Partly allowed

Ningappa S/O Basawaneppa Rachannavar, v. Ismail S/O Rashid Sait

Karnataka HC13 Sept 2023MFA/101207/2016

Case brief

AI extract

What is this about?

The High Court allowed this first appeal partly. It found the Tribunal erred in rejecting the claim petition. The court awarded compensation of Rs. 14.31 lakhs to the deceased's legal heirs, including loss of dependency, consortium, and funeral expenses, against the vehicle owner and insurer.

What did the court decide?

Compensation of Rs. 14,31,000 awarded jointly and severally against Respondents 1 and 2, with interest at 6% per annum from the date of petition.

Ningappa S/O Basawaneppa Rachannavar, Vs Ismail S/O… — Motor Accident Claims | Karnataka HC (2023)

¶1

1 - NC: 2023:KHC-D:10569-DB MFA No. 101207 of 2016

¶2

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

¶3

DATED THIS THE 13^TH DAY OF SEPTEMBER, 2023

¶4

PRESENT

¶5

THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR

¶6

AND

¶7

THE HON'BLE MR JUSTICE G BASAVARAJA MISCELLANEOUS FIRST APPEAL NO. 101207 OF 2016 (MV)

¶8

BETWEEN:

¶9

NINGAPPA S/O. BASAWANEPPA RACHANNAVAR, AGE: 67 YEARS, OCC: NIL, R/O: AT POST: MARIHAL, TQ AND DIST: BELAGAVI.

¶10

SMT. SHINGAWA W/O. NINGAPPA RACHANNAVAR, AGE: 60 YEARS, OCC: NIL, R/O: AT POST: MARIHAL, TQ AND DIST: BELAGAVI.

¶11

SMT. KALAWATHI W/O. SHIVANAND RACHANNAVAR, AGE: 32 YEARS, OCC: NIL, R/O: AT POST: MARIHAL, TQ AND DIST: BELAGAVI.

¶12

Digitally signed by SHIVAKUMAR HIREMATH Date: 2024.01.08 16:41:39 +0530

¶13

AKSHAY S/O. SHIVANAND RACHANNAVAR, AGE: 9 YEARS, OCC: NIL, R/O: AT POST: MARIHAL, TQ AND DIST: BELAGAVI,

¶14

SINCE MINOR REP. BY NATURAL GUARDIAN MOTHER APPELLANT NO.3.

¶15

ANJALI D/O. SHIVANAND RACHANNAVAR, AGE: 6 YEARS, OCC: NIL, R/O: AT POST: MARIHAL, TQ AND DIST: BELAGAVI, SINCE MINOR REPRESENTED BY NATURAL GUARDIAN MOTHER APPELLANT NO.3

¶16

- 2 - NC: 2023:KHC-D:10569-DB MFA No. 101207 of 2016

¶17

ARCHANA D/O. SHIVANAND RACHANNAVAR, AGE: 4 YEARS, OCC: NIL, R/O: AT POST: MARIHAL, TQ AND DIST: BELAGAVI,

¶18

SINCE MINOR REP. BY NATURAL GUARDIAN MOTHER APPELLANT NO.3.

¶19

(BY SMT. GEETHA K.M. @ PAWAR, ADVOCATE)

¶20

AND:

¶21

MR. ISMAIL S/O. RASHID SAIT, AGE: 42 YEARS, OCC: BUSINESS, R/O: HOUSE NO.BC51 DURGA ROAD, NEAR M.T. GATE CAMP BELAGAVI, TQ AND DIST: BELAGAVI, (OWNER OF THE VEHICLE BEARING NO.KA-11/9736)

¶22

IFFCO TOKIO GENERAL INSURANCE CO.LTD., REPRESENTED BY BRANCH OFFICE, THE MANAGER, IFFCO TOKIO GENERAL INSURANCE CO. LTD., SHIKSHAKAR BHAVAN, COLLEGE ROAD, BELAGAVI, (INSURER OF THE VEHICLE BEARING NO.KA-11/E-9736)

¶23

BASAVARAJ S/O. VEERBHADRA MADAMMANAVAR, AT POST: MARIHAL, TQ AND DIST: BELAGAVI, (OWNER OF THE VEHICLE BEARING NO.KA-33/3540)

¶24

(BY SRI R.R. MANE, ADVOCATE FOR R2; NOTICE SERVED TO R1 AND R3)

¶25

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT & AWARD DATED:16.11.2015, PASSED IN MVC.NO.2203/2013 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL - V, BELAGAVI, AND AWARD THE COMPENSATION AS PRAYED OF JUSTICE AND EQUITY.

¶26

¶27

NC: 2023:KHC-D:10569-DB MFA No. 101207 of 2016

¶28

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, BASAVARAJA, J., DELIVERED THE FOLLOWING:

¶29

JUDGMENT

¶30

Appellant-Claimants have preferred this appeal against the judgment and award dated 16^th November, 2015 passed in MVC No.2203 of 2013 on the file of IV Additional District & Sessions Judge and Additional Motor Accident Claims Tribunal, Belagavi (for short hereinafter referred to as the "Tribunal").

¶31

For the sake of convenience, the parties in this appeal are referred to as per their status and rank before the Tribunal.

¶32

Brief facts of the case are that on 20^th December, 2011, at about 11.30 pm on Belgaum-Bagalkot Road, when the deceased was going on a motorcycle as pillion rider, at that time, the driver of the truck bearing registration No.KA-11/P9736 owned by respondent No.1 and insured by respondent No.2, drove the same in a rash and negligent manner and dashed to the hind side of the motorcycle owned by respondent No.3, ridden by one Madan Kulkarni. Due to impact, the pillion rider deceased-Shivanand Rachannavar sustained grievous injuries and died on the spot. It is stated that, as on the date of accident, police have filed false complaint without making

¶33

4 - NC: 2023:KHC-D:10569-DB MFA No. 101207 of 2016

¶34

any enquiry and same was registered in Marihal Police Station in Crime No.234 of 2012. Further, on getting to know about the facts, the father of rider of motorcycle deceased-Madan Kulkarni filed complaint before Superintendent of Police, Belagaum. But the Police have filed 'C' Report and for the same, the wife of deceased-Madan Kulkarni has filed protest application. The learned III JMFC, Belgaum has taken cognizance. Thereafter, the petition is filed claiming compensation from respondents 1 and 2. Respondent No.3 is arrayed only as formal party.

¶35

In pursuance of notice, respondents 1 and 2 appeared through their counsel and respondent No.3 has been placed exparte. The substance of the written statement of respondent No.1 is that he is the owner of the offending vehicle and same was insured with the respondent No.2-Insurance Company and further denied all the averments made in the claim petition.

¶36

The substance of the statement of objections of respondent No.2 is that the policy was in force in respect of offending vehicle on the date of the accident. The death of the deceased was due to hit by an unknown vehicle, which fled the

¶37

- 5 - NC: 2023:KHC-D:10569-DB MFA No. 101207 of 2016

¶38

scene immediately after the accident. With regard to alleged accident, the Police Sub-Inspector, Marihal Police station has filed a complaint before Marihal Police stating that when he was on night patrol, he saw that a motorcycle had met with an accident due to hit by an unknown vehicle. After due investigation, Marihal Police filed 'C' Summary report. There is no evidence to show that death of deceased is due to the involvement of the offending truck. The driver of the offending truck had no valid and effective driving licence as on the date of accident, permit and Fitness Certificate and further, he has denied all the averments made in the claim petition as false and sought for dismissal of the petition.

¶39

Based on the rival pleadings, the Tribunal has framed the issues for its consideration. In order to substantiate the case, petitioner No.1 was examined as PW1 and another witness viz. Virupaxi Murkibhavi was examined as PW2 and eleven documents were marked as Exhibits as P1 to P11. Respondents have not adduced on their behalf and two documents are marked as Exhibits R1 to R2. On hearing both sides, the Tribunal dismissed the claim petition. Being

¶40

6 - NC: 2023:KHC-D:10569-DB MFA No. 101207 of 2016

¶41

aggrieved by the dismissal of claim petition, the appellantclaimants have preferred this appeal.

¶42

Learned counsel appearing on behalf of the appellantclaimants submits that the impugned judgment and award passed by the Tribunal is illegal and arbitrary. The respondent No.2 has admitted as to the issuance of insurance policy of the truck and its validity as on the date of accident. The Tribunal has failed to appreciate the evidence of PWs1 and 2 and also the averments made in Exhibits P1 to P9 and also Exhibits R1 to R4. On these grounds sought for allowing the appeal.

¶43

On the other hand, learned counsel appearing for the respondent-Insurance Company sought to support the impugned judgment and award and submits that the Tribunal, on considering the oral and documentary evidence placed before it, has rightly dismissed the claim petition and there is no ground to interfere with the same in this appeal and hence sought to dismiss the appeal.

¶44

Having heard the arguments on both sides, the following points would arise for our consideration in this appeal:

¶45

¶46

NC: 2023:KHC-D:10569-DB MFA No. 101207 of 2016

¶47

Whether the appellant-claimants have made out a ground to interfere with the impugned judgment and award?

¶48

Whether the claimants are entitled for compensation as sought for?

¶49

What order or award?

¶50

Our answer for the above points is as under:

¶51

Point No.1: In the affirmative; Point No.2: Partly in the affirmative; Point No.3: as per final order.

¶52

Regarding Points 1 and 2:

¶53

We have carefully examined the material placed on record by both the parties. It is the case of the appellants that 20^th December, 2011, on Belgaum-Bagalkot Road, the driver of the offending truck bearing registration, drove the same in a rash and negligent manner and dashed to the hind side of the motorcycle on which the deceased was pillion rider, causing his death. It is stated that, as on the date of accident, police have filed false complaint without making any enquiry and same was registered in Marihal Police Station in Crime No.234 of 2012. To substantiate the case of the appellant-claimants, Petitioner No.1-Smt. Kalawathi was examined as PW1 and Sri Virupakshi Murkibhavi, one of the eye-witnesses to the accident, was

¶54

8 - NC: 2023:KHC-D:10569-DB MFA No. 101207 of 2016

¶55

examined as PW2 and produced nine documents as per Exhibits P1 to P11. On the basis of the complaint filed by one Govindaraja Puttopant Kulkarni, Marihal Police have registered case in Crime No.234 of 2011 and conducted inquest panchnama of deceased-Madana Govindaraja Kulkarni on 21^st December, 2011 as per Exhibit P1, in which it is stated as to the vehicle number and accused which had caused accident is not known. Police have also conducted stop panchnama in presence of panchas as per Exhibit P2 and prepared rough sketch on spot as per Exhibit P3; obtained MVI report of the motorcycle. Investigating Officer has obtained Post-mortem report. After the investigation, Investigating Officer submitted 'C' Report. The same was accepted by the learned III JMFC, Belgaum on 03^rd October, 2012 which is reflected in the order sheet pertaining to CC No.328 of 2013. Before submitting this ‘C’ report, one Gonvidaraj Putopanth Kulkarni has filed compliant to the Superintendent of Police, Belagavi as petitioner Exhibit P8 in which he has clearly stated that the accident occurred due to the rash and negligent act of the driver of the truck bearing Registration No.KA-11-9736. After receiving the complaint on 11^th January, 2012, the PSI-CRC for

¶56

9 - NC: 2023:KHC-D:10569-DB MFA No. 101207 of 2016

¶57

Superintendent of Police, has issued an endorsement by registering the complaint in Sl.No.7 of 2012 dated 11^th January, 2012 as per Exhibit P7. Exhibit P6-Order Sheet pertaining to CC No.328 of 2013 reflects that on 18^th January, 2013 one PMK, Advocate has filed the protest application to ‘C’ report. Thereafter, the concerned jurisdictional Magistrate has taken cognizance and recorded the sworn-in-statement of PWs1 and

¶58

2 and passed the order on "C" report, which reads as under:

¶59

"The PSI Marihal PS has registered a case on his own complaint regarding the accident in the midnight of 21.12.2011 wherein two persons have died, for the offence under Section 279, 304A IPC. In his final 'C' report, the IO has stated that the vehicle involved in the accident and the driver could not be traced, as there was no eye witness. The wife of deceased i.e., PW 1 filed protest petition to the said 'C' report and in her sworn statement deposed that she came to know about the accident after 3-4 hours of the accident. They were under the impression that the eye witness have lodged the complaint. After few days the witness who have attended the funeral ceremony have disclosed that the driver and the vehicle involved in the accident has been witnessed by them. Though they have made efforts to stop the vehicle, they could not succeed. One witness PW 2 has also deposed that he was present at the time of accident and the Truck bearing No. KA 11/9736 driven by one Ramesh Bhimappa Danappagol, R/o Hudali village, drove

¶60

10 - NC: 2023:KHC-D:10569-DB MFA No. 101207 of 2016

¶61

the vehicle in high speed and dashed the motor cycle driven by the deceased, due to which the riders of the motor cycle fell down and sustained fatal injuries.

¶62

2. Interestingly, in the present case, the owner of the alleged truck involved in the accident filed application under Section 451/457 Cr.P.C. for interim release of the vehicle before this Court, but same was withdrawn as not pressed on 9.4.12. The 'C' report came to be filed on 12.9.2012 which is after about five months from the date of filing the said application. It is also material to note that the applicant has produced all the relevant documents belongs to the said vehicle along with two photographs which shows that the said Truck was seized and Parked in the premises of the jurisdictional police. But, the IO has not disclosed the seizure of the vehicle in the 'C' report, which is totally defective and there is suspicious circumstances in the 'C' report. There is substance in the contentions of PW 1 and PW 2 that IO has not properly investigated and has not made proper enquiry with the eye witness. From the evidence of PW 1 and 2 and also from the documents and photographs produced by the RC owner, there are sufficient materials to show that the said Truck was involved in the accident and though IO has seized the said Truck has not disclosed in the 'C' report and hence, 'C' report is liable to be rejected. Based on the evidence of PW 1 and 2 and the materials on record which is ExP1 & 2 complaint lodged to S.P, Belgaum, there are prima facie materials to show that the above said Truck bearing No. KA 11/9736 and the person by name Ramesh Danappagol was driving the

¶63

11 - NC: 2023:KHC-D:10569-DB MFA No. 101207 of 2016

¶64

vehicle which caused the accident, resulting in the accident. Hence, I pass the following:

¶65

ORDER

¶66

'C' report is hereby rejected.

¶67

Cognizance for the offence under Section 279, 304(A) IPC is taken.

¶68

Register as CC and issue summons to the accused by name Ramesh S/o Bhimappa Danappagol, R/o Hudali village, Taluka and District Belgaum.

¶69

By... 16.5.13"

¶70

In view of the above order, the learned JMFC, Belgaum has taken cognizance for the offence punishable under Sections 279 and 304A of the Indian Penal Code against Ramesh-driver of the truck bearing No.KA-11-9736. PW2Virupakshi Murkibhavi, eye-witness to the accident has clearly deposed in his evidence as to the accident occurrence of accident due to negligence on the part of the driver of truck. During the course of cross-examination of PW1, the respondent No.2 has not disputed the protest petition filed by PW1 before the jurisdictional Magistrate and statement of witnesses recorded and also the order passed by the jurisdictional Magistrate on ‘C’ report. Respondents have not adduced any evidence on their behalf to discard the evidence placed by the

¶71

12 - NC: 2023:KHC-D:10569-DB MFA No. 101207 of 2016

¶72

petitioners. A careful examination of the impugned judgment and award makes it clear that the Tribunal has not assigned proper reasons to reject the oral and documentary evidence placed by the petitioners. It is also not in dispute that the policy was in force as on the date of accident. On reexamination/re-appreciation of the evidence on record, we are of the considered opinion that the petitioners have proved that the deceased died in the accident due to rash and negligent act on the part of the driver of the offending truck. accordingly we answer point No.1 in the negative.

¶73

Regarding Point No.2:

¶74

Now the point is to awarding of compensation. The accident is not in dispute and the death of Shivanand Rachannavar in the accident is also not in dispute. The accident is of the year 2011. In the cases where income is not proved by documentary evidence, following the chart issued by the Karnataka State Legal Services Authority, the notional income has to be taken. For the accidents of the year 2011, the notional income is to be taken at Rs.6,000/- per month. Further, as per the dictum of the Hon'ble Supreme Court in the

¶75

13 - NC: 2023:KHC-D:10569-DB MFA No. 101207 of 2016

¶76

case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157, 40% is to be added to the income towards future prospects. Accordingly the monthly income would be Rs.8,400/-. As there are four dependents one-fourth has to be deducted towards personal expenses of the deceased and after deduction the monthly income comes to Rs.6,300/-. As per the judgment of the Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION LIMITED AND ANOTHER reported in (2009)6 SCC 121, commensurate to the age of the deceased the appropriate multiplier would be 15. Hence, the loss of dependency comes to Rs.10,08,000/(Rs.6,300/- x 12 x 15). Further, as per the decision of the Hon'ble Supreme Court in the cases of SARLA VERMA, PRANAY SETHI (supra) and in the case of MAGMA GENERAL INSURANCE COMPANY LIMITED v. NANU RAM ALIAS CHUHRU RAM AND OTHERS reported in (2018)18 SCC 130, the claimants are entitled for compensation as follows:

¶77

Sl.No.	Head	Amount (Rs.)
1.	Towards loss of dependency	11,34,000.00
	Towards loss of consortium (Rs.44,000 x 4)	2,64,000.00
2.	Towards loss of estate	16,500.00

¶78

- 14 -

¶79

NC: 2023:KHC-D:10569-DB MFA No. 101207 of 2016

¶80

3.	Towards transportation of dead	body	16,500.00
	and funeral expenses
		Total	14,31,000.00

¶81

Accordingly, we answer point No.1 partly in the

¶82

affirmative.

¶83

In the result, we pass the following:

¶84

ORDER

¶85

Appeal is partly allowed;

¶86

Judgment and award dated 16^th November, 2015 passed in MVC No.2203 of 2013 on the file of VI Additional District & Sessions Judge and Additional Motor Accident Claims Tribunal, Belagavi, modified

¶87

Claimants are entitled for compensation of Rs.14,31,000/- with interest at 6% per annum from the date of petition till realisation;

¶88

Respondents 1 and 2 are jointly and severally liable to pay the compensation;

¶89

Respondent No.2 to deposit the compensation amount within 60 days form the date of receipt of certified copy of this judgment, before the Tribunal for onward disbursal of the same to the claimants in accordance with law;

¶90

15 - NC: 2023:KHC-D:10569-DB MFA No. 101207 of 2016

¶91

Registry to draw decree accordingly.

¶92

Send the copy of this judgment and trial Court records to the concerned court.

¶93

Sd/JUDGE

¶94

Sd/JUDGE

¶95

CKK LIST NO.: 1 SL NO.: 52

Ningappa S/O Basawaneppa Rachannavar, v. Ismail S/O Rashid Sait

Case brief

What is this about?

What did the court decide?

Ningappa S/O Basawaneppa Rachannavar, v. Ismail S/O Rashid Sait

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mr.M.P. Goudar Vs the I G-Cum-Chief Security Commissioner/

Smt. Bhavakana S/O Chandrakant Karvekar Vs Sri Reshma W/O Bhavakana Karvekar

Venkatesh S/O Bapu Bhomkar, Vs Rudresh D N S/O Nanjundaraya

Shri. Saradesai Navalgund Sirsangi Trust Vs Smt. Hanifa W/O Imamhussain Attar

Mrs.Safina W/O Ilias Shaikh Vs the Divisional Controller

Sairam S/O Manjunath Narasinganavar Vs Rajesh S/O Basavaraju