The High Court
Case Details
- 1 - NC: 2025:KHC:16004-DB MFA No.3691/2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF APRIL, 2025 PRESENT THE HON'BLE MRS JUSTICE K.S.MUDAGAL AND THE HON'BLE MR JUSTICE M.G.S. KAMAL MISCELLANEOUS FIRST APPEAL No.3691/2023 (MV-D) BETWEEN: 1. 2. 3. BIBI KHATEJA W/O LATE MOHAMMED UMAR AGED ABOUT 22 YEARS MEHER TAJ W/O MOHAMMED IQBAL AGED ABOUT 49 YEARS MOHAMMED SAYEED S/O LATE MOHAMMED IQBAL AGED ABOUT 30 YEARS ALL ARE R/AT 15TH CROSS P.H COLONY, TUMKUR DISTRICT TUMKUR-557 105 (BY SRI R.SHASHIDHARA, ADVOCATE) …APPELLANTS AND: 1. Digitally signed by ROOPA R U Location: High Court of Karnataka ALAGESHAN A S/O A ALAGAPPAN MAJOR R/AT NO.3/16, SENGALI KADU MORUR WEST PO, SANKARI TALUK SALEM DISTRICT, TAMILNADU STATE-637 301 OWNER OF LORRY BEARING NO.TN-52/A-9907 2. THE NATIONAL INSURANCE CO LTD. TB HUB, NO.144/145 SHUBARAM COMPLEX, M.G.ROAD BENGALURU-560 001 REP. BY ITS MANAGER …RESPONDENTS
Legal Reasoning
(BY SRI RAJENDRA HEGDE MULKHAND, ADVOCATE FOR R2; R1 SERVED) - 2 - NC: 2025:KHC:16004-DB MFA No.3691/2023 THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 02.02.2023 PASSED IN M.V.C.NO.269/2021 ON THE FILE OF THE X ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BENGALURU, SCCH-16 DISMISSING THE CLAIM PETITION FOR COMPENSATION. THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FINAL HEARING, THIS DAY JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND HON'BLE MR JUSTICE M.G.S. KAMAL ORAL JUDGMENT (PER: HON'BLE MRS JUSTICE K.S.MUDAGAL) Challenging the dismissal of their claim petition under Section 166 of the Motor Vehicles Act, 1988 (‘MV Act’ for short), the claimants in M.V.C.No.269/2021 on the file of X Additional Judge, Court of Small Causes & Member MACT, SCCH-16, Bengaluru have preferred this appeal. 2. Appellants were the claimants and respondent Nos.1 and 2 were respondent Nos.1 and 2 before the Tribunal. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal. 3. Claimant Nos.1 to 3 are the wife, mother and younger brother of the deceased Mohammed Umar. On 15.09.2020 at 10.45 a.m. when Mohammed Umar was riding his motorcycle bearing registration No.KA-06-HC-3135 near - 3 - NC: 2025:KHC:16004-DB MFA No.3691/2023 Bharath Petrol Bunk in Halenijagal Badavane, Tumkur- Bangalore NH Road, he met with road traffic accident and died. 4. Claimants filed M.V.C.No.269/2021 before the Tribunal contending that the deceased was doing Roti supplying business and earning Rs.50,000/- per month, they were dependent on the income of the deceased. The driver of the lorry bearing Registration No.TN-52-A-9907 drove the same in rash and negligent manner, hit the motorcycle of Mohammed Umar, caused the accident and his death. They further contended that respondent Nos.1 and 2 being the owner and Insurer of the said vehicle are liable to compensate the damages caused to them due to untimely death of Mohammed Umar. Thus they claimed compensation of Rs.50,00,000/- from the respondents. 5. Respondent No.1 did not contest the petition. Respondent No.2/the Insurer alone contested the petition denying the age, occupation and income of the deceased. It was contended that the deceased himself was responsible for the accident by riding the motorcycle in rash and negligent manner. It was further contended that the lorry was not having valid permit to operate at the scene of accident, thereby there - 4 - NC: 2025:KHC:16004-DB MFA No.3691/2023 was breach of policy condition and the Insurer is not liable to indemnify the damages. 6. The Tribunal on framing necessary issues recorded the evidence of the parties. On behalf of the claimants, claimant No.1 was examined as PW.1 and Ex.P1 to Ex.P13 were marked. On behalf of respondent No.2, R.T.O. was examined as RW.1 and Exs.R1 & R2 were marked. 7. The Tribunal on hearing the parties, by the impugned judgment and award held that the claimants have failed to prove the occurrence of the accident due to actionable negligence on the part of the driver of the lorry bearing Registration No.TN-52-A-9907. The Tribunal rejected Ex.P7 charge sheet on the ground that the charge sheet was filed without application of mind and the same was incomplete. Hence the Tribunal dismissed the claim petition. Challenging the said order, the claimants are in appeal. 8. Sri R.Shashidhara, learned Counsel for the claimants submits that within two hours of the accident, the complaint was filed against the driver of the lorry. On investigation, the police have filed the charge sheet. In the statement of objections, there was no denial of involvement of - 5 - NC: 2025:KHC:16004-DB MFA No.3691/2023 the lorry. Even the driver of the lorry was not examined. The Tribunal failed to appreciate the evidence judiciously. Therefore the finding of the Tribunal is perverse. So far as quantum of compensation, he submits that the income of the deceased has to be notionally assessed and appropriate compensation has to be awarded. 9. Per contra, Sri Rajendra Hegde Mulkhand, learned Counsel for the Insurer submits that as rightly pointed out by the Tribunal, IMV report does not show any damages to the lorry or on the back side of the motorcycle. PW.1 was not the eyewitness. The claimants did not examine any eyewitness. The charge sheet is not conclusive proof. Therefore the Tribunal was justified in holding that the involvement of the lorry in the accident was not proved. So far as the quantum, he submits that there was no proof of actual income of the deceased, as the accident itself was not proved, the question of considering the quantum does not arise. 10. On hearing both side and on examination of the material on record, the questions that arise for consideration of the Court are: (i) Whether the finding of the Tribunal that the claimants failed to prove the involvement of the - 6 - NC: 2025:KHC:16004-DB MFA No.3691/2023 lorry bearing Registration No.TN-52-A-9907 in the accident leading to the death of Mohammed Umar is sustainable? (ii) What would be the just compensation payable to the claimants? Analysis Reg. Negligence: 11. Claimants contended that on 15.09.2020 at 10.45 a.m. when the deceased was riding the motorcycle bearing Registration No.KA-06-HC-3135 near Bharath Petrol Bunk in Tumkur Town, driver of lorry bearing Registration No.TN-52-A-9907 drove the same in rash and negligent manner and in high speed hit the scooter of Mohammed Umar from backside. Consequently, the victim fell down and the wheel of the lorry ran over his head leading to his death. 12. It is true that the initial burden of proving the said fact was on the claimants. To prove the said fact, the claimants relied on the evidence of PW.1 and Exs.P1 to P7 the first information report with complaint, sketch of scene of accident, spot mahazar, IMV report, inquest mahazar, postmortem report and charge sheet. Respondent No.1 the owner of the lorry did not dispute the involvement of the lorry at all. Respondent No.2 also in its statement of objections did not dispute the fact of - 7 - NC: 2025:KHC:16004-DB MFA No.3691/2023 Mohammed Umar meeting accidental death, but only denied the involvement of the lorry in question. In para 14 of its statement of objections before the Tribunal, respondent No.2 contended that the deceased himself was rash and negligent in driving the motorcycle and he seems to have contributed in occurrence of the accident to greater extent and was guilty of higher degree of contributory negligence. That itself presupposes the involvement of vehicle. 13. It is true that PW.1 was not the eyewitness and charge sheet is not conclusive proof, still the charge sheet is filed on conducting investigation while discharging the official duties of the Investigating Officer under Section 114(e) of the Indian Evidence Act, 1872, the said document has presumptive value. The complaint was filed within two hours of the occurrence of the accident implicating the lorry, therefore the initial burden of the claimants, by the evidence of PW.1 and Exs.P1 to P7 stood discharged. It was for respondent No.2 to rebut the said evidence. As already noted, respondent No.2 did not dispute occurrence of the accident or involvement of the lorry. Respondent No.2 did not choose to examine the driver of the lorry. In the evidence of RW.1/R.T.O, absolutely there was no denial about occurrence of the accident. - 8 - NC: 2025:KHC:16004-DB MFA No.3691/2023 14. It is settled principle of law that the proceedings under Section 166 of the MV Act are summary proceedings. Such being the position of law and in the light of the above evidence and pleadings, the Tribunal was in gross error in rejecting the involvement of the vehicle on sole ground that IMV report does not show the damage to the lorry or on the back portion of the motorcycle. The Tribunal committed error in placing itself in the seat of the Investigating Officer or supervisor of the Investigating Officer. Therefore the finding of the Tribunal that involvement of the lorry in accident was not proved is unsustainable. Reg. Quantum: 15. The relationship of the claimants with the deceased is not disputed. Ex.P12/the aadhar card of the deceased shows that his date of birth is 15.06.1990. Therefore as on the date of the accident, he was aged 30 years. Though the claimants contended that he was earning Rs.50,000/- per month from his business, there was no proof of his actual income. Therefore his income has to be considered notionally. 16. Considering the age of the deceased, the fact that he was an able bodied person and prevailing wage rates during the year 2020, his income can be reasonably considered at - 9 - NC: 2025:KHC:16004-DB MFA No.3691/2023 Rs.14,500/- per month. Having regard to the judgment of the Hon’ble Supreme Court in National Insurance Co. Pvt. Ltd v. Pranay Sethi1, 40% has to be superadded to his income by way of future prospects. As there are two dependants, 1/3rd has to be deducted for his personal expenses. As per the judgment of the Hon’ble Supreme Court in Sarla Verma v. Delhi Transport Corporation2. Applicable multiplier is 17. Considering the same, his annual income works out to Rs.14,500/- + Rs.5,800/- (40% of Rs.14,500/-) Rs.20,300/- x 2/3 = Rs.13,533/- x 12 x 17 = Rs.27,60,732/-. 17. As per the judgment of the Hon’ble Supreme Court in Pranay Sethi’s case and Magma General Insurance Company Ltd., v. Nanu Ram3, the claimants are entitled to compensation of Rs.40,000/- each on the head of consortium with escalation at 10%. Claimant No.3 being the sibling is not entitled to consortium. 18. As per the judgment of the Hon’ble Supreme Court in Pranay Sethi’s case and Magma General Insurance Company’s case, the claimants are entitled to compensation of Rs.15,000/- + Rs.15,000/- on the heads of loss of estate and
Decision
ORDER The appeal is partly allowed. The impugned award of the Tribunal is set aside. The petition in M.V.C.No.269/2021 is partly allowed. Claimants are entitled to compensation of Rs.28,84,732/- with interest at 6% per annum from the date of the petition till its realization. - 11 - NC: 2025:KHC:16004-DB MFA No.3691/2023 Respondent No.2 shall deposit the aforesaid compensation amount before the Tribunal within four weeks from the date of receipt of copy of this order. Claimant Nos.1 to 3 are entitled to compensation in the ratio of 50%, 40% and 10% of the compensation amount. On deposit of the amount, the Tribunal shall digitally release 50% of their shares to claimant Nos.1 and 2 on furnishing required documents and invest balance amount in fixed deposit in any Nationalized/Scheduled Bank of their choice, for a period of 5 years. The Tribunal shall digitally release the share of claimant No.3 on furnishing the required documents. Transmit the trial Court records to the Tribunal forthwith. I.A.No.1/2024 stood disposed of. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (M.G.S.KAMAL) JUDGE KSR List No.: 1 Sl No.: 41