New India Assurance Co.Ltd., Vs Ramabai @ Manjula W/O Shantaram Revankar

NEW INDIA ASSURANCE CO. LTD., JANAKI PLAZA, ABOVE SBI PREMISES DR. PIKLE ROAD, KARWAR REPRESENTED BY DEPUTY MANAGER NEW INDIA ASSURANCE COMPANY LIMITED T.P. HUB, SRINATH COMPLEX, II FLOOR NEW COTTON MARKET, HUBBALLI-580022.

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…APPELLANT

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(BY SRI. M K SOUDAGAR., ADV)

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AND:

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MOHANKUMAR B SHELAR

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Location: HIGH COURT OF KARNATAKA

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SMT. RAMABAI @ MANJULA W/O SHANTARAM REVANKAR AGE:76 YEARS, R/O MADEWADA, HALAGA, KARWAR.

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SMT. ASHA @ VEENA W/O DATTA REVANKAR, AGE:51 YEARS, R/O MADEWADA, HALAGA, KARWAR.

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KUMARI. SNEHA D/O DATTA REVANKAR AGE:25 YEARS, R/O MADEWADA, HALAGA, KARWAR.

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RAHUL S/O DATTA REVANKAR AGE:24 YEARS, R/O MADEWADA, HALAGA, KARWAR.

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NC: 2025:KHC-D:13041 MFA No. 101033 of 2015 C/W MFA.CROB No. 100118 of 2019

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HC-KAR

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SHAIKH HUSSAIN MUSTAQUE C/O SAYAD PLASTIC INDUSTRIES S.T. TRADERS COMPOUND CHITARGI, KUMATA.

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…RESPONDENTS

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(BY SRI. J.S SHETTY & N.M. PATIL, ADVS FOR R1, SRI. GIRISH YADAWAD, ADV FO R2 TO R4, NOTICE TO R5 IS SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED:08.01.2015, PASSED IN MVC NO.120/2011, ON THE FILE OF THE MEMBER, I ADDL. MACT, KARWAR, AWARDING COMPENSATION OF Rs.8,37,000/- ALONG WITH THE INTEREST AT THE RATE OF 6% FROM THE DATE OF PETITION TILL REALISATION.

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IN MFA.CROB NO. 100118/2019

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BETWEEN:

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SMT.RAMABAI @ MANJULA W/O SHANTARAM REVANKAR AGE: 80 YEARS, R/O: MADEWADA, HALAGA, KARWAR.

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SMT. ASHA @ VEENA W/O DATTA REVANKAR, AGE: 55 YEARS, R/O: MADEWADA, HALAGA, KARWAR.

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KUMARI SNEHA D/O DATTA REVANKAR AGE: 29 YEARS, R/O: MADEWADA, HALAGA, KARWAR.

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RAHUL S/O DATTA REVANKAR AGE: 28 YEARS, R/O: MADEWADA, HALAGA, KARWAR.

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...CROSS OBJECTORS

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(BY SRI. GIRISH A YADAWAD., ADV)

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AND:

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SHAIKH HUSSAIN MUSTAQUE

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NC: 2025:KHC-D:13041 MFA No. 101033 of 2015 C/W MFA.CROB No. 100118 of 2019

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HC-KAR

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C/O SAYAD PLASTIC INDUSTRIES, S.P. TRADERS COMPOUND, CHITARGI, KUMTA-581343.

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NEW INDIA ASSURANCE CO. LTD., JANAKI PLAZA, ABOVE SBI PREMISES, DR. PIKLE ROAD, KARWAR-581301.

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...RESPONDENTS

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(BY SRI. J.S. SHETTY & N.M.PATIL, ADVS FOR R1, SRI. M.K. SOUDAGAR, ADV FOR R2)

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THIS MFA.CROB IN MFA NO.101033/2015 IS FILED UNDER ORDER 41 RULE 22 OF CPC., AGAINST THE JUDGMENT AND AWARD DATED 8.01.2015 PASSED IN MVC NO.120/2011 ON THE FILE OF THE I ADDL. MACT, KARWAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION & SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL AND CROSS OBJECTION, COMING ON FOR HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

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This appeal and cross objection are filed challenging the judgment and award dated 08.01.2015 passed in M.V.C.No.120/2011 by the learned I Addl. M.A.C.T., Karwar.

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HC-KAR

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The appeal, and cross objection arise out of

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the same judgment. Hence, they are clubbed together and are taken together for discussion to avoid the repetition of the facts.

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Brief facts leading rise to the filing of the appeal and the cross objection are as follows:

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On 30.11.2010 at about 6.30 p.m., one Datta Revanakar was proceeding from Karwar to Halaga on his motorcycle bearing registration No.KA-30/Q-1332. When he reached near the accident spot, at that time a goods tempo bearing registration No.KA-47/1957 driven by its driver in a rash and negligent manner, dashed to the motorcycle of Datta Revanakar. Due to which, he sustained grievous injuries, and succumbed to the injuries. The petitioners being the legal representatives of the deceased Datta Revanakar, filed a claim petition under Section 166 of M.V. Act claiming

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HC-KAR

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compensation for the death of the deceased. Accordingly, prays to allow the claim petition.

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The owner of the offending vehicle appeared

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through the counsel however, did not file a statement of objections.

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The Insurance Company filed a statement of

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objections denying the averments made in the claim petition. It is contended that the deceased has also contributed to the cause of the accident, and there is contributory negligence on the part of the deceased rider and the driver of the offending vehicle. It is also contended that the driver of the offending vehicle was intoxicated and did not possess a valid and effective license. Thus, there is violation of policy conditions. Hence, prays to dismiss the claim petition against the Insurance Company.

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The Tribunal, based on the pleadings of the parties, framed the relevant issues.

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NC: 2025:KHC-D:13041 MFA No. 101033 of 2015 C/W MFA.CROB No. 100118 of 2019

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HC-KAR

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The petitioners, to substantiate their case,

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examined petitioner No.3 as PW-1, examined four witnesses as PW-2 to PW-5 and marked 25 documents as Exs.P-1 to P-25. In rebuttal, the officer of the Insurance Company examined as RW-1, and marked 3 documents as Exs.R-1 to R-3.

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The Tribunal, after assessing the verbal and documentary evidence, allowed the claim petition in part vide judgment dated 08.01.2015 and held that awarded the compensation of Rs.8,37,000/- along with interest at the rate of 6% p.a. from the date of the petition till the date of realisation and directed the Insurance Company to indemnify the owner and deposit the compensation amount.

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The Insurance Company, aggrieved by the impugned judgment, filed this appeal, and the petitioners, being dissatisfied with the quantum of compensation, filed this cross objection.

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NC: 2025:KHC-D:13041 MFA No. 101033 of 2015 C/W MFA.CROB No. 100118 of 2019

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HC-KAR

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Heard the arguments of the learned counsel

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for Insurance Company, and the learned counsel for the petitioners.

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Learned counsel for Insurance Company submits that the accident occurred due to the rash and negligent riding of the rider of the motorcycle i.e., the deceased Datta Revanakar, and the driver of the goods tempo. He also submits that the rider has also contributed negligence for causing the accident. Hence, the Tribunal could have fastened the negligence on the part of the rider of the motorcycle also. He further submits that the goods tempo was carrying liquor bottles in the vehicle and it is the violation of policy conditions. He also submits that the quantum of compensation awarded by the Tribunal is exorbitant. Hence, on these grounds, he prays to allow the appeal filed by the Insurance Company, and to dismiss the cross objection filed by the petitioners.

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HC-KAR

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Per contra, the learned counsel for

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petitioners submits that the charge sheet is filed against the driver of the goods tempo, and no abated charge sheet is filed against the deceased rider of the motorcycle. He also submits that the Insurance Company has not examined any eyewitness to establish that the rider of the motorcycle has also contributed negligence to cause the accident. In the absence of evidence on record, the Tribunal was justified in holding that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle, and rightly fastened the liability on the owner of the offending vehicle, and the Insurance Company jointly and severally. He further submits

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that the Insurance Company examined its officer as RW-1. In the entire deposition, RW-1 has not deposed regarding the goods tempo carrying liquor bottles. In the absence of evidence, the Tribunal was justified in declining to accept the defence of the Insurance

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HC-KAR

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Company that the goods tempo was carrying liquor bottles. Further, insofar as quantum of compensation is concerned, he submits that the Tribunal has not added future prospects to the monthly income of the deceased and not awarded any compensation under the head loss of consortium. Hence, on these grounds, he prays to allow the cross objection filed by the petitioners, and to dismiss the appeal filed by the Insurance Company.

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Perused the records, and considered the submissions of the learned counsel for the parties.

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The points that would arise for consideration are regarding the liability, and the quantum of compensation.

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Regarding liability:

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There is no dispute regarding the

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occurrence of accident and the death of the deceased

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HC-KAR

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Datta in the road traffic accident. The petitioners have produced a certified copy of the charge sheet marked as Ex.P-2, which discloses that the accident occurred due to the rash and negligent driving of the driver of the goods tempo. Further, the petitioners have also produced the postmortem report at Ex.P-3, which discloses that Datta died due to the injuries sustained in the road traffic accident. The Insurance Company has taken a specific defence in the statement of objections that the deceased rider had also contributed negligence for causing the accident. The Insurance Company has not examined any eyewitness to prove that the deceased has contributed for the cause of the accident. Admittedly, a charge sheet is filed against the driver of the goods tempo. No abated charge sheet is filed against the deceased. The Tribunal, considering the charge sheet marked as Ex.P-2 has rightly held that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle

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HC-KAR

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and not by the rider of the motorcycle i.e., the deceased and the Tribunal was justified in fastening the liability on the Insurance Company. The Insurance Company has taken a specific defence in the statement of objections contending that the goods tempo was carrying liquor. From the perusal of the deposition of RW-1, RW-1 has deposed only regarding the licence, however, he has not deposed regarding the tempo carrying liquor as of the date of the accident. The Insurance Company has failed to prove that as of the date of accident, the offending vehicle was carrying liquor. Thus, the Tribunal was justified in fastening the liability jointly and severally. I do not find any grounds to interfere with the findings recorded by the Tribunal on the point of negligence, and liability. I concur with the findings recorded by the Tribunal.

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In view of the above discussion, I answer the point regarding the liability accordingly.

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NC: 2025:KHC-D:13041 MFA No. 101033 of 2015 C/W MFA.CROB No. 100118 of 2019

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HC-KAR

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Regarding quantum of compensation:

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Insofar as the quantum is concerned,

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though the petitioners have contended that the deceased was working under PW-2 and he used to earn Rs.10,000/- p.m. The petitioners, to prove the monthly income of the deceased, examined the employer as PW-2, who deposed that the deceased Datta Ravankar used to work in his house, and prepare gold ornaments as per his order, and used to supply the same to him, and others and used to earn more than Rs.10,000/-. The petitioners have also examined PW-3, who is running a business in the name and style of Mrs. Kamakshi Jewellers and he has stated that the deceased was earning Rs.10,000/- p.m. From the perusal of the cross-examination of PW-2, there is no specific denial in the cross- examination. In view of the proposition of law laid down by the Hon'ble Apex Court in the case of Muddasani Venkata Narsaiah (Dead)

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HC-KAR

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through LRs Vs. Muddasani Sarojana¹ , in paragraph

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No.15, it is held as follows:

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“15. Moreover, there was no effective cross-examination made on the plaintiff's witnesses with respect to factum of execution of sale deed. PW 1 and PW 2 have not been crossexamined as to factum of execution of sale deed. The cross-examination is a matter of substance not of procedure one is required to put one's own version in cross-examination of opponent. The effect of non-cross-examination is that the statement of witness has not been disputed. The effect of not cross-examining the witnesses has been considered by this Court in Bhoju Mandal v. Debnath Bhagat. This Court repelled a submission on the ground that the same was not put either to the witnesses or suggested g before the courts below. Party is required to put his version to the witness. If no such questions are put the Court would presume that the witness account has been accepted as held in Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd.”

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(Emphasis supplied)

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1 (2016) 12 SCC 288

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HC-KAR

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In view of the proposition of law laid down

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by the Hon'ble Apex Court in the case of Muddasani Venkata Narsaiah (Dead) through LRs and also in the case of Basavaraj vs. Padmavathi in SLP Nos.61226123/2022 wherein, the Hon'ble Apex Court held that if the facts stated in the examination-in-chief is not denied in the course of cross-examination, it amounts to admission. The facts deposed by PW-2 and PW-3 regarding the income of the deceased amounts to admission.

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Considering the evidence of PW-2, the Tribunal has taken the income of the deceased at Rs.10,000/-. Although PW-2 has not produced any account books to show that the deceased was earning Rs.10,000/p.m., considering the nature of employment of the deceased, this Court reassesses the monthly income of the deceased at Rs.9,000/-. The deceased was aged 52 years as of the date of accident. In view of the proposition of law laid down by the

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HC-KAR

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Hon'ble Apex Court in the case of National Insurance Company Limited v. Pranay Sethi² , 10% future prospects is to be added to the income of the deceased. There are 4 dependants of the deceased. Hence, 1/4^th has to be deducted from the income of the deceased towards his personal expenses. The applicable multiplier to the age group of the deceased is ‘11’. Thus, the loss of dependency is worked out as follows:

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Rs.9,000 + Rs.900/-(10% of Rs.9,000/-) = Rs.9,900/-

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Rs.9,900-2,475 (1/4^th of Rs.9,900/-) = 7,425/-

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Rs.7,425 x 12 x 11 = 9,80,100/-

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Thus, the petitioners are entitled to compensation of Rs.9,80,100/towards loss of

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dependency. There are 4 petitioners. Each petitioner is entitled to compensation of Rs.48,000/- as loss of consortium (Rs.48,000 x 4 = Rs.1,92,000/-). In

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2 (2017) 16 SCC 680,

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HC-KAR

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addition to it, the petitioners are entitled to compensation of Rs.36,000/- under the heads loss of estate and funeral expenses. Thus, the petitioners are entitled to total compensation of Rs.12,08,100/- as against Rs.8,37,000/- awarded by the Tribunal i.e., to an enhanced compensation of Rs.3,71,100/-. In view of the same, the point regarding quantum of compensation is answered accordingly.

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In view of the above discussion, I proceed to pass the following:

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ORDER

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(i) The appeal in M.F.A.No.101033/2015 filed by the Insurance Company is dismissed.

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(ii) The Cross-objection in M.F.A.Crob. No.100118/2019 filed by the petitioners is allowed in part.

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(iii) The judgment and award dated 08.01.2015 passed in M.V.C.No.120/2011 by the learned I Addl. M.A.C.T., Karwar is modified.

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HC-KAR

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(iv) The petitioners are entitled to enhanced compensation of Rs.3,71,100/- with interest at the rate of 6% per annum from the date of petition till the date of realisation of the amount. The petitioners are not entitled to interest for 1570 days being the delay, in filing the cross objection.

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(v) The owner and Insurance Company are jointly and severally liable pay the compensation to the cross-objectors.

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(vi) The Insurance Company is directed deposit the compensation amount with accrued interest within eight weeks from the date of receipt of a copy of this Judgment.

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(vii) The amount in deposit and the trial Court records be transmitted to the Tribunal forthwith.

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Sd/(ASHOK S. KINAGI) JUDGE

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NAA CT: BSB List No.: 1 Sl No.: 10

New India Assurance Co.Ltd., v. Ramabai @ Manjula W/O Shantaram Revankar

Case brief

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New India Assurance Co.Ltd., v. Ramabai @ Manjula W/O Shantaram Revankar

Case brief

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