Karnataka High Court
Smt. Suma.G vs Shri. Mohan on 11 June, 2021
Equivalent citations: AIRONLINE 2021 KAR 1151
Bench: Alok Aradhe, Hemant Chandangoudar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JUNE 2021
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE HEMANT CHANDANGOUDAR
M.F.A. NO.4404 OF 2020 (MV-D)
BETWEEN:
1. SMT. SUMA G
W/O LATE SHRI. RANGANATH
AGED ABOUT 36 YEARS.
2. KUM. ARSHITHA R
D/O LATE SHRI. RANGANATH
AGED ABOUT 5 YEARS.
3. PARIKSHITH R
S/O LATE SHRI. RANGANATH
AGED ABOUT 4 YEARS.
APPELLANTS 2 & 3 ARE MINORS
REP. BY THEIR MOTHER AND
NATURAL GUARDIAN SMT. SUMA G
THE FIRST APPELLANT.
#72, 16TH MAIN, K.S.B. COLONY
VIJAYANAGAR
BENGALURU-560040.
... APPELLANTS
(BY SRI. Y.K. SHESHAGIRI RAO, ADV.)
2
AND:
1. SHRI. MOHAN
S/O SHRI. SHIMANNA
#205, MANGANAHALLI
BEHIND SUJATHA SCHOOL
ULLAL UPANAGARA
BENGALURU-560056.
2. RELIANCE GENERAL
INSURANCE COMPANY LIMITED
REGIONAL OFFICE, #28 EAST WING
5TH FLOOR, CENTENARY BUILDING
M.G. ROAD, BENGALURU-560001.
... RESPONDENTS
(BY SRI. ASHOK N. PATIL, ADV., FOR R2
V/O DTD:16.01.2021 NOTICE TO R2 D/W)
---
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV
ACT, AGAINST THE JUDGMENT AND AWARD DTD:16.03.2020
PASSED IN MVC NO.7263/2018 ON THE FILE OF THE
MEMBER, MACT, XVI ADDITIONAL JUDGE, COURT OF SMALL
CAUSES, BENGALURU (SCCH-14), ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the appellants against the judgment dated 16.06.2020 passed by the Motor Accident Claims Tribunal seeking enhancement of compensation.
2. Facts giving rise to the filing of the appeal briefly stated are that on 22.11.2018 at about 6.15 p.m., deceased Ranganath was riding his moped bearing registration No.KA- KA-41 EB-4607 on the extreme left side of Soluru-Kuduru road. When he reached near Gaddigemata Cross, Ombathanekunte village, at that time, a Tata Indica car bearing registration No.KA-07 M-2024 which was being driven by its driver in a rash and negligent manner, dashed against the moped of the deceased as well against a Maruti 800 car. The deceased thereupon fell down and eventually succumbed to the injuries.
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3. The claimants thereupon filed a petition under Section 166 of the Act claiming compensation on the ground that the accident took place solely on account of rash and negligent driving of the driver of the Tata Indica car. It was further pleaded that the deceased was aged about 38 years at the time of accident and was employed as a driver and used to earn Rs.20,000/- p.m. The claimants claimed compensation to the extent of Rs.50,00,000/- along with interest.
4. Respondent No.1 did not appear before the Tribunal and was proceeded exparte. Respondent No.2 filed written statement in which averments made in the claim petition were denied. It was further pleaded that the liability of the Insurance Company, if any, is subject to the terms and conditions of the policy. It was further pleaded that the offending vehicle was not involved in the accident. The age, avocation and income of the deceased was also denied. It was also pleaded that the compensation claimed is excessive and exorbitant.
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5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant No.1 examined herself as PW-1 and got exhibited documents namely Ex.P1 to Ex.P8. The respondents neither examined any witness nor exhibited any documents. The Claims Tribunal, by the impugned judgment, inter alia, held that since from the police record it does not transpire that the deceased, at the time of accident, was wearing a helmet, therefore, the deceased as well as the driver of the Tata Indica car, have contributed to the causing of the accident to the extent of 10% and 90% respectively. It was further held that the claimants are entitled to compensation to the tune of Rs.14,24,000/- along with interest at the rate of 7% p.a. from the date of petition till the date of realisation. In the aforesaid factual background, this appeal has been filed.
6. Learned counsel for the claimants submitted that the finding recorded by the Claims Tribunal that the deceased had contributed to the extent of 10% in causing of the 6 accident merely because he did not wear a helmet, is based on surmises and conjectures. It is further submitted that the income of the deceased ought to have been assessed as per the chart prepared by the Karnataka State Legal Services Authority which is adopted in Lok Adalaths. It is further submitted that the compensation awarded on other heads is on the lower side. In support of aforesaid submission, reliance has been placed on the decision of this Court in 'UNITED INDIA INSURANCE CO. LTD. Vs. SMT.MARY AND OTHERS' ILR 2021 KAR 68.
7. On the other hand, learned counsel for the Insurance Company submitted that the deceased was not wearing the helmet and therefore, the Claims Tribunal has rightly held that he has contributed 10% in causing the accident. In support of aforesaid submission, reliance has been placed on the decision of Madras High Court in CMA NO.928/2018 (PORKODI AND ORS. Vs. SATISH AND ORS.) decided on 04.07.2018.
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8. We have considered the submissions made by learned counsel for the parties and have perused the record. It is pertinent to mention here that no plea with regard to the contributory negligence was taken by the Insurance Company in the written statement and therefore, the Tribunal has not framed any issue with regard to contributory negligence. In the absence of any issue with regard to the negligence, the Tribunal, in paragraph 15 of the impugned judgment, merely on the basis of police documents, has held as follows:
"It is pertinent to note here that, driving licence of the deceased was not produced and even no police documents reveals that, at the time of the accident, deceased was wearing helmet at the time of the accident. So, it appears that, deceased also contributed some percentage of negligence in the accident."
9. The aforesaid finding cannot be sustained in the eye of law and it is not based on the evidence on record and as held by this Court in UNITED INDIA INSURANCE CO. LTD., supra, the finding with regard to contributory negligence cannot be based merely on police record and the 8 same has to be recorded on the basis of meticulous consideration of the pleadings and the evidence adduced by both the parties.
10. For the aforementioned reasons, the aforesaid finding that the deceased contributed to the extent of 10% in causing the accident, cannot be sustained and the same is hereby set aside.
11. Now, we may advert to the quantum of compensation payable to the claimants. The deceased who was aged 38 years, was employed as a driver. No evidence has been adduced with regard to his income. Therefore, his income has to be assessed on notional basis as per the guidelines issued by the Karnataka State Legal Services Authority which is adopted in Lok Adalaths. Taking into account the fact that the accident had taken place in the year 2018, the notional income of the deceased is assessed at Rs.12,500/-. Out of the aforesaid amount, 1/3rd has to be deducted towards personal expenses as the number of dependants are 3 and therefore, the income comes to 9 Rs.8,333/-. To the aforesaid amount, in view of the law laid down by the Constitution Bench of the Supreme Court in 'NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS' AIR 2017 SC 5157, 40% of the amount has to be added on account of future prospects. Thus, the monthly dependency comes to Rs.11,666/-. Taking into account the age of the deceased which was 38 years at the time of accident, the multiplier of '15' has to be adopted. Therefore, the claimants are held entitled to Rs.20,99,880/- (Rs.11,666 x 12 x 15) on account of loss of dependency.
12. In view of laid down by the Supreme Court in 'MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM & ORS.' (2018) 18 SCC 130, which has been subsequently clarified by the Supreme Court in 'UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.' AIR 2020 SC 3076 each of the claimants are entitled to a sum of Rs.40,000/- on account of loss of consortium and loss of love and affection. Thus, the claimants are held entitled to Rs.1,20,000/-. In addition, claimants are held entitled to 10 Rs.30,000/- on account of loss of estate and funeral expenses. Thus, in all, the claimants are held entitled to a total compensation of Rs.22,49,880/-. The aforesaid enhanced compensation shall carry interest at the rate of 6% from the date of filing of the petition till the realization of the amount of compensation.
To the aforesaid extent, the judgment passed by the Claims Tribunal is modified.
Accordingly, the appeal is partly allowed.
Sd/-
JUDGE Sd/-
JUDGE RV