Karnataka High Court
The Manager The New India Assurance Co ... vs Smt Shanthamma on 12 July, 2010
Bench: K.Bhakthavatsala, Ravi Malimath
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12" DAY OF JULY 2010
PRESENT
THE HON'BLE DR. JUSTICE K:.'B'HAI<T.H';Av£\T§P§L!'\
AND
THE HON'BLE MR.JuSTICfiET.RAv.I 'MALIOI\?:_Afi.-ix 3
MISCELLANEOUS FIP$T--?§PF:EAl:.'_PxiC5';'--1j1$88 OF 2005 (MV)
MISCELLANEO_uS_ FIRST"APPE_Ex_L;"N'O.26V7Q" OF 2006 (Mv)
IN MFA 0-
BETWE N " - . 7'
The New India AsSI,rFauI.Ce---.C0. Ltd.,
Bagalur Mah.SiOfl,_II F§.00T~,"
Dodédapet, K0I"a.rV.
* _ POHCV I510.6,72I0'1/3.1.100/00464.
' Its Sr.D|v:sI0naI Manager,
New 'II"Id"|'E*._F\SSL£~¥'EinC€ Co. Ltd.,
Divi'Si0nai'~()_ffEF1Ce ~ XI,
Tower Block', 4"' Floor,
UnIty..B'CsI!dIng, J.C.R0ad,
_eaeLngaiVor'e -- 560 002. ...APPELLANT
-.A('By_'iSrI M.Naraynappa, Advocate)
AND
1. Smtshanthamma
Aged about 49 years.
2. Kum.Munirathnamma
Aged about 22 years.
3. Kumshobamma
Aged about 19 years.
4. Kum.Sunithamma
Aged about 16 years,_
No.1 is the widow and !\_E'os'.>2.tC»' 4_ .
are the chiidren of ia.t.e._Narayana"Fteddyf
No.4 is min_or.,a Repgby .th'eir..rr1~ot-her" and
natural G_u3.ardg1a'n_i i\i.o'..1 and ail are
R/o Gan'dod_ahaiii',__ Kyasa~~m_bai'i'a Hobii,
Kuppalpalya. Post, Ba.n'gar.pAetd Ta§u k.
5. Sri 'B.R_ahar1*%'at.hu!la'S/o...T..At:du| Basheed,
Age'd_ab.ou't 38.$/eaii'S_,'<,' "
R/o Alid€FiSOlT§}et*g' ,_ _ i A
Robertstoénpete H'obi~i,, K..--.f3.F
C.;'w"ne.r of Passe'nge'r Bus Hearing
.fR'egnu, sup.KAéo5=2.875(JIBs)
A A ...RESPONDE|\£TS
fiied under section 173(1) of MV Act,
against theiguidgment and award dated 22.08.2005 passed
in M"tIC."-No.24/2001 on the file of the Civil Judge (Sr.Dn.) &
.~.._*-.iViemb'e,r,'i~Add|. MACT, K.G.F., awarding compensation of
R3Vi.a14_,95}OOO/-- with interest @ 6% PA. from the date of
* the petition tilt the date of deposit.
IN MFA NO.267O OF 2O06(I91\3/)-
BETWEEN
1. Shanthamma W/o Naarayana reddy
Aged about 49 years.
2. Sunithamma D/o Narayanareddy
Aged about 16 years.
R/at Gondodahaili Kyasambailila '1'
Kuppalapaiya Post " '
BangarapetTaluk. _ ...APPEL.LAi\IT$ V
(By Sri A.S.Shi\/areddy and §rr:,:tV.bKaipana_Ff.'\i.', Advocates)
1. B.Rahamathuila
S/o T./kbduI;f.Basheetfffi-1.aj'or
R/Va
R1.obertso':ipet Hob!i_,KV__ _ '
2. The Manager V .
The New V-India Assurance Co. Ltd.,
._"":Bagaiu_r Mah'3§0.n.,w
1 1'" 1":-"l0_or,_ Docfdapet,
' ~.KoVi.,a'r'r. '
".3. "'rtMunirVatbar3amma
"'««._Ag,ed about 22 years.
Sbobamma
"r-Aged about 21 years
Respondent No.3 and 4 are residing
Gondodahaili, Kyasambaila Hobii,
Kuppaiapolya Post,
Bangarpet Taluk. _..RESPONDENTiS
(By Sri M.Narayanappa, Advocate for R2,
Sri V.M.LaE<shmipathi, Advocate for R3 & R4,
R1-Notice dispensed with)
This MFA is filed under sec.'ti»oVn'"1?3"--.(1}<
against the Judgment and award d»ateaj'h23£.Or8.2005 'passed
in MVC.E\io.24/2001 on the file of the__Ci'v_i| Judge{Sr'~.Dn.'}--~.&'~_
Member, Addi. MACT, KGF, '«partiy'~..aiiowing'uthe, ciaim , *
petition for compensation an"du"seeking---._eh.h_anc'ement of
compensation. ~ *
These appeais C3:.»|V'i'V. giil'-tearing this day,
Dr.K.Bhai<thavatsaia 3., de-Eiverfed :the,_fo.l_I.ow'ij_ng:-
Avppgae,'"ih*I,;iY1Vi=A_"11883/zoos and MFA 2670/2006
fiied and the claimants (mother
and siste'r___oif_tVhe_ respectively, are directed
agaip:s'tt*one anddtheisame judgment and award dated
.AZ2..(:)8.2i(}AOS.4vA:r*nade in MVC No.24/2001 on the fiie of the
itCigvhiiijodg'e»--(S*ir;'"i§n.)/Additional MACT at Kolar.
" We have heard common arguments and
tyriocteea to dispose off these appeals by this common
it Wjudgment.
!
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3. Sri.Narayanappa, learned Counsel appearing
for the Insurance Company submits that the decea4sve_d-yvas
traveliing on the roof--top of the bus and
deceased had violated Section _1;3__ (2)0of~.:t_ij,e°'~:i~{i*oto.ru 0'
Vehicles Act but the tribunai has not they co'ntrE'o:ut--to"i'i,:_:
negligence on the part of thle"'-d_eceas.e'd to 't,:he{fiex,tVer$t of
50%. He aiso submitsfithat thye4_l:t:r'il:)_unal erlreidlin deducting
only 1/3" instead of S03/;5.ol'-.--,,of the deceased
bachelor towards his the point of
contributory.-» cited the following
decisiorvfiyVrywliihyup A .t . . .
-. "1179 (Sn'it.Mayamma Vs.
0' ._y4Sri.S'i.dd'aiah"'a_ndVanother)
ILli=2.oo3 i:<ZAR 3602 (Smt.Shivloela and others
Karnataka State Road Transport
" Co_rp.oration)
iii)" 2000 KAR 4416 (Gulam Khader & another
vs. United India Insurance Co. Ltd., & another)
4. Learned Counsel appearing for the claimants
"submits that Ul:deceased was the only son and the
mother and unmarried three sisters were dependent upon
the deceased. It is submitted that the decea_sed-.,,_:w.as
earninag Rs.10,000/-- per month from
sericulture and vending milk but the t_ribun'ai"i1.;a,g. 7fi'>'<ed _th_,e
income of the deceased at
Therefore, she submits thatithe com'pr--:nsavti'o.;f.~_..(113V
enhanced. On the point ofnegligence,
she submits that the driver of
the bus was e><amine"d":.t:o: was any
negligence Therefore,
fixed on the deceased.
She c-.it'ed.VvSt'h¢"-ioi!Q'w'i.ng--decisions.
i)'« India Assurance Co Ltd.,
,,J_'a\fash'ree and others)
2004 KAR 962 (NWKRTC vs. Devamma
,,, .. ti" others)
"'fIi_R 2000 KAR 612 (United India Insurance Co
" Ltd., vs. Doddapapaiah and another)
S She also cited a decision reported in 1987 AC] 561
it "(Gujarat State Road Transport Corporation, Ahrnedabad
L
Vs. Ramanbhai Prabhatbhai and another) on the point that
the Sisters depending upon the brother of the fa'rnii~y_:'ia_re
entitled for compensation.
5. We have perused the reco:rds:'of7t.he.'trib'unsa_!¢.'~=:i;_*é
6. It is the case of the mother
and three sisters aVg"e.d'_ab_ou:_t and 13 years
respectively that-the aged about
28 years, from agriculture,
sericu|\tUEeV--'....V.V:ia; ii; The deceased
Jayararna-_i'edVdyV'.ifnet accident that occurred on
andV"di'ed.»--4'::"f»h4eV.'.deceased Jayararnareddy was
tra,.~1§eiiing on V'the:Vroof:---top of the bus bearing Registration
i from" Mulbagai towards Bethamangaia.
'Diner'Av!'tifai__wa'sV..the driver of the bus. It is stated that on
acccun'-tgotirush inside the bus, the driver and conductor of
1he_bus told the deceased Jayaramareddy and others to sit
the top of the bus and when the bus was proceeding
it "near Bangaru Thirupathi Circie (euttahalii) and due to rash
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and negligent driving of the bus by its driver on high
speed, the bus hit a branch of baniyan tree and as.a_ir.es~ult
of which, the deceased Jayaramareddy
injuries and on the way to t_h,e_hos.p'ita'l----,i7~he-1 djed,.u
Therefore, the claimants have filed a;fclar'im'ipetitionhndiieirsi
Section 166 of the Motor Ve_hi--cles 1983'ajradsoiuugvhtH»
compensation in ail arnounting__4_l:tti..:Rs..._}0,l§Q;%é/f€v«fifrom the
owner and insurer of 'Ev|1"'r,'3zv:";')LJ&".i,i'| _
The e><--parte. The
insurenof, statement denying the
avermieints and sought for dismissal of
the sarneilu the written statement, the
Insirravnce Con'rpany has taken the contention in pleadings
. tgriatgtheideceased was travelling on roof top of the bus and
deceased had violated Section 12.3 (2) of
Motor V,eh':cuies Act, 1988 and the Insurance Company was
"notliahlle to pay the compensation.
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7. The tribunal framed an issues on the point of
negligence, whether the Insurance Company proves that
there was a violation of Section 123 (2) of Motor Veh--i.c!es
Act, 1988 and therefore, it was not liable
compensation and on the point of 'A
compensation.
8. The Insurance Com,_panv"'has taker} rperrnission
to contest the case on all the by an application
under Section 170 of' M'_ototAVl'\r'ehviVlc'3eps Act, i988. In
support of the case of,,,t,h:ie..,cla__iniants,"tinged-V"mother of the
deceased -Javarairtaéregdédvl"got"herself examined as PW--1
besides e*xaunlii,nin'g."o.ne.:'Cshandrashekar as PW--2 and got
marked One l<.Chidambaram has been
.e}<ar_nin,ed.%a.sV"RW~1. The tribunal after hearing arguments,
.peru.s'ing"ev.id'e'nvce and material on record has answered
--V Issue .N"os.'ifand 3 in favour of the claimants holding that
"f,t'iiet-claimants established that the accident occurred solely
id-uleflto rash and negligent driving of the bus in question
it "and as a result of which, the deceased sustained grievous
L.
_'_§_O_
injuries and died and the Insurance Company failed to
prove that the deceased Jayaramareddy vio|ated_4vSV_ec_tl~on
123 (2) of Motor Vehicles Act, 1988 and th_e{e'i¢"i=ej',;--:.tiie_f_
Insurance Company was liable to pay the'co"mur;ensatiVont..
The tribunal determined compen':..atio"n..:of'=F§s;i';95ll3r€)gO)5e_:
and awarded the same along"i_iv'i't_h costs and i*nteiwt.estyV@~36%
per annum in favour of they___c'l'a».ir_na_nts .ai'~.«d:V_aga5inst the
owner and Insurance Con'l'ipai-iy.{.g'}'h"i"sfjisg"impugned in both
the appeals.
9, ____ addressed by the
learnecl._CounseiV.fori:the"partie-st, we formulate the following
points
tribunal is justified in holding that
-t:he__deceased Ilayaramareddy died solely due to
and negligent driving of the bus by its
"driver?
" Whether the quantum of compensation
awarded by the tribunal is adequate or
otherwise?
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10. POINT No.1: At the very outset, it must be
mentioned that the claimants have not made the.V_dr_4i'v.er
and conductor of the bus in question as part._ie's"td---_tiiE3_x'.
Claim Petition nor examined thern...to__ estab'lish7_':t.ha'tthey'
permitted the deceased 3ayarama.recE'dy.:'to'=tra\}e! 'doth--..«t'i;1e:
roofwtop of the bus. PW--1, the-~.n1othAerV:of. therdVece.ased is
not an eyewitness to the acciV_dein»t,_ 'She hasonlyideposed
that she came to kn'o\;~i}T.aboui.t;.accident when the
deceased was4_i'retur;;.i'/'/\1'§_}~..itoi" .th.e' after seliing
vegetab|es:.£${.ia.cr.i<e._t, ifjetc. she has further
deposed thatVtiiem-..dece'a.se*d was earning Rs.10,000/-- per
month from a!!_ sou
Chandrashekar has deposed on oath
HbefhorevVtr*iVe§CduEt that on 13.08.2000, after the completion
g of 'Vpersonai work, he boarded the bus to reach his
\"/iiiaia._gei<oIiur and at that time, one Jayaramareddy came
'heat the bus to board but the bus was full and the
uwiconductor and cieaner of the bus asked Jayaramareddy
L
40412-
and other passengers to sit on the top of the bus and
accordingly, the deceased and others went on the_4.roie.f:¥itop
of the bus and when the bus reached
Thirupathi Circie (Guttahaiii), theiciriyer to'oi<-ear.gd'e:i/iagtion
towards right side. At that time,V'i.ban'i'yan tr,e_e,' wh'i'c:i:i..__wia3A
situated on the side of the roia'd._,_hit 2J'ayVaramia;re.ddy,VV
and others heard the sound.V___4_i:Vinnin1.e»diatheist,iguthevibus was
stopped and noticed "thiatg had sustained
bieeding injurie_s*a_nd he' t'a'k«e,n f5:e.t.hamangaia in the
same bus iji-iiC3'i"-iiihiospitai, he died.
'£A2.--. ' is the Senior Assistant of
the Insura4_nc.e_ He has deposed on oath before
the«.iCou~rt that was authorised to give evidence in the
»c'a.s'e. i.§¢§ie4:"'rias deposed that since the deceased was
H'tra\1ieiiving."_'i-.0i'i;'V"vthe roof--top of the bus, the Insurance
Co.r'npa*VnVy"is not iiabie to pay compensation as per Section
12-3_ of the Motor Vehicle Act. He denied the contention
the claimants that the conductor and cieaner of the bus
'permitted the deceased and others to sit on the top of the
_;_4M
roof--top of the bus. The evidence of PW--2 that the driver
and conductor of the bus permitted the deceased tofitriaivel
on the roof top of the bus is not sufficient to .
deceased was not responsible_...and _t'he're--:'jw'as"_no
contributory negligence on the "part'"o'f 'L»he= _dec'e:a-sgei:1.;_:
There was negligence on th_e"---part "of thef'f.dec_ea.sVed3 on --. "
account of traveling on the Agr_o:oftopV»_t_gof ftheshgugggffiand the
same is in violation ofVS"ectiorAi. Motor Vehicles
Act, 1988 and the_refo:re',"'f*i$£inVg' the part of
the driver ii';-lllcoinltfrary to the facts on
record rendered by Division
Benches ofthfivsltfjotirt,»'r'e.oo'*:ted' in ELR 2003 KAR 1179 and
ILR 2003"i<.A%R_3iS'QfiV.*V.: 'held that the accident occurred
duetoy contribfutory/_ negligence on the part of the driver as
»we--li__as.:_dece:a'sed must be fixed in the ratio of 50:50. The
.tritJunal 'eTr_redg::.'i'n holding that there was no negligence on
the44"par't_of"the deceased while travelling on the rooftop of
tfl'i'e~-._busN. Therefore, we answer the point formulated for
Aogurflconsideration in favour of the Insurance Company and
Magainst the claimants.
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13. POINT N0.2:-- The claimant No.1 is 45 years.
The deceased was 28 years and he died as a h»a.cn..el0.r.
Though, 'rt is stated that the deceased
Rs.10,000/-- per month, there is__,no_evidence::'_p.ia'ced.,
record. Ex.P7 stands in the name-of c_i'air'na'i:t N.o".i.' ..Ex..'P.vE;:
is sale receipt dated 02.01.1'9i9_9.,,V TheV-acci.d_eh.t¢.§c--:.i.r.reid on
13.08.2000. The clairnants producnediany such
bill from Mulbagal the deceased
was earning,4!§'s.._E§,000/3riser' sericulture.
Keeping years old and he
died ,,e\.r.e:ri~~._h'a-'had worked as a Coolie, he
could haire per month. Whereas the
trit:u::n'ali'~ has.' the income of the deceased at
r 1V,5.00,/--.,oe.r__month, in our view, it is on the lower side.
Since th'e."jde'ce'ased was a bachelor, as per ratio laid down
g in i.Q00fKAR 4416 (Gularn Khader & Another vs. United
2 1ndi_a Insurance Co. Ltd. 8: Another). 50% of the income
be deducted towards the personal and living
Vwexpenses of the bachelor. It is also stated that where
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vm§-6---
family of the bachelor was large and dependant on the
income of the deceased, as in a case where h_4eV,}".-a's~.._a
widowed mother and large number of younger.r§_o.n¥'eVa'if--ning_'" .
sisters or brothers, the contributitmto the'famiilx/*'.ivVi'li.V "
taken either as two--third or calcltilatjeidr.lbt/'».ado'pti'n§l'----..ui*ai?t:
method. The tribunal has d'ed'uVctedai'1/i3". 'o'a'b't'tiVe'~eaVrn3ings
towards personal expenses o_f___the =d_eceased_._ Siince the
decision reported in supra says that
in a case whererthue mother and
large numbe::~.,tQ'f:'§:o:1'Jricieri'non:e§'r.f.n'i'ncjWsisters or brothers,
the contri.bu'twi.o:n::t:Q:_to be taken as 2/3"} or
by adopting the instant case, the tribunal
has deducted ,1/x3'_"R'o.f income of the deceased on the
gro.-ind that theV--..claimlant No.1 is the widowed mother and
»the_VcialA'n1.an,ts~.2 to 4 were dependant sisters. Therefore,
thpé'-~.coVnte"n--tioTn'of the learned Counsel for the Insurance
Compzany that the 50% of the income is required to be
deducted towards the personal expenses of the deceased
no water. For the reasons stated in the impugned
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judgment, the tribunal has awarded compensation in
favour of the claimants as under:--
1. Loss of dependency Rs. .
(RS.12,000 X 15)
2. Loss of expectancy Rs; ._ -3
3. Funeral expenses
4 ?.__.».u
Total
14. Since we .At;je__'_earnings of the
deceased at after deducting
1/3'" of expenses of the
deceaseidiyny are entitled for a
sum towards loss of dependency.
Since the c'l'ai.n1ant l\l'o.1"'.was 45 years old and as per the
' lfatitoalaitcl down RQSARLA VERMA & OTHERS vs. DELHI
1*RANEs:PogR'"l*'VQQRRORATION AND ANOTHER (REPORTED IN
2UQ__i3 121, we apply multiplier 14 which is
applicalple to the age group of persons 41-«~45 and award
1' -,lcro.mypensation as underr-
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1. Loss of dependency
(Rs.2000 x 12 x 14)
2. Loss of love and affection
3. Loss of estate
dead
Transportation of
body and funeral expenses.'
Total
' Rs.
RS.
Rs.
Rs.
RS; ,.
3,36,0ClO-~OO
H 10;;000'l400f Q
Since we have held..tbat3~;.,'t.he'i=é':l a contributory
negligence by _the__ dec'éa's*ed Vtojjthlell'.e>tte"n't of 50%, the
claimants are"'»vent1i:t_!_ed"to __SO.F?/o offlthe Clonapensation amount
which comestto
15."i.__I"n _tEi"e_résu'lt;'_"_.ti.ré pass the following:
ORDER
L/ if in MFA 11888/2005 and MFA 2670/2006 fixing contributory negligence on the j part ofttheéldeceased Jayaramareddy to the extent of 50% arid.__ the claimants are entitled for compensation of 1"gVs.iA;83,000/~ (i.e., 50% of Rs.3,66,000/--). The Insurance wC0mpany is directed to deposit the balance cornpensation -19- amount with the tribunal within two months from today along with interest @ 6% per annum from the_4d_ate*~.of petition till realisation. Accordingly, judgment and award are modified_.;.....T_he s_tatU'torj,r'arn'0,un.t "
of Rs.25,000/-- deposited in transmitted to the tribunal. '?'~l.C_vi"'c.osts.A"~ DS