Judgment:
R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE20H DAY OF JUNE, 2022 PRESENT THE HON'BLE MR. JUSTICE B. VEERAPPA AND THE HON’BLE Mrs. JUSTICE K.S. HEMALEKHA MISCELLANEOUS FIRST APPEAL No.5563/2016 (MV-D) C/W MISCELLANEOUS FIRST APPEAL No.5564/2016 (MV-D) IN M.F.A. No.5563/2016 BETWEEN: SMT. DARSHINI, W/O. DR. B.M. RUDRAPRASAD, AGED ABOUT30YEARS, R/AT FLAT NO.108, MAHAVEER ASPEN, 25/4, YELLECHENAHALLI, KANAKAPURA MAIN ROAD, BENGALURU – 560 078. ... APPELLANT (BY SMT. SREEVIDYA G.K., ADVOCATE FOR SRI T.N. VISWANATHA, ADVOCATE) AND:
1. SRI B.A. TALKHEEN AHMED, S/O. FATHERS NAME NOT KNOWN TO THE PETITIONER, - 2 - MAJOR IN AGE, M/S. EAST WEST TOURISM CORPORATION, B.H. ROAD, SHIMOGA DISTRICT – 577 201.
2. THE NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE, UNITY BUILDING ANNEX, MISSION ROAD, BENGALURU – 560 002, REPRESENTED BY ITS REGIONAL MANAGER.
3. SMT. H.K. UMADEVI, W/O. MAHADEVAIAH @ MADAPPA, AGED ABOUT66YEARS, R/AT DOOR NO.660, 9TH CROSS NEAR OLD CLARANCE ENGLISH SCHOOL, S.I.T. EXTENSION, TUMKUR – 561 001.
4. SRI MAHADEVAIAH, S/O LATE CHANNAVEERAIAH, AGED ABOUT71YEARS, R/AT DOOR NO.660, 9TH CROSS, NEAR OLD CLARANCE SCHOOL, S.I.T. EXTENSION, TUMKUR – 561 001.
5. M. CHANDRIKA, D/O. MAHADEVAIAH @ MADAPPA, AGED ABOUT36YEARS, R/AT NO.660, 9TH CROSS, NEAR OLD CLARENCE SCHOOL, S.I.T. EXTENSION, TUMKUR – 561 001. (R-4 AND R-5 DEAD BY LR’S) - 3 - (SINCE DEAD BY LR, R-3 IS ALREADY ON RECORD AMENDMENT CARRIED OUT VIDE COURT ORDER
DATED0908.2021) ... RESPONDENTS (BY SRI G.S. MARULAIAH, ADVOCATE FOR R-2; SRI K.R. KUMAR, ADVOCATE FOR R-3; R-1 IS SERVED BUT UNREPRESENTED; V/O. DATED0908.2021 R-3 IS TREATED AS LR’S OF DECEASED R-4 AND R-5) *** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION1731) OF MV ACT, AGAINST THE JUDGMENT
AND AWARD DATED2304.2016 PASSED IN MVC NO.4734/2010 ON THE FILE OF THE XX ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, BANGALORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION. IN M.F.A. No.5564/2016 BETWEEN: SMT. DARSHINI, W/O. DR. B.M. RUDRAPRASAD, AGED ABOUT30YEARS, R/AT FLAT NO.108, MAHAVEER ASPEN, 25/4, YELLECHENAHALLI, KANAKAPURA MAIN ROAD, BENGALURU – 560 078. ... APPELLANT (BY SMT. SREEVIDYA G.K., ADVOCATE FOR SRI T.N. VISWANATHA, ADVOCATE) - 4 - AND:
1. THE NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE, UNITY BUILDING ANNEXE, MISSION ROAD, BENGALURU – 560 002, REPRESENTED BY ITS REGIONAL MANAGER.
2. SRI B.A. TALKHEEN AHMED, S/O. FATHERS NAME NOT KNOWN TO THE PETITIONER, MAJOR IN AGE, M/S. EAST WEST TOURISM CORPORATION, B.H. ROAD, SHIMOGA DISTRICT – 577 201.
3. SMT. H.K. UMADEVI, W/O. MAHADEVAIAH @ MADAPPA, AGED ABOUT66YEARS, R/AT DOOR NO.660, 9TH CROSS, NEAR OLD CLARANCE ENGLISH SCHOOL, S.I.T. EXTENSION, TUMKUR – 561 001.
4. SRI MAHADEVAIAH, S/O. LATE CHANNAVEERAIAH, AGED ABOUT71YEARS, R/AT DOOR NO.660, 9TH CROSS, NEAR OLD CLARENCE SCHOOL, S.I.T. EXTENSION, TUMKUR – 561 001.
5. M. CHANDRIKA, D/O. MAHADEVAIAH @ MADAPPA, AGED ABOUT36YEARS, R/AT NO.660, 9TH CROSS, - 5 - NEAR OLD CLARENCE SCHOOL, S.I.T. EXTENSION, TUMKUR – 561 001. (R-4 AND R-5 DEAD BY LR’S) (SINCE DEAD BY LR, R-3 IS ALREADY ON RECORD AMENDMENT CARRIED OUT VIDE COURT ORDER
DATED0908.2021) ... RESPONDENTS (BY SRI G.S. MARULAIAH, ADVOCATE FOR R-1; SRI K.R. KUMAR, ADVOCATE FOR R-3; R-2 IS SERVED BUT UNREPRESENTED; V/O. DATED0908.2021 R-3 IS TREATED AS LR’S OF DECEASED R-4 AND R-5) *** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION1731) OF MV ACT AGAINST THE JUDGMENT
AND AWARD DATED2304.2016 PASSED IN MVC NO.5616/2013 ON THE FILE OF THE MEMBER, MACT, 20TH ADDITIONAL SMALL CAUSE JUDGE, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION. THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR FINAL HEARING THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING: - 6 -
JUDGMENT
Both these appeals are preferred by Smt. Darshini alleged to be the wife of the deceased against the impugned judgment and award dated 23.04.2016 passed by the MACT, XX Additional Small Causes Judge, Bangalore (SCCH-22) (hereinafter referred to as the ‘the Tribunal’ for short) wherein the Tribunal dismissed the claim petition in MVC No.4734/2010 filed by the present appellant and awarded total compensation of Rs.49,60,000/- with interest @ 8% p.a. in MVC No.5616/2013 filed by the parents and unmarried sister of the deceased.
2. It is the case of the claimants in both the claim petitions that on 16.04.2010 at about 1.00 pm, the deceased Dr. B.M. Rudraprasad was proceeding towards Tumkur from Bangalore in a car bearing registration No.KA-05-NH-4656 and when he reached near Anchemane Cross, Bangalore-Tumkur Road on - 7 - NH-4, at that time, a private Bus bearing registration No.KA-14-A-1386 coming from Tumkur side in a rash and negligent manner, suddenly took his bus U-Turn and dashed against the car. Due to the impact, deceased fell down and sustained injuries all over the body. Immediately he was shifted to Columbia Asia Hospital, wherein he took treatment as inpatient and later, on 02.05.2010 he succumbed to the injuries sustained. It is further contended that prior to the accident, the deceased was hale and healthy and he was working as a Doctor, MD-Community Medicine, Asthma, Allergy and Immunology Specialist at KIMS, a consultant at Meenakshi ENT Specialty Centre and private practice at Allergy, Ashthama and Immunology Clinic and he had experience in the field of medicine for six years and was earning Rs.44,980/- from KIMS and Rs.20,000/- p.a. from Meenakshi ENT Specialty - 8 - Centre and Rs.50,000/- from private practice. In all, he was earning Rs.1,00,000/- per month.
3. The claimant-Smt. Darshinin filed claim petition under the provisions of Section 166 of the Motor Vehicles Act in MVC No.4734/2010 seeking compensation on account of death of Dr. B.M. Rudraprasad and has contended that claimants in MVC No.5616/2013 are not dependant upon the income of the deceased as they are employee and receiving the pension benefits and thereby they are not entitled for the compensation.
4. The claimants-parents and sister of the deceased have filed claim petition in MVC No.5616/2013 contending that they are depending upon the income of the deceased and claimant No.3- sister of the deceased had no chance of marrying because of her incurable disease and is liable for the - 9 - compensation and contended that after the death of Dr. Rudraprasad, the claimant-Smt. Darshini in MFA No.4734/2010 has remarried one Dr. G.R. Mallikarjuna on 24.03.2011 and the same was registered in the office of the Registrar of Marriage at Davanagere on 25.03.2011 and they settled at UK and earning more than Rs.50.00 lakhs per year. Thereby, they have claimed compensation of Rs.3.00 crores with interest and costs.
5. In pursuance of the notice issued by the Tribunal in MVC No.4734/2010, respondent No.1 remained absent and was placed exparte and respondent Nos.2 to 5 appeared and filed their written statements. Though notice issued in MVC No.5616/2013, respondent No.2 remained absent and was placed exparte and respondent No.1 appeared and filed written statement and respondent No.3 appeared however has not filed any objection.-. 10 - 6. Insurance Company in both the petitions has contended that petition is not maintainable either in law or on facts and admitted the issuance of policy in respect of private bus bearing registration No.KA- 14-A-1386 and liability, if any, is subject to the terms and conditions of the policy and also contended that the driver of the bus had no valid and effective driving licence as on the date of the accident and further contended that the accident occurred solely due to the negligence on the part of the deceased himself and the compensation claimed by the claimants is highly excessive and exorbitant and sought to reject the claim petitions. Further respondent No.2 has filed additional statement of objections contending that respondent Nos.3 and 4 along with their daughter have filed one more claim petition in MVC No.1226/2010 before the MACT, Tumkur, claiming - 11 - compensation on the very same accident. Therefore, sought to reject both the claim petitions.
7. Respondent Nos.3 to 5 in MVC No.4734/2010 have contended that after the death of Dr. Rudraprasad, Darshini has remarried Dr. Mallikarjuna on 24.03.2011 and the same was registered in the office of the Registrar of Marriage, Davanagere on 25.03.2011 and they were settled in UK and were earning Rs.50.00 lakhs per year. Thereby, Darshini is excluded from inheritance and dependency on the ground of re-marriage and she is not entitled for compensation and further contended that they lost the only son and they are suffering from serious illness, mental agony and sought to reject the claim petition filed by Darshini.
8. The Tribunal on the basis of the pleadings, framed the issues and additional issues.-. 12 - 9. In order to prove the case of the claimant in MVC No.4734/2010, examined herself as PW.1 and got marked document as Exs.P.1 to P.37. Claimant No.1 in MVC No.5616/2013 was examined as PW.2 and got marked the documents as Exs.P.38 to P.49. In both the petitions, Sri. M.K. Chandrashekar- employer of the deceased and Sri. Subramanya T.K.- Medical Record Technician were examined as PW.3 and PW.4 and got marked documents at Exs.P.50 to P.58. On the other hand, insurance company examined its Assistant Manager as RW.1 and got marked documents as Exs.R1 to R.12.
10. The Tribunal, on the basis of the pleadings, the oral and documentary evidence on record held in MVC No.4734/2010 that sthe claimant-Smt. Darshini has failed to prove the fact that she is the legal heir of the deceased Dr. Rudraprasad. Further, held that the - 13 - accident occurred due to rash and negligent driving of the driver of the private bus bearing registration No.KA-14-A-1386 and the deceased Dr. Rudraprasad succumbed to the injuries and claimant is not entitled for any compensation and further held in MVC No.5616/2013 that the claimants being the parents and unmarried sister of the deceased have proved that the accident occurred due to the rash and negligent driving of the driver of the bus and thereby, they are entitled for compensation. Accordingly, the Tribunal by the impugned judgment and award dismissed the claim petition filed by the claimant-Smt. Darshini in MVC No.4734/2010 and allowed the claim petition in MVC No.5616/2013 filed by the parents and sister of the deceased Dr. Rudraprasad awarding total compensation of Rs.49,60,000/- with interest @ 8% p.a. from the date of the petition till the date of realization.-. 14 - 11. Being aggrieved by the order of the dismissal by the Tribunal, the claimant preferred the present appeals.
12. Admittedly, the insurance company has not preferred any appeal against the impugned judgment and award passed by the Tribunal awarding total compensation of Rs.49,60,000/- with interest @ 8% p.a. and mother/respondent No.3 has not preferred any appeal seeking enhancement of compensation.
13. We have heard the learned counsel for the parties to the lis.
14. Learned counsel, Smt. Srivdiya G.K. for Sri. T.N. Viswanatha, learned counsel for the appellant in both the appeals has contended that the impugned judgment and award passed by the Tribunal dismissing the claim petition filed by the appellant- - 15 - Smt. Darshini is erroneous and contrary to the materials on record and same is liable to be set-aside. She further contended that the Tribunal has erred in holding that the appellant-Smt. Darshini is not the legal heir of deceased Dr.Rudraprasad in spite of cogent evidence placed on record. The Tribunal while dismissing the claim petition recorded a finding that claimant has remarried to one Dr. Mallikarjuna on 24.03.2011. i.e., within one year after the death of Dr. Rudraprasad. The remarriage of the appellant with Mallikarjuna will not take away the accrued right of the appellant in claiming compensation for the death of her husband in a road traffic accident and the only ground taken by the Tribunal to negate the claim of the appellant is re-marriage. The evidence on record clearly establishes that the remarriage with Dr. Mallikarjuna was ended in divorce as seen from Ex.P.18. Thereby the Tribunal has erroneously - 16 - rejected the claim petition filed by the appellant. She would further contend that the Tribunal has erred in awarding compensation to the parents of the deceased, who are receiving pensionary benefits and there is no loss to them and further, the Tribunal has failed to notice that the appellant, who represents the estate of deceased Dr. Rudraprasad is entitled to come on record as legal heir and as such, she can maintain a petition to claim compensation. Therefore, the appellant is the only legal heir of the deceased and she is entitled for compensation as she is dependant upon the deceased and not the parents or the unmarried sister as alleged in MVC No.5616/2013. The said aspect of the matter has not been considered. Thereby, she sought to allow both the appeals filed by the appellant.
15. In support of her contentions, she has relied upon the dictum of the Bombay High Court in - 17 - the case of Mr. Sanjay Purshottam Patankar Vs. Smt. Prajakta Pramnod Patil dated 25.06.2015 in Appeal No.8/2007.
16. Per contra, Sri. K.R.Kumar, learned counsel for respondent No.3-mother of the deceased in both the appeals sought to justify the impugned judgment and award passed by the Tribunal.
17. Sri. G.S. Marulaiah, learned counsel for the insurance company in both the appeals has contended that the appellant has remarried on 24.03.2011 i.e., during the pendency of the claim petition and same came to be registered in the Registrar of Marriage at Davanagere on 25.03.2011 and thereby she has not suffered any loss of dependency. Thus, the Tribunal was justified in dismissing the claim petition filed by the appellant and allowing the claim petition filed by the parents of the deceased. It is also brought to - 18 - notice of this Court that the unmarried sister died during the pendency of the claim petition before the Tribunal and the father of the deceased died during the pendency of the present appeal. Only respondent No.3-mother of the deceased survived as legal representative of the deceased.
18. In view of the aforesaid rival contentions, the points that arise for our consideration in the present appeals are: “1.Whether the Tribunal is justified in dismissing the claim petition in MVC No.4734/2010 filed by the appellant-Smt. Darshini?.
2. Whether the Tribunal is justified in awarding compensation to the parents and sister of the deceased in MVC No.5616/2013, in the facts and circumstances of the present case?.
19. We have given our thoughtful consideration to the arguments advanced by the learned counsel for - 19 - the parties and perused the materials on records carefully.
20. It is an undisputed fact that Dr. Rudraprasad succumbed to the injuries sustained in a road traffic accident that occurred on 16.04.2010 due to the rash and negligent driving of the driver of the private bus bearing registration No.KA-14-A-1386 and the same is evidenced from the materials documents produced at Ex.P.1 – the FIR and Ex.P.5 – the Charge- sheet filed by the jurisdictional police during the course of the employment against the driver of the bus. Thereby, the rash and negligence on the part of the driver of the bus has been proved. Admittedly, the insurance company or the owner of the bus have not filed any appeal against the adverse finding recorded by the Tribunal.-. 20 - 21. It is not in dispute that the deceased succumbed to the injuries sustained on 02.05.2010. The present appellant–Smt. Darshini has filed MVC No.4734/2010 on 26.07.2010 and the parents of the deceased filed MVC No.1226/2010 before the MACT, Tumkur, which was renumbered as MVC No.5616/2013 on 25.10.2013. It is the specific case of the appellant that parents of the deceased are employed and receiving pensionary benefits and they are not dependant upon the income of the deceased except the unmarried sister. It is the case of respondent No.3/mother of deceased, who is sole surviving dependant of deceased that during the pendency of the claim petition, appellant Darshini has remarried to Dr. Mallikarjuna on 24.03.2011 and both were settled in UK and were earning more than Rs.50.00 lakhs per annum. Thereby the claim petition filed by the appellant-Darshini was dismissed by the - 21 - Tribunal. The Tribunal considering both oral and documentary evidence on record held that the erstwhile wife of the deceased Dr. Rudraprasad got married to Dr. Mallikarjuna on 24.03.2011 i.e., within one year after the death of Dr. Rudraprasad, who was working in UK with good salary. PW.1- the present appellant-Darshini clearly admitted in the cross- examination that after second marriage, she went to UK. Further, she clearly admitted that the second husband was a leading doctor in UK. Thereby PW.1 has not suffered any loss of consortium and loss of dependency due to the death of Dr. Rudraprasad. Though the second marriage with Dr. Mallikarjuna was ended in a divorce with mutual consent as per Ex.P.18 in MC No.3879/2012, she has received Rs.20.00 lakhs as permanent alimony from her second husband. Further, as admitted in her cross-examination that she has received the death benefits of Dr. Rudraprasad - 22 - from KIMS Hospital. Thereby, she has not suffered any loss of dependency and further she is an M.Tech Graduate and was an employee and also getting good remuneration from her employment. The affidavits filed by the appellant-Darshini in O.S. No.3913/2010 are marked as Exs.P.34 to P.37 and thereby she has admitted her signatures in the said affidavits. Ex.P.35 clearly depicts that she is employed, thereby she has not suffered any loss of dependency nor loss of consortium. Therefore, the Tribunal held that she is not entitled for any compensation and accordingly, the claim petition of the appellant was dismissed.
22. Learned counsel for the appellant though relied upon the judgment of the Division Bench of the High Court of Bombay in Appeal No.8/2007, it was the case where the deceased died on 18.05.1998 and respondent therein is the widow and she got remarried on 14.12.1998. The mother of the - 23 - deceased also passed away on 29.03.2001. Thereafter, the widow obtained legal succession certificate in relation to the estate of the deceased and the succession certificate was granted in favour of the respondent and in that context, the Division Bench of High Court held that if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule and so on and it is not in dispute that the respondent therein is an heir as specified in Class I, whereas the appellant therein is an heir as specified in Class II and Section 9 provides the order of succession among heirs and stipulates that among the heirs specified in the Schedule, those in Class I shall take simultaneously and to the exclusion of all other heirs and the Bench held that Section 14 of the Hindu Succession Act, 1956 interalia stipulates that the property of a female Hindu is to be her absolute property and there is no provision in Hindu Succession - 24 - Act, 1956 in pari materia with Section 2 of the Hindu Widows’ Re-Marriage Act, 1856. In other words, there is no provision that disqualifies a widow of a male Hindu from inheriting from her husband if she remarries, after his death. The said judgment is not applicable to the facts and circumstances of the present case as it is in the different context.
23. In the present case, the appellant was not dependent upon the deceased even though she filed claim petition on 26.10.2010. The documents would clearly depict that she had received death benefits of Dr. Rudraprasad from KIMS Hospital, also she has received 50% of the LIC amount of deceased Dr. Rudraprasad as admitted by her in her cross- examination. Apart from that, she got remarried one Dr. Mallikarjuna on 24.03.2011 and same was registered in the office of the Sub-Registrar Office, Davanagere and though second marriage was ended - 25 - with divorce by mutual consent as per Ex.P.18, fact remains that she has received Rs.20.00 lakhs (Rupees Twenty Lakhs only) as permanent alimony from her second husband Mallikarjuna. Taking into consideration the material facts, she has not suffered any loss of dependency nor loss of consortium as rightly held by the Tribunal.
24. The only challenge is to the finding that on remarriage, the widow lose the right to claim the compensation. The purpose of enactment of the Motor Vehicles Act is to award compensation for loss of income on the death of the person and other heads. In the present case, since appellant-Darshini got remarried Dr. Mallikarjuna on 24.03.2011, the dependency of Darshini was shifted on the new husband and merely because of second marriage ended with divorce after receipt of Rs.20.00 lakhs (Rupees Twenty Lakhs only) as permanent alimony as - 26 - per Ex.P.18, remarried widow would not be entitled for compensation. Our view is fortified by the Hon’ble Supreme Court in the case of Anju Mukhi and another vs. Satish K. Bhatia and others, reported in (2010) 15 SCC630(Anju Mukhi), wherein at paragraph No.4, it is held as under: “4. The only challenge is to the finding that on remarriage the widow loses the right to claim compensation. It is to be seen that the main purpose of Motor Vehicles Act is to award compensation for loss of income on the death of a person. On remarriage there is no longer a loss of income. Now the dependency has shifted on to the new husband. Therefore, we are in agreement with the High Court that after remarriage a widow would not be entitled to any compensation.
25. The Hon’ble Supreme Court in identical circumstances in the case of Bridget Irene and Anr. Vs. Dincy Devassy and Anr. dismissed the Special - 27 - Leave Appeal No.9844/2020 dated 06.04.2021 relying upon the Anju Mukhi’s case stated supra.
26. For reasons stated supra, this Court is of the considered view that the right to claim compensation by Smt. Darshini after remarriage seized since she has not proved any loss of dependency on account of death of her erstwhile husband Dr. Rudraprasad.
27. In view of the above, the appellant has not proved that she is the legal heir of the deceased - Dr. Rudraprasad and therefore, the Tribunal is justified in dismissing the claim petition filed by the appellant in MVC No.4734/2010 and the same does not call for interference at the hands of this Court. Consequently, question of appellant challenging the compensation awarded by the Tribunal in favour of parents and - 28 - sister of the deceased in MVC No.5616/2013, would not arise.
28. Accordingly, we answer the points raised in the present appeal as under: i) The 1st point is answered in the affirmative holding that the Tribunal is justified in dismissing MVC No.4734/2020 filed by the appellant-Darshini ?. ii) The 2nd point is answered in the affirmative holding that the Tribunal is justified in awarding compensation to the parents and sister of the deceased in MVC No.5616/2013, in the facts and circumstances of the case.
29. In view of the above we pass the following:- - 29 - ORDER
(1) MFA Nos.5563/2016 and 5564/2016 filed by the appellant-Smt. Darshini are here by dismissed as devoid of merits. (2) The impugned judgment and award dated 23.04.2016 made in MVC Nos.4734/2010 and 5616/2013 on the file of MACT, XX Additional Small Causes Judge, Bangalore (SCCH-22) are hereby confirmed. No order as to costs. Sd/- JUDGE Sd/- JUDGE MBM