Karnataka High Court
R Padmanabha vs Ellaboina Parvathalu @ E Parvathalu on 10 February, 2020
Bench: Alok Aradhe, Ravi V Hosmani
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY 2020
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
MFA NO. 9218 OF 2013(MV-D)
BETWEEN:
R Padmanabha,
S/o Ramalingaiah,
Hindu,
Now aged 35 yeas
R/at No. 806, 5th A Cross,
1 Block, HRBR Layout,
Kalyananagara,
Bangalore 43.
... APPELLANT
(By Shri. T.C. Sathishkumar, Advocate)
AND:
1. Ellaboina Parvathalu
@ E.Parvathalu
S/o Parvathalu,
Hindu, now aged 61 years.
2. Smt. Laxmi Ellaboina
W/o Ellaboina Parvathalu @ E Parvathalu,
Hindu, now aged 50 years.
3. Ellaboina Sunitha,
D/o Ellaboina Parathalu @ E Parvathalu,
Hindu, now aged 29 years.
4. Mallikarajuna Raju Ellaboina
S/o Ellaboina Parvathalu @ E Parvathalu,
Hindu, now aged 26 years.
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All are r/at Old MQ No.11,
Indiranagar, Po. Ghugust Colliery,
Chandrapur District.
Maharashtra State 442 505
5. Riyaz Pasha
S/o Shaukath Ali
Muslim, Major,
R/at No.209, 2nd Street,
I Cross, Kushalnagar,
K.G. Halli, Bengaluru 45.
... RESPONDENTS
(By Shri. R Krishna Reddy, Advocate for R1-4)
Vide order dated 1.4.2016 notice to R.5 dispensed with)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 3.7.2013 PASSED IN MVC.NO. 432/2012 ON THE FILE OF
THE 17TH ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES,
MAYOHALL UNIT, BANGALORE, AWARDING A COMPENSATION OF
RS.53,34,000/- WITH INTERST @ 6% P.A. FROM THE DATE OF
PETITION TILL P AYMENT OF ENTIRE COMPENSATION.
THIS APPEAL COMING ON FOR HEARING, THIS DAY, RAVI
V. HOSMANI J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal has been filed by the owner-appellant under Section 173(1) of the Motor Vehicles Act, challenging the impugned judgment and award dated 03-07-2013 in MVC No.432/2012 XVII Judge and the Motor Vehicles 3 Accident Claims Tribunal, Court of Small causes, Mayo Hall Unit, Bangalore (hereinafter referred to as the "MACT").
2. The brief facts leading to filing of this appeal are that on 13.11.2011, one Shrinivasa Rao was crossing the service road of the ring road, I block, HRBR layout, Bengaluru. At about 9.15 a.m. a car bearing No. KA- 05- MA-6701 came and dashed against Shrinivasa Rao causing grievous injuries. Immediately after the accident, he was shifted to the hospital, where he succumbed to the injuries. Claiming for compensation of a sum of Rs.60,00,000/-, MVC No.432/2012 was filed under Section 166 of the Motor Vehicles Act, 1989.
3. On service of notice, the respondent No.1 (appellant herein), entered appearance and filed written statement alleging that on the date of the accident, he was driving his car in a moderate speed on the service road of the ring road. At that time, a pedestrian suddenly came running across the road without looking 4 at the on coming car, came in contact with the car, due to his own negligence. It was contended that since the accident and death was due to the negligence of the deceased himself, the respondent was not liable to pay compensation.
4. In support of the claim petition, two witnesses were examined as P.W.1 and P.W.2 and exhibits P.1 to 36 were marked. On the other hand, the appellant herein got examined himself as RW.1.
5. Thereafter the MACT passed an award for Rs.53,34,000/- with interest at the rate of 6% per annum against the respondents No.1 and 2 and it held the issue regarding negligence in causing the accident against the respondents.
6. Assailing the award on negligence, and quantum, the owner of the car is in appeal. 5
7. Shri P.C. Sathish Kumar, learned counsel for the appellant, submitted that a bare reference to the complaint at Ex.P.2 corroborates his version that the deceased, had got down from his friend's motorcycle to attend to natures call by the side of the road. After attending to the nature's call, while trying to cross the road in a hurry he met with an accident. Our attention was also drawn to the spot sketch -Ex.P.3, which indicated that the car was on the left side of the road up to the accident spot. It was also brought to our attention that the damages to the car as noticed in the IMV report at Ex.P.7 also gives a hint that the deceased himself jumped in front of the car without observing oncoming traffic.
8. Learned counsel for the appellant drawing our attention to the judgment dated 15.2.2018 passed in C.C.No.26873/2015, wherein he was acquitted of the offences of rash and negligent driving and causing the accident, contended that the award passed by the MACT 6 was unsustainable and the appellant is entitled for exonerated from the award. The learned counsel also relied upon the decision of the Hon'ble Supreme, Court in "SURINDAR KUMAR ARORA AND ANOTHER VS. Dr. MANOJ BISLA AND OTHERS, AIR 2012 SC 1918, in support of his contention that the burden to prove rash and negligent driving would lie on the claimant and in case of failure to discharge the burden, the claim was liable for dismissal.
9. On quantum, it was submitted that though the deceased was a bachelor, deduction of only 1/3 towards personal expenses was unjustified. And as per the evidence of PW.2- the employer of the deceased, the deceased had not yet completed the probation period of six months and therefore, the salary of the deceased could not be taken as the basis for the award. Even though it is mentioned in ex.P.11 salary certificate that the salary of the deceased was Rs.20,833/- that MACT has wrongly taken the same Rs.39,000/- p.m. Apart from 7 the above, since the father of the deceased was having separate income, he could not have been treated as a dependant.
10. On the other hand, the learned counsel for the respondent-claimant submitted that the negligence on the part of the driver of the car was amplified by the fact that there is no reference to brakes having been applied by the driver, in Exhibit P.37. It was also contended that strict rules of evidence do not apply to MVC claims and the standard of proof is by probabilities and not proof beyond "reasonable doubt" that the police records against the driver of the car, justified the award.
11. On quantum, it was submitted that, failure on the part of the MACT to consider future prospects would off set any reduction of compensation entailing on account of deduction of 50% towards personal expenses instead of 1/3rd as done by the MACT.
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12. On a consideration of the submissions, and having due regards to the decision of the Hon'ble Supreme Court in 'BIMLA DEVI & ORS. VS. HRTC & ORS.', 2009(13) SCC 530; 'KUSUM LATA & ORS. VS. SATPIR & ORS', 2011 (3) SCC 646; 'PARMESHWARI VS. AMIRCHAND & ORS', 2011 (11) SCC 635, the claimant in a motor accident claim is not required to prove his case beyond all reasonable doubt, and it would suffice, if it is proved by probabilities. There being no independent witness to prove that the deceased himself jumped on the car of the appellant and caused the accident, the finding of the MACT regarding rash and negligent by the driver of the car which is based on Police investigation records, does not warrant interference. It is the duty of a driver to notice other road users and take due care to avoid accidents by anticipating their follies. The appellant having failed in this test, no interference with the award is called for.
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13. On quantum, it is seen that the MACT has not only erred in deducting only 1/3rd towards personal expenses of the deceased, but also erred in not considering future prospects, which in this case would be at 40% , as the age of deceased was 29 years. But, the MACT has rightly taken the monthly income of the deceased at Rs.39,000/- as per the amount mentioned in the salary certificate and based on the evidence of PW.2, the HR manager of the Company, where the deceased was working. On a hypothetical calculation, if future prospects at 40% is added to Rs.39,000/- and 50% is deducted towards personal expenses, the loss of dependency would be Rs.55,69,200/- (Rs.39,000 + 40%=Rs.54,600/-; Rs.54,600 - 50% = Rs.27,300/-. Loss of dependency= Rs.27,300/- X 12 X 17 = Rs.55,69,200/-). However, the MACT has assessed at it Rs.53,04,000/-. Besides, the award under the conventional heads is also on the lower side. Therefore, 10 we are not inclined to interfere with the award, even on quantum.
In the result the appeal fails, and is dismissed. The amount in deposit is ordered to be transferred to the MACT for payment.
Sd/-
JUDGE Sd/-
JUDGE Psg*