1. This is a claimants’ appeal directed against the judgment and order passed in MVC No.42/2016 dated 17.04.2018 by II-Additional District and Sessions Court and Additional Motor Accident Claims Tribunal, Bidar sitting at Basavakalyan (for short, hereinafter referred to as ‘the Tribunal’) wherein the Tribunal has dismissed the claim petition filed by the claimants under Section 166 of the Motor Vehicles Act, 1988.
2. For the sake of convenience, parties are referred to as per their ranking before the Claims Tribunal.
3. Factual matrix of the case in brief are that:
On 03.09.2015 at about 10.00 a.m., the deceased in this case one Subhash had been to Kamalapur on his motorcycle bearing registration No.KA-32/EC-8808 and when he came near Kamalapur Bus Stand, one Swift Car bearing registration No.KA-38/M-2729 came from Humnabad side, driven by its driver in a rash and negligent manner and dashed to the motorcycle. Due to which, the motorcycle rider, Subhash, fell down and sustained multiple injuries on his person. Thereafter, one Eshwar Biradar hailing from the same village secured Ambulance and shifted the injured to Basaveshwar Hospital, Kalaburagi. However, on the same day, at about 5.00 p.m., Subhash succumbed to the injuries. After conducting the postmortem examination, the body of the deceased was handed over to the family of the deceased. Subsequently, the jurisdictional Police registered the case against the driver of the offending vehicle in Crime No.115/2015 for the offences punishable under Sections 279, 304(A) of IPC r/w Section 187 of the Motor Vehicles Act. Hence, the claimants being the legal heirs of the deceased filed claim petition before the Tribunal claiming compensation.
4. In response to the service of summons, respondent No.1 remained absent and he has been placed exparte. Respondent No.2 appeared before the Tribunal and filed written statement by denying the averments made in the claim petition so also denying the accident itself.
5. The Tribunal, after considering the averments of the claim petition and written statement, framed the relevant issues for consideration.
6. In order to prove the claim petition filed by the claimants, first claimant examined herself as PW.1 and also examined one more witness as PW.2 so also got marked 11 documents as Exs.P1 to P11. However, the respondent-Insurance Company got examined the doctor as RW.1 and also got marked 02 documents as Exs.R1 and R2.
7. After assessment of oral and documentary evidence on record, the Tribunal dismissed the claim petition filed by the claimants. As stated supra, the same is challenged before this Court.
8. We have heard Sri B.C.Jaka, learned counsel for the claimants and Smt. Preeti Patil Melkundi, learned counsel for respondent No.2/Insurance Company.
9. It is the primary contention of the learned counsel for the claimants that the Tribunal has grossly erred while rejecting the claim petition holding that the claimants have failed to establish the factum and manner of accident that it took place near Kamalapur Bus Stand, inspite of placing cogent evidence of PWs.1 and 2 so also documents. He would further contend that claimant No.1 i.e., wife of the deceased was examined as PW.1. Though she is not an eyewitness to the accident, she has categorically deposed that soon after the accident, one Eshwar Biradar has called 108 Ambulance and shifted the injured Subhash to Basaveshwara Hospital, Kalaburagi, and in the said hospital, he succumbed to the injuries late in the evening on the same day. The complaint has been filed by one Satish and FIR also came to be registered in Crime No.115/2015 as per Ex.P1. Accordingly, the jurisdictional Police, took up investigation and conducted spot mahazar so also after completing investigation laid the charge sheet against the driver of the offending vehicle as per Ex.P7. Nevertheless, the Postmortem Examination report produced by the claimants as per Ex.P6 depicts 13 injuries on the body of the deceased. On careful examination of those injuries, the doctor has also clearly opined that the injuries are secondary to road traffic accident. Such being the position, absolutely, there is no reason to disbelieve the contents of the charge sheet materials so also Postmortem Examination report. Inspite of that, the Tribunal dismissed the claim petition by relying on the history of assault given by the brother of the deceased in the hospital as per Ex.R1. Accordingly, with these grounds, he prays to allow the appeal.
10. Per contra, Smt. Preeti Patil Melkundi, learned counsel appearing for the Insurance Company vehemently contended that the Tribunal has passed the impugned judgment after considering all the facts and circumstances of the case so also placing reliance on the evidence of the material witnesses. As such, the same does not call for any interference. She would further contend that the Doctor who is examined as RW.1 categorically deposed that the injuries sustained by the deceased were not due to the road traffic accident as stated by the claimants. In addition, respondent No.2 has produced Ex.R1-Case Sheet wherein the brother of the deceased himself categorically given the history of assault before the hospital that the injuries caused due to self-fall from the motorbike. Such being the case, the Tribunal has rightly dismissed the claim petition. Accordingly, she prays to dismiss the appeal.
11. Having heard the learned counsel appearing for the respective parties so also having perused the documents made available before us including the judgment passed by the Tribunal, the points that would arise for our consideration are:
i. Whether the Tribunal is justified in dismissing the claim petition filed by the claimants by holding that the deceased not died due to the road traffic accident as claimed by the claimants
ii. Whether the appellants/claimants are entitled for compensation
12. Point No.1: As could be seen from the records, particularly, Ex.P1-FIR and Ex.P2-complaint lodged by one Satish disclose that on 03.09.2015 at about 10.00 a.m., the deceased-Subhash was proceeding on a motorcycle bearing registration No.KA-32/EC-8808 in front of Kamalapur Bus Stand and at that time, driver of the car bearing registration No.KA-38/M-2729 came from Humnabad side in a rash and negligent manner and dashed to the motorcycle of the deceased and due to the said impact, the deceased sustained fatal injuries on his person and thereafter one Chandrashekhar has shifted the deceased in 108 Ambulance to Basaveshwar Hospital, Kalaburagi for treatment. However, on the same day at about 5.00 p.m., the deceased succumbed to the injuries. As rightly contended by the learned counsel for the claimants, after registration of the FIR marked at Ex.P.1, the investigation officer proceeded with the investigation and after completion of the investigation laid the charge sheet against the driver of the offending vehicle. There is no such challenge is made by the Insurance Company against the said charge-sheet.
13. In this context, it is relevant to cite the decision of a Co-ordinate Bench of this Court in the case of BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED VS. SMT. LAKSHMAMMA AND OTHERS IN THE CASE OF MFA NO.7493/2007 disposed of on 25.09.2007, held in para No.6, which reads as under:
6. Then, coming to the question of involvement of the vehicle, admittedly charge- sheet is filed against the driver of the vehicle, the owner has not denied the accident. FIR is registered in Crime No.10/05 by the Malur Police. If really the vehicle was not involved, if a false case has been lodged and if the owner has colluded with the claimants, it was for the insurance company to challenge the same to quash the charge-sheet and to direct the police to investigate properly and file an appropriate case for having lodged a false case when there was no accident and vehicle in question had not been involved. The learned counsel for the appellant submits that after case was filed, the matter was entrusted to a private agency for investigation and accordingly to the report of the investigation of a private agency, the vehicle in question had not been involved in the accident. But, we cannot place reliance on a report submitted by a private agency when a charge-sheet is filed by the police after a detailed investigation and when the driver and owner of the vehicle have not disputed about the involvement of the vehicle in question. Therefore, this point is also answered against the appellant.”
14. Nevertheless, the post-mortem report produced at Ex.P.6 clearly depicts that the deceased sustained as many as 13 injuries all over his body and the doctor who conducted autopsy clearly opined that the death of the deceased is due to the following injuries:
1. Abrasion present over left mastoid region measuring 3 x 2 c.m. red in colour.
2. Abrasion present over left side of forehead 5 c.m above the left ear measuring 5 x 3 c.m. red in colour.
3. Multiple small abrasion present over chin and left cheek measuring 0.5 x 1 c.m ( 5 in number) each red in colour.
4. Black eye present over left side red in colour.
5. Abrasion present over dorsum of left hand measuring 0.5 x 1 c.m. each. red in colour.
6. Abrasion present over front of left knee joint (3) in measuring 3 x 1 c.m. each. Red in colour.
7. Injury present over lateral aspect of left thigh, away from lateral part of knee joint with (1) stitch in situ. After removing stitches no blood seen.
8. Injury present over anterior part of left foot measuring 13 c.m in length with 5 inches in situ running obliquely. 30 ml of blood present after opening stitches.
9. Multiple abrasions present along the anterior aspect of right tibia over the skin, measuring 35 cm length area 3 (i) in number measuring is 5 x 0.5 c.m , (ii) 4 x 2 cm and (iii) 9 x 0.5 c.m red colour. All placed 3 cm in equal distance form knee joint.
10. Injury present over night knee joint measuring 5 x 2 cm with stitches in situ, red in colour.
11. Grazed abrasion present over back side of left loner lumba and region, running above downwords obliquely measuring 8 x 4 cm red in colour.
12. Grazed abrasion present over back of thoraxes 7th – 8th rib left side, area running above downwords measuring 5 x 5 cm red in colour.”
15. Hence, on perusal of the same, it is clear that the deceased sustained injuries in a road traffic accident. Though the learned counsel for the respondent/Insurance company contended that while admitting the deceased to the Basaveshwara Hospital, he has given the history of injuries which are caused due to fall from the motorcycle. On careful perusal of the same, there is no such specific word forthcoming in Ex.R.1 that injuries caused due to self-fall or the deceased fell from the motorcycle. The first informant i.e., brother of the deceased being rustic villager might have stated that the injuries sustained by the deceased are from fall on the road, however failed to state it was due to the accident. Such stray sentence given by the family member that too immediately at the time of accident cannot be considered to reject the claim petition as opined by the learned Tribunal.
16. Further, the learned counsel for the claimants also submits that the driver of the offending vehicle faced trial before the jurisdictional Magistrate Court in C.C.No.277/2016 and after a detailed trial, the Court accused was convicted for the offences charged against him. However, the said fact has not been refuted by the learned counsel for the Insurance/Company. Such being the scenario, we are of the considered view that the Tribunal erred in concluding that the deceased was died due to road traffic accident as narrated in the claim petition. In that view of the matter, we answer the point No.1 in the Negative.
17. Pont No.2: As we have already answered point No.1 in the Negative holding that the deceased died due to road traffic accident, the claimants are entitled for compensation.
18. Insofar as awarding of compensation, the learned counsel for the claimants contend that the claimants are the wife, mother and brother of the deceased and they are all dependent upon the deceased. Further contend that the deceased was earning Rs.35,000/- p.m. from his profession as a Supervisor in a Private Limited. But perusal of the records goes to show that in order to substantiate the said claim of the claimants, they have not produced any records much less the salary certificate from the company where he was working as a Supervisor, claimed by him. The accident in question is of the year 2015 and as on the date of the accident, the deceased was aged about 29 years. In the absence of proof of income of the deceased, this Court has to take the notional income of the deceased as Rs.8,000/- as per the Chart prepared by the Karnataka State Legal Services Authority. Thus, the income of the deceased is taken as Rs.8,000/- p.m.
19. As rightly contended by the learned counsel for the claimants, in view of the judgment of the Apex Court in National Insurance Co. Ltd. Vs. Pranay Sethi reported in (2017) 16 SCC 680, 40% of the income of the deceased has to be added towards the future prospects. The deceased was aged about 29 years as on the date of the accident, the multiplier of 17 has to be adopted as per the judgment of the Hon'ble Supreme Court in the case of Sarla Verma vs. Delhi Transport Corporation reported in (2009) 6 SCC 121. Claimant Nos.1 and 2 are the wife and mother of the deceased and claimant No.3 is the brother of the deceased. The appropriate deduction would be 1/3rd towards the personal expenses of the deceased. Therefore, the claimants are entitled to a sum of Rs.15,23,268/- [Rs.8,000 + 40%(Rs.3,200/-) =Rs.11,200/- less 1/3rd (Rs.3,733/-) = Rs.7,467x12x17] as compensation under the head ‘loss of dependency’.
20. Further, in view of the law laid down by the Hon’ble Supreme Court in the case of Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram & Others reported in (2018) 18 SCC 130, claimant Nos.1 and 2 are entitled to a sum of Rs.40,000/- each towards loss of consortium and parental consortium. In addition, the petitioners are entitled to a sum of Rs.15,000/- towards funeral expenses and Rs.15,000/- under the head of loss of estate. Thus, in all, the claimants are entitled to compensation of Rs.16,33,268/-.
21. In view of the above discussion, we proceed to pass the following:
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and award dated 17.04.2018 in MVC No.42/2016 passed by the Tribunal is set aside.
iii. The claim petition filed by the claimant Nos.1 and 2 in MVC No.42/2016 is allowed and the claimant Nos.1 and 2 are entitled to a total compensation of Rs.16,33,268/- along with interest at the rate of 6% per annum from the date of petition till the date of its realization.
iv. The claim petition filed by the claimant No.3 is dismissed.
v. Respondent No.2/Insurance Company is directed to deposit the compensation amount before the Tribunal within a period of eight weeks from date of the receipt of certified copy of this judgment.
vi. Out of total compensation amount awarded, the claimant No.1 is entitled for 70% and claimant No.2 is entitled for 30% of compensation. 50% of the amount awarded to the claimant No.1 shall be released in her favour and remaining 50% shall be kept in fixed deposit for a period of 3 years in any nationalized bank.
vii. The entire compensation awarded to the claimant No.2 shall be released in her favour.
