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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.No.2927/2013 (MV-D)
BETWEEN
1. SMT. MANJAMMA
W/O LATE RANGANATHAPPA
AGED ABOUT 39 YEARS
2. SRI PRAKASH K R
S/O LATE RANGANATHAPPA
AGED ABOUT 23 YEARS
3. PANKAJA
D/O LATE RANGANATHAPPA
AGED ABOUT 21 YEARS
4. NAVEENA R
S/O LATE RANGANATHAPPA
AGED ABOUT 19 YEARS
ALL ARE R/O KURUDANAHALLI
KASABA HOBLI, SIRA TALUK
NOW R/A "MAHESHA KRUPA"
R V COLONY, OLD B H ROAD
TUMKUR
...APPELLANTS
(BY SRI SUNIL K N , ADVOCATE FOR
SRI K R RAMESH, ADVOCATE)
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AND
1. MUDDARAJU
S/O BANAPPA
AGED ABOUT 47 YEARS
BADAVANAHALLI
MADHUGIRI TALUK
TUMKUR DISTRICT
2. M/S ICICI LOMBARD GENERAL
INSURANCE CO LTD
NO.83, S V R COMPLEX
HOSUR ROAD
BANGALORE-560068
... RESPONDENTS
(BY SRI B C RAJANNA, ADVOCATE FOR R1;
SRI H N KESHAVA PRASHANTH, ADVOCATE FOR R2)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 12.02.2013
PASSED IN MVC NO.556/2008 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND MACT-10, TUMKUR AND ETC.
THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is filed by the claimants challenging the judgment and award dated 12.02.2013 passed in MVC No.556/2008 on the file of the Principal Senior Civil Judge and MACT-10, Tumkur ('the Tribunal' for short).
2. Heard the learned counsel appearing for the respective parties.
3. The factual matrix of the case is that on 28.02.2008 at 5.00 p.m. the deceased was carrying milk cans on his TVS along with one Narayanappa as pillion rider and the deceased was riding the said TVS vehicle with milk cans towards Melkunte from Kurudanahalli and at that time, the tractor and trailer came from opposite direction and the driver of the said tractor drove the same in a rash and negligent manner and dashed against the said TVS vehicle and caused the accident as a result, the rider of the TVS and pillion rider have sustained injuries and the rider of the TVS was taken to the hospital and there he was declared as dead. Hence, made the claim before the Tribunal stating that the deceased was doing milk vending business and earning Rs.12,000/- p.m. The counsel for the Insurance Company 4 appeared and filed the written statement contending that the accident was occurred due to the fault of the deceased himself hence, the question of payment of compensation does not arise. The claimants in order to substantiate their claim examined wife of the deceased as PW1, who lodged the complaint as PW2, eye-witness as PW3, pillion rider of TVS as PW4 and the Investigating Officer as PW5 and also got marked the documents at Ex.P1 to P22. On the other hand, the respondents have examined one witness as RW1 who is the official of the Insurance Company and got marked the documents at Ex.R1 to R6. The Tribunal after considering both the oral and documentary evidence dismissed the claim petition in coming to the conclusion that the material which discloses that the accident was occurred due to negligence on the part of the deceased himself hence, answered Issued No.2 as negative and not answered the other Issues in coming to the conclusion that in view of the finding of Issue No.2, to consider the other Issues does not arise. Hence, the present appeal is filed.
4. The counsel appearing for the claimants would vehemently contend that there is no dispute with regard to the 5 accident and the Tribunal has committed an error in coming to the conclusion that the negligence is on the part of the rider of the TVS and the Tribunal has committed an error in relying upon Ex.R3 wherein it is mentioned as history of RTA caught between two tractors, hit to a tractor which was in front (No.KA06TA- 1913) of it on 28.02.2008 at around 5.30 p.m. near Melkunte while moving in a two wheeler TVS and the Tribunal fails to consider the involvement of two vehicles in the alleged accident and the reasoning given by the Tribunal is erroneous and ought not to have comes to a conclusion that the accident was occurred solely on account of negligence on the part of the deceased. The counsel also brought to notice of the sketch which discloses that both the vehicles were moving in an opposite direction and the alleged accident was occurred and on perusal of Ex.P3 also it discloses that the tractor trailer came in a curve road and hit the TVS and the very dismissal of the claim petition is erroneous. Hence, it requires interference.
5. Per contra, the learned counsel for respondent No.2- Insurance Company has brought to the notice of this Court, the discussions made by the Tribunal in paragraph Nos.11 to 18, 6 wherein it is clearly discussed with regard to the manner in which the accident was taken place and also taken note of Ex.R3- MLC record which has been discussed in detail and come to the conclusion that the accident in question had taken place due to the negligence on the part of the deceased himself. Hence, no grounds are made out for interference with the findings.
6. Having heard the arguments of the respective learned counsel and on perusal of the material available on record, the points that would arise for consideration of this Court are:
(i) Whether the Tribunal has committed an error in dismissing the claim petition, coming to the conclusion that the accident was occurred due to the negligence on the part of the deceased himself?
(ii) Whether the Tribunal has committed an error in quantifying the compensation while answering issue No.3?
(iii) To what order?
Point No.(i):
7. Having heard the respective counsel and on perusal of the material available on record, there is no dispute with regard to the involvement of vehicles in the accident and also 7 the complaint given by PW.2 immediately after the accident i.e., on the next day 29.02.2008. The accident was occurred on 28.02.2008 at 5.00 p.m., when the deceased was carrying milk cans on his TVS moped along with one Narayanappa as pillion rider of the deceased at the time of the accident. The wife of the deceased is not an eye witness examined as PW.1.
Hulikuntappa, who is the complainant, but not an eye witness, was examined as P.W.2. Narayanappa, the pillion rider, was also examined before the Trial Court as PW.4, reiterated the contents of the complaint and was subjected to cross examination. In the cross examination of PW.4, it is elicited that when they were proceeding on TVS moped, no other vehicles were coming behind their vehicle. It is suggested that when they were carrying milk can in the TVS, the rider i.e., the deceased lost balance of the said vehicle and the said suggestion was denied by him. It is elicited that, he took the treatment in the Government hospital and said treatment was free treatment. PW.3- Jayaramaiah also claim that he took the injured to the hospital. PW.5- Sri. G.S.Gajendra Prasad, who is the Investigating Officer, in his evidence stated that the case was registered by him and conducted the spot panchanama, 8 investigated the matter and filed the charge sheet. He was subjected to cross examination and he admits that Narayanappa has not given any complaint and in the cross examination, he stated that he does not know what happened in the criminal case and also not aware whether he has given evidence and nothing is suggested in the cross examination that there was no negligence on the part of the driver of the Tractor-Trailer. However, a suggestion was made that a false case was registered against him and the same was denied.
8. On the other hand, respondent No.2-Insurance company got examined only one witness i.e., official witness and in the evidence, it claims that there is no involvement of the vehicle in the accident. In cross examination a suggestion was made that he is giving false evidence before the Court that the driver was not having driving license and the said suggestion was denied. It is also suggested that he has falsely deposed that the accident was occurred due to the negligence on the part of the rider of TVS moped and the said suggestion was also denied.
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9. Having considered the material available on record and particularly Ex.R.2- D.L extract and also relying upon the document Ex.R.3, it is seen that the driver was having driving license from 10.04.1992 to 08.01.2024 in respect of LMV(N/T). The Tribunal also mainly concentrated on the document Ex.R3- MLC record, having considered MLC which came in existence immediately after the accident. It is stated in the MLC record that, "history of RTA, caught between two tractors, hit to a tractor which was in front of it on 28.08.2008 at about 5.30 p.m near melekunte while moving on a two-wheeler". Hence, it is clear that the accident was occurred between two-wheeler and the tractor. The Tribunal has concentrated with regard to mentioning of hit to a tractor and comes to a conclusion that the accident was occurred only on account of exclusive negligence on the part of the driver and the very finding of the Tribunal is erroneous when two vehicles are involved in the accident and the Tractor-Trailer driver was not examined and he ought to have been examined as to know how the accident occurred by exclusive negligence on the part of the deceased himself and no such evidence before the Court, instead the Tribunal mainly relied on Ex.R3 and failed to take note of Ex.P.3 -spot sketch 10 which clearly discloses that tractor came in the opposite direction that too in a curve road and accident was occurred immediately after the completion of the curve road and also sketch discloses the TVS which came in the opposite road also almost entering the curve road and the accident spot also discloses the TVS rider also proceeding in the middle of the road.
10. When such being the case, the Tribunal ought to have apportioned the negligence on the part of both the vehicles and the same is not been done. Instead by relying upon the document Ex.R3 comes to an erroneous conclusion that the accident was occurred solely on account of negligence on the part of the deceased himself and dismissed the appeal without apportioning the negligence appropriately. Hence, having considered the material available on record in the absence of evidence of driver of Tractor-Trailer and also the Investigating Officer, who had spoken about the negligence on the part of the driver of Tractor-trailer, it is appropriate to consider 30% of negligence on the part of the deceased and 70% of negligence on the part of the driver of the Tractor-trailer. Hence, issue No.2 answered by the Tribunal is modified, coming to the conclusion 11 that there is contributory negligence to the extent of apportioned above and I answer point No.(i) accordingly.
Point No.(ii):
11. With regard to the quantum of compensation is concerned, I have already pointed out that the Tribunal has answered issue no.2 in the negative and has not considered the matter regarding quantum of compensation. Even though, the compensation is not quantified, the Court can quantify the compensation. The accident of the year 2008 and the notional income is taken at Rs.4,500/-p.m. The learned counsel appearing for the claimant mainly relies upon the document Ex.P7- cards issued by Milk producers Co-operative Society and those cards pertain to the deceased Ranganatha dated 1.11.2007, 1.01.2008 and 1.12.2007. On perusal of these documents it reflects the supply of milk and its quantity. In respect of proving the same, the Tribunal also examined one witness PW.3- who is a Secretary of Milk producers Co-operative Society and in his evidence, it is stated that the deceased was supplying milk for last ten years and he used to supply 35 liters every day. He was earning Rs.13,860/- by supplying the milk. 12 He was subjected to cross examination and in the cross examination, he admits that while supplying the cards they used to mention the card number, but he claims that in their Society they have not given any number and also he claims that there were 45 persons supplying milk, they have not given any numbers to them and making the payment of Rs.13/- to Rs.20/- per liter. He claims that they were paying an amount of Rs.13,860/-, but no such documents are produced before the Court except Ex.P7. In the absence of documentary evidence with regard to payment is concerned and only Ex.P7- cards are produced to show regarding supplying of milk, but for having paid the amount no document is placed, under these circumstances, it is appropriate to rely upon only on the notional income. Having taken the income of Rs.4,500/-, as the deceased was aged 35 years as per Post Mortem report, 40% has to be added towards future prospectus, hence, it comes to Rs.6,300/- (Rs.4,500X40%). The claimants are wife, children and parents of the deceased, hence, 1/4th has to be deducted towards personal expenses, after deducting 1/4th towards personal expenses, it comes to Rs.4,725/- and applying 13 multiplier at 16, the loss of dependency would be Rs.9,07,200/- (Rs.4,725 X12X16).
12. The learned counsel for the claimants submits that the mother of the deceased passed away during the pendency of the claim petition, hence, the claimants are only four in number and they are the wife and children of the deceased and they have lost love and affection of the deceased and hence, they are entitled for Rs.1,60,000/- (40,000X4) towards love and affection and apart from that the claimants are entitled for Rs.33,000/- on the head of estate and funeral expenses. The claimants are entitled for the compensation in all Rs.11,00,200/-. Out of this amount, this Court has apportioned 30% negligence on the part of the deceased which has to be deducted, then it comes to Rs.7,70,140/-(Rs.11,00,200 - Rs.3,30,060). Hence, in all the claimants are entitled for the compensation of Rs.7,70,140/-. Point No.(iii)
13. In view of the discussion made above, I pass the following:
ORDER The appeal is allowed in-part.
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The impugned judgment and award of the
Tribunal dated 12.02.2013 passed in
M.V.C.No.556/2008 is set aside and taken
contributory negligence to the extent of 30% on the part of the deceased and 70% negligence against the respondents and quantified the compensation of Rs.7,70,140/-(Rs.11,00,200 - 3,30,060) with interest at 6% per annum from the date of petition till deposit.
The respondent No.2 -Insurance Company is directed to pay the compensation amount with interest within six weeks from today.
The compensation is apportioned to the claimants i.e., to the wife of the deceased (appellant No.1) to the extent of 40% and to the children of the deceased (appellant Nos.2 to 4) to the extent of 20% each.
The Registry is directed to send the records to the concerned Tribunal, forthwith.
Sd/-
JUDGE SN/SKS