Karnataka High Court
Smt. Sakamma vs Sri. G.C. Suresh on 19 February, 2018
Equivalent citations: 2018 (2) AKR 798, (2018) 3 TAC 254, 2018 AAC 1323 (KAR), (2019) 3 ACJ 186
Author: K.Somashekar
Bench: K.Somashekar
R
IN THE HIGH COURT OF KARNATAKA
AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
MFA NO. 202/2016 (MV)
BETWEEN
1. SMT. SAKAMMA,
NOW AGED ABOUT 29 YEARS,
W/O LATE SHIVANNA,
2. VENUGOPAL,
NOW AGED ABOUT 5 YEARS,
S/O LATE SHIVANNA,
3. KUM. BHUVANA,
D/O LATE SHIVANNA,
NOW AGED ABOUT 3 ½ YEARS,
SINCE THE APPELLANT NOS.2 AND 3
ARE MINORS, ARE REP. BY THEIR
MOTHER I.E., APPELLANT NO.1
SMT. SAKAMMA,
4. SRI. BHUTHANNA,
NOW AGED ABOUT 51 YEARS,
S/O LATE MUDALAGIRIYAPPA,
5. SMT. LAKSHMAMMA,
NOW AGED ABOUT 49 YEARS,
W/O BHUTHANNA,
ALL ARE RESIDING AT NO. 289,
1ST MAIN ROAD, 4TH CROSS,
MANJUNATHANAGAR,
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BAGALGUNTE,
BENGALURU - 73.
... APPELLANTS
(BY SRI. MANMOHAN D., ADVOCATE)
AND
1. SRI. G.C. SURESH,
S/O G.M. CHANDRAPPA,
AGED MAJOR, NO.1, KHM BLOCK,
3RD MAIN ROAD, 3RD CROSS,
R.T.NAGAR, GANGANAGAR,
BENGALURU - 560 032.
2. M/S. NATIONAL INSURANCE CO. LTD.,
REGIONAL OFFICE, NO. 144, 2ND FLOOR,
SUBHARAM COMPLEX,
M.G.ROAD, BENGALURU - 560 001.
REP. BY ITS MANAGER.
... RESPONDENTS
(BY SRI. S.H. RAGHAVENDRA, ADVOCATE FOR R1.
SRI. B.C. SEETHARAMA RAO, ADVOCATE FOR R2.)
THIS MFA IS FILED UNDER SECTION 173(1)
OF MOTOR VEHICLES ACT, AGAINST THE
JUDGEMENT AND AWARD DATED 05.08.2015
PASSED IN MVC NO. 3391/2014 ON THE FILE OF
THE JUDGE, XXVI ACMM, COURT OF SMALL
CAUSES, MACT (SCCH-09), BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MFA COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Heard Shri. D. Manmohan, learned counsel for the claimants-appellants, Shri. B.C. Seetharama Rao, learned counsel for the contesting 2nd respondent- insurer, Shri. S.H. Raghavendra, Advocate for 1st respondent-owner of the offending vehicle and perused the records.
2. The claimants-appellants herein, who are the wife, minor children and parents of deceased Shivanna have preferred this appeal, challenging the impugned Judgment and award dated 05.08.2015, passed by the Judge, Court of Small Causes & XXVI Additional Chief Metropolitan Magistrate and Motor Accident Claims Tribunal, Bengaluru (SCCH-09), in MVC No.3391/2014 on the ground that the compensation awarded by the Tribunal is on the lower side.
3. The facts of the case are that on 26.07.2014, at about 12.20 p.m, the deceased Shivanna was going as a pedestrian on NH-4, near :4: Manjunathnagar, Bengaluru. At that time, a milk tanker bearing registration No.KA-04-B-3154 came in a rash and negligent manner and dashed to deceased. Due to impact, the deceased Shivanna sustained fatal injuries and died at the spot. The claimants-appellants being dependents of the deceased have filed a claim petition under Section- 166 of the Motor Vehicles Act, 1989, seeking compensation of Rs.25,00,000/-.
4. After service of notice, the owner of the offending vehicle did not appear and hence, he was placed exparte before the Tribunal. However, the insurer-respondent No.2 herein appeared through counsel and has filed objections, denying the averments made in the claim petition. During the enquiry before the Tribunal, the claimants have established the occurrence of accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage with the 2nd respondent herein and the same has remained :5: unchallenged either by the driver or by the owner of the vehicle. The challenge by the claimants in this appeal is only in respect of the contributory negligence of 25% apportioned on the deceased and quantum of compensation.
5. The Tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to contributory negligence both on the part of the driver of the offending vehicle and deceased and apportioned the same in the ratio of 75% and 25% and consequently awarded total compensation of Rs.15,10,000/- with interest at 6% per annum from the date of petition till the date of deposit under the following heads.
Sl. Amount
Headings
No Rs.
1 Loss of dependency 14,18,000
2 Transportation of dead 25,000
body and for performance
of obsequies ceremonies
3 Loss of Consortium 25,000
4 Loss of love and affection 25,000
5 Loss of estate 17,000
Total 15,10,000
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6. The learned counsel for the appellants has contended that the Tribunal has committed an error apportioning the contributory negligence on the part of the deceased at 25%. He further contended that income of the deceased assessed by the Tribunal at Rs.7000/- per month is on the lower side and that the compensation awarded by the Tribunal is on the lower side and hence, he prays for modification of the impugned judgment and to enhance the compensation.
7. On the other hand, learned counsel for the contesting respondent No.2, the insurer, vehemently submits that the accident had occurred on the National High way, while the deceased recklessly/carelessly crossing the road and hence, the Tribunal was justified in apportioning contributory negligence on the part of deceased at 25%. He further contended that in the absence of any established income of the deceased, the Tribunal was not at all justified in adding 50% of his income :7: towards future prospectus, which is against the recent dictum of the Apex Court. Nextly he contended that the Tribunal was not justified in awarding compensation of Rs.92,000/- under other conventional heads viz., 'loss of consortium', 'loss of love and affection' and 'funeral expenses'. Drawing the attention of the Court to the judgment of the Apex Court, in the case of National Insurance Company Limited -vs- Pranay Sethi (AIR 2017 Supreme Court 5157) , he submitted that the total/maximum compensation payable under conventional heads, cannot exceed Rs.70,000/-. Hence, he prays for dismissal of the appeal.
8. Insofar as the first contention of the learned counsel for the appellant is concerned, on careful scrutiny of the contents of the FIR Ex.P.11 it is seen that the accident in question did occurred while the deceased was crossing the road in front of E.C.C. Garments near Toll Plaza. The sketch of place of accident Ex.P.6 further reveals that though :8: there was zebra crossing just few meters away from the place of the accident, the deceased crossed the said road just few meters before such zebra crossing. However, the driver of the offending vehicle (truck), being a heavy vehicle, ought to have taken great care while driving his truck that too, when the said truck was reaching nearer to toll plaza. Under these circumstances, the Tribunal was not justified in apportioning the contributory negligence on the part of the deceased at 25%. Hence, it would be just and proper to apportion the contributory negligence on the part of the deceased at 10% as against 25% apportioned by the Tribunal.
9. The Hon'ble Apex Court, in the dictum laid down in Pranay Sethi's case, referred to above, at paragraph-64 (iv) & (viii) has held as hereunder:
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% :9: where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the ages of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.
15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.
10. In the case on hand, it was claimed that the deceased was working as Tailor and he was earning a sum of Rs.15,000/- per month and the Tribunal assessed the income of the deceased at Rs.7000/- per month. There was no documentary evidence let in by the claimants to establish the said income. In the absence of any documentary proof and in view of the law laid down by the Hon'ble Apex Court in the judgment cited supra, the Tribunal was not justified in adding 50% to the said income : 10 : towards future prospectus to assess the compensation payable towards 'loss of dependency'. However, having regard to the fact that the accident was of the year 2014 and the deceased Shivanna was a Tailor by profession and he was aged 38 years at the time of accident, as could be seen from Ex.P.7, this Court is of the considered view that it would be just and reasonable to assess the income of the deceased at Rs.9000/- per month, as against Rs.7,000/- assessed by the Tribunal to determine the compensation payable towards 'loss of dependency'. Thus, the compensation payable to the claimants towards 'loss of dependency' would comes to Rs.9000-2250 (1/4) =6750x12x15=12,15,000) as against Rs.14,18,000/- awarded by the Tribunal.
11. Now its takes me to the next question as to whether the Tribunal was justified in awarding compensation of Rs.92,000/- under conventional heads viz., towards 'transportation of dead body/funeral expenses', 'loss of consortium', 'loss of : 11 : love and affection' and 'loss of estate'. In view of the law laid down by the Hon'ble Apex Court in paragraph 61 (viii) of Pranay Sethi's case, the maximum/total compensation payable under conventional heads would be restricted to Rs.70,000/-. Hence, this Court is of the considered view that the Tribunal was not justified in awarding compensation of Rs.92,000/- under conventional heads. Thus, it would be just and proper to award compensation of Rs.70,000/- as against Rs.92,000/-, including the compensation payable towards 'loss of love and affection' under conventional heads viz., Rs.40,000/- towards 'loss of consortium' Rs.15,000/- towards 'loss of estate' and Rs.15,000/- towards 'funeral expenses'. Thus, in all the claimants- appellants herein are entitled to total compensation of Rs.12,85,000/- (Rupees twelve lakhs eighty five thousand only) as against Rs.15,10,000/- awarded by the Tribunal. If 10% of Rs.12,85,000/- is deducted towards contributory negligence on the part of the deceased, the net compensation payable would : 12 : comes to Rs.11,56,500/- (Rupees eleven lakhs fifty six thousand five hundred only). Thus, the enhanced compensation would comes to Rs.23,500/-.
12. At this stage, learned counsel for the appellant, drawing the attention of the Court to the judgment of the Apex Court in Hem Raj -vs- Oriental Insurance Co. Ltd., and others (2018 ACJ-5) submits that at least 40% of the income of the deceased be added towards future prospects as against 50% added by the Tribunal. In the said judgment, the Hon'ble Apex Court has held as here under:
"13. We are of the view that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guesswork in the facts and circumstances of a case. Both the situations stand at the same footing. Accordingly, in the present case, addition of 40 percent to the income assessed by the Tribunal is required to be made. The Tribunal made : 13 : addition of 50 percent while the High Court has deleted the same.
14. We modify the impugned order to the effect that the component of future prospects will be 40 percent. Needless to say that corresponding deduction for personal expenses, etc., may have to be made. On that basis, the executing Court may recomputed the entitlement of the appellants".
In that case, in the backdrop that there was a positive evidence of income, the income was determined and 40% has been added towards future prospects. Determination of the income of a person who died in motor accidents would depend upon the facts and circumstances of a case. In the case on hand, there was no such positive evidence in proof of income of the deceased. Hence, this Court is of the considered view that the above judgment relied on by the counsel for the appellant cannot be made applicable to the present case.
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Accordingly, the appeal is allowed in part. In modification of the impugned Judgment and award dated 05.08.2015, passed by the Judge, Court Small Causes and XXVI Additional Chief Metropolitan Magistrate Court (SCCH-09) and Motor Accident Claims Tribunal, Bengaluru, in M.V.C. No.3391/2014, the total compensation payable to the claimants is enhanced from Rs.11,33,000/- to Rs.11,56,500/- (Rupees eleven lakh fifty six thousand five hundred only). The enhanced compensation comes to Rs.23,500/- (Rupees twenty three thousand five hundred only). The insurer- respondent No.2 herein shall deposit the entire compensation amount with accrued interest, before the concerned Tribunal within three months from the date of receipt of a certified copy of this Judgment. However, the impugned judgment and award of the Tribunal, insofar as it relates to the rate of interest and apportionment and deposit is concerned, shall remain un-altered.
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There shall be no order as to the costs. Office to draw the decree accordingly. Office is directed to transmit the lower Court records forthwith.
Sd/-
JUDGE VR