Karnataka High Court
Smt S Manjula vs Sri Vinod Kumar Shyave on 23 December, 2020
Bench: Alok Aradhe, H T Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF DECEMBER 2020
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
M.F.A. NO.416 OF 2019 (MV)
BETWEEN:
1. SMT. S. MANJULA
W/O LATE G. SADHASIVAM
AGED ABOUT 50 YEARS.
2. SRI. S. KARTHIK
S/O LATE G. SADHASIVAM
AGED ABOUT 23 YEARS.
3. SRI. S. BABU
S/O LATE G. SADHASIVAM
AGED ABOUT 21 YEARS.
4. SRI. P. GANESAN
S/O PUNNYAKOTI
AGED ABOUT 72 YEARS.
5. SMT. G. SHANBAGAVALLI
W/O P. GANESAN
AGED ABOUT 70 YEARS.
ALL ARE R/AT. NO.55
"GANESHAN NILAYAM", 3RD CROSS
CHINNAMMA LAYOUT, SUBBALAHNAPALYA
M.S. NAGAR POST, BENGALURU-560033.
... APPELLANTS
(BY SRI. S. RAJU, ADV., FOR
SRI. K.P. BHUVAN, ADV.,)
2
AND:
1. SRI. VINOD KUMAR SHYAVE
S/O NAGARAJ SHYAVE
R/AT SRI LAKSHMI RESIDENCY
NO.1920, 13TH CROSS
MARUTHI LAYOUT
BHUVANESHWARI NAGAR
BENGALURU-560024
(RC OWNER OF HONDA SCOOTER
BEARING REG NO.KA-04-HX-7905).
2. NATIONAL INSURANCE CO. LTD.,
REGIONAL OFFIE, T P HUB
NO.144, SHUBHARAM COMPLEX
M G ROAD, BENGALURU-560001
(INSURER OF HONDA SCOOTER
BEARING NO.KA-04-HX-7905).
... RESPONDENTS
(BY SRI. JANARDHAN REDDY, ADV., FOR R2
R1 IS SERVED & UNREPRESENTED)
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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 26.6.2018 PASSED
IN MVC NO.5723/2017 ON THE FILE OF THE XXI ADDITIONAL
SMALL CAUSES JUDGE AND XIX ACMM, MEMBER-MACT, (SCCH-
23), BENGALURU, PARTLY 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:
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 claimants seeking enhancement of the 3 amount of compensation against the judgment dated 26.06.2018 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 27.09.2017, the deceased Sadashivam was a pedestrian who was crossing the road near Kalyananagar Petrol Bunk. At that time, a motorcycle bearing registration No.KA-04-HX-7905, which was being ridden by its rider in a rash and negligent manner, dashed against the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the same.
3. The claimants thereupon filed a petition under Section 166 of the Act claiming compensation on the ground that the deceased was aged about 52 years at the time of accident and was engaged in real estate business as well as in welding and was earning Rs.20,000/- per month. It was further pleaded that accident took place solely on account of rash and negligent riding of the motorcycle by its rider. The 4 claimants claimed compensation to the tune of Rs.40,00,000/- along with interest.
4. The insurance company filed written statement, inter alia, in which the mode and manner of the accident was denied. It was pleaded that the accident occurred on account of negligence of the deceased himself in crossing the road. It was further pleaded that the liability of the insurance company, if any, would be subject to the terms and conditions of the insurance policy. The age, avocation and income of the deceased was also denied and it was pleaded that the claim of the claimants is exorbitant and excessive.
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.P12. The respondents neither adduced any oral evidence nor any documentary evidence. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent riding of the motorcycle by its rider as well as the negligence of the 5 deceased in crossing the road to the extent of 80% and 20% respectively. It was further held, that as a result of aforesaid accident, the deceased sustained injuries and succumbed to the same. The Tribunal further held that the claimants are entitled to a compensation of Rs.8,04,800/- along with interest at the rate of 6% per annum. Being aggrieved, this appeal has been filed seeking enhancement of the amount of compensation.
6. Learned counsel for the claimants submitted that the Tribunal erred in attributing negligence on the part of the deceased to the extent of 20% when Ex.P3 Spot Mahazhar discloses that the road was 80ft wide and that the rider of the motorcycle had sufficient opportunity to avoid the accident. In this regard, our attention is invited to Paragraph 12 of the order of the Tribunal. It is further submitted that the Tribunal erred in not awarding any compensation on account of medical expenses when the claimants have produced the relevant medical bills as Ex.P7. It is also submitted that the Tribunal has grossly erred in assessing the income of the deceased as Rs.9,000/- per month and in any case, the same ought to have been taken as per the 6 guidelines framed by the Karnataka State Legal Services Authority. It is urged that the Tribunal has erred in not making an addition to the tune of 10% to the income of the deceased on account of future prospects in view of the law laid down by the Supreme Court in 'NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS' AIR 2017 SC 5157. It is also urged that the sums awarded under the heads 'loss of consortium' and 'funeral expenses' are on the lower side and deserves to be enhanced suitably.
7. On the other hand, the learned counsel for the insurance company has submitted that the deceased was crossing a busy road without observing the ongoing vehicles and where there was no zebra crossing and that the Tribunal has after meticulous appreciation of all the evidence on record has attributed negligence on the part of the deceased to the extent of 20%. It is further submitted that the Tribunal has rightly not awarded any compensation to the claimants on account of medical expenses as the claimants have not produced the original medical bills. It is urged that no evidence has been adduced by the claimants to prove the 7 income of the deceased before the Tribunal and that the Tribunal has rightly taken the income of the deceased notionally at Rs.9,000/- per month. It is further submitted that the amount of compensation awarded by the Tribunal is just and proper and does not call for any interference.
8. We have considered the submissions made by learned counsel for the parties and have perused the record. It is well settled in law that when an accident happens through the combined negligence of two persons, he alone is liable to the other who had the last opportunity of avoiding the accident by reasonable care, and who then knew or ought to have known of the danger caused by the other's negligence. [See: SALAMOND ON THE LAW OF TORTS, TWELFTH EDITION 1957 PAGE 439-441]. The general rule is that the vehicle should be driven at a speed which enables the driver to stop within the limits of his vision and failure to do this will almost always result in the driver being held, in whole or in part, responsible for the collision. [See: CLERK AND LINDSELL ON TORTS, ELEVENTH EDITION, 1954 PAGES 368-370]. It is equally well settled legal proposition that burden of proving negligence lies on the 8 person who alleges it. However, facts of the accident may by themselves constitute evidence of negligence and to such a case the Doctrine of res ipsa loquitor apply which means the things speak for itself. The aforesaid rule is one of the exception to the general rule that burden of proving negligence lies on the person who alleges it. The Supreme Court in 'MUNICIPAL CORPORATION OF GREATER BOMBAY VS. LAKSHMAN IYER AND ORS.' AIR 2003 SC 4182 held that the crucial question in case of contributory negligence is whether either party could by reasonable care, have avoided the consequences of other's negligence.
9. Admittedly, PW1 S Manjula is not a eye witness to the accident. Ex.P1 FIR, Ex.P2 Complaint and Ex.P6 Chargesheet have been filed against the rider of the motorcycle. Ex.P3 Spot Mahazhar indicates that the road was 80ft wide and that the rider of the motorcycle had sufficient opportunity to avoid the accident if he were to exercise reasonable care. Ex.P12 IMV Report discloses that front portion of the motorcycle has suffered damage. It is pertinent to note that the insurance company has neither examined the rider of the motorcycle nor produced any 9 documentary evidence to show that the deceased contributed to the causing of the accident. Mere fact that the deceased was crossing the road at a place where there was no zebra crossing may at the most constitute an offence under the Act. However, to prove the plea of contributory negligence taken by the insurance company, the insurer has to prove that there was a causal connection between the violation and the accident or between the violation and the impact of the accident on the victim. In the instant case, the insurance company has failed to prove its plea by leading evidence to the effect that there was a causal connection between the violation of the law by the deceased in crossing the road and the accident. Also, in view of the proposition of law by the Supreme Court in MUNICIPAL CORPORATION stated supra, the finding with regard to the negligence cannot be sustained. Therefore, the finding of the Tribunal that the deceased contributed to the causing of the accident to the extent of 20% is set aside and on the basis of preponderance of probabilities, it is held that the accident occurred wholly on account of rash and negligent riding of the motorcycle by its rider.
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10. Now we may advert to the quantum of compensation. Admittedly, the claimants have not produced any evidence with regard to the income of the deceased. Therefore, the income of the deceased is assessed as per the guidelines issued by the Karnataka Legal Services Authority. Since the accident is of the year 2017, notional income comes to Rs.11,000/- per month. 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, 10% of the amount has to be added on account of future prospects. Thus, the monthly income comes to Rs.12,100/-. Since, the number of dependents is 5, therefore, 1/4th of the amount has to be deducted towards personal expenses and therefore, the monthly dependency comes to Rs.9,075/-. Taking into account the age of the deceased which was 54 years at the time of accident, the multiplier of '11' has to be adopted. Therefore, the claimants are held entitled to (Rs. 9,075x12x11) i.e., Rs.11,97,900/- on account of loss of dependency.
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11. 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.' IN CIVIL APPEAL NO.2705/2020 DECIDED ON 30.06.2020 each of the claimant's are entitled to a sum of Rs.40,000/- on account of loss of consortium and loss love and affection. Thus, the claimants are held entitled to Rs.2,00,000/-. In addition, claimants are held entitled to Rs.30,000/- on account of loss of estate and funeral expenses. From perusal of the order of the Tribunal, it is evident that the Tribunal has not awarded any compensation on account of medical expenses incurred by the claimants. However, it is pertinent to note that PW1 S Manjula in her cross-examination has denied the suggestion that the bills marked as Ex.P7 are not the original bills and no evidence has been produced by the insurance company to doubt the genuineness of the contents of Ex.P7 Medical Bills. Therefore, the claimants are held entitled to Rs.1,62,965/- on account of medical expenses incurred by the claimants. Thus, in all, 12 the claimants are held entitled to a total compensation of Rs.15,90,865/-. Needless to state that the aforesaid compensation shall carry interest at the rate of 6% per annum from the date of filing of the petition till the payment is made. To the aforesaid extent, the judgment passed by the Claims Tribunal is modified.
Accordingly, the appeal is disposed of.
Sd/-
JUDGE Sd/-
JUDGE ss