Karnataka High Court
Sri Narasimha Nayak vs Sri Kounish Naidu on 18 September, 2020
Author: S. Sujatha
Bench: S. Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE MRS. JUSTICE S. SUJATHA
AND
THE HON'BLE MR. JUSTICE E.S. INDIRESH
MISCELLANEOUS FIRST APPEAL NO.9595 OF 2018 (MV)
BETWEEN
1. Sri Narasimha Nayak
S/o Late G. Narayana Nayak,
Aged about 53 years,
R/o No.137,
2nd D Main ,
8th Block, Koramangala,
Bengaluru - 560 095.
2. Kum. Sandhya Nayak
D/o Narasimha Nayak
Aged about 20 years,
R/o No.137,
2nd D Main ,
8th Block, Koramangala,
Bengaluru - 560 095.
..Appellants
(By Shri Harish N.R., Advocate)
AND
1. Sri. Kounish Naidu
S/o Paul Deepak Naidu,
2
Aged about 24 years,
R/o No.02, Friends Colony,
6th Cross, ST Bed,
Srinivag, Ejipura,
Bengaluru - 560034.
2. Sri. Reema Naidu
W/o Paul Deepak,
Age : Major,
R/o No.2, Friends Colony,
6th Cross, ST Bed,
Srinivag, Ejipura,
Bengaluru - 560 034.
3. The Manager
ICICI Lombard
ICICI Lombard House,
No.414, Beer Savarkar Marg,
Near Siddhi Vinayaka Temple,
Prabhadevi,
Mumbai - 400 025.
...Respondents
(By Smt. Rachita Nanaiah, Advocate for R1 & R2;
Sri.B.Pradeep, Advocate for R3)
This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicles Act, 1988 against the judgment and
award dated 30.11.2016 passed in MVC No.5073/2014 on the
file of the XXI Additional Small Cause Judge & XIX ACMM,
Member, MACT (SCCH-23), Bengaluru partly allowing the claim
petition for compensation and seeking enhancement of
compensation.
This Miscellaneous First appeal coming on for hearing, this
day, INDIRESH J., delivered the following:
3
JUDGMENT
This appeal is filed by the appellant against the judgment and award dated 30th November, 2016 passed in MVC No.5073 of 2014 on the file of the XXI Additional Small Causes Judge and the Motor Accident Claims Tribunal, Bengaluru (for short, hereinafter referred to as 'Tribunal'), seeking enhancement of compensation.
For the sake of convenience, the parties in this appeal are referred to as per their status before the Tribunal.
The brief facts of the case are that on 13th September, 2014 at 3.15 pm, deceased-Smt. Revati Shenoy was crossing the road near Lotus Labs Private Limited, BDA Complex, Koramangala, and at that time, the rider of Honda Activa vehicle bearing registration No.KA-01-F-3641 belonging to the second respondent herein, dashed to the deceased and as a result of which, Revati Shenoy fell down and sustained head injury and immediately she was taken to St. John's Medical College Hospital, Bangalore and she succumbed to injuries on 15th September, 2014. Pursuant to the same, Adugodi Police have 4 registered Crime No.68 of 2014 for the offences punishable under Section 3(1), 181, 5(1), 180 of the Motor Vehicles Act read with Section 279, 304(A) of the Indian Penal Code against the rider of the vehicle. The claimants have averred that the deceased was working as Deputy Manager at Lotus Labs Pvt. Ltd. and she was earning Rs.38,737/- per month and she was aged about 44 years as on the date of her death and claimants are facing mental shock, agony and as such, have filed claim petition before the Tribunal seeking compensation of Rs.59,37,355/- from the respondents.
Pursuant to notice issued by the Tribunal, respondents have appeared through their counsel and filed statement of objections. First respondent has contended that the accident occurred due to the negligent act of the deceased and thereby sought for dismissal of the claim petition. Similar contentions were raised by the second respondent also. The third respondent-Insurer has denied the averments made in the claim petition and contended that the second respondent, being fully aware has entrusted her vehicle to her son-first respondent, who 5 had only Learning Licence for riding the same alone and without the help of a person holding valid and effective driving licence holder accompanying him at the time of accident. The third Respondent-Insurer contended that issuance of the policy is subject to the terms and conditions of the policy and further contended that the deceased was trying to cross the road where she was not supposed to cross, because there is no 'zebra' crossing at the spot of the accident and as such the deceased has contributed towards the alleged accident and accordingly, sought for dismissal of the claim petition.
On the basis of the pleadings of the parties, the Tribunal has formulated the issues for its consideration. In order to prove the case of the claimants, the first claimant got examined himself as PW1 and produced 23 documents and the same were marked as Exhibits P1 to P23. Respondents No.1 and 2 have been examined as RW2 and RW3 and have marked documents as Exhibits R4 to R8 on their behalf. The Insurance Company has examined the First Division Assistant of Regional Transport Office as RW1, and RW5 and RW6 are examined on their behalf. 6 They have produced documents, as Exhibits R1 to R3 and R9 and R10 are also got marked on their behalf.
The Tribunal, after considering the material on record and the submissions, made by the learned counsel for the parties by its judgment and award dated 30th November, 2016 allowed the claim petition in part and awarded compensation of Rs.9,39,580/- with interest at 6% interest per annum from the date of petition till the date of deposit. Being not satisfied with the compensation awarded by the Tribunal, the appellants herein have preferred the instant appeal seeking enhancement of compensation.
We have heard Shri N.R. Harish, learned counsel appearing for the appellants, Shri Rachita Nanaiah, learned counsel appearing for respondents No.1 and 2 and B Pradeep, learned counsel appearing for R-3.
Shri N.R. Harish, learned counsel appearing for appellant- claimants submitted that the Tribunal has erred in deducting 50% of compensation on the ground that the deceased has also contributed towards alleged accident, despite the record shows 7 the rash and negligence on the rider of the offending vehicle. He further submitted that the Tribunal has not considered the evidence of PW1-eye witness to the accident and as such, the rider of the offending vehicle was negligent on his part and the said finding of the Tribunal is liable to be interfered with by this Court. He further submitted that, the Tribunal has committed an error by deducting Rs.3,00,000/- out of the quantum of compensation on the ground that PW1 has admitted that he has received the said sum from the Insurer and he further submitted that the award of Tribunal on loss of dependency is on the lesser side and accordingly, he sought for enhancement of compensation on all the heads by allowing the instant appeal.
Per contra, Shri B. Pradeep, learned counsel appearing for the respondent-Insurer submitted that the Tribunal, after considering material on record, especially Exhibit P5-spot sketch, has arrived at the conclusion that the deceased had contributed 50% towards the alleged accident and the said finding recorded by the Tribunal is well-reasoned and there is no infirmity in the finding recorded by the Tribunal and as such, he supported the 8 impugned judgment and award. He further submitted that the quantum of compensation awarded by the Tribunal is just and proper, which do not require interference by this Court.
We have considered the arguments advanced by the learned counsel for the parties and perused the original records carefully. It is not in dispute that on 13th September, 2014 at about 3.15 pm, the deceased was crossing the road and at that time, she met with accident and sustained head injury and thereafter succumbed to the injuries on 15th September, 2014 at St. John's Medical College Hospital. Pursuant to the same, the police authorities have registered Crime No.68 of 2014 against the rider of the vehicle in question. We have carefully perused the judgment rendered in CC No.3876 of 2014 along with the evidence of RW2 to RW4. We have also carefully, considered the points urged by the learned counsel for the respondents in respect of P5-sketch of the accident spot. Perusal of the same would indicate that the offending vehicle was coming from South to North direction and since it is the double-road and there is a median in between, and incidentally PW1 (claimant No.1), after 9 dropping his wife (deceased), was waiting opposite to Koramangala BDA Complex and thus narrated the incident of the alleged accident. No doubt, it is true that the deceased, ought to have taken "zebra cross" while crossing the main road, however, it is equally the duty of the riders of vehicles while plying vehicles on the main road, to keep a good look-out with regard to the consequence in case of accident and in the instant case, the driver of the offending vehicle should have ridden the vehicle carefully and slowly; and on thorough examination of Exhibit-P5, the same would indicate that the rider of motorcycle was negligent and in this regard, after re-appreciation of the entire document on record, we are of the considered opinion that the deceased has contributed 25% towards the alleged accident and in this regard, the finding recorded by the tribunal fastening contribution to an extent of 50% on the deceased is liable to be modified.
Insofar as, the quantum of compensation is concerned, the deceased was working as Deputy Manager and as per Exhibit P21, the salary of the deceased after tax deductions was 10 Rs.38,737/- per month. Since the deceased was aged 45 at the time of death, as per the law declared by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY v. PRANAY SETHI AND OTHERS reported in 2017 ACJ 2700, 25% of the salary has to be added towards future prospects, and accordingly, the total salary of the deceased for the purpose of computation of compensation is Rs.48,421/- per month. As per the law declared by the Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION reported in 2009 ACJ 1298, one-third has to be deducted towards her personal expenses and after applying the multiplier 14, the loss of dependency would come to Rs.54,23,152/- (Rs.48,421/- x 12 x 14 x 2/3). Further, in terms of the law declared by the Hon'ble Supreme Court in the case of PRANAY SETHI (supra), additional sum of Rs.70,000/- is awarded under conventional heads and another sum of Rs.40,000/- towards parental consortium is to be awarded. Accordingly, the total compensation to which the claimants are entitled is Rs.55,33,152/-. Further, for the reasons stated above 11 since it is held that the deceased has contributed negligence in an extent of 25%, the compensation comes to Rs.41,49,864/-.
It is pertinent to note that the Tribunal has deducted Rs.3,00,000/- from the amount of compensation arrived at on the ground that the Insurer has paid the said sum to the claimants. However, in view of the law declared by this Court in Miscellaneous First Appeal No.876 of 2016 and the connected appeal disposed of on 09th September, 2020 (judgment rendered by one of us), deduction of Rs.3,00,000/- by the Tribunal is uncalled for and accordingly, the contentions raised by the learned counsel for the insurer with regard to the same is liable to be rejected, accordingly rejected. Hence the following:
ORDER
1. Appeal is allowed in part;
2. Judgment and award dated 30th November, 2016 passed in MVC No.5073 of 2014 by the XXI Additional Small Causes Judge and the Motor Accident Claims Tibunal, Bengaluru is modified by awarding the compensation of Rs.41,49,864/- as against Rs.9,39,580/- awarded by the Tribunal;12
3. The compensation amount shall carry interest at the rate of 6% per annum from the date of petition till the date of realisation;
4. The portion of the order insofar as appropriation and disbursement, remain undisturbed;
5. Draw modified decree accordingly.
Sd/-
JUDGE Sd/-
JUDGE lnn