Karnataka High Court
Smt.Yamanavva vs Hanamanth on 9 July, 2020
Bench: S G Pandit, V.Srishananda
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 9TH DAY OF JULY 2020
PRESENT
THE HON'BLE MR. JUSTICE S.G. PANDIT
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
MFA NO.103382/2016 (MV)
BETWEEN
1. SMT.YAMANAVVA
W/O MUTTAPPA @ MUTTANNA NATIKAR,
AGE: 47 YEARS, OCC: HOUSEHOLD WORK,
2. KUMARI MANJULA
D/O MUTTAPPA @ MUTTANNA NATIKAR,
AGE: 21 YEARS, OCC: STUDENT,
3. KUMARI ASHWINI
D/O MUTTAPPA @ MUTTANNA NATIKAR,
AGE: 19 YEARS, OCC: HOUSEHOLD WORK,
ALL ARE R/O: MUTTUR,
TQ: JAMAKHANDI, DIST: BAGALKOT.
... APPELLANTS
(BY SRI.PRASHANT S KADADEVAR, ADV.)
AND
1. HANAMANTH S/O NAGAPPA KANKALE,
AGE: 47 YEARS,
OCC: CONTRACTOR,
R/O: BATAKURKI BUILDING,
8TH CROSS, VIDYAGIRI,
BAGALKOTE-587101.
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2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE COMPANY LIMITED,
POST BOX NO.60,
SANGAM BUILDING,
S.S. FRONT ROAD,
VIJAYAPURA.
... RESPONDENTS
(R1-SERVED, SRI.N.R.KUPPELUR, ADV. FOR R2)
THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED 22.01.2016
PASSED IN MVC NO.480/2014 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND MEMBER, MOTOR ACCIDENT
CLAIMS TRIBUNAL-V, JAMKHANDI, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FINAL HEARING THIS DAY,
S.G. PANDIT, J DELIVERED THE FOLLOWING:
JUDGMENT
The claimants are in appeal dissatisfied with the quantum of compensation and aggrieved by saddling of 50% contributory negligence on the deceased under the judgment and award dated 22.01.2016 in MVC No.480/2014 on the file of the Prl. Senior Civil Judge, Member, MACT-V, Jamkhandi.
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2. The claimants are mother and unmarried sisters of deceased Raghavendra. A claim petition under Section 166 of the Motor Vehicles Act (for short, 'the Act') was filed claiming compensation for the accidental death of Raghavendra in a road traffic accident. It is stated that on 08.10.2014 the deceased along with one Kushal were proceeding on motorcycle bearing No.KA- 48/J-2279 and at that time tipper bearing No.KA-29/A- 1595 came in a rash and negligent manner with high speed from opposite direction and dashed the motorcycle which was ridden by the deceased, due to which both the rider and pillion rider fell down on the road and sustained grievous injuries. The rider of the motorcycle Raghavendra succumbed to the injuries subsequently. It is stated that the deceased was aged 22 years and was earning Rs.15,000/- p.m. by driving work.
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3. On issuance of notice, respondent No.1- owner remained absent and was placed exparte. Respondent No.2-insurer appeared and filed its objection statement. Respondent No.2 in its objection statement denied the entire claim petition averments. Further, it also contended that the driver of the offending vehicle had no valid and effective driving license to drive the said vehicle. Owner of the tipper had violated the provisions of the Act. It also contended that the accident occurred due to the negligent riding of the motorcycle and at the time of the accident three persons were proceeding on the motorcycle. Thus, prayed to dismiss the claim petition.
4. Before the Tribunal, both the rider and pillion rider filed claim petitions which were clubbed together and common evidence was let in. The claimants examined two witnesses as PWs.1 and 2 5 apart from marking Exs.P.1 to P.7. Respondents examined RW.1 and marked Ex.R.1-insurance policy.
5. The Tribunal on scrutiny of the material placed before it, awarded total compensation of Rs.3,00,000/- with interest at the rate of 9% p.a. from the date of filing the petition till the date of payment. While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.5,000/- p.m. and applied multiplier of 18 deducting 50% towards personal and living expenses of the deceased as he was a bachelor. Further, the Tribunal saddled contributory negligence on the deceased at 50%. The claimants aggrieved by the said judgment and award are before this Court in this appeal.
6. Heard the learned counsel for the appellants and the learned counsel for the respondent-Insurance Company. Perused the trial Court records. 6
7. The learned counsel for the appellants would submit that the Tribunal committed a grave error in saddling 50% contributory negligence on the deceased solely on the ground that three persons were proceeding on the motorcycle at the time of the accident. The learned counsel would submit that there is no evidence to come to the conclusion that there was 50% contributory negligence on the part of the rider of the motorcycle i.e. deceased. In the absence of material or evidence to come to the said conclusion, only on the ground of triple riding, the Tribunal could not have saddled 50% contributory negligence on the deceased- rider of the motorcycle. He invites attention of this Court to sketch which is annexed to charge sheet Ex.P.3. Further, he also submits that there is no contra evidence on record to come to the conclusion that the rider of the motorcycle contributed his negligence towards occurrence of the accident. In that circumstance, he prays for setting aside the portion of 7 the finding saddling contributory negligence to an extent of 50% on the deceased-rider of the motorcycle.
8. With regard to the quantum of compensation, the learned counsel for the appellants would submit that the income assessed by the Tribunal at Rs.5,000/- p.m. is on the lower side. It is his submission that the deceased was working as driver and he was earning more than Rs.15,000/- p.m. As such, the income assessed by the Tribunal requires to be enhanced. Further, it is also his submission that the Tribunal committed an error in not granting any compensation on the head of future prospects since the deceased was aged 22 years. The claimants would be entitled for adding 40% of the assessed income towards future prospects. Mother of the deceased, who is claimant No.1 would be entitled for filial consortium of Rs.40,000/-. Hence, he prays for allowing the appeal. 8
9. Per contra, the learned counsel for the respondent-Insurance Company submits that the Tribunal is justified in saddling contributory negligence to an extent of 50%. It is his submission that there is no dispute with regard to the triple riding at the time of the accident and as such there is violation of Section 128 of the Act. Therefore, the Tribunal is perfectly justified in saddling 50% contributory negligence. Further, with regard to the quantum of compensation, he submits that in the absence of any material to establish the avocation and income of the deceased, the Tribunal is justified in assessing the monthly income of the deceased at Rs.5,000/- p.m. Thus, he prays for dismissal of the appeal.
10. On hearing the learned counsels for the parties and on consideration of the rival contentions, the following points would arise for consideration: 9
1. Whether saddling of 50% contributory negligence on the deceased is justified?
2. Whether the income assessed by the Tribunal at Rs.5,000/- p.m. is proper and correct?
3. Whether the claimants would be entitled for enhanced compensation?11. The answer to the above points No.1 and 2
would be in the negative and point No.3 is in the affirmative for the following reasons:
12. The accident that had taken place on 08.10.2014 involving motorcycle bearing No.KA-48/J-
2279 and tipper bearing No.KA-29/A-1595 and the accidental death of one Raghavendra in the said accident is not in dispute in this appeal. The claimants are before this Court praying for setting aside saddling of 50% contributory negligence and praying for enhancement of compensation. There is no dispute that at the time of the accident three persons were 10 proceeding on the motorcycle bearing No.KA-48/J-2279. A perusal of the sketch appended to the charge sheet placed on record as Ex.P.3 would indicate that the two- wheeler was coming from western side to eastern side on the left side of the road, whereas, the tipper going from east to west dashed to the motorcycle. It is a head- on collision. The Tribunal only on the ground that at the time of the accident, the motorcycle was proceeding with three persons, saddled liability of contributory negligence to an extent of 50% without recording any finding with regard to the negligence on the part of the rider of the motorcycle.
13. The learned counsel for the appellants relied upon the decision of Co-ordinate Bench of this Court in MFA No.6360/2008 and connected matters decided on 24.06.2010 to contend that merely on the ground of triple riding, contributory negligence could not be saddled on the rider of the motorcycle. We are in 11 complete agreement with the principles laid down in the above said decision by the Co-ordinate Bench of this Court. Hence, this Court has to examine from the material on record as to whether the deceased contributed his negligence in occurrence of the accident in question. As stated above, there was no dispute with regard to triple riding. Out of three persons two persons died and one person survived with certain injuries. The said third person is not examined before the Tribunal by either of the parties to say with regard to the occurrence of the accident. The third person on the motorcycle would have been the best witness to say with regard to negligence or otherwise of the deceased rider of the motorcycle. Sketch appended to Ex.P.3 would not properly indicate the movement of the vehicles in question. Admittedly the charge sheet was filed against the driver of the tipper. Sketch appended to Ex.P.3 would indicate that head-on-collision has taken place. It appears that when the tipper was coming from opposite 12 direction, because of triple riding, the rider of the motorcycle lost control of the bike. However, at the time of accident the tipper had slightly taken right and dashed to the motorcycle. Hence, 50% contributory negligence cannot be saddled on the rider of the motorcycle. At the most on overall appreciation of the material on record, the contributory negligence of the rider of the motorcycle could be assessed at 20% as against 50% assessed by the Tribunal.
14. The learned counsel for the appellants contended that the income assessed by the Tribunal at Rs.5,000/- p.m. of the deceased is on the lower side. The accident is of the year 2014. It is contended that the deceased was doing driving work. To prove the avocation of driving and to establish the income, no material is placed on record. In the absence of any material to establish the income or avocation, it is for the Tribunal to assess the income notionally. But, the 13 notional income assessed by the Tribunal at Rs.5,000/- p.m. is on the lower side. This Court and the Lok- Adalath while settling the accidental claims of the year 2014 would normally assess the notional income at Rs.7,500/- p.m. In the instant case also in the absence of any material to establish the income, we deem it appropriate to assess the notional income of the deceased at Rs.7,500/- p.m.
15. Further, the learned counsel for the appellants would contend that the Tribunal committed an error in not granting compensation on the head of future prospects. The Hon'ble Apex Court in the case of National Insurance Company Ltd vs. Pranay Sethi and others, reported in AIR 2017 Supreme Court 5157, has held that the claimants would be entitled for addition of 40% of the assessed income towards future prospects wherever the deceased was aged below 40 years. In the instant case also since the deceased was 14 below 40 years, the claimants would be entitled for addition of 40% of the assessed income towards future prospects.
16. The claimant No.1 is the mother of the deceased, who has lost her son aged about 22 years. She has lost love, affection and care of her son. Thus, she would be entitled for Rs.40,000/- on the head of filial consortium apart from Rs.50,000/- on conventional head. Thus, the claimants would be entitled for the following modified compensation:
1. Loss of dependency Including future prospects 7,500+3,000 (40% of 7,500) =10,500-5,250 (50% of 10,500) =5,250 x 12 x 18 =11,34,000/- : Rs.11,34,000
2. Conventional head : Rs. 50,000
3. Filial consortium : Rs. 40,000 Total : Rs.12,24,000
17. Thus, the claimants would be entitled for total compensation of Rs.12,24,000/- as against Rs.3,00,000/- awarded by the Tribunal with interest at 15 the rate of 9% p.a. from the date of petition till realization.
18. Since this Court has come to the conclusion that 20% of contributory negligence could be attributed on the rider of the motorcycle, the petitioners are entitled for total compensation of Rs.9,79,200/- (Rs.12,24,000 - Rs.2,44,800 (20% of Rs.12,24,000)).
19. The appeal is allowed in part. The contributory negligence saddled on the deceased at 50% is reduced to 20%. The impugned judgment and award passed by the Tribunal is modified to the above extent.
20. Respondent No.2-Insurance Company is directed to deposit the compensation amount with accrued interest within six weeks from the date of receipt of a certified copy of this judgment.
21. Claimant No.1 is entitled for 50% and claimants No.2 and 3 are entitled for 25% each out of the entire compensation amount.
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22. On deposit, out of the share of compensation amount awarded to all the claimants, 50% shall be kept in fixed deposit in the name of the claimants in any nationalized bank for a period of five years with liberty to them to withdraw the accrued interest periodically. Remaining 50% shall be released in the name of the claimants on proper identification.
23. Draw the modified award accordingly.
Sd/-
JUDGE Sd/-
JUDGE SH