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2024. KHC-D:49 MFA No.25660 of 2011 R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE2D DAY OF JANUARY, 2024 BEFORE THE HON'BLE MR JUSTICE V.SRISHANANDA MISCELLANEOUS FIRST APPEAL NO.25660 OF2011MV-D) BETWEEN:
1. SHIVALEELA W/O. BASANAGOUDA PATIL, AGE:
37. YEARS, OCC: HOUSEHOLD WORK, R/O: KERUR, TALUK: BADAMI, NOW RESIDING AT VIDYAGIRI, BAGALKOT TQ: BAGALKOT, DIST: BAGALKOT.
2. APURVA W/O. BASANAGOUDA PATIL, AGE:
15. YEARS, MINOR REPRESENTED BY MGM, APPELLANT NO.1, 3. ANUSHA D/O. BASANAGOUDA PATIL, AGE:
11. YEARS, MINOR REPRESENTED BY MGM, APPELLANT NO.1, …APPELLANTS (BY SRI. P.N. HOSAMANE, ADVOCATE) AND:
1. SABANNA S/O. HANAMANTAPPA GABBUR AGE:
41. YEARS, OCC: DRIVER, R/O: NEAR BHARAT, MECHANICAL SHOP BAGALKOT.-. 2 - NC:
2024. KHC-D:49 MFA No.25660 of 2011 2. LAXMAPA S/O. SHANTAPPA MALLADAD, AGE:
49. YEARS, OCC: BUSINESS AND OWNER,OF TOMTOM BEARING REG NO.KA-26/1861, R/O: SHANTAGERI, TQ: RON, DIST: GADAG.
3. THE DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY, BELAGAVI. …RESPONDENTS (BY SRI. B.C. JNANAYYASWAMI, ADVOCATE FOR R1; SRI. S.S. JOSHI, ADVOCATE FOR R3; R2 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION1731) OF MV ACT, AGAINST THE JUDGMENT
AND AWARD DATED0403.2010 PASSED IN MVC.NO.395/2007 ON THE FILE OF THE MEMBER, MACT.NO.III, BAGALKOT, DISMISSING THE PETITION FILED UNDER SECTION166OF MV ACT. THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 3 - NC:
2024. KHC-D:49 MFA No.25660 of 2011 JUDGMENT
Heard learned counsel Sri.P.N.Hosamane and Sri. S.S.Joshi.
2. The present appeal is directed against the judgment and award passed in MVC No.395/2007 dated 04.03.2010 on the file of III Addl. MACT Bagalkot, whereby claim petition filed by the claimants/appellants came to be dismissed.
3. Facts in brief for disposal of the present appeal are as under:
3. 1 A Claim petition came to be filed under Section 166 of M.V. Act contending that on 03.04.2007, Basanagouda Patil after completion of his work, while returning to his native village Keruru on motorcycle bearing No.KA-29/J- 7552, following the required traffic rules, near Konamma Temple, Badami at about 21.45 hours, a tom tom (three wheeler) bearing reg. No.KA-26/4864, came in a rash and negligent manner and dashed against the motorcycle whereby Basanagouda, Patil sustained grievous injuries - 4 - NC:
2024. KHC-D:49 MFA No.25660 of 2011 and he was shifted to the Government Hospital, Badami and later, he was shifted to Kerudi Hospital for higher treatment at Bagalkote. Despite the treatment, Basanagouda Patil did not survive and he succumbed to the injuries in the hospital on 05.04.2007.
4. Therefore, petitioners being dependants, filed claim petition seeking appropriate compensation.
5. Upon service of notice of the claim petition, driver of the offending vehicle and owner of the vehicle appeared through counsel and filed objection to the claim petition and denied the accident as is contended by the claimants. He also contended that there is no negligence on the part of the driver of the ‘tum tum’ and sought for dismissal of the petition.
6. Respondent No.3 - insurance company also filed separate written statement admitting the issuance of the policy to the offending vehicle and denied the liability of the insurance company.-. 5 - NC:
2024. KHC-D:49 MFA No.25660 of 2011 7. The age of the claimants and other details were also denied and claimants are put to strict proof. Based on the rival contentions of the parties, the tribunal framed the following issues:
1. “Whether petitioners proves that on 03-04-2007 deceased was travelling on his motorcycle bearing Reg. NO.KA-29/J-7552 on Badami- Bagalkot road at about 09-45 P.M., at that time from opposite direction a tomtom vehicle bearing Reg.NO.KA-26/4684 driven by its driver came in high speed and in rash and negligent manner and dashed to the deceased near Konamma Temple, resulting deceased sustained grievous injuries and succumbed to death in hospital on 05-04-2007?.
2. Whether petitioners prove the age, occupation and of the deceased as on the date of accident?.
3. Whether petitioners prove they are entitled for compensation claim?. If so, what is the quantum and from whom?.
4. What order or award?.” - 6 - NC:
2024. KHC-D:49 MFA No.25660 of 2011 8. In order to prove the case of the claimants, first claimant got examined as PW1 and eye witness to the accident by name Basalingayya Sharanabasayya Hiremath as PW.2. Claimants placed on record 13 documentary evidences, which were marked as Ex.P1 to P13.
9. As against the evidence placed on record by the claimants, there is no oral evidence placed on record on behalf of the respondent. Respondent-insurance company placed on record insurance policy and endorsement which were marked as Ex.R1 and R2.
10. Learned trial judge on conclusion of the recording of the evidence, considered the same in a cumulative manner dismissed the claim petition holding that the nature of accident as is propounded by the claimants is not permissible and there is no negligence proved on the part of the driver of the ‘tum tum’ vehicle and dismissed the claim petition.
11. Being aggrieved by the same, the appeal came to be filed by the claimants on the following grounds: - 7 - NC:
2024. KHC-D:49 MFA No.25660 of 2011 “1. The judgment passed by Tribunal in dismissing the claim petition is illegal, perverse and capricious and contrary to the established principal of law.
2. The tribunal failed to consider the case of the appellants that charge sheet id filed against the driver of the tomtom vehicle (three wheeler) and hence it is conclusive proof of negligence on the part of the respondent vehicle but tribunal failed to recognize the same and dismissed the claim petition is liable to be set aside.
3. The tribunal ought not have gone in to the proving negligence as if in the criminal case. The tribunal reasoning as to the proof of negligence on the part of respondent vehicle is sufficiently proved by the production of charge sheet.
4. The tribunal tried to find out the contradiction in the evidence of PW1 AND PW2 corroborating the same with panchanama is permissible and the case being petition and not for compensation and hence the liberal approach should have made by the tribunal.
5. The approach of the tribunal considering the panchnama and presuming the things as there is no negligence on the part of the respondent vehicle is illegal. At the most tribunal would have held deceased was also contributorily liable for the accident.
6. The tribunal not considered the entire documents relating FIR complaint, spot panchanama, post mortem report, and charge sheet but made observation on the point of spot of accident and came to conclusion that accident might not have occurred like this. The approach of the tribunal is perverse and liable to be set aside.
7. That the judgment and award passed by the tribunal dismissing the claim petition without considering the documents and evidence court has to come to conclusion the occurrence of accident.” - 8 - NC:
2024. KHC-D:49 MFA No.25660 of 2011 12. Reiterating the grounds urged in the appeal memorandum, Sri.P.N.Hosamane, learned counsel for the claimants/appellants vehemently contended that the approach of the trial court in seeking conclusive proof of the accident is unheard of while holding an enquiry with regard to accidental claims and therefore sought for allowing the appeal.
13. He also contended the charge sheet filed by the investigating agency would establish that it is negligent act of the driver of the offending ‘tum tum’ vehicle bearing reg. No.KA-26/4864, the accident is occurred and therefore, the claim petition needs to be allowed in toto and sought for allowing the appeal.
14. Per contra, Sri.S.S.Joshi, appearing for the respondent No.3, however supported the impugned judgment by holding that there is a clear finding recorded by the learned trial judge to the effect that the material evidence placed on record is hardly sufficient to establish the fact that the driver of the offending vehicle is responsible for the accident. Therefore, - 9 - NC:
2024. KHC-D:49 MFA No.25660 of 2011 dismissal of the claim petition is just and proper and sought for dismissal of the appeal.
15. In view of the rival contentions of the parties, this court perused the material on record meticulously.
16. On such perusal of the material on record, the following point would arise for consideration of this court.
1) Whether claimants/appellants have made out a case that it is because of the negligent act of the driver of the ‘tum tum’ vehicle bearing reg. No.KA-26/4864, the accident is occurred resulting in the death of Basanagouda Patil?.
2) Whether the claimants are entitled for the compensation , if so to what extent?.
3) Whether the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference.
4) What order?.
17. In the case on hand, the material evidence placed on record is in the form of the oral testimony of first claimant namely Smt. Shivaleela Basanagouda patil, who is wife of the deceased. Eye witness to the accident by name Basalingayya - 10 - NC:
2024. KHC-D:49 MFA No.25660 of 2011 Sharanabasayya Hiremath is examined as PW.2. Based on the complaint lodged, the investigation officer conducted the detailed investigation and filed charge sheet against the driver of the ‘tum tum’ vehicle bearing reg. No.KA-26/4864 for the offences punishable under sections 279, 337, 338, 304A IPC r/w Section 187 of the MV Act.
18. The material evidence on record would establish that after conclusion of the investigation in a proper manner, charge sheet came to be filed against the driver of the ‘tum tum’ vehicle bearing reg. No.KA-26/4864. The charge is not challenged by the driver of the ‘tum tum’ vehicle.
19. Often the tribunal would be confronted with the question of what is the degree or standard of proof that is required for establishing a road traffic accident.
20. With regard to said aspect of the matter, it is settled principles of law that strict rules of evidence are not applicable in establishing a road traffic accident.
21. The accident is to be established by placing the evidence and standard of proof thereof is that of preponderance of - 11 - NC:
2024. KHC-D:49 MFA No.25660 of 2011 probabilities and not beyond reasonable doubt, like a criminal trial.
22. The law on the said point is no longer res integra.
23. The Hon’ble Apex Court, in the case of Anitha Sharma and others Vs. New India Assurance Company Limited and another reported in (2021) I Supreme Court Cases 171, in paragraph numbers 17 to 21 has held as under: “17. Unfortunately, the approach of the High Court was not sensitive enough to appreciate the turn of events at the spot, or the appellant- claimants' hardship in tracing witnesses and collecting information for an accident which took place many hundreds of kilometres away in an altogether different State. Close to the facts of the case in hand, this Court in Parmeshwari v. Amir viewed that : (SCC p. 638, para
12) “12. The other ground on which the High Court dismissed the case was by way of disbelieving the testimony of Umed Singh, PW1 Such disbelief of the High Court is totally conjectural. Umed Singh is not related to the appellant but as a good citizen, Umed Singh extended his help to the appellant by helping her to reach the doctor's chamber in order to ensure that an injured woman gets medical treatment. The evidence of Umed Singh cannot be disbelieved just because he did not file a complaint himself. We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitised enough to appreciate the plight of the victim.-. 12 - NC:
2024. KHC-D:49 MFA No.25660 of 2011 ‘15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.’ (emphasis supplied) 18. The failure of the respondents to cross- examine the solitary eyewitness or confront him with their version, despite adequate opportunity, must lead to an inference of tacit admission on their part. They did not even suggest the witness that he was siding with the claimants. The High Court has failed to appreciate the legal effect of this absence of cross-examination of a crucial witness.
19. The importance of cross-examination has been elucidated on several occasions by this Court, including by a Constitution Bench in Kartar Singh v. State of Punjab, which laid down as follows : (SCC p. 686, paras 278-79) “278. Section 137 of the Evidence Act defines what cross-examination means and Sections 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross- examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are: (1) to destroy or weaken the evidentiary value of the witness of his adversary; - 13 - NC:
2024. KHC-D:49 MFA No.25660 of 2011 (2) to elicit facts in favour of the cross- examining lawyer's client from the mouth of the witness of the adversary party; (3) to show that the witness is unworthy of belief by impeaching the credit of the said witness; and the questions to be addressed in the course of cross-examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character.
279. The identity of the witness is necessary in the normal trial of cases to achieve the above objects and the right of confrontation is one of the fundamental guarantees so that he could guard himself from being victimised by any false and invented evidence that may be tendered by the adversary party.
20. Relying upon Kartar Singh in a MACT case this Court in Sunita v. Rajasthan SRTC considered the effect of non-examination of the pillion rider as a witness in a claim petition filed by the dependants of the deceased motorcyclist and held as follows: (SCC p. 502, paras 30 and
32) “30. Clearly, the evidence given by Bhagchand withstood the respondents' scrutiny and the respondents were unable to shake his evidence. In turn, the High Court has failed to take note of the absence of cross-examination of this witness by the respondents, leave alone the Tribunal's finding on the same, and instead, deliberated on the reliability of Bhagchand's (A.D.
2) evidence from the viewpoint of him not being named in the list of eyewitnesses in the criminal proceedings, without even mentioning as to why such absence from the list is fatal to the case of the appellants. This approach of the High Court is mystifying, especially in light of this Court's observation [as set out in Parmeshwari and reiterated in Mangla Ram that the strict principles of proof in a criminal - 14 - NC:
2024. KHC-D:49 MFA No.25660 of 2011 case will not be applicable in a claim for compensation under the Act and further, that the standard to be followed in such claims is one of preponderance of probability rather than one of proof beyond reasonable doubt. There is nothing in the Act to preclude citing of a witness in motor accident claim who has not been named in the list of witnesses in the criminal case. What is essential is that the opposite party should get a fair opportunity to cross-examine the witness concerned. Once that is done, it will not be open to them to complain about any prejudice caused to them. If there was any doubt to be cast on the veracity of the witness, the same should have come out in cross-examination, for which opportunity was granted to the respondents by the Tribunal. The High Court has not held that the respondents were successful in challenging the witnesses' version of events, despite being given the opportunity to do so. The High Court accepts that the said witness (A.D.
2) was cross-examined by the respondents but nevertheless reaches a conclusion different from that of the Tribunal, by selectively overlooking the deficiencies in the respondent's case, without any proper reasoning.” (emphasis supplied) 21. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to - 15 - NC:
2024. KHC-D:49 MFA No.25660 of 2011 analyse the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true.
24. Applying the above principles of law to the case on hand, the material evidence placed on record would be sufficient to establish that there was an accident that has taken place because of negligent act on the part of the driver of the ‘tum tum’ vehicle bearing reg. No.KA-26/4864. In the said road traffic accident, Basanagouda patil fell down from the motor cycle bearing No.KA-29/J-7552 and sustained grievous injuries.
25. Material on record would also clearly establish that because of the accidental injuries sustained by Basanagoud patil, he succumbed to the injuries on 05.04.2007 in the hospital at Bagalkote. Medical records, and the postmortem report would clearly establish that Basanagouda Patil died because of the accidental injuries sustained by him.
26. Cumulative consideration of material evidence on record would be sufficient to establish that Basanagouda patil died on account of the accidental injuries sustained by him in the road traffic accident involving motor cycle bearing No.KA-29/J-7552 and ‘tum tum’ vehicle bearing reg. No.KA-26/4864.-. 16 - NC:
2024. KHC-D:49 MFA No.25660 of 2011 27. It is pertinent to note that there is no evidence placed on record by the First respondent who is the driver of the offending vehicle nor the owner of the offending vehicle. It is only the insurance company who has placed insurance policy and endorsement, which are marked as Ex.R1 and R2.
28. In the absence of any contra evidence placed on record by the respondents, the material evidence placed on record in the form of oral testimony of wife of the deceased and eye witness Basalingayya Sharanabasayya Hiremath, the trial court ought not to have dismissed the claim petition by holding that mere filing of the charge sheet is not conclusive proof of the accident and negligent act of the first respondent.
29. Therefore, the claimants are successful in establishing that Basanagouda Patil died on account of injuries sustained in road traffic accident and therefore, they are entitled for the compensation. Regarding point No.2:
30. Admittedly, deceased was aged 35 years. There is no proper proof of income that has been placed on record by the claimants. Under such circumstances, notional income has to - 17 - NC:
2024. KHC-D:49 MFA No.25660 of 2011 be taken for the accidental injuries sustained in the year 2007, it has been considered Rs.4,000/- is the appropriate monthly income. Since, the deceased was married and was having wife and children 1/3 is to be deducted for the purpose of personal expenditure.
31. Further, the age of deceased is 35 years, the appropriate multiplier is 16. Accordingly, the claimants would be entitled for the compensation which is assessed as under: Rs.4,000+1600(40% of Rs.4000)X2/3X16X12=7,16,800-00 32. Hence, the claimants are entitled to sum of Rs.7,16,800-00 towards loss of dependency.
33. The claimants are entitled for the compensation under following heads:- Sl. Name of the head Amount(Rs.) No.1 Conventional head 30,000-00 2 Filial consortium (Rs.40,000X3) 1,20,000-00 3 Transportation 25,000-00 4 Loss of dependency 7,16,800-00 Total 8,91,800-00 - 18 - NC:
2024. KHC-D:49 MFA No.25660 of 2011 Thus, claimants are entitled for total compensation of Rs.8,91,800-00.
34. The liability is to be fastened on the insurance company as it has admitted that the offending ‘tum tum’ vehicle bearing No.KA-26/4864 was having a valid insurance policy, the owner of the tum tum vehicle bearing No.KA-26/4864 was having a valid insurance policy.
35. Accordingly, the assessed compensation is to be paid by the Insurance company.
36. The learned trial judge has not properly appreciated the material evidence on record and therefore, the impugned judgment is to be held as suffering from legal infirmity and dismissal of the claim petition is to be held as perverse. Accordingly, Point Nos.1 to 3 are answered in the affirmative. Regarding point No.4, in view of the finding of this court on the point Nos.1 to 3 as above, the following order is passed. ORDER
i) Appeal allowed.-. 19 - NC:
2024. KHC-D:49 MFA No.25660 of 2011 ii) The impugned judgment and award passed in MVC No.395/2007 dated 04.03.2010 by the MACT- III, Bagalkot is hereby set aside and the claimants have entitled for the sum of Rs.8,91,800-00 with interest at 6% per annum from the date of petition till realization. iii) Ordered accordingly. Sd/- JUDGE HMB List No.:
1. Sl No.:
5.