Karnataka High Court
Smt. Pooja Devi W/O Late Rajakamal @ ... vs Anjinayya S/O Murthi & Ors on 24 November, 2017
Author: Rathnakala
Bench: Rathnakala
1
IN THE HIGH COURT OF KARNATAKA
R
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF NOVEMBER 2017
PRESENT
THE HON'BLE MRS. JUSTICE RATHNAKALA
AND
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
MFA No.201141/2014 (MV)
C/W
MFA NOS.201140/2014, 201731/2014
& 201732/2014 (MV)
IN MFA NO.201141/2014
Between:
1. Smt. Pooja Devi W/o Late Rajakamal
@ Rajkumar, Age: 20 years
Occ: Household
2. Palaram S/o Chaturam
Age: 74 years, Occ: Nil
3. Baladevi W/o Palaram
Age: 69 years, Occ: Housewife
All are R/o Kangwal Village
Tahasil, Ambala Haryana, Now
R/o Arab Mohalla, Raichur-584101
... Appellants
(By Sri.Babu H.Metagudda, Advocate)
2
And:
1. Anjinayya S/o Murthi
Age: 30 years, Occ: Driver of Tempo
Trax No.KA-37/9942
R/o Hanchinal Camp
Tq. Sindhanur, Dist: Raichur-584101
2. Mahantesh @ Mahantesh Redder
S/o Lingappa Redder
Age: Major, Occ: Owner of Tempo
Trax No.KA-37/9942
R/o Near Dr.N.Houses
H.No.187, Block No.1 Chellur village
Tq. Gangawathi, Dist: Koppal-584101
3. The Manager
Shriram General Insurance Co. Ltd.,
No.302, 3rd Floor, S & S Corner Building
Plot No.48, Hospital Road
Shivajinagar, Bangalore-01
... Respondents
(By Sri.Subhash Mallapur, Advocate for R3;
Notice to R1 & R2 dispensed with v/o dated 13.04.2017)
This Miscellaneous First Appeal is filed under Section
173(1) of M.V.Act pleased to allow this appeal and modify the
judgment and award dated 11.06.2014 passed in
M.V.C.No.70/2014 by the Member, M.A.C.T. (II-ADJ) at
Raichur and enhancing the compensation from
Rs.12,57,000/- with 6% interest to Rs.37,75,000/- with 12%
interest.
3
IN MFA NO.201140/2014
Between:
1. Smt. Urmila W/o Amarsingh
@ Amarjit Singh,
Age: 32 years, Occ: Household
2. Virender Singh S/o Amarsingh
@ Amarjit Singh,
Age: 11 years, Occ: Student
3. Hasman Singh S/o Amarsingh
@ Amarjit Singh, Age: 9 years
4. Arjun Singh @ Arjun Das S/o Ramjilal
Age: 70 years, Occ: Agriculture
5. Smt. Somti W/o Arjun Singh @ Arjun Das
Age: 68 years, Occ: Household
Since appellant No.2 and 3
are minors and are
U/g of appellant No.1
Smt. Urmila W/o
Amarsingh @ Amarjit Singh
All are R/o Binjal, Post: Aheru Kalam
Tahasil Duddunsada
Dist: Patiyala, Punjab State, presently
R/o Arab Mohalla, Raichur-584101
... Appellants
(By Sri.Babu H.Metagudda, Advocate)
And:
1. Anjinayya S/o Murthi
Age: 30 years, Occ: Driver of Tempo
Trax No.KA-37/9942
R/o Hanchinal Camp
Tq. Sindhanur, Dist: Raichur-584101
4
2. Mahantesh @ Mahantesh Redder
S/o Lingappa Redder
Age: Major, Occ: Owner of Tempo
Trax No.KA-37/9942
R/o Near Dr.N.Houses
H.No.187, Block No.1 Chellur village
Tq. Gangawathi, Dist: Koppal-584101
3. The Manager
Shriram General Insurance Co. Ltd.,
No.302, 3rd Floor, S & S Corner Building
Plot No.48, Hospital Road
Shivajinagar, Bangalore-01
... Respondents
(By Sri.Subhash Mallapur, Advocate for R3;
Notice to R1 dispensed with v/o dated 13.04.2017;
Notice to R2 is dispensed with v/o dated 14.11.2017)
This Miscellaneous First Appeal is filed under Section
173(1) of M.V.Act pleased to allow this appeal and modify the
Judgment and Award dated 11.06.2014 passed in MVC
No.69/2014 by the Member, M.A.C.T. (II-ADJ) at Raichur
and enhancing the compensation from Rs.11,54,000/- with
6% interest to Rs.39,50,000/- with 12% interest.
5
IN MFA NO.201731/2014
Between:
The Manager
Shriram General Insurance Co. Ltd.,
No.302, 3rd floor, S & S Corner Building
Plot No.48, Bowering Hospital road
Shivaji Nagar, Bangalore-01
... Appellant
(By Sri.Subhash Mallapur, Advocate)
And:
1. Smt. Urmila W/o Amarsingh @
Amarjith Singh,
Age: 32 years, Occ: House hold
2. Virender Singh S/o Amarsingh @
Amarjith Singh, Age: 11 years
Occ: Student
3. Hasman Singh S/o Amarsingh @
Amarjith Singh, Age: 09 years
Occ: Student
4. Arjun Singh @ Arjun Das S/o Ramjilal
Age: 70 years, Occ: Agriculture
5. Somti W/o Arjun Singh @ Arjun Das
Age: 68 years, Occ: Household
(R-2 & 3 U/G of Respondent No.1)
All R/o Binjal, Post: Aheru Kalam, Tahasil
Duddunsada, Dist. Patiyala
Punjab State, Now R/o Arab Mohalla
Raichur-584101
6
6. Anjinayya S/o Murthi
Age: 30 years, Occ: Driver of
Tempo Trax Brg No.KA-37/9942
R/o Hanchinal Camp, Tq. Sindhanur
Dist: Raichur-584101
7. Mahantesh @ Mahantesh Redder
S/o Lingappa Redder
Age: Major, Occ: Owner of
Tempo - Trax Brg. No.KA-37/9942
R/o Near Dr. N. Houses
H.No.187, Block No.1
Chellur Village, Tq: Gangavathi
Dist. Koppal-583231
... Respondents
(By Sri.Babu H. Metagudda, Advocate for R1-R5;
Notice to R6 dispensed with v/o dated 08.11.2016;
R7 served but unrepresented)
This Miscellaneous First Appeal is filed under Section
173(1) of M.V.Act pleased to allow the above appeal by
setting aside the award dated 11.06.2014 in MVC
No.69/2014 passed by the Member MACT and II Addl.
District Judge at Raichur.
IN MFA NO.201732/2014
Between:
The Manager
Shriram General Insurance Co. Ltd.,
No.302, 3rd Floor, S & S Corner Building
Plot No.48, Bowering Hospital road
Shivaji Nagar, Bangalore-01
... Appellant
(By Sri.Subhash Mallapur, Advocate)
7
And:
1. Smt. Pooja Devi W/o
Late Rajakamal @ Rajkumar
Age: 20 years, Occ: Houswife
2. Palaram S/o Chaturam
Age: 74 years, Occ: Nil
3. Baladevi W/o Palaram
Age: 69 years, Occ: Housewife
(All R/o Kangwal Village
Tahasil, Ambala, Haryana
Now R/o Arab Mohalla
Raichur-584101
4. Anjinayya S/o Murthi
Age: 30 years, Occ: Driver of
Tempo Trax Brg. No.KA-28/F-1601
R/o Sindhagi
Dist. Bijapur-586101
5. Mahantesh @ Mahantesh Redder
S/o Lingappa Redder
Age: Major, Occ: Owner of
Tempo - Trax Brg. No.KA-37/9942
R/o Near Dr. N.Houses
H.No.187, Block No.1
Chellur Village, Tq. Gangavathi
Dist. Koppal-583231
... Respondents
(By Sri.Babu H Metagudda, Advocate for R1-R3;
Notice to R4 dispensed with v/o dated 08.11.2016;
R5 served but unrepresented)
This Miscellaneous First Appeal is filed under Section
173(1) of M.V.Act pleased to allow the above appeal by
setting aside the award dated 11.06.2014 in MVC
8
No.70/2014 passed by the Member, MACT and II Addl.
District Judge, Raichur.
These appeals having reserved on 14.11.2017 and
coming on for pronouncement of judgment this day,
RATHNAKALA J., delivered the following:
JUDGMENT
All these four appeals arise out of the common judgment and award passed by the Motor Accident Claims Tribunal, Raichur (for brevity 'the Tribunal') on its file in MVC Nos. 69/2014 and 70/2014 vide judgment dated 11.06.2014.
2. MFA No.201141/2014 is filed by the claimants of MVC No.70/2014 seeking enhancement of compensation while the insurer is challenging its liability and also quantum of compensation amount in the same award in MFA No.201732/2014.
3. MFA No.201140/2014 is filed by the claimants of MVC No.69/2014 seeking enhancement of compensation while the insurer is challenging its 9 liability and also quantum of compensation amount in the same award in MFA No.201731/2014.
4. The facts briefly stated, two claim petitions were filed before the Tribunal in respect of the death of Amarsingh @ Amarjith Singh (MVC No.69/2014) and Rajakamal @ Rajkumar (MVC No.70/2014). On the death of the respective deceased in the vehicular accident dated 29.11.2013, the claimants in both the cases were the legal heirs/dependents of the respective deceased. There case was, the deceased while proceeding on a motorcycle bearing No.AP-26/N-1171 as a pillion riders driven by one Vinod Reddy on Sindhanur- Gangawati main road, near Gorebal camp in front of Basavanna Temple, the offending tempo trax vehicle bearing No.KA-37/9942 driven by 6th respondent came from Sindhanur side, in a zig zag manner with a great speed and hit the motorcycle. Because of the impact, the rider and two pillion riders fell down from 10 the motorcycle, suffered fatal injures and died at the spot. On the basis of the complaint lodged by a third person, a criminal case was registered by the jurisdictional police against the driver of tempo trax.
5. The claim was contested by the insurer, common enquiry was held and the Tribunal on consideration of the material placed before it, allowed both the petitions and awarded Rs.11,54,000/- to the claimants of MVC No.69/2014 (pertaining to the death of Vinod Reddy) and Rs.12,57,000/- to the claimants of MVC No.70/2014 (pertaining to the death of Rajkamal).
6. Sri Subhash Mallapur, learned counsel for insurer in MFA Nos.201732/2014 & 201731/2014 assailing the common judgment of the Tribunal submits that as per the complaint lodged by a third party, it was deceased Amarsingh who was riding motorcycle bearing No.AP-26/N-1171 without valid driving licence. He was guilty of triple riding of the motorcycle in violation of 11 provision of Section 128 of Motor Vehicles Act (for brevity 'the Act") therefore the owner and insurer of the motorcycle are necessary parties to the proceedings and not arraying them as respondents in the claim petition has vitiated the proceedings. The compensation amount awarded in both the cases is exorbitant. The claimants had not come up with clean hands. They have made story that Vinod Reddy was riding the motorcycle. But, as per the complaint lodged to the police, it was the Amarsingh who was riding the motorcycle and he himself being the guilty of the contributory negligence. The tribunal ought to have dismissed the claim arising out of the death of Amarsingh. The driving licence of the deceased Amarsingh is not produced that also adds to the contributory negligence on the part of deceased Amarsingh. The Tribunal even after finding that the deceased were coolies has taken the monthly income of the deceased at Rs.8,000/- per month respectively 12 which is on a higher side. The compensation awarded under other heads is without any reason and needs to be interfered.
7. In reply, Sri Babu H. Metagudda, learned counsel on behalf of the claimants/appellants of MFA Nos.201141/2014 and 201140/2014 submits it is true that complaint is lodged to the jurisdictional police about the accident stating that Amarsingh was riding the motorcycle. But, the insurer who asserts the said fact ought to have lead rebuttal evidence if it wanted to disprove the case of the claimants that the vehicle was driven by Vinod Reddy. Hence, neither of the deceased persons can be held responsible for the accident. Carrying two pillion riders on the motorcycle though may be in violation of Section 128 of the MV Act as far as the deceased are concerned being a pillion riders, they are not parties to the contributory negligence. Being the victims of the accident, the claimants can 13 seek compensation from any of the tortfeasors as held by the Apex Court in the case of Khenyei vs. New India Assurance Company Limited and others reported in (2015) 9 SCC 273. Rightly the Tribunal has not appreciated the allegation of the insurer that Amarsingh was the rider of the motorcycle.
8. Learned counsel continues to submit that the claimants are before this Court, challenging the compensation as inadequate. It was the accident of the year 2014, the deceased were working as operators of crop harvesting machine, earning Rs.25,000/- per month and Rs.100/- per day as batta. The claimants examined their employer PW.3 for corroboration of the said fact. By ignoring the evidence adduced by the claimants about the employment and income of the deceased, the Tribunal has erroneously assessed the income of the deceased at Rs.8,000/- per month, which is on a lower side. As per the judgment of the Apex 14 Court in the case of Smt.Sarla Verma & Others vs. Delhi Transport Corporation & Another reported in AIR SC 3104 followed by its judgment in the case of National Insurance Company Limited vs. Pranay Sethi and Ors. in Special Leave Petition (Civil) No.25590/2014 and connected matters dated 31.10.2017, the future prospects of the deceased ought to have been counted upon while working out the compensation towards loss of dependency. Omission to do so has substantially brought down the compensation amount.
9. Learned counsel further submits that the Apex Court in the case of Sudhir Kumar Rana vs. Surinder Singh and Others reported in (2008) 3 SCC 748, elaborated on composite negligence and contributory negligence. In the light of the principle laid down in the said case, even if the rider did not possess a driving licence, if he has not shown negligence for the 15 accident, he cannot be attributed of contributory negligence. The Division Bench of this Court with regard to the aspect of carrying two pillion riders on a motorcycle in the judgment in the case of Divisional Manager, National Insurance Co. Ltd., vs. Smt.Sunanda and Others reported in [2011 Kant M.A.C. 116 (Kant)] observed thus:
"If the violation of a statutory rule has resulted in the accident, certainly we can hold the person who violated the rule as also having contributed to the accident. But mere violation of a statutory provision cannot lead to an inference that the accident was on account of the negligence. Something more is to be done. Evidence has to be adduced in a particular case that the violation of a statutory rule resulted in negligence which in turn resulted in the accident, then proportionate contributory negligence could be attributed to the persons who violated the statutory provisions. Ultimately it depends on the facts of each case. In the instant case, no 16 doubt apart from the driver of motorcycle, there were two pillion riders. It is in violation of Section 128. But there is nothing on record to suggest that just because three persons were on the motorcycle, that was a cause for the accident to any extent whatsoever. In the absence of any such evidence, mere contravention of a statutory provision cannot be held to have resulted in the accident. Therefore, on that score alone negligence cannot be attributed to the violator of the law. It is not possible to hold that merely because there were three persons in the vehicle, that by itself is negligent act so as to foist the liability on the violators of the law. In that view of the matter, we do not find any substance in this contention.
10. In the light of the above principles, the judgment of the Tribunal is justified in not attributing contributory negligence against the rider of the vehicle and not holding the deceased as a party to the said contributory negligence. Since the compensation is not computed by the Tribunal considering the future 17 prospect of the deceased and their actual income, the judgment of the Tribunal is to be modified by enhancing the compensation with just and reasonable amount.
11. In the light of the above submissions, following points arise for consideration:
"Whether the contributory negligence can be attributed against the rider and pillion rider of the motorcycle bearing No.AP-26/N-1171, if in the affirmative, whether the said at what rate contributory negligence can be linked against the deceased persons?
Further, what is the just and reasonable amount that the claimants in each cases are entitled for?"
12. During enquiry before the Tribunal, the widow of deceased Amarsingh and Rajkamal were examined as PWs.1 and 2 and one Sri.U.Srinivas claimed to be the employer of the deceased Rajkamal and Amarsingh was examined as PW.3. He had testified 18 in his evidence that the deceased Amarsingh (in MVC No.69/2014) was working under him as operator of crop harvester machine bearing No.071527632, Engine No.KRZ 855172 and he was paying Rs.18,000/- per month as salary and Rs.100/- towards batta and deceased Rajkamal (in MVC 70/2014) was working under him as operator of crop combine harvester machine bearing No.07051775, Engine No.JTZ 894535 and he was paying salary of Rs.20,000/- with batta at Rs.100/- per day. He also produced the salary certificates, which were marked as Exs.P13 and 14 respectively.
13. It emerged during the cross examination of PW.3 that he had no documentary proof about the employee and employer relationship with the victims of the accident, he uses the machines for his personal work in his agricultural land, in the remaining hours in the lands of others on the hire basis. His turnover from 19 the machine is Rs.20 lakhs per annum but he is not an income tax assessee.
14. Rebuttal evidence was adduced by the legal officer of the insurer who brought on record that a motorcycle bearing No.AP-26/N-1171 belongs to one Raja D., and is registered in the RTO of Nellore, Andhra Pradesh, which is around 500 kms. from Raichur district and the same was not insured on the date of the accident. The original driving licence of the owner of the tempo trax was not produced. Intentionally, the owner of the motorcycle is not arrayed as a party.
15. The Tribunal while appreciating the evidence observed that the driver of tempo trax being the eyewitness to the accident was the best witness to say how the accident occurred. It was observed that the defence has not proved its case that it was head on collusion and Amarsingh was the rider of the motorcycle 20 at the relevant point of time. Moreover, the charge sheet was filed against the driver of the tempo trax and the Investigating Officer who conducted the investigation could have examined as witness as to the identity of the rider of the motorcycle. That led the Tribunal to hold that the deceased were the pillion riders and were not parties to the contributory negligence. However, while working out loss of dependency, the Tribunal disbelieved the evidence of PW.3 and assumed the income of the deceased at Rs.8,000/- per month respectively. Thus, the compensation in MVC No.69/2014 pertaining to the death of Amarsingh and in MVC No.70/2014 pertaining to the death of Rajakamal was assessed as below: 21 MVC NO.69/2014
Loss of dependency Rs.10,24,000/- Loss of estate Rs. 15,000/- Loss of consortium Rs. 50,000/-
Loss of love and affection Rs. 50,000/-
Funeral expenses Rs. 10,000/-
Transportation Rs. 5,000/-
Total Rs.11,54,000/-
MVC NO.70/2014
Loss of dependency Rs.11,52,000/-
Loss of estate Rs. 15,000/-
Loss of consortium Rs. 25,000/-
Loss of love and affection Rs. 50,000/-
Funeral expenses Rs. 10,000/-
Transportation Rs. 5,000/-
Total Rs.12,57,000/-
22
16. There is no dispute between the parties about the death of both deceased persons in the vehicular accident involving a tempo trax bearing registration No.KA-37/9942. The bone of contention of the insurer is Amarsingh was the rider of the motorcycle and he being the tortfeasor, his legal heirs cannot maintain the claim petition. The said contention is not without foundation. The complaint was lodged with the jurisdictional police by a third person who had categorically averred that the deceased Amarsingh is the rider of the motorcycle. During the inquest mahazar also, it was stated that Amarsingh was the rider of the motorcycle. In the spot panchanam marked as Ex.P2 wherein the map of scene of occurrence is also incorporated, the spot is shown on the right side of the left lane. It was a road of 30 ft.; from the middle point of the road towards west, at a distance of 2 ft. the accident occurred. From the spot to the edge of the road it was still a distance of 12 ft. that is to say the 23 rider of the motorcycle was not on the extreme left side of the road. The tempo trax has crossed the middle line. As per the IMV report, the impact was on both the vehicles. In all possibility, the rider of the motorcycle, who was carrying two pillion riders on his motorcycle was not charge sheeted for the convenience of the claimants though it was a head on collusion in the middle of the Court.
17. The copy of the police records produced by the claimants is contradictory to their own case. Though, the charge sheet is filed against the driver of the Tempo Trax, the same cannot be said to be the true version of the actual event. The complaint, inquest mahazar and the spot panchanama probabalises the contributory negligence on the part of the rider of the motorcycle. The claimants of MVC No.69/2014 since are not able to explain the discrepancy in the police records inevitable inference is, it was Amarsingh who 24 was riding the motorbike without driving licence. It is to the common knowledge that any rider of the motorcycle who carries two pillion riders on his two seater motorcycle shall spare some portion of his rider's seat and in the event of sudden break, there is every possibility of rider loosing control and balance the vehicle. It is not only the rider but also the pillion riders travelling on the motorcycle knowing fully well of the eventualities of such riding are to be blamed. The insurer is right in contending that the rider of the motorcycle when gives up some space of the rider seat to two pillion riders, he cannot effectively control the motorcycle while taking turn or applying sudden break.
18. It emanates from the police records that the accident occurred at 9.30 p.m. on 29.11.2013. The F.I.R was registered at 11.30 p.m. of the same night that is to say by two hours information was received in the police station with the details of the accident. The 25 complainant describes himself as Shashidharreddy S/o Venkureddy, aged 34 years, Kapu by caste, driver of harvest machine of Vidavaloor taluk, Andhra Pradesh. He had come over to Sindhanur to operate the harvest machine. The three victims of the accident i.e., Rajakamal, Amarsingh and Vinod Reddy, who are all drivers of the harvest machine had come to the place and they were camping at Sattyvati camp and used to go for operation of the harvest machines in the nearby places. On 29.11.2013 after carrying out the operation of the harvest machine Amarsingh took Vinod Reddy and Rajkamal on the motorcycle bearing No.AP-26/N- 1171 and had instructed the complainant to follow in some other vehicle. They headed towards Sattyvati camp and the complainant followed them in a mini lorry. On Sindhanur-Gangavati main road after crossing Gorebal village in front of Basavanna Temple close to Gorebal camp, the driver of the tempo trax drove the vehicle rashly and negligently, dashed the 26 motorcycle, vehicle fell at some distance, the rider and two pillion riders fell down and sustained fatal injuries. All of them expired at the spot and the motorcycle, which was ridden by Amarsingh was severely damaged on its front side and tempo trax bearing No.KA-37/9942 was also damaged on its front portion.
19. The above narration indicates that there was no uncertainty about the identity of the victims and the complainant knew the victims very well. The tone of the complaint asserts that it was Amarsingh who was the rider of the motorcycle. In the charge sheet also, it is alleged that the driver of the tempo trax vehicle No.KA-37/9942 drove the same rashly and negligently and dashed to the motorcycle bearing No.AP-26/N- 1171. Due to which, the rider Amarsingh and two pillion riders sustained fatal injuries and succumbed to the injuries at the spot. That is to say even at 27 conclusion of the investigation also Amarsingh was the rider of the motorcycle.
20. Now the claimants have given a twist to the story that Amarsingh was a pillion rider and the motorcycle was ridden by Vinod Reddy.
21. Sri Babu H. Metagudda, learned counsel for the claimants has placed reliance on the judgment of the Larger Bench of the Apex Court in the case of Oriental Insurance Co. Ltd., vs. Smt.Chinnamma Joy and Ors. reported in AIR 2013 SCC 2293 and buttresses his contention that in the absence of any direct or corroborative evidence it cannot be held that there was any negligence on the part of the rider of the motorcycle involved in the accident. It cannot be held that Amarsingh was riding the motorcycle. Even, if far argument sake it is held that Amarsingh was the rider of the motorcycle then also contributory negligence 28 cannot be attributed against him since investigation officer has charge sheeted driver of opposite vehicle.
22. Learned counsel continues to submit that the insurer is making much out of the fact that Amarsingh did not possess driving licence to drive the motorcycle. But, the Apex Court in the matter of Sudhir Kumar Rana (supra) submits that driving a vehicle without licence need not amount to negligence as regards the accident in the absence of any specific evidence. With regard to the fact of two pillion riders on the vehicle, he places reliance on the unreported judgment of this Court in MFA No.31241/2011 dated 29.01.2013. In both cases co-ordinate Benches of this Court were of the opinion that when negligence was entirely on the part of driver of opposite vehicle, carrying two pillion riders did not amount to contributory negligence.
29
23. In our considered opinion, the above observation need not be the universal formula on all the occasions. The rider knowing fully well that it is risky to balance the vehicle allows two pillion riders to travel with him on the vehicle. At the same time, the pillion riders who are male adult persons necessarily will have the knowledge of the consequences of such traversal with him. Thus, all the three of them knowing fully well the vulnerability of such riding and the consequences thereupon, guilty of negligence. Ofcourse, Motor Vehicle Act is benevolent legislation intended to place the claimant in the same position that he was before the accident and to compassionate him for the loss. Thus, it should be interpreted liberally so as to achieve the maximum benefit [as per the judgment of the Apex Court in Syed Mehaboob vs. New India Assurance Co. Ltd., (2011) 11 SCC 625: (2011) 4 SCALE 496: 2011 (4) SLT 56.]. At the same time, the rider of the motorcycle 30 shall not jump over the statutory obligation imposed under Section 128 of the M.V. Act which reads thus:
"128. Safety measures for drivers and pillion riders. - (1) No driver of a two wheeled motorcycle shall carry more than one person in addition to himself on the motorcycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motorcycle behind the driver's seat with appropriate safety measures.
(2) In addition to the safety measures mentioned in sub-section (1), the Central Government may, prescribe other safety measures for the drivers of two wheeled motorcycles and pillion riders thereon."
24. Sri Babu H. Metagudda, learned counsel submits that since Section 128 of the Act is not punitive, the claimants being the real victims of the accident and the dependents of the deceased shall not be made to suffer for the lapses if any on the part of the 31 deceased. But, we are unable to endorse such excuses. It is the public money out of which compensation is paid to the victims of the motor vehicle accident. To say in one breath that the victims are entitled for the benefits under the Act and in other breath defending violation of statutory obligation is highly deplorable. When the insurer has shown that the motorcycle on which the deceased were travelling must have been stolen from Andhra Pradesh, there is no counter explanation to the same. It is not that the claimants are helpless and innocent rustics. Much against the final report of the Investigating Officer, they have twisted the story that Amarsingh was not the rider but a pillion rider. They examined a person showing him to be a employer of the deceased who even after claiming that he was paying monthly salary of Rs.20,000/- and Rs.18,000/- respectively, does not submit income tax returns. The basic question is whether harvesting is a vocation available through out the year? Even if, the 32 accused were skilled workmen in operation of the harvest crop machine and harvest combine machine that must be a seasonal job and no prudent employer will pay fat salary to the operators of such machine all through the year.
25. Again coming back to the scene of occurrence, in the map prepared by the Investigating Officer, the accident had occurred close to the right edge of left lane and the offending vehicle crossed the middle line and dashed against the motorcycle and there was sufficient space for the motorcycle to its left side. Hence, it cannot be said that the rider of the motorcycle was riding the same cautiously by following safety rules. Wherefore, we are of the considered opinion that Amarsingh being the rider of the motorcycle is guilty of negligence both in riding the vehicle and in carrying two pillion riders, thus contributing 10% of contributory negligence to the accident. Rajakaml though a pillion 33 rider by cautiously travelling on the motorcycle with co- pillion rider had contributed his share of negligence for the accident. Hence, he is guilty of contributory negligence by 5%. However, it emerges from the documentary evidence that the driver of the opposite vehicle was more responsible for the accident and the claimants in both the cases are entitled for the compensation to the extent of negligence of the driver of the opposite vehicle.
26. As per the judgments of the Apex Court in the matter of Khenyei (supra), followed by its judgment in the case of Kamlesh and Others vs. Attar Singh and Others, reported in (2015) 15 SCC 364, when both the drivers are tortfeasors, it would open to the claimants to claim compensation from any of the joint tortfeasor despite non-impleading the owner and insurer of the vehicle on which victims were travelling 34 with liberty to the insurer of the tempo trax to sue the owner of the motorcycle in an independent proceeding.
27. Now that takes us to the quantification of compensation amount. The Tribunal being the primary fact finding authority, on a proper analysis of the evidence has rejected the evidence of PW.3. That being so, in the absence of any documentary evidence, it has to be held that the deceased were skilled labourers. Looking to the date of the accident, it can be conveniently assumed that they were earning not less than Rs.7,500/- per month.
28. Regarding the grievance of the claimants that future prospects of the deceased is not considered while computing loss of dependency to the family by the Tribunal, the Constitutional Bench of the Apex Court in the matter of Pranay Sethi (supra) has ruled that "in the case deceased aged 40 years and was a self employee or on a fixed salary, an additional 40% of the 35 established income should be assessed and an additional 25% should be added where the deceased was 40 to 50 years. The word self-employment in the general parlance is used in the context where the person has his own business or is a entrepreneur or a service provider. Even if a person is a petty businessman like roadside vendor, we find no reason to pull him out of the brand of self-employment. The deceased since shown to be skilled persons deserve the benefit awarded by the Apex Court in the context of self- employment.
29. The deceased Amarsingh (in MVC No.69/2014) was aged 35 years as on the date of the accident and 40% of his monthly income should be counted upon while deciding loss of dependency. Thus, 40% of Rs.7,500/- comes to Rs.1,875 and monthly income comes to Rs.9,375/-. The suitable multiplier in accordance with the judgment of the Apex Court in the 36 case of Smt.Sarla Verma (supra) is 16. He left behind him a family of five members i.e., his widow, two children and parents. Deducting 1/4th of his income towards his personal expenses comes to Rs.7,031/- and annual income is Rs.84,372/-. Multiplying the annual income with the multiplier 16, the compensation towards loss of dependency comes to Rs.13,49,952/-. The Apex Court in the above said judgment in the matter of Pranay Sethi (supra) has limited Rs.15,000/- towards loss of estate, Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses and the same is applicable in the present case. Thus, the compensation works out to Rs.14,19,952/-. However, having held that the Amarsingh himself was guilty of contributory negligence by 10%, his dependents/claimants in MVC No.69/2014 are entitled for Rs.12,77,957/- as against Rs.11,54,000/- computed by the Tribunal. Thus, there is enhancement of compensation by Rs.1,23,957/-.
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30. Now coming to the case of claimants of MVC No.70/2014. The deceased Rajakmal was aged 25 years and multiplier applicable is 18. He left behind him a family of three. As worked out in the matter of Amarsingh, the annual income and future prospects comes to Rs.9,375/- and 1/3rd of the income shall be deducted towards his personal expenses and 2/3rd of the same i.e. Rs.6,250/- annually comes to Rs.75,000/- , multiplied with the proper multiplier 18, it comes to Rs.13,50,000/- i.e. Rs.67,500/-, the compensation towards loss of dependency comes to Rs.12,82,500/-. Rs.70,000/- is awarded under conventional heads, the claimants are entitled for compensation of Rs.13,52,500/- as against Rs.12,57,000/- computed by the Tribunal and there is enhancement of compensation of Rs.95,500/-.
31. Accordingly, the appeals filed by the insurer in MFA Nos.201731/2014 and 201732/2014 and the 38 appeals filed by the claimants in MFA No.201140/2014 and 201141/2014 are allowed in part.
Registry is directed to transmit the amount deposited by the appellant-insurer in MFA Nos.201731/2014 and 201732/2014 to the concerned Tribunal along with records forthwith.
The appellant-insurer in both the appeals is directed to deposit the compensation/enhanced compensation amount before the Tribunal within three weeks from the date of receipt of certified copy of this judgment.
Sd/-
JUDGE Sd/-
JUDGE Ct: SMP Srt