Partly allowed

Lakshminarasamma @ Narasamma v. the Branch Manager

Karnataka HC19 Jul 2023MFA/1267/2023

Case brief

AI extract

What is this about?

This court allowed an application for additional evidence regarding a charge sheet in a motor vehicle accident case. Rejecting the lower tribunal's dismissal based on a technical defect, the court found actionable negligence proved and awarded total compensation of Rs.26,85,000 to the heirs of the deceased driver. The appeal was partly allowed.

What did the court decide?

The appeal was partly allowed; the impugned award set aside; compensation of Rs.26,85,000 awarded with 6% interest; specific directions for deposit and distribution of funds to appellants.

Lakshminarasamma @ Narasamma Vs the Branch Manager — Insurance | Karnataka HC (2023)

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1 - NC: 2023:KHC:25237-DB MFA No. 1267/2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF JULY, 2023

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO.1267/2023 (MV-D)

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BETWEEN:

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LAKSHMINARASAMMA @ NARASAMMA W/O SATHISH @ SATHYAPPA AGED ABOUT 36 YEARS AADHAR NO.2203 2602 0308

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SOUJANYA D/O SATHISH @ SATHYAPPA AGED ABOUT 13 YEARS

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AADHAR NO.9889 7745 5704

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BRUNDA

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D/O SATHISH @ SATHYAPPA AGED ABOUT 07 YEARS

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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A2 AND A3 ARE MINORS REPTED. BY THEIR NATURAL GUARDIAN AND MOTHER LAKSHMINARASAMMA @ NARASAMMA W/O SATHISH @ SATHYAPPA AGED ABOUT 36 YEARS

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ALL ARE R/AT GOUNIPALLI, CHILEPALLI KOLAR – 563 161 …APPELLANTS

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(BY SRI HEMANTHA B, ADVOCATE)

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AND:

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THE BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD. NO.366/72, 19^TH MAIN, 1^ST BLOCK RAJAJINAGAR, BENGALURU - 560 010

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2. MOHAMMED FAZIL

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S/O MOHAMMED ALI MAJOR R/AT NO.3, 5^TH CROSS ROFT GARDEN, NEELASANDRA BENGALURU – 560 047 …RESPONDENTS

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(BY SRI B.C.SHIVANNE GOWDA, ADVOCATE FOR R1; SRI S.YATHIRAJ, ADVOCATE FOR R2)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 30.01.2023 PASSED BY THE XIV ADDITIONAL SMALL CAUSES JUDGE AND ACMM AND MEMBER, MACT, BENGALURU (SCCH-10) IN MVC NO.5536/2021 DISMISSING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FURTHER HEARING THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging the dismissal of their claim petition, claimants in MVC No.5536/2021 on the file of XIV-Additional Small Causes Judge & MACT, Bengaluru (SCCH-10) have preferred this appeal.

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Appellants were claimant Nos.1 to 3. Respondent Nos.1 and 2 were respondent Nos.1 and 2 in MVC No.5536/2021 before the Tribunal. Claimant No.1 is the wife, claimant Nos.2 and 3 are the minor daughters of the deceased Sathisha @ Sathyappa.

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3 - NC: 2023:KHC:25237-DB MFA No. 1267/2023

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On 28.10.2021 at 6.30 p.m. when Sathisha @ Sathyappa was riding motorcycle bearing registration No.KA07/W-4189 near Pataballapalli gate, within the limits of Srinivasapura police station, Bus bearing registration No.KA08/6906 hit the motorcycle of Sathisha @ Sathyappa and caused the accident. Sathisha @ Sathyappa suffered grievous injuries and died at the spot.

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Regarding accident, claimant No.1 filed complaint as per Ex.P2 before the Srinivasapura police alleging that the accident and consequent death of Sathisha @ Sathyappa occurred due to actionable negligence on the part of the driver of the bus bearing registration No.KA-08/6906. Based on such complaint, Srinivasapura police registered the FIR as per Ex.P1 against the driver of the bus in crime No.182/2021 of their police station. On investigation, the said police filed charge sheet as per Ex.P8 against the driver of the bus for the offences punishable under Sections 279 and 304A IPC. At the relevant time, respondent Nos.1 and 2 were the insurer and registered owner of the bus bearing registration No.KA-08/6906 respectively.

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Claimants filed MVC No.5536/2021 claiming compensation of Rs.50,00,000/- from the respondents alleging that the accident and consequent death of Sathisha @ Sathyappa occurred solely due to actionable negligence on the part of the driver of the bus. They further contended that, they were all dependent on the income of Sathish and due to his death they have suffered the damages.

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Respondent Nos.1 and 2 contested the petition denying the actionable negligence on the part of the driver of the bus, his age, occupation, income and their liability to pay the compensation. On behalf of the claimants, claimant No.1 was examined as PW.1 and Exs.P1 to 15 were marked. Respondents did not lead any evidence.

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The Tribunal on hearing the parties by the impugned award dismissed the petition on the sole ground that Ex.P8 the copy of the charge sheet produced by the claimants does not bear the signature of the Investigating Officer. Therefore, the same is not admissible in evidence. It was further held that no proper documents were produced to prove that the charge sheet was filed against the driver of the bus.

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In view of such finding of the Tribunal, learned

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Counsel for the claimants/appellants has filed I.A.No.1/2023 before this Court under Order XLI Rule 27 read with Section 151 CPC to produce the certified copy of the charge sheet as additional evidence.

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Sri. Hemantha B, learned Counsel for the claimants/appellants submits that respondents had not disputed the filing of the charge sheet nor they examined the driver of the bus to dispute the involvement of the bus or his actionable negligence, despite that, the Tribunal dismissed the petition on hyper technical ground. He further submits that, they want to clarify that under IA No.1/2023 the claimants have produced the certified copy of the charge sheet, copy of which was already marked as Ex.P8. Therefore, the same may be received as additional evidence and claim petition may be allowed.

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Sri B.C.Shivanne Gowda, learned Counsel for respondent No.1/the insurer seeks to justify the impugned award on the ground that Ex.P8 the charge sheet was not authenticated document. He submits that even assuming that the charge sheet is filed, that itself is not conclusive proof of

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involvement of the vehicle or actionable negligence on the part

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of the driver of the bus. PW.1 was not eyewitness to the accident. Despite denying involvement of the vehicle, no eyewitnesses were examined to prove occurrence of the accident. Therefore, the Tribunal was justified in dismissing the petition on the ground that the accident as alleged was not proved.

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On hearing the submissions of both side and on considering the records, the points that arise for determination of the Court are:

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(i) Whether I.A.No.1/2023 for production of additional evidence deserves to be allowed?

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(ii) Whether the impugned order of dismissal of the claim petition is sustainable, if not, what would be the just compensation payable to the claimants?

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Reg. Point Nos.1 & 2:

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To substantiate their contention that, on 28.10.2021 at 6.30 p.m. when Sathisha @ Sathyappa was riding motorcycle bearing No.KA-07-W-4189 near Pataballapalli gate, due to actionable negligence of driver of bus bearing No.KA-08-6906, the said bus hit Satisha and caused him

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grievous injuries and his ultimate death, the claimants relied on

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the evidence of PW.1 and Exs.P1 to P8 namely the first information report, complaint, spot mahazar, sketch of scene of accident, postmortem report, inquest mahazar, IMV report and copy of the charge sheet. Though PW.1 was not eyewitness, in her cross-examination, registration of the first information report as per Ex.P1 on the complaint (Ex.P2) filed by PW.1, drawing of the spot mahazar, MV Inspection report, sketch of scene of offence, filing of the charge sheet were not at all disputed.

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Respondent No.2 the owner of the bus who was allegedly involved in the accident neither cross-examined PW.1 nor led his evidence to dispute the aforesaid documents. Despite that the Tribunal dismissed the petition on the sole ground that Ex.P8 does not bear the signature of the Investigating Officer. Ex.P8 was the copy of the charge sheet issued by Sub-Inspector of Police of Srinivasapura Police Station in which the complaint was filed and investigation was conducted. The Investigating Officer subscribes his signature on the charge sheet while submitting the same to the Court. It appears that the copy of the unsigned charge sheet maintained in the police station was issued to the claimants. To clarify that

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8 - NC: 2023:KHC:25237-DB MFA No. 1267/2023

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under I.A.No.1/2023 the claimants have produced certified copy of the charge sheet in Crime No.182/2021 on securing the same from the Principal Civil Judge (Junior Division), JMFC Court, Srinivasapura. The said document shows that the charge sheet filed to the Court was signed by one RaviKumar.C., the police Inspector of Srinivasapura Police Station. That document is not in dispute. That document is produced only for the purpose of clarification. Therefore there is no impediment to receive the same as additional evidence, more particularly when those documents were not disputed by the respondents even before the Tribunal.

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Ex.P1 to P8 coupled with the certified copy of the charge sheet produced before this Court show that on the complaint of claimant No.1/PW.1 alleging actionable negligence on the part of the driver of the bus bearing No.KA-08-6906, on investigation, the charge sheet was filed against the driver of the bus bearing No.KA-08-6906 for the offences punishable under Sections 279 and 304A of IPC. The said evidence was not rebutted by the respondents either by examining the driver of the bus or by leading any other evidence. Therefore, it can be said that the claimants have

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9 - NC: 2023:KHC:25237-DB MFA No. 1267/2023

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proved that the accident in question has occurred due to actionable negligence on the part of the driver of the bus.

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The Tribunal without appreciating the aforesaid evidence, taking very technical/narrow view held that the claimants have failed to prove occurrence of the accident due to actionable negligence on the part of the driver of the bus and dismissed the petition, such finding is unsustainable.

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Reg. quantum:

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The Tribunal on returning the finding that the accident as alleged is not proved, without considering the quantum of compensation dismissed the claim petition. In the ordinary course, in such cases the matter would have been remanded for determining the compensation or to consider that issue. Records show that evidence adduced by the claimants with regard to quantum of compensation, was subjected to cross-examination and no rebuttable evidence was adduced by the respondents.

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Though the claimants contended that the deceased was earning Rs.30,000/- per month by doing coolie work and as drama artist, no evidence was adduced by the claimants in proof of his actual income. Therefore income has to be

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assessed notionally. Under the circumstances, exercise of computing the damages can be done by this Court only instead of remanding the matter.

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As per Ex.P9 the Aadhar card of the deceased his date of birth was 1982. The accident took place in the year 2021. Therefore, as on the date of the accident, he was aged 39 years. Considering prevailing wage rates, cost of living at the relevant time and age of the deceased, assessing the income of the deceased notionally at Rs.15,000/- per month is just and fair.

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As per the judgment of the Hon’ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi¹ and considering the age of the deceased, 40% of the income of the deceased has to be super added to his income by way of future prospects. On such addition, his monthly income comes to Rs.15,000/- + 6,000= Rs.21,000/-.

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As the deceased had three dependants, as per the judgment of the Hon’ble Supreme Court in Sarla Varma v. Delhi Transport Corporation² 1/3^rd of his income has to be deducted for his personal expenses. Therefore, his monthly contribution

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1 AIR 2017 SC 5157

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2 AIR 2009 SC 3104

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to the family comes to Rs.21,000 x 2/3^rd = Rs.14,000/- per month. For the age of the deceased, the applicable multiplier was 15. Therefore, the compensation payable on the head of loss of dependency comes to Rs.14,000/- x 12 x 15 = Rs.25,20,000/-.

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As per the judgments of the Hon'ble Supreme Court in Pranay Sethi’s case and Magma General Insurance Company Ltd. v. Nanu Ram³ , each of the claimants are entitled to compensation of Rs.40,000/- on the head of spousal and parental consortium with escalation at 10% which comes to Rs.1,32,000/-. As per the aforesaid judgments, the claimants are entitled to compensation of Rs.15,000/- on the head of loss of estate and Rs.15,000/for funeral expenses and transportation with escalation at 10% which comes to Rs.33,000/.- Therefore, the just compensation payable to the claimants in this case is as follows:

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Sl. No.	Particulars	Compensation Amount in Rs.
1.	Loss of dependency	25,20,000/-
2.	Loss of consortium	1,32,000/-
3.	Loss of estate & funeral expenses	33,000/-
	Total	26,85,000/

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3 2018 (18) SCC 130

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At the time of the accident, the offending vehicle

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was insured with respondent No.1. The policy was in force. Therefore being owner of offending vehicle, respondent No.2 is vicariously liable to pay the compensation and respondent No.1 is liable to indemnify the damages to the insured. For the aforesaid reasons, the I.A.1/2013 deserves to be allowed and the appeal deserves to be allowed in part. Hence, the following:

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ORDER

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I.A.No.1/2023 is allowed. The appeal is partly allowed. The impugned award of the Tribunal is hereby set aside. The claim petition in M.V.C.No.5536/2021 is partly allowed.

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(i) The claimants are entitled to compensation of Rs.26,85,000/- with interest thereon at 6% p.a. from the date of petition till the date of deposit.

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(ii) Respondent No.1 shall deposit the said compensation before the Tribunal within four weeks from the date of receipt of copy of this judgment.

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(iii) Out of the aforesaid compensation, claimant No.1 is entitled to 50% and claimant Nos.2 and 3 are entitled to 25% each as their share of compensation.

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(iv) The share of claimant Nos.2 and 3 shall be invested

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in fixed deposit in any nationalized/scheduled bank of the choice of claimant No.1 till they attain majority with liberty to claimant No.1 to draw accrued interest periodically.

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(v) Out of share of claimant No.1, the Tribunal shall release 60% of her share to her digitally on furnishing the required documents and remaining 40% shall be invested in fixed deposit in any nationalized/scheduled bank of her choice for a period of three years.

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(vi) Registry shall transmit the records to the Tribunal forthwith.

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Sd/JUDGE

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Sd/JUDGE

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PKN,KSR List No.: 1 Sl No.: 34

Lakshminarasamma @ Narasamma v. the Branch Manager

Case brief

What is this about?

What did the court decide?

Lakshminarasamma @ Narasamma v. the Branch Manager

Case brief

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