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Mumtaz & Others v/s The National Insurance Co. Ltd., & Another

Company & Directors' Information:- NATIONAL INSURANCE COMPANY LIMITED [Active] CIN = U10200WB1906GOI001713

Company & Directors' Information:- NATIONAL CO LTD [Strike Off] CIN = U51909WB1917PLC002781

Company & Directors' Information:- NATIONAL CORPORATION PVT LTD [Not available for efiling] CIN = U51909PB1942PTC000480

Company & Directors' Information:- NATIONAL CORPORATION PRIVATE LIMITED [Not available for efiling] CIN = U99999MH1950PLC009913

    M.F.A. No. 6250 of 2015 (MV)

    Decided On, 06 March 2020

    At, High Court of Karnataka


    For the Appellants: Girimallaiah, Advocate. For the Respondents: R1, Geetharaj, Advocate.

Judgment Text

(Prayer: This M.F.A. is filed Under Section 173(1) of M.V.Act, 1988 against the judgment and award dated 02.06.2015 passed in MVC.No.3210/2013 on the file of the VIII Additional Small Cause Judge & XXXVIII ACMM, Member, MACT, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.)

1. This is a claimants' appeal seeking for enhancement of compensation awarded by the VIII Additional Small Causes Judge and the Motor Accident Claims Tribunal, Bengaluru, in MVC No.3210/2013 by its judgment and award dated 02.06.2015.

2. The parties herein shall be referred to the ranks as per the status before the Tribunal.

3. Brief facts of the case are as under:- It is the case of the claimants that the claimants are the legal heirs of one deceased - Abdul Wahab. It is their case that on 27.04.2013 at about 9.00 p.m., while the deceased - Abdul Wahab was crossing the Kanakapura Main Road along with two others near Muslim Burrial ground of Harchalli Town, at that time, one motorcycle bearing registration No.KA-03-EE-3646 came in a rash and negligent manner and dashed against him. Due to the impact of the accident, the said Abdul Wahab fell down and sustained severe head injuries. Thereafter, he was shifted to NIMHANS Hospital, Bengaluru, where he succumbed to death. It is the case of the claimants that deceased - Abdul Wahab was hale and healthy and was doing business and earning Rs.10,000/- per month. In view of the untimely death of the deceased, the claimants/appellants herein have suffered sever mental shock and agony and financial loss. According to them, the deceased was the only earning member in that family who was the bread earner for the entire family. The claimants state that the jurisdictional police, Harohalli police have registered a case in Crime No.229/2013 against the rider of the two wheeler.

4. On service of summons, respondent No.2 in the claim petition, owner of the vehicle did not appear and accordingly he was placed ex-parte.

5. Respondent No.1 - Insurance Company represented through their counsel filed their statement of objections taking a plea that the alleged accident was not caused by the motorcycle bearing registration No.KA-03-EE-3646 and they denied such accident having taken place. Respondent No.1 - Insurance Company denied the hospitalization of the deceased and involvement of the motorcycle in the accident. Further, respondent No.1 - Insurance Company had taken the plea that the deceased - Abdul Wahab was a pedestrian and he was hit by a four wheeler, while he was crossing the road and that he was under the influence of Alcohol. It is also pleaded by the Insurance Company before the Tribunal that there was no subsisting policy as on the date of the accident. It is further pleaded that the rider of the two wheeler/respondent No.2 did not have a valid driving licence and accordingly sought for dismissal of the claim petition absolving them from any liability.

6. On the basis of such statements, five issues were framed by the Tribunal. Claimant No.1 got herself examined as PW.1 and examined two witnesses as PWs.2 and 3 and got marked Exs.P1 to P8. Respondent No.1 - Insurance Company examined its Administrative Officer as RW.1 and got marked Exs.R1 to R4.

7. Based on the evidence and the material on record, the Tribunal came to the conclusion that the claimant Nos.1 and 6 are entitled to the compensation of Rs.2,21,000/- with interest at the rate of 6% per annum and partly allowed the claim petition in favour of the claimants Nos.1 and 6. The claim petition with regard to the claimant Nos.2 to 5 came to be dismissed. Further, the Tribunal fastened the entire liability on the owner of the vehicle/respondent No.2 and absolved the liability of the Insurance company/respondent No.1.

8. The claimants being aggrieved by the quantum of compensation have preferred this appeal for enhancement of compensation.

9. I have heard the learned counsel for the appellants and the learned counsel representing the Insurance Company/respondent No.1. Respondent No.2/owner of the two wheeler though served is unrepresented.

10. It is the contention of the learned counsel for the appellants that the Tribunal has erred in awarding the less compensation and has erroneously absolved the liability of respondent No.1. It is also contended by the learned counsel for the appellants that the deceased was aged about 60 years, but his age was taken as 70 years by the Tribunal, which is contrary to the material documents produced by the claimants. It is also the contention of the learned counsel for the appellants that the Tribunal has erred in imposing the contributory negligence of 30% on the deceased and further the income that is taken for deciding the compensation is also not considered in accordance to the avocation and business of the deceased. Learned counsel for the appellants submits that the Tribunal ought to have taken Rs.10,000/- as monthly income to calculate the loss of dependency to the claimants. He further contended that determination of 50% towards personal expenses is also erroneous. Accordingly, he sought for enhancement of the compensation.

11. Per contra, the learned counsel appearing for respondent No.1 - Insurance Company has strenuously contended that the alleged accident has not been caused by the motorcycle bearing registration No.KA- 03-EE-3646 and respondent No.2 is not involved in the said accident. Learned counsel further contends that respondent No.2 did not have a policy subsisting as on the date of the accident and accordingly there was no privity of contract between respondent Nos.1 and 2. So also, the learned counsel for respondent No.1 - Insurance Company relied on the Exhibits produced by them before the Tribunal, wherein Ex.R2 was shown to impress this Court that respondent No.2 and motorcycle was not involved in the accident.

12. However, before going into the merits of the case, the learned counsel for the appellants brings to the notice of this Court to the fact that there was an existing policy as on the date of the accident and produced the same across the bar. On perusal of the same, it is noticed that for motorcycle bearing registration No.KA-03-EE-3646 - TVS-FIERO, the validity of the Insurance Policy is from 16.12.2012 to 15.12.2013 and admittedly the date of accident in this present case is 27.04.2013. If that being so, the accident has happened during the validity of the Insurance Policy presently shown before this Court.

13. Therefore, this Court before going into the merits of the case and without analyzing any of the documents produced by the parties, feel it necessary to remand this matter to the Tribunal to facilitate and provide an opportunity to the claimants to rely on this document and adduce any evidence, if required. In view of the fact that the Tribunal has absolved the liability of the Insurance Company, it is open to the Insurance Company to take all necessary pleas, defence and contentions before the Tribunal on production of this document of insurance policy. Therefore, I am of the view that this matter requires re-consideration by the Tribunal and accordingly, I feel it necessary in the interest of justice to refer the matter to the Tribunal for re-consideration of the claim petition.

14. Accordingly, the appeal is partly allowed by remitting the matter to the VIII Additional Small Causes Judge and Motor Accidents Claims Tribunal, (SCCH -

5), Bengaluru, with the following directions:-

(i) The Tribunal is directed to re-consider the claim of the appellants/claimants with regard to the income that is to be calculated for the accident having occurred in the year 2013.

(ii) The Tribunal shall also consider the corre

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ct age of the deceased in order to arrive at the multiplier and the compensation. (iii) Parties are at liberty to adduce any other evidence and produce further documents, if any. 15. It is needless to mention that this Court has not expressed any opinion on the merits of the matter. All the contentions are left open for the Insurance Company to take all available pleas with regard to the involvement of the vehicle or with regard to the cogency and the validity of the policy, which is produced now across the bar. Having regard to the accident having taken place in the year 2013, the Tribunal shall dispose of the claim petition within an outer limit of six months. Both the parties to this proceeding i.e., claimants and the respondents shall appear before the Tribunal on 20.03.2020 without waiting for any further notice from the Tribunal.