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Judgment
S.N. Satyanarayana, J.—These two appeals are by the claimants and insurance company - second respondent in MVC. No. 1932/2009 on the file of MACT, Bengaluru.
Admittedly, MVC. No. 1932/2009 is filed by the brothers of deceased Susheelamma, who died in a road traffic accident involving Maruthi Zen bearing registration No. KA-02/N.3111. The fact that Susheelamma was sitting on the footpath in front of Anil Flour Mill, 4th Cross, Vittalnagar, Bengaluru, on 28.2.2009 at about 8.00 pm., is not in dispute. It is also not in dispute that she was hit by aforesaid Maruthi car, which was driven by one Kiran Kumar, against whom charge sheet is filed by the police. As a result of accident, Susheelamma died instantly. Thereafter, claim petition was filed by claimants claiming themselves to be the brothers of deceased Susheelamma and as such seeking compensation for her death in the aforesaid road traffic accident.
In the proceeding before Tribunal, the claimants arraigned only the owner and insurer of offending car as respondents. On entering appearance the owner of car, namely first respondent took-up a defence that he is not aware, who was driving the car at the relevant time and pleaded total ignorance, therefore, the insurance company will have to cover the liability. So far as police filing charge sheet against Kiran Kumar, who was driving the car for causing the death of Susheelamma, the owner - first respondent tried to sideline the said issue in the proceeding before tribunal. However, the insurance company took-up a specific plea that Kiran Kumar against whom charge sheet was filed was not having a valid driving licence and that was one of the charges leveled against him. It was specifically contended by them that the insurance company is not liable to answer the claim, inasmuch as it is not obliged to indemnify the liability of owner since he had entrusted the vehicle to a person who was not having a valid driving licence. It was also contended by insurance company that claimants are not the competent persons to seek compensation for the reason that deceased was a married lady living separately, she was not depending on claimants and there was no relationship between them except the blood relationship of brother and sister, therefore, they are not entitled to claim compensation.
In the proceeding before Tribunal, the following issues were framed:
"1. Whether the petitioner proves that the deceased Mrs. Susheelamma w/o Nanjundappa succumbed to the injuries sustained in the road traffic accident that took place on 28.2.2009 at about 08.00 near Anil Flour Mill, 4th Cross, Vittal Nagar, Bangalore, due to actionable negligence of the driver of Maruti Zen bearing registration No. KA-02/N.3111?
Whether the petitioners prove they are LR''s of the deceased?
Whether the petitioner proves that they are entitled for compensation? If so, what amount and from whom?
What order or award?"
Thereafter, the parties were called upon to adduce evidence. In support of claimants, one of the claimants adduced evidence as PW. 1 and they also examined a person, who was eye-witness to the accident as P.W. 2. They marked only the police documents to prove the accident and death of Susheelamma and no documents were produced to demonstrate the relationship of brother and sister between themselves and deceased. Further, no documents were produced to substantiate that Susheelamma was living with them and they were taking care of her or in the alternative to show that she had any independent avocation or income due to which a loss is suffered to the family and as legal representatives they are entitled to compensation. On behalf of respondents, the insurance company examined one of it''s officer as RW. 1 and the owner of vehicle adduced evidence as R.W. 2 to substantiate that on the basis of driving licence he was holding as on the date of accident, the liability to pay compensation should be fixed on the insurance company. Even again in his evidence, he tried to sidetrack the issue regarding how Kiran Kumar came in possession of the car and how accident was caused. He tried to plead that he is unaware whether driver of vehicle was having a valid driving licence. In the nutshell, his evidence is only an attempt to escape the liability to pay compensation to be awarded to the claimants.
Based on the pleadings, oral and documentary evidence available on record, the Tribunal proceeded to answer issue No. 1 regarding death of Susheelamma in the aforesaid accident involving car belonging to first respondent in the affirmative. So far as claimants right to seek compensation was held partly in affirmative and so also their entitlement to receive compensation in a sum of Rs. 10,00,000/- was also allowed partly in affirmative. Consequently, claim petition is allowed awarding compensation in a sum of Rs. 1,41,000/- and saddled the liability to pay compensation on the owner as well as insurance company. Being aggrieved by the finding of tribunal in fastening liability to pay compensation on second respondent insurance company it has come up in MFA. No. 4714/2012, whereas claimants before Tribunal, who claim themselves to be brothers of deceased Susheelamma have come up in MFA. No. 7677/2012 seeking enhancement of compensation.
Heard the learned counsel appearing for the parties in both the appeals. Perused the pleadings, oral and documentary evidence available on record and the finding of tribunal in the judgment impugned as well as grounds of appeals. On going through the same, it is clearly seen that judgment and award rendered by the tribunal is erroneous for more than one reason. In the first place, admittedly, the charge sheet is filed against Kiran Kumar, who is not present before the Court either as a party or witness and the documents at Exs. P1 and P2 would clearly indicate that complaint is registered against him and charge sheet is filed against said Kiran Kumar, who was admittedly not having a valid driving licence to drive the kind of vehicle which he was driving at the relevant time of accident. When that being the case it is erroneous on the part of tribunal to accept that insurance company is liable to indemnify the liability to be fastened on the owner for entrusting the vehicle to a person, who did not have a valid driving licence. Hence, the same is required to be set aside, consequently, the appeal in MFA. No. 4714/2012 filed by insurance company is allowed and the judgment and award fastening liability on insurance company is set aside.
Now coming to MFA. No. 7677/2012 this Court will have to ascertain whether claimants prima facie establish that they are the brothers of deceased Susheelamma. Though there is a pleading to that effect, it is self serving and there is no documentary evidence to substantiate the same. Infact, the insurance company as well as the owner of offending vehicle both have taken the same defence and also adduced evidence by denying the averment that claimants are the brothers of deceased Susheelamma; she was a vegetable vendor earning Rs. 10,000/- pm., and she was contributing the same to the family of claimants to maintain themselves. The said denial is also supported by the evidence of claimants particularly that of P.W. 1 - M. Basavaraju, who in his cross-examination as P.W. 1 would clearly admit that his sister was not residing with them, the relevant portion read as under:
"It is true to say that the deceased alone was residing separately by the side of our house belongs to T. Boraiah"
"The petitioner No. 1 is residing in Vijayanagar and petitioner No. 2 is residing in Ajadnagar Vijayangar and Ajadnagar address is not given in the cause title."
This is the evidence of claimants themselves regarding residential status of claimants but in the cause title to the claim petition it is shown as if all the brothers and deceased Susheelamma are living together, however in the evidence in difference places they have stated different things. In the nutshell, the over all appreciation of evidence clearly indicates that deceased Susheelamma was a married lady living along with her husband and after the death of her husband she was living separately. Indeed, there is nothing on record to show that at any point of time deceased either depending on the so-called brothers or residing with them. Further there is nothing on record to demonstrate that they are the blood brothers of deceased except the self serving pleading in the petition and there is also no iota of evidence available on record to demonstrate the relationship between claimants and deceased Susheelamma. Even assuming that they are the brothers, they cannot be legal heirs when she is married and is living separately in her husband''s house. In that view of the matter, even for the sake of claiming compensation as legal heirs and entitled to estate, there is no material on record. Therefore, MFA. 7677/2012 filed by the claimants is dismissed holding that claimants are not entitled to enhancement of compensation but also the compensation, which is wrongfully awarded by he tribunal in a sum of Rs. 1,41,000/-. In that view of the matter, the entire judgment and award dated 26.11.2010 passed in MVC. No. 1932/2009 on the file of MACT, Bengaluru, is set aside.
In view of the appeal of insurance company being allowed, the amount in deposit is ordered to be released in favour of insurance company.