Karnataka High Court
Rajamma W/O Late Manikappa Koora And Anr vs Mallanna @ Mallikarjun S/O Chandrappa & ... on 13 January, 2020
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF JANUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
MFA NO.32815/2013 (MV)
BETWEEN:
1. Rajamma W/o Late Manikappa Koora
Age: 55 Years, Occ: Household
R/o Devarapaslodi, Doulatabad
Now at-Near Bhavani Temple Konded
Galli, Brahmpur, Gulbarga - 585101
2. Srishail S/o Late Manikappa Koora
Age: 23 Years, Occ: Nil
R/o Devarapaslodi, Doulatabad
Now at-Near Bhavani Temple, Konded
Galli, Bramhapur Gulbarga - 585101
... Appellants
(By Sri R. V. Nadagouda, Advocate)
AND:
1. Mallanna @ Mallikarjun S/o Chandrappa Eeligera
Age: 31 Years, Occ: Driver
R/o Heeranoor, Tq: & Dist: Yadgir - 585101
2. Ramesh Babu T. S/o Ramanna
Age: 43 Years, Occ: Business
R/o Yerraballi Chandragiri
Pulivendala, Dist: Kadapa (A.P.) - 534101
2
3. The Manager
Cholamandalam M.S. General Insurance Co. Ltd.
135/5, 15th Cross, 2nd floor, J. P. Nagar
3rd Phase, Bangalore - 560078
... Respondents
(Sri Sudheer Kulkarni, Advocate for R2;
Sri S. S. Aspalli, Advocate for R3;
V/o dated 21.07.2018 notice to R1 is dispensed with)
This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act praying to allow this
appeal and modify the judgment and award dated
26.06.2012 passed in MVC No.577/2010 by the II
Additional Senior Civil Judge and MACT at Gulbarga by
enhancing the compensation from Rs.3,12,000/- its 70%
as Rs.2,18,400/- with 6% interest to Rs.16,15,000/- with
12% interest and set aside the judgment and award dated
26.06.2012 passed in MVC No.577/2010 by the II
Additional Senior Civil Judge and MACT at Gulbarga and
direct respondent No.3 - insurance company to pay the
entire compensation to the claimant.
This appeal coming on for further hearing this day,
the Court delivered the following:
JUDGMENT
This appeal filed by claimants is directed against the impugned judgment and award dated 26.06.2012 passed by the learned II Additional Senior Civil Judge & MACT, Gulbarga (for short 'the Tribunal'), in M.V.C.No.577/2010, whereby the Tribunal partly allowed the claim petition filed 3 by the appellants thereby awarding a sum of Rs.2,18,400/- with interest at the rate of 6% per annum from the date of the claim petition till the date of deposit of the award amount.
2. It is not in dispute that the accident in question involved two vehicles i.e., motorcycle bearing No.AF5G61S21637 and tanker bearing registration No.AP- 04-W-4495. The claimants are the wife and son of deceased Manikappa Koora, who died in the accident. It is also not in dispute that the deceased Manikappa was riding the aforesaid motorcycle along with two pillion riders when the accident occurred. By the impugned judgment and award, the Tribunal came to the conclusion that there was contributory negligence on the part of the deceased Manikappa to an extent of 30%. Accordingly, quantifying the compensation of Rs.3,12,000/- the Tribunal came to the conclusion that in view of the contributory negligence to an extent of 30% on the part of the deceased Manikappa, the claimants are entitled to 70% of the 4 compensation i.e., a sum of Rs.2,18,400/- out of a sum of Rs.3,12,000/-. Aggrieved by the finding of the Tribunal that the deceased Manikappa was guilty of contributory negligence as well as aggrieved by the quantum of compensation awarded by the Tribunal, the claimants are before this Court in this present appeal.
3. I have heard the learned counsel for the claimants as well as the insurance company and given my anxious consideration to the rival submissions and perused the material on record.
4. The learned counsel for the claimants submits that the finding of the Tribunal that the deceased Manikappa was guilty of contributory negligence to an extent of 30% is wholly erroneous and unsound, inasmuch as the Tribunal came to the said conclusion on the sole ground that the deceased was carrying two persons as pillion riders, which was impermissible in law. The Tribunal also committed an error in coming to the conclusion that since the deceased was carrying two adult 5 persons as pillion riders, which is against the Motor Vehicles Rules, the deceased also contributed negligence towards the accident to an extent of 30% and consequently, the claimants are entitled to compensation only to an extent of 70%.
5. Learned counsel for the claimants placed reliance on the decision of this Court in the case of Santosh S/o Bhimarao Giram Vs. Bhagwat S/o Rohidas Landage and Another in MFA No.201778/2015 dated 09.04.2018, wherein this Court following the earlier judgment of the Division Bench in the case of Divisional Manager, National Insurance Co. Ltd., vs Smt. Sunanda and others reported in 2011 Kant. M.A.C.116 (Kant) came to the conclusion that in the absence of any other evidence to show that the rider of the vehicle was guilty of contributory negligence, mere violation of a statutory provision by carrying excessive number of pillion riders by itself would not be sufficient to come to the conclusion that the rider of the vehicle was 6 guilty of contributory negligence. In this context, he invites my attention to the ratio passed in the said judgment as under:
"17. This Court while considering the provisions of Sections 168 and 147 in the case of Divisional Controller, K.S.R.T.C. Urban Division, Bannimatnap, Mysore /vs/ Mahadevamma and others, reported in 2011 (4) AIR KAR.R.91, at Para No.5 held that;
"Perusal of the sketch and the evidence shows that the bus has moved on its right side, undoubtedly, the deceased were on the left side, the bus had a space on its left side, despite that, it has moved on the right side and caused an accident. Even if there is space, the bus driver had taken little care, he would have avoided the accident. May be, three persons going on motor bike, is violation of the permit or it may be an offence, however, they are third parties, the claimants cannot be denied of compensation. Merely because the deceased were three in number, it cannot be said that they were negligent. They might have violated the law, but negligence is concerned, the evidence shows that the driver of the bus 7 was negligent in driving the bus. In my opinion, the finding given by the Tribunal as regard to the negligence is concerned, it is based on proper appreciation of the evidence".
18. The Division Bench of this Court in the case of Divisional Manager, National Insurance Company Limited /vs/ Smt.Sunanda and others reported in 2011 Kant. M.A.C.116 (Kant) at Para No.12 and 13 held as under;
Para No.12: The learned counsel for the appellant pointed out that Section 128 of the Motor Vehicles Act mandates that only two persons can be on the motorcycle. Admittedly in this case, apart from the driver, there were two pillion riders. Therefore, there is violation of statutory provision. A Division Bench of this Court in the case of Sri.P.S.Somaiah and another v. The Director, Bangalore Dairy and others, reported in 2003 (3) KCCR 1997 has held that non-compliance of safety measurers for driver and pillion riders and traffic rules amount to negligence and reckless operations and the drivers of two wheelers are liable for contributory negligence up to 60%. A learned 8 single Judge of the Andhra Pradesh High Court in the case of United India Insurance Company Ltd., v. Anjaiah and others, reported in AIR 2004 NOC 339 (AP) has held that when there was triple riding on scooter which is prohibited, even in the absence of independent evidence adduced by insurer that accident had occurred due to triple riding, it could be reasonably presumed that rider of scooter was discomforted by allowing two pillion riders and thus contributed in causing accident. Culpability in causing accident is therefore, fixed at 75% on the lorry driver and 25% on the scooterist in the said case.
Para No.13: We have gone through the aforesaid two judgments. They are in the nature of observations. The aforesaid observations were made in the context and in the facts of that particular case and no law as such is laid down. If the violation of a statutory rule has resulted in the accident, certainly we can hold the person who violated the rule as also having contributed to the accident. But mere violation of a statutory provision cannot lead to an inference that the accident was on 9 account of the negligence. Something more is to be done. Evidence has to be adduced in a particular case that the violation of a statutory rule resulted in negligence which in turn resulted in the accident, then proportionate contributory negligence could be attributed to the persons who violated the statutory provisions. Ultimately it depends on the facts of each case. In the instant case, no doubt apart from the driver of the motorcycle, there were two pillion riders. It is in violation of Section 128. But there is nothing on record to suggest that just because three persons were on the motorcycle, that was a cause for the accident to any extent whatsoever. In the absence of any such evidence, mere contravention of a statutory provision cannot be held to have resulted in the accident. Therefore, on that score alone negligence cannot be attributed to the violator of the law. It is not possible to hold that merely because there were three persons in the vehicle, that by itself is negligent act so as to foist the liability on the violators of the law. In that view of the matter, we do not find any substance in this contention.
10
19. In view of the aforesaid reasons the impugned judgment and award passed by the Tribunal fixing the contributory negligence at 40% on the claimant is erroneous and contrary to the material on record."
6. Secondly, learned counsel submits that having regard to the Lok Adalath guidelines, the Tribunal committed an error in fixing notional income only at Rs.4,000/- per month instead of Rs.5,500/- per month since the accident occurred in the year 2010. It is also contended that the Tribunal committed an error in not adding 40% towards 'loss of future prospects' as per the judgment of the Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others (2017) 16 SCC 680, since the deceased was aged about 33 years as on the date of accident. It is also contended that since the deceased was bachelor, his age ought to have been taken for the purpose of finding out the multiplier as against the age of the mother and the Tribunal committed an error in this regard also. Lastly, he contended that the compensation awarded under 11 conventional heads is also inadequate and the same requires enhancement.
7. Per contra, learned counsel for the insurance company submits that Section 128 of the Karnataka Motor Vehicles Act prohibits the rider of a motorcycle from taking more than one pillion rider on it. It is therefore contended that in the light of the undisputed fact that the deceased Manikappa was carrying two persons in addition to himself as admitted by PW.1 in her cross-examination, the Tribunal was fully justified in coming to the conclusion that the deceased Manikappa was guilty to an extent of 30% by was of contributory negligence. Insofar as the judgment relied upon by the learned counsel for the appellants is concerned, learned counsel for the respondent - insurance company placed reliance on the decision of the Division Bench of this Court in the case of Sri P.S.Somaiah & Ors. vs. The Director, Bangalore Dairy and Others reported in 2004 (1) KarLJ 498, in order to contend that carrying more than two persons on a two wheeler is a clear breach 12 of safety measures prescribed and directed the concerned authorities to take necessary steps to enforce safety measures. It is contended by the learned counsel for the insurance company that in that case the Division Bench came to the conclusion that since the motorcycle was carrying three minors in addition to rider, the rider of the motorcycle was held to be guilty of contributor negligence to an extent of 40%. It is therefore, contended that in the face of the undisputed fact that the deceased Manikappa was carrying one additional person on the motorcycle when he met with an accident, Manikappa was guilty of contributory negligence to an extent of 30% that has correctly held by the Tribunal. Insofar the quantum of compensation is concerned, learned counsel for the insurance company would support the impugned judgment and award.
8. I have given my anxious consideration to the rival contentions and perused the material on record. 13
9. A perusal of the judgment of the Division Bench in Smt. Sunanda's case will disclose that the subsequent Division Bench has considered the earlier judgment passed by the Division Bench of this Court. It is interesting to note that the Division Bench while considering the applicability of Sri P.S.Somaiah's case has clearly held that the judgment in Sri P.S.Somaiah's case was in the nature of observations. In fact the Division Bench has gone on to say that the observations made by the earlier Division Bench in Sri P.S.Somaiah's case were in the context and in the facts of that particular case and no law as such is laid down. Further in Smt. Sunanda's case the Division Bench has also held as under:-
"If the violation of a statutory rule has resulted in the accident, certainly we can hold the person who violated the rule as also having contributed to the accident. But mere violation of a statutory provision cannot lead to an inference that the accident was on account of the negligence. Something more is noted to 14 be done. Evidence has to be adduced in a particular case that the violation of a statutory rule resulted in negligence which in turn resulted in the accident, then proportionate contributory negligence could be attributed to the persons who violated the statutory provision."
10. In the light of the judgments referred to supra the law relating to contributory negligence qua violation of statutory rule can be summarized as hereunder:-
a. If the violation of a statutory rule has resulted in the accident, the negligence can be attributed to the rider of the vehicle, who has violated the statutory rule.
b. Mere violation/infraction of a statutory provision cannot lead to an inference that the accident was on account of the rider/driver of the vehicle.
c. In order to prove that violation/infraction of a statutory provision resulted in the accident, there should be legal and acceptable positive evidence on record in this record.
d. Evidence has to be adduced in a particular case should be from such nature to establish that the violation of the statutory rule resulted in negligence which in turn resulted in the accident, thereby establishing leading to inference with proportionate contributory negligence could be 15 attributed to the persons violating the statutory provisions.
e. In the absence of any positive evidence to indicate that the person violating a statutory provision was guilty of contributory negligence, mere contravention of a statutory provision cannot be held to have resulted in the accident and on that score alone negligence cannot be attributed to the violators of the law.
11. I have perused the pleadings and evidence of the parties in the instant case. Except giving suggestion to PW.1 in her cross-examination to the effect that the deceased Manikappa was guilty of contributory negligence, nothing is elicited in her cross-examination so as to discard or unimpeach the testimony of PW.1. Further the chargesheet in the instant case is also filed against the driver of the offending vehicle which was the Tanker.
12. So also the insurance company has not adduced any rebuttal evidence on their side to establish that the deceased Manikappa was guilty of contributory negligence. Under these circumstances, in the light of the evidence of PW.1 coupled with the police records and the 16 fact that the insurance company had not adduced any rebuttal evidence, I am of the considered opinion that the Tribunal completely misdirected itself in coming to the conclusion that the deceased Manikappa was guilty of contributory negligence to an extent of 30% on the sole and simple ground that he was carrying one extra passenger on the motorcycle in question. Accordingly, the findings recorded by the Tribunal on issue No.2 is hereby set aside and it is held that the insurance company has failed to prove that there was contributory negligence on the part of the deceased Manikappa in the accident.
13. Insofar as issue with regard to quantum of compensation is concerned, as rightly contended by the learned counsel for the claimant in view of the Lok Adalath guidelines, the notional income in respect of the accident which occurred in the year 2010 is to be taken as Rs.5,500/- per month. Adding 40% towards future prospects as per Pranay Sethi's case, it would come to Rs.7,700/-. Deducting 50% towards personal and living 17 expenses since the deceased was bachelor, the total income would come to Rs.3,850/- for the purpose of assessing 'loss of dependency'. Accordingly, the appellants would be entitled to Rs.7,39,200/- towards 'loss of dependency' (Rs.3,850/- x 12 x 16).
14. Thus, the total compensation would have to be reworked as hereunder:-
1 Loss of dependency Rs.7,39,200/- 2 Loss of consortium Rs.60,000/-
3 Loss of estate Rs.15,000/-
4 Funeral expenses Rs.15,000/-
Total Rs.8,29,200/-
15. Since the Tribunal has awarded a
compensation of Rs.2,18,400/-, the appellants - claimants would be entitled to an additional enhanced compensation of Rs.6,10,800/- (Rs.8,29,200/- - Rs.2,18,400/-) with interest at 6% p.a.
16. In view of the aforesaid discussion, I pass the following order:-
(i) The appeal is partly allowed.18
(ii) The impugned judgment and award dated 26.06.2012 passed by the Tribunal is hereby modified.
(iii) The appellants-claimants are entitled to additional enhanced compensation of Rs.6,10,800/- which shall carry interest at 6% p.a. from the date of claim petition till the date of realization.
(iv) The insurance company is liable to pay entire compensation.
(v) The apportionment and disbursement to be done as per the impugned judgment and award passed by the Tribunal.
(vi) It is made clear that the appellants shall not be entitled to interest for the delayed period of 364 days.
Sd/-
JUDGE RSP