Partly allowed

Smt. Shaila W/O Manjappa K.D. v. the Managing Director

Karnataka HC21 Jun 2024MFA/103396/2017

Case brief

AI extract

What is this about?

Claimants sought enhancement of compensation for death in a bus accident; the Tribunal had assessed notional income at Rs.10,000 per month. The High Court allowed the application to adduce additional evidence on the deceased's income and remanded the matter to the Tribunal only for re-determination of loss of dependency.

What did the court decide?

Application under Order XLI Rule 27 CPC allowed; matter remitted to Tribunal to determine income and re-determine loss of dependency; parties to appear 15 July 2024.

Smt. Shaila W/O Manjappa K.D. Vs the Managing Director — Motor Accident Claims | Karnataka HC (2024)

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- 1 - NC: 2024:KHC-D:8313-DB MFA No. 103396 of 2017

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21^ST DAY OF JUNE, 2024

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PRESENT

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THE HON'BLE MR JUSTICE S G PANDIT

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA

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MISCELLANEOUS FIRST APPEAL NO.103396 OF 2017 (MV-D)

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BETWEEN:

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SMT. SHAILA W/O. MANJAPPA K.D., AGE: 46 YEARS, OCC. HOUSEHOLD WORK, R/O: NARVE-577126, POST: NARVE, TALUKA: KOPPA, DISTRICT: CHIKKAMAGALURU.

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SHRI MANJAPPA K.D. S/O. DUGGAPPA GOUDA, AGE: 52 YEARS, OCC. AGRICULTURE, R/O: NARVE-577126, POST: NARVE, TALUKA: KOPPA, DISTRICT: CHIKKAMAGALURU.

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KUMARI VIBHA D/O. MANJAPPA K.D., AGE: 27 YEARS, OCC. HOUSEHOLD WORK, R/O: NARVE-577126, POST: NARVE, TALUKA: KOPPA, DISTRICT: CHIKKAMAGALURU.

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…APPELLANTS

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(BY SMT. SUNANDA P.PATIL, ADVOCATE)

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AND:

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Digitally signed by VINAYAKA B V Location: HIGH COURT OF KARNATAKA

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THE MANAGING DIRECTOR, VRL LOGISTICS LIMITED, BENGALURU ROAD, VARUR, HUBBALLI-580 020, DISTRICT: DHAWAD.

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THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, NO.1 AND 2, ENKAY COMPLEX, HUBBALLI-580020, DISTRICT: DHARWAD.

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…RESPONDENTS

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(BY SRI HANUMANTHAREDDY SAHUKAR, ADVOCATE FOR R1; SRI C.V. ANGADI, ADVOCATE FOR R2)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 04.07.2017 PASSED IN MVC NO.123/2015 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, HUBBALLI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,

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

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JUDGMENT

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Appellant/Claimants have preferred this appeal against the judgment and award dated 04^th July, 2017 passed in MVC No.123 of 2015 by the II Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal, Hubballi (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 with their rank and status before the Tribunal.

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Brief facts of the case leading to this appeal are that the petitioners filed petition under Section 166 of the Motor Vehicles Act, 1998 seeking compensation of Rs.1,25,00,000/- for death of Vinuth in the accident. It is stated in the claim petition that on 08^th July, 2014, Vinuth K M, was proceeding in VRL Volvo bus bearing registration No.KA25/D-1400 towards Mumbai from Shivamogga on BangalorePune National Highway and while so performing the journey, on the next day, i.e. on 09^th July, 2014 at 5.00 pm, when the bus was moving in the vicinity of Vele village, near Khabatki tunnel, the driver of the bus lost control and drove the same in rash

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and negligent manner and dashed to the hill and as a result the said Vinuth sustained grievous injuries and succumbed at the spot. It is further stated in the claim petition that as on the date of accident, the deceased was aged 24 years, was hale and healthy and has completed Hospitality Management course from SVGH Vocational Training College and completed a program of training and assessment in Food Safety and Catering and also completed training course in Personal Safety and Social Responsibilities, Fire Prevention and Fire Fighting Personnel Survival Techniques, Elementary First Aid form Sea Scan Maritime Foundation and also completed training course in Passenger-ship Familiarisation Course and Crisis Management Operational Level and also completed HACCP Course programme in Mumbai. The deceased was working as Assistant Waiter in Cruise i.e. MSC Crociere SA through Imperial Ocean Management Private Limited, Mumbai and earning a salary of more than US$ 1,500.00 per month from 15^th June 2013 to 04^th April, 2014 on contract basis. It is also contended that during the service he even completed a programme of training which is approved by the UK Maritime and Coastguard Agency in Security Awareness. The deceased was experienced in the said field as he had worked in P & O Cruises before joining MSC Crociere SA. Further, the deceased after completion of contract

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period had applied for renewal of contract through the Imperial Ocean Management Pvt. Ltd., Mumbai. Due to sudden demise of the deceased, petitioners are put to mental agony and shock and on all these grounds, preferred the claim petition.

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After service of notice, respondents appeared

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through their counsel. Respondent No.2 filed objections. Respondent No.1 has not filed objection.

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The sum and substance of the statement of objections of respondent No.2 is that the petition is false, frivolous and fabricated not tenable in the eye of law. Further, it is also denied as to the averments made in the claim petition. It is also contended that the deceased Vinuth K M did not travel in the bus on the date of the alleged accident. It is admitted that the respondent No.1 is the owner of the bus and the said bus was insured with the respondent No.2 and the policy was in force as on the date of accident. The respondent no.2 has no knowledge about the relationship between the deceased and

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the petitioners and the compensation claimed is very exorbitant. It is also contended that the legality, validity and authenticity of the alleged qualification and certified are not from notified and recognised educational institutions and the deceased had no income as on the date of the accident. Further, the driver who was driving the vehicle at the alleged

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time of accident did not possess, legal, valid and effective driving licence and the owner, knowingly, violated the conditions of the insurance policy. On all these grounds sought to dismiss the claim petition. Based on the pleadings, the Tribunal framed appropriate issues.

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To prove the case of the petitioners, four witnesses were examined as PWs1 to 4 and forty documents were produced as Exhibits P1 to P40. Respondents have not adduced any evidence on their behalf, but marked six documents as R1 to R6 with consent. Having heard on both sides, the Tribunal has allowed the claim petition in part and awarded compensation of Rs.12,70,000/- with interest at the rate of 8% per annum from the date of petition till realisation. Being aggrieved by the impugned judgment and award, the appellant/claimants have preferred this appeal seeking enhancement of compensation.

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During the pendency of the appeal, the appellants have filed application in IA.I of 2014 under Order XLI Rule 27 read with Section 151 of the Code of Civil Procedure to issue witness summons to the witness shown in the application and also produced the salary certificate of deceased Vinuth who worked at MSC Orchestra Vessel under Panama Flag from 15^th June 2013 to 04^th April, 2014 as Assistant Waiter. The

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Respondent No.2-Insurer has filed its written objections to the said application.

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Smt. Sunanda P. Patil, learned counsel for the

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appellants would submit that the compensation awarded by the Tribunal is on the lower side and requires to be enhanced. The Tribunal failed to note that the deceased was aged 24 years as on the date of accident and was hale and healthy. The deceased had completed Hospitality Management Course from SGVH Vocational Training College, Mugtihalli, Chikkamagalur and completed a programme of training and an assessment in Food Safety in Catering and also completed training courses in Personal Safety and Social Responsibilities, Fire Prevention and Fire Fighting Personnel Survival Techniques, Elementary First Aid from Sea Scan Maritime Foundation and also completed training course in Passenger-ship Familiarisation Course and Crisis Management Operational Level and also completed HACCP Course Programme from International Cruises Culinary Academy Pvt. Ltd. in Mumbai. It is further submitted that prior to accident, the deceased was working as an Assistant Waiter on contract basis in Cruise, MSC Crociere SA through Imperial Ocean Management Private Limited, Mumbai and earning more than Rs.US$ 1500.00 per month from 15^th June, 2013 to 04^th April, 2014. The deceased was experienced in the said field as

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he had worked in P & O Cruises before joining MSC Crociere SA. However, he submits that Tribunal erred in considering the income of the deceased only at Rs.10,000/- per month for awarding compensation towards loss of dependency. Learned

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Counsel further submitted that the Tribunal has failed to consider the documents Exhibit P23 and 29, so also, has ignored the evidence of PW2 as to the income of the deceased. Further, the Tribunal has also not properly considered the future prospects of the deceased. The Tribunal has observed that the petitioners have not produced documents to show that the deceased was working as on the date of accident. Now, the claimants have filed application under Order LXI Rule 27 read with Section 151 of the Code of Civil Procedure to adduce additional evidence. It is stated that due to inadvertence, the appellants have not produced the said evidence before the Tribunal and the proposed additional evidence is very much required to adjudicate the matter in dispute. If this application is not allowed, the appellants would be deprived of getting just and reasonable compensation. On all these grounds sought to allow the application and remand the matter to the Tribunal to lead additional evidence. To substantiate the submissions, the learned counsel relied upon the judgment of the Hon'ble Supreme Court in the case of RAJWATI @ RAJJO AND OTHERS

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v. UNITED INDIA INSURANCE COMPANY LIMITED AND OTHERS reported in (2023) ACR 183 (SC) and the decision of this Court in the case of MANAGER, RELIANCE GENERAL INSURANCE CO. LTD. v. SHIVALEELA AND OTHERS reported in 2020 ACJ 2421.

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Per contra, Sri C.V. Angadi, learned counsel

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appearing for respondent No.2 submit that based on the available evidence on record, the Tribunal has awarded just compensation in accordance with law and facts and there is no need for interference. He also submitted that the respondents have satisfied the award and at this belated stage, without assigning any appropriate reasons, the appellants have filed this application. There is no merit in the application and hence, he sought for dismissal of application as well as the main appeal.

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Having heard on both sides and perusal of appeal papers and original record, the following point would arise for our consideration:

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Whether the appellants have made out a ground to allow the application under Order XLI Rule 27 of the Code of Civil Procedure to remand the matter to the Tribunal to consider the additional

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evidence sought to be produced by the appellants/claimants;

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What order or award?

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Our answer to the above points is as under:

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Point No.1: in the affirmative;

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Point No.2: as per final order.

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Regarding Point No.1:

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We have examined the material placed before this Court. The appellant/claimants have filed claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.1,25,00,000/- for the death of Vinuth KM in the road traffic accident. The Tribunal allowed the claim petition by holding that the accident occurred due to rash and negligent driving of the bus by its driver and awarded compensation of Rs.12,70,000/-. In the petition at Column No.5, the name and address of the employer of the deceased is shown as MSC Crociere SA, in column 6 the monthly income is shown as Rs.1,00,000/- approximate US$1500.00 The petitioners have also produced Exhibits P5 to P15 certificates issued by authorities, Exhibit P16-appointment letter, Exhibit P17-computer printout letter; Exhibit P18-Appraisal form; Exhibit P21-Employment contract; Exhibit P22-Joining Letter;

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Exhibits P24 to 26-salary certificates; Exhibit P30-Passport; Exhibit P32-copy of bus ticket; Exhibit P33-SSLC marks card;

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Exhibit P34-Letter of Bank, Exhibits P35 to P38-Form A, B, C and D; Exhibit P39-Encashment certificate, as also, adduced the oral evidence of PWs1 to 4.

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PW1.Smt. Shaila, mother of the deceased has deposed as to the avocation and income of the deceased. PW2-Sachin M. Khedekar, Senior Operation Manager, Imperial Ocean Management Private Limited, Mumbai, has deposed that the deceased Vinuth KM worked as Assistant Waiter in Cruise MSC Crociere SA through Imperial Ocean Management Pvt. Ltd. Mumbai and was earning more than US$ 670 per month as salary from 15^th June, 2013 to 04^th April, 2014 on contract basis. The deceased, after completion of the said contract period, has applied for renewal of contract through the said company and submitted his application and also produced his Original Passport. He has further deposed as to documents Exhibits P20 to P22, P30 and P31.

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PW3-Kum. Vibha sister of deceased also deposed as to avocation and salary of the deceased. She has also deposed as to documents Exhibits P32 to P39.

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The Tribunal has observed in the judgment that there is no proof or document before the Court to show the exact income of the deceased as on the date of the accident and has ignored the oral and documentary evidence placed by

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the petitioners and considered the notional income of the deceased at Rs.10,000/- per month.

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The appellants have filed application in IA.I of 2024 under Order XLI Rule 27 read with Section 151 of Code of Civil Procedure to issue witness summons to the witness i.e. Managing Director, MSC Crewing Service Private Limited Shipping Company, 3^rd Floor, MSC Home, 2^nd and Andheri-Kurla Road, Opp. Divine Child High School and Junior College, Andheri East, Mumbai 400059, to produce salary certificate of the deceased who worked at MSC Orchestra Vessel under Panama Flag for nine months twenty four days from 15^th June, 2013 to 04^th April, 2014 as Assistant Waiter. The application is also supported by the affidavit of Vibha the appellant No.3 in which she has stated that the deceased was working as Assistant Waiter in MSC Orchestra Vessel under Panama Flag. The letter issued by Mediterranean Shipping Company Crew Department, Italy, is produced at Exhibit P23 to confirm that the deceased and other four crew members wre transferring from Bombay to Civitavecchia (Italy) on 15^th June, 2013 to join the vessel MSC Orchestra Panama Flag in the port of Civitavecchia. Salary slips of the deceased are also produced at Exhibits P24 to P26 for the month of December, 2013, January and February 2014 and as per the said salary slips the

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deceased was earning Rs.1588.49, 1597.12 and 1500.77 US$ respectively and it is stated that US$1588.49 is equivalent to 1,02,425/- Indian Rupees. Further, she has stated that recently they contacted the office of MSC Crewing Service Private Limited Shipping Company in Mumbai for issuance of salary certificates of the deceased. They were informed that to search the same from the old records, as he was serving approximately ten years back, if the court issues summons, then definitely they would search and furnish the same before the Court. Hence, they sought for allowing the application.

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Learned counsel for respondent No.2-Insurer has filed statement of objections contending that the application filed under Order XLI Rule 27 of Code of Civil Procedure seeking issuance of witness summons is neither maintainable in law nor on facts. It is stated that the petitioners have not stated valid reasons in the application, so as to satisfy the requirements of Order XLI Rule 27 of Code of Civil Procedure. The provision under Order XLI Rule 27 of Code of Civil Procedure relate to production of evidence and not seeking issuance of witness summons. The appellants have not produced income-tax returns, admittedly the deceased is an Indian citizen. The date of accident is 09^th July, 2015 and as on that date, the deceased

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was not employed. Hence, it is contended that there is no merit in the application and sought for dismissal of application.

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In view of Section 168 of the Motor Vehicles Act,

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1988, the function of the Tribunal or Court is to award “just compensation”. The Motor Vehicle Act is beneficial and welfare legislation. A “just compensation” is one which is reasonable on the basis of the evidence produced on record. It cannot be said to have become time-barred. There is no need for new cause of action to claim an enhanced amount. The courts are dutybound to award just compensation as observed by the Hon'ble Supreme Court in the case of RAMLA v. NATIONAL INSURANCE COMPANY LIMTED reported in 2019 ACJ 559. It is also pertinent here to refer to the decision of Hon'ble Supreme Court in the case of RAJWATI (supra), wherein at paragraph 19 of the judgment, it observed as under:

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“ 19. It is well settled that Motor Vehicles Act, 1988 is a beneficial piece of legislation and as such, while dealing with compensation cases, once the actual occurrence of the accident has been established, the Tribunal’s role would be to award just and fair compensation. As held by this Court in Sunita (Supra) and Kusum Lata (Supra), strict rules of evidence as applicable in a criminal trial, are not applicable in motor accident compensation cases, i.e., to say, “the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond

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all reasonable doubt which is followed in criminal cases”. ”

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Considering the facts and circumstances and also

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the opinion expressed by the Tribunal, it is just and proper to permit the appellants to produce additional evidence which are required to do substantial justice between the parties. It is to be noted that due to inadvertence, the claimants might have not produced the proposed additional evidence before the Tribunal. Since the Tribunal has expressed its opinion that the petitioners have failed to produce the acceptable evidence as to the income of the deceased, the proposed additional evidence is very much required to adjudicate the matter in dispute. If the application is not allowed, the petitioners would be deprived of getting just and reasonable compensation as to the death of Vinuth who died in the road traffic accident. It is also the duty of the Court/Tribunal to award just compensation in accordance with law. Keeping in mind the aforesaid decisions and provisions of Section 168 of the Motor Vehicles Act, 1988 and also the application filed in IA.I of 2024, so also, considering the arguments advanced on behalf of the appellants, it is just and proper to allow the application filed under Order XLI Rule 27 of the Code of Civil Procedure. Hence, we answer point No.1 in the affirmative.

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Regarding Point No.2:

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For the aforesaid reasons and discussions, we proceed go pass the following:

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O R D E R

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Appeal is partly allowed;

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IA.I of 2014 filed under Order XLI Rule 27 read with Section 151 of Code of Civil Procedure is allowed;

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Matter is remitted back to the Tribunal only to the extent of determining the income of the deceased on the basis of the additional documents and to re-determine the compensation under the head “loss of dependency” to enable the appellant to adduce additional evidence as sought for;

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Both the parties are permitted to adduce, additional evidence, if any, before the Tribunal, so as to determine the just compensation and only to that extent the case is remanded;

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Both parties are directed to appear before the Tribunal on 15^th July, 2024 without awaiting for any notice in this regard;

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The Tribunal shall dispose of the matter as expeditiously as possible, as the matter is of the year 2015;

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Registry to transmit copy of this judgment along with IA.I of 2024 along with documents if any, and the trial Court records to the concerned court forthwith.

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Sd/JUDGE

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Sd/JUDGE

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LNN List No.: 1 Sl No.: 13

Smt. Shaila W/O Manjappa K.D. v. the Managing Director

Case brief

What is this about?

What did the court decide?

Smt. Shaila W/O Manjappa K.D. v. the Managing Director

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

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