Karnataka High Court
The Manager Bajaj Allianz General vs Smt.Sonabai W/O Late Namdev Rathod And ... on 29 May, 2024
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MFA No.200794 of 2016
C/W MFA No.201869 of 2016
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF MAY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO.200794 OF 2016 (MV-D)
C/W.
MISCL. FIRST APPEAL NO.201869 OF 2016 (MV-D)
IN M.F.A.NO.200794 OF 2016
BETWEEN:
THE MANAGER,
BAJAJ ALLIANZ GENERAL
INSURANCE COMPANY LTD.,
THROUGH ITS MANAGER,
V.A. KALBURAGI MANSION,
Digitally signed by
4TH FLOOR, OPP: MUNICIPAL CORPORATION,
BASALINGAPPA LAMINGTON ROAD, HUBLI.
SHIVARAJ
DHUTTARGAON ...APPELLANT
Location: High
Court Of Karnataka
(BY SRI SUBHASH MALLAPUR, ADVOCATE)
AND:
1. SMT. SONABAI
W/O LATE NAMDEV RATHOD,
AGE: ABOUT 34 YEARS,
OCC: HOUSEHOLD,
2. SACHIN
S/O LATE NAMDEV RATHOD,
AGE: 17 YEAR MINOR,
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MFA No.200794 of 2016
C/W MFA No.201869 of 2016
3. SANDEEP
S/O LATE NAMDEV RATHOD,
AGE: 15 YEARS MINOR,
4. BHAGYASHREE
D/O LATE NAMDEV RATHOD,
AGE: 13 YEARS,
ALL R/O HAMU NAGAR (FKLUR THANDA)
TQ: BASAVAKALAYAN, DIST: BIDAR.
5. SUNIL
S/O NARAYANRAO JADHAV,
AGE: 35 YEARS,
OCC: BUSINESS & OWNER,
R/O: TATA SUMO SPECIO,
NO.KA-39 / M-655,
R/O: GADI RAIPALLI,
TQ: BASAVAKALAYAN,
DIST: BIDAR- 585401.
...RESPONDENTS
(BY SRI SANJEEV KUMAR C. PATIL, ADVOCATE FOR R1 TO R4;
R2 TO R4 ARE MINORS REPRESENTED BY R1;
R5 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, PRAYING TO:
1) CALL FOR THE RECORDS ALLOW THIS APPEAL AND
SET ASIDE THE IMPUGNED JUDGMENT AND AWARD DATED :
06.02.2016 IN M.V.C.NO.280/2012 PASSED BY THE II
ADDITIONAL DISTRICT AND SESSIONS COURT AND
ADDITIONAL M.A.C.T., BIDAR, CAMP AT BASAVAKALYAN
AWARDING COMPENSATION OF RS.16,92,200/- INSOFAR AS
THE LIABILITY IS SADDLED UPON THE APPELLANT INSURANCE
COMPANY.
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MFA No.200794 of 2016
C/W MFA No.201869 of 2016
2) REDUCE THE RATE OF INTEREST AWARDED BY
ADDITIONAL M.A.C.T., IN THE ABOVE CASE, FROM 7% TO 6%
PER ANNUM AND QUASH THE SAID ORDER IN SO FAR AS. IT
DIRECTS THE APPELLANT INSURANCE COMPANY TO REMIT THE
ENTIRE AWARDED AMOUNT WITHIN TWO MONTHS FAILING
WHICH THE INTEREST TO BE PAYABLE AT 12% FROM THE
DATE OF DEFAULT.
IN M.F.A.NO.201869 OF 2016
BETWEEN :
1. SONABAI
W/O LATE NAMDEV RATHOD,
AGE: ABOUT 34 YEARS,
OCC: HOUSEHOLD,
2. SACHIN
S/O LATE NAMDEV RATHOD,
AGE: 17 YEAR,
3. SANDEEP
S/O LATE NAMDEV RATHOD,
AGE: 15 YEARS,
4. BHAGYASHREE
D/O LATE NAMDEV RATHOD,
AGE: 13 YEARS,
APPELLANTS 2 TO 4 ARE MINOR
R/BY MOTHER APPELLANT NO.1
ALL ARE R/O HAMU NAGAR (EKLUR THANDA)
TQ: BASAVAKALAYAN, DIST: BIDAR.
...APPELLANTS
(BY SRI SANJEEV KUMAR C. PATIL, ADVOCATE)
AND:
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MFA No.200794 of 2016
C/W MFA No.201869 of 2016
1. SUNIL
S/O NARAYANRAO JADHAV,
AGED ABOUT 35 YEARS,
OCC: BUSINESS & OWNER,
R/O: TATA SUMO SPECIO,
NO.KA-39 / M-655,
R/O: GADI RAIPALLI,
TQ: BASAVAKALAYAN,
DIST : BIDAR - 584 101.
2. THE MANAGER,
BAJAJ ALLIANZ GENERAL
INSURANCE COMPANY LTD.,
ASIAN PLAZA, G.E. PLAUZA,
AIRPORT ROAD,
YERWADA PUNE - 411 001.
...RESPONDENTS
(BY SRI SUBHASH MALLAPUR, ADVOCATE FOR R2;
R1 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, PRAYING TO CALL FOR THE RECORD
AND MODIFY THE JUDGMENT AND AWARD DATED 06.02.2016
PASSED BY THE II ADDITIONAL DISTRICT AND SESSION
COURT AND ADDITIONAL M.A.C.T., BIDAR, SITTING AT
BASAVAKALYAN IN M.V.C.NO.280/2012 AND ENHANCE THE
COMPENSATION AMOUNT WITH COST, IN THE INTEREST OF
JUSTICE.
THESE MFA's COMING ON FOR FINAL HEARING, THIS
DAY, ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:
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MFA No.200794 of 2016
C/W MFA No.201869 of 2016
JUDGMENT
These two appeals are arising out of judgment and
award dated 06.02.2016 passed in MVC No.280/2012 by
the II Additional District and Sessions Judge and Additional
MACT, Bidar, sitting at Basavakalyan.
2. For the sake of convenience the parties are
referred to as per their ranking before the Tribunal. In MFA
No.200794/2016, appellant is respondent No.2,
respondent Nos.1 to 4 are the claimants, respondent No.5
is the respondent No.1. In MFA No.201869/2016,
appellants are claimant Nos.1 to 4, respondents are
respondent Nos.1 and 2.
3. The insurance company has filed the appeal in
MFA No.200794/2016 challenging the liability and the
claimants have also filed the appeal in
MFA No.201869/2016 seeking for enhancement of
compensation.
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4. Brief facts leading rise to filing of this appeal
are as under;
That on 07.07.2011, at about 4.00 p.m., the
deceased Namdev Rathod was returning to Basavakalyan
from Omerga on his motorcycle bearing Registration
No.MH-25/S-5194, when he reached near Karoli cross, at
that time TATA Sumo vehicle bearing Registration No.KA-
39/M-655 came from behind in rash and negligent manner
and dashed to the motorcycle and caused the accident.
Due to the impact of the accident, the deceased sustained
grievous bleeding injuries and died at the spot. After the
accident, at first instance, Omerga police registered the
case under UDR No.46/2011 and conducted the inquest
panchanama. Thereafter, the complaint was lodged by
Mr.Pramod Mane, who was an eye witness to the accident.
Omerga police have registered fresh case and took up the
investigation and filed the charge sheet. The claimants
being the legal representatives of the deceased Namdev
filed the claim petition under Section 166 of Motor Vehicles
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Act, 1988 claiming accidental compensation from the
respondents jointly and severally.
5. Inspite of service of notice, respondent No.1
remained absent. Hence he was placed exparte.
Respondent No.2 filed the written statement denying the
averments made in the claim petition and contended that
the Tata Sumo vehicle did not met with an accident. The
police and PW.2 have colluded with each other and got
registered the complaint. Hence, prayed to dismiss the
claim petition.
6. The Tribunal on the basis of the pleadings of
the parties framed the issues. The claimants in order to
prove their claim petition, claimant No.1 was examined as
PW.1 and also examined one witness as PW.2 and got
marked 26 documents as Exs.P1 to 26. Law officer of
respondent No.2 was examined as RW.1 and ASI of
Omerga police station was examined as RW.2 and got
marked 9 documents as Exs.R1 to 9. The tribunal after
recording the evidence, hearing the learned counsel for
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the parties and on the assessment of oral and
documentary evidence allowed the claim petition in part
with costs. It is ordered that claimants are entitled for
total compensation of Rs.16,92,200/- with interest at the
rate of 7% p.a from the date of petition till its realization
from the respondents jointly and severally. It is further
ordered that respondent Nos.1 and 2 shall satisfy the
award within two months and the primary liability is fixed
on the respondent No.2 to satisfy the award. If the
respondent No.2 failed to satisfy the award within 2
months, then it is liable to pay interest at the rate of 12%
p.a from the date of default.
7. Respondent No.2 aggrieved by the impugned
judgment and award passed by the Tribunal has preferred
an appeal in MFA No.200794/2016 and the claimants
aggrieved by the impugned judgment and award passed
by the Tribunal have preferred an appeal in MFA
No.201869/2016.
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8. Heard the learned counsel for respondent No.2
and also the learned counsel for the claimants.
9. Learned counsel for respondent No.2 submits
that the Tata Sumo vehicle was not involved in the
accident and the claimants in collusion with the police
have got registered the criminal case involving the said
vehicle. Hence he submits that the claimants are not
entitled to claim the compensation. Hence, on these
grounds he prays to allow the appeal filed by respondent
No.2 and prayed to dismiss the appeal filed by the
claimants.
10. Per contra, learned counsel for the claimants
submits that the deceased was riding a motorcycle and
then Tata sumo vehicle came behind the said motorcycle
and hit the same. Due to the said accident, Namdev had
sustained grievous injuries and succumb to the injuries.
He also submits that PW.2 has lodged the complaint and
police after investigation filed the charge sheet and
respondent No.2 has not challenged the charge sheet.
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Hence, he submits that the Tribunal placing reliance on the
judgment of this Court has rightly held that the accident
was occurred and Namdev died due to road traffic
accident. Hence he also submits that Namdev was
working as a Police Constable and he was getting gross
salary of Rs.13,560/-, wherein the Tribunal without
considering the law laid down by the Hon'ble Apex Court in
the case of NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY
SETHI AND OTHERS REPORTED IN 2017 (16) SCC 680, did not
added 40% future prospects and he further submits that
the Tribunal has not granted loss of consortium. Hence, on
these grounds he prays to allow the appeal filed by the
claimants.
11. Perused the records and considered the
submissions of the learned counsel for the parties.
12. The points that arises for our consideration are
Liability and quantum. The claimants in order to
substantiate their case, claimant No.1 was examined as
PW.1 and she has reiterated the claim averments in the
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examination-in-chief. In order to establish that the
accident was occurred due to rash and negligent driving of
the driver of the offending vehicle, she has produced the
document- certified copy of FIR marked as Ex.P2. Ex.P26,
which also discloses that as on the date of the accident,
the driver of the offending vehicle was possessing the valid
driving license. Further, the claimants have also produced
the charge sheet marked as Ex.P22, which discloses that
the accident was occurred due to rash and negligent
driving of the driver of the offending vehicle. Thus, the
claimants have proved that the accident was occurred due
to rash and negligent driving of the driver of the offending
vehicle.
13. Insorfar as quantum of compensation: It is the
case of the claimants that, the deceased Namdev was
working as Police Constable. In order to establish that the
deceased was working as Police Constable, the respondent
No.2/Insurance company has produced the salary
certificate of the deceased Namdev marked as Ex.R7
which discloses that the gross salary of the deceased was
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Rs.13,710/- after deducting TDS net salary of deceased
was Rs.13,560/-. The claimants have established that the
deceased was a police constable and was getting a salary
of Rs.13,560/-. In view of the law laid down by the
Hon'ble Apex Court in the case of NATIONAL INSURANCE
COMPANY LIMITED VS. PRANAY SETHI AND OTHERS REPORTED IN
2017 (16) SCC 680, wherein 40% has to be added towards
future prospects i.e., Rs.13,560 + 5424 = Rs.18984/-.
There are 4 claimants. Hence 1/4th has to be deducted out
of Rs.18984 - 4746 = 14238. Thus, annual income of the
deceased would be Rs.14,238 X 12= Rs.1,70,856/-. The
deceased was aged about 39 years as on the date of
accident. Taking into account the age of the deceased
which was 39 years at the time of accident, multiplier of
15 has to be adopted as per the judgment of the Hon'ble
Apex Court in the case of SARLA VERMA VS. DELHI TRANSPORT
CORPORATION REPORTED IN (2009) 6 SCC 121. Therefore, the
claimants are entitled to a sum of Rs.1,70,856 X 15 =
Rs.25,62,840/-, wherein the Tribunal has awarded the
compensation for loss of dependency of Rs.16,27,200/- as
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against Rs.25,62,840/-. Further, the claimants are also
entitled for loss of consortium. There are 4 claimants,
hence the compensation towards loss of consortium would
be Rs.1,60,000/- (40,000 x 4). Further the claimants are
also entitled for a sum of Rs.15,000/- towards funeral
expenses and Rs.15,000/- towards transportation
expenses.
14. Thus, in all, the claimants are entitled for a sum
of Rs.27,52,840/- as against Rs.16,92,200/- awarded by
the Tribunal. Thus, the tribunal has committed an error
and compensation awarded by the Tribunal is meager.
15. Insofar as liability: It is the contention of
respondent No.2 that vehicle has been falsely implicated.
The Tribunal considering the evidence of PW.2, who is the
eye witness, has deposed that he saw the driver in
Omerga and he had been to the police station and he had
lodged the complaint on 11.07.2011 and driver was
arrested on 13.07.2011. The police after investigation
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filed the charge sheet and respondent No.2 has not
challenged the charge sheet.
16. 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 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
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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.
17. Considering the law laid down by this Court in
the case of BAJAJ ALLIANZ GENERAL INSURANCE COMPANY
(referred supra), the tribunal was justified in recording the
finding that the accident was occurred due to rash and
negligent driving of the offending vehicle. The Tribunal
was justified in fastening the liability on the insurance
company. Hence, we do not find any error in the impugned
judgment regarding the fastening the liability on
respondent Nos.1 and 2 jointly.
18. In view of the above discussion, we proceed to
pass the following:
ORDER
The appeal in MFA No.200794/2016
is dismissed.
The appeal in MFA No.201869/2016 is
allowed.
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The impugned judgment and award
passed by the Tribunal is modified.
The claimants are entitled for a total
compensation amount of Rs.27,52,840/- as
against Rs.16,92,200/-. The claimants are
entitled for enhanced additional
compensation of Rs.10,60,640/- along with
interest at the rate of 6% p.a. from the
date of petition till its realization from the
respondents jointly and severally.
The respondent No.2/Insurance
Company is directed to deposit the
enhanced compensation amount within 8
weeks from the date of order. If any
amount deposited by the Insurance
company, same be transmitted to the
Tribunal.
Sd/-
JUDGE
Sd/-
JUDGE
SKS
