Karnataka High Court
Smt Gangamma vs Sri Varadaraju L on 30 January, 2020
Author: R Devdas
Bench: R Devdas
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE R DEVDAS
MFA NO.2380 OF 2016 (MV)
BETWEEN:
SMT GANGAMMA
W/O BASAVEGOWDA
NOW AGED ABOUT 52 YEARS,
RESIDING AT NO. 18, 4TH MAIN,
FREEDOM FIGHTER NAGAR,
LAGGERE, BENGALURU - 560 058.
... APPELLANT
(BY SRI MANMOHAN D, ADVOCATE)
AND:
1. SRI VARADARAJU L
AGED MAJOR,
NO.136, 4TH CROSS,
5TH MAIN, MUNESHWARA TEMPLE ROAD,
ULLAL MAIN ROAD, JNANA JYOTHI NAGAR,
BENGALURU - 560 056.
2. NATIONAL INSURANCE CO. LTD.,
REGIONAL OFFICE NO. 144, 2ND FLOOR,
SUBHARAM COMPLEX,
M.G.ROAD, BENGALURU - 560 001.
REP BY ITS MANAGER.
... RESPONDENTS
(BY SRI B.C.SEETHARAMA RAO, ADVOCATE FOR R-2;
NOTICE TO R-1 IS DISPENSED WITH ON 08.02.2017)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT, AGAINST THE JUDGMENT AND AWARD
DATED:23.09.2014 PASSED IN MVC NO.5191/2013 ON THE
FILE OF THE XX ADDITIONAL SMALL CAUSES JUDGE,
MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE
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CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
R. DEVDAS J., (ORAL):
This Miscellaneous First Appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 seeking enhancement of compensation awarded by the Motor Accident Claims Tribunal, XX Addl. Small Causes Judge, Bangalore, SCCH-22 in MVC No.5191/2013.
2. It is contended by the appellant, who is the wife of the deceased that on 24.10.2012 at about 9.35 p.m., the husband of the deceased was crossing the highway, Bangalore-Mysore Road at Kumbalgodu, Kengeri Hobli, Ramanagara District. At that time, a car bearing registration No.KA-41-N-8814, driven in a rash and negligent manner by the driver dashed against the deceased Basavegowda causing severe head injuries to the person. The victim was admitted to NIMHANS hospital, Bengaluru and was an in- 3 patient at the Hospital. However, the victim had to be shifted to Victoria Hospital and despite the best treatment, the victim succumbed to the injuries and passed away on 27.10.2012.
3. Learned Counsel for the appellant submits that the Tribunal has erred in arriving at a conclusion that the accident was caused due to the contributory negligence of the deceased and therefore 50% of the compensation was required to be deducted on account of the contributory negligence of the deceased. Moreover, it is submitted that the Tribunal has also erred in taking Rs.5,000/- as the notional income of the deceased. It is submitted that the notional income for an accident that occurred during year 2012 is Rs.7,000/- and not Rs.5,000/- as taken by the Tribunal.
4. The learned Counsel submits that the Tribunal has also erred in not granting compensation towards future prospects. It is stated that the Tribunal has awarded only Rs.20,000/- under the conventional heads, which is very meagre. 4
5. Learned Counsel for the second respondent- Insurance Company, on the other hand, submits that the law is well settled that in matters where it is found that if a person is crossing the road where there is no zebra crossing, the contributory negligence of the deceased should be taken at 25%. In this regard, the learned Counsel places reliance on a decision of the Division Bench in the case of Regional Manager, the Oriental Insurance Company Limited Vs. Smt.Chitra and Others in MFA No.4701/2005 which was decided on 09.02.2011.
6. Heard the learned Counsels and perused the appeal memo.
7. On the question of contributory negligence, in one of the latest decisions of a Division Bench of this Court, in the case of The Managing Director, KSRTC, Hassan Division Vs. Sri Andrew Lucas And Others in MFA No.3004/2019 which was decided on 09.01.2020, the Division Bench has noticed the earlier decision of this Court where in such cases where the person is crossing the road, where there 5 was no zebra crossing and accident occurs, it was held that the negligence of the victim should be taken at 25%. The Division Bench, in the case of Andrew Lucas (supra) has held that it is appropriate to take the negligence in such cases at 20% and not 25%. What is noticeable is that in the earlier case of Chitra (supra) in MFA No.4701/2005, it was a case where the victim who was in police custody and was accompanied by policemen of the Central Crime Branch. In the guise of answering nature call, the victim slipped from the clutches of the policemen and crossed the road and the accident occurred.
8. Having regard to that situation and circumstances, the Division Bench held that the contributory negligence should be considered at 25%. However, in the latest decision in the case of Andrew Lucas (supra), the Division Bench has noticed this difference and held that in the normal circumstances, in National Highways, there are no zebra crossings. When a person is crossing the road and meets with an accident on a National Highway, the contributory 6 negligence should be considered at 20% which would be appropriate.
9. Having regard to all the above decisions, this Court is of the considered opinion that the decision of the Tribunal imputing 50% as contributory negligence towards the deceased in the present case, cannot be countenanced. The contributory negligence is required to be assessed at 20%.
10. As regards the notional income, even as per the chart prepared by this Court in accordance with law, for an accident that occurred in the year 2012, the notional income should have been taken at Rs.7,000/- and not Rs.5,000/- as taken by the Tribunal. As regards the loss of future income, having regard to the fact that the deceased was aged about 55 years at the time of death, 10% should be added from out of the income towards loss of future income. However, 50% of the income is required to be deducted towards personal expenses of the deceased.
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11. If Rs.7,000/- is the notional income and 10% is added towards the future prospects, the same will be Rs.7,700/-. If 50% is deducted towards personal expenses of the deceased, it will be Rs.3,850/-. Accordingly, by taking the multiplier of '11', the 'Loss of Dependency' will work out to Rs.5,08,200/- (Rs.3,850 x 12 x '11').
12. Towards the conventional heads, the Tribunal has awarded Rs.20,000/-. As per the decision of the Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi And Others reported in (2017) 16 SCC 680, towards the conventional heads, the sum of Rs.70,000/- could be awarded. Therefore, towards the conventional heads a sum of Rs.50,000/- is added and enhanced to Rs.70,000/-.
13. Consequently, the compensation is enhanced by Rs.2,28,200/- (Rs.5,78,200 - Rs.3,50,000). However, having regard to the fact that 20% of the compensation will have to be deducted as contributory negligence of the deceased, a sum of 8 Rs.1,15,640/- (5,78,200 x 20%) is required to be deducted out of Rs.5,78,200/-. Consequently, the respondent-Insurance Company is liable to pay a total compensation of Rs.4,62,560/- (Rs.5,78,200 - Rs.1,15,640) along with 6% interest as awarded by the Tribunal to the appellant. The compensation, as and when deposited shall be released to the appellant.
14. Accordingly the appeal is allowed in part. The judgment and award dated 23.09.2014 passed by the Motor Accident Claims Tribunal, XX Addl. Small Causes Judge, Bangalore, SCCH-22 in MVC No.5191/2013 stands modified.
It is ordered accordingly.
SD/-
JUDGE JT/-