Karnataka High Court
Smt Latha S W/O Srirama Somayaji vs M/S Sree Shakthi Transport on 8 November, 2012
Bench: N.K.Patil, B.S.Indrakala
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 8TH DAY OF NOVEMBER, 2012
:PRESENT:
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MRS.JUSTICE B.S.INDRAKALA
M.F.A. No. 9702 of 2008 (MV)
C/W. M.F.A. CROB. No.206 of 2009
AND MISC.CVL. NO.16912 of 2010
IN M.F.A. CROB. No.206 of 2009
IN M.F.A. No. 9702 of 2008 (MV)
Between:
1. Smt. Latha.S,
W/o.Srirama Somayaji,
Aged about 42 years,
Agriculturist and house hold work.
2. Sudarshana,
S/o. Srirama Somayaji,
Aged 19 years.
3. Divya Shree,
D/o. Srirama Somayaji,
Aged 15 years.
Appellants 2 & 3 are minors,
Rep. by mother natural guardian
Smt. Latha.S.
All are R/o. 2nd Cross, New Basavana Hole
Jamabagaru,
2
Sagara Town.
....Appellants
(By Sri. Rajaram.S, for Sri. K.M.Nataraj, Senior Counsel)
And:
1. M/s. Sree Shakthi Transport,
By its partners, B.H.Road,
Shimoga Town, Shimoga District.
Owner of the Vehicle
KA 14/97788 canter.
2. New India Assurance Co.,
By its Manager,
Mallappa Complex, B.H.Road,
Shimoga,
Policy No.670600/31/06/01/00000802
....Respondents
(By Sri. R.B.Deshpande, Advocate for R2;
Notice to R1 is dispensed with v/o. dated 01/12/2009)
********
This MFA is filed U/s. 173(1) of MV Act against the
Judgment and Award dated: 31/07/2008 passed in MVC No.
98/2007 on the file of the Civil Judge(Sr.Dn) and Member,
Additional Motor Accident Claims Tribunal, Sagar, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.
IN M.F.A. CROB. 206 OF 2009
AND MISC.CVL. NO.16912 of 2010
Between:
New India Assurance Co.,
Rep. by its Manager,
Mallappa Complex, B.H.Road,
Shimoga.
Now rep. by Manager,
New India Assurance Co.,
No.2B, Unity Building Annex,
3
Mission Road, Bangalore-27.
....Cross Objector
(Common)
(By Sri. R.B.Deshpande, Advocate)
And:
1. Smt. Latha, W/o. Srirama Somayaji,
Aged about 42 years,
R/at. 2nd Cross,
New Basavana Hole,
Jambagaru, Sagara Town.
2. Sudarshana,
S/o. Srirama Somayaji,
Age: 19 years,
R/at. 2nd Cross,
New Basavana Hole,
Jambagaru, Sagara Town.
3. Divyashree,
D/o. Srirama Somayaji,
Age: 15 years,
Since minor,
Rep. by her natural guardian/mother,
Respondent No.1, Smt. Latha,
W/o. Srirama Somayaji,
R/at. 2nd Cross, New Basavana Hole,
Jambagaru, Sagara Town.
4. Shivalinge Gowda,
S/o. kenyappa,
Age: 50 years,
Driver of vehicle KA 14/9988, Canter,
Holadammanakeri,
Bhadravathi Town,
Shimoga District.
5. M/s. Sree Shakthi Transport,
By its partners, B.H.Road,
4
Shimoga Town,
Shimoga District.
....Respondents
(Common)
(By Sri. Rajaram.S, for Sri. K.M. Nataraj, Senior Counsel For
R1 to 3;
Notice to R4 and 5 is dispensed with v/o dated 8/11/2012 )
********
This MFA.Crob in MFA 9702/2008 is filed U/o. 41
Rule 22 R/w Section 151 of CPC against the Judgment and
Award dated: 31/07/2008 passed in MVC No. 98/2007 on
the file of the Civil Judge(Sr.Dn) and Member, Additional
Motor Accident Claims Tribunal, Sagar, awarding
compensation of `3,31,500/- with interest @ 6% p.a. from
the date of petition till realization and to set aside the same.
This Misc.Cvl. is filed Under Order 41 Rule 5 of C.P.C.,
praying to stay the execution and operation of the judgment
and award dated 31/07/2008 passed by the Additional Civil
Judge(Sr.Dn), Member, Additional MACT, Sagar, in
M.V.C.No.98/2007, in the interest of justice.
This M.F.A. along with MFA.Crob and Misc.Cvl coming
on for Hearing this day, N.K. PATIL J., delivered the
following:
:J U D G M E N T:
The appeal by the claimants and the Cross Objection by the Cross objector-Insurer are arising out of the same judgment and award dated 31/07/2008 passed in MVC No. 98/2007 by the Civil Judge(Sr.Dn) and Member, Additional Motor Accident Claims 5 Tribunal, Sagar, (hereinafter referred to as ' Tribunal' for short).
2. The Tribunal by its judgment and award has awarded a sum of `3,31,500/- under different heads with interest at 6% per annum from the date of petition till realization, as against the claim of the claimants for a sum of `70,42,000/-, on account of the death of the deceased Sri. Srirama Somayaji, in the road traffic accident.
3. In brief, the facts of the case are:
The claimant No.1 is the wife, claimant Nos.2 and 3 are the minor children of deceased Sri. Srirama Somayaji. They have filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation on account of the death of the deceased in the road traffic accident, contending that, on 12.2.2007 at about 4.00 p.m. while the deceased was riding his Bajaj M. 80 bearing No.KA.15.E.1735 from his house on NH 206 on Shimoga- Sagar road, at that time, the driver of the goods vehicle bearing No.KA.14..9788 came in a rash and negligent 6 manner and dashed to his vehicle, due to which, he died on the spot .
4. It is the further case of the claimants that, deceased was aged about 45 years, hale and healthy prior to the accident and earning `30,000/- per month as he was running a canteen and from agriculture. and looking after the welfare of the family. Due to his untimely death they have suffered both socially and financially as the claimant No1. has lost her life partner at the young age husband and claimant Nos. 2 and 3 are deprived of their father's love and affection, security and guidance.
5. The said claim petition had come up for consideration before the Tribunal. The Tribunal, after appreciating the oral and documentary evidence and other material available on file, has allowed the claim petition in part and awarded the compensation of `3,31,500/- under different heads with interest at 6% p.a., from the date of petition till its realization, fixing the liability on the owner and Insurer of the offending vehicle. 7
6. Being aggrieved by the judgment and award passed by the Tribunal, the claimants have presented the appeal, for enhancement of compensation contending that the compensation awarded is inadequate and it requires to be enhanced and the Insurer has filed Cross objection contending that, the Tribunal has erred in not fixing contributory negligence on the part of the deceased.
7. We have heard the learned counsel appearing for the claimants and learned counsel appearing for the Cross objector at considerable length of time.
8. The submission of the learned counsel for the claimants is that, the Tribunal has erred in assessing the income of the deceased at `3,000/- per month contrary to the income of the deceased as he was earning `30,000/- per month at `1,000/- per day by running a hotel and from agriculture. He further submitted placing reliance on the judgment of the Apex Court in the case of Santosh Devi Vs. National 8 Insurance Company Limited and others reported in 2012 AIR SCW 2892 , another 30% is to be added towards future prospects while determining loss of dependency. Therefore, he submitted that, the impugned judgment and award passed by the Tribunal is liable to be modified.
9. Per contra, learned counsel for Insurer submitted that, the Tribunal has erred in not fixing the contributory negligence on the part of the deceased and therefore, the impugned judgment and award is liable to be modified.
10. After hearing the learned counsel for the appellants and after careful perusal of the material available on record at threadbare, including the impugned judgment and award passed by the Tribunal, the points that arise for our consideration is:
(i) Whether the Tribunal is justified in not fixing the contributory negligence on the part of the deceased?9
(ii) Whether the compensation awarded by the Tribunal is just and reasonable?
Re.Point Nos. 1 and 2:
11. The occurrence of the accident and the resultant death of the deceased is not in dispute. It is specific case of the claimants that, due to rash and negligent driving by the driver of the offending vehicle, deceased met with an accident and succumbed to the injuries and there is no fault on his part. It is in the evidence of RW1 that the accident had occurred due to rash and negligent driving by the deceased and it is not due to his fault. But the documentary evidence corroborates the version of PW1 that the accident did occurred due to the rash and negligent driving by the goods vehicle. Further, the Tribunal, after appreciation of the averments made in Ex.R1- an endorsement issued by the Police Authority stating that as on the date of the accident the driver of the offending vehicle was holding the valid DL has held that, except making a 10 oral submission, Insurer has not produced any documents or examined any witnesses to prove that there is contributory negligence on the part of the deceased. Therefore, we are of the considered view that, the Tribunal is justified in holding that the accident was caused due to the rash and negligent driving by the driver of the offending vehicle and there is no contributory negligence on the part of the deceased. The said finding recorded by the Tribunal is just and reasonable and interference by this Court is not called for.
12. Further it emerges that, it is the specific case of the claimants that deceased was earning `30,000/- per month by running a canteen and also from agriculture. But they have not produced any cogent evidence to prove that the deceased was earning that much income. However, the income of the deceased assessed by the Tribunal at `3,000/- per month is on lower side and it needs to be enhanced. Having regard 11 to the age, occupation and the year of accident, , we re- assess his income at `4,500/- per month. To that, 30% is to be added towards future prospects in view of the judgment of the Apex Court in the case of Santosh Devi Vs. National Insurance Company Limited and others reported in 2012 AIR SCW 2892 as rightly submitted by the learned counsel for appellants. If 30% (`1,350/-) is added to the monthly income of the deceased towards future prospects, his total monthly income comes to `5,850/- (`4,500/- + `1,350/-). Out of which, if 1/3rd (`1,950/-) is deducted towards the personal expenses of the deceased, his net income comes to `3,900/- per month. The appropriate Multiplier applicable to the case in hand is '14' instead of Multiplier of '13' adopted by the Tribunal, in view of the law laid down by the Apex Court in Sarla Verma's case reported in 2009 ACJ 1298, since the deceased was aged about 45 years at the time of his death. Therefore, we re-determine the loss of dependency at 12 `6,55,200/- (`3,900/- x 12 x 14) instead of `3,12,000/- awarded by the Tribunal and accordingly, it is awarded.
13. Having regard to the facts and circumstances of the case, we award a sum `45,000/- towards conventional heads such as, towards loss of consortium, towards loss of estate, towards loss of love and affection and towards transportation and funeral expenses. In all, the claimants are entitled to the total compensation of `7,00,200/-. There would be an enhancement of `3,68,700/- with interest at 6% p.a., from the date of petition till its realization.
14. For the foregoing reasons, the appeal filed by the claimants is allowed in part. The Cross objection filed by the Cross objector-Insurer is dismissed as devoid of merits. The impugned judgment and award dated 31/07/2008 passed in MVC No. 98/2007 by the Civil Judge(Sr.Dn) and Member, Additional Motor Accident Claims Tribunal, Sagar, is hereby modified, awarding the compensation of `3,68,700/- with interest at 6% p.a., 13 from the date of petition till its realization, in addition to the compensation awarded by the Tribunal.
The Insurer-Cross objector is directed to deposit the enhanced compensation of `3,68,700/- with interest at 6% p.a., from the date of petition till the date of realisation, within a period of three weeks from the date of receipt of a copy of this judgment and award.
Out of the enhanced compensation of `3,68,700/-, a sum of `2,00,000/- with proportionate interest shall be deposited in Fixed Deposit, in the name of claimant No.1 in any Nationalised or Scheduled Bank, for a period of ten yeas and renewable by another ten years, with liberty reserved to her to withdraw the interest accrued on it, periodically.
A sum of `50,000/- with proportionate interest shall be invested in Fixed Deposit in any Nationalized or Scheduled Bank, in the name of each of the claimant Nos. 2 and 3, till they attain 30 years and they are 14 entitled to withdraw the interest accrued on it, periodically.
The remaining sum of `68,700/- with proportionate interest shall be released in favour of the claimant No.1 immediately, on deposit by the cross objector.
The amount deposited by the Insurer shall be transmitted to the jurisdictional Claims Tribunal forthwith.
In view of the disposal of the matters, the prayer sought by the Insurer-Cross Objector in Misc.Cvl.16912/2010 in MFA CROB 206/2009 does not survive for consideration. Hence, it is dismissed as having become infructuous.
Office to draw the award, accordingly.
SD/-
JUDGE SD/-
JUDGE tsn*