Kusuma (Daughter of Deceased) Vs Divakara (Rc Owner)

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 23.03.2020 PASSED IN MVC NO.977/2017 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND ADDITIONAL MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶26

IN MFA NO.723/2021 :

¶27

BETWEEN:

¶28

THE MANAGER TATA AIG GIC LTD., HOWRA CENTRE, 4^TH FLOOR, 82 MAHAKALI CAVES ROAD, ANDERI EAST MUMBAI, NOW REP. BY ITS THE MANAGER TATA AIG GIC LTD., NO.69, 3^RD FLOOR, J. P. AND JAMBUKESHWAR ARCADE, MILLERS ROAD BENGALURU - 52

¶29

...APPELLANT

¶30

(BY SRI B. PRADEEP, ADVOCATE)

¶31

AND:

¶32

KUSUMA W/O. RAVINDRA NOW AGED ABOUT 47 YEARS

¶33

3 - NC: 2025:KHC:43300 MFA No. 4550 of 2020 C/W MFA No. 723 of 2021

¶34

HC-KAR

¶35

2. SUMA W/O. SANTHOSH NOW AGED ABOUT 37 YEARS

¶36

RESPONDENT NOS.1 AND 2 ARE R/AT D.NO.24-44 NEAR MOODABETTU SCHOOL CHENDKALA, KODAVOOR POST UDUPI DISTRICT

¶37

DIVAKARA S/O. PADDU POOJARY R/AT H. NO.1-48BA KRISHNA KRIPA HOUSE NEHRU NAGAR, MOODU ALEVOOR UDUPI

¶38

...RESPONDENTS

¶39

(BY SRI HARSHA G., ADVOCATE FOR; SRI B. S. SACHIN, ADVOCATE FOR R-1 AND R-2; R-3 SERVED AND UNREPRESENTED)

¶40

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23.03.2020 PASSED IN MVC NO.977/2017 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND ADDITIONAL MACT, UDUPI, AWARDING COMPENSATION OF RS.3,21,914/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL FULL AND FINAL REALIZATION.

¶41

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

¶42

4 - NC: 2025:KHC:43300 MFA No. 4550 of 2020 C/W MFA No. 723 of 2021

¶43

HC-KAR

¶44

CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

¶45

ORAL JUDGMENT

¶46

Both these appeals arise out of the judgment and award dated 23^rd March 2020, passed by the Prl.Senior Civil Judge and Addl.M.A.C.T., Udupi, (for short `Tribunal'), in MVC No.977/2017.

¶47

MFA.No.4550/2020 is filed by the claimants seeking enhancement of compensation and

¶48

MFA.No.723/2021 is filed by the insurer of the offending vehicle alleging that the said vehicle has been falsely implicated in this case just to claim the compensation and that the accident did not occur as alleged in the claim petition.

¶49

Both the appeals arise out of common judgment and award, therefore they are taken up together for disposal.

¶50

For the sake of convenience, the parties are

¶51

referred to as per their rankings before the Tribunal.

¶52

5 - NC: 2025:KHC:43300 MFA No. 4550 of 2020 C/W MFA No. 723 of 2021

¶53

HC-KAR

¶54

The brief facts of the case are that, on 21.05.2017, at about 7.15 to 7.30 p.m., in front of old RTO office bus stand, Adi Udupi, deceased Muddu met with an accident due to rash and negligent driving of autorickshaw bearing registration No.KA-20-C-7932. Due to the impact, said Muddu sustained grievous injuries and was admitted as inpatient for 11 days in the hospital and while undergoing treatment, he succumbed to the injuries on 31.05.2017. Claimants being the daughters of the deceased, filed a claim petition under Section 166 of Motor Vehicles Act, seeking compensation of Rs.10,02,350/-.

¶55

Respondent No.1 was the owner and respondent No.2 was the insurer of the offending autorickshaw. Respondent No.1 remained ex parte before the Tribunal.

¶56

The respondent No.2-insurer filed its written statement, denying the contentions of the claim petitioners. It denied its liability to pay the compensation and prayed to dismiss the claim petition.

¶57

6 - NC: 2025:KHC:43300 MFA No. 4550 of 2020 C/W MFA No. 723 of 2021

¶58

HC-KAR

¶59

From the rival contentions of the parties, the

¶60

Tribunal framed necessary issues.

¶61

The claimants to prove their case examined two witnesses as PW-1 and PW-2 and marked 13 documents, as per Exs.P-1 to P-13. Respondent No.2 has examined two witnesses as RW-1 and RW-2 and marked Exs.R-1 and R-2.

¶62

The Tribunal, after hearing both the parties and appreciating the evidence on record, held that Muddu met with an accident involving the autorickshaw bearing registration No . KA-20-C-7932, and that he died as a result of the injuries sustained in the said accident. The Tribunal also held that his income was Rs.8,000/- per month, applied the multiplier as `5', deducted 50% towards personal expenses and awarded the following amount of compensation :

¶63

7 -

¶64

NC: 2025:KHC:43300 MFA No. 4550 of 2020 C/W MFA No. 723 of 2021

¶65

HC-KAR

¶66

Particulars	Amount in Rs.
Loss of dependency	2,40,000/-
Medical expenses	41,914/-
Food, nourishment, attendant, conveyance and other	10,000/-
Loss of love and affection and funeral expenses	30,000/-
Total	3,21,914/-

¶67

11. Heard the arguments of the learned counsel appearing for the claimants as well as learned counsel for respondent-insurer.

¶68

12. T he main grievance of the learned counsel for the

¶69

insurer is that Ex.R-1 reveals the deceased had sustained injuries due to an assault, on 21.05.2017 and the time as 7:00 p.m. To clarify this aspect, the insurer examined RW-1; the doctor, and to establish that Muddu did not die due to the injuries sustained in the alleged accident, the insurer examined RW-2. The learned counsel for the insurer submitted that the evidence of RW-2 is sufficient to disbelieve the case of the claimants.

¶70

8 - NC: 2025:KHC:43300 MFA No. 4550 of 2020 C/W MFA No. 723 of 2021

¶71

HC-KAR

¶72

The learned counsel further contended that, admittedly, there are no eyewitnesses to the accident except one Abubacker. In the criminal case, the said Abubacker was examined as CW-2, and in his evidence, he did not support the case of the prosecution and stated that he had not witnessed the accident. The claimants have not examined any other eyewitnesses to prove the occurrence of the accident. These aspects were not considered by the Tribunal. Hence, the learned counsel prayed that the impugned judgment be set aside.

¶73

The learned counsel for the claimants contended that a complaint was lodged on the day following the accident. During the lifetime of Muddu , investigation had commenced, and while undergoing treatment, he succumbed to the injuries. A post-mortem examination was conducted, and upon completion of the investigation, a charge sheet was filed. The owner and driver of the autorickshaw did not challenge the same on the ground that a false case had been foisted against the driver. It

¶74

9 - NC: 2025:KHC:43300 MFA No. 4550 of 2020 C/W MFA No. 723 of 2021

¶75

HC-KAR

¶76

was further submitted that, in these summary proceedings, this Court cannot adjudicate upon the correctness or propriety of the charge sheet.

¶77

The learned counsel further contended that the claimants examined two witnesses, who reiterated the contents of the claim petition, and in their crossexamination, nothing was elicited to discredit their evidence. The said evidence is sufficient to establish that Muddu Poojary sustained injuries in the accident and subsequently succumbed to those injuries.

¶78

He further contended that the amount of compensation awarded by the Tribunal is on the lower side. The deceased was earning Rs.15,000/- per month by working as a coolie; however, the Tribunal has taken his monthly income as Rs.8,000/-; he further submitted that the Tribunal has also not awarded compensation as per the law laid down in the case of National Insurance Co.

¶79

10 - NC: 2025:KHC:43300 MFA No. 4550 of 2020 C/W MFA No. 723 of 2021

¶80

HC-KAR

¶81

Ltd., -vs- Pranay Sethi¹ . Hence, prayed to enhance the amount of compensation.

¶82

As narrated in the above paragraphs, the claimants contended that Muddu Poojary sustained injuries in a motor vehicle accident and subsequently succumbed to those injuries on 31.05.2017. Ex.R-2 is the document produced by the respondent–insurer from the concerned hospital where Muddu had undergone treatment. The said document discloses that on 21.05.2017, at around 7.30 p.m., Muddu was brought to the hospital for treatment with a history of a hit-and-run incident at Adi Udupi. He sustained a head injury with bleeding from the ear and throat. He was admitted to the hospital. Subsequently, Ex.R-1 was prepared. To clarify the said facts, the insurer examined RW-1, the doctor.

¶83

RW-1 was the Medical Officer of the said hospital. In his evidence, RW-1 stated that in Ex.R-1 there is a

¶84

1 (2017) 16 SCC 680

¶85

11 - NC: 2025:KHC:43300 MFA No. 4550 of 2020 C/W MFA No. 723 of 2021

¶86

HC-KAR

¶87

reference to an injury caused by assault, and he had recorded the said information as given by the persons who accompanied the injured. He further admitted that he made corrections in Ex.R-2, but could not remember as to how many days after he corrected said information in Ex.R-2.

¶88

In his cross-examination, he has stated that due to typist’s mistake, the word `assault' was typed in Ex.R-1, but while sending the intimation to the police, he mentioned it as an RTA. He further stated that when the injured was admitted to the hospital, he was unable to speak. The medical records also indicate that he was unconscious at the time of admission. Therefore, the information recorded in Ex.R-1 was not provided by the deceased.

¶89

RW-2 was an officer of the insurance company. He fairly admitted that during the personal investigation conducted by the insurance company, it was revealed that it was a hit-and-run case, but they had no information

¶90

12 - NC: 2025:KHC:43300 MFA No. 4550 of 2020 C/W MFA No. 723 of 2021

¶91

HC-KAR

¶92

regarding the vehicle involved in the accident. The Investigating Officer did not obtain the relevant documents in this regard. Therefore, according to the officer of the insurance company, the deceased might have sustained injuries not by assault, but in an accident involving a vehicle.

¶93

A criminal case was registered against the driver of the autorickshaw for causing the accident in question, and the claimants have produced the relevant documents in this regard. In Ex.P-4-the post-mortem report, it is stated that death was due to the consequences of head injuries sustained. The concerned Medical Officer opined that the injuries were not caused by an assault. Therefore, the expert's evidence does not support the contention of the insurer. Moreover, neither the owner nor the driver of the autorickshaw have challenged charge sheet filed against the driver of the auto.

¶94

13 - NC: 2025:KHC:43300 MFA No. 4550 of 2020 C/W MFA No. 723 of 2021

¶95

HC-KAR

¶96

In motor vehicle accident cases, it is sufficient to prove prima facie case of involvement of the vehicle in the accident or that death was caused by the user of the vehicle. It is not necessary to establish these facts beyond reasonable doubt. In the present case, it appears that due to a mistake by the typist of the hospital, a doubt was created as to whether the deceased sustained injuries from an assault or in a vehicle accident.

¶97

The learned counsel for the insurer contended that it was a hit-and-run case and that there were no eyewitnesses to the accident. The so-called eyewitness mentioned in the charge sheet was examined as a witness in the criminal trial, and his evidence has been produced before this Court as Ex.R-9. The said witness did not support the prosecution’s case in his evidence before the Criminal Court, where the driver of the offending vehicle was tried.

¶98

14 - NC: 2025:KHC:43300 MFA No. 4550 of 2020 C/W MFA No. 723 of 2021

¶99

HC-KAR

¶100

The learned counsel for the insurer further contended that since the said witness did not support the prosecution’s case and the claimants have not examined any other eyewitnesses, the claimants have completely failed to prove that the accident occurred due to the negligence of the driver of the autorickshaw.

¶101

It is settled law that a witness may turn hostile for various reasons. According to the Investigating Officer, the spot of the accident was pointed out by CW-2, and based on his statement, the concerned vehicle was seized. However, when he was examined before the Criminal Court, he turned hostile. To mark previous statement of a witness, the said witness must be summoned before the Court; mere marking of the previous statement is not sufficient. Therefore, the fact that he turned hostile before the Criminal Court cannot be a ground to hold that the charge sheet was falsely filed against an innocent driver.

¶102

15 - NC: 2025:KHC:43300 MFA No. 4550 of 2020 C/W MFA No. 723 of 2021

¶103

HC-KAR

¶104

In view of the aforesaid reasons, the contentions of the insurer that deceased Muddu did not sustain injuries in a vehicle accident, is not sustainable, hence it is rejected.

¶105

25. As discussed by the Tribunal, claimants were unable to prove that deceased was earning Rs.15,000/per month. Therefore, the Tribunal has taken the notional income of the deceased as Rs.8,000/- per month. As per the chart prepared by the Karnataka State Legal Services Authority, the notional income ought to have taken as Rs.11,000/- per month, since the accident occurred during the year 2017. Undisputedly, the multiplier applicable in this case is `5' as the deceased was aged 71 years at the time of the accident. Both the claimants are major daughters of the deceased. There are no other claimants as the wife of the deceased had predeceased him. Therefore, the Tribunal has rightly deducted 50% of his income towards personal expenses. On the basis of the

¶106

16 - NC: 2025:KHC:43300 MFA No. 4550 of 2020 C/W MFA No. 723 of 2021

¶107

HC-KAR

¶108

same, compensation is to be calculated under the head

¶109

`loss of dependency'.

¶110

26. The Tribunal has not awarded just compensation under the head loss of consortium. Following the principles laid down in the case of **_Magma General Insurance Co. Ltd., -vs- Nanu Ram Alias Chuhru Ram,_****_2_** the amount of compensation is awarded under the heads, loss of dependency' and `loss of consortium'. The claimants are also entitled for medical expenses and miscellaneous expenses. The Tribunal has not awarded any amount of compensation towards loss of estate and that needs to be awarded. Accordingly, the claimants are

¶111

entitled for following amount of compensation :

¶112

Particulars	Amount in Rs.
Loss of dependency	3,30,000/-
(Rs.11,000/-x 12 x 5 x 50%)
Medical expenses	41,914/-
Food, nourishment and attendant charges	10,000/-

¶113

2 (2018) SC 1247

¶114

17 -

¶115

NC: 2025:KHC:43300 MFA No. 4550 of 2020 C/W MFA No. 723 of 2021

¶116

HC-KAR

¶117

Loss of consortium	80,000/-
Funeral expenses	15,000/-
Loss of estate	15,000/-
Total	4,91,914/-
Amount awarded by the Tribunal	3,21,914/-
Enhancement-	*1,70,000/-*

¶118

The claimants are entitled to interest at the rate of 6% p.a. on the enhanced amount from the date of petition till its realization.

¶119

It is not in dispute that respondent No.1 was the owner and respondent No.2 was the insurer of the offending vehicle. Therefore, both the respondents are jointly and severally liable to pay the compensation.

¶120

Accordingly, I proceed to pass the following:

¶121

ORDER

¶122

i) MFA.No.4550/2020 allowed in part

¶123

and MFA.No.723/2021 is dismissed.

¶124

ii) The judgment and award dated 23^rd March 2020 , passed in MVC.No.977/2017,

¶125

18 - NC: 2025:KHC:43300 MFA No. 4550 of 2020 C/W MFA No. 723 of 2021

¶126

HC-KAR

¶127

by the Prl.Senior Civil Judge and Addl.M.A.C.T., Udupi, stands modified;

¶128

iii) The claimants are entitled to enhanced compensation of Rs.1,70,000/- with interest at the rate of 6% p.a. on the enhanced amount, from the date of petition till its realization.

¶129

iv) The respondent No.2 - Insurance Company shall deposit the amount within a period of six weeks from the date of award.

¶130

v) The apportionment, deposit and release etc., are as per the award passed by the Tribunal.

¶131

vi) Draw award accordingly.

¶132

Registry is directed to send back the records along

¶133

with a copy of this judgment to the concerned Tribunal.

¶134

Sd/(UMESH M ADIGA) JUDGE