Dismissed

The Divisional Manager United India Insurance Co.Ltd., v. Smt. Sharada Shetty W/O a.Bhaskar Shetty

Karnataka HC15 Nov 2023MFA/100535/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed two motor vehicle accident appeals. One was by claimants seeking compensation enhancement; the other by the insurance company challenging liability. The Court found no merit in either appeal.

What did the court decide?

Both the appeal by claimants seeking enhancement and the appeal by insurance company challenging liability were dismissed with costs.

The Divisional Manager United India Insurance… — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC-D:13254-DB MFA No. 104557 of 2022 C/W MFA No. 100535 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 15^TH DAY OF NOVEMBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV AND THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL

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MISCELLANEOUS FIRST APPEAL NO. 104557 OF 2022 (MV-D) C/W MISCELLANEOUS FIRST APPEAL NO. 100535 OF 2023 (MV-D)

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IN MFA NO. 104557 OF 2022:

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BETWEEN:

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SMT. SHARADA SHETTY W/O A. BHASKAR SHETTY, AGE. 60 YEARS, OCC. HOUSEHOLD WORK, R/O. SRIPAD NAGARA, DHARWAD-580008.

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SHRI. ROHITH SHETTY S/O A. BHASKAR SHETTY, AGE. 37 YEARS, OCC. BUSINESS, R/O. SRIPAD NAGARA, DHARWAD-580008.

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Digitally signed by SHIVAKUMAR SHIVAKUMAR HIREMATH HIREMATH Date: 2023.11.29 11:18:19 +0530

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SMT. PADMASHREE C. SHETTY W/O CHANDRASHEKHAR SHETTY, AGE. 34 YEARS, OCC. HOUSEHOLD WORK, R/O. SRIPAD NAGARA, DHARWAD-580008.

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(BY SRI. B.S. SANGATI, ADVOCATE)

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… APPELLANTS

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AND:

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SRI. NARAYANA GURU GOND, AGE. MAJOR, OCC. BUSINESS, R/O. 22/A, BITTIBILURU GOLIBILURU, BHATKAL, NORTH KANARA DISTRICT-581320.

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THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LTD., OPP. DISTRICT COURT, NEAR KALA BHAVAN, P.B. ROAD, DHARWAD-580008.

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NC: 2023:KHC-D:13254-DB MFA No. 104557 of 2022 C/W MFA No. 100535 of 2023

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POLICE NO.2409033118P108387428, VEHICLE NO. KA-47/3536.

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… RESPONDENTS

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(BY R1 NOTICE DISPENSED WITH; SMT. SHARMILA M. PATIL, ADVOCATE FOR R2)

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THIS MFA FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 30-09-2022 PASSED IN MVC NO.620/2019 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIM TRIBUNAL. DHARWAD, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 100535 OF 2023:

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BETWEEN:

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THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., OPP. DISTRICT COURT, NEAR KALA BHAVAN, P.B. ROAD, DHARWAD, R/BY THE AUTHORIZED SIGNATORY REGIONAL OFFICE, HUBBALLI-23.

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… APPELLANT

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(BY SMT. SHARMILA M. PATIL, ADVOCATE)

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AND:

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SMT. SHARADA SHETTY W/O A. BHASKAR SHETTY, AGE. 62 YEARS, OCC. HOUSE HOLD WORK, R/O. SHRIPAD NAGAR, DHARWAD-580030.

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SHRI. Y. ROHIT SHETTY S/O A. BHASKAR SHETTY, AGE. 39 YEARS, OCC. BUSINESS, R/O. SHRIPAD NAGAR, DHARWAD-580030.

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SMT. PADMASHREE C. SHETTY W/O CHANDRASHEKHAR SHETTY, AGE. 36 YEARS, OCC. HOUSE HOLD WORK, R/O. SHRIPAD NAGAR, DHARWAD-580030.

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SHRI. NARAYANA GURA GOND, AGE. MAJOR, OCC. BUSINESS, R/O. H.N 22/A NO.1 BITTIBILURU, BHATKAL-581320, NORTH KANARA DISTRICT. … RESPONDENTS

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(BY SRI. B.S. SANGATI, ADVOCATE FOR R1-R3; R4 SERVED)

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THIS MFA FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 30.09.2022 PASSED IN MVC NO.620/2019 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, DHARWAD, AWARDING COMPENSATION OF Rs.13,21,665/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL ITS DEPOSIT.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, VIJAYKUMAR A.PATIL, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA No.104557/2022 is filed by the legal heirs of the deceased seeking enhancement of compensation. MFA No.100535/2023 is filed by the insurance company challenging the liability as well as quantum of compensation. Both the appeals are filed against the judgment and award dated 30.09.2022 passed by the Principal Senior Civil Judge and MACT, Dharwad (hereinafter referred to as ‘Tribunal’, for short), in M.V.C.No.620/2019.

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Brief facts giving rise to filing of this appeal are that the appellant/claimants filed a claim petition under Section 166 of Motor Vehicles Act, 1988 seeking compensation for the death of one Sri A. Bhaskar Shetty in the road traffic accident and the claimants are the

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dependants of the deceased. It is averred that on 10.06.2019, at 3.00 p.m., on NH 66 near Trasi beach, Mayur Dhaba, Trasi village, Kundapur Taluk, Udupi District, the said A. Bhaskar Shetty was proceeding on motorcycle bearing No.KA-36/Y-1680. At that time a Bolero vehicle bearing No.KA-47/3536 came in a high speed, in a rash and negligent manner and dashed to the motorcycle, resulted in causing grievous injuries to the said Sri. A. Bhaskar Shetty and thereafter he was shifted to the Adarsha Hospital, Udupi wherein he succumbed to the injuries suffered in the accident. It is further averred that the deceased was hale and healthy prior to the accident and was only bread earner of the family. It is also averred that the occupation of the deceased was hotel business and he was earning Rs.5,00,000/- per annum and sought for compensation.

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The respondent No.1 remained exparte before the tribunal. Respondent No.2 appeared and filed objections to the claim petition denying the age, avocation of the deceased. The insurance company

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NC: 2023:KHC-D:13254-DB MFA No. 104557 of 2022 C/W MFA No. 100535 of 2023

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contended that the vehicle number of the offending vehicle was not recorded in the FIR and the Investigating Officer in collusion with the claimants, impleaded the Bolero vehicle for the purpose of seeking compensation. It is further averred that the deceased was not possessing valid and effecting driving licence and was not wearing helmet while riding the motorcycle and has contributed negligence to the accident and sought for dismissal of the claim petition.

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The Tribunal framed the issues and recorded the evidence of the parties. The claimant No.1 was examined herself as PW-1, another witness was examined as PW-2 and got marked Exs.P-1 to P-15 and respondentinsurance company examined RW-1 and got marked Exs.R-1 and R-2. The Tribunal considering the material evidence on record, awarded compensation of Rs.13,21,665/- along with 6% p.a. interest directing the insurance company to pay the compensation. Being aggrieved by the same, the claimants as well as the insurance company are in the respective appeals.

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NC: 2023:KHC-D:13254-DB MFA No. 104557 of 2022 C/W MFA No. 100535 of 2023

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Learned counsel Sri B.S. Sangati for the appellant/claimants submits that the Tribunal has committed an error in assessing the income of the deceased as the appellants have produced the income tax returns for the year 2017-2018, 2018-2019 and 20192020 as Exs.P-13 to P-15. As per Ex.P-15, it is evident that the income of the deceased after deduction was shown as Rs.4,72,843/- and the Tribunal ought to have considered the same instead of taking the average annual income of three years. It is submitted that the Tribunal has erred in applying the multiplier of 5 as the deceased was aged about 65 years on the date of accident and the appropriate multiplier would be 7. It is further submitted that the award of compensation on other heads is also on the lower side and seeks for enhancement of compensation.

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Per contra , learned counsel Smt. Sharmila Patil for appellant-insurance company submits that the Tribunal has committed a grave error in assessing the income of the deceased at Rs.3,47,000/- per annum

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NC: 2023:KHC-D:13254-DB MFA No. 104557 of 2022 C/W MFA No. 100535 of 2023

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taking average annual income of three years as the income for financial year i.e., 2019-2020 is on the higher

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side compared to the income tax returns 8 preceeds years. Hence, she submits that the Tribunal ought to have assessed the income of the deceased around Rs.2,00,000/- per annum not as average annual income

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of all the three years. She further submits that the Tribunal has committed an error in fastening the entire liability on the insurance company as initially the vehicle number of the offending vehicle was not recorded in the FIR and vehicle was falsely implicated in the charge sheet

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by the Investigating Officer in collusion with the claimants. It is also contended that the Tribunal has committed an error in not taking note that the deceased was not having driving licence on the date of accident and was also not wearing helmet. Hence, the Tribunal ought to have held that the deceased has also contributed to the accident in question ought to have and fastened 50% liability on the deceased. It is also contended that the award of compensation by the Tribunal is just and proper

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NC: 2023:KHC-D:13254-DB MFA No. 104557 of 2022 C/W MFA No. 100535 of 2023

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and does not call for any enhancement in the appeal filed by the claimants. She seeks to allow the appeal filed by the insurance company.

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Having heard the learned counsel for the appellant-claimants, learned counsel for the appellantinsurance company, perused the memorandum of appeals

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and the Tribunal records, the points that arise for consideration in these appeals are:

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1) Whether the Tribunal has justified in fastening the entire liability on the insurance company?

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2) Whether the appellant/claimants are entitled for any enhancement of compensation?

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The answer to the above points are in the

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affirmative and negative, respectively, for the following reasons:

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It is not dispute that on 10.06.2019, at 3.00 p.m., on NH 66 near Trasi beach, Mayur Dhaba, Trasi village, Kundapur Taluk, Udupi District, Sri. A. Bhaskar Shetty was proceeding on motorcycle bearing No.KA36/Y-1680 and at that time, a Bolero vehicle bearing

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No.KA-47/3536 came in a high speed, in a rash and negligent manner and dashed to the motorcycle, resulted in causing grievous injuries and later death of Sri. A. Bhaskar Shetty. It is also not in dispute that Bolero vehicle bearing No.KA-47/3536 was insured with the appellant-insurance company. Evidence on record disclose that the insurance company has not examined the driver of Bolero to substantiate their claim that Bolero vehicle was not involved in the accident and also to substantiate the contention that the deceased has contributed the negligence to the accident in question.

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The insurance company has examined its official as RW-1 and has produced 2 documents i.e., insurance policy and the vehicle history report.

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On perusal of the evidence on record, it is evident that the appellant-insurance company has not adduced any cogent and acceptable evidence before the Tribunal to substantiate their claim that Bolero vehicle bearing No.KA-47/3536 was not involved in the accident and also having failed to establish that the deceased has

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NC: 2023:KHC-D:13254-DB MFA No. 104557 of 2022 C/W MFA No. 100535 of 2023

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contributed to the accident in question, the evidence on record indicated that the Investigating Officer after investigation has filed charge sheet against the drive of Bolero vehicle. On perusal of the charge sheet papers it is evident that Bolero vehicle was involved in the accident and mere not mentioning the vehicle number in the FIR initially itself cannot be a ground to come to the conclusion that the vehicle was not involved in the accident. On the contrary the evidence on record clearly demonstrates that the vehicle bearing No.KA-47/3536 was involved in the accident. Hence, the contention of the appellant/insurance company has no merit consideration and accordingly the same is rejected. The insurance company has also contended that the deceased was not having valid driving licence as on the date of the accident and was not wearing helmet. The said contention is only a self serving statement in the statement of objections. The insurance company has failed to adduce any evidence before the Tribunal to substantiate the same. The insurance company has not

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examined the driver of Bolero vehicle to substantiate the contention that the deceased was also negligent while riding the motorcycle nor made any attempt to adduce independent witness to substantiate that the deceased was not having vehicle driving licence and was not wearing helmet. In the absence of any such evidence on record, there is no reason for this Court to disbelieve the reasons assigned by the Tribunal in fastening the liability on the insurance company. The contention of the insurance company that the deceased was not holding driving licence and not wearing helmet itself is not a ground to come to the conclusion that the deceased has contributed to the accident in question unless the appellant/insurance company places, the independent evidence on record to substantiate their contentions before the Tribunal that the deceased was not possessing valid and effective driving licence on the date of accident and was not wearing helmet. Except the statement before the Tribunal, no evidence whatsoever has been placed by the insurance company to substantiate the said

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contention. Hence, there is no merit in the contention raised by the insurance company. Accordingly, the same is rejected.

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This Court on close scrutiny of the reasoning assigned by the Tribunal at para 7 and 8, it is evident that the vehicle bearing No. KA-47/3536 was involved in the accident and the driver of the said vehicle was responsible for causing accident in question. The finding recorded by the Tribunal are neither perverse nor contrary to the evidence on record calling for any interference in the present appeal. We do not find any merit in the appeal filed by the insurance company.

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It is the contention of the appellant/claimants that the Tribunal has committed an error in assessing the income of the deceased at Rs.3,47,140/- per annum. We have perused Exs.P-13 to P-15, the income tax returns of the deceased for the year 2017-2018 to 2019-2020, it is evident that after deductions permissible under law, the income for the year 2017-2018 was Rs.2,79,780/-, for the year 2018-2019 the income was Rs.2,88,800/- and for

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NC: 2023:KHC-D:13254-DB MFA No. 104557 of 2022 C/W MFA No. 100535 of 2023

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the year 2019-2020 the income was Rs.4,72,843/-. There is no doubt that for the year 2019-2020, there is increase in the income compared to the previous year. Admittedly, these income tax returns filed by the deceased preceding 3 years of the accident. The Tribunal taking note of the income after the deductions has taken

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the average annual income of all the three years and has assessed the income of the deceased at Rs.3,47,140/- per annum. We do not find any error or infirmity in such assessment as the appellants have not placed any other corroborative evidence before the Tribunal to substantiate

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the claim that income of the deceased has increased substantially from the preceding years. Hence, in the absence of any other evidence on record, we do not find any reason to interfere with the findings recorded by the Tribunal in para 12 of the judgment.

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The Tribunal has rightly applied 5 as multiplier taking note that the deceased was aged 65 years on the date of accident as he was born on 12.02.1954 as is evident from the copy of the driving licence placed before

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the Tribunal. The Tribunal applied the appropriate multiplier and awarded just compensation under all the heads which do not call for any interference in the appeal filed by the claimants.

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For the aforesaid reasons, we do not find any merits in the appeal filed by the claimants as well as in the appeal filed by the insurance company. Accordingly, both the appeals are dismissed.

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Registry is directed to transmit the amount deposited by the insurance company to the Tribunal along with records.

Sd/JUDGE

Sd/JUDGE

NAA

List No.: 1 Sl No.: 18

The Divisional Manager United India Insurance Co.Ltd., v. Smt. Sharada Shetty W/O a.Bhaskar Shetty

Case brief

What is this about?

What did the court decide?

The Divisional Manager United India Insurance Co.Ltd., v. Smt. Sharada Shetty W/O a.Bhaskar Shetty

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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