Karnataka High Court
R. Sharadamma vs T. Jayaprakash on 3 September, 2012
Author: B.Sreenivase Gowda
Bench: B. Sreenivase Gowda
R
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 03RD DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA
M.F.A.NO.1457/2010 (MV)
C/W
M.F.A.NO.4413/2008 (MV)
IN M.F.A.NO.1457/2010
BETWEEN:
1. R. SHARADAMMA,
W/O LATE MAHADEVA,
AGED ABOUT 41 YEARS,
R/AT VADAGUR VILLAGE,
HUTTUR HOBLI,
KOLAR TALUK.
2. M. PRAVEEN @ M. PRAVEEN KUMAR,
S/O LATE MAHADEVA,
AGED ABOUT 21 YEARS,
R/AT VADAGUR VILLAGE,
HUTTUR HOBLI,
KOLAR TALUK.
3. M. MAHESHA @ MAHESH KUMAR,
S/O LATE MAHADEVA,
AGED ABOUT 19 YEARS,
R/AT VADAGUR VILLAGE,
2
HUTTUR HOBLI,
KOLAR TALUK.
... APPELLANTS
(BY SMT. S.SUSHEELA, ADV.,)
AND:
1. T. JAYAPRAKASH,
S/O YELLAPP,
AGED ABOUT 26 YEARS,
R/AT 1ST CROSS, PALASANDRA LAYOUT,
KOLAR.
2. AMEER JAN,
S/O ABDUL RAZAK,
AGE: MAJOR,
R/AT 1ST CROOS, PHOOLSHA MOHALLA,
KOLAR TOWN.
3. M/S UNITED INDIA INSURANCE COMPANY LTD.,
BRANCH OFFICE, BAGALUR MANSION,
DODDAPET, KOLAR.
...RESPONDENTS
(BY SRI. ASHWIN PATIL, ADV., FOR R-1.
SRI. P.B. RAJU, ADV., FOR R-3.
R-2 NOTICE DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED
18.06.2007 PASSED IN MVC NO.201/2004 ON THE FILE
OF ADDITIONAL CIVIL JUDGE AND ADDITIONAL MACT,
KOLAR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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IN M.F.A.NO.4413/2008
BETWEEN:
T. JAYAPRAKASH,
S/O YALLAPP,
AGED ABOUT 25 YEARS,
OCC: NIL,
OWNER VEHICLE NO.
K.A. 07/7810,
R/O 1ST CROSS, PALASANDRA LAYOUT,
KOLAR.
... APPELLANT
(BY SRI. ARAVIND.H, ADV.,)
AND:
1. R. SHARADAMMA,
W/O LATE MAHADEVA,
AGED ABOUT 39 YEARS,
OCC: NOT KNOW.
2. M. PRAVEEN,
S/O LATE MAHADEVA,
AGE: 19.
3. M. MAHESHA,
S/O LATE MAHADEVA,
AGE: 17 YEARS,
(RESPONDENT NO.3 IS MINOR REPRESENTED BY
HIS MOTHER RESPONDENT NO.1)
ALL ARE RESIDING AT VADAGUUR VILLAGE,
HUTTUR HOBLI,
KOLAR DISTRICT.
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4. AMEER JAN,
S/O ABDUL RAZAK,
AGE: MAJOR,
R/O 1ST CROSS, PHOOLSHA MOHALLA,
KOLAR TOWN.
5. M/S UNITED INDIA INSURANCE CO. LTD.,
BRANCH OFFICE, BEGALUR MANSION,
DODDAPET, KOLAR.
...RESPONDENTS
(BY SRI. M.R. NANJUDAGOWDA, ADV., FOR R-1 & R-2.
SMT. S.SUSHEELA, ADV., FOR R-3.
SRI. P.B. RAJU, ADV., FOR R-5.
R-4 NOTICE DISPENSED WITH)
***
THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED
18.06.2007 PASSED IN MVC NO.201/2004 ON THE FILE
OF ADDL. CIVIL JUDGE AND ADDL., MACT, KOLAR,
AWARDING A COMPENSATION OF RS.4,10,950/- WITH
INTERST @ 6% P.A. FROM THE DATE OF PETITION TILL
REALISATION.
THESE APPEALS ARE COMING ON FOR HEARING-
INTERLOCUTORY APPLICATION THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
As these appeals are arising out of a common road traffic accident and common judgment of the Tribunal, 5 they are heard together and disposed of by this common judgement.
2. For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.
3. MFA No.1457/2010 is filed by the claimants seeking enhancement of compensation awarded by the Tribunal.
4. MFA No.4413/2008 is filed by the owner cum rider of the Bullet Motor Cycle bearing registration No.KA-J-7810 challenging the judgment and award of the Tribunal on the ground of negligence and liability.
5. Therefore, points that arise for my consideration are:-
i) Whether the Tribunal is justified in answering issue no.1 partly in the affirmative holding that the claimant 6 has proved that Mahadeva s/o late Kempanna died in a road traffic accident occurred on 25.10.2003 in front of Vaibhav hotel near Kolar-
Mulbagal road (NH.4) due to rash and negligent riding of Bullet Electra motor cycle bearing registration No. KA 07-J- 7810?
ii) Whether the Tribunal is justified in holding issue no.2 in the negative and directing the owner of the Bike to pay compensation?
6. Learned counsel for the appellant in MFA No.4413/2008 i.e., owner of the Motor Bike Bullet Electra motor cycle bearing registration No.KA-07-J-7810 (hereinafter referred to as motor bike) submits that the accident was occurred due to sole negligent driving of an Auto Rickshaw bearing registration No.KA-01-2184 (hereinafter referred to as Auto) by its driver. The owner of the Motor Bike though tried to lodge a compliant to the police against the Driver of Auto, the police refused to 7 receive his complaint, as by then they were already colluded with the driver and the owner of the Auto. The owner of the motor bike in his statement of objection as well as in his evidence examined as RW-1 has clearly stated that the accident was occurred due to rash and negligent driving of Auto by its driver. IMV report marked as Ex.P4 supports his contention and in spite of that, the Tribunal has committed an error in holding that the accident was occurred due to rash and negligent riding of motor bike by its rider. Therefore, he prays for allowing the appeal filed by the owner of the motor bike and modify the judgement and award of the Tribunal on negligence and liability.
7. Per contra, the learned counsel appearing for the insurer of the Auto rickshaw submits that immediately after the accident one G.V.Ravi standing in front of Vaibhav Hotel where accident was taken place has informed the police about the accident stating that 8 the rider of motor bike rode the same in a rash and negligent manner and dashed against the auto and accordingly the police have registered a case against the rider of the motor bike. Further, the said G.V. Ravi was examined by the claimant as PW-2 and in his evidence also he has repeated the same thing. Even IMV report marked as Ex.P4 supports the case of the claimant that the accident was occurred due to rash and negligent riding of motor bike by its rider. The Tribunal considering all these material on record has rightly held that the accident was occurred due to rash and negligent riding of motor bike by its rider. As such, there is no irregularity or infirmity in the findings of the Tribunal on the negligence. He submits once claimant filed a claim petition with an allegation that the accident was occurred due to rash and negligent driving of a particular vehicle by its driver relaying upon police records viz., FIR, Charge sheet and Mahazar, Sketch and IMV report later- on he cannot turn back and say that the accident was 9 not occurred on account of rash and negligent of the said vehicle. In support of his submission, he has relied upon a judgment of this Court in the case of Sharada Bai v. Karnataka State Road Transport Corporation reported in ILR 1987 page 2730 and Oriental insurance Co. Ltd., V. Premalata Shukla & others reported in 2007 ACJ 1928. With this he prayed for dismissal of both the appeals.
8. The claimants by contending that on 25.10.2003 deceased Mahadeva and his son Mahesh were coming in an auto rickshaw bearing registration No.KA-01-2184 from Kolar to go to Hotel Vaibhav which is situated near Devaraja Urs Medical college at about 7.05 p.m. and when the auto rickshaw reached near Vaibhav hotel and it's driver tried to take right turn on NH-4 road towards Vaibhav hotel at that time, the first respondent who was coming in a motor Bike from the opposite direction i.e., from Mulbagal side towards Kolar side has dashed against the auto rickshaw and due to 10 the said impact K.Mahadeva and his son Mahesh had sustained injuries and fell down on the road. Immediately they were admitted to Devaraja Urs Medical College Hospital and from there K.Mahadev was shifted to Trinity hospital and Heart Foundation, Bangalore for better treatment where he succumbed to the injuries on 25.10.2003. They contended that for the said accident, both the drivers i.e., driver of auto rickshaw and the rider of the bullet motor cycle have contributed their negligence. With the above averments, they filed a claim petition under section 166 of MV Act before MACT, Kolar seeking compensation of Rs.10,00,000/- from the rider/owner of the motor bike and from the owner and the insurer of auto.
9. The rider/owner of the motor bike arrayed as respondent no.1 in the claim petition before the Tribunal has filed his statement of objection denying the averments made in the claim petition interalia 11 contending that it is the driver of Auto Rickshaw carrying full of passengers in the auto and proceeding with high speed, all of a sudden and without giving signal abruptly crossed the NH-4 main road near Vaibhav hotel from North to South and dashed against the motor bike coming from the opposite direction. As a result of impact, himself and the passengers in the Auto Rickshaw had sustained injuries. He contended that the accident was occurred due to rash and negligent driving of the Auto Rickshaw by its driver. Therefore, he is not liable to pay compensation to the claimant. It is respondent nos.2 and 3 who are jointly and severally liable to pay compensation to the claimants because the accident was occurred on account of rash and negligent driving of Auto Rickshaw by its driver. With this he prayed for dismissal of the claim petition against him.
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10. The driver of Auto arrayed as respondent no.2 in the claim petition before the Tribunal was placed Ex-parte and he has not chosen to contest the petition.
11. The insurer of the Auto rickshaw arrayed as respondent no.3 in the claim petition has filed their detailed statement of objection. In para.6, they contended that they do not admit the accident and specifically denied the allegation of rash and negligent driving attributed to the driver of auto and has contributed to the alleged mishap as an absolute falsehood being concocted by the petitioners to suit their convenience to file this petition seeking compensation for their benefit, suppressing the real facts of rash and negligent driving of the bullet motorcycle by its rider and they pray for dismissal of the claim petition.
12. The Tribunal on the basis of the pleadings of the parties has framed the following issues: 13
i) "Whether the petitioners prove that one Sri. Mahadeva s/o late Kempanna died in a road traffic accident that occurred on 25.10.2003 at about 7.25 p.m. in front of Vaibhav Hotel, Kolar-Mulbagal road (NH-4), due to rash or negligent driving of Bullet Electra motorcycle bearing registration No.KA-07-J-7810 and the Auto rickshaw bearing No.KA.01/2184 by its driver?
ii) Whether the respondents prove that they are not liable to pay the compensation for the reasons stated in the objection statement?"
13. The claimants in support of their case have examined the first claimant as PW-1 and Sri. G.V. Ravi, who lodged the complaint to the police about the accident as PW-2 and they have produced 11 documents which were marked as Exs.P1 to P11.
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14. The owner of the motor bike was examined by himself as RW-1 and has produced his study certificate marked as Ex.R1.
15. The owner and the insurer of the Auto Rickshaw have not adduced any evidence either oral or documentary.
16. The Tribunal by answering issue No.1 partly in the affirmative has held that the petitioners/claimants have proved that Mahadeva died in the road traffic accident occurred on 25.10.2003 in front of Vaibhav hotel, Kolar to Mulbagal road (NH-4) due to rash and negligent riding of the motor bike by its rider and awarded compensation and directed the owner of the motor bike to pay the compensation to the claimants.
17. There is no dispute between the parties that the accident was occurred just in front of Vaibhav hotel situated near R.L. Jalappa Medical College Hospital on 15 Kolar-Mulbagal NH-4 road. There is also no dispute that the auto was proceeding from Kolar towards Mulbagal to go to hotel Vaibhav and it took right turn from north to south in front of Vaibhav hotel and the motor bike was proceeding from the side of Mulbagal towards Kolar i.e., from the east towards west on NH-4 road..
18. The claimants though in their claim petition as well in the evidence of the first claimant examined as PW-1 have stated that the accident was occurred due to contributory negligence of the drivers of both the vehicles. But PW-2/G.V. Ravi who lodged the complaint to the police about the accident stating that the accident was occurred due to rash and negligent riding of the motor bike by its rider has reiterated the same in his evidence and he does not support the case of the claimants that the accident was occurred due to contributory negligence of the drivers of both the vehicles.
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19. By careful perusal of the spot sketch marked as Ex.P5, it is seen that the auto rickshaw which was proceeded from Kolar towards Mulbagal i.e., in the direction of west to east to go to Hotel Vaibhav situated on NH-4 main road and when it was in the process of taking right turn in front of Vaibhav hotel dashed against the motor bike which was coming from Mulbagal towards Kolar i.e., in the east to west direction. If that is so it cannot be said that the accident was occurred due to sole negligence on the part of the rider of the motor bike. It is an accident occurred due to contributory negligence on the part of the driver of auto rickshaw as well as the rider of the motor bike. Merely, because the FIR is registered and the charge sheet is filed against the rider of motor bike is not a ground to hold that the accident is occurred due to sole rash and negligent riding of motor bike by its rider.
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20. It is no doubt true that once claimant files a claim petition relying upon the police records and contending that he has sustained injuries in a road traffic accident occurred on account of rash and negligent driving of a particular vehicle by its driver against whom FIR is registered and charge sheet is filed later on, he cannot turn back and say that the accident was occurred due to rash and negligent driving of some other vehicle. There is no quarrel about the said proposition of law laid down in the decision relied upon by the learned counsel for the insurer of Auto rickshaw. But in the instant case, first of all the claimants have not lodged any complaint to the police, secondly the police have not recorded the statement of deceased Mahadeva though he was alive for considerable length of time after sustaining injuries in the accident nor they have recorded the statement of Mahesh son of deceased Mahadeva who had also sustained injuries in the very same accident. On the other hand FIR was registered 18 against the rider of motor bike on the basis of the complaint lodged by one G.V. Ravi and it was ended in acquittal. Thirdly, two vehicles viz., an auto rickshaw and a motor bike were involved in the accident. Besides claimants in their claim petition as well as in their evidence have specifically contended that the drivers of both the vehicles had contributed for the accident. It was only PW-2 in the complaint lodged to the police as well as in his evidence has stated that the rider of motor bike has dashed against the Auto rickshaw. Unfortunately the claimant did not request the Tribunal to treat him as hostile and cross-examine him in that regard. In such cases, the Tribunal on the basis of material available before it, is required to decide as to whether the accident was occurred due to rash and negligent driving of Motor Bike or Auto or both. If so to what extent each one has contributed for the accident.
21. As per IMV report-Ex.P-4 the damage caused to motor bike is found to be more than that of an auto 19 rickshaw. It is relevant to note that the front side of the motor bike was partly damaged and the left side rare portion of the auto was also damaged.
22. The owner of the motor bike in support of his contention that the accident was occurred due to rash and negligent driving of auto rickshaw by its driver has not lodged any complaint to the police against the driver of auto rickshaw and nor he has examined any independent witness to that effect.
23. The owner of the motor bike has preferred MFA No. 4413/2008 challenging the findings of the Tribunal on negligence. He has filed a separate statement of objection denying the contention of the claimants that the accident was occurred due to contributory negligence on the part of the rider of the motor bike and the driver of the auto. As per the sketch, the accident was occurred at the junction when the driver of the auto was in the process of crossing NH.4 road from north to south by 20 carrying full of passengers in his auto. Considering the manner in which the accident has taken place and the nature of damage caused to the moto bike and the auto, it has to be held that an amount of negligence contributed by the rider of motor bike compared to that of the driver of auto is heavy and more. It would be at the rate of 75% and 25% respectively. Accordingly, I modify the finding of the Tribunal on negligence holding that the accident was occurred due to contributory negligence of 75% on the part of the rider of the motor bike and 25% on the part of the diver of the Auto.
24. The claimants have preferred MFA No.1457/2010 seeking enhancement of compensation awarded by the Tribunal. The Tribunal by impugned judgment and award dated 18.06.2007 has awarded compensation of Rs.4,10,950/- with interest at 6% p.a. Therefore, the only point that arises for my consideration is:
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"Whether quantum of compensation
awarded by the Tribunal is just and
reasonable or does it call for enhancement?"
25. The deceased was aged about 40 years at the time of his death in the accident as evident from the post mortem report Ex.P-6 and the multiplier applicable to his age group is '15'. The claimants in support of their contention that the deceased by doing agriculture and hotel business was earning a sum of Rs.16,000/- per month have produced his income tax returns at Ex.P10 and 11 which do not disclose how much profit he was getting from the hotel business. No documents are produced regarding his income from agriculture. In the absence of proof of income, considering his age as 40, year of accident as 2010 and his profession as hotel business, his income is assessed at Rs.4,000/- per month as against Rs.3,000/- per month assessed by the Tribunal. All the three claimants are dependant claimants. Therefore, 1/3rd of the income of the deceased 22 has to be deducted towards his personal expenses and remaining 2/3rd of his income is to be taken as his contribution to family. So, the 'loss of dependency' works out to Rs.4,80,000/- (4000 x 2/3 x 15 x 12) and it is awarded as against Rs.3,66,700/- awarded by the Tribunal.
26. As Rs.30,000/- awarded by the Tribunal towards 'medical expenses' is based on medical bills produced by the claimants for Rs.29,952/-, the same is just and proper and there is no scope for interference.
27. Further, it is just and proper to award a sum of Rs.15,000/- towards 'loss of consortium', Rs.20,000/- towards 'loss of love and affection' of claimant nos.2 and 3 at the rate of 10,000/- each, and Rs.10,000/- towards 'transportation of dead body and funeral expenses' and it is awarded as against Rs.45,000/- awarded by the Tribunal towards 'conventional heads'.
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28. Thus, the claimants are entitled for the following compensation:-
PARTICULARS Rs.
1 Loss of Dependency 4,80,000
2 Loss of consortium 15,000
3 Loss of love and affection 20,000
4 Transportation of dead body 10,000
and funeral expenses
5 Loss of Medical expenses 30,000
TOTAL 5,55,000
Compensation awarded by the 4,10,950
Tribunal
BALANCE 1,44,050
29. Accordingly, both the appeals are allowed in part. The judgment and award passed by the Tribunal is modified to the extent stated herein above. It is held that the accident was occurred due to contributory negligence of 75% on the part of rider of motor bike and 25% on the part of driver of auto rickshaw. The claimants are entitled for an additional compensation of Rs.1,44,050/- with interest at 6% p.a. from the date of claim petition till the 24 date of realisation excluding interest for the delayed period of 885 days in filing the appeal.
30. In view of modification of the findings of the Tribunal on negligent, the owner of the motor bike and the insurer of the auto are directed to pay compensation awarded by the Tribunal and this Court at the rate of 75% and 25% respectively with proportionate interest at 6% p.a. from the date of claim petition till the date of payment. From 25% with proportionate interest payable by the insurer of auto, 15% is to be invested in the name of the claimant no.1 and 5% each in the name of claimant nos.2 and 3 in any Nationalised Bank/Scheduled Bank/Post Office for a period of 6 years renewable once in two years and with a right of option to withdraw interest periodically. Remaining 75% of the compensation payable by the owner of the motor bike is to be released in favour of the claimants at the rate of 25% each.
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31. The Statutory deposit made in the appeal of the owner of the motor bike is ordered to be transferred to the Tribunal for disbursement in favour of the claimants.
Sd/-
JUDGE VM