Smt Prema Vs Sri Chikkathimmaiah

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 21.11.2020 PASSED IN MVC NO.1098/2016 ON THE FILE OF THE JUDGE, PRINCIPAL COURT OF SMALL CAUSES, AS A PRESIDING OFFICER, MACT, MYSURU, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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THIS APPEAL, COMING ON FOR DICTATION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND

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HON'BLE MR JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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

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Challenging the dismissal of their claim petition,

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claimants in MVC No.1098/2016 on the file of Judge, Principal Court of Small Causes, MACT, Mysuru have preferred this appeal.

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Appellants were claimant Nos.1 to 3 and respondents were respondent Nos.1 and 2 in MVC No.1098/2016 before the Tribunal. Claimant Nos.1 and 2 are the parents and claimant No.3 is the sister of deceased Madhu. For the purpose of convenience, the parties are referred to henceforth according their ranks before the Tribunal.

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On 28.09.2015 at 2:45 p.m, when Madhu was riding motorcycle bearing registration No.K.A.09-W-7669 near Kenchanakuppe gate within the limits of Bidadi police station,

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he met with an accident and died. Regarding the accident,

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claimant No.2/father filed complaint in Bidadi police station as per Ex.P2 alleging that the driver of the Tipper lorry KA.11-A4555 drove the same in rash and negligent manner, hit Madhu’s motorcycle, caused the accident and consequential death of Madhu. Based on the said complaint, FIR as per Ex.P1 was registered against the driver of the said tipper lorry in Crime No.344/2015 of Bidadi Police Station. On investigation, chargesheet/Ex.P7 was filed against the driver of the tipper lorry for the offences punishable under Sections 279 and 304A IPC. At the relevant time, respondent Nos.1 and 2 were the registered owner and insurer of tipper lorry bearing registration No.K.A-11-A-4555.

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Claimants filed MVC No.1098/2016 against the respondents alleging that deceased Madhu was aged 30 years, working as Welder and earning Rs.15,611/- per month. They claimed that they were all dependent on his income. They further claimed that the accident and death of Madhu occurred due to actionable negligence on the part of driver of tipper lorry. Due to the accident, they have suffered damages to the

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tune of Rs.35,80,000/and respondents are liable to

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compensate the said damages.

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Respondent Nos.1 and 2 contested the petition denying occurrence of the accident due to actionable negligence on the part of driver of tipper lorry, age, occupation, income of the deceased and their liability to pay compensation. They contended that Madhu while riding his motorcycle suffered injuries due to skid and fall, to make wrongful gain, claimants in collusion with police have falsely implicated driver of tipper lorry bearing registration No.K.A-11-A-4555. They sought dismissal of the petition.

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In support of their claim, claimants got examined claimant No.1/mother as PW.1 and got marked Exs.P1 to P11. Respondent No.1 did not lead any evidence. Officer of respondent No.2 was examined as RW.1. On behalf of respondent No.2, Exs.R1 to R3 were marked.

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The Tribunal on hearing the parties, relying on the evidence of RW.1 and entries in Ex.R1 i.e., alleged case records of deceased maintained in NIMHANS Hospital, Bengaluru held that the deceased had a skid and fall and not an accident involving tipper lorry as alleged. The Tribunal further held that

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as per Motor Vehicle Inspector’s report-Ex.R3 there were no

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damages to the tipper lorry. That also creates serious doubt about involvement of lorry in the accident and thus dismissed the claim petition. Claimants have challenged the order in the above appeal.

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Sri G.K Yogesha for Sri.Divyathej A.B., learned Counsel for the appellants/claimants submits that the police on thorough investigation have filed chargesheet against driver of tipper lorry. Motor Vehicle Inspector’s report was part of the investigation records. He further submits that claimants discharged initial burden of proving involvement of lorry in the accident by producing Exs.P1 to P7. Ex.R1 is allegedly copy of case records of deceased maintained in NIMHANS. The original of the same was summoned and author of the said document was not examined. Under such circumstances, the Tribunal committed serious error in relying on Ex.R1 which was not duly proved. Therefore, finding of the Tribunal that the accident occurred due to skid and fall and involvement of the tipper lorry was not proved, is wholly unsustainable. He further submits that claimants have produced proof regarding age and income of deceased. Therefore, compensation as sought for has to be awarded.

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Smt. Geetha Raj, learned Counsel for respondent No.2/insurer vehemently submits that it was for the claimants to produce the medical records of the deceased. PW.1 and complainant were not the eyewitnesses. Admittedly, deceased was treated in NIMHANS Hospital. Therefore, there was no reason to disbelieve Ex.R1. During the course of argument, she submitted certified copy of judgment in C.C.No.654/2016 and depositions of witnesses in the said case. Relying on the same, she submits that claimant No.2 himself did not support the prosecution version. Therefore, driver of tipper lorry was acquitted in the case. Those facts also show that the contention that accident occurred due to negligence of the tipper lorry bearing registration No.K.A-11-A-4555, is unsustainable. She submits that there was no merit in the appeal and seeks dismissal of the appeal.

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In support of her submission, she relied on the following judgments:

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i. M/s National Insurance Company Ltd Vs Mrs. Shamshad and others¹

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ii. North West Karnataka Road Transport Corporation Vs Gourabai and others²

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iii. Branch Manager, Oriental Insurance Co.Ltd Vs Smt. Kempamma & others³

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1 MFA No.6641/2017 (MV-D) D D 23.02.2023

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2 (2009) 15 SCC 165

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3 ILR 2014 KAR 3336

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iv. Veerappa and another Vs Siddappa and another⁴

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On hearing both sides and on examining the

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materials on record, the points that arise for consideration of the Court are:

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i. Whether the finding of the Tribunal that on 28.09.2015 at 2:45 p.m., when deceased Madhu was traveling on motorcycle bearing registration No.KA.09-W-7669, the driver of tipper lorry bearing registration No.K.A-11-A4555 due to his actionable negligence caused accident and death of Madhu has not been proved, is unsustainable?

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ii. Whether claimants are entitled to compensation as claimed by them?

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Analysis:

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Reg. Negligence.

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The claimants came before the Court alleging that on 28.09.2015 at 2:45 p.m., when Madhu was proceeding on motorcycle bearing registration No.K.A.09-W-7669 near Kenchanakuppe gate, the driver of lorry bearing registration No.K.A-11-A-4555 drove the same in rash and negligent manner in high speed and suddenly took right turn, hit Madhu’s motorcycle and caused him grievous injuries. They further alleged that soon after the incident, deceased was shifted to 4 ILR 2009 KAR 3562

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Government Hospital, Bidadi and from there he was shifted to NIMHANS Hospital, Bengaluru, he succumbed to the injuries on 30.09.2015 in the hospital. Whereas, respondents contended that it was not the case of accident involving lorry, but Madhu himself skid and fell and succumbed to those injuries.

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The initial burden of proving fact that the accident occurred due to actionable negligence on the part of driver of the lorry bearing registration No.K.A-11-A-4555 was on the claimants. If they discharged their initial burden, then burden shifted to the respondents to prove that the incident was a skid and fall. To discharge their burden, claimants relied on evidence of PW.1 and Exs.P1 to P7 ie., FIR, complaint, spot mahazar, sketch of scene of accident, inquest mahazar, postmortem report and chargesheet respectively.

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It is no doubt true that PW.1 was not the eyewitness. It is also true that chargesheet is not the conclusive proof and claimants have to prove their case. It is settled principle of law that the proceedings under Section 166 of the Motor Vehicles Act, 1988(for short ‘MV Act’) are summary proceedings. The degree of proof required is preponderance of probability. The claimants are not expected

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to lead evidence to prove their case beyond all reasonable

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doubt as required for a trial in criminal case.

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Incident took place on 28.09.2015 at 2:45 p.m. and

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the complaint was filed on 29.09.2015 at 7:00 p.m., by claimant No.2. In Ex.P2-complaint also, claimant No.2 has not contended that he was eyewitness. He has stated that after the accident some people shifted the injured to Bidadi Government Hospital and from there to NIMHANS Hospital, Bengaluru. Somebody informed his relative Sadashivaiah through cell phone of the victim and he in turn informed claimant No.2, who went to the hospital and later filed complaint. Based on his complaint, police registered FIR-Ex.P1 and conducted the investigation. During the investigation, statements of the witnesses were recorded, vehicle was seized and even Motor Vehicle Inspector’s report was taken. On evaluating material collected during the investigation, Investigating Officer has filed chargesheet as per Ex.P7, against the driver of the tipper lorry. As per Section 114(e) of the Indian Evidence Act,1872 there is presumption that the official acts are regularly performed. therefore, Ex.P7 carries presumptive value. By the said document the claimants discharged their initial burden of

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proving that the accident occurred due to actionable negligence on the part of driver of lorry bearing registration No.K.A-11-A4555. Then the burden shifted to the respondents to rebut the said evidence of the claimants and to prove their claim that the injuries were on account of skid and fall by Madhu while travelling on his motorcycle. To discharge that burden, respondent No.1 did not enter witness box nor driver of tipper lorry was examined.

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RW.1/administrative officer of respondent No.2 was admittedly not the eyewitness. In her evidence, she claimed that they got conducted investigation and such investigation revealed that tipper lorry was planted subsequently by the claimants in collusion with police, but that Investigating Officer was not examined. They mainly relied on Ex.R1/the alleged NIMHANS Hospital records which allegedly contain certain entries regarding history of accident to the effect that injured had a skid and fall. First of all Ex.R1 is not a primary evidence. Moreover, in the cross-examination of RW.1, the said document was denied by the claimants and it was suggested that the same was a concocted document. Respondent No.2 did not summon anybody from NIMHANS Hospital to produce those

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records or examine the author of Ex.R1. It was contended that

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one Head Constable by name Raju H.C No.72 of Bidadi Police Station had admitted the victim to the hospital and he has given history. The said Raju was not examined. Nothing was produced to show that at the time of accident, Raju was working as Head Constable in Bidadi Police Station. If he had admitted the victim into the hospital, then in ordinary course he would have reported the matter to the police, but he had not reported the matter to the jurisdictional police. Thereby Ex.R1 was not proved in accordance with law.

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Much was argued relying on copy of judgment in C.C.No.654/2016 and the alleged depositions of the alleged witnesses in the said case. Those documents were produced for the first time before this Court after long lapse of time and not even an application was filed to produce them as additional evidence. Absolutely no grounds are made out for belated production of those documents. Further it is the settled position of law that the finding recorded in criminal case does not have any binding effect in the civil case. Reading of para No.21 of judgment in C.C.No.654/2016 produced by learned Counsel for respondent No.2 shows that, the driver of the tipper lorry was

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acquitted extending benefit of doubt and holding that the chargesheet was not proved beyond reasonable doubt, he was not given an honorable acquittal. Unfortunately, the Tribunal held that there are serious doubts about involvement of the lorry expecting the degree of proof beyond reasonable doubt, even in the proceedings under Section 166 of MV Act. The Tribunal committed serious error in accepting Ex.R1/NIMHANS record which was not even primary evidence and nobody from NIMHANS hospital was examined to prove the same, much less author of the document.

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So far as IMV report/Ex.R3, even that was not primary evidence. Even otherwise, after examining the Motor Vehicle Inspector’s report with reference to the other records, the investigating officer came to the conclusion that the accident occurred due to negligence on the part of driver of tipper lorry. The said driver was not discharged. The Magistrate Court felt that there are grounds to frame the charge. On framing the charge and holding trial, acquitted him extending benefit of doubt. Therefore that Motor Vehicle Inspector’s report does not demolish the evidentiary value of charge sheet/ Ex.P7.

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Reading of the judgments relied on by learned Counsel for respondent No.2 shows that in those cases there was no consistency in the claimants’ documents themselves, therefore, it was held that the accident was not proved. Those judgments cannot be justifiably applied to the facts of the present case. In the light of the above discussion, this Court is of the considered view that the Tribunal committed error in holding that the claimants have failed to prove the actionable negligence on the part of driver of lorry bearing No.KA.11-A4555 in causing the accident and consequential death of Madhu.

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Reg. quantum of compensation:

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The claimants contended that at the time of accident, deceased was aged 30 years. In Ex.P10/ration card, his age was shown as 28 years as on 02.06.2014. Since claimants themselves contended that the deceased was aged 30 years, that age has to be taken in assessing compensation. The claimants contended that the deceased was working as Welder and earning Rs.15,611/- per month. To prove that they relied on Ex.P11/salary slip, but the author of the said document was not examined. Further the Tribunal has marked Ex.P8 as medical bills, but they are not medical bills, they are

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salary slips. Even those documents were not proved by examining the alleged employer, therefore income of the deceased has to be assessed notionally.

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Accident has taken place in the year 2015. Considering the age, occupation of the deceased, prevailing wage rate and price index during the said period, reasonably income of such person during that period can be considered at Rs.9,000/- per month. As per the judgment of the Hon’ble Supreme Court in case of National Insurance Company Limited vs . Pranay Sethi and Others⁵ , for a self employed person, aged below 40 years, 40% of the income of the victim has to be taken as future prospects. Therefore, his monthly income comes to Rs.9,000+3,600=12,600/-. The deceased was unmarried. Therefore, as per the judgment of Supreme Court in the case of Sarla Verma and others vs. Delhi Transport Corporation and another⁶ , 50% has to be deducted from his income for his personal expenses and multiplier of 17 has to be applied. Thus, compensation payable on the head of loss of dependency would be (Rs.12,600x50%=Rs.6,300x12x17) =Rs.12,85,200/-.

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5 (2017) 16 SCC 680

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6 (2009) 6 SCC 121

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As per the judgment of the Hon’ble Supreme Court

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in the case of Magma General Insurance Company Limited vs.

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Nanu Ram & Ors⁷ parents are entitled to compensation of Rs.40,000/- each with escalation at 10%. Similarly on the conventional heads of loss of estate and funeral expenses and conveyance charges, Rs.15,000 + 15,000 has to be awarded with escalation at 10%. Though the claimants claimed Rs.50,000/- towards medical expenses, they did not adduce any evidence regarding the same. Though they got marked Ex.P8 as medical bills, they are not the medical bills. Moreover at the first instance, the victim was treated in Government Hospital. As there is no proof of medical expenses incurred, no compensation can be awarded on the said head. Therefore, the

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just compensation payable is as follows:

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Particulars	Amount (Rs.)
Loss of dependency	12,85,200/-
Loss of consortium	88,000/-
Loss of estate	16,500/-
Funeral expenses, transportation of dead bodyetc.,	16,500/-
Total	14,06,200/-

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The aforesaid compensation shall carry interest at

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6% per annum. There was no dispute that the tipper lorry in

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7 (2018) 18 SCC 130

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question was covered by policy issued by respondent No.2.

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Therefore, respondent No.2 is liable to indemnify the said damages. The appeal deserves to be allowed in part. Hence, the following:

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ORDER

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The appeal is allowed in part.

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i. Petition in MVC No.1098/2016 on the file of Judge, Principal Court of Small Causes, MACT, Mysuru is partly allowed.

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ii. The claimants are awarded compensation of Rs. 14,06,200/-/- with interest thereon at 6% p.a. from the date of petition till its realization.

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iii. Respondent No.2 - insurer shall deposit the said compensation with accrued interest before the Tribunal within four weeks from the date of receipt of copy of this order.

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iv. Claimant Nos.1 and 2 are entitled to 70% and 30% of the award amount.

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v. On deposit of the amount, the Tribunal shall release 50% of the award amount to claimant Nos.1 and 2 according to their shares digitally and invest balance 50% amount in their names according their share in any Nationalized/Scheduled Bank of their choice for a period of three years.

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vi. Transmit the TCRs to the Tribunal forthwith.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(C.M. POONACHA) JUDGE

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PKN List No.: 1 Sl No.: 44

Smt Prema v. Sri Chikkathimmaiah

Case brief

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Smt Prema v. Sri Chikkathimmaiah

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