Partly allowed

Sri. Y.v.Venkate Gowda v. M/S Shree Distributors

Karnataka HC7 Nov 2024MFA/3242/2017

Case brief

AI extract

What is this about?

Parents of a motorcyclist killed in a collision with a Tata Ace sought enhanced compensation; the insurer contested vehicle involvement and quantum. The High Court upheld the Tribunal's finding on involvement via the unrebutted charge sheet presumption, reassessed income notionally with future prospects and conventional heads, reduced total compensation to Rs.14,99,700 at 6% interest.

What did the court decide?

Compensation modified to Rs.14,99,700 with 6% p.a. interest from date of petition till realisation, payable by insurer within four weeks.

Sri. Y.v.Venkate Gowda Vs M/S Shree Distributors — Insurance | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC:45043-DB MFA No.3242/2017 C/w MFA No.2463/2017

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 7^TH DAY OF NOVEMBER, 2024

¶4

PRESENT

¶5

THE HON'BLE MRS. JUSTICE K.S.MUDAGAL AND

¶6

THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL No.3242/2017 (MV-D) C/W MISCELLANEOUS FIRST APPEAL No.2463/2017 (MV-D)

¶7

M.F.A.No.3242/2017:

¶8

BETWEEN:

¶9

SRI Y.V.VENKATE GOWDA S/O LATE VENKATEGOWDA AGED ABOUT 60 YEARS

¶10

CHENNAMMA W/O Y.V. VENKATEGOWDA AGED ABOUT 56 YEARS

¶11

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

¶12

BOTH ARE R/AT NO.27 YALACHVADI VILLAGE KANAKAPURA TALUK

¶13

RAMANAGARA DISTRICT. … APPELLANTS

¶14

(BY SRI SHRIPAD V. SHASTRI, ADVOCATE)

¶15

AND:

¶16

M/S SHREE DISTRIBUTORS NO.63/2, SARAKKI MAIN ROAD GURUMURTHAPPA GARDEN J.P.NAGAR FIRST PHASE BANGALORE - 560 078

¶17

THE MANAGER

¶18

UNITED INDIA INSURANCE CO. LTD. NO.36/A, OPP: THIRTHASHARAMA KOTHNUR MAIN ROAD BANGALORE – 560 078

¶19

¶20

NC: 2024:KHC:45043-DB MFA No.3242/2017 C/w MFA No.2463/2017

¶21

(INSURER OF TATA ACE POLICY NO.0704813114P110320583 VALID FROM 25.2.2015 TO 24.2.2016) …RESPONDENTS

¶22

(BY SRI B.C.SEETHARAMA RAO, ADVOCATE FOR R2; NOTICE TO R1 DISPENSED WITH V/O DATED 15.11.2017)

¶23

THIS MISCELLANEOUS FIRST APPEAL IS FILED under section 173(1) OF MV ACT PRAYING TO ENHANCE THE COMPENSATION FROM Rs.22,58,500/TO Rs.30,00,000/AWARDED BY THE JUDGMENT AND AWARD DATED 01.02.2017 IN MVC NO.5209/2015 PASSED BY THE XIII ADDL. JUDGE, COURT OF SMALL CAUSES AND MEMBER, MACT, BENGALURU.

¶24

M.F.A.No.2463/2017:

¶25

BETWEEN:

¶26

UNITED INDIA INSURANCE CO., LTD., NO.36/A, OPP.THIRTHASHARMA KOTHAHUB MAIN ROAD BENGALURU THROUGH ITS REGIONAL OFFICE KRISHI BHAVAN BUILDING NRUPATHUNGA ROAD, BENGALURU - 560 009 REP. BY ITS DEPUTY MANAGER SMT. SUDHA D. RAO …APPELLANT

¶27

(BY SRI B.C.SEETHARAMA RAO, ADVOCATE)

¶28

AND:

¶29

SRI Y.V.VENKATE GOWDA AGED ABOUT 60 YEARS S/O LATE VENKATEGOWDA

¶30

SMT. CHENNAMMA AGED ABOUT 56 YEARS W/O Y.V.VENKATEGOWDA

¶31

BOTH ARE R/AT NO.27 YALACHAVADI VILLAGE KANAKAPURA TALUK RAMANAGARAM DISTRICT-562 117

¶32

M/S SHREE DISTRIBUTORS NO. 63/2, SARAKKI MAIN ROAD

¶33

¶34

NC: 2024:KHC:45043-DB MFA No.3242/2017 C/w MFA No.2463/2017

GURUMURTHAPPA GARDEN

J.P.NAGAR I PHASE

BENGALURU - 560 078

(OWNER OF TATA ACE NO.KA.01/AE-572) …RESPONDENTS

¶39

(BY SRI SHRIPAD V. SHASTRI, ADVOCATE FOR C/R1; SRI V.K. NARAYANASWAMY, ADVOCATE FOR R3; R2 SERVED)

¶40

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 01.02.2017 PASSED IN M.V.C.NO.5209/2015 ON THE FILE OF THE XIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER, MACT, BENGALURU.

¶41

THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶42

CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

¶43

ORAL JUDGMENT

¶44

( PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL)

¶45

Challenging the award in M.V.C.No.5209/2015 passed by the XIII Additional Court of Small Causes and MACT, Bengaluru, the insurer has preferred M.F.A.No.2463/2017 and claimants have preferred M.F.A.No.3242/2017.

¶46

Appellants in M.F.A.No.3242/2017 were the claimants and the respondents were the respondents before the Tribunal. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

¶47

¶48

NC: 2024:KHC:45043-DB MFA No.3242/2017 C/w MFA No.2463/2017

¶49

Claimant Nos.1 and 2 are the father and mother of deceased Lokesh. On 06.09.2015 at 11:00 p.m., when Lokesh was riding his motorcycle bearing Registration No. KA-02-HV-3322 near Gubbalala circle at Kanakapura Main Road within the jurisdiction of Kumaraswamy Layout traffic police station, he met with an accident. It was alleged that Tata Ace LGV bearing Registration No. KA-01-AE-572 driven by its driver in a rash and negligent manner, hit the bike of Lokesh and caused him grievous injuries. When he was being treated in the hospital, on 16.09.2015 Lokesh succumbed to the injuries. At the relevant time respondent Nos.1 and 2 were the registered owner and insurer of Tata Ace vehicle bearing No.KA-01-AE-572.

¶50

Claimants filed M.V.C.No.5209/2015 claiming that the deceased was working with Dhanalakshmi Steel Corporation and earning Rs.20,000/- per month and they were dependent on his income. They further contended that the accident and consequential death occurred due to actionable negligence on the part of the driver of Tata Ace bearing No.KA-01-AE-572, they spent huge amount for

¶51

5 - NC: 2024:KHC:45043-DB MFA No.3242/2017 C/w MFA No.2463/2017

¶52

medical expenses. Therefore, respondent Nos.1 and 2 are

¶53

liable to pay the compensation of Rs.30,00,000/-.

¶54

Respondent No.1 did not contest the petition. Respondent No.2 contested the petition denying occurrence of the accident involving Tata Ace vehicle bearing No.KA-01-AE-572, age, occupation and income of the deceased and its liability to pay the compensation.

¶55

In support of the case of the claimants, claimant No.1 was examined as PW.1, the alleged employer of the deceased was examined as PW.2, the Medical Record Technician, KIMS Hospital was examined as PW.3 and Exs.P1 to P29 were marked. Respondent No.2 did not lead any evidence.

¶56

The Tribunal on hearing the parties by the impugned judgment and order held that the accident occurred due to the actionable negligence on the part of the driver of Tata Ace LGV bearing No.KA-01-AE-572. The Tribunal based on Ex.P25/the driving license of the deceased considered his age as 28 years. Relying on the evidence of PW-2, considered the income of the deceased as Rs.20,000/per month, deducted 50% of the income of the deceased for

¶57

¶58

NC: 2024:KHC:45043-DB MFA No.3242/2017 C/w MFA No.2463/2017

¶59

his personal expenses, applied 17 multiplier and awarded

¶60

compensation of Rs.20,40,000/- on the head of loss of dependency. The Tribunal in all awarded compensation of Rs.22,58,500/- on different heads as follows:

¶61

1.	Loss of dependency	Rs.20,40,000/-
2.	Medical Expenses	Rs. 93,500/-
3.	Loss of Love and Affection (P-1 and 2 Rs.25,000/- each)	Rs. 50,000/-
4.	Loss of estate (P-1 and 2 Rs.25,000/- each)	Rs. 50,000/-
5.	Transportation of dead body and Funeral Expenses	Rs. 25,000/-
	Total	Rs.22,58,500/-

¶62

The Tribunal held that the insurer/respondent No.2 is liable to pay the compensation with interest at 8% per annum.

¶63

In M.F.A.No.3242/2017 the claimants have questioned the adequacy of the compensation awarded. The Insurer has filed M.F.A.No.2463/2017 challenging the involvement of the vehicle in the accident and quantum of compensation awarded.

¶64

Pending these appeals, claimants filed I.A.No.1/2018 seeking leave to adduce additional evidence.

¶65

¶66

NC: 2024:KHC:45043-DB MFA No.3242/2017 C/w MFA No.2463/2017

¶67

This Court by order dated 25.02.2021 allowed the said application and directed the Tribunal to record additional evidence with reference to the documents produced by the claimants and return a finding on the involvement of the vehicle.

¶68

On such remand, the claimants examined PW-4, the Medical Record Officer of Rajashekar Multispeciality Hospital Private Ltd., J.P Nagar, Bengaluru and one Renuka as PW-5 the eyewitness to the accident and during such evidence Exs.P30 to P33 were marked. The Insurer did not lead any evidence. The Tribunal on recording the evidence and hearing the parties returned finding dated 04.09.2021 holding that involvement of Tata Ace LGV bearing No. KA-01AE-572 in the accident is proved.

¶69

Sri B.C. Seetharama Rao, learned counsel for the insurer reiterating the grounds of appeal submits that there was delay in filing the complaint and delivering FIR to the Court. On remand, the Tribunal did not give opportunity to the insurer to rebut the additional evidence adduced by the claimants. The evidence on record shows that the vehicle was subsequently planted in collusion with respondent No.1

¶70

¶71

NC: 2024:KHC:45043-DB MFA No.3242/2017 C/w MFA No.2463/2017

¶72

and the other concerned. So far as the quantum of compensation, he submits that the evidence of PW.2 employer was apparently unacceptable. Therefore, the Tribunal was in error in accepting that deceased was earning Rs.20,000/- per month. The compensation awarded on all the heads is on the higher side. Therefore, insurer's appeal be allowed and the claimants' appeal be dismissed.

¶73

Per contra, Sri Shripad V. Shastri, learned Counsel for the claimants submits that on investigation, the charge sheet was filed against the driver of Tata Ace bearing No. KA-01-AE-572. Fraud or collusion was not pleaded by respondent No.2 in its statement of objections. Even the evidence of PW.4 and MLC intimation at Ex.P31 show that the injured was reported with the history of road traffic accident and even the vehicle numbers were mentioned. The delay in filing the complaint itself does not falsify the charge sheet. No rebuttal evidence was adduced by the Insurer. Therefore, the finding of the Tribunal regarding involvement of the insured vehicle cannot be interfered. He further submits that the Tribunal has not awarded any compensation on the head of loss of future prospects as per the judgment

¶74

¶75

NC: 2024:KHC:45043-DB MFA No.3242/2017 C/w MFA No.2463/2017

¶76

of the Hon'ble Supreme Court in National Insurance

¶77

Company Ltd., v. Pranay Sethi¹ and compensation awarded on the other heads is on the lower side. There is no reason to disbelieve the evidence of the PW.2 regarding employment. Hence, he seeks to enhance the compensation.

¶78

On hearing both side and on examination of the material on record, the questions that arise for

¶79

determination are:

¶80

(i) Whether the finding of the Tribunal that the accident in question occurred due to the actionable negligence on the part of the driver of Tata Ace bearing No.KA-01-AE-572 is sustainable?

¶81

(ii) Whether the compensation awarded is just one?

¶82

Analysis

¶83

Reg. Point No.1:

¶84

Initially the burden was on the claimants to prove

¶85

the fact that on 06.09.2015 at 11.00 p.m., Tata Ace bearing No.KA-01-AE-572 driven by its driver in rash and negligent

¶86

manner so as to endanger human life hit Lokesh when he was traveling in his motorcycle. To prove the said fact they

¶87

1 (2017) 16 SCC 680

¶88

10 -

¶89

NC: 2024:KHC:45043-DB MFA No.3242/2017 C/w MFA No.2463/2017

¶90

relied on the evidence of PW.1 and Exs.P1 to P8 i.e. FIR with complaint, spot mahazar, sketch, IMV Report, death intimation, charge sheet, inquest report and postmortem report respectively. Subsequent to remand, PW.5 was examined as eyewitness. It is true that in view of delay in examining PW.5, her evidence needs to be analyzed carefully. Irrespective of her evidence, indisputedly regarding the incident the complaint was filed before the police and the police on investigation have filed charge sheet against the

¶91

driver of Tata Ace vehicle. It is true that the charge sheet is not conclusive proof of actionable negligence or involvement of the vehicle. However, as per Section 114 Illustration (e) of the Indian Evidence Act, 1872 there is presumption that official acts are regularly performed. Therefore the charge sheet has presumptive value. It was for respondent No.2 to rebut the said presumption.

¶92

Though before this Court, it was vehemently argued by counsel for respondent No.2 that claimants in collusion with others have manipulated things leading to filing of the charge sheet, it is settled law that fraud, collusion and undue influence and their particulars need to

¶93

11 -

¶94

NC: 2024:KHC:45043-DB MFA No.3242/2017 C/w MFA No.2463/2017

¶95

be pleaded. But in the entire written statement of respondent

¶96

No.2, there is no whisper about fraud, collusion or charge sheet being outcome of manipulation. Therefore at this stage, it is not open to respondent No.2 to raise all those contentions for the first time.

¶97

Another ground urged to discredit charge sheet is that there is delay in filing the complaint and delivering FIR to the Court. Admittedly, claimants are not eyewitnesses to the incident. The complaint was filed by one Punith, cousin of the deceased. In the complaint, he has stated that since the vehicle owners and other people assured that they will meet the medical expenses and subsequently denied, there is delay in filing the complaint. It was contended that in Ex.P5 and the records of medical case sheet of KIMS Hospital also, involvement of Tata Ace vehicle is not mentioned. The alleged history given was only road traffic accident. First of all such contention was not raised before the Tribunal. Secondly, if any documents are advantageous to the respondents, it could have summoned the author of the documents and examined him. The respondents did not lead any evidence at all. It is not even their case that they conducted internal investigation and during that time, fraud

¶98

12 -

¶99

NC: 2024:KHC:45043-DB MFA No.3242/2017 C/w MFA No.2463/2017

¶100

surfaced. Though in Ex.P5/Ex.P31 itself it is stated that patient was unconscious, what was his level of consciousness is not forthcoming. In such critical situation, the first concern of the kith and kin of victim is to attend to his medical needs. They would not have foreseen the death and indulged in manipulation of records in such critical condition. After thorough investigation, charge sheet is filed. It is settled law that the proceeding before MACT are summary proceedings. Presumption available under Ex.P6/chargesheet was not rebutted. Under the circumstances, the Tribunal was justified in holding that the claimant has proved that the accident occurred due to actionable negligence on the part of the driver of Tata Ace Vehicle bearing No.KA-01-AE-572.

¶101

Reg. quantum:

¶102

Though the claimants’ contended that deceased was working with PW.2 the Proprietor of Dhanalakshmi Steel & Cement and earning Rs.20,000/- per month, the same was disputed by respondent No.2. Therefore burden was on the claimants to prove the same by acceptable evidence. PW.2 the alleged employer produced Exs.P21 to P25 i.e.,

¶103

13 -

¶104

NC: 2024:KHC:45043-DB MFA No.3242/2017 C/w MFA No.2463/2017

¶105

own pan card, his Value Added Tax Registration Certificate, driving license and income tax returns respectively. But such income tax returns and other documents did not indicate that PW.2 had employed the deceased as driver cum Maintenance Manager. Moreover, no wage register or bank statement of the deceased were produced to show that PW.2 had employed the deceased by paying him Rs.20,000/- per month. Thereby the claimants failed to discharge their burden of proving the fact of such employment and income. Under the circumstances, the Tribunal ought to have assessed the income of the deceased notionally without relying on the evidence of PW.2 and documents produced by him.

¶106

The accident occurred in the year 2015. Considering that the deceased was able bodied person aged 27 years, cost of living and prevailing wage rates during that period, wage of the deceased can be reasonably assessed at Rs.9,000/- per month. Having regard to the judgment of the Hon’ble Supreme Court in Pranay Sethi’s case referred to supra , the age and employment of the deceased, 40% has to be superadded to his income by way of future prospects.

¶107

14 -

¶108

NC: 2024:KHC:45043-DB MFA No.3242/2017 C/w MFA No.2463/2017

¶109

Therefore his income comes to Rs.9,000/- + Rs.3,600/- =

¶110

Rs.12,600/- per month.

¶111

In view of the judgment of the Hon’ble Supreme Court in Sarla Verma v. Delhi Transport Corporation² and having regard to the fact that the deceased was bachelor, the Tribunal ought to have deducted 50% towards personal expenses. Thereby his contribution to the family comes to (Rs.12,600/2) Rs.6,300/-. The applicable multiplier is 17. Therefore the compensation payable on the head of loss of dependency comes to Rs.12,85,200/- (Rs.6,300 x 17 x 12).

¶112

As per the judgments of the Hon'ble Supreme Court in cases of Pranay Sethi’s and Magma General Insurance Company Ltd., v. Nanu Ram³ the claimants are entitled to compensation on the head of consortium at Rs.40,000/- each with escalation of 10% which comes to Rs.88,000/-.

¶113

As per the judgment of the Hon'ble Supreme Court in Pranay Sethi’s case referred to supra , 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

¶114

2 (2009) 6 SCC 121

¶115

3 (2018) 18 SCC 130

¶116

NC: 2024:KHC:45043-DB MFA No.3242/2017 C/w MFA No.2463/2017

¶117

15 -

¶118

transportation with escalation at 10% per annum.

¶119

Compensation awarded on the head of medical expenses was based on the evidence adduced and therefore that needs to be maintained. Therefore the just compensation payable is

¶120

as follows:

¶121

Sl. No.	Particulars		Compensation awarded in Rs.
1.	Loss ofdependency		12,85,200/-
2.	Loss of consortium		88,000/-
3.	Loss ofestate		16,500/-
4.	Funeral expenses transportationcharges	&	16,500/-
5.	Medical Expenses		93,500/-
	Total		14,99,700/-

¶122

The Tribunal has awarded interest at 8% per

¶123

annum without assigning any reason. We do not find any special circumstances to award interest at the rate of more than 6% per annum. Both the appeals deserve to be allowed in part. Hence, the following

¶124

ORDER

¶125

The appeals are allowed in part.

¶126

The impugned award of the Tribunal is modified as follows:

¶127

(i) The claimants are entitled to compensation of Rs.14,99,700/- with interest thereon at 6% p.a. from the date of petition till the date of realisation.

¶128

NC: 2024:KHC:45043-DB MFA No.3242/2017 C/w MFA No.2463/2017

¶129