Smt Suhasini W/O Bahubali Boraganve vs. Shri Hanumanth S/O Parshuram Hotakar

Parties herein are referred to as per their rank before the Tribunal for the sake of convenience.

In the claim petition, the following facts are presented: On the 3rd of October 2021, Mr. Bhushan Bahubali Boraganve and Mr. Arihant Dhareppa Biradar were traveling on motorcycle No.KA-23/EN-8582 from Ugarkhurd to Mangasuli. Mr. Bhushan Bahubali Boraganve was the pillion rider, while Mr. Arihant Biradar was operating the motorcycle in a cautious manner, abiding by all traffic rules and regulations. When they reached a location near the accident site, specifically near Aradhya Welding Workshop opposite to Ugar Railway Station, at approximately 22:00 hours, a TATA Intra Goods Vehicle with registration No.KA-48/A-1059 approached from the opposite direction at a high speed and in a reckless and negligent manner, thereby endangering human lives. The driver of the NC: 2023:KHC-D:10700-DB TATA Intra Goods Vehicle lost control of the vehicle and collided with the motorcycle, resulting in the accident. Due to the impact of the collision, Mr.Bhushan Bahubali Boraganve suffered severe injuries on the right side of his head, right leg, and other vital parts of his body. Following the accident, he was admitted as an indoor patient to Bharati Vidhyapeet Hospital, Sangali. Unfortunately, despite medical treatment, he succumbed to his injuries on the 4th of October 2021 while still under treatment at the hospital. Subsequently, a postmortem examination was conducted on the deceased, and his body was handed over to the petitioners. The petitioners arranged and conducted the funeral and last rites, incurring expenses of Rs.50,000/-, which included the transportation of the deceased's body. Additionally, they spent more than Rs.1,00,000/- on medical expenses and transportation charges, among other costs. Before the accident, the deceased was a healthy individual, approximately 23 years old, engaged in agriculture on his field and cultivating commercial crops, earning an annual income of over Rs.2,00,000/-. Furthermore, he was involved in the transport business and held a valid driver's license. The untimely death of the deceased has caused NC: 2023:KHC-D:10700-DB immense mental agony, pain, and suffering to the petitioners, casting a shadow of uncertainty and misery over their entire future. Therefore, the petitioners contend that respondent No.1 (the owner of the vehicle) and respondent No.2 (the insurer) are jointly and severally liable to provide compensation. Based on these grounds, the petitioners request the court to grant their petition.

In pursuance of issuance of notice, respondent No.1 remained absent and respondent No.2 entered appearance and resisted the claim of the petitioners by filing objection statement, which is briefly stated as below:-

It is admitted that the TATA Intra Goods Vehicle bearing No. KA-48/A-1059 was insured with respondent No. 2 at the time of the accident. However, the liability of respondent No. 2 to pay any compensation to the petitioners is subject to the strict terms and conditions of the insurance policy. Respondent No. 2 seeks protection under Sections 157 and 149 of the MV Act. Notably, respondent No. 1 has not provided the particulars of the insurance policy, as required under Section 134(c) of the MV Act. NC: 2023:KHC-D:10700-DB

The rider of the motorcycle No.KA-23/EL-8582 was reportedly operating the motorcycle in a rash and negligent manner, without adhering to traffic rules and regulations. Additionally, the motorcycle was not insured, and the rider did not possess a valid and effective driving license. Hence, it is contended that the inclusion of the TATA Intra Goods Vehicle bearing No. KA-48/A-1059 in this case is a result of collusion with respondent No.

Based on the rival pleadings of the parties, the Tribunal has framed the following issues :

To prove the case of petitioners, petitioner no.1 examined as P.W.1 and another witness was examined as P.W.2 and 18 documents were marked as Ex.P.1 to 18. After closure of petitioners’ side evidence, the Senior Assistant in the Legal Department of respondent No.2 was examined as R.W.1 and got marked Ex.R.1 to 9 are marked on the side of the respondent No.2. 9. After hearing the argument of both sides, the Tribunal has given its findings to the above issues are as below:- Issue No.1 : In the affirmative Issue No. 2 : Partly in the affirmative Issue No. 3 : As per the final order,

In view of the above said findings, the Tribunal has passed the impugned Judgment and Award awarding compensation of Rs.38,58,065/- with interest at the rate of 6% per annum from the date of filing of petition till its realization.

Being aggrieved by the said judgment and award, claimants have preferred the appeal in MFA.No.102157/2023 NC: 2023:KHC-D:10700-DB for enhancement of compensation and the Insurance Company has also preferred the appeal in MFA.No.100449/2023 questioning the liability and quantum of compensation. SUBMISSIONS ON BEHALF OF THE INSURANCE COMPANY

The appellant contends that the Tribunal committed errors both in terms of law and facts. They specifically refer to two pieces of evidence: Ex.P.11, which is the record of rights, indicating that the lands were owned by the deceased's grandfather and were part of a joint family, implying that the income from these lands would persist even after the deceased's passing. Additionally, they point to Ex.P.15, the R.C. extract, which shows that the deceased possessed a TATA Ace Goods vehicle used for transportation, generating a monthly income of Rs.48,000/- from this transport business. The appellant argues that the Tribunal, in the absence of concrete income proof, income tax returns, or a bank passbook, incorrectly assessed the deceased's monthly income at Rs.25,000/-, a figure they consider to be overstated. Instead, they contend that the Tribunal should have reasonably estimated the notional income of the deceased at Rs.14,250/- per month, rather than Rs.25,000/-. Moreover, the appellant NC: 2023:KHC-D:10700-DB asserts that on the date of the accident, the driver of the offending vehicle held an LMV (non-transport) license, whereas the goods vehicle bearing No. KA-48/A-1059 was classified as a transport vehicle. They argue that there was no endorsement on the driver's license permitting them to operate a transport vehicle, and the driver did not possess a valid and effective driving license for such vehicles. Additionally, they claim that the owner of the vehicle was aware that the driver lacked a valid and effective driving license on the date of the accident, yet the vehicle was still entrusted to the driver. Consequently, the appellant contends that the owner of the vehicle violated the terms and conditions of the insurance policy, rendering the Insurance Company not liable to pay compensation. In light of these arguments, the appellant requests that their appeal be granted, and the appeal filed by the claimants be dismissed. SUBMISSION OF LEARNED COUNSEL FOR CLAIMANTS.

Learned counsel for the claimants submits that the Tribunal has rightly considered the fact that the accident occurred due to rash and negligent driving of the driver of TATA Intra Goods bearing No.KA-48/A-1059. The charge sheet was filed against the driver of TATA Intra Goods bearing No.KA- NC: 2023:KHC-D:10700-DB 48/A-1059 as per Ex.P.8 and same has not been disputed. Respondents have not led any evidence to show that the accident in question has occurred due to the negligent act of rider of the motorcycle bearing No.KA-23/EN-8582. Further, he submitted that the Tribunal has not awarded the compensation in accordance with law and also the decision of the Hon’ble Apex Court in the case of National Insurance Company Limited v. Pranay Sethi and Others, reported in AIR 2017 SC 5157. On all these grounds, sought for allowing of the appeal and dismissing of the appeal filed by the Insurance Company.

Having heard the arguments on both sides and on perusal of the material on record, the following points would arise for our consideration: (1) Whether the appellant-Insurance Company has made out a ground to interfere with the impugned judgment and award as to the liability of the Insurance Company and also the quantum of compensation is concerned? (2) Whether the appellant-claimants are entitled for enhancement of compensation? (3) What order or award? NC: 2023:KHC-D:10700-DB

Our answers to the above points are as under :

We have thoroughly reviewed the evidence presented in this case. P.W.1, Smt. Suhasini, the wife of Bahubali Boraganve, has reaffirmed the statements and claims made in the petition concerning the accident and the deceased's earnings. She has also provided various documents as evidence, marked as Ex.P.1 to Ex.P.18. 17. Additionally, P.W.2, Kumari Veera Venkata Satya Sunil, the son of Kanumuri Prakash Rao, who serves as the Project Incharge at BSR Infratech India Limited, Project-KRDCL-PKGII Kudachi site, has testified regarding the contents of Ex.P.9, Ex.P.17, and Ex.P.18.These testimonies and documents will play a crucial role in the determination of the case and the assessment of compensation.

Upon a thorough examination of the documentary evidence provided by the petitioners, it is NC: 2023:KHC-D:10700-DB evident that a case was registered by Kagawad Police in Crime No.162/2021 based on a complaint filed by Sri Praveen Babu Gurav. This case was registered against the driver of the TATA Intra Goods Vehicle bearing No.KA- 48/A-1059 for the commission of offenses under Sections 279, 338, and 304A of the IPC (Indian Penal Code). The police subsequently conducted various investigative procedures, including: Rushing to the accident site and conducting a spot panchanama (inspection) in the presence of witnesses; Preparing a rough sketch of the accident site; Taking photographs of the accident site ; conducting an inquest panchanama; Obtaining a Motor Vehicle Inspector (MVI) report; Obtaining a postmortem report; Recording statements of witnesses. Following this thorough investigation, the Investigating Officer submitted a charge sheet against the driver of the TATA Intra Goods Vehicle bearing No.KA-48/A-1059 for the aforementioned offenses. During cross-examination, the respondents did not raise any objections or questions regarding the charge sheet submitted by the Investigating Officer. On the NC: 2023:KHC-D:10700-DB contrary, R.W.1 (presumably a witness for the respondents) clearly admitted in his evidence that the Investigating Officer did not submit a charge sheet against the driver of the offending vehicle under Section 3 read with Section 181 of the Motor Vehicles Act (M.V. Act). It's worth noting that the un-laden weight of the TATA Intra Goods Vehicle bearing No.KA-48/A-1059 falls within the category of a light motor vehicle (LMV). Furthermore, R.W.1 admitted that the driver of the offending vehicle possessed an LMV driving license at the time of the accident. Even in his examination-in-chief, R.W.1 did not mention anything about the charge sheet submitted by the Investigating Officer. Considering both the oral and documentary evidence presented by both parties, the Tribunal has rightly concluded that the accident occurred due to the rash and negligent act on the part of the driver of the offending vehicle. In terms of the liability of the Insurance Company, the Tribunal correctly relied on the decision of the Hon'ble Apex Court in the case of Mukund Dewangan v. Oriental Insurance Company Limited, NC: 2023:KHC-D:10700-DB reported in AIR 2017 SC 3668. According to this decision, the Tribunal found that the driver of the offending vehicle had a valid and effective driving license at the time of the accident.

On re-appreciation, re-examination of the entire evidence on record, we do not find any illegality/legal infirmities in the impugned judgment and award as to the finding of the Tribunal on point No.1 as well as liability of the Insurance Company is concerned. Hence, we answer point No.1 in negative.

Point No.2 : With regard to quantum of compensation, in paragraph Nos.14 to 24, the Tribunal has observed as under : “(14) ISSUE NO.2:- PW-1 has deposed that prior to death her son was hale and healthy, he was aged 23 years. She has deposed that her son was doing agriculture in his field and growing commercial crops and earning more than Rs.2,00,000/- p.a.. Apart from the same, her son was doing Transport business and he was holding valid driving licence. She deposed her son owned Tata Ace Goods vehicle No.KA-23/B-4103. Her son had taken one Tractor bearing No.KA-23/TC-7628 owned by Smt.Surekha Patil was taken on lease basis. She has deposed that both NC: 2023:KHC-D:10700-DB these vehicles were hired by her deceased son to BSR Infratech India Ltd, Project KRDCL PKGII Kudachi Site for transportation of materials from base camp to bridge site and thereby earning Rs.48,000/- p.m. from Transport business. She has produced and got marked document Ex.P.9 document issued by BSR Infratech India Limited for having taken vehicles from deceased on hire basis. Ex.P.10 is the D.L. of deceased Bhushan which would go to show that he was holding valid driving licence to drive motor cycle and LMV. Ex.P.11 are 5 RTCs belonging to Sy. No.101/3, 108/1D, 56/1, 56/2, 108/1J which are standing in the name of Babu Boraganvi. P.W.1 during her cross- examination has deposed these properties standing in the name of grand father of deceased, Ex.P.12 is the notarised attestedof Aadhar Card of husband of P.W.1, Ex.P.13 is the notarised attestedof Aadhar Card of P.W.1, and Ex.P.15 are the R.C. Particulars of TATA Ace bearing No.KA-23/B-4103, Ex.P.16 is the agreement for having taken tractor on lease by the deceased. These two documents ExP.9 and 16 are marked subject to objection. (15) P.W.2 is the Project In charge working in BSR Infratech India Limited KRDCL PKG-II Kudachi site. P.W.2 has deposed that he knows deceased Bhushan who has hired TATA Ace Goods Vehicle bearing No.KA-23/B-4103 to their company for transportation of materials to work site project from 1.4.2021 on monthly rent of Rs.25,000/- till his death in the accident. He also deposed that deceased Bhushan has also hired one tractor bearing NO.KA-23/TC7628 to their company for transportation of NC: 2023:KHC-D:10700-DB materials to Kudachi cite project from 1.9.2021 on monthly rent of Rs.26,000/- till his death in the accident. He has deposed that they have deducted SGST, CGST and TDS Before crediting the amount to Bhushan Boraganve. He has identified the document Ex.P.9 issued by their company. He has produced document Ex.P.17 statement for having deposited amount to the bank account of Bhushan B. Boraganve. He has also produced xerox copy of his identity card marked at Ex.P.

During the course of his cross examination by the learned counsel for the respondent No.2 P.W.2 has admitted the suggestion that he has not obtained authorization letter from BSR Infratech India Limited to give evidence on behalf of the company. He has deposed that he orally informed the company’s director about giving evidence before the court. He has deposed tat both the vehicles belongs i.e. TATA Ace goods vehicle no.KA-23/B-4103 and tractor no.KA-23/TC-7622 are belonging to deceased. It appears that P.W.2 do not know who was the actual owner of tractor bearing No.KA-23/TC7628. According to the petitioners, deceased has taken this tractor from one Surekha Patil on lease. The petitioners have produced document Ex.P.16 agreement entered into between Smt.Surekha Patil and the deceased wherein it is mentioned that deceased who had taken tractor on lease for monthly rent of Rs.13,000/-. No doubt on perusal of document Ex.P.9, it would go to show that deceased was hired TATA Ace goods vehicle No.KA-23/B-4103 on monthly rent of Rs.25,000/- and also hired tractor bearing No.KA-23/TC-7628 on monthly rent of Rs.26,000/- to BSR Infra India Limited KRDCL, PKG-II Kudachi Site Project NC: 2023:KHC-D:10700-DB from 1.4.2021. P.W.2 deposed that said hire was made on contract basis for 6 months. That means income derived from the said hire of vehicle is only temporary in nature. It is not a permanent regular income. The document Ex.P.9 for having taken hire of vehicle by Bahubali B. Borganvi cannot be doubted. But while considering the income of deceased we cannot take into consideration of the entire amount of rent as income for calculation of income of the deceased. The oral evidence of P.W.1 and 2 and the Ex.P.15 would go to show that deceased Bhushan was the owner of TATA Ace goods vehicle No.KA-23/B- 4103. He has also taken tractor bearing No.KA-23/TC- 7628 from Surekha S. Patil on lease. Since BSR Infratech India Ltd has taken these two vehicles on hire only for 6 months, hence, the court cannot hold that total income of deceased at Rs.48,000/- per month from transport business. During the course of cross-examination, P.W.1 has deposed that they have sold TATA Ace bearing No.KA- 23/B-4103 after the death of her son. We cannot presume that after the completion of lease period, the deceased would earn the same income from the vehicles. Admittedly the RTCs Ex.P.11 are standing in the name of Babu Boraganvi who is the grandfather of deceased. It is not believable that deceased was growing commercial crops and earning Rs.2,00,000/- per year from agriculture. Considering the fact that the deceased had owned TATA Ace goods vehicle No.KA-23/B-4103 and considering the fact that he has taken tractor No.KA- 23/TC-7628 on rent from its owner, this Tribunal can assess the income of deceased as Rs.25,000/- per month. NC: 2023:KHC-D:10700-DB (16) The petitioners have produced the document Ex.P.10 D.L. of deceased wherein his date of birth is shown as 19.8.1998. This accident occurred on 3.10.2021. If the date mentioned in Ex.P.10 is taken into consideration, it can be safely stated that as on the date of death, the deceased was aged 23 years. Hence, this Tribunal has assessed the age of deceased as 23 years. While considering the income of deceased this Tribunal assessed the income of deceased as Rs.25,000/-per month from agriculture and transport business. (17) As per the decision of Hon'ble Supreme Court in the reported in [2017] 16 SCC 680 if the deceased is self employed, aged less then 40 years, then 40% is required to be added towards future prospects. (18) The learned counsel for the petitioners relied on the judgment reported in 2018 [2] KLJ 344 [DB], wherein 30% is added towards future prospects. In view of the judgment of the Hon'ble Supreme Court, 40% should be added towards future prospects. If we calculate 40% of Rs.25,000/-, it comes to Rs.10,000/-. If the same is added to notional income of Rs.25,000/-, it comes to Rs.35,000/- [Rs.25,000+10,000].”

After a careful re-examination and re-evaluation of the evidence on record, we have reached the considered opinion that the Tribunal has correctly understood and assessed the evidence and facts presented. We have not identified any legal shortcomings in the compensation awarded by the NC: 2023:KHC-D:10700-DB Tribunal. Consequently, the appellant-claimants have not presented any material that would justify an increase in the compensation previously awarded by the Tribunal. The Tribunal's compensation award is in alignment with legal principles, factual considerations, and the guidelines issued by the Hon'ble Apex Court. Therefore, we also answer point No. 2 in the negative.

For the aforesaid reasons and discussions, we proceed to pass the following : O R D E R (i) Both appeals are dismissed. (ii) Amount deposited in MFA.No.100449/2023 shall be transmitted to the concerned Tribunal for with for disbursement of the compensation. (iii) Draw decree accordingly. (iv) Send back lower court records forth with. JUDGE JUDGE