Karnataka High Court
New India Assurance Co Ltd vs Smt Asha Prasad on 2 November, 2010
Equivalent citations: 2011 AAC 566 (KAR), 2011 (1) AIR KANT HCR 546, (2011) 4 ACJ 2642, (2012) 2 ACC 351
Bench: N.K.Patil, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21*") DAY OF NOVEMBER, 2010
PRESENT
THE HON'BLE MR. JUSTICE N.K.PATI§TT 'A;---:
AND
THE HON'BLE MR.JUSTICE-_H.S.KEM1§AN1"€A'
M.F'.A.NO.10853/.2066-.(1VI'Q
M.F.A.NO.1180_9_/'2-,O06_ (MV"p~. _ _i
M.F.A.NO.10863/2006"{3.QN) A
BETWEEN: '
NEW INDLMASSURANCEAVCOA.' I
REPRESENTED BY DIvIs'I0NALTAMA_NAGER,
4TH FLOOR, TOWER B}:-,0(?.K,,_ '
J.C. ROAD, - -_
BANGALORE.
... APPELLANT
(EY éR1.V1i;'JAiT5RAf5 'ASH -- AEV.)
AND--::"--- A
SMT.ASHA_vP}?ASAD,
' MAJOR .. '
.' SRI.AN';D,RATVIANNA
"Mr',J0.R.,
V I SARASWATHI
' " ~1\/VIAJOR
'ALL ARE RESIDING AT NO.47/ 1,
157 FLOOR, 4?" TEMPLE STREET,
'BET?
2
PANDARI BAI COMPOUND.
KODANDARAMAPURA,
MALLESWARAM
BANGALORE -- 3
4. SRLSYED SALLALUDDDIN
MAJOR
S/O SYED MEHABOOB
R/AT STJOIIN QUARTERS,
BANGALORE. ...RESPONDENT;3_
(BY SRLR. KRISHNA REDDY A 'FOR .1 A
NOTICE TO R-4 DISPENSED WITH,\],'.Q DATED 13.08.09}
THIS MFA IS F1LED_'jIUNDEIV-I .SECTION 173(1) OF MV
ACT AGA1NST TIIE JUDG'MENT,= AND}..AwARD DATED
20.06.2006 PASSED IN MV,C'--.NO_.545'1'/.2002 'ON THE FILE
OF THE XI ADDL. -.,JU1:;1'GE, "COUR'F.._OF":SMALL CAUSES,
MEMBER, MA,CT',}r~'ME'I'ROPOLITAN' AREA, BANGALORE
[SCCH NO, '-1,AvgARD.INGV COMPENSATION OF
?I6,81,180/'-- INTERE$T_ @"6%; RA. FROM THE DATE
OF 1>ETITIONf1"I,LL
M.1«'.A.NO."1I,,§309(1T_1Q
:
1.
' 'A;GED,:'A1~3OUT :34 YEARS
~--w-,-/.O LATE. £{;S.PRASAD
A 2. S§I,N;"O,RAMANNA
AGEDAEOUT 71 YEARS
* S/Q LATE N.D.SEETIIARAMALAH
: 3".' V. SMTSARASWATHI
AGED ABOUT 60 YEARS
" W/O N.D.RAMANNA
ALL ARE RESIDING AT NO.47/ 1,
1ST FLOOR, 4T" TEMPLE STREET,
I/_W,,II_.J
JUDGMENT
These two appeals by the insurer claimants are directed against the "
judgment and award dated 20.62006' V No.545i /2002 on the file of the Small Causes, Member, "Area, it Bangalore [SCCH NVo'..1x2) ihereinaafter referred to as 'Tribunal' for short).
award 180/-- with interest at 6% p.a. fromrthieg datefiglof petition till realisation, as against the of the claimants for a sum of e__ on account of the death of the deceased the road traffic accident.
-3.""v7l'hex_insurer claimed that though the Tribunal it V' hasidiscussed in the body of the judgment regarding the ' contributory negligence on the part of the deceased at 25%, it has awarded compensation to the claimants without deducting any amount towards contributoiy éw to the right side of lorry, he has dashed against offending vehicle and therefore contributory has to be fixed at 50% on the deceased._.H,et l our notice that though the the body of the judgmer1t»e'regardin_'g" the negligence on the part of the4l"'deceased"a:t_ '.2150/(Vii, it has awarded compensatieui' _to_ gthhe'*V--_'ggel:airnants without deducting any amount'V-towards_"»co'nt_ribiitory negligence on the of fact, as per the recitals rnahazar, it discloses that the been parked properly on the left side or tVV1"lC.'4VITtQEL4C€1:'_.if'1"'OII1 the middle line marking. That §:i.ridi*catedl it-was' 'parked towards the left side of the road..at.,_ft. On account of the rash and negligent drnririg by the deceased without properly '.V.maki'ngVlu:se4of the rest of the road which had been left it 'Xfiox_Vthe right side of lorry, he has dashed against offending vehicle and therefore the contributory negligence has to be fixed at 50% on the deceased. ,4/M / He further contended that the quantL:ni*.o. of Compensation awarded to the claimants is on:wtliet'Vh_i_gher side and it has to be reduced. Therefore.,__hjeprays i modification of the impugned the tribunal.
7. As against this, for the claimants, interaiiag:_,,._..l:"Cor'ite3'_idle'd.Aland vehemently submitted that negligence on the part of Tribunal is not sustainable offending vehicle was parkedgin road loaded with iron beams protruding._outsidellt.hebody of the trailer, unattended and..iyithout any .s__1'g_n..al or indication or caution to the other 1<oad:4usve.rs. The fact that the place where the xl/ehicle parked was dark and the vehicles or any T_othe:r .ob}ects in the front was not Visible are not in A From the recitals in the panchanarna it is clear that the deceased has applied brakes in order to avoid accident and that is fortified by 50 ft. tyre marks found on the road. This aspect of the matter has not been %W I0 looked into, considered by the Tribunal in fmin:g"*.the contributory negligence. Further, he contended compensation awarded to the claimants of i dependency and conventional heladsis cj:.n1the.'iovvenisidre.' and it requires enhancement modifying the impugned judgment and award:
8. After careful suhmissions of the counsel on both arise for our follows :~
i) fixed on the p'art--.oi; at ''25% and on the driver of the offeiiding at 75%, is just and proper?
ii) ._%:«:.Wr:etherV"t'l'ie ,quantum of compensation awarded to " 'V .. vtheclairtnants is just and reasonable? point No.1 : After careful perusal of ;'Exs,P1. P5, what emerges is that, charge sheet as per has been filed against the driver of the offending T "vehicle which is not in dispute. Further, it is crystal it clear from the perusai of Ex.P2--sketch and _Ex.P4~ L. 12 perusal of the evidence on record, both oralldand documentary, what emerges is that, had driven his car slowly he could have avoided. since it is evident from the records:.that;'--_on_'seeing' the truck being parked, he had triedlto 'apply"b1fal;e is evident from the tyre marks road' extent of about 50 ft. The T1'ibi_rnal ivrightlylooked into this aspect of the matter andhas pthvellllfinding of fact holding the part of the deceasedp__ValsQl"'tn;:the».,_e:§tleAn't«.oiVV_2:S%, which is just and proper; Afterlr'freaplpreciation of the oral and documentary evider1ce,.'.'_i;rJe also concur with the said of the Tribunal while fixing the contributory negligencey :at°*2\5% on the deceased and 75% on the driver offending vehicle and therefore, C_interteren_ce by this Court is not cailed for. Re.Poin.t No.2 :-
The occurrence of the accident and the resultant it death of the deceased are not in dispute. The deceased was aged about 35 years working as a Development /4,¢¢----«"""""
/Mr' 13 Officer in LIC drawing salary of ?30,836/- p.m.;'*plus incentives. The learned counsel on both sid.e_s._'__'aftei'..p evaluation of the material on record pointed..gorit after deducting income tax andgvproifessilon income of the deceased comes to'._?26,744'}*'«:.. accept the same. Out of deducted towards the personal ..the"deceased and we arrive at the net p.111. Having regard to 35 years, by applying appropriate multiplier app1icalole--_ the compensation towards llosstlofldepenrdeizcy at ?34,23,360/-- {@7830 x i'~Accordingly,y.we award a sum of ?34,23,360/- ":2 towards_ Iossyglof dependency. ll " is not in dispute that the deceased was Igthe solelllrlgrelad winner in the family. On account of the it lffuntimely death of the deceased, the first claimant, wife ofggdeceased, has lost her life partner at the young age and claimants 2 and 3, parents, have lost the love and affection of their son and their security, future hopes yaw