M/S the Oriental Insurance Company Limited Vs Eshwarappa

M/S THE ORIENTAL INSURANCE COMPANY LIMITED, VINAYAKA COMPLEX, 1^ST CROSS, GARDEN AREA, SHIMOGA, THROUGH ITS REGIONAL OFFICE, 2^ND FLOOR, SUMANGALA COMPLEX, LAMINGTON ROAD, HUBLI-580 020 REPRESENTED BY ITS, REGIONAL MANAGER.

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…APPELLANT

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(BY SRI. UMESH B S.,ADVOCATE)

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Digitally signed by ANNAPURNA G

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Location: HIGH COURT OF KARNATAKA

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AND:

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ESHWARAPPA S/O LATE LONKYAPPA AGED ABOUT 54 YEARS

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SMT GOWRAMMA W/O ESHWARAPPA AGED ABOUT 41 YEARS

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KUM MALA D/O ESHWARAPPA AGED ABOUT 22 YEARS

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KUM RASHMI D/O ESHWARAPPA AGED ABOUT 20 YEARS

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SMT LALITHAMMA W/O BASAVANAGOWDRU AGED ABOUT 40 YEARS RESIDING AT BOMMALINGESHWARA NILAYA, NEAR SWAMI VIVEKANADA SCHOOL, SAVALANGA ROAD, SHIMOGA-577 201.

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RAJAPPA S/O LATE HANUMANTHAPPA, AGED ABOUT 34 YEARS, RESIDING AT HANUMASAGARA, HONNALLI TALUK, DAVANAGERE DISTRICT-577 217.

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…RESPONDENTS

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(BY SRI. R KIRAN , ADVOCATE FOR R1 TO R4, VIDE ORDER DATED 06.12.2019, SERVICE IN RESPECT OF R5 AND R6 IS HELD SUFFICIENT)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 17.06.2014 PASSED IN MVC NO.1170/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, MACT-6, SHIVAMOGGA, AWARDING A COMPENSATION OF RS.8,77,400/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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

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CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This appeal is filed by the insurer-respondent No.3 against the judgment and award dated 17.06.2014 passed by the learned Principal Senior Civil Judge, MACT, Shivamogga, in MVC.No.1170/2012 (for short 'the Tribunal').

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The parties are referred to as per their ranking before the Tribunal.

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The brief facts of the case are that on 17.09.2012, at around 12.30pm, deceased Santhosh met with an accident due to rash and negligent driving of the bus bearing registration No.KA-14-A-3069 belonging to respondent No.1 and driven by respondent No.2. As a result, he sustained grievous injuries and succumbed to those injuries.

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It is the further case of the claimants that the deceased was aged about 22 years and he was employed at a petrol bunk and also engaged in milk vending, earning Rs.15,000/- per month. The claimants, being his parents

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and sisters were dependent on his earnings. With these

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reasons, prayed to award compensation.

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Respondent Nos.1 and 2 filed a common written statement denying the contentions of the claimants and also denied the involvement of the said vehicle in the accident and it was further contended that it was falsely implicated in this case just to claim compensation.

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Respondent No.3 in its written statement denied

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the contents of the claim petition. It also contents that the said vehicle was falsely implicated in this case and it was not involved in the accident. It also disputed its liability to pay the compensation. With these reasons, prayed to dismiss the claim petition.

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From the rival contentions of the parties, the

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Tribunal framed the necessary issues.

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The claimants to prove their case examined two witnesses as PWs.1 and 2 and marked Exs.P1 to P9. Respondents examined two witnesses as RWs.1 and 2 and

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marked Exs.R1 to R4. The Tribunal after hearing both the parties and appreciating the materials available on record held that the accident occurred due to the involvement of the offending bus and accident caused by the rash and negligent driving of its driver.

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The Tribunal assessed the age of the deceased as 23 years, assessed his income as Rs.4,500/- per month and added 30% of his income towards future prospects and awarded total compensation of Rs.8,77,400/- under different heads and directed respondent Nos.2 and 3 to pay the compensation jointly and severally.

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The insurer challenged the said judgment on two grounds: the quantum of compensation and the alleged false implication of the vehicle.

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I have heard the argument of Learned counsel appearing for both sides.

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The learned counsel for the appellant–insurer vehemently contended that the accident occurred on a public

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road which, according to PW-2, was a busy road. None of the eyewitnesses informed the police about the vehicle number at the time of the incident. PW-2, who is claimed to be an eyewitness, provided the vehicle number to the police only 20 days after the FIR was registered. During crossexamination, he admitted that many people, including students, were present on that road, and in such circumstances, it is difficult to believe that no one approached the accident spot immediately. The facts of the case clearly indicate that the vehicle was falsely implicated in the accident, and when the occurrence of the accident itself is in dispute, the burden lies heavily on the claimants to establish their case.

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The respondent examined RW-1, who was the driver of the said vehicle at the time of the alleged accident. In his evidence, he stated that he has been falsely implicated in the case. According to the permit conditions, the bus was scheduled to leave Shivamogga by 1:30 p.m. These facts indicate that the vehicle was implicated in the case after discussions, deliberations, and with collusion, solely to claim

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compensation. The Tribunal failed to consider these aspects and erred in holding that the said vehicle was involved in the accident.

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The learned counsel for the appellant further contended that the amount of compensation awarded is excessive. The deceased was unmarried; however, the Tribunal deducted only one-third of his income instead of 50%, contrary to the law laid down in Sarla Verma v. DTC¹ and National Insurance Co. Ltd. v. Pranay Sethi & Others² .

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He further submitted that the claimants are the parents and sisters of the deceased, out of whom only the mother was dependent on him. Therefore, the compensation awarded is excessive. On these grounds, he prayed for the impugned judgment to be set aside.

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On the other hand, the learned counsel for the claimants contended that an FIR was lodged immediately after the incident. During the course of investigation, the

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1 AIR 2009 SC 3104

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2 (2017) 16 SCC 680

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police came to know about the vehicle number from PW-2, and thereafter conducted further investigation and filed a charge sheet. A mere delay in identifying the vehicle is not sufficient ground to disbelieve the facts. The evidence of RWs 1 and 2 is not reliable. To establish their case, the claimants examined PW-2, an eyewitness, who narrated the facts of the accident and explained the reasons for his delay in reporting the incident to the police. If the case were indeed false, considering that the bus was a public transport vehicle, the owner or insurer would have taken legal action to challenge the allegation. However, no such steps were taken, and the driver of the offending bus faced trial before the concerned JMFC Court. Despite the delay in reporting the vehicle number, all necessary details were provided to the police. If the claimants had intended to falsely implicate another vehicle, they would not have waited for such a long time. It was further argued that if the said bus had been operating as scheduled without any issue, the owner should have examined at least one passenger travelling on that day, but no such effort was made by the respondents to counter

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the allegation of false implication. For these reasons, the learned counsel for the claimants prayed for the dismissal of the appeal with costs.

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The following points arise for determination:

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i. Whether the Tribunal erred in holding that the accident occurred due to the rash and negligent driving of the bus by its driver, resulting in the death of Santhosh P?

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ii. Whether the Tribunal has assessed a just and reasonable amount of compensation?

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The mother of the deceased, i.e., claimant No.2, was examined as PW-1. Although she is not an eyewitness, she narrated the facts relating to the incident. In her crossexamination, it was suggested that some other vehicle had hit the motorcycle of the deceased and fled from the spot, and that she had falsely provided the registration number of the offending bus. She pleaded ignorance regarding the presence of shops and commercial establishments near the accident spot. It was further suggested that the deceased

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was carrying a gas cylinder at the time, which caused him to lose control over his vehicle, and that the accident occurred due to his own negligence.

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To prove the rash and negligent act of the bus driver, the claimants examined PW-2. According to his evidence, the deceased was a stranger to him. He described the accident in detail and stated that after the incident, he and his friend, Narasimha Murthy, went to Shikaripura. Upon returning, he informed the police of the vehicle number. During his cross-examination, he spoke about the surroundings of the accident site and stated that students regularly commute along that route to their schools and colleges. He also stated that the bus frequently plies to Shikaripura via that road. He confirmed that he was not acquainted with the deceased or his family members. It was suggested to him that he was not a witness to the accident, which he denied.

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The accident occurred on 17.09.2012 at around

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3:00 p.m. A complaint was lodged by claimant No.1 at the

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concerned police station. The police investigated the case, identified the involved vehicle, and subsequently submitted a charge sheet. PW-2 is listed as an eyewitness in the charge sheet, along with PW-7, Narayana Murthy, who also claimed to have witnessed the incident. Other witnesses cited in the case are not eyewitnesses. The spot mahazar and the sketch prepared by the police do not indicate the presence of any shops near the accident site. Even if such establishments existed, none of the shop owners reported the accident to the police.

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It is undisputed that the charge sheet was not challenged by either the driver or the owner of the bus. During the cross-examination of PW-1, it was not suggested that the claimants were highly influential individuals capable of filing a false case or falsely implicating a vehicle. Admittedly, the offending bus was a public transport vehicle, and it is difficult to believe that if the vehicle had been falsely implicated, neither the owner nor the driver would have taken steps to contest it.

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The respondent examined the driver of the bus as RW-1. It is admitted that a criminal case was registered against him and that he was an accused in that case. Under such circumstances, expecting an unbiased account of the incident from him is difficult. The respondents did not examine the bus owner or any nearby shopkeepers to support the theory of false implication. Therefore, a mere delay in reporting the vehicle number to the police cannot be taken as sufficient ground to disbelieve the claimants' version or to assume that the vehicle was falsely implicated. The concern raised by the insurance company’s manager appears to be based only on apprehension. RW-2 stated in his evidence that he conducted a private investigation and concluded that the vehicle was falsely implicated. However, the investigator himself was not examined, nor was any evidence produced to show that a proper investigation was carried out to ascertain the true facts of the accident.

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Learned counsel for respondent relied on the following judgment:

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i. ICICI Lombard General Insurance Co. Ltd., Vs. Rajani Sahoo and others³ .

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ii. Rajwati @ Rajjo & others Vs. United India Insurance Company Ltd. & others.⁴

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iii. Sunita and others vs. Rajasthan State Road Transport Corporation and Others⁵ .

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iv. Kusum Lata and others vs. Satbir and others⁶

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Upon careful consideration of the facts in each

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case, it is evident that the decision in the cited case was based on its own specific facts and circumstances, wherein this Court disbelieved the version of events and held that the vehicle had been falsely implicated. However, those judgments were decided based on the distinct facts of that particular case and are not applicable to the facts of the present case. Since the testimony of PW-2 has not been discredited he was neither related to the deceased nor known to him. It is unlikely that he would take the risk of going to the police and reporting the incident unless it actually occurred. Therefore, the fact that he did not lodge a

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3 (SLP (C) No.29302 of 2019) Supreme Court.

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4 (Civil Appeal NO.8179/2022)

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5 (2020) 13 SCC 486

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6 (2011) 3 SCC 646

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complaint or disclose the vehicle number immediately does not, by itself, imply that no such incident took place.

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For the aforesaid discussion, I find no merit in the submissions made by the learned counsel for the appellant. Accordingly, point No.1 is answered in the negative.

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The learned counsel for the appellant contended that, except for claimant No.2 (the mother), the other claimants—claimant No.1 (the father) and claimant Nos.3 and 4 (elder sisters of the deceased)—are all majors and, therefore, cannot be treated as dependents. It was further argued that, on this basis, the Tribunal neither properly assessed the income of the deceased nor made appropriate deductions towards personal expenses, and also awarded compensation under various heads, including loss of consortium, without justification. However, in National Insurance Co. Ltd. v. Birender and Others⁷ , the Hon’ble Supreme Court held that merely because a claimant is a major and has an independent source of income does not

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7 (2020) 11 SCC 356

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automatically disqualify them from being considered as a dependent. Dependency is a question of fact, which is to be decided on the evidence presented. In the present case, it has been established that all the claimants were residing with the deceased under the same roof. According to their evidence, the deceased used to contribute his entire income towards the maintenance and welfare of the family. Therefore, claimant Nos.1, 3, and 4 can also be considered dependents for the purpose of compensation under the Motor Vehicles Act.

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It is undisputed that the deceased was unmarried. Therefore, the Tribunal ought to have deducted 50% of his income towards personal expenses. Instead, only 1/3rd was deducted, which needs to be corrected.

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The claimants have not filed any appeal against the impugned judgment. Hence, there is no requirement to reconsider or enhance the total amount of compensation. Accordingly, point No.2 is answered partly in the affirmative .

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