IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE M.I.ARUN
M.F.A.No.62/2018 C/w. M.F.A.No.438/2018 (MV)
IN MFA No.62/2018:
BETWEEN :
THE BRANCH MANAGER
NEW INDIA ASSURANCE CO. LTD.,
BRANCH OFFICE, P.B. ROAD
CHITRADURGA-577541
[REP. BY ITS DIVISIONAL MANAGER]. ...APPELLANT
(BY SRI SANMATHI.E.I., ADV.)
AND :
1. SMT.SHRUTHI
W/O LATE BHEEMESH
AGED ABOUT 24 YEARS
HOUSEWIFE.
2. KEERTHANA
D/O LATE BHEEMESH
AGED ABOUT 6 YEARS
3. KISHORE
D/O LATE BHEEMESH
AGED ABOUT 5 YEARS
[THE RESPONDENT Nos.2 & 3 ARE
MINORS REP. BY FIRST RESPONDENT
BEING NATURAL GUARDIAN]
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4. SMT.DEVAMMA
W/O LATE BEERAPPA
AGED ABOUT 66 YEARS
ALL ARE R/AT LAKSHMISAGARA VILLAGE
CHITRADURGA-577541.
5. INSTANT TRANSPORT
SOLUTION PVT. LTD.,
ITS HOUSE No.72/2,
KAPASHERA BIJWASAN ROAD
NEAR BHARATHI PETROL PUMP
NEW DELHI-110037. ...RESPONDENTS
(BY SRI SHANKAR GOUD.G., ADV. FOR C/R-1 TO 4;
R-2 & R-3 ARE MINORS, REP. BY R-1;
V/O. DATED 04.01.2021, NOTICE TO R-5 IS DISPENSED WITH.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
30.10.2017 PASSED IN MVC No.779/2016 ON THE FILE OF THE
2ND ADDITIONAL SENIOR CIVIL JUDGE & JMFC, CHITRADURGA,
AWARDING COMPENSATION OF Rs.15,02,000/- WITH INTEREST
9% P.A., FROM THE DATE OF FILING THE PETITION TILL THE
REALIZATION.
IN MFA No.438/2018:
BETWEEN :
1. SMT.SHRUTHI
W/O LATE BHEEMESH
AGED ABOUT 25 YEARS
HOUSEWIFE.
2. KEERTHANA
D/O LATE BHEEMESH
AGED ABOUT 7 YEARS
3. KISHORE
D/O LATE BHEEMESH
AGED ABOUT 6 YEARS
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[THE PETITIONER Nos.2 & 3 ARE
MINORS REP. BY THEIR MOTHER
AS NATURAL GUARDIAN]
4. SMT.DEVAMMA
W/O LATE BEERAPPA
AGED ABOUT 67 YEARS
ALL ARE R/AT LAKSHMISAGARA VILLAGE
CHITRADURGA TALUK-577541. ...APPELLANTS
(BY SRI SHANKAR GOUD.G., ADV.]
AND :
1. INSTANT TRANSPORT
SOLUTION PVT. LTD.,
HOUSE No.72/2,
KAPASHERA BIJWASAN ROAD
NEAR BHARATH PETROL PUMP
NEW DELHI-110037.
2. THE BRANCH MANAGER
NEW INDIA ASSURANCE CO. LTD.,
BRANCH OFFICE, P.B. ROAD
CHITRADURGA-577541. ...RESPONDENTS
[BY SRI SANMATHI.E.I., ADV. FOR R-2;
V/O DATED 04.01.2021, NOTICE TO R-1 IS DISPENSED WITH].
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
30.10.2017 PASSED IN MVC No.779/2016 ON THE FILE OF THE
II ADDITIONAL SENIOR CIVIL JUDGE & JMFC, CHITRADURGA,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, S. SUJATHA, J., DELIVERED THE FOLLOWING:
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JUDGMENT
Both the insurer as well as the claimants have preferred the appeals challenging the judgment and award dated 30.10.2017 passed in MVC No.779/2016 on the file of the II Additional Senior Civil Judge and JMFC, Chitradurga ['Tribunal' for short].
2. The claimants instituted the petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the death of Bheemesh in the road traffic accident.
3. It was averred in the claim petition that on 04.05.2016 at about 9.30 p.m., when the deceased was traveling in his motorcycle from Lakshmisagara village to K.Ballekatte Gate as a rider, when he was taking U- turn, at that time a lorry bearing registration No.HR-55- T-7574 [offending vehicle] driven by its driver in a rash and negligent manner has dashed to the hind portion of -5- the motorcycle. Due to which, he sustained fatal injuries and died at the spot.
4. It was contended that the deceased was aged about 30 years and was earning Rs.15,000/- per month by doing mason work. Due to untimely death of the deceased, the claimants are suffering loss of dependency etc.,
5. After service of notice, the owner as well as the insurer appeared through their respective counsel and filed objections denying the petition averments. The respondent No.1 - owner of the offending vehicle contended that the offending vehicle was insured with the respondent No.2 and the policy was in force as on the date of accident. Hence, liability if any, has to be discharged by the respondent No.2.
6. The defence set up by the insurer was that the owner has violated the terms and conditions of the -6- policy by entrusting his lorry to a person who had no valid and effective driving licence at the time of the accident. The deceased was negligent in driving the motorcycle; the compensation claimed by the petitioner is exorbitant, however, the liability is subject to terms and conditions of the policy. Accordingly, on these grounds sought for dismissal of the petition.
7. On the basis of the pleadings, the following issues were framed:
1. Whether the petitioners prove that, they are legal heirs of the deceased Bheemesh S/o Late Beerappa?
2. Whether the petitioners prove that, deceased Bheemesh S/o Late Beerappa died due to injuries sustained in the road traffic accident occurred on 04.05.2016 at about 9.30 p.m., near Kaxmisagara Gate NH-4 road, Chitradurga Taluk, due to rash and negligent driving of driver of lorry bearing Reg. No.HR- 55-T-7574 by its driver?-7-
3. Whether the petitioners are entitled for compensation? If so, how much and from whom?
4. What order or award?
8. The widow of the deceased was examined as PW1 and got marked Ex.P1 to P14. The appellant- insurer got examined its Senior Assistant as RW-1 and got marked Ex.R1 and R2.
9. On appreciation of oral and documentary evidence, the Tribunal allowed the petition in part holding that the claimants are entitled to compensation of Rs.15,02,000/- with interest at 9% p.a., from the date of filing the petition till its realization, fastening the liability on the appellant-insurer to pay the compensation within 30 days from the date of the order.
10. Being aggrieved, the insurer has preferred MFA No.62/2018 challenging the negligence as well as the quantum of compensation as exorbitant, whereas -8- the claimants have preferred MFA No.438/2018 seeking enhancement of compensation contending that the quantum of compensation awarded by the Tribunal is inadequate.
11. Learned counsel for the appellant-insurer argued that the Tribunal grossly erred in determining the notional income of the deceased at Rs.8,000/- in the absence of any material evidence. It was submitted that the compensation awarded under the different heads is excessive. Learned counsel submitted that the Tribunal failed to appreciate the manner of accident in the backdrop of the sketch at Ex.R2 which clearly establishes that the accident has occurred in the middle of the road and the deceased was driving his two wheeler in the middle of the road. The burden of proving the negligence of the driver of the offending vehicle has not been discharged by the claimants to get compensation. Learned counsel referring to the -9- application [I.A-1/2020] filed for amendment of the appeal memorandum, submitted that there was contributory negligence on the part of the deceased which has not been properly appreciated by the Tribunal while adjudicating the issue of negligence.
12. Per contra, learned counsel appearing for the claimants argued that the police records would manifestly make it clear that the accident in question occurred only due to the sole negligence of the driver of the offending vehicle. No contributory negligence could be attributed on the part of the deceased having regard to the material evidence on record. The Tribunal on profuse analysis of the material evidence has rightly held that the sole negligence of the driver of the offending vehicle was the cause for the accident and the same requires to be confirmed by this Court. It was further argued that the quantum of compensation
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awarded by the Tribunal is meager and the same requires to be enhanced substantially.
13. Having heard the learned counsel for the parties and perusing the records, the points that arise for our consideration are:
1. Whether the Tribunal was justified in fixing the negligence on the part of the driver of the offending vehicle for the cause of the accident?
2. Whether the quantum of compensation awarded by the Tribunal is just and proper?
Re. Point No.1:
14. Ex.P1 to P4 and P6 - the police documents as well as Ex.P9 - IMV report would indicate that the Investigating Officer has conducted the investigation and the charge sheet was filed against the driver of the offending vehicle for the offences punishable under Sections 279 and 304[A] of IPC. The burden of proving the contributory negligence on the part of the deceased
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shifts on the insurance company. It is trite that in order to prove the contributory negligence, substantial evidence is sine qua non inasmuch as whether the deceased could have by exercise of reasonable care, avoided the consequence of the accident. The negligent act or omission of the deceased has to be proximate on the immediate cause of death resulting from the accidental injuries. Indeed such an act or omission on the part of the deceased which materially contributed to the accident has to be proved by tendering evidence. The police records especially the spot sketch at Ex.R2 would indicate that the accident has occurred at the intersection of the road when the deceased was attempting to take a U-turn. In the absence material evidence to demonstrate the negligence contributed by the deceased, it cannot be held that there was omission on the part of the deceased to take due care and he contributed for the accident. It is well settled that in the accident involving two vehicles of different category i.e.,
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the heavier vehicle - lorry and the light motor vehicle - motorcycle more care and caution has to be taken by the driver of the heavier vehicle especially at the intersection of the road where the possibility of vehicles moving from different directions is probable.
15. Considering these aspects, on re- appreciation of ocular and documentary evidence, we do not find any flaw in the finding of the Tribunal in fixing the sole negligence on the part of the driver of the offending vehicle for causing the accident. Accordingly, we dismiss the I.A-1/2020 filed by the appellant- insurer.
Re. Point No.2:
16. The evidence on record would indicate that the deceased was working as a mason. Though it was averred that the deceased was earning Rs.20,000/- p.m., in the absence of any cogent evidence to establish the same, we deem it appropriate to determine the
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income of the deceased as per the chart of the Karnataka Legal Services Authority. In terms of the same, we deem it appropriate to fix the monthly income of the deceased at Rs.9,500/-. Adding 40% towards future prospects of Rs.3,800/-, the total monthly income of the deceased would be Rs.13,300/-. Applying the multiplier of 16 since the deceased was aged about 30 years at the time of the accident, deducting 1/4th towards personal and living expenses, the loss of dependency would work out to Rs.19,15,200/- [13,300 x 12 x 16 x ¾].
17. In terms of the ruling of the Hon'ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others ((2017)16 SCC 680) and New India Assurance Company Limited V/s. Somwati and Others 2020 [SCC ONLINE SC 720], the claimants are entitled to compensation of Rs.1,90,000/- under the conventional heads viz., Rs.40,000/- towards loss of spousal consortium; Rs.80,000/- towards parental
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consortium [Rs.40,000/- each to the child]; Rs.40,000/- towards loss of filial consortium; Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate.
18. For the reasons aforesaid, the total compensation awarded by the Tribunal is re-assessed as under:
Sl.No. Particulars Amount [in Rs.]
1. Loss of dependency 19,15,200/-
Loss of Parental Consortium
2. 80,000/-
[Rs.40,000/- each to the child]
3. Loss of Filial Consortium 40,000/-
4. Loss of Spousal Consortium 40,000/-
5. Loss of Estate 15,000/-
6. Funeral expenses 15,000/-
Total 21,05,200/-
However, having regard to the fall in the rate of interest in the banks and to maintain uniformity in the order as this Court is consistently awarding interest at the rate of 6% p.a., in identical circumstances, we deem it appropriate to modify the rate of interest from 9% to 6% p.a. Accordingly, the appeal filed by the insurer is allowed only as far as the interest is concerned.
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Thus, the claimants shall be entitled to total compensation of Rs.21,05,200/- with interest at the rate of 6% per annum from the date of the claim petition till the date of realization.
19. Hence, the following:
ORDER i] Both the appeals are allowed in part. ii] The compensation awarded by the Tribunal is modified and enhanced to Rs.21,05,200/- as against Rs.15,02,000/- with interest at 6% p.a., from the date of the claim petition till its realization.
iii] The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.
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iv] The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact.
v] The modified compensation shall be disbursed in terms of the order of the Tribunal.
vi] Draw modified award accordingly. vii] Registry shall transfer the amount in deposit along with the original records to the jurisdictional Tribunal forthwith.
viii] I.A-1/2020 stands dismissed.
Sd/-
JUDGE Sd/-
JUDGE NC.