Karnataka High Court
Mrs. Sarojini vs Mrs. Sujatha Shetty on 10 June, 2024
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MFA No. 3884 of 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
M.F.A NO.3884 OF 2018 (MV-D)
BETWEEN:
MRS. SAROJINI
W/O LATE VAMANA SHETTY
AGED ABOUT 56 YEARS
R/AT 2-128, KATTAPUNI HOUSE,
KENJARU VILLAGE, KENJARU POST,
MANGALORE TALUK,
D K DISTRICT - 575 007
...APPELLANT
(BY SRI. RAVISHANKAR SHASTRY G.,ADVOCATE)
AND:
1. MRS. SUJATHA SHETTY
W/O DINAKARA SHETTY
AGED ABOUT 43 YEARS
R/AT D NO 1-77/3
DEEPTHI DIVYA NILAYA
Digitally ATHREBAIL, KUNJATH BAIL VILLAGE
signed by
REKHA R MANGALORE TALUK
Location: D K DISTRICT - 575003
High Court of
Karnataka 2. THE NEW INDIA ASSURANCE CO. LTD.,
RAM BHAVAN COMPLEX,
III FLOOR, MANGALURU TALUK
D K DISTRICT - 575001
REPRESENTED BY ITS BRANCH MANAGER
...RESPONDENTS
(BY SRI. C.R.RAVISHANKAR, ADVOCATE FOR R2;
R1 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO MODIFY/SET ASIDE THE JUDGMENT AND AWARD
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MFA No. 3884 of 2018
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DATED 08/12/2017 IN MVC NO.666/2016 PASSED BY THE
LEARNED MACT II, I ADDL. DISTRICT & SESSIONS JUDGE,
D.K, MANGALURU AND CLAIM PETITION BE ALLOWED AS
PRAYED FOR BY ALLOWING THIS APPEAL IN THE ENDS OF
JUSTICE.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal filed under Section 173 (1) of Motor
Vehicles Act, petitioner has challenged dismissal of the
petition filed by her seeking compensation for the death of
her husband Vamana Shetty in a motor vehicle accident
dated 25.03.2016, while travelling as a pillion rider on
motorcycle bearing registration No.KA-19/EM-8841 (for
short 'offending vehicle').
2. For the sake of convenience, the parties are
referred to by their ranks before the Tribunal.
3. Facts: It is the case of petitioner that on
25.03.2016 at about 7-10 a.m, her husband, Vamana
Shetty was travelling as a pillion rider on offending
vehicle. It was ridden by respondent No.1, who is the
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registered owner of the offending vehicle. They were
proceeding from Bajpe towards Katilu. When they reached
Yekkaru, Tenka Yekkaru village of Mangaluru Taluk,
respondent No.1 lost control over the offending vehicle
and both of them fell down and sustained injuries. They
were shifted to A J hospital, Mangaluru. Despite prolonged
treatment, deceased succumbed to the injuries on
06.04.2016. Based on the complaint filed by the son of the
deceased, a criminal case is registered against respondent
No.1. At the time of accident, deceased was working in
BGS Composite PU College, Kavuru, Mangaluru and
earning Rs.7,000/- p.m. Petitioner was totally dependent
on the deceased. Deceased has left behind three major
sons, who are not dependent on him and therefore they
are not made party to the petition. As the owner and
insurer, both respondents are jointly and severally liable
to pay the compensation and hence the petition.
4. Though, respondent No.1 appeared through
counsel, she has not filed written statement.
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5. Respondent No.2 filed written statement
admitting the coverage of the offending vehicle by the
policy holder. However, it's liability is subject to the terms
and conditions of the policy. Respondent No.2 denied that
the offending vehicle is involved in the accident. It has
alleged that it is being falsely implicated to make wrongful
gain. Respondent No.2 has disputed the age, occupation,
income, nature of the injuries sustained by the deceased.
The compensation claimed is highly exorbitant, fanciful
and without any basis and sought for dismissal of the
petition.
6. Based on the pleadings Tribunal has framed
necessary issues.
7. In support of the petition, petitioner examined
herself as PW-1, two witnesses as PW-2 and 3. She has
relied upon Ex.P1 to 16.
8. Respondent No.2 has not led any oral evidence,
but got marked Ex.R1 to 5 through the cross-examination
of PW-3.
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9. Vide the impugned judgment and award the
Tribunal has dismissed the claim petition.
10. Being aggrieved by the impugned judgment and
award, petitioner has filed this appeal, contending that the
evidence led by the petitioner prove the fact that on
25.03.2016, deceased was travelling as a pillion rider on
the offending vehicle and accident occurred due to the
rash or negligence driving by respondent No.1 and in the
said accident, he sustained grievous injuries and
succumbed to death while undergoing treatment. Since
respondent No.1 is no other than the niece of the sister-
in-law of deceased, complaint was not lodged
immediately. However, after the death of Vamana Shetty,
complaint came to be filed by his son and after completing
investigation, charge sheet is filed against respondent
No.1. This fact is also spoken to by PW-3.
11. However, the Tribunal has committed a grave
error in not accepting the evidence placed on record. The
Tribunal has dismissed the claim petition on the ground
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that PW-2 has admitted that accident has taken place due
to tyre burst. However, it has failed to appreciate that tyre
burst may occur when the vehicle is driven in a high
speed, in rash or negligent manner. In fact, there is no
reference to tyre burst in the IMV report and therefore the
Tribunal has committed grave error in coming to such an
inference. The Tribunal has also failed to ascertain the
compensation payable and hence the appeal.
12. On the other hand, learned counsel
representing respondent No.2 has supported the judgment
and award and sought for dismissal of the appeal also.
13. Heard elaborated arguments of both sides and
perused the record.
14. At the outset, it is relevant to note that
respondent No.1, who is the rider of the offending vehicle
is no other than the niece of sister-in-law of deceased. The
complaint disclose that on the date of incident deceased
was intending to go to Katilu Temple. Respondent No.1,
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who was also going to the said temple offered to take him
on the offending vehicle. However, complainant came to
know that it met with accident and both deceased and
respondent No.1 were taken to the hospital. It appears
since respondent No.1 is a close relative of deceased and
as he was undergoing treatment, the family members did
not choose to file complaint immediately.
15. Ex.R1 is the MLC reports pertaining to
respondent No.1 sent by A J Hospital and Research
Centre, Kuntikana, Mangaluru on 25.03.2016, wherein it is
clearly stated that she has suffered injuries on account of
road traffic accident. The true copy of MLC report of
deceased dated 25.03.2016 is also available in the file.
However, respondent No.2 did not get it marked. It is
replica of Ex.R1. After receiving the MLC report, the
concerned police have visited the hospital. At that time,
respondent No.1 and complainant have given statements
as per Ex.R2 and 3 stating that both deceased and
respondent No.1 were injured while travelling on the
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offending vehicle due to tyre burst. It appears in order to
avoid criminal prosecution of respondent No.1, they have
come up with a version that tyre burst was the reason for
the accident.
16. On 06.04.2016, the deceased succumb to the
injuries. The same hospital has sent death intimation as
per Ex.P6 to the concerned police after the death of the
deceased. On the next day his son who is not a witness
has lodged the complaint as per Ex.P2, once again
reiterating that accident occurred due to the tyre burst.
However, during the IMV inspection as per Ex.P8, it is
found that there is no proof of tyre burst and the accident
is not due to mechanical defect of the vehicle. Accordingly,
after completing the investigation, the concerned police
have filed charge sheet against respondent No.1 as per
Ex.P11 for the offences punishable under Sections 279,
304 IPC.
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17. PW-2 Pragat Shetty is cited as an eye witness
to the incident. During the course of his examination-in-
chief, he has deposed that accident occurred due to the
rash or negligent driving of the offending vehicle by
respondent No.1. However, during the course of cross-
examination once again, he has stated that accident was
due to tyre burst. He has also stated that respondent No.1
was riding the offending vehicle at 70 to 80 km speed.
18. The petitioner has also examined Investigating
Officer who has investigated the complaint filed against
respondent No.1 and placed the charge sheet. During his
cross-examination, he stated that immediately after
receipt of MLC report from the hospital, he visited the
hospital and enquired with respondent No.1 as well as the
son of deceased and recorded their statements as per Ex.2
and 3, wherein they have claimed that the accident was
due to tyre bust and they are not intending to file the
complaint. However, after the death of Vamana Shetty, his
son filed the complaint and based on it, he registered the
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case, conducted investigation and filed charge sheet
against respondent No.1. He has denied the suggestion
that at the time of accident, Vamana Shetty was not
travelling on the offending vehicle and to enable family
members of deceased to get compensation he has filed
charge sheet involving the offending vehicle.
19. The fact of deceased and respondent No.1
injured in a road traffic accident is forthcoming in Ex.R1
and MLC report dated 25.03.2016. Similarly, the fact of
involvement of offending vehicle and respondent No.1 in
the accident is forthcoming at the earliest point of time
when PW-3 has recorded the statements of respondent
No.1 and complainant as per Ex.R2 and 3 dated
26.03.2016. If at all the parties wanted to involve the
offending vehicle for the sake of getting compensation
from the insurance coverage, they could have very well
shielded respondent No.1. Instead implicated someone
else rather than respondent No.1, who is a woman and
member of their family. Right from the beginning, the
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involvement of the offending vehicle and respondent No.1
is forthcoming.
20. It appears only to shield respondent No.1 from
criminal prosecution, the story of tyre burst is introduced.
But the IMV report is contrary to the said defence.
However, through the oral and documentary evidence
placed on record, petitioner has proved that deceased was
injured while travelling as a pillion rider on the offending
vehicle. It is also to be remembered that in the light of
charge sheet filed by the police, respondent No.1 is also
facing criminal trial. However, the Tribunal has chosen to
dismiss the claim petition only on the ground that the
parties have introduced the story of tyre burst and failed
to establish the same. While doing so, the Tribunal has
failed to appreciate the evidence available on record which
prove that deceased sustained injuries while travelling on
the offering vehicle as a pillian rider and succumbed to
those injuries while undergoing treatment at the hospital.
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21. On re-appreciation of the entire evidence placed
on record, this Court is of the considered opinion that
deceased sustained injuries while travelling as a pillion
rider and accident in question took place on account of
rash or negligent driving of the offending vehicle by
respondent No.1. Having regard to the fact that the
offending vehicle was insured with respondent No.2, as
the owner-cum-rider and insurer, both respondents are
jointly and severally liable to pay the compensation.
22. Now coming to the compensation, which the
petitioner would be entitled for the death of her husband.
In the claim petition, the petitioner has given the age of
deceased as 65 years. No documents are produced to
establish his exact age. In all the police records and
medical records, the age of the deceased is noted as 65
years. The petitioner has not chosen to produce the best
evidence available with her to prove the age of the
deceased. Ex.P15 is the ration card (APL Card) pertaining
to the family of deceased. It is issued on 28.11.2013. As
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on that date, the age of deceased is given as 64 years. If
the age of deceased is calculated based on this document,
during 2016 he was aged 67 years. Therefore, the
appropriate multiplier would be '5'.
23. The petition is filed by the wife of the deceased.
In the claim petition itself she has fairly pleaded that she
is having three major sons and they were not dependent
on the deceased. Therefore, there is only one dependent
on the deceased. As per Sarla Verma and Ors Vs. Delhi
Transport Corporation and Anr. (Sarla Verma)1, where
there is less than two dependents i.e, 1 dependant or
deceased was a bachelor, the deduction towards his
personal and living expenses should be at 50% of the
income. Therefore, in the present case also, 50% of the
income of the deceased is required to be deducted out of
his income to calculate the loss of dependency.
24. Loss of dependency: Even though the petitioner
has claimed that deceased was working in BGS composite
(2009) 6 SCC 121
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PU College, Kavuru and was earning Rs.7,000/- p.m, the
petitioner has not chosen to produce any documents.
Therefore, the income of deceased is required to be
calculated on notional basis. Since the accident is of the
year 2016, the notional income is required to be taken at
Rs.8,750. Since deceased was aged more than 60 years,
no question of adding any amount towards loss of future
prospects would arise, as provided in Magma General
Insurance Company Limited Vs. Naanu Ram Alias Chuhru
Ram (Magma General Insurance)2. With the notional
income at Rs.8,750/- and multiplier '5', the loss of
dependency is Rs.8,750x12x5x50%=Rs.2,62,500/-.
Therefore, petitioner is entitled for compensation in a sum
of Rs.2,62,500 under the head loss of dependency.
25. Loss of consortium: As per National Insurance
Co. Ltd Vs Pranay Sethi and Ors (Pranay Sethi)3 and
Magma General Insurance, as the wife petitioner is
(2018) 18 SCC 130
(2017) 16 SCC 680
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entitled for compensation in a sum of Rs.40,000/- under
the head loss of consortium.
26. Loss to estate and funeral expenses: As per
Pranay Sethi and Magma General Insurance, when
substantial compensation is granted under the head loss of
dependency, under the conventional heads of loss to
estate and funeral expenses (which includes the expenses
for transportation of dead body), petitioner is entitled for
compensation in a sum of Rs.15,000/- each.
27. Medical expenses: It is pertinent to note that
deceased met with an accident on 25.03.2016.
Immediately, he was rushed to A J Hospital, Mangaluru
and while undergoing treatment, he died on 06.04.2016.
Ex.P16 is the final bill issued by the said hospital for a
total sum of Rs.74,686/-. Petitioner has also produced
pharmacy bills for a total sum of Rs.4,813/-. Thus, in all
the medical bills produced are for a total sum of
Rs.79,499/-, which the petitioner is entitled and the same
is rounded of to Rs.80,000/-.
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28. Attendant charges: Since the deceased was
under treatment for a total period of 13 days, a sum of
Rs.10,000 is awarded under the head attendant charges.
29. Thus, in all petitioner is entitled for a total
compensation in a sum of Rs.4,47,500/- together with
interest at 6% per annum from the date of petition till
realization, as detailed below:
Heads Amount
In Rs.
Loss of dependency 2,62,500
Loss of consortium 40,000
Loss to estate 25,000
Funeral expenses 30,000
(Transportation of dead body and
funeral expenses)
Medical expenses 80,000
Attendant charges 10,000
TOTAL 4,47,500
30. As the insurer, respondent No.2 is directed to
pay the compensation with accrued interest within a
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period of six weeks from the date of this order and
accordingly, the following:
ORDER
(i) Appeal is allowed in part in part.
(ii) The impugned judgment and award dated
08.12.2017 in MVC.No.666/2016 on the
file of I Addl.District Judge & II Addl.MACT,
Mangaluru, is set aside.
(iii) In the result petition filed by the petitioner
under Section 166 of M.V Act, is allowed.
(iv) Petitioner is entitled for compensation in a
sum of Rs.4,47,500/- together with
interest at 6% p.a. on the compensation
awarded.
(v) Respondent No.2 being the insurer is
directed to pay the compensation together
with interest at 6% p.a from the date of
petition till realization, within a period of
six weeks from the date of this order.
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(vi) The Registry is directed to send back the
trial Court records along with copy of this
judgment forthwith.
Sd/-
JUDGE
RR
