Dismissed

National Insurance Co. Ltd. v. Meenakshi

Karnataka HC2 Dec 2022MFA/9865/2012

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed an insurance appeal against a Motor Accident Claims Tribunal award. Upholding the Tribunal's finding, the Court held that the tanker driver was negligent and the deceased's lack of helmet did not prove contributory negligence. The compensation of Rs.7,47,000 was affirmed as reasonable.

What did the court decide?

The appeal was dismissed; the Tribunal's judgment and award of Rs.7,47,000 were confirmed.

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

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1 - MFA No. 9865 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO.9865 OF 2012(MV-I)

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BETWEEN:

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NATIONAL INSRUANCE CO LTD IST FLOOR, PRABHU BUILDING 1723, RAMDEO GALLI NO.175 BELGAUM BY DIVISIONAL MANAGER THE DIVISONAL OFFICE SHANKER BUILDING MASQUE ROAD UDUPI TQ & DIST BY NATIONAL INSURANCE CO LTD REGIONAL OFFICE, NO.144 SUBHARAM COMPLEX M G ROAD BANGALORE-560001 BY ITS MANAGER.

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…APPELLANT

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(BY SRI. O MAHESH., ADVOCATE)

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Digitally signed by C MALATHI Location: High Court of Karnataka

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AND:

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MEENAKSHI W/O LATE VISHWANTAH POORARY AGED ABOUT 43 YEARS

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JAGADISH

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S/O LATE VISHWANTHA POORARY AGED ABOUT 20 YEARS

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RAJU S/O LATE VISHWANTHA POORARY SINCE MINOR BY M/G

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MFA No. 9865 of 2012

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IST RESPONDENT

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ALL ARE R/O SORAGEEDI HOUSE BELLINJE VILLAGE AND POST BELTHANGADY TALUK, D K DIST-584114.

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ASIF N SAIT

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AGED ABOUT 50 YEARS SAIT TRANSPORT CORPORATION P B ROAD, NEAR INDIA FACTORY BELGAUM (EX-PARTE)-590001.

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…RESPONDENTS

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(BY SRI.K.SHASHIKANTH., ADVOCATE FOR R1 & R2: R3 MINOR REP BY R1: NOTICE TO R4 IS DISPENSED WITH VIDE ORDER DATED: 03.12.2022)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:30.06.2012 PASSED IN MVC NO.313/2010 ON THE FILE OF THE DISTRICT JUDGE, MEMBER, MACT, UDUPI, AWARDING A COMPENSATION OF Rs.7,47,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF ACCIDENT TILL REALIZATION.

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

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JUDGMENT

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This appeal under Section 173(1) of Motor Vehicles

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Act, 1988 (hereinafter referred to as ‘the Act’) has been

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filed by the Insurance Company being aggrieved by the judgment dated 30.06.2012 passed by the MACT, Udupi in MVC No.313/2010.

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MFA No. 9865 of 2012

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Facts giving rise to the filing of the appeal

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briefly stated are that on 08.02.2010 the deceased Rajesh Shanthi, aged 20 years was Purohith by profession was proceeding on his motor bike towards Padubidri side on NH-17 and when he reached near Kallapu of Moodabettu Village, the driver of the Tanker bearing Registration No.AP-28-U-6147 came from Mangaluru side and that the driver of the lorry while overtaking another vehicle, had hit the motor bike. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries.

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The claimants filed a petition under Section 166 of the Act seeking compensation for the death of the deceased along with interest.

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On service of summons, the respondent No.2 appeared through counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in

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MFA No. 9865 of 2012

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the eye of law. It was further pleaded that the accident was due to the rash and negligent riding of the motorcycle by the deceased himself and he was riding the motor bike without wearing helmet at the time of the accident. The driver of the offending vehicle did not possess valid driving licence as on the date of the accident. The liability is subject to terms and conditions of the policy. The age, occupation and income of the deceased are denied. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant. Hence, he sought for dismissal of the petition.

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The respondent No.1 did not appear before the Tribunal inspite of service of notice and hence was placed ex-parte.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.1 as PW-1 and another witness as

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MFA No. 9865 of 2012

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PW-2 and got exhibited documents namely Ex.P1 to Ex.P7 On behalf of respondents, one witness was examined as RW-1 and got exhibited a document namely Ex.R1. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.7,47,000/- along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed by the Insurance Company.

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6. The learned counsel for the Insurance Company has raised the following counter-contentions:

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MFA No. 9865 of 2012

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Firstly, the finding of the Tribunal without considering sole negligence or contributory negligence on the part of the deceased is contrary to law and material on record.

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Secondly, the Tribunal ought to have seen that PW-2 was not an eyewitness and was only an invented one to suit the claim and admittedly complaint was lodged by one Mr.Rajesh and this person was not examined. The Tribunal further has not considered the fact that deceased was not an experienced rider and was riding a new un-registered two wheeler without wearing a safety helmet and was entering the National High Way from a cross-road.

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Thirdly, the Tribunal has not considered the evidence of driver of the tanker who was examined as RW-1 to drive home that alleged accident was due to negligence of the deceased only and filing of charge sheet is not conclusive proof of negligence.

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Fourthly, the accident occurred in the middle of the road. In the cross-examination of PW-1, he has admitted

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MFA No. 9865 of 2012

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that the accident occurred in the middle of the road. Even the driver of the offending vehicle has categorically stated that the accident occurred in the middle of the road. This was also clear from Ex.P2 - Spot Mahazar. Therefore, the deceased has also contributed to the accident. The Tribunal has failed to consider this aspect of the matter.

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Fifthly, the Tribunal even otherwise, grossly erred in allowing Rs.6,72,000/- under the head of dependency holding the income of the deceased from his alleged profession of purohit at Rs.8,000/- per month. Ultimately in the absence of specific, cogent, corroborative and conclusive evidence in this regard and also ignoring that the deceased would have got married in near future and his bothers would in usual course would get gainfully employed in near future and alleged loss of dependency would not lost for another 14 years despite chance of claimant No.1 would have been gainfully employed and this fact disclosed with a view to get higher compensation.

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MFA No. 9865 of 2012

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Sixthly, the reasoning of the Tribunal to hold income of deceased in days to come would be Rs.8,000/- per month is without basis besides being unscientific and contrary to rulings of division bench of this Hon’ble Court on consideration of rulings of Apex Court in recent past. Hence, he prays for dismissal of the appeal.

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On the other hand, the learned counsel for the claimants has raised the following contentions:

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Firstly, PW-2, who is an eyewitness to the accident has categorically stated that the driver of the offending vehicle was trying to overtake the autorickshaw, has come extreme right side and dashed to the motorcycle. The same was supported by Spot Mahazar, FIR and charge sheet. Since the driver of the offending vehicle was negligent in causing the accident, the Tribunal has rightly held that the driver of the tanker was negligent in causing the accident.

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MFA No. 9865 of 2012

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Secondly, it is not the case of the claimant that the deceased was not wearing the helmet. Even assuming that if he had not wearing the helmet, he has not contributed to the accident, it cannot be held that he was negligent in causing the accident and non wearing helmet is an offence under the Motor Vehicle Act.

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Thirdly, the driver of the tanker was examined as RW-1 and he has not denied that when he was overtaking the Autorickshaw, the accident has taken place and he has not lodged the complaint against the rider of the motorcycle. He has also not challenged the charge sheet filed by the Police. Therefore, the Tribunal has rightly held that the driver of the Tanker was negligent in causing the accident.

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Fourthly, in respect of quantum is concerned, considering the evidence of the claimants, age and avocation of the deceased, the compensation awarded by

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MFA No. 9865 of 2012

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the Tribunal under the conventional heads is on the lower side. Hence, he prays for enhancement of compensation.

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Heard the learned counsel for the parties and perused the records.

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RE: NEGLIGENCE:

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The case of the claimants is that on 08.02.2010 the deceased Rajesh Shanthi, aged 20 years was Purohith by profession was proceeding on his motor bike towards Padubidri side on NH-17 and when he reached near Kallapu of Moodabettu Village, the driver of the Tanker bearing Registration No.AP-28-U-6147 came from Mangaluru side and that the driver of the lorry while overtaking another vehicle, had hit the motor bike. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries.

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To prove the case, claimant No.1 has been examined as PW-1 and one Nagaraj who is said to be an eyewitness

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MFA No. 9865 of 2012

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has been examined as PW-2 and they have produced 7 documents. On behalf of respondents, the driver of the tanker was examined as RW-1 and produced a document as per Ex.R1.

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Under the Motor Vehicles Act in the claim petition before the Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in the civil case. No doubt, before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to decide for awarding compensation, but the Tribunal is not expected to take or to adopt a nicety of a civil or criminal case. After all it is a summary enquiry and it is the legislation for the welfare of the Society. The proceedings under the Motor Vehicles Act are not akin to the proceedings under civil rules. Hence, strict rules of evidence are not required to be followed in this regard. In the case of MANGLA RAM –v- ORIENTAL

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MFA No. 9865 of 2012

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INSURANCE COMPANY LIMITED (2018) 5 SCC 656 ,

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the Hon’ble Apex Court has held as hereinbelow:

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“25. In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant’s eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied.”

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PW-1 in her evidence, has reiterated the statements

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made in the claim petition.

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PW-2, who is said to be an eyewitness to the

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accident has categorically stated that he was standing 30

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MFA No. 9865 of 2012

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to 40 meter away from the place of accident and he has seen that the driver of the tanker was driving the same in a rash and negligent manner and was trying to overtake the Autorickshaw, has come extreme right side and dashed to the motorcycle. Due to impact, the deceased fell down and succumbed to the injuries. Immediately after the accident, one Rajesh Poojary lodged the complaint against the driver of the tanker. After thorough investigation, the Police have filed the charge sheet against the driver of the tanker.

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PW-2 has been cross-examined by the respondents. In the cross-examination, he has stated that he was standing 30 to 40 meter away from the place of accident and he was talking with the owner of Gujri Shop at the time of the accident. Except that, nothing has been elicited from the evidence of PW-2.

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Respondents have examined RW-1, who is the driver of the tanker has stated in his evidence that when he was

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MFA No. 9865 of 2012

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proceeding in the left side of the road, the deceased has come in the middle of the road and dashed against the tanker. It is admitted that he has not lodged any complaint against the deceased for his negligence. It is also admitted that he has seen the motorcycle from a distance but the Mahazar or any records show that he has applied the break to avoid the accident. Considering the evidence of PW-2, who is said to be an eyewitness and Mahazar, the Tribunal has rightly held that the driver of the tanker was negligent in causing the accident.

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In respect of contention of the Insurance Company that the deceased was not wearing helmet, he could have avoid the damages to his head and he has contributed to the accident is concerned, the Apex Court in the case of

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SUDHIR KUMAR RANA vs. SURINDER SINGH AND OTHERS reported in 2008 ACJ 1834, has held in para Nos.9 and 10 are as follows:

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MFA No. 9865 of 2012

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9. If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini-truck which was being driven rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence.

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10. The matter might have been different if by reason of his rash and negligent driving, the accident had taken place.”

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The Apex Court in the case of MOHAMMED SIDDIQUE

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AND ANOTHER –V- NATIONAL INSURANCE COMPANY

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LIMITED AND OTHERS reported in (2020) 3 SCC 57 has held that the deceased was riding the motorcycle along

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MFA No. 9865 of 2012

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with two others is a violation of provisions of motor vehicle act, it cannot lead to a finding of contributory negligence.

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In view of the above, in this case, the Insurance Company has not proved that the deceased was not wearing helmet. Even assuming that the deceased was not wearing helmet is violation of provisions of motor vehicle Act, it cannot lead to a finding of contributory negligence, unless it is established that the act of riding without helmet was contributed to the accident.

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Accordingly, the Tribunal has rightly answered issue No.1 in the affirmative and there is no error in the judgment and award passed by the Tribunal.

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In respect of quantum of compensation, the Tribunal after considering the evidence of the parties, age, avocation of the deceased, the overall compensation awarded by the Tribunal is just and reasonable.

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Accordingly, the appeal is dismissed .

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