Karnataka High Court
Ameensab S/O Kashimsab Shaikh @ Halli vs Durgavati B. Pande on 6 June, 2024
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MFA No. 200470 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO.200470 OF 2019 (MV-D)
BETWEEN:
1. AMEENSAB
S/O KASHIMSAB SHAIKH @ HALLI
AGE: 58 YEARS, OCC: COOLIE,
R/O BASAVAN HATTI, TQ. B. BAGEWADI,
DISTRICT: VIJAYAPURA,
NOW AT DOBALE GALLI,
VIJAYAPURA-586 101.
2. FATIMA
W/O AMEENSAB SHAIKH @ HALLI
AGE: 53 YEARS, OCC: HOUSEHOLD,
Digitally signed R/O BASAVAN HATTI,
by VARSHA N
RASALKAR TQ. B. BAGEWADI, DIST. VIJAYAPURA,
Location: HIGH NOW AT DOBALE GALLI, VIJAYAPURA-586 101.
COURT OF
KARNATAKA ...APPELLANTS
(BY SRI. B.K.HIREMATH, ADVOCATE)
AND:
1. DURGAVATI B. PANDE
AGE: MAJOR, OCC: BUSINESS,
OWNER OF THE VEHICLE
TRUCK No.MH-46/H-1530,
R/O H.NO.94/2013, SECTOR NO.6,
A/P KALAMABALI, TQ: PANVEL,
DISTRICT: RAIGAD-410206,
(MAHARASHTRA STATE).
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MFA No. 200470 of 2019
2. THE AUTHORIZED OFFICER
RELIANCE GENERAL INSURANCE CO. LTD.,
LOCAL BRANCH OFFICE,
JOD GUMMAT ROAD,
GOVT. HIGH SCHOOL CAMPUS,
VIJAYAPURA - 586 101.
...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADV. FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO CALL FOR THE RECORDS SET ASIDE THE
JUDGMENT AND AWARD PASSED BY THE MOTOR ACCIDENT
CLAIMS TRIBUNAL-III AT VIJAYAPURA IN MVC NO.98/2015 ON
DATED 17.01.2019 BY DISMISSING THE CLAIM PETITION
FILED BY THE APPELLANTS AND THIS HON'BLE COURT BE
PLEASED TO AWARD THE COMPENSATION OF RS.48,62,000/-
WITH INTEREST AS PRAYED FOR, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY RAJESH RAI K J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed against the judgment and order
dated 17.01.2019 passed in MVC No.98/2015 on the file of
the MACT-III Vijayapura, (henceforth referred as
'Tribunal'), wherein the Tribunal dismissed the claim
petition filed by the petitioners under Section 166 of
M.V.Act.
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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:
On 17.05.2013 the deceased in this case
Sri.Mohammed Rafiq was proceeding on motorcycle
bearing registration No.MH-46/T-4503 on duty from
Panvel Tapal Naka towards Palasve town. While
proceeding so he came near Patanoli Phata on JNPT
Highway road, at that time, driver of Truck bearing
registration No.MH-46/H-1530 came in a rash and
negligent manner and dashed to the motorcycle of the
deceased. Due to the said accident, the deceased fell down
on the road and sustained fatal injuries and died on the
spot. Subsequently, the police have registered FIR in
Crime No.189/2013 dated 17.05.2013 for the offences
punishable under Sections 304(A), 279, 337, 338, 427 of
IPC so also under the provisions of M.V.Act, 1988, based
on the complaint of one Govind Naresh Pharat. Thereafter,
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the jurisdictional police have investigated the matter and
laid the charge sheet against the driver of the offending
vehicle as per Ex.P5. Hence, the petitioners being the legal
heirs of deceased filed the claim petition before the
Tribunal claiming compensation.
04. Though notice was served on respondent No.1,
respondent No.1 failed to appear before the Court and
accordingly, placed exparte. Initially the petitioners filed
petition against the Branch Manager, New India Assurance
Company showing it as respondent No.2 before the
Tribunal and later added Reliance General Insurance
Company as respondent No.2 and deleted the name of
Branch Manager, New India Assurance Company.
Accordingly, the Reliance General Insurance Company i.e.,
respondent No.2 filed written statement denying the
averments made in the claim petition. The Tribunal after
considering the claim petition so also written statement
filed by the respondent No.2, framed the relevant issues.
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05. In order to prove the claim before the Tribunal,
the petitioners examined petitioner No.1 as PW.1 so also
examined another witness as PW.2 and got marked 6
documents as Ex.P1 to P6. However, Insurance Company
examined its official as RW.1 and got marked 2 documents
as Ex.R1 to R2 on behalf of the respondents.
06. After assessment of the oral and documentary
evidence, the Tribunal dismissed the claim petition filed by
the petitioners as stated supra. Challenge to the same is
lis before this Court.
07. We have heard the learned counsel for the
appellant/petitioners so also learned counsel for
respondent No.2/Insurance Company.
08. It is the primary contention of the learned
counsel for the petitioners that Tribunal grossly erred
while rejecting the claim petition without appreciating the
evidence and documents placed before it. According to
the learned counsel, in the evidence of PW.1, he
categorically deposed that motorcycle bearing registration
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No.MH-46/T-4503 is involved in the accident and the said
evidence of PW.1 corroborates with the contents of the
spot panchanama. Further, the jurisdictional police after
conducting investigation laid the charge sheet against the
driver of the offending vehicle. The said charge sheet is
not challenged by the Insurance Company, as such,
according to the learned counsel, the impugned judgment
is liable to be set aside and petitioners are entitled for the
compensation as claimed in the claim petition.
09. Per contra, learned counsel for the respondent
No.2-Insurance Company would submit that a false story
has been foisted by the petitioners to claim compensation
by implicating the truck in the accident in collusion with
respondent No.1. The seizure panchanama of the
offending vehicle is not filed before the Tribunal as such,
the involvement of the truck in the accident is totally
doubtful. She also contends that the Tribunal after
considering the entire evidence on record so also the
documents placed before it passed the impugned
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judgment which does not call for any interference.
Accordingly, she prays to dismiss the appeal.
10. Having heard the learned counsel for the
respective parties so also having perused the documents
made available before us, the points that would arise for
our consideration are:
i. Whether the Tribunal is justified in rejecting
the claim petition on the ground that the
claimants have failed to prove the accident
dated 17.05.2013 was due to rash and
negligent driving of the truck bearing NO.MH-
46/H-1530 by its driver resulting into the
death of deceased-Mohammed Rafiq?
ii. Whether the claimants are entitled for
compensation as claimed by them before the
Tribunal?
11. On careful perusal of the evidence and
documents placed before this Court, the accident in
question was not disputed by the respondents also. It is
the specific case of the petitioners that on 17.05.2013, the
deceased Mohammed Rafiq while proceeding in his
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motorcycle, near Patanoli Phata on JNPT Highway road,
the driver of the offending truck came in a rash and
negligent manner and dashed to the motorcycle of the
deceased, due to which he sustained injuries and died on
the spot. To prove the same, apart from PW.1, he got
examined PW.2 who is an eyewitness to the accident.
Though FIR is registered against the driver of the unknown
vehicle and there is no vehicle number and type of vehicle
shown in the FIR, nevertheless, PW.2 an eyewitness who
has deposed before the Court that on 17.05.2013 when he
was standing on the road side and at that time, a truck
bearing No.MH-46/H-1530 came on Highway road with
great speed and in rash and negligent manner and dashed
to the motorcycle bearing No.MH-46/T-4503 which was
coming from opposite direction and caused accident. Due
to which, the rider of the motorcycle fell down and died.
However, this witness failed to inform the same to the
police, his evidence cannot be discarded only for that
reason. The Hon'ble Apex Court in the case of Kusum
Lata and Others Vs. Satbir and Others reported in
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(2011)3 SCC 646 held that not noting down the number
of the offending vehicle by the injured or the eyewitness
itself cannot be a ground for rejecting the claim petition
before the Tribunal. Further, the Hon'ble Apex Court in
catena of judgments held that mere delay in lodging the
complaint is not a ground to reject the claim petition. The
Co-ordinate Bench of this Court in MFA No.5371/2016
C/w MFA No.5378/2016 in the case of Venkatesh
K.N., Vs. Thipregowda and Others disposed of on
13.08.2020 in para-8 held as under:
8. The Supreme Court in 'RAVI VS.
BADRINARAYAN AND OTHERS', (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 the instant case, it is
pertinent to note that claimant's mother
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resides in a village. The claimant after the
accident on 13.05.2013 was hospitalized and
was admitted in hospital and a surgery was
performed on 17.05.2013 and he was
discharged from the hospital on 05.06.2013.
Thereafter again on 01.07.2013 he was
admitted and second surgery was performed
on 03.07.2013. It is pertinent to mention
here that claimant has been examined as
PW1 and nothing could be elicited from him
in his cross examination with regard to the
manner of the accident. Therefore, we do
not find any reason to disbelieve the
testimony of the claimant with regard to the
manner in which the accident has taken place
and therefore, we hold that merely because
there was a delay of 33 days in lodging the
First Information Report, it cannot be said
that the claim of the claimant is not
genuine."
12. The Tribunal much relied on the discrepancies
in the cross-examination of PW.2 the eyewitness to the
accident in respect of the manner in which the alleged
accident has occurred. However, on careful perusal of
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evidence of PW.2, he withstood the cross-examination to
the effect that the occurrence of the accident on
17.05.2013. Further his evidence also corroborates with
the investigation documents Ex.P1 to P6. Admittedly, the
Insurance Company has not challenged the charge sheet
laid in this case. Such being the scenario the Co-ordinate
Bench of this Court in the case of Bajaj Allianz General
Insurance Company Limited vs. Smt.Lakshmamma
and Others in the case of MFA NO.7493/2007 disposed of
on 25.09.2007 held in para No.6 which reads as under:
"6. Then, coming to the question of
involvement of the vehicle, admittedly charge-
sheet is filed against the driver of the vehicle,
the owner has not denied the accident. FIR is
registered in Crime No.10/05 by the Malur Police.
If really the vehicle was not involved, if a false
case has been lodged and if the owner has
colluded with the claimants, it was for the
insurance company to challenge the same to
quash the charge-sheet and to direct the police
to investigate properly and file an appropriate
case for having lodged a false case when there
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was no accident and vehicle in question had not
been involved. The learned counsel for the
appellant submits that after case was filed, the
matter was entrusted to a private agency for
investigation and accordingly to the report of the
investigation of a private agency, the vehicle in
question had not been involved in the accident.
But, we cannot place reliance on a report
submitted by a private agency when a charge-
sheet is filed by the police after a detailed
investigation and when the driver and owner of
the vehicle have not disputed about the
involvement of the vehicle in question.
Therefore, this point is also answered against the
appellant.
13. In that view of the matter, we are of the
considered view that the Tribunal erred while rejecting the
claim petition filed by the petitioners. Accordingly, we
answer the point No.1 raised above in the affirmative.
14. As we already answered point No.1 in the
affirmative, insofar as the quantum of compensation is
concerned, the deceased was aged 21 years at the time of
accident and stated that he was an engineer working in a
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private limited company and getting monthly salary of
Rs.18,000/-. However, the petitioners failed to produce
the salary certificate or any other relevant documents to
prove the income of the deceased. Hence, in the absence
of proof of income, the notional income of the deceased
will have to be taken as per the chart provided by the
Karnataka State Legal Services Authority. In terms of the
chart, for the accident of the year 2013, the notional
income of the deceased will have to be taken at Rs.7,000/-
per month. To the aforesaid income, as the deceased was
aged 24 years, 40% of the said amount has to be added
on account of future prospects in view of the law laid down
by the Constitution Bench of the Supreme Court in the
case of National Insurance Company Limited vs.
Pranay Sethi and Others reported in AIR 2017 SC
5157. Thus, the monthly income comes to Rs.9,800/-.
Out of which, it is appropriate to deduct 50% towards
personal expenses as the deceased was bachelor and
therefore, the monthly income comes to Rs.4,900/-.
Taking into account the age of the deceased which was 21
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years at the time of accident, multiplier of 18 has to be
adopted as per the judgment of the Hon'ble Supreme
Court in the case of Sarla Verma vs. Delhi Transport
Corporation reported in (2009) 6 SCC 121. Therefore,
the petitioners are entitled to a sum of Rs.10,58,400/-
(Rs.4,900/- x 12 x 18) on account of loss of dependency.
15. Further, in view of the law laid down by the
Hon'ble Supreme Court in the case of Magma General
Insurance Company Limited vs. Nanu Ram Alias
Chuhru Ram & Others reported in (2018) 18 SCC
130, each petitioner is entitled to a sum of Rs.40,000/-
towards loss of consortium. The petitioners are two in
number, hence the compensation towards loss of
consortium would be Rs.80,000/- (40,000 x 2). In
addition, the petitioners are entitled a sum of Rs.15,000/-
towards funeral expenses and Rs.15,000/- under the head
'loss of estate'.
16. Thus, in all, the petitioners are entitled to total
compensation of Rs.11,68,400/-.
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17. In view of the above discussions, we proceed to
pass the following:
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and award
passed by the Tribunal is set aside.
iii. The petitioners are entitled to total
compensation of Rs.11,68,400/- along with
interest at the rate of 6% per annum.
iv. Respondents are jointly and severally
liable to pay compensation amount to the
petitioners.
v. Respondent No.2-Insurance Company is
directed to deposit the compensation
amount before the Tribunal within eight
weeks from the date of receipt of copy of
this judgment.
vi. 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 be entitled for
withdrawal of the amount with accrued
interest thereon.
vii. Draw award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
MSR/VNR
CT;BN
