Partly allowed

National Insurance Co. Ltd. v. Ashwini

Karnataka HC30 Nov 2022MFA/1634/2018

Case brief

AI extract

What is this about?

This miscellaneous first appeal by an insurance company challenged a Motor Accident Claims Tribunal award granting Rs. 20.36 lakh. The appellate court modified the quantum, reducing loss of consortium and ancillary expenses while retaining dependency loss, resulting in total compensation of Rs. 19.46 lakh.

What did the court decide?

The imugned award is modified; total compensation fixed at Rs. 19,46,000/ with interest at 6% p.a.

National Insurance Co. Ltd. Vs Ashwini — Motor Accident Claims | Karnataka HC (2022)

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MFA No. 1634 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.1634 OF 2018 (MV-D)

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BETWEEN:

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NATIONAL INSURANCE CO., LTD., REGIONAL OFFICE NO. 144, 2^ND FLOOR, SUBHARAM COMPLEX, M.G. ROAD, BANGALORE 560 001. BY ITS MANAGER

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…APPELLANT

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(BY SRI. O. MAHESH., ADVOCATE)

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AND:

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Digitally signed by PAVITHRA B Location: High Court of Karnataka

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ASHWINI, AGED 21 YEARS, W/O. LATE. KIRAN M.H. @ KEMPARAJU,

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HOMBALAMMA, AGED 51 YEARS, W/O. LATE HONNEGOWDA,

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BOTH ARE R/AT MALLAPPANA HOSAHALLI VILLAGE, SATHNOOR HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT, (1ST RESPONDENT PREVIOUSLY R/AT ARALALU VILLAGE, KASABA HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT 571 511.

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MFA No. 1634 of 2018

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SHWETHA URS .M, MAJOR, W/O. SRIKANTHA RAJE URS .M, R/AT NO.577, DEEWANS ROAD, LAKSHMIPURAM, MYSORE 571 001.

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…RESPONDENTS

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(BY SRI. PRAKASH .M.H., ADVOCATE FOR C/R1 AND R2 R3 - SERVED)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.11.2017 PASSED IN MVC NO.5/2017 ON THE FILE OF THE CHIEF JUDGE, COURT OF SMALL CAUSES, MEMBER, PRINCIPAL MACT, BANGALORE, (SCCH-1), AWARDING COMPENSATION OF RS.20,36,000/WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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THIS MFA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appeal is filed by the appellant-Insurance under

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Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act' for short) against the judgment and award passed in MVC No.05/2017 dated 02.11.2017 by the Chief Judge, Court of Small Causes and Member Principal MACT, Bengaluru, challenging the liability fastened on the Insurance Company.

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MFA No. 1634 of 2018

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The brief facts of the case are that on 29.11.2016 at about 7.20 p.m., when the deceased - Kiran M.H. @ Kemparaju was proceeding on a motorcycle bearing No.KA-42-R-5591, when he reached near Thattehalla, Madhavanagara, at that time, the rider of the another motorcycle bearing No.KA-09-HB-6190 came in a rash and negligent manner and dashed against the motorcycle of deceased Kiran M.H. @ Kemparaju. Due to the impact, the deceased died on the spot. Therefore, the claimants have preferred to file claim petition under Section 166 of the MV Act, seeking compensation.

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Heard the arguments on both sides and perused the records.

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CONTENTIONS OF LEARNED COUNSEL FOR THE APPELLANT:

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Learned counsel for the appellant-Insurance Company submitted that, in the present case, three

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MFA No. 1634 of 2018

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vehicles are involved viz., motorcycle bearing No.KA-09HB-6190, another motorcycle bearing No.KA-42-R-5591 and tractor. It is submitted that the rider of the motorcycle bearing No.KA-09-HB-6190 has not caused the accident.

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But, the deceased while riding the motorcycle bearing No.KA-42-R-5591 had dashed the tractor and sustained injuries and then fell on the motorcycle bearing No.KA-09HB-6190. Therefore, in this way, the accident was caused.

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Further, it is submitted that the rider of the motorcycle bearing No.KA-09-HB-6190 has also filed complaint before the Police on the next day morning by stating that he has not caused the accident but because of death occurred to

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the rider of the motorcycle bearing No.KA-42-R-5591, a false case and charge sheet is foisted against the rider of the motorcycle bearing No.KA-09-HB-6190. Further, it is submitted that the rider of the motorcycle bearing No.KA09-HB-6190 is examined as RW.1 and RW.1 has narrated

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the manner of accident. But, just because death is caused

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MFA No. 1634 of 2018

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in the accident, the Investigating Officer has filed false charge sheet against RW.1.

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Further, it is submitted that the claimants

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have not produced the Motor Vehicles Inspection Report deliberately or intentionally. Since upon perusing the damage caused to the motorcycle, it would neglect the allegations of the claimants regarding manner of accident. Therefore, upon considering the damage caused to the motorcycle and severe damage caused to the deceased motorcycle to the front side, it is proved that the deceased died because of head injury it means the deceased had hit

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the tractor forcefully. Therefore, his head was crushed due to the impact. Hence, died. Therefore, it is submitted that the accident was caused not as stated in the claim petition filed by the claimants. Further, it is submitted that the tractor ran away without stopping at the spot. Therefore, number of the tractor could not be traced out. Therefore,

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MFA No. 1634 of 2018

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it is submitted that a false case is made against RW.1, who was riding the motorcycle KA-09-HB 6190.

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Further, it is submitted that the complainant lodged a complaint before the Police namely Harish, who is stated to be a brother of the claimant No.1. He is not examined. Therefore, it is submitted that when said Harish is stated to be an eye witness to the accident but he is not examined, the theory of the claimant regarding accident cannot be believed. Further, it is submitted that the Police Investigating Officer is not examined in order to find out what has happened to the tractor and what happened to

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the complaint lodged by RW.1-Sandeep. Therefore, the entire episode of the accident as narrated by the claimants is doubtful.

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Also raised ground regarding non-compliance of Rule 235 of the Karnataka Motor Vehicles Rules,1989 and Section 158(6) of MV Act. Further, it is submitted that

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MFA No. 1634 of 2018

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the driver of the motorcycle bearing No.KA-09-HB-6190 was not made as a party. Therefore, it is submitted that the claim petition is bad for non-joiner of necessary party. Therefore, on all these grounds raised, prays to allow the appeal by setting aside the judgment and award passed by the Tribunal.

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CONTENTIONS OF LEARNED COUNSEL FOR THE CLAIMANTS:

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Learned counsel for the claimants/

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respondents submitted that the accident is not disputed in

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the present case. Even though RW.1 was riding a motorcycle bearing No.KA-09-HB-6190, has lodged a complaint, and after the investigation, the police have filed

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a charge sheet against him, alleging that he caused the accident by rash and negligent driving of the motorcycle. Therefore, it is submitted that even though RW.1 has lodged a complaint and appeared before the court, there is no corroboration in his case. Hence, upon investigation

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MFA No. 1634 of 2018

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by the Police, it is proved that RW.1-Snandeep has caused the accident and this is rightly appreciated by the Tribunal. Further, it is submitted that the provisions of Sections 134(c) and 158(6) of MV Act are not complied, that cannot be affect to the claim proceedings. Therefore, prays to dismissal of the appeal.

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ANALYSIS :

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In the present case, even though the Insurance Company is contending that three vehicles are involved viz., two motorcycles and one tractor but there is no evidence on record to show the involvement of the tractor. The number of the tractor is not stated. It is only the Insurance Company and RW.1 are stating that the deceased hit the tractor but what is the tractor number is not forthcoming in the complaint of RW.1 in his evidence.

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It is the contention of the Insurance Company and RW.1, who was riding motorcycle bearing No. KA-09-HB-6190 that deceased while riding motorcycle hit the tractor. But

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MFA No. 1634 of 2018

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proving this aspect, there is no evidence at all. RW.1, who was riding motorcycle KA-09-HB-6190 has not complained on the next day of accident i.e., 30.11.2016 stating that soon after the accident, he went to the police station i.e., night on 29.11.2016 but the police have stated that he has not committed any wrong and sent away. But later on the next day he came to know that because deceased died, who was riding the motorcycle bearing No.KA-42-R-5591, he is made as accused. Therefore, under these circumstances, he constrained to lodge a complaint before the Police.

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Upon considering these evidences on record, Ex.R.2 is the complaint given by RW.1-Sandeep, but his version does not have any corroboration in order to prove his contention, but the factum of accident between the two motor cycles i.e., KA-09-HB-6190 and KA-42-R-5591 is not disputed. The only dispute regarding accident is the manner of accident. RW.1-Sandeep has stated that the

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MFA No. 1634 of 2018

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deceased had hit his motor cycle and before that, the deceased hit the tractor, but to prove his version except complaint-Exs.R1 & R2 and evidence of RW.1, there are no other material evidence placed before the Tribunal. Just

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because, the damage caused to the motor cycle as discussed in IMV Report-Ex.R.4 that does not always reflect as to how exactly the accident was taken place. The accident is an accident. Just because, upon observing the damage caused to the motor cycle, it cannot be said that exactly in this manner only, the accident was caused. Just because, the side of the motor cycle was damaged that does not mean that in that manner only the accident was caused. There is no evidence either by the Insurance Company or R.W.1 to state that the deceased while riding the motor cycle bearing Reg.No.KA-42-R-5591 hit the tractor. Therefore, at the most, the evidence of R.W.1-

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Sandeep is self-explanatory in nature and not more than

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that. But the factum of accident between two vehicles and death caused to the deceased in the said accident is not

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MFA No. 1634 of 2018

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disputed. Therefore, upon considering the entire case on its preponderance of probabilities, the case put forward by the claimant regarding the manner of accident and death of the deceased is carrying more weightage compared to

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the Insurance Company and RW1. Claimant No.1 who is the wife of the deceased was a pillion rider and eye witness to the incident. She might have not lodged the complaint because she was under trauma. Therefore, her brother who witnessed the accident had lodged the complaint before the police. Therefore, claimant No.1 who is the wife of the deceased was a pillion rider and narrated the manner of accident and her witness is corroborated by

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the charge sheet materials. Since after investigation, Investigation Officer has filed the charge sheet against R.W.1. Therefore, upon considering the entire evidence on record, it is found that the Tribunal has not committed any error in evaluating the material evidence on record pertaining to rash and negligent aspect in holding R.W.1

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MFA No. 1634 of 2018

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rider of the motor cycle bearing Reg.No.KA-09-HB-6190 is rash and negligent in causing the accident.

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Just because, the claimants have not produced IMV Report-Ex.R.4 that cannot be made as a ground that the claimants have suppressed the fact regarding the accident. R.W.2 who is the officer of the Insurance Company might have produced the IMV report as per Ex.R.4, then it cannot wash away the claim of the claimants. When the accident took place, the damage may be caused minutely or extensively, but only because of observing the damage caused to the vehicle, it cannot exactly said that in this manner only the accident was caused.

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Insofar as contention raised in respect of provisions under Sections 134(c) and 158(6) of MV Act, the same is the answered in MFA.No.2275/2012 DD. 29.03.2022 at paragraph No.17 by this court and the said

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MFA No. 1634 of 2018

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finding is applicable in the present case also. Paragraph No.17 in MFA.No.2275/2012 DD.29.03.2022 reads as under:

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“Therefore, even in regard to noncompliance of Section-134(c) and Section-158(6) of the MV Act, the claim petition cannot be rejected. There may be lapses in not reporting the factum of accident to the insurance company as required under Section-134(c) and Section-158(6), but it does not affect the claim petition filed by the injured person.”

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The driver of the motor cycle bearing Reg.No.KA-09-HB-6190 may be a proper party, but not necessary party. Proper party means, even though, in the absence of him, effective adjudication can be made. But necessary party means in the absence of whom effective adjudication cannot be made. Therefore, this is the difference between the proper party and necessary party. Therefore, in the present case, R.W.1 who is the rider of the motor cycle bearing Reg.No.KA-09-HB-6190 may be a proper party, but not made as a party and because the owner of the said motor cycle is made as a party,

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MFA No. 1634 of 2018

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therefore, effective adjudication can be done and accordingly, it is made. Therefore, the driver of the offending vehicle is not a necessary part in the proceeding. But the owner of the offending motor cycle is made as a party, because the owner is liable for tort committed by the employee/agent. Therefore, there is no merit in the contention raised by the Insurance Company in this regard.

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Therefore, in the present case, even though, it is stated that the tractor is involved in the accident, but there is no evidence before the Court regarding tractor and even registration number is not stated. Therefore, the fact reveals involvement of two motor cycles and upon appreciating the materials on record as observed above, it is proved that R.W.1-Sandeep who was riding the motor cycle bearing Reg.No.KA-09-HB-6190 had caused the accident as the charge sheet was filed against him. Filing of charge sheet is not an empty formality, but it is the

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MFA No. 1634 of 2018

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result of statutory investigation as per the provisions of Code of Criminal Procedure. Therefore, it has its own sanctity and significance unless the contrary is proved insofar as the charge sheet is concerned. Therefore, the evidence of P.W.1 claimant gets corroboration with the charge sheet. Just because, the complainant–Harish is not examined, that is not fatal to the claimant. In this regard, it is relevant to rely on the judgment of the Hon’ble Supreme Court in the case of Anita Sharma Vs. New India Assurance Co., Ltd.,¹ wherein at paragraph No.21, it is held as under:

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“21. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant’s version is more likely than not true.”

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1 (2021) 1 SCC 171

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MFA No. 1634 of 2018

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Therefore, by sifting and weighing evidences of both sides and upon application of theory of preponderance of probability in evaluating and

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appreciating the evidence on record, the case of the claimant is proved to be more probable and believable compared to the Insurance Company and R.W.1. Therefore, the Tribunal is correct in giving finding that R.W.1 was rash and negligent while riding his motorcycle and causing the accident. Therefore, I do not find any perversity or illegality in the findings of the Tribunal. Therefore, with regard to rash and negligent aspect is concerned, the finding of the Tribunal is correct.

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Regarding quantum of compensation:

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The Tribunal had held the income at Rs.9,000/-

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per month, which is found to be correct and after deducting 1/3^rd towards personal and living expenses and applying the multiplier of 17, awarded compensation under

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MFA No. 1634 of 2018

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the head loss of dependency. Hence, on this ground, there is no need to make interference.

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The Tribunal has awarded the compensation of Rs.50,000/- under the head loss of consortium and Rs.1,00,000/- towards loss of love and affection, which is on the higher side. The loss of consortium and loss of love

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and affection are having more or less similar connotation. Therefore, as per the judgment of the Hon’ble Supreme Court in the case of Magma General Insurance Co. Limited v. Nanu Ram & Others² , each dependents are entitled to Rs.40,000/- towards loss of consortium including loss of love and affection. In the present case, there are two legal dependents. Hence, a sum of Rs.80,000/- is awarded towards loss of consortium including loss of love and affection.

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2 2018 ACJ 2782

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MFA No. 1634 of 2018

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Further compensation of Rs.25,000/- awarded towards loss of estate and compensation of Rs.25,000/awarded under the head cost incurred on account of transportation of dead body, funeral and ritual expenses are on the higher side and the same is reduced. Hence, the compensation of Rs.15,000/- is awarded under the head loss of estate and Rs.15,000/- is awarded under the head cost incurred on account of transportation of dead body, funeral and ritual expenses. Therefore, on these aspects only, the quantum of compensation is modified.

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Thus, in all the claimants are entitled to compensation as follows:

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1	Loss of dependency	Rs.	18,36,000/-	Kept in tact
2	Loss of consortium including loss of love and affection	Rs.	80,000/-

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MFA No. 1634 of 2018

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3 Loss of estate Rs. 15,000/-
3 cost incurred on Rs.
account of
15,000/-
transportation of
dead body, funeral
and ritual expenses
Rs. 19,46,000/-

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The Tribunal has awarded interest at the rate of

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9% per annum and the same scaled down to 6% per annum. Therefore, the claimants are entitled to total compensation of Rs.19,46,000/- as against Rs.20,36,000/-

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awarded by the Tribunal along with interest at the rate of 6% per annum. Hence, the appeal filed by the Insurance Company is liable to be allowed-in-part. Hence, I proceed to pass the following

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ORDER

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The appeal is allowed-in-part .

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MFA No. 1634 of 2018

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The impugned judgment and award passed in MVC No.05/2017 dated 02.11.2017 by the Chief Judge, Court of Small Causes and Member Principal MACT, Bengaluru, is modified to the extent that the claimants are entitled to total compensation of Rs.19,46,000/- as against Rs.20,36,000/- awarded by the Tribunal along with interest at the rate of 6% per annum.

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The amount deposited by the Insurance Company shall be transmitted to the Tribunal.

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No order as to costs.

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Registry is directed to transmit the TCR along with copy of this order forthwith.

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Sd/JUDGE

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KA/PB

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List No.: 1 Sl No.: 57

National Insurance Co. Ltd. v. Ashwini

Case brief

What is this about?

What did the court decide?

National Insurance Co. Ltd. v. Ashwini

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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