2018 ACJ 2782, each of the petitioners are
entitled for compensation of Rs.40,000/- each under the
head of 'loss of consortium', which comes to Rs.2,40,000/-.
23. Thus the petitioners are entitled to a total
compensation of Rs.17,82,000/-. Accordingly, we answer
point No.2 partly affirmative.
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24. Point No.3: For the aforesaid reasons and
discussions, we proceed to pass the following;
ORDER
(a) The appeal is allowed in part.
(b) The impugned judgment and award
passed by the Tribunal is set aside.
(c) The petitioners are entitled to a total
compensation of Rs.17,82,000/- along
with interest at the rate of 6% p.a. from
the date of claim petition till the date of
realization of amount.
(d) The respondent Nos.1 and 2 are liable to
pay compensation to the petitioners.
(e) The respondent No.2-Insurnce Company
is directed to deposit the enhanced
compensation within a period of two
months from the date of receipt of a
certified copy of this judgment.
(f) Out of the compensation amount, 50%
shall be released in favour of petitioner
No.1 on proper identification, balance
50% of the amount shall be kept in fixed
deposit in any nationalized bank for a
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period of three years and after expiry of
period, they shall entitled for withdraw the
amount with accrued interest thereon.
(g) Draw award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
msr
CT;BN
