Karnataka High Court
Ashok Kumar Kashi vs S.S. Ganesh on 12 January, 2021
Author: H T Narendra Prasad
Bench: H. T. Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.10259 OF 2013(MV)
BETWEEN:
1. ASHOK KUMAR KASHI
S/O LATE LAKSHMINARAYANA KASHI
AGED ABOUT 49 YEARS.
2. SMT. SUDHA KASHI
W/O ASHOK KUMAR KASHI
AGED ABOUT 44 YEARS.
BOTH ARE RESIDING AT KASHIMANE
NITTUR POST, HOSANAGARA TALUK
SHIMOGA DISTRICT-576101.
... APPELLANTS
(BY SRI.PRASHANTH A.P., ADV. FOR
SRI. K.PRASANNA SHETTY, ADV.)
AND
1. S.S.GANESH
S/O SHAMANUR SHIVASHANKARAPPA
AGED ABOUT 52 YEARS
MANAGING PARTNER
M/S LAKSHMI FLOUR MILLS
NO.73/1, SHAMANUR ROAD
2
DAVANAGERE DISTRICT-542102.
2. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
BRANCH OFFICE NO.50, 1ST FLOOR,
MURUGARAJENDRA COMPLEX,
JAYADEVA CIRCLE
HADADI ROAD, K.B.EXTENSION
DAVANAGERE-542103
REP BY ITS BRANCH MANAGER.
... RESPONDENTS
(BY SRI. H.S.LINGARAJU, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH )
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 15.07.2013 PASSED IN MVC NO.1391/2009
ON THE FILE OF THE ADDL. DISTRICT AND SESSIONS
JUDGE AND ADDL. MACT. UDUPI (SITTING AT
KUNDAPURA) KUNDAPURA, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE, THIS DAY, THE
COURT 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 being 3 aggrieved by the judgment dated 15.7.2013 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 14.8.2009, the deceased Abhishekh Kashi was proceeding on his motorcycle bearing No.KA-04-EW-3043 from Mangalore towards Udupi near Saraveshwara Bobbarya Temple, Moolur Village, Udupi Taluk, at that time, a lorry bearing registration No.KA-17-6282 which was being driven 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 injuries.
3. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 19 years at the time of accident and was 4 studying II Year BBM. The claimants claimed compensation along with interest.
4. On service of summons, the respondent No.2 appeared through counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident was due to the rash and negligent riding of the motorcycle by the deceased himself. The driver of the offending vehicle did not possess valid driving licence as on the date of the accident. The liability is subject to terms and conditions of the policy. Hence, he sought for dismissal of the petition. The respondent No.1 appeared through counsel but did not choose to file objections.
5
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.1 as PW-1 and another witness as PW-2 and got exhibited documents namely Ex.P1 to Ex.P9. On behalf of respondents, two witnesses were examined as RWs-1 and 2 and got exhibited documents namely Ex.R1 to Ex.R10. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of contributory negligence on the part of the deceased as well as driver of the lorry to the extent of 50% each. The Tribunal further held that the claimants are entitled to a compensation of Rs.7,50,000/- along with interest at the rate of 7% p.a. and directed the Insurance Company to deposit 50% of the said compensation amount along with interest. Being aggrieved, this appeal has been filed. 6
6. The learned counsel for the claimants has raised the following contentions:
Firstly, the accident occurred due to rash and negligent driving of the lorry by its driver. The claimants have examined PW-2, who is an eye witness to the accident. Inspite of evidence of eyewitness and mahazar, the Tribunal is not justified in holding that the deceased has contributed to the accident equally. The police have registered FIR against the driver of the lorry and after investigation have filed charge sheet against the driver of the lorry. It is very clear that the driver of the lorry was negligent in causing the accident.
In respect of quantum of compensation is concerned, the claimants claim that at the time of the accident the deceased was aged 19 years and studying II year BBM. Considering his educational academics, he had a very bright future. But the 7 Tribunal is not justified in taking the monthly income of the deceased as merely as Rs.8,000/-.
Secondly, as per the law laid down by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income towards 'future prospects' should be the warrant where the deceased was below the age of 40 years. But the Tribunal has failed to consider the same.
Thirdly, as per the judgment of the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. -V- NANU RAM reported in 2018 ACJ 2782, each of the claimants are entitled for compensation under the head of 'loss of love and affection and consortium'.8
Fourthly, the compensation awarded by the Tribunal under the conventional heads is on the lower side.
Hence, the learned counsel appearing for the claimants prays for allowing the appeal.
7. On the other hand, the learned counsel for the Insurance Company has contended that the accident has occurred due to the negligence of the deceased and he has contributed to the accident equally. It is very clear from the records that the accident was due to head on collusion of both the vehicles. As per IMV report Ex.R-6, both the vehicles have been damaged on the right side portion. Therefore, it is very clear that it is a head on collusion. The Insurance Company has examined the driver of the lorry as RW-2 and he has specifically stated that the accident has occurred due to rash and negligent riding of the motorcycle by the deceased. The Tribunal 9 considering the same has rightly held that the deceased, rider of the motorcycle and driver of the lorry have contributed to the accident to the extent of 50% each.
In respect of quantum of compensation is concerned, the deceased was a student and the time of the accident. The claimants have not produced any documents to establish the income. The Tribunal considering the same has rightly taken the notional income of the deceased at Rs.8,000/- p.m. Further, the overall compensation awarded by the Tribunal is just and reasonable.
8. Heard the learned counsel for the parties and perused the records.
9. The specific case of the claimants is that on 14.8.2009 the deceased Abhishekh Kashi was proceeding on his motorcycle bearing No.KA-04-EW- 10 3043 from Mangalore towards Udupi near Saraveshwara Bobbarya Temple, Moolur Village, Udupi Taluk, at that time, a lorry bearing registration No.KA- 17-6282 which was being driven 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 injuries.
The claimants to prove their case have examined father of the deceased as PW-1 and an eye witness to the accident as PW-2 and produced 9 documents. On the basis of the complaint, FIR has been registered against the driver of the lorry and after investigation police have filed charge sheet against the driver of the lorry. As per Ex.P-2, spot mahazar, it is clear that deceased was traveling on the motorcycle from Mangalore to Udupi i.e., from South to North and the lorry was coming in the opposite direction from Udupi 11 to Mangalore. PW-2, eye witness to the accident has deposed that the lorry was trying to overtake the bus came to the extreme left side and dashed to the motorcycle. The respondent has examined the driver of the lorry as RW-1 and he has deposed that the deceased was driving the motorcycle in rash and negligent manner and dashed to the lorry. IMV report discloses that both the vehicles have been damaged.
In respect of car bearing No. KA-17/6282, damages found due to impact are as follows:
1. Front shape to the extreme right corner damaged
2. Front bumper to right damaged rest of the parts/systems was in sides.
In respect of lorry bearing No.KA-04/EW 3043, damages found due to impact are as follows:
1. Head light/Front Indicators/ Rear view mirrors damaged 12
2. crush seen to the right bent.
3. Engine cove/gearbox cover damaged.
4. silencer unit damage.
5. A Benton fuel tank to the right.
6. steering handle to the right bent
7. front shape damaged
8. tool box cover/backup cover damaged
9. rear break pedel bent
10. rear brake drawn damaged
11. front wheel damaged
12. riders foot rest (right) damaged
13. rear right indicator damaged rest of the parts system were in order.
Therefore, taking into consideration the evidence of the parties and documents namely Ex.P-1 FIR, Ex.P-2 spot mahazar, Ex.P-3 inquest mahazar, Ex.P-4 Police notice, Ex.P-5 charge sheet, Ex.R-6 IMV report, I am of the opinion that the accident has occurred due to contributory negligence. It is held that the deceased has contributed to the accident to the extent 13 of 25% and the driver of the lorry has contributed to the accident to the extent of 75%. Hence, the finding of the Tribunal with regard to negligence is modified to the said extent.
Re: Quantum of compensation.
9. The deceased was aged about 19 years and studying in II year BBM at the time of the accident. The Tribunal considering the age and educational academics of the deceased has rightly taken the notional income of the deceased at Rs.8,000/- p.m. Since, he had a bright future as he was a BBM student, the claimants are entitled for future prospects. To the aforesaid amount, 40% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in 'PRANAY SETHI' (supra). Thus, the monthly income comes to Rs.11,200/-. Out of which, it is appropriate to deduct 50% towards 14 personal expenses and therefore, the monthly income comes to Rs.5,600/-. The deceased was aged about 19 years at the time of the accident and multiplier applicable to his age group is '18'. Thus, the claimants are entitled to compensation of Rs.12,09,600/- (Rs.5,600*18*12) on account of 'loss of dependency'.
In view of the law laid down by the Supreme Court in 'MAGMA GENERAL INSURANCE', claimants, parents of the deceased are entitled for compensation of Rs.40,000/- each under the head 'loss of filial consortium' .
In addition, the claimants are entitled to Rs.15,000/- on account of 'loss of estate' and Rs.15,000/- on account of 'funeral expenses'.
10. Thus, the claimants are entitled to the following compensation:
15
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 12,09,600
Funeral expenses 15,000
Loss of estate 15,000
Loss of Filial consortium 80,000
Total 13,19,600
Less: 25% negligence 3,29,900
on the part of the
deceased
Balance 9,89,700
The claimants are entitled to a total
compensation of Rs,9,89,700/-.
The Insurance Company is directed to deposit the compensation amount along with interest at 7% p.a. within a period of four weeks from the date of receipt of copy of this judgment.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is allowed-in-part.
Sd/-
JUDGE DM