Karnataka High Court
Laxmibai W/O Late Siddappa Patil vs P B Ibrahim on 5 January, 2018
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5th DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
MISCELLANEOUS FIRST APPEAL NO.102501 of 2014(MV)
BETWEEN
1. LAXMIBAI W/O LATE SIDDAPPA PATIL
AGE: 51 YEARS, OCC HOUSEHOLD WORK,
2. GOURABAI @ SUNITA W/O RAVALUE PATIL
AGE: 34 YEARS, OCC: HOUSEHOLD WORK,
3. KUMAR BHAUSAHEB S/O RAVALU PATIL
AGE: 11 YEARS, OCC: STUDENT,
4. KUMARI VAISHNAVI D/O RAVALU PATIL
AGE: 09 YEARS, OCC: STUDENT,
5. KUMARI VAISHALI D/O RAVALU PATIL
AGE: 07 YEARS, OCC: STUDENT,
SINCE APPELLANTS NO.3 TO 5 ARE MINORS
THEY ARE REPRESENTED BY
NATURAL GUARDIAN MOTHER APPELLANT NO.2
ALL ARE R/AT H.NO.145,
BRAMHALING GALLI,
AT KARLE, POST KINAYE,
TQ & DIST: BELGAUM
... APPELLANTS
(By Sri. SANJAY S KATAGERI, ADV.)
AND
1. P B IBRAHIM
AGE: MAJOR, OCC: CLASS -I CONTRACTOR
2
PWD CONTRACTOR,
R/O BANDOR ROAD BHATKAL,
AT BOLANGADY,
POST: PANEMANGALORE - 574231
TQ: BANTWAL, DIST: SOUT CANARA
(MANGALORE). (OWNER OF L & T 752
VIBRATORY COMPACTOR-ROAD ROLLER BEARING
REGD. NO.KA.20/0001.)
2. THE BRANCH MANAGER
THE NEW INDIA INSURANCE CO., LTD.,
I FLOOR PUSHPA BUILDING,
MAIN ROAD, KUNDAPUR - 576201
DIST: UDUPI
... RESPONDENTs
(By Sri. LAXMAN B MANNODDAR, ADV. FOR R2.
NOTICE TO R1 IS DISPENSED WITH VIDE ORDER DATED 06.01.2016)
THIS MFA IS FILED U/SEC.173(1) OF MV ACT 1988,
AGAINST THE JUDGMENT AND AWARD DTD:12.03.2014,
PASSED IN MVC.NO.1727/2010 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT
BELGAUM, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MFA COMING ON FOR ORDERS THIS DAY, THE
COURT, DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal has been preferred by the appellants-claimants assailing the judgment and award dated 12.03.2014 passed by the Principal Senior Civil Judge and Addl. Motor Accident Claims Tribunal, Belagum, in MVC No.1727 of 2010.
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2. Heard. The appeal is admitted and with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal.
3. Brief facts of the case are that on 13.05.2010 at about 10.30 p.m., one Ravalu, s/o Siddappa Patil and Shivaji Shankar Patil were proceeding on a motor cycle bearing registration No.KA-22/EC-327. Ravalu was riding the motor cycle and Shivaji Shankar Patil was a pillion rider and when they came near Fluid Dynamix Limited, they hit to L & T Vibratory Compactor road roller bearing No.KA- 20/0001 which had been parked without any signals or indicators so as to warn the other road users to identify the parked vehicle. As a result of the said impact, the petitioner fell down and sustained fatal injures and succumbed to the injuries at the spot. It is contended that the deceased was serving in Polyhydron Systems, Macche Industrial Estate and was getting salary of Rs.10,000/- per month. For having lost the bread earner, mother, wife and children of the deceased Ravalu filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation. 4
In pursuance of the notice, respondent Nos.2 and 3 appeared through their counsel and filed separate written statement. Respondent No.1 did not appear and was placed exparte.
Respondent No.2 by denying the contents of the petition, further contended that the accident had occurred due to the rash and negligent riding of the motor cycle by its rider; that the operator of L & T 752, Vibratory Compactor road roller No.KA-20/0001 and the rider of the motor cycle were not holding valid and effective driving licence as on the date of the accident and further contended that the liability of respondent No.2 is subject to the terms and conditions of the policy. On these grounds, he prayed for dismissal of the petition.
Respondent No.3 by denying the contents of the petition, further contended that the accident had taken place due to the rash and negligent riding by the rider of the motor cycle and not on the part of the operator of the road roller. Hence, he prayed for dismissal of the petition.
On the basis of the above pleadings, the Tribunal framed the following issues:
1. Whether the petitioners prove that alleged accident in question was occurred due to rash and negligent driving of L & T 752, Vibratory Compactor road roller KA-20/0001?
2. Whether the said L & T 752 Vibratory Compactor road roller KA-20/0001 was insured with the respondent 5 No.2 and the driver of the L & T 752 Vibratory Compactor road roller KA-20/0001 was holding valid and effective driving licence on the date of the alleged accident?
3. Whether the petitioners are entitled for compensation? If so, for what amount and from whom?
4. what award or order?
In order to prove the case of the petitioners, petitioner No.3 was examined as PW-1 and got marked Exs.P-1 to P-
12. On behalf of respondent No.3, its officer was examined as RW-1 and got marked Exs.R-1 to R-5.
After hearing the parties to the lis, the impugned judgment and award came to be passed by the Tribunal. Assailing the same, the claimants are before this Court.
4. The main grounds urged by the learned counsel for the appellants are that the Tribunal was not justifiable in holding that the deceased Ravalu had also contributed to the alleged accident to an extent of 30%. He further contended that the accident had occurred at about 10.30 pm and the operator of the road roller had parked the vehicle without there being any signals or indicators to warn the other road users. Then, under such circumstances, the entire liability 6 ought to have been fixed on the operator of the road roller. He further contended that a charge sheet has been filed as against the operator of the road roller and in that light, the Tribunal ought to have fixed the liability on the insurer of the road roller. The petitioners have produced Ex.P-10 to show that the deceased was working as a machinist boring in Polyhydron Systems Private Limited company and was earning Rs.6,300/- per month. Since he was having a permanent avocation and fixed salary, then, under such circumstances, the Tribunal ought to have awarded future prospects. The Tribunal having not done so, has resulted in miscarriage of justice. He further contended that the compensation awarded under the conventional heads is on the lower side. On these grounds, he prayed for allowing the appeal by enhancing the compensation by fixing the liability on the operator of the road roller and insurer.
5. Per contra, learned counsel on behalf of the respondent-insurer vehemently argued by contending that though the petitioners have produced the document to show that the deceased was working as a machinist boring in 7 Polyhydron Systems Private Limited, they have not substantiated the said fact by examining the owner of the said company and they have not stated the fact that whether the deceased was permanently appointed or that he was working temporarily in the said factory. He further contended that when a vehicle is parked, a duty is also cast upon the user of the road to take all precautions and all the vehicles will be provided with head light and in that light, in the instant case, the petitioner could have observed that the road roller was parked and could have avoided the accident. In that light, the Tribunal has rightly come to the conclusion that the deceased has also contributed to the accident to an extent of 30% and has rightly awarded the compensation. He further contended that in the absence of any fixed income and avocation, the Tribunal has rightly come to the conclusion and has not awarded any amount under future prospects. On these grounds, he prayed for dismissal of the appeal by confirming the judgment and award passed by the Tribunal.
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6. The accident is not in dispute so also involvement of the offending vehicle insured with the respondent-insurance company.
7. As could be seen from the impugned judgment and award, it is contended by the petitioners that the deceased was working as a machinist boring in Polyhydron Systems Private Limited, Belgaum. Though the document produced shows the income of the deceased as Rs.6,300/-, they have not placed any evidence on record to show that the deceased was having a permanent avocation and he was getting a fixed salary. In order to substantiate the said fact, they could have examined the proprietor of the said company. Though during the course of argument, learned counsel for the appellant by drawing my attention to Ex.P.10- from the lower court records, further contended that deductions towards PF, ESI and under other heads indicate that the deceased was having a permanent avocation, merely because some amount towards PF and ESI has been deducted, it cannot be held that the deceased was having a permanent avocation and a fixed salary. The 9 Hon'ble Apex Court in the case of National Insurance Company Limited v. Pranay Sethi and others reported in AIR 2017 SC 5157 has observed that in order to grant future prospects, the deceased must have permanent job or if he is a self employed, he must have a fixed salary. It has been further observed that when a person is in a permanent job, there is always enhanced payment for one reason or the other. In the instant case on hand when nothing has been produced to show that the deceased was having a permanent avocation and fixed salary, in that light, the contention taken up by the learned counsel for the appellants to include future prospects is not acceptable in law and the same is liable to be rejected.
8. Though the learned counsel appearing for the appellants contended that the compensation awarded by the Tribunal is on the lower side, as could be seen from the impugned judgment and award, the petitioners have contended that the deceased was working as a machinist boring in a Polyhydron Systems Pvt. Ltd. Company, Belgaum and was getting income of Rs.6,300/- per month and is 10 having agricultural properties, they have not produced any documents. Therefore, the Tribunal by taking the notional income of Rs.6,000/- per month, after deducting 1/5th towards personal expenses of the deceased and after applying multiplier of 15, has awarded an amount of Rs.8,64,000/- towards loss of dependency. In order to substantiate the fact that he was getting more income than the one which has been fixed by the Tribunal, nothing has been produced by the appellant/claimants. In that light, the compensation which has been awarded under the head of loss of dependency appears to be just and proper. Even as could be seen from the judgment and award, the Tribunal has awarded an amount of Rs.65,000/- under conventional heads. In view of the decision of the Hon'ble Apex Court in the decision quoted supra, the compensation awarded under conventional heads appears to be just and proper and the same is confirmed.
9. The second contention which has been taken up by the learned counsel for the appellant is that the Tribunal 11 was not justified in holding that the deceased has also contributed to the alleged accident to an extent of 30%.
10. As could be seen from the impugned judgment and award and other records, which have been produced along with the petition, the road roller was parked on the road near a steep curve before the accident place. It also discloses the fact that the road roller had been parked without any signal and because of the same, the alleged accident has taken place. The respondent-insurer has examined RW-1-Veerabhadrayya. He, in his evidence, has deposed that the deceased was riding the motor cycle along with a pillion rider rashly and negligently and dashed to the stationed road roller which was parked on the road and therefore, the question of driving the said vehicle rashly and negligently and thereby its involvement in the accident does not arise at all. Except that, nothing has been elicited in the evidence of RW-1. If really, the said road roller had been parked carefully and cautiously with the warning indicators, then, under such circumstances the accident itself could not have taken place or the rider will be having a chance to avoid 12 the accident and he could have avoided the accident. In order to show that the operator of the road roller had taken all the reasonable care, which could have been taken by prudent man, the respondents have not lead evidence to that effect. Even nothing has been elicited either in the cross- examination of the petitioner to show that the said road roller had been parked with any sign board or the indicators nor the operator or any other person in-charge of the road roller was examined to say that any sign board or indicators were put on. Even as could seen from the hand sketch map- Ex.P-4, the road roller had been parked near the curve of the road. Section 122 of the Motor Vehicles Act, 1988, states that no person in charge of a motor vehicle shall cause or allow the vehicle to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers. When admittedly the alleged accident has taken place during the dark night and the road roller had been parked on the road near the curve without 13 any signs or indicators, then under such circumstances, the negligence is on the driver of the parked vehicle and not on the rider of the motor cycle. This proposition of law has been laid down by Division Bench of this Court in the case of Kumari Jyothi and others v. Mohd. Usman Ali and others reported in ILR 2002 KAR 893 wherein at para 13 it has been observed as under:
"13. Nothing has been elicited in their cross- examination to show that lorry had parked with any sign or indicator. Neither the driver nor the cleaner of the lorry was examined to say that any sign or indication was provided in regard to the parked vehicle. Section 122 of the Motor Vehicles Act, 1988 provides that no person in charge of a motor vehicle shall cause or allow the vehicle to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers. In similar circumstances, the High Court of Gujarat in Premlata Nilamchand Sharma v. Hirabhai Ranchchodbhai Patel, the High Court of Punjab and Haryana in Nirnal Bhutani v. Haryana State and the Delhi High Court in Pushpa Rani Chopra v. Anokha Singh have held that where the place was dark and where the vehicle was parked without any sign or indication to warn other road users, 14 the negligence is on the driver of the parked vehicle and not the driver of any vehicle which dashes into such parked vehicle."
Keeping in view the ratio laid down in the decision quoted supra, the aforesaid finding of the Tribunal appears to be not justifiable and the same is liable to be set aside. In that light, the said finding has been set aside and the entire liability is fixed on the respondent Nos.1 and 2 and respondent No.2 is directed to deposit the compensation awarded by the Tribunal.
Accordingly, the appeal is allowed in part. The judgment and award dated 12.03.2014 passed by the Principal Senior Civil Judge and Addl. Motor Accident Claims Tribunal, Belagum, in MVC No.1727 of 2010 is modified as indicated above. The finding that the deceased has contributed to the alleged accident to an extent of 30% is set aside. The entire liability is fixed on respondent Nos.1 and 2 and respondent No.2 is directed to deposit the compensation awarded by the Tribunal with up to date interest within a period of six weeks from the date of receipt of a certified copy of this judgment.
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Registry is directed to draw the award accordingly and shall send back the records to the jurisdiction Tribunal forthwith.
Sd/-
JUDGE Kmv