Bajaj Allainz General Insurance vs B Krishnappa Setty

This appeal is directed against the judgment and award dated 09.12.2009 rendered by the MACT, Mangalore, D.K., in MVC No.658/2008

awarding compensation of Rs.2,58,000/- with interest @ 6% p.a. from the date of petition till realisation.

The factual matrix of the appeal is that on 24.4.2007 at about 5.30 p.m., one Avinash Shetty, son of the claimants was proceeding in a motor cycle

bearing Regn.No.KA-19 V-7113 as a pillion rider and it was ridden by his friend Kishore Kumar who was respondent no.1 in the claim petition. When

they reached a place called Mishamajalu in Jalsur Village, at that time, the rider of the motor cycle drove the same in rash and negligent manner, as a

result, he lost control over the vehicle and it was capsized. Due to the said impact, the said Avinash Shetty sustained injuries. Immediately, he was

taken to Rajeshwari Hospital at Mangalore and took treatment as inpatient and later on died in the hospital same day due to the injuries sustained by

him in the accident and the dead body was taken to Government Wenlock Hospital for postmortem. As on the date of accident, the deceased was

aged 22 years and was working as Recovery Agent and earning about Rs.8,000/- p.m. Due to the untimely death of the deceased, the petitioners

suffered loss in all respects. They have spent huge amount towards hospitalization, transportation, funeral and obsequies ceremony. Since the accident

occurred due to the negligent riding of the motor cycle by its rider, the claimants filed the claim petition before the Tribunal seeking compensation.

After service of notice, first respondent remained absent throughout the proceedings and he was placed exparte. Second and third respondents

entered appearance through their counsel and filed separate written statement denying the entire petition averments and sought for dismissal of the

claim petition.

Based upon the pleadings of the parties, the Tribunal framed the issues for its consideration. In order to prove their case, first petitioner was

examined as PW.1 and documents as per Exs.P1 to P30 were got marked. On behalf of respondents, RWs.1 to RW.3 were examined and Exs.R1

and R2 were got marked. After hearing the arguments of learned counsel for the parties and on evaluation of oral and documentary evidence

available on record, the Tribunal passed the impugned judgment, awarding compensation of Rs.2,58,000/- with interest @ 6% p.a. from the date of

petition till the date of realisation. It is this judgment which is under challenge in this appeal by the insurance company.

Learned counsel for the appellant/insurance company contends that deceased Arvind Shetty was not the pillion rider of the motorcycle bearing

regn.No.KA-19 V-7113 but the said motorcycle was driven by himself and not by Kishore Kumar and that the claimants have filed the false claim

petition stating that deceased Arvind Shetty was the pillion rider. The said defense taken by the insurance company has not been considered by the

Tribunal. Further, it is contended that claimants in order to prove their claim have relied on the FIR. In the FIR it is stated that in the accident the rider

of the Motorcycle is Arvind Shetty â€" the deceased. But the Tribunal committed an error in holding that the names of the rider and the pillion rider

have been reversed in the FIR. Further, the FIR was recorded on 24.4.2007 and the complainant is one Vasappa and it clearly states the name of the

accused as the rider of the motorcycle Avinash Shetty and in the complaint it is stated that the rider Arvind Shetty has driven the vehicle in a rash and

negligent manner. Hence, the finding of the Tribunal that Kishore Kumar was riding the motor cycle is unsustainable as against the documentary

evidence placed on record.

It is further contended that the complainant has not been examined to clarify the discrepancies. The hospital records of Kishore Kumar shows

history of road traffic accident and it does not indicate that Kishore Kumar was riding the vehicle and his evidence that he was riding the vehicle is

contrary to the statement in the FIR. Though the FIR has been recorded by the police and proceeded with the case for investigation, but the charge

sheet was laid against the rider of the motor cycle namely Kishore Kumar and the same has not been produced by the petitioners in order to establish

their case. The claim petition is filed based on the concocted documents with an intention of obtaining false and unjustifiable award. Further, the

Tribunal has not assigned any valid or cogent reasons to discard the evidence of the respondents in particular the evidence of investigator. Further, the

multiplier of 10 adopted by the Tribunal is erroneous and the same should have been 7. On all these grounds, he seeks for setting aside the judgment

and award passed by the Tribunal by allowing the present appeal.

Per contra, learned counsel for respondent â€" claimants while taking me through the evidence of PW.1 contends that the Tribunal has rightly held

that in the accident the rider of the motor cycle has sustained hand injury and the pillion rider sustained injuries to his head. The Tribunal on

appreciation of both oral and documentary evidence available on record has rightly held that the accident occurred only due to the rash and negligent

riding of the motor cycle bearing No.KA-19/V 7113 and the son of petitioners by name Aravind Setty died on account of the accidental injuries

sustained in the road traffic accident.

He further contends that the Tribunal while awarding compensation under the head loss of dependency, has wrongly adopted multiplier of

‘10’ instead of ‘18’ by taking the age of the parents as the deceased was a Bachelor. In support of this contention, he has relied on a

judgment of the Apex Court in P.S.Somanathan and others vs. District Insurance Officers and another reported in 2011 SAR (Civil) 286 andR avinder

Kumar Sharma vs. State of Assam reported in AIR 1999 SC 3571. On all these grounds he seeks for enhancement of compensation by modifying the

judgment and award passed by the Tribunal.

Having regard to these strenuous contentions as taken by learned counsel for the appellant and so also, learned counsel for respondents, it is

relevant to state that PW.1 â€" Krishnappa Shetty being the father of deceased has stated in his evidence about the accident that occurred on

24.4.2007 and his son Aravind Shetty succumbed to the accidental injuries. In support of their contention, the claimants relied upon documents such as

Ex.P1 â€" FIR, Ex.P2 â€" spot mahazar, Ex.P3 â€" rough sketch, Ex.P4 â€" IMV report, Ex.P5 â€" post-mortem report, Ex.P6 â€" claim notice,

Ex.P7 â€" I.D.Card, Ex.P8-driving license, Ex.P25â€" discharge summary. On perusal of Ex.P1 â€" FIR, it could be seen that the police have

registered case against the rider of the motor cycle bearing No.KA-19- V-7113 for the offence punishable under Sections 279 and 338 of IPC. In FIR

it is mentioned that in the accident the rider of the motor cycle has sustained hand injury and the pillion rider sustained injuries to his head. Ex.P5 â€

P.M. report discloses that deceased Aravind Shetty sustained head injuries and died due to the accidental injuries sustained in the road traffic

accident. It is the contention of the appellant â€" insurance company that a false case has been filed by the claimants stating that the vehicle was

driven by Kishore Kumar and the deceased Arvind Shetty was a pillion rider. It is further contended that in the FIR the complainant is one Vasappa

S/o Subbaiah Gowda and it clearly states the name of the accused as the rider of the motorcycle Avinash Shetty and in the complaint it is stated that

the rider Arvind Shetty has driven the vehicle in a rash and negligent manner. But it is relevant to note here that in Ex.P2 â€" spot mahazar and

Ex.P3-rough sketch are drawn on the scene of occurrence by the investigating officer. Ex.P6 â€" claim notice contains the particulars relating to the

vehicle involved in the accident, its ownership, insurer and the name of the injured persons and it clearly discloses that the concerned investigating

officer after investigation has filed a charge sheet against the first respondent â€" Kishore Kumar who was riding the motor cycle as on the date of

accident. Ex.P25 â€" discharge summary clearly discloses that deceased Aravind Shetty sustained injuries to his head and later on he died on the

same day in the Hospital. The contention of the petitioners is clearly supported by these documentary evidence available on record. Even the

insurance company has examined the said Kishore Kumar as RW.2 and in his evidence the said Kishore Kumar has stated that on the date of

accident, he was riding the motor cycle bearing No.KA-19/V 7113 and the police after thorough investigation have filed the charge sheet against him.

The Tribunal, on appreciation of these oral and documentary evidence has rightly held that first respondent â€" Kishore Kumar was riding the

offending motor cycle as on the date of accident and the deceased Aravind Shetty was proceeding in that motor cycle as a pillion rider and there is no

material on record to disbelieve the evidence of RW.2 and PW.1. The accident occurred solely due to the actionable negligence on the part of the

rider of the motor cycle bearing No.KA-19/V-7113 due to which the son of claimants namely Aravind Shetty succumbed to the injuries. This finding

of the Tribunal is based on the appreciation of entire oral and documentary evidence on record and I find no justifiable reason to interfere with the

same, as there is no substance in the contentions taken by learned counsel for the appellant â€" insurance company.

Learned counsel for the respondent/claimants in this appeal though he has not filed any cross-objections, seeks for enhancement of compensation

contending that the Tribunal has erred in adopting multiplier of ‘10’ instead of ‘18’ by taking the age of the parents, as the deceased was

a Bachelor. In support of his claim he has relied on a judgment of the Hon’ble Supreme Court reported in Ravinder Kumar Sharma vs. State of

Assam (AIR 1999 SC 3571) wherein it is held that respondent can question adverse finding without filing cross objection and filing of cross- objection

is optional and not mandatory.

In this background, it is relevant to refer Order VII Rule 7 of CPC which reads as under:

“Relief to be specifically stated â€" Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it

shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been

asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.â€​

The instant appeal is filed by the appellant/insurance company challenging the impugned judgment and award rendered by the Tribunal in MVC

No.658/2008 contending that the deceased who was the rider of the offending motor cycle is shown as pillion rider in the charge sheet so as to make

false claim. But the Tribunal by taking into the totality of the facts and circumstances of the case and so also the oral and documentary evidence on

record has addressed this issue by giving just and appropriate reasons and findings. The same reveals in the judgment rendered by the Tribunal. But

keeping in view the scope and object of Order VII Rule 7 of CPC as stated supra relating to moulding of relief, even though certain reliefs are not

asked for they can be granted by the Court under the above provision when the Court considers it just and proper to do so. Even Order 41 Rule 33 of

CPC contemplates the power of court of appeal. The appellate court may exercise its wide power in favour of all or any of the respondents or parties,

although such respondents or parties may not have filed any appeal or objection. The High Court in deciding an appeal under the Motor Vehicles Act

can follow the principles laid down in Order 41 Rule 33 of CPC as they are in conformity with the rules of natural justice. Further, the provisions of

CPC are also applicable in the proceedings under the Motor Vehicles Act. The object is to enable the Court to do complete justice between the

parties. The method adopted by the Tribunal for computation of compensation in fatal accident action cannot be said to be in accordance with the

settled principles governing the matter, the method adopted by the Tribunal for computation of compensation both for arriving at proper figure of

multiplicand as well as the multiplier. Since the Tribunal has not applied proper multiplier, the same needs to be considered in this appeal.

PW.1 in his evidence has stated that deceased was working as Recovery Agent and earning about Rs.8,000/- p.m. But there being no valid proof

of income, the Tribunal rightly assessed the income of the deceased at Rs.4,000/- p.m. and deducted 50% towards his personal expenses, but erred in

adopting multiplier of 10 by taking the age of the second petitioner. Since, the age of deceased Arvind Shetty was aged 22 years, the multiplier of

‘18’ has to be taken and accordingly, the compensation towards loss of dependency is re-worked out as under:

Rs.4,000 x 12 x 18 x 50% = Rs.4,32,000/-

Thus, the claimants are entitled for Rs.4,32,000/-as against Rs.2,40,000/- awarded by the Tribunal. The compensation enhanced under this head would

be Rs.1,92,000/-. However, the compensation awarded under other heads appears to be just and reasonable and the same does not call for

interference of this Court.

For the reasons and findings stated above, I proceed to pass the following:

ORDER

Appeal is disposed of. The respondents/claimants are entitled for enhanced compensation of Rs.1,92,000/-with interest @ 6% p.a. from the date

petition till realisation. The judgment and award passed by the Tribunal in MVC No.658/2008 is modified accordingly.

The appellant-insurer shall deposit the enhanced compensation with interest before the Tribunal within six weeks from the date of receipt of copy of

this judgment and on such deposit, the same shall be released to the claimants, on proper identification. However, the impugned judgment and award,

in so far as it relates to the apportionment and deposit is concerned, shall remain unaltered.

The amount in deposit, if any, shall be transmitted to the concerned Tribunal.

Office to draw the decree accordingly.