Partly allowed

Govindraj S/O Putopanth Kulkarni v. Ismail S/O Rashid Sait

Karnataka HC8 Sept 2023MFA/102575/2016

Case brief

AI extract

What is this about?

The High Court allowed a first appeal against a Motor Accident Claims Tribunal award dismissing a death claim, finding the Tribunal erred in rejecting evidence. The Court set aside the lower award and awarded Rs. 11,73,000/- along with interest.

What did the court decide?

Compensation of Rs. 11,73,000/- awarded with interest at 6% p.a. to the claimants from the date of filing of the petition until realization.

Govindraj S/O Putopanth Kulkarni Vs Ismail S/O… — Motor Accident Claims | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:10280-DB MFA No. 102575 of 2016

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 8^TH DAY OF SEPTEMBER, 2023

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PRESENT

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

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AND

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THE HON'BLE MR JUSTICE G. BASAVARAJA MISCELLANEOUS FIRST APPEAL NO.102575 OF 2016 (MV-D)

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BETWEEN:

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SRI GOVINDRAJ S/O. PUTOPANTH KULKARNI, AGE:79 YEARS, OCC: NIL, R/O: H.NO.307, DATT GALLI, AT POST: MARIHAL, TQ AND DIST: BELAGAVI-590013.

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SMT. JAYASHREE W/O. GOVINDRAJ KULKARNI, AGE: 69 YEARS, OCC: NIL, R/O: NO.NO.307, DATT GALLI, AT POST: MARIHAL, TQ AND DIST: BELAGAVI-590013.

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Digitally signed by SHIVAKUMAR HIREMATH Date: 2024.01.09 15:23:06 +0530

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SMT. PRIYANKA W/O. MADAN KULKARNI, AGE:31 YEARS, OCC:NIL, R/O: H.NO.307, DATT GALLI, AT POST: MARIHAL, TQ AND DIST: BELAGAVI.-590013.

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KUMAR PREETAM S/O. MADAN KULKARNI, AGE:13 YEARS, OCC:NIL, R/O: H.NO.307, DATT GALLI, AT POST: MARIHAL, TQ AND DIST: BELAGAVI-590013, SINCE MINOR REPRESENTED BY NATURAL GUARDIAN MOTHER-APPELLANT NO.3.

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…APPELLANTS

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

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AND:

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MR. ISMAIL S/O. RASHID SAIT, AGE: 42 YEARS, OCC: BUSINESS, R/O: HOUSE NO.BC51, DURGA ROAD, NEAR M.T. GATE CAMP BELAGAVI-590002, (OWNER OF THE VEHICLE BEARING NO. KA-11/9736)

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IFFCO TOKIO GENERAL INSURANCE CO. LTD., REPRESENTED BY BRANCH OFFICE THE MANAGER, IFFCO TOKIO GENERAL INSURANCE CO. LTD., SHIKSHAKAR BHAVAN, COLLEGE ROAD, BELAGAVI.-590002, (INSURER OF THE VEHICLE BEARING NO.KA-11/E-97396)

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BASAVARAJ S/O. VEERABHADRA MADAMMANAVAR, AT POST: MARIHAL, TALUKA AND DIST:BELAGAVI-590013. (OWNER OF THE VEHICLE BEARING NO.KA-33/3540)

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…RESPONDENTS

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

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THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 19.01.2016 PASSED IN MVC NO.1446/2013 ON THE FILE OF THE VI ADDITIONAL AND SESSIONS JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI AND AWARD THE COMPENSATION AS PRAYED OF JUSTICE AND EQUITY.

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

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NC: 2023:KHC-D:10280-DB MFA No. 102575 of 2016

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JUDGMENT

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Appellant-Claimants have preferred this appeal against the judgment and award dated 19^th January, 2016 passed in MVC No.1446 of 2013 on the file of VI Additional District & Sessions Judge and Additional Motor Accident Claims Tribunal, Belagavi (for short hereinafter referred to as the "Tribunal").

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

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Brief facts of the case are that on 20^th December, 2011, on Belgaum-Bagalkot Road, when deceased Madan Kulkarni, along with pillion rider was going on motorcycle bearing registration No.KA-11/E-3540, near Marihal, the driver of the offending truck bearing registration No.KA-11/P-9736 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 Madan Kulkarni the son of petitioners No.1 and 2, Husband of petitioner No.3, as well as father of defendant No.4, causing his death. It is stated that, as on the date of accident, police have filed false complaint without making any enquiry

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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 the deceased 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.

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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.

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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 scene immediately after the accident. With regard to alleged

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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.

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Based on the rival pleadings, the Tribunal has framed the issues for its consideration. In order to substantiate the case, petitioner No.2 was examined as PW1 and another witness viz. Ramanagouda Patil was examined as PW2 and nine documents were marked as Exhibits as P1 to P9. Respondents have not adduced on their behalf and four documents are marked as Exhibits R1 to R4. On hearing both sides, the Tribunal has dismissed the claim petition. Being aggrieved by the dismissal of claim petition, the appellant-claimants have preferred this appeal.

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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

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to R4. On these grounds sought for allowing the appeal.

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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.

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

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

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NC: 2023:KHC-D:10280-DB MFA No. 102575 of 2016

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Whether the claimants are entitled for compensation as sought for?

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What order or award?

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Our answer for the above points is as under:

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

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Regarding Points 1 and 2:

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We have carefully examined the material placed on

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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 ridden by the claimant, 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.2-Smt. Jayashree was examined as PW1 and Sri Virupakshi Shankarappa, one of the eye-witnesses to the accident, was examined as PW2 and produced nine documents as per Exhibits P1 to P9. On the basis of the complaint filed by one

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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 as per Exhibit P5 in which it is clearly stated that the death is due to brain injury sustained as result of blunt trauma to the head. 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 Govindaraj 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

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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 with vakalat of the wife of the deceased. Thereafter, the concerned jurisdictional Magistrate has taken cognizance and recorded the sworn-in-statement of PWs1 and 2 and passed the order on "C" report, which reads as under:

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"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

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and the Truck bearing No. KA 11/9736 driven by one Ramesh Bhimappa Danappagol, R/o Hudali village, drove 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.

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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

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that the above said Truck bearing No. KA 11/9736 and the person by name Ramesh Danappagol was driving the vehicle which caused the accident, resulting in the accident. Hence, I pass the following:

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ORDER

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'C' report is hereby rejected.

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

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

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By... 16.5.13"

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In view of the above order, the learned JMFC,

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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. PW2Virupaksha Shankarappa, 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

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evidence on their behalf to discard the evidence placed by the 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.

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Regarding Point No.2:

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Now the point is to awarding of compensation. The accident is not in dispute and the death of Madan Kulkarni 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.

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Further, as per the dictum of the Hon'ble Supreme Court in the 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-third has to be deducted towards personal expenses of the deceased and after deduction the monthly income comes to Rs.5,600/-. 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.5,600/- 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:

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Sl.No.	Head	Amount (Rs.)
1.	Towards loss of dependency	10,08,000.00
	Towards loss of consortium (Rs.44,000 x 3)	1,32,000.00
2.	Towards loss of estate	16,500.00
3.	Towards transportation of dead body and funeral expenses	16,500.00
	Total	11,73,000.00

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Accordingly, we answer point No.1 partly in the affirmative.

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In the result, we pass the following:

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ORDER

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Appeal is partly allowed;

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Judgment and award dated 19^th January, 2016 passed in MVC No.1446 of 2013 on the file of VI Additional District & Sessions Judge and Additional Motor Accident Claims Tribunal, Belagavi, is set aside. Claim Petition is partly allowed.

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