Shivarudrappa Hanumanthappa Vs Rachappa Fakkirappa Byahatti

THIS MFA CROB. IN MFA NO.25008/2012 IS FILED U/O.41 RULE 22 OF CPC., AGAINST THE JUDGMENT AND AWARD DATED 24.07.2012 PASSED IN MVC NO.226/2007 ON THE FILE OF THE DISTRICT JUDGE AND MEMBER, MACT, GADAG, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS PETITION, COMING ON FOR FINAL HEARING,

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IN MFA NO. 25008 OF 2012 BETWEEN:

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THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD. SUJATA COMPLEX, HUBLI, REP: BY ITS DEPUTY OFFICER, REGIONAL OFFICE, ARIHANT PLAZA, KESHWAPUR, KUSUGAL ROAD, HUBLI-23,

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…APPELLANT

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(BY SRI. S.K. KAYAKAMATH, ADV)

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AND:

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SHRI. SHIVARUDRAPPA S/O HANUMANTAPPA ANNAYYANAVAR, AGE: 55 YEARS, OCC: AGRICULTURE, R/O. KONANAKOPPA, TQ: HANGAL, DIST: HAVERI.

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KUMARI. AKKAMMA D/O SHIVARUDRAPPA ANNAYYANAVAR, AGE: 21 YEARS, OCC: STUDENT, R/O KONANAKOPPA, TQ: HANGAL, DIST: HAVERI.

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SMT. VIJAYLAXMI W/O RACHAPPA BYAHATTI, AGE: 61 YRS, OCC: HOUSEHOLD

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SMT. ANNAPURNA W/O BASAVARAJ ULLAGADDI, AGE: MAJOR, OCC: HOUSEWIFE,

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SUMALATA D/O RACHAPPA BYAHATTI AGE: MAJOR, OCC: HOUSEHOLD,

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SUPARNA D/O RACHAPPA BYAHATTI AGE: MAJOR, OCC: HOUSEHOLD,

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PRASANNA S/O RACHAPPA BYAHATTI AGE: MAJOR, OCC: STUDENT,

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ALL ARE GADAG.

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(SINCE THE RESPONDENT NO.1 IS DECEASED BEFORE THE TRIBUNAL AND THE LR’S ALREADY BROUGHT ON RECORD, HENCE THE DECEASED IS NOT A NECESSARY PARTY TO THIS APPEAL).

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…RESPONDENTS

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(BY SMT. SHASHIKALA L. DESAI, ADV FOR R1 & R2, SRIYUTHS. V.P.KULKARNI & KRISHNAKUMAR JOSHI, ADVS FOR R3 TO R7)

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THIS MFA IS FILED U/S 173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED:24-07-2012 PASSED IN MVC NO.226/2007 ON THE FILE OF DISTRICT JUDGE AND MEMBER, MACT, GADAG, AWARDING THE COMPENSATION OF RS.3,18,000/WITH INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF PETITION TILL THE DATE OF REALISATION.

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

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CORAM: THE 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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The Insurance Company filed an appeal,

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challenging the Judgment and award dated 24.07.2012 passed in MVC No.226/2007 by the learned District Judge and M.A.C.T., Gadag (for short, ‘the Tribunal’) and the petitioners filed a cross objection, being dissatisfied with the quantum of compensation awarded by the Tribunal.

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Brief facts leading rise to the filing of the

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appeal, and cross objection, are as follows:

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On 17.02.2007 at about 11:30 p.m. Manjunath

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Annayyanavar met with an accident. The deceased Manjunath and his friend Srinivas were travelling on a motorcycle bearing No.KA-16/Q-1585 from Magadi to Mulagund for the office work, and when they came near the spot of the accident, one lorry bearing No.KA-26/1803, driven by its driver, at a high speed, and in a rash and negligent manner, came from the Gadag side, and the driver of the said lorry lost control over the vehicle, and

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dashed to the motorcycle, causing an accident. As a result,

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the deceased Manjunath sustained grievous injuries, and succumbed to the injuries. A criminal case was registered against the driver of the lorry in Crime No.16/2007 for the offences punishable under Sections 279 and 304(A) of the IPC. The offending vehicle was insured with the Insurance Company, and the said vehicle was owned by respondent No.1 before the Tribunal. It is contended that the deceased Manjunath was the sole bread earner in the family, and due to his death, the petitioners are deprived of love and affection, and also there is a financial crisis. Hence, the petitioners filed the claim petition under Section 166 of the M.V. Act.

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The owner of the vehicle filed a statement of objections, denying the averments made in the claim petition. It is contended that the driver of the lorry was holding a valid and effective driving license, and the insurance policy was valid and in force as of the date of the accident. It is further contended that if the Tribunal

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concludes that the owner is liable to pay the compensation, the Insurance Company be made liable to pay the compensation. Hence, prays to dismiss the claim petition against the owner of the vehicle.

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The Insurance Company filed a statement of objections, denying the averments made in the claim petition. It is contended that the statement of the complainant is recorded on 18.02.2007 and a further statement of the complainant was recorded on 17.05.2007. The vehicle was seized on 07.06.2007. The petitioners colluding with the Police, falsely implicated the vehicle in question. It is also contended that the pillion rider of the motorcycle i.e., Srinivas stated that 10 wheeler lorry came from the Gadag side, and because of a sudden flash of the high beam on their eyes, they dashed to the lorry, and capsized on the side of the road, and due the to night hours, they were not able to see, and identify the vehicle and registration number. Thus, the lorry bearing No.KA-26/1803 was not involved in the accident,

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and the Insurance Company is not liable to pay the compensation amount. 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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The petitioners to substantiate their case, petitioner No.1 was examined as PW-1, and marked 8 documents as Exs.P.1 to P.8. The respondents examined 7 witnesses as RW-1 to RW-7, and marked 25 documents as Exs.R.1 to Ex.R.25.

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The Tribunal, after recording the evidence and assessing the verbal and documentary evidence, allowed the claim petition in part with costs vide judgment dated 24.07.2012. It is held that petitioner No.2 is entitled to compensation of Rs.3,18,000/- with costs and simple interest at the rate of 6% per annum from the date of the petition till the date of realisation. The respondents, i.e. the owner and insurance company, are jointly and

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severally liable to pay the entire compensation with costs and interest, and directed the Insurance Company to deposit the entire compensation amount with interest and costs within a month from the date of the award.

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The Insurance Company, aggrieved by the judgment and award passed in MVC No.226/2007, preferred an appeal in MFA 25008/2012 on the ground of liability. The petitioners, being dissatisfied with the quantum of compensation awarded by the Tribunal, filed the cross objection in MFA Crob No.735/2013 seeking for enhancement of compensation.

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Heard the learned counsel for the Insurance Company, owner and the cross-objectors/petitioners.

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Learned counsel for the Insurance Company submits that the vehicle in question was falsely implicated. He submits that the accident occurred on 17.02.2007 involving an unknown vehicle. He further submits that the pillion rider of the motorcycle stated that a 10 wheeler

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lorry came from the Gadag side, and due to the sudden flash of high beam on their eyes, they dashed towards the lorry. As a result, an accident had occurred. He submits that the accident occurred due to the rash, and negligent riding of the rider of the motorcycle. He also submits that the owner of the vehicle in question has given a statement contending that the lorry was not involved in the accident, and the daughter of owner of the lorry was examined as RW-4 to prove the statement given by the owner as per Ex.R.7. He also submits that the Insurance Company has examined the driver of the lorry involved in the accident as RW-7, who has deposed that he was working as a driver and on 17.02.2007, he had taken the lorry bearing No.KA-26/1803, belonging to one Ranchappa Fakkirappa Byahatti is to unload the goods in Belgavi, and no accident has taken place involving the said lorry. Learned counsel submits that the Insurance Company also examined the investigators as RW-2, 3 and 5. He submits that the said aspect was not properly considered by the Tribunal and

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committed an error in fastening the liability on the Insurance Company. He also submits that the statement of the driver’s wife was recorded, who stated that as of the date of accident, the driver did not drive the vehicle in question as of the date of accident. 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 as against the Insurance Company.

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Learned counsel for the owner of the offending vehicle adopts the arguments of the learned counsel for the Insurance Company.

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Per contra, learned counsel for the

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cross-objectors/petitioner submits that on 17.02.2007 the vehicle in question was involved in the accident. He submits that, although the owner of the vehicle was in a position to write the statement, but as per Ex.R.7 it was drafted by RW-4. He submits that RW-4 has not explained why her father was not in a position to write the statement/letter as per Ex.R.7. There is no explanation

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forthcoming from RW-4 regarding the drafting of Ex.R.7. Further, he submits that though the pillion rider sustained grievous injuries, he gave a statement stating that because of the sudden flash of high beam on their eyes, accident occurred. Learned counsel, further, submits that

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no charge sheet is filed against the rider of the motorcycle. He also submits that the Insurance Company has challenged the charge sheet filed against the driver of the vehicle in question in Writ Petition No.63206/2012, and connected matters seeking mandamus. The Coordinate Bench of this Court vide order dated 16.07.2013 held that this Court cannot mechanically issue directions for re-investigation or further investigation to CBI or COD, more particularly, when the investigation records of the criminal cases and result of the criminal cases thereof, have no direct bearing on the issues for determination by the Tribunal. He also submits that in the absence of income proof, the Tribunal ought to have taken the notional income of the deceased as per the schedule

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notified by the Karnataka State Legal Services Authority (KSLSA). The accident occurred in 2007. The notional income should be taken at Rs.4,000/- p.m. and the future prospects is to be added in view of the proposition of law laid down by the Hon’ble Apex Court in the case of

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National Insurance Company Limited vs. Pranay Sethi

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and Others¹ . The compensation awarded by the Tribunal on the other heads is also on the lower side. He also submits that the Tribunal was justified in fastening the liability jointly, and severally on the owner and the insurance company. Hence, on these grounds, he prays to dismiss the appeal filed by the Insurance Company, and to allow the cross-objection fled by the petitioner.

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

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The point that would arise for consideration is regarding the liability, and the quantum of compensation .

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1 AIR 2017 SC 5157

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Regarding liability:

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The petitioners, to prove their case, examined petitioner No.1 as PW-1. He deposed that his son met with an accident, sustained a grievous injuries, and succumbed to the injuries, and the accident occurred due to the rash and negligent driving of the driver of the lorry bearing No.KA-26/1803. To prove that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle, the cross-objectors/petitioners produced a certified copy of the charge sheet marked as Ex.P.7. From the perusal of the charge sheet marked as Ex.P.7, it discloses that the Police registered have the case against the lorry driver in Crime No.16/2007 for the offences punishable under Sections 279, 337, 338, 304A, IPC and sec.187 of the M.V.Act.

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In rebuttal, the Insurance Company examined the Branch Manager as RW-1, who deposed that the petitioners had filed a false and vexatious claim petition, although the goods vehicle, bearing No.K26/1803 was not

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involved in the accident. It is deposed that the Insurance Company got investigated the alleged accident through private investigators. During the course of the investigation, it was revealed that the vehicle involved in the accident is not the vehicle belonging to the owner viz., Rachappa Fakkirappa Byhatti. It is also deposed that the wife of the driver of the lorry bearing No.KA-26/1803 gave a statement before the investigator that her husband, i.e., the driver of the lorry by name Jalani S/o Babansab Bagalkote of Lakshmeshwar was an alcoholic, and was mentally retarded and he has not driven any vehicle for the last three years. RW-1 produced 25 documents and marked as Exs.R.1 to R.25. During cross-examination, it is elicited that Gadag branch is under the control of Hubballi division and after his transfer and the person, has taken a charge as a Branch Manager, and he admits that the lorry involved in the accident is insured with the Insurance Company and on the date of accident, the lorry was covered by the insurance policy. He also admits that the

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charge sheet was filed against the driver of the lorry, and he has not given any evidence in the criminal case, and he does not know whether the complainant in the criminal case, has given evidence stating that the lorry has been involved in the accident. He further admits that at the time

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of the investigation, the owner of the vehicle was alive, and they had recorded the statement of the owner of the vehicle, but statement was recorded by his wife.

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The insurance company also examined one Satish as RW-2, who accompanied RW-3 for investigation and he reiterated the averments of the examination-inchief of RW-1. In the course of cross-examination, it is elicited that he was working in Proctor Investigation and Security Agency; it was a partnership firm and now it is closed and converted into company; they gave investigation report to the Insurance Company; they have not produced the requisition given by the Insurance Company; he do not remember the date, and he had not informed the owner of the vehicle about their arrival and

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have not produced the statement of the owner. It is further elicited that they have recorded the statement of the wife of the driver, and they came to know that the driver of the vehicle died due to heavy drunkenness. He admits that they have not produced the statement of the wife of the driver, and also admits that they have not obtained permission from the Insurance Company to record the video. They have taken the video by hidden camera

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The Insurance Company also examined one Mahesh as RW-3 who was accompanied RW-2. He has also deposed in the same lines of RW-1 in the examination in chief and RW-2 in the course of cross-examination, has admitted that he did not inform the owner of the vehicle about their arrival, and did not produce the statement of the owner and they have taken the statement of the wife of the driver, and also admitted that they did not produce the statement of the wife of the driver.

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The respondents have examined, one

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Sumalatha who is the daughter of the owner of the lorry bearing No.KA-26/1803. She has deposed that her father was owning one lorry, and the registration number of the lorry was KA-26/1803, which consists six wheels, and that

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she can identify her father’s signature, and her father signature is marked as Ex.R.7(b), and her signature is marked as Ex.R.7(a). Ex.R.7 is written by her own handwriting as per the direction of her father. In the cross-examination, it is elicited that she does not know the contents of Ex.R.7.

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From the perusal of the evidence of RW-1 to RW-3, it is noticed that they have clearly stated in their evidence that, the wife of the owner has recorded the statement of the owner, but RW-4 has stated that she has recorded the statement of her father. She also admits that her father knows reading and writing and she has not explained as to why her father did not write the statement as per Ex.R.7. There is no explanation forthcoming from

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RW-4 as to why her father avoided writing the statement.

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She denied the suggestion that, to help the insurance company, she gave Ex.R-7.

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One Guddappa Salageri was examined as RW-5 who deposed that the Insurance Company appointed him to investigate about the alleged accident taken place on 17.02.2007. This witness also deposed in the same line of RW-1 to RW-3 in examination-in-chief. He deposed that he had submitted a report as per Ex.R.6 and his signature was marked as Ex.R.6(a). In the course of crossexamination, it is elicited that, he does not have any office; he does not have any qualification to investigate any case, and he has not been registered. In the course of his cross-examination, it was elicited that he has completed PUC, and he had worked for the Oriental Insurance Company, National Insurance Company, United India Insurance Company and New India Assurance Company and he is from Ranebennur. He has not produced any authorization letter from the Insurance

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Company authorizing him to investigate regarding the alleged accident. He admits that he has not issued any notice to the parties intimating the enquiry. He denied the suggestion that he had taken the signature on the blank papers, and created Ex.R.7.

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The Insurance Company also examined one Suparna Byahatti as RW-6, who is another daughter of the owner of the lorry in question. She deposed that the claim petition was filed on the false and baseless grounds and the vehicle was not involved in the accident as of the date of the accident. It is elicited in the cross-examination that she has not received any property from her father. Her brothers received some properties from her father, and she does not know anything about the accident. As per her knowledge, no accident has taken place. She admits that her father has filed a written statement; her father can read and write. She does not know as to why her father wrote the statement in his own handwriting.

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The Insurance Company examined one Daval

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Budihal as RW-7, who was working as a driver of a lorry bearing No.KA-36/1803 belonging to Rachappa Fakirappa Byahatti. He deposed that on 17.02.2007, he had taken the lorry in question belonging to the said Rachappa to unload the goods to Belgaum. No accident has taken place involving the lorry in question on 17.02.2007. In the course of cross-examination, it is elicited that he belongs to Kotumachagi, and has given instructions to draft his evidence of affidavit. It is elicited that now he has been working at Mysuru in KSRTC for last two years and permanently residing at Mysuru; he has not produced any documents to show that he was driving the lorry as of the date of the accident; he has not produced any document to show that he was taking a salary, and working as a driver.

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From the perusal of the entire evidence placed

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on record, the defence of the Insurance Company is that the vehicle has been falsely implicated, and a charge sheet

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has been filed against the driver of the lorry in question. Though, the Insurance Company has challenged the charge sheet in Writ Petition No.63206/2012, and the connected matters, the Coordinate Bench of this Court vide order dated 16.07.2013 held as under:

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“12. Above all, this Court cannot mechanically issue directions for re-investigation or further investigation to CBI or COD, more particularly, when the investigation records of the criminal cases and result of criminal cases thereof, have no direct bearing on the issues for the determination by the Tribunal.

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“13. As already stated these issues will have to be decided by the Tribunal on the basis of the evidence adduced before it. The investigation records or the judgment of the criminal courts will not preclude the contesting parties from substantiating the defence by adducing necessary and relevant evidence before the Tribunal. The petitions are dismissed with these observations.”

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As observed above, this Court has recorded a finding in the above said Writ Petitions that the criminal cases and the results of the criminal cases thereof, have

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no direct bearing on the issue for determination by the

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Tribunal.

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RW-1 to RW-3 and RW-5 have deposed that the

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statement of the owner-Rachappa was recorded by his wife, wherein RW-4 being the daughter, has deposed in her evidence, that she has recorded the statement of Rachappa. There is an inconsistency in the evidence of RW-1 to RW-3, RW-5 and RW-4 regarding the recording of evidence of the owner Rachappa. Furthermore, RW-4 and RW-6 who are the daughters of Rachappa, they deposed that their father knew reading and writing, and however they have not explained why their father avoided giving a statement in his own handwriting, and what prevented him from writing a statement in his own handwriting. Furthermore, RW-6 who is one of the daughters of Rachappa, deposed in favour of the Insurance Company, however, in the course of cross-examination she clearly admitted that she was not given any properties by her father, and her brothers had taken the properties. That

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might be the reason to give a statement in favour of the

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Insurance Company.

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The respondents have contended that the investigators recorded the statement of the wife of the driver, but the Insurance Company has not produced the statement of the wife of the driver and also they have not examined the wife of driver of the vehicle involved in the accident. In view of the non-examination of the wife of the driver, an adverse inference has to be drawn against the owner, and the Insurance Company. Further, RW-5 has passed only PUC-II and he has not produced any records to show that he has been authorised by the Insurance Company to investigate the accident taken place on 17.02.2007. Admittedly, neither the owner-Rachappa nor the Insurance Company has examined the driver of the offending vehicle nor the wife of driver of the offending vehicle who allegedly stated before the investigators that her husband had stopped driving the vehicle for past 3 years. In support of the contention of the respondents

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Insurance Company, the Insurance Company has not produced any records. Thus, considering the documents produced by the petitioners i.e., is the charge sheet marked as Ex.P7, which discloses that the charge sheet has been filed against the driver of the lorry by name Jilani Bagalkote for the offences punishable under Sections 279, 337, 338 and 304-A of IPC and Section 187 of the M.V. Act.

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Thus, considering Ex.P7, this Court is of the opinion that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle. The Tribunal was justified in recording a finding on issue No.1 in the affirmative, which is just and proper, and do not call for any interference.

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Regarding Quantum

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Insofar as the quantum of compensation

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awarded by the Tribunal is concerned, the petitioners contended that the deceased was serving as a Supervisor

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at ENERCON India Ltd., and used to earn Rs.15,000/- per month. To substantiate the income of the deceased, the petitioners have not produced any income proof. In the absence of income proof, the notional income must be assessed as per the guidelines issued by the Karnataka State Legal Services Authority (KSLSA). The accident occurred in 2007. The notional income should be taken at Rs.4,000/- p.m. The deceased was aged 23 years old as of the dated of the accident, 40% of the future prospects is to be added to the income in view of the proposition of law laid down by the Hon’ble Apex Court in case of Pranay Sethi (supra). As the deceased was a bachelor, 50% of the notional income is to be deducted towards the personal expenses of the deceased. The applicable multiplier is ‘18’. Accordingly, the loss of dependency is worked out as follows:

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Rs.4,000 + Rs.1,600/-(40% of Rs.4,000/-) = Rs.5,600/-

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Rs.5600-2,800 (50% of Rs.5,600/-) = 2,800/-.

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Rs.2,800 x 12 x 18 = 6,04,800/-

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Thus, the petitioners, are entitled to a compensation of Rs.6,04,800/towards loss of

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dependency. There are two petitioners. Each petitioner is entitled to a compensation of Rs.48,000/- for the loss of consortium (Rs.48,000 x 2 = Rs.96,000/-). In addition to it, the petitioners are entitled to a compensation of Rs.36,000/- under the head of loss of estate, and funeral expenses. Thus, the petitioners are entitled to a total compensation of Rs.7,36,800/- as against Rs.3,18,000/-, i.e., an enhanced compensation of Rs.4,18,800/-.

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In view of the above discussion, the Tribunal was justified in fastening liability on the owner and the Insurance Company, jointly and severally. As the Insurance Company failed to establish that the said vehicle had been falsely implicated. In the statement of objections filed by the owner of the lorry, except bare denial, he has not raised any contention that the vehicle was not involved in the accident. Thus, there is no specific denial by the

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owner of the vehicle in regarding to the accident occurred

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on 17.02.2007.

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

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ORDER

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(i) M.F.A.No.25008/2012 filed by the Insurance Company is dismissed

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(ii) Cross-objection in M.F.A.Crob.No.735/2013 filed by the Petitioner/cross-objectors is hereby allowed.

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(iii) The judgment and award passed in MVC No.226/2007 dated 24.07.2012 by the District Judge and MACT, Gadag is hereby modified. The Petitioners/cross-objectors are entitled to an enhanced compensation of Rs.4,18,800/- with interest at the rate of 6% per annum from the date of the petition till the date of realisation of the amount.

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(iv) The owner and Insurance Company are jointly and severally liable to pay the compensation to the petitioners.

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HC-KAR

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

¶204

(vi) The amount in deposit, and the trial Court Records, be transmitted to the Tribunal concerned, forthwith.

¶205

Sd/(ASHOK S. KINAGI) JUDGE

¶206

RHR/CT: BSB List No.: 1 Sl No.: 1

Shivarudrappa Hanumanthappa v. Rachappa Fakkirappa Byahatti

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Shivarudrappa Hanumanthappa v. Rachappa Fakkirappa Byahatti

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