The High Court
Case Details
- 1 - NC: 2025:KHC:12871 MFA No. 724 of 2013 C/W MFA No. 4973 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 724 OF 2013 (MV) C/W MISCELLANEOUS FIRST APPEAL NO. 4973 OF 2013 (MV-I) IN MFA No. 724/2013 BETWEEN: M/S. NATIONAL INSURANCE COMPANY LIMITED, 2ND FLOOR, BHARATH BUILDING, P.M. RAO ROAD, MANGALORE TALUK NOW REPRESENTED BY ITS REGIONAL OFFICE, NO.144, SHUBHARAM COMPLEX, M.G. ROAD, BANGALORE - 560 001, REPRESENTED BY ITS ADMINISTRATIVE OFFICER. (BY SRI. LAXMINARASAPPA, ADVOCATE FOR SRI. A.M. VENKATESH, ADVOCATE) …APPELLANT AND: 1. MR. SUMITH, Digitally signed by MEGHA MOHAN Location: High Court Of Karnatka AGED ABOUT 26 YEARS, S/O CHANDRAHASA SHETTY R/AT MIG-19, K.H.B. COLONY, KAVOOR POST, BONDEL, MANGALORE TALUK - 575 001. 2. MR. PRAVEEN AGED ABOUT 33 YEARS, S/O SHEKAR, RA/T D.NO.2-15, PADAVU, KOCHADY POST, MANGALORE TALUK - 575 001. (BY SRI. B.R. GURUPRASAD, ADVOCATE FOR R1; R2 - SERVICE OF NOTICE IS DISPENSED WITH VIDE COURT ORDER DATED 14.08.2015) …RESPONDENTS - 2 - NC: 2025:KHC:12871 MFA No. 724 of 2013 C/W MFA No. 4973 of 2013 THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.8.2012 PASSED IN MVC NO.327/2006 ON THE FILE OF MEMBER, MACT-III AND II ADDITIONAL DISTRICT JUDGE, D.K, MANGALORE, AWARDING A COMPENSATION OF RS.3,88,500/-WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT. IN MFA NO. 4973/2013 BETWEEN: MR SUMITH S/O CHANDRAHASA SHETTY, AGED ABOUT 26 YEARS, R/AT MIG-19, KHB COLONY, KAVOOR POST, BONDEL, MANGALORE TALUK - 575 015,
Legal Reasoning
(BY SRI. B.R. GURUPRASAD, ADVOCATE) AND: 1. MR, PRAVEEN S/O SHEKAR, AGE 32 YEARS, R/AT DOOR NO.2-15, PADAVU, KONCHADY POST, MANGALORE TALUK, D.K. - 575 008. ...APPELLANT 2. THE NATIONAL INSURANCE CO. LTD., 2ND FLOOR, BHARATH BUILDING, P.M. RAO ROAD, MANGALORE TALUK NOW REPRESENTED BY ITS REGIONAL OFFICE, NO.144, SHUBHARAM COMPLEX, M.G. ROAD, BANGALORE - 560 001, REPRESENTED BY ITS ADMINISTRATIVE OFFICER. ...RESPONDENTS (BY SRI. LAXMINARASAPPA, ADVOCATE FOR SRI. A.M. VENKATESH, ADVOCATE FOR R2; R1 - SERVICE OF NOTICE IS DISPENSED WITH VIDE COURT ORDER DATED 14.08.2015 ) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.8.2012 PASSED IN MVC NO.327/2006 ON THE FILE OF THE MEMBER, MACT-III & II ADDL. DISTRICT JUDGE, D.K. MANGALORE PARTLY ALLOWING - 3 - NC: 2025:KHC:12871 MFA No. 724 of 2013 C/W MFA No. 4973 of 2013 THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL JUDGMENT Aggrieved by the award passed in M.V.C.No.327/2006 dated 31.08.2012 by the Member, MACT-III & II Addl. District Judge, D.K., Mangalore, both the claimant as well as the Insurance Company are before this Court. The Insurance Company's appeal is M.F.A.No.724/2013 and the claimant's appeal is M.F.A.No.4973/2013. 2. It is the case of the claimant that on 01.01.2006 at about 2.00 a.m., when the deceased Suraj was proceeding as pillion rider from Padavinangady to Bondel side in a motor cycle and when the said motor cycle was driven by respondent No.1 in a rash and negligent manner and when the motor cycle reached the place called Ishwarkatte Bondel, respondent No.1 drove the same in zigzag manner and as a result of which, he lost control and fell into the ditch and due to the impact, the deceased sustained injuries and fell unconscious and he was taken to the hospital, wherein he declared as dead. The - 4 - NC: 2025:KHC:12871 MFA No. 724 of 2013 C/W MFA No. 4973 of 2013 claimant is the brother of the deceased. Respondent No.2 - Insurance Company has filed their objections. It is stated that the rider Praveen and the pillion rider deceased-Suraj have consumed alcohol in a new year party at midnight and thereafter both of them have driven the said motor cycle in zigzag manner in a drunken state and due to which, they have caused the accident and the pillion rider Suraj died in the accident. Hence, respondent No.2 is not liable to pay the compensation as the accident had occured because of the negligence on the part of the deceased. They have denied that the claimant is legal heir of the deceased and it is also further their case that the insurance policy in respect of motor cycle bearing Reg. No.KA.19/S.7088 do not cover the risk of the pillion rider in the motor cycle since no additional premium is collected. Hence, respondent No.2 is not liable to pay the compensation. Before the Tribunal, the claimant had examined himself as PW.1 and also examined PWs.2 to 3. On behalf of the respondents, RWs.1 and 2 were examined and Exs.P1 to 16 were marked on behalf of the claimant and on behalf of the respondents, Exs.R1 to R8 were marked. Ex.R6 is the FIR which is relied on by the Insurance Company. According to them, - 5 - NC: 2025:KHC:12871 MFA No. 724 of 2013 C/W MFA No. 4973 of 2013 there are two FIRs. Then they have relied on the deposition in C.C.No.2344/2006. According to them, the complainant had given a contradictory version in C.C.No.2344/2006. The Tribunal has held that the accident had taken place because of the rash and negligent driving of the rider of the motor cycle and held that the Insurance Company is liable to pay the compensation. While considering the contention of the Insurance Company with regard to two FIRs and the deceased is not a pillion rider but he is a rider of the vehicle, the Tribunal had given a finding that in the written statement, they have already taken a stand that the accident took place as the rider and the pillion rider have consumed alcohol and contributed to the accident. When it comes to the deposition, the Tribunal gave a finding that the deposition of a witness in a criminal case cannot be looked into by the Tribunal. Further, a party cannot be permitted to adduce evidence in respect of the contention which they have not taken and in respect of which they have not given any evidence in their examination-in-chief. Simply producing documents without taking any contention or not stating in examination-in-chief will not help the respondents in any way. Further, the Tribunal also gave a finding that as far - 6 - NC: 2025:KHC:12871 MFA No. 724 of 2013 C/W MFA No. 4973 of 2013 as FIR which is relied on by the Insurance Company is concerned, it is observed that the petitioner has produced Ex.P1 which is the Xerox true copy of the FIR signed and dated and it is Xerox certified copy of the original FIR. Ex.R6 is not at all dated as true copies though it is stated to have been signed and sealed by SHO, Kavoor Police Station. The document itself contains contradictions and inconsistencies. Because in Column No.7 which shows that the details of the known, suspected and unknown accused with full particulars. Rider of the KA.19/S.7008 motor cycle rider Suraj, but it shows in column No.12 that said Suraj was riding the motor cycle bearing Reg.No.KA.19/R.4754. Hence, the Tribunal had disbelieved the said evidence and had not considered Ex.R1. Then coming to the evidence, it is observed by the Tribunal that in the subsequent cross-examination of the prosecution, it is evident at paragraph No.3, the complainant had admitted that himself, Harsha and Praveen took Suraj and all admitted the deceased to hospital and he also came to know that the deceased succumbed to the injuries at hospital. But it has stated that he cannot say whether the accident occurred due to the negligence of the accused. Even he has admitted his signature on Ex.P2- - 7 - NC: 2025:KHC:12871 MFA No. 724 of 2013 C/W MFA No. 4973 of 2013 mahazer. The witness has admitted before the Court regarding taking the deceased and his signature on Ex.P2. The Tribunal observes that he is educated person and before the Criminal Court, he has not supported the prosecution. But it is evident before the Court that the complaint bears the signature, he himself had taken the deceased to the hospital along with other, so unless he was present at the spot of the accident, he cannot take the deceased to the hospital. The Tribunal observes that simply because that witness has not supported the prosecution regarding giving evidence against the accused in criminal case that does not mean that his evidence before the Tribunal cannot be believed and accordingly not considered the said contention of the Insurance Company and held that it is a petition filed under Section 163-A of the Motor Vehicles Act, 1988, as the said vehicle is insured, the Insurance Company is liable to pay the compensation. When it comes to the compensation, it is the case of the claimant that he was earning an amount of Rs.3,250/- by working as 'conductor' in a private bus. The Tribunal had taken income at Rs.3,000/- and granted compensation of an amount of Rs.3,88,500/-. Towards 'loss of dependency', 'loss of 'estate' and 'funeral, rituals and - 8 - NC: 2025:KHC:12871 MFA No. 724 of 2013 C/W MFA No. 4973 of 2013 conveyance' an amount of Rs.3,84,000/-, Rs.2,500/- and Rs.2,500/- respectively granted. Altogether, an amount of Rs.3,88,500/- was granted by the Tribunal. 3. Learned counsel appearing for the Insurance Company submits a fraud is played by the claimant on the Court. It is submitted that Ex.R1 placed before the Tribunal clearly reveals that there are two vehicles and he is a pillion rider. Involvement of the vehicle itself in the accident is doubtful. It is submitted that the Tribunal had failed to consider Ex.R1. It is submitted that no MLC extract register is placed before the Tribunal and no I.M.V. report is also placed. They have failed to prove the accident and also the deposition of the complainant before the criminal court clearly shows that he has not cooperated with the prosecution and he had denied the several contentions including his presence. It is submitted that in view of the same, the accident itself is not proved and the involvement of the vehicle insured itself is disputed and the claimant is not entitled for any compensation. 4. Learned counsel appearing for the respondent - claimant submits that the Tribunal had rightly discarded the - 9 - NC: 2025:KHC:12871 MFA No. 724 of 2013 C/W MFA No. 4973 of 2013 evidence and had rightly not considered the evidence in the criminal case given by the complainant and also the Tribunal had rightly disbelieved the case of the Insurance Company as they themselves have admitted the accident and now it is not permissible to them to take a contra view. When it comes to the compensation, he submits that when the deceased was earning an amount of Rs.3,250/- and this accident is of the year 2006, the Tribunal had taken at Rs.3,000/-, which is not correct and on that count, the compensation needs to be enhanced. 5. Having heard the learned counsels on either side, perused the material on record. First coming to the aspect of liability. The Insurance Company states that the vehicle is not involved in the accident. A fraud is played on the Court and in Ex.R1, numbers of two vehicles were given and I.M.V. report and MLC extract are not placed before the Court. All these things creates any amount of doubt on the accident that had taken place and these aspects were not considered. The respondent/Insurance Company had filed its written statement before the Court. They have categorically admitted the accident but it is their case that both the rider and the pillion rider have - 10 - NC: 2025:KHC:12871 MFA No. 724 of 2013 C/W MFA No. 4973 of 2013 consumed alcohol and they have contributed to the accident. Further, they are not having a valid driving license. By filing such written statement, they themselves are admitting the accident and once that is their pleading, the parties cannot be permitted to adduce evidence contrary to the pleadings and it cannot be considered by the Court. Even they have not filed any additional written statement taking such a plea. The Tribunal on this aspect had rightly dealt with and rightly not considered their evidence and on Ex.R1, as observed by this Court in the preceding paragraphs, the observation of the Tribunal on Ex.R1 and the evidence of the complainant in the criminal case also, the Court had considered and rightly held that there cannot be a basis to disentitle the claimant. In the considered opinion of this Court all the findings of the Tribunal on the aspect of Ex.R1 and the evidence in the criminal case do not call for any interference from this Court and this Court is of the view that there are no grounds made in the appeal filed by the Insurance Company and accordingly, the appeal of the Insurance Company is liable to be dismissed. 6. Then coming to the enhancement of the compensation, as this is the accident of the year 2006 and the - 11 - NC: 2025:KHC:12871 MFA No. 724 of 2013 C/W MFA No. 4973 of 2013 deceased was earning an amount of Rs.3,250/-, the Tribunal ought to have taken the income at Rs.3,250/- instead of that, the Tribunal had taken at Rs.3,000/-. This Court is inclined to take Rs.3,250/- as income. 1/3rd towards personal expenses comes to Rs.1,083/- and the contribution towards the family is Rs.2,167/-. By applying multiplier '17', the 'loss of dependency' would be Rs.4,42,068/- (Rs.2,167 x 12 x 17). Accordingly, a sum of Rs.4,42,068/- is granted under the head 'loss of dependency'. Further, towards 'loss of estate' and 'funeral, rituals and conveyance', the compensation of an amount of Rs.2,500/- and Rs.2,000/- respectively granted under the said heads by the Tribunal is reasonable and no interference is called for from this Court. 7. In the light of the law laid down by the Hon'ble Supreme Court in the case of V.Mekala vs. M. Malathi and Another1, the claimant is entitled for an amount of Rs.10,000/- towards legal expenses. 1 (2014) 11 SCC 178 - 12 - NC: 2025:KHC:12871 MFA No. 724 of 2013 C/W MFA No. 4973 of 2013 8. The claimant is therefore, entitled to the compensation under the following heads: Heads Compensation Awarded by Tribunal Compensation Awarded by this Court 1. Loss of dependency : Rs. 3,84,000.00 4,42,068.00 2. Loss of estate : Rs. 2,500.00 2,500.00 3. Funeral, rituals and conveyance : Rs. 2,000.00 2,000.00 4. Legal Expenses : Rs. -- 10,000.00 TOTAL : Rs. 3,88,500.00 4,56,568.00 Enhancement : Rs. 68,000.00 9. Altogether, the claimant is entitled for compensation of an amount of Rs.4,56,500/-. 10. Accordingly, the appeal of the claimant is partly allowed enhancing the compensation from an amount of Rs.3,88,500/- to Rs.4,56,500/-. Consequently, the appeal of the Insurance Company is dismissed. i) The enhanced amount shall carry interest at 6% per annum from the date of petition till the date of realization. - 13 - NC: 2025:KHC:12871 MFA No. 724 of 2013 C/W MFA No. 4973 of 2013 ii) The respondent-Insurance Company shall deposit the amount within a period of eight weeks from the date of receipt of copy of the judgment. On such deposit, the claimant is entitled to withdraw the entire amount without furnishing any security. iii) The amount in deposit, if any, shall be forthwith transferred to the Tribunal. iv) Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay. v) No costs. vi) Pending miscellaneous petitions, if any, shall stand closed. Sd/- (LALITHA KANNEGANTI) JUDGE KA List No.: 1 Sl No.: 14 CT: BHK