Karnataka High Court
Smt Prema vs Sri Chikkathimmaiah on 17 January, 2025
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MFA No.3977/2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY, 2025
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO.3977/2021 (MV-D)
BETWEEN:
1. SMT.PREMA
W/O CHIKKANNA
AGED ABOUT 59 YEARS
2. SRI CHIKKANNA
S/O LATE JAVAREGOWDA
AGED ABOUT 66 YEARS
3. SMT. KANYAKUMARI
D/O CHIKKANNA
AGED ABOUT 34 YEARS
ALL ARE R/AT NO.145
K R MILL COLONY
MYSURU- BENGALURU ROAD
MYSURU - 570 003 ... APPELLANTS
Digitally (BY SRI.DIVYATHEJ A B, ADVOCATE)
signed by K S
RENUKAMBA AND:
Location:
High Court of
Karnataka 1. SRI CHIKKATHIMMAIAH
S/O THIMMAIAH
AGED ABOUT 61 YEARS
SOMANAHALLI VILLAGE
MADDUR TALUK, MANDYA DIST. - 571 605
2. THE NEW INDIA ASSURANCE CO. LTD.,
REPRESENTED BY ITS MANAGER
J L B ROAD, CHAMUNDIPURAM
MYSURU - 570 004 ... RESPONDENTS
(BY SMT.GEETHA RAJ, ADVOCATE FOR R2;
R1 SERVED)
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MFA No.3977/2021
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD DATED 21.11.2020 PASSED IN MVC NO.1098/2016 ON
THE FILE OF THE JUDGE, PRINCIPAL COURT OF SMALL CAUSES, AS
A PRESIDING OFFICER, MACT, MYSURU, DISMISSING THE CLAIM
PETITION FOR COMPENSATION.
THIS APPEAL, COMING ON FOR DICTATION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
HON'BLE MR JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)
Challenging the dismissal of their claim petition,
claimants in MVC No.1098/2016 on the file of Judge, Principal
Court of Small Causes, MACT, Mysuru have preferred this
appeal.
2. Appellants were claimant Nos.1 to 3 and
respondents were respondent Nos.1 and 2 in MVC
No.1098/2016 before the Tribunal. Claimant Nos.1 and 2 are
the parents and claimant No.3 is the sister of deceased Madhu.
For the purpose of convenience, the parties are referred to
henceforth according their ranks before the Tribunal.
3. On 28.09.2015 at 2:45 p.m, when Madhu was
riding motorcycle bearing registration No.K.A.09-W-7669 near
Kenchanakuppe gate within the limits of Bidadi police station,
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he met with an accident and died. Regarding the accident,
claimant No.2/father filed complaint in Bidadi police station as
per Ex.P2 alleging that the driver of the Tipper lorry KA.11-A-
4555 drove the same in rash and negligent manner, hit
Madhu's motorcycle, caused the accident and consequential
death of Madhu. Based on the said complaint, FIR as per Ex.P1
was registered against the driver of the said tipper lorry in
Crime No.344/2015 of Bidadi Police Station. On investigation,
chargesheet/Ex.P7 was filed against the driver of the tipper
lorry for the offences punishable under Sections 279 and 304A
IPC. At the relevant time, respondent Nos.1 and 2 were the
registered owner and insurer of tipper lorry bearing registration
No.K.A-11-A-4555.
4. Claimants filed MVC No.1098/2016 against the
respondents alleging that deceased Madhu was aged 30 years,
working as Welder and earning Rs.15,611/- per month. They
claimed that they were all dependent on his income. They
further claimed that the accident and death of Madhu occurred
due to actionable negligence on the part of driver of tipper
lorry. Due to the accident, they have suffered damages to the
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tune of Rs.35,80,000/- and respondents are liable to
compensate the said damages.
5. Respondent Nos.1 and 2 contested the petition
denying occurrence of the accident due to actionable negligence
on the part of driver of tipper lorry, age, occupation, income of
the deceased and their liability to pay compensation. They
contended that Madhu while riding his motorcycle suffered
injuries due to skid and fall, to make wrongful gain, claimants
in collusion with police have falsely implicated driver of tipper
lorry bearing registration No.K.A-11-A-4555. They sought
dismissal of the petition.
6. In support of their claim, claimants got examined
claimant No.1/mother as PW.1 and got marked Exs.P1 to P11.
Respondent No.1 did not lead any evidence. Officer of
respondent No.2 was examined as RW.1. On behalf of
respondent No.2, Exs.R1 to R3 were marked.
7. The Tribunal on hearing the parties, relying on the
evidence of RW.1 and entries in Ex.R1 i.e., alleged case records
of deceased maintained in NIMHANS Hospital, Bengaluru held
that the deceased had a skid and fall and not an accident
involving tipper lorry as alleged. The Tribunal further held that
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as per Motor Vehicle Inspector's report-Ex.R3 there were no
damages to the tipper lorry. That also creates serious doubt
about involvement of lorry in the accident and thus dismissed
the claim petition. Claimants have challenged the order in the
above appeal.
8. Sri G.K Yogesha for Sri.Divyathej A.B., learned
Counsel for the appellants/claimants submits that the police on
thorough investigation have filed chargesheet against driver of
tipper lorry. Motor Vehicle Inspector's report was part of the
investigation records. He further submits that claimants
discharged initial burden of proving involvement of lorry in the
accident by producing Exs.P1 to P7. Ex.R1 is allegedly copy of
case records of deceased maintained in NIMHANS. The original
of the same was summoned and author of the said document
was not examined. Under such circumstances, the Tribunal
committed serious error in relying on Ex.R1 which was not duly
proved. Therefore, finding of the Tribunal that the accident
occurred due to skid and fall and involvement of the tipper lorry
was not proved, is wholly unsustainable. He further submits
that claimants have produced proof regarding age and income
of deceased. Therefore, compensation as sought for has to be
awarded.
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9. Smt. Geetha Raj, learned Counsel for respondent
No.2/insurer vehemently submits that it was for the claimants
to produce the medical records of the deceased. PW.1 and
complainant were not the eyewitnesses. Admittedly, deceased
was treated in NIMHANS Hospital. Therefore, there was no
reason to disbelieve Ex.R1. During the course of argument, she
submitted certified copy of judgment in C.C.No.654/2016 and
depositions of witnesses in the said case. Relying on the same,
she submits that claimant No.2 himself did not support the
prosecution version. Therefore, driver of tipper lorry was
acquitted in the case. Those facts also show that the contention
that accident occurred due to negligence of the tipper lorry
bearing registration No.K.A-11-A-4555, is unsustainable. She
submits that there was no merit in the appeal and seeks
dismissal of the appeal.
10. In support of her submission, she relied on the
following judgments:
i. M/s National Insurance Company Ltd Vs Mrs.
Shamshad and others1
ii. North West Karnataka Road Transport
Corporation Vs Gourabai and others
iii. Branch Manager, Oriental Insurance Co.Ltd Vs
Smt. Kempamma & others3
2 (2009) 15 SCC 165
3 ILR 2014 KAR 3336
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iv. Veerappa and another Vs Siddappa and
another4
11. On hearing both sides and on examining the
materials on record, the points that arise for consideration of
the Court are:
i. Whether the finding of the Tribunal that on
28.09.2015 at 2:45 p.m., when deceased
Madhu was traveling on motorcycle bearing
registration No.KA.09-W-7669, the driver of
tipper lorry bearing registration No.K.A-11-A-
4555 due to his actionable negligence caused
accident and death of Madhu has not been
proved, is unsustainable?
ii. Whether claimants are entitled to
compensation as claimed by them?
Analysis:
Reg. Negligence.
12. The claimants came before the Court alleging that
on 28.09.2015 at 2:45 p.m., when Madhu was proceeding on
motorcycle bearing registration No.K.A.09-W-7669 near
Kenchanakuppe gate, the driver of lorry bearing registration
No.K.A-11-A-4555 drove the same in rash and negligent
manner in high speed and suddenly took right turn, hit Madhu's
motorcycle and caused him grievous injuries. They further
alleged that soon after the incident, deceased was shifted to
4 ILR 2009 KAR 3562
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Government Hospital, Bidadi and from there he was shifted to
NIMHANS Hospital, Bengaluru, he succumbed to the injuries on
30.09.2015 in the hospital. Whereas, respondents contended
that it was not the case of accident involving lorry, but Madhu
himself skid and fell and succumbed to those injuries.
13. The initial burden of proving fact that the accident
occurred due to actionable negligence on the part of driver of
the lorry bearing registration No.K.A-11-A-4555 was on the
claimants. If they discharged their initial burden, then burden
shifted to the respondents to prove that the incident was a skid
and fall. To discharge their burden, claimants relied on
evidence of PW.1 and Exs.P1 to P7 ie., FIR, complaint, spot
mahazar, sketch of scene of accident, inquest mahazar,
postmortem report and chargesheet respectively.
14. It is no doubt true that PW.1 was not the
eyewitness. It is also true that chargesheet is not the
conclusive proof and claimants have to prove their case. It is
settled principle of law that the proceedings under Section 166
of the Motor Vehicles Act, 1988(for short 'MV Act') are
summary proceedings. The degree of proof required is
preponderance of probability. The claimants are not expected
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to lead evidence to prove their case beyond all reasonable
doubt as required for a trial in criminal case.
15. Incident took place on 28.09.2015 at 2:45 p.m. and
the complaint was filed on 29.09.2015 at 7:00 p.m., by
claimant No.2. In Ex.P2-complaint also, claimant No.2 has not
contended that he was eyewitness. He has stated that after the
accident some people shifted the injured to Bidadi Government
Hospital and from there to NIMHANS Hospital, Bengaluru.
Somebody informed his relative Sadashivaiah through cell
phone of the victim and he in turn informed claimant No.2, who
went to the hospital and later filed complaint. Based on his
complaint, police registered FIR-Ex.P1 and conducted the
investigation. During the investigation, statements of the
witnesses were recorded, vehicle was seized and even Motor
Vehicle Inspector's report was taken. On evaluating material
collected during the investigation, Investigating Officer has filed
chargesheet as per Ex.P7, against the driver of the tipper lorry.
As per Section 114(e) of the Indian Evidence Act,1872 there is
presumption that the official acts are regularly performed.
therefore, Ex.P7 carries presumptive value. By the said
document the claimants discharged their initial burden of
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proving that the accident occurred due to actionable negligence
on the part of driver of lorry bearing registration No.K.A-11-A-
4555. Then the burden shifted to the respondents to rebut the
said evidence of the claimants and to prove their claim that the
injuries were on account of skid and fall by Madhu while
travelling on his motorcycle. To discharge that burden,
respondent No.1 did not enter witness box nor driver of tipper
lorry was examined.
16. RW.1/administrative officer of respondent No.2 was
admittedly not the eyewitness. In her evidence, she claimed
that they got conducted investigation and such investigation
revealed that tipper lorry was planted subsequently by the
claimants in collusion with police, but that Investigating Officer
was not examined. They mainly relied on Ex.R1/the alleged
NIMHANS Hospital records which allegedly contain certain
entries regarding history of accident to the effect that injured
had a skid and fall. First of all Ex.R1 is not a primary evidence.
Moreover, in the cross-examination of RW.1, the said document
was denied by the claimants and it was suggested that the
same was a concocted document. Respondent No.2 did not
summon anybody from NIMHANS Hospital to produce those
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records or examine the author of Ex.R1. It was contended that
one Head Constable by name Raju H.C No.72 of Bidadi Police
Station had admitted the victim to the hospital and he has
given history. The said Raju was not examined. Nothing was
produced to show that at the time of accident, Raju was
working as Head Constable in Bidadi Police Station. If he had
admitted the victim into the hospital, then in ordinary course he
would have reported the matter to the police, but he had not
reported the matter to the jurisdictional police. Thereby Ex.R1
was not proved in accordance with law.
17. Much was argued relying on copy of judgment in
C.C.No.654/2016 and the alleged depositions of the alleged
witnesses in the said case. Those documents were produced for
the first time before this Court after long lapse of time and not
even an application was filed to produce them as additional
evidence. Absolutely no grounds are made out for belated
production of those documents. Further it is the settled position
of law that the finding recorded in criminal case does not have
any binding effect in the civil case. Reading of para No.21 of
judgment in C.C.No.654/2016 produced by learned Counsel for
respondent No.2 shows that, the driver of the tipper lorry was
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acquitted extending benefit of doubt and holding that the
chargesheet was not proved beyond reasonable doubt, he was
not given an honorable acquittal. Unfortunately, the Tribunal
held that there are serious doubts about involvement of the
lorry expecting the degree of proof beyond reasonable doubt,
even in the proceedings under Section 166 of MV Act. The
Tribunal committed serious error in accepting Ex.R1/NIMHANS
record which was not even primary evidence and nobody from
NIMHANS hospital was examined to prove the same, much less
author of the document.
18. So far as IMV report/Ex.R3, even that was not
primary evidence. Even otherwise, after examining the Motor
Vehicle Inspector's report with reference to the other records,
the investigating officer came to the conclusion that the
accident occurred due to negligence on the part of driver of
tipper lorry. The said driver was not discharged. The Magistrate
Court felt that there are grounds to frame the charge. On
framing the charge and holding trial, acquitted him extending
benefit of doubt. Therefore that Motor Vehicle Inspector's
report does not demolish the evidentiary value of charge sheet/
Ex.P7.
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19. Reading of the judgments relied on by learned
Counsel for respondent No.2 shows that in those cases there
was no consistency in the claimants' documents themselves,
therefore, it was held that the accident was not proved. Those
judgments cannot be justifiably applied to the facts of the
present case. In the light of the above discussion, this Court is
of the considered view that the Tribunal committed error in
holding that the claimants have failed to prove the actionable
negligence on the part of driver of lorry bearing No.KA.11-A-
4555 in causing the accident and consequential death of
Madhu.
Reg. quantum of compensation:
20. The claimants contended that at the time of
accident, deceased was aged 30 years. In Ex.P10/ration card,
his age was shown as 28 years as on 02.06.2014. Since
claimants themselves contended that the deceased was aged
30 years, that age has to be taken in assessing compensation.
The claimants contended that the deceased was working as
Welder and earning Rs.15,611/- per month. To prove that they
relied on Ex.P11/salary slip, but the author of the said
document was not examined. Further the Tribunal has marked
Ex.P8 as medical bills, but they are not medical bills, they are
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salary slips. Even those documents were not proved by
examining the alleged employer, therefore income of the
deceased has to be assessed notionally.
21. Accident has taken place in the year 2015.
Considering the age, occupation of the deceased, prevailing
wage rate and price index during the said period, reasonably
income of such person during that period can be considered at
Rs.9,000/- per month. As per the judgment of the Hon'ble
Supreme Court in case of National Insurance Company Limited
vs. Pranay Sethi and Others5, for a self employed person, aged
below 40 years, 40% of the income of the victim has to be
taken as future prospects. Therefore, his monthly income
comes to Rs.9,000+3,600=12,600/-. The deceased was
unmarried. Therefore, as per the judgment of Supreme Court in
the case of Sarla Verma and others vs. Delhi Transport
Corporation and another6, 50% has to be deducted from his
income for his personal expenses and multiplier of 17 has to be
applied. Thus, compensation payable on the head of loss of
dependency would be (Rs.12,600x50%=Rs.6,300x12x17)
=Rs.12,85,200/-.
(2017) 16 SCC 680
(2009) 6 SCC 121
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22. As per the judgment of the Hon'ble Supreme Court
in the case of Magma General Insurance Company Limited vs.
Nanu Ram & Ors7 parents are entitled to compensation of
Rs.40,000/- each with escalation at 10%. Similarly on the
conventional heads of loss of estate and funeral expenses and
conveyance charges, Rs.15,000 + 15,000 has to be awarded
with escalation at 10%. Though the claimants claimed
Rs.50,000/- towards medical expenses, they did not adduce
any evidence regarding the same. Though they got marked
Ex.P8 as medical bills, they are not the medical bills. Moreover
at the first instance, the victim was treated in Government
Hospital. As there is no proof of medical expenses incurred, no
compensation can be awarded on the said head. Therefore, the
just compensation payable is as follows:
Particulars Amount (Rs.)
Loss of dependency 12,85,200/-
Loss of consortium 88,000/-
Loss of estate 16,500/-
Funeral expenses, transportation of 16,500/-
dead body etc.,
Total 14,06,200/-
23. The aforesaid compensation shall carry interest at
6% per annum. There was no dispute that the tipper lorry in
(2018) 18 SCC 130
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question was covered by policy issued by respondent No.2.
Therefore, respondent No.2 is liable to indemnify the said
damages. The appeal deserves to be allowed in part. Hence,
the following:
ORDER
The appeal is allowed in part.
i. Petition in MVC No.1098/2016 on the file of Judge,
Principal Court of Small Causes, MACT, Mysuru is partly
allowed.
ii. The claimants are awarded compensation of Rs.
14,06,200/-/- with interest thereon at 6% p.a. from the date of
petition till its realization.
iii. Respondent No.2 - insurer shall deposit the said
compensation with accrued interest before the Tribunal within
four weeks from the date of receipt of copy of this order.
iv. Claimant Nos.1 and 2 are entitled to 70% and 30%
of the award amount.
v. On deposit of the amount, the Tribunal shall release
50% of the award amount to claimant Nos.1 and 2 according to
their shares digitally and invest balance 50% amount in their
names according their share in any Nationalized/Scheduled
Bank of their choice for a period of three years.
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vi. Transmit the TCRs to the Tribunal forthwith.
Sd/-
(K.S.MUDAGAL)
JUDGE
Sd/-
(C.M. POONACHA)
JUDGE
PKN
