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Judgment
A.S. Pachhapure, J.—While the insurer has challenged the liability and the quantum of compensation in two appeals, the claimants have filed the other two appeals, seeking enhancement on the ground that the sum awarded by the Tribunal for the death of Channappa and Nagesh in the motor vehicle accident, is meagre.
The facts reveal that Channappa and Nagesh were proceeding on the motorcycle bearing reg. No. KA 32/X-4813 and while they were near G.K. Cross on Sedam-Kodangal Road, they met with their friends and while they were proceeding by walk by stopping their motorcycle on the left side of the road, the cruiser jeep bearing reg. No. KA-32/A-8141 said to have been driven in rash and negligent manner hit them and thereby both Channappa and Nagesh sustained severe injuries and during the treatment they died.
The dependents of the Channappa [deceased] filed claim petition in MVC No. 237/2013 seeking to pay the compensation, whereas the dependents of Nagesh [deceased] filed claim petition in MVC No. 526/2013. Both these cases were clubbed and common evidence was permitted.
The insurer had taken the defence that the driver had no license and further that there was no accident by the involvement of the cruiser jeep in question. It was also contended that the quantum of compensation granted is on the higher side.
On behalf of the claimants, P.W. 1 in each of the claim petitions was examined and in their evidence, Exs. P1 to 7 in one claim petition and Exs. P1 to 6 in other case were marked. On behalf of the insurer, R.W. 1 was examined and Exs. R1 and 2 were marked.
The Tribunal after hearing the parties and on appreciation of the evidence on record held that the accident was due to the involvement of the cruiser jeep in question was proved. It also held that the insurer is liable to pay the compensation and granted a sum of Rs. 4,38,000-00 in MVC No. 237/2013 and Rs. 6,52,000-00 in MVC No. 526/2013. Aggrieved by the Judgment and Award, the insurer has filed MFA No. 201215/14 and 201214/14. The dependants have filed the other two appeals.
I have heard learned counsel for the parties.
The points that arise for my consideration are;
"1) Whether the claimants have proved that the occurrence of the accident was due to the rash and negligent driving of the cruiser jeep bearing reg. No. KA-32/A-8141?
2) Whether the insurer is liable to pay the compensation awarded?
3) Whether the amount of compensation awarded needs any variation?"
Learned counsel for the insurer submits that the driver had no license to drive and thereby there is breach of the conditions of the policy. It is also her contention that the jeep in question was not at all involved in the accident and that there was no damage to the jeep. She submits that subsequently the vehicle was falsely involved to get the compensation in the accident. It is also her submission that a notice was issued to the owner of the cruiser jeep, calling upon him to produce the license. Despite the notice, no license is produced. Furthermore, it is her contention that the compensation is on the higher side and needs reduction.
On the other hand, learned counsel for the claimants supporting the Judgment and Award of the Tribunal submits that the compensation awarded is on the lower side for the reason that the income assessed is meagre and reasonable compensation is not granted on the other heads.
To prove the occurrence of the accident, the claimants have produced the documents Ex. P1-FIR, Ex. P2-copy of the complaint, Ex. P3-charge sheet, Ex. P4 is the inquest mahazar, Ex. P5-post mortem report, whereas Ex. P6 is the motor vehicle inspection report.
The perusal of the copy of the complaint produced at Ex. P2 reveals that on 13.12.2012 at 11.30 p.m., Nagesh did not return to the house and on enquiry reveal that he has sustained severe injuries in the accident and further that he succumbed to the injuries mentioning the cruiser jeep bearing reg. No. KA-32/A-8141 and the motorcycle bearing reg. No. KA-32/X-4813 vehicles involved in the accident. A complaint was filed by Sayappa, the father of Nagesh [deceased]. The complaint was lodged at 2.45 p.m. on 14.12.2012 i.e., within few hours of the accident. A crime was registered in Crime No. 242/2012. On the basis of the complaint Ex. P2, investigation was held and charge-sheet was laid against the driver for the offence punishable under Sections 279 , 337 , 338 and 304-A IPC. The vehicle was seized and the motor vehicle inspection report was produced at Ex. P6.
It is true that there were no damages to the cruiser jeep and the damages were visible on the other vehicle. It is relevant to note that immediately, within few hours of the accident, a complaint was filed and the complaint reveals that both the vehicles number. The vehicles were seized on the next day under spot-mahazar and both the vehicles were examined by the motor vehicle inspector as to the manner of the accident. Though there is no such evidence, it is not necessary in a motor vehicle accident that there should be a damage to both the vehicles. Anyhow, the other motorcycle which was also examined by the motor vehicle inspector reveals that there were damages to the crush guard and also the brake pedal pressed inwards. The cruiser jeep was at the place of the accident and it was seized under the spot-mahazar. So, these are all the circumstances placed on record to prove the occurrence of the accident. In fact, the accident is on the edge of the road. As alleged in the complaint, both the deceased persons were standing by the side of the road and the cruiser jeep hit them. This much of evidence which is made available on record in my opinion is sufficient to prove the accident. It cannot be said by any stretch of imagination that the cruiser jeep was falsely implicated within few hours of occurrence of the accident.
That apart, the proceedings of the motor accident is summary in nature. It is not necessary to prove the case beyond reasonable doubt. If the insurer is not satisfied with the decision or any other proceedings, it is at liberty to approach the civil court challenging the Award, seeking a declaration of its validity. Therefore, in my opinion, in the absence of any considerable evidence by the insurer, I do not think that the evidence placed on record should be rejected. That apart, the insurer could be questioned the investigating officer about the accident in question. When in a summery proceedings, the production of the document is sufficient to prove the accident, the strict principles of the Evidence Act cannot be made applicable. Therefore, I am of the opinion that the contention of the insurer cannot be accepted to prove that there was no accident to prove the rash and negligence in the accident.
So far as the license is concerned, it is relevant that the insurer has issued a notice to the owner of the vehicle/driver prior to the claim petitions. This notice has been served upon the owner. The copy of the notice has been produced at Ex. R1, Ex. R1(a) is the postal receipt, Ex. R1(b) is the postal acknowledgement and Ex. R2 is the policy copy.
The owner of the vehicle is not before the Court and he was placed ex-parte. On the basis of this material on record it was contended by the insurer that it is the owner, who has to place on record the license as contemplated under Section 5 of the Motor Vehicles Act. It was the contention that there was no compliance of the aforesaid Section 5 .
It is relevant to note that there are two aspects so far as the proof of not holding a license and secondly the breach of the conditions of the policy. It is true that the insurer cannot place on record the positive evidence to prove that the driver had no license to drive the vehicle. But, at the same time, it cannot be forgotten that the insurer equally liable to seek exemption from the liability for breach of the policy conditions. This burden on the insurer has to be discharged by placing some material on record. To this extent, except notice-Ex. R1, which has been served upon the owner, no material is placed on record. It is relevant to note that the provisions of CPC deal with production of the document/s from the persons who are in the custody of the said document/s. Admittedly, the owner is bound to produce the copies in case if he is called upon to do so. If the insurer had moved the application under Order 16 of CPC calling upon the owner to produce the same and he does not appear before the Court, the Tribunal is at liberty to even issue bailable warrant as against the owner calling upon him to produce the license. Steps, which are necessary to be taken, are not taken up by the insurer by making necessary application/s before the Tribunal. This could be sufficient if steps are not taken and the owner/driver does not produce the license, an adverse inference can be drawn against the person to hold that he had no license. Though positive evidence cannot be placed on record to prove breach of the policy conditions, some steps could have been taken up by the insurer to prove the breach. In the absence of which, I do not think that the insurer can be exempted from the liability.
Reliance was placed on the decision reported in Yashodhara B. Shetty Vs. United India Insurance Co. Ltd. and Others, , wherein this Court held that the initial burden of establishing that he had done everything within his power by engaging a licenced driver by name Shankar Poojary and placed the vehicle in question in his charge on 25.04.1998 and that he had no knowledge of one Shankar Kullal the cleaner having taken over the driving of the bus. This Court has placed reliance on the decision of the Apex Court reported in United India Insurance Co. Ltd. Vs. Gian Chand and others, . The perusal of the decisions of the Apex Court in the aforesaid Judgment would clearly reveal that the owner-cum-driver had admitted that they had no license to the person, who drove the vehicle on the date of the accident. This is on the basis of the facts and other circumstances, the Apex Court held that the existence of the license has not been proved. This principle is not applicable to the facts on hand for the reason that there is no admission either by the driver or the owner about not holding the license at the time of the accident.
That apart, though the charge-sheet is filed against the driver, there is no allegation for contravention of Sections 3 , 4 and 5 of the Motor Vehicles Act. There is no charge against the driver for not holding the license. In the aforesaid facts and circumstances, I am of the opinion that the Tribunal was justified in imposing the liability on the insurer.
MFA Nos. 201145 and 201214/2014 [in MVC No. 237/13]: The appellants are the legal representatives of Channappa [deceased], who died in the accident. The Tribunal had wrongly applied the multiplier depending the age of the deceased. In a claim petition in respect of the legal representatives it is the age of the youngest of the appellants which has to be considered. The 1st appellant is 45 years. The multiplier 15 is applicable. The Tribunal assessed the income at Rs. 4,000-00 p.m. The accident is of the year 2012. Even in the Lok Adalath, in respect of the accident of the year 2012, generally a sum of Rs. 6,500-00 is considered as income. Half is to be deducted towards personal expenses of the deceased for the reason that the claimants are the parents, younger brother and sister of the deceased. Deducting 50% contribution and applying the multiplier 14, the loss of dependency would be;
Rs. 3,250 x 12 x 14 = Rs. 5,46,000-00
Deducting a sum of Rs. 4,08,000-00 awarded by the Tribunal, the appellants are entitled to a sum of Rs. 1,38,000-00 as compensation towards loss of dependency. So far as the loss of love and affection, only a sum of Rs. 10,000-00 is granted. There are as many as 5 claimants, who are the parents, brothers and sister of the deceased. The parents are to be paid Rs. 15,000-00 each, whereas brothers and sister are to be paid Rs. 10,000-00 each. Then the total compensation is Rs. 60,000-00. Deducting Rs. 10,000-00 awarded, the appellants are entitled to a sum of Rs. 50,000-00 towards loss of love and affection. Reasonable compensation is awarded towards loss to estate and funeral expenses. Thereby, the compensation payable would be Rs. 1,88,000-00 with interest at 9% p.a. in addition to the compensation awarded by the Tribunal.
MFA Nos. 201149 and 201215/2014 [in MVC No. 526/13]: Nagesh [deceased] was the husband of the 1st appellant and father of appellants 2 and 3 and son of appellant Nos. 4 and 5. There are as many as 5 appellants. The income of the deceased was taken at Rs. 4,000-00 p.m. As stated above the income of the deceased has to be assessed at Rs. 6,500-00 p.m. Deducting 1/4th towards personal expenses of the deceased as there are more than 4 dependants, the contribution would be Rs. 4,875-00. The multiplier applicable would be 17 as Nagesh was aged 26 years at the time of his death. Thereby, the net compensation towards loss of dependency would be;
Rs. 4,875 x 12 x 17 = Rs. 9,94,500-00
Deducting a sum of Rs. 6,52,000-00, the appellants are entitled to a sum of Rs. 3,42,500-00 towards loss of dependency.
Towards loss of consortium, only a sum of Rs. 10,000-00 is granted. The wife of the deceased was 23 years at the time of the accident. She has 2 children. There is no possibility of her re-marriage. Therefore, an additional amount of Rs. 65,000-00 would be appropriate towards loss of consortium. Towards loss of love and affection Rs. 10,000-00 is granted. There are as many as 4 claimants, who are entitled to claim loss of love and affection. Rs. 60,000-00 would be appropriate on this head at Rs. 15,000-00 each. Deducting Rs. 10,000-00 awarded, they are entitled to a sum of Rs. 50,000-00 towards love and affection. The compensation on the other heads are just and proper. Thereby, the claimants are entitled to a sum of Rs. 4,57,500-00.
In the circumstances, point Nos. 1 and 2 are answered in affirmative and point No. 3 is answered as per the order.
Consequently, MFA Nos. 201215 and 201214/14 are dismissed and MFA Nos. 201145 and 201149/14 are allowed in part.
In MFA No. 201145/2014 the appellants are entitled to a sum of Rs. 1,88,000-00 with interest at 9% p.a. from the date of the petition till its payment in addition to the compensation awarded by the Tribunal.
In MFA No. 201149/2014 the appellants are entitled to a sum of Rs. 4,57,500-00 with interest at 9% p.a. from the date of the petition till its payment in addition to the compensation awarded by the Tribunal.
So far as distribution of the shares, the formula adopted by the Tribunal is to be followed. So far as the shares of the widows in respective cases are concerned, their respective shares shall be deposited in a fixed deposit in any Nationalized Bank for a period of 5 years and the shares of the minors shall be deposited in any of the Nationalized Bank till they attains the age of majority. The brothers and sister of the deceased are entitled to withdraw their shares. The amount in deposit shall be transmitted to the Tribunal.