Karnataka High Court
Smt. Manjula K.L vs Sri. Rajenthiran A.P on 3 July, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:25129
MFA No. 1281 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 1281 OF 2023 (MV-D)
BETWEEN:
1. SMT. MANJULA K.L.,
W/O. LATE. MURTHY G.
AGED ABOUT 36 YEARS,
2. MASTER. THILAK M.,
S/O. LATE MURTHY G.,
AGED ABOUT 17 YEARS,
3. MASTER. VISHAL M,
S/O. LATE MURTHY G.,
AGED ABOUT 14 YEARS,
PETITIONER NO.2 AND 3 ARE MINOR IN AGE,
Digitally signed by HENCE THE REPRESENTED BY THEIR MOTHER AS A
VEDAVATHI A K NATURAL GUARDIAN AND NEXT FRIEND.
Location: High
Court of Karnataka
4. SMT. HANUMAKKA
W/O GANGA MARIYAPPA S.,
AGED ABOUT 65 YEARS,
5. SRI. GANGA MARIYAPPA S,
S/O. LATE. SIDDAPPA,
AGED ABOUT 76 YEARS,
ALL ARE R/AT NO.21, 2ND MAIN ROAD,
MOHAN KUMAR NAGAR,
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NC: 2024:KHC:25129
MFA No. 1281 of 2023
BANGALORE NORTH, YESHWANTHAPURA,
BANGALORE - 560 022.
(MOB NO.9880631808)
...APPELLANTS
(BY SRI. TEJAS N., ADVOCATE)
AND:
1. SRI. RAJENTHIRAN AP,
S/O. PALANISAMY,
AGE ABOUT MAJOR,
R/AT NO.4/135B, NASUVANKADU,
MAVELIPALAYAM POST, SANKARI TALUK,
SALAM DISTRICT, TAMIL NADU - 637 301.
(R.C. OWNER OF THE ASHOK LEYLAND
LORRY BEARING NO. TN-52-K-2878)
2. THE REGIONAL MANAGER,
UNITED INDIA GENERAL INSURANCE CO. LTD.,
REGIONAL OFFICE, MOTOR TP, HUB,
KRISHI BHAVANA, 5TH AND 6TH FLOOR,
HUDSON CIRCLE, BANGALORE - 560 001.
(POLICY NO.17070331120P104088123
POLICY PERIOD FROM 22-07-2020 TO 21-07-2021)
...RESPONDENTS
(BY SRI. K.N.SRINIVASAN, ADVOCATE FOR R2;
R1 SERVED, BUT UNREPRESENTED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 14.12.2022 PASSED IN MVC NO. 2576/2021 ON
THE FILE OF THE VIII ADDITIONAL SCJ AND ACMM, MEMBER,
MACT, BENGALURU SCCH-5, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:25129
MFA No. 1281 of 2023
JUDGMENT
This appeal is filed by the petitioners-claimants against the judgment and award passed by the VIII Additional Small Causes Judge and Motor Accident Claims Tribunal, Bengaluru, in MVC No.2576/2021 dated 14.12.2022.
2. Though this appeal is posted for Admission, with the consent of the learned counsel for the parties, the same is taken up for final disposal.
3. Heard the arguments of the learned counsel for the appellants and learned counsel for the respondent - insurance company.
4. The appellants are the petitioners and the respondents are the respondents before the Tribunal. The rank of the parties is retained for the sake of convenience.
5. The petitioners filed claim petition at Section 166 of MVC seeking compensation after the death of one Murthy G., who is the husband of petitioner No.1 in the road accident that -4- NC: 2024:KHC:25129 MFA No. 1281 of 2023 occurred on 16.06.2021. The petitioners sought the compensation of Rs.1 crore for the death of the deceased.
6. It is alleged in the petition that on 16.06.2021 at about 7.30 p.m., the deceased was moving on his motorcycle bearing registration No.KA-03-X-7955 on Thumkur, Bangalore, NH-48, near Nadigir Institution of Engineering College, Madhavara, Bangalore City. At that time, a lorry bearing No.TN-52-K-2878 came from backside, in a high speed and in rash and negligent manner, and dashed against the deceased. Due to the impact, the deceased fell down and sustained the grievous injuries. He was shifted to Abhay Vasishtha Hospital and thereafter, to various other hospitals. During treatment, the deceased succumbed to the injuries. The deceased was earning the salary of Rs.47,467/- per month and therefore, the petitioners sought compensation under the various other heads.
7. In pursuance of notice, respondent No.1 placed ex- parte, respondent No.2-insurer filed statement of objections -5- NC: 2024:KHC:25129 MFA No. 1281 of 2023 denying the accident, age, income and death of the deceased and accordingly, prayed for dismissal of the petition.
8. The Tribunal framed the following issues:
1. Whether the petitioners prove that, deceased Late.Murthy G. died in the motor vehicle accident that occurred on 16.06.2021 at about 7.30p.m. near Tumkur-Bangalore NH-48 Road, Nadigir Engineering College, Madavara, Bengaluru City, due to rash and negligent driving of one Ashok Leyland Lorry bearing Reg.No.TN-52-K-
2878 by its driver, as mentioned in claim petition?
2. Whether the Petitioners are entitled for compensation? If so, how much and from whom?
3. What order or award?
9. In order to prove the case, petitioner No.1 was examined as P.W.1 and another witness was examined as P.W.2 and got marked 20 documents as per exhibits P.1 to P.20. On behalf of respondents, Senior Scientific Officer, Forensic Lab, was examined as R.W.1, CPI Amrutur Circle, Kunigal was examined as R.W.2 and respondent No.2 was -6- NC: 2024:KHC:25129 MFA No. 1281 of 2023 examined as R.W.3 and got marked four documents as per exhibits R.1 to R.4.
10. After hearing the parties, the Tribunal answered the issue Nos.1 and 2 partly in the affirmative and awarded the compensation of Rs.57,66,741/- with interest at 6% for annum from the date of petition till its realization. The Tribunal further fixed the liability of 75% on the driver of the lorry and 25% on the deceased as contributory negligence.
11. Being aggrieved by the judgment and award passed by the Tribunal in respect of quantum of compensation as well as fixing the contributory negligence, the petitions-claimants are before this Court in this appeal.
12. The learned counsel for the appellants has contended that the Tribunal has committed error in holding that there is contributory negligence between the driver of the lorry and deceased motorcycle and the accident occurred only because of the motorcycle and there is no damage to the lorry. There is no eyewitness examined by the respondent-insurance -7- NC: 2024:KHC:25129 MFA No. 1281 of 2023 company. Therefore, the question of taking contributory negligence does not arise. In support of his contentions, the learned counsel for the appellants has relied upon the judgment of the Hon'ble Supreme Court in the case of DINESH KUMAR J ALIAS DINESH J Vs. NATIONAL INSURANCE COMPANY LIMITED AND OTHERS reported in (2018)1 SCC 750 and contended that deducting all the other allowances is not appropriate and only the professional tax would be allowed for deduction. Therefore, prayed for the enhancement of compensation.
13. Learned counsel for the respondent-Insurance Company has contended that there is no visible damage to the lorry as it was suspected as to whether the offending lorry was involved in the accident. Therefore, the Tribunal has rightly held the contributory negligence on the part of the rider of the motorcycle. Therefore, there is no need to interfere with the judgment and award passed by the Tribunal and accordingly, prayed for dismissal of the appeal.
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14. Having heard the learned counsel appearing for the parties, perused the records.
15. After hearing the learned counsel for the parties, the points that arise for consideration are:
(i) Whether the Tribunal is justified in holding the contributory negligence between the driver of the lorry and the rider of the motor cycle in the ratio of 75:25 ?
(ii) Whether the petitioners are entitled for the enhancement of compensation ?
16. Petitioner No.1 is examined as P.W.1 and got marked 20 documents such as FIR, complaint, panchanama, sketch, inquest Panchanama PM report, copy of the notice under section 133 of the MV Act, copy of the IMV report. Exhibit P10
- the copy of charge sheet, reveals that the accident had occurred due to the rash and negligent driving of the driver of the lorry. An FIR was lodged against the driver of the lorry and the police have filed charge sheet against the driver of the lorry holding that there is negligence on the part of the driver of the lorry. But, the insurance company has taken the contention that there is no damage to the lorry. Therefore, the Tribunal -9- NC: 2024:KHC:25129 MFA No. 1281 of 2023 suspected the accident that there is no visible damage to the lorry and held 75% : 25% towards contributory negligence between the driver of the lorry and the vehicle of the deceased.
17. The learned counsel further contended that there is no eye witness or driver of the lorry was examined in respect of the incident. The charge sheet filed against the lorry was not challenged. The Tribunal held that there was suspicion in respect of the accident by the driver of the lorry and negligence on the part of the deceased. Therefore, fixing 25% negligence on the rider of the deceased motor vehicle is not correct. Therefore, I am of the view that the accident was occurred due to rash and negligence driving of the lorry and fixing liability on the deceased that is rider of the motorcycle is liable to be set aside.
18. As regards the compensation, it is well settled that in case of the government employee, except the professional tax there would be no other deductions. The deceased was serving as civil police (head constable) drawing a salary of Rs.47,467/- per month. This would be the total income of the deceased.
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NC: 2024:KHC:25129 MFA No. 1281 of 2023 Except the deduction of Rs.1,50,000/- towards investment under Section 80C of the I.T. Act and Rs.50,000/- towards statutory deductions, he will not come under the tax net. Hence, no other deductions would be taken place. Such being the case, the deceased will not have any other deductions except the professional tax. Therefore, the Tribunal has committed an error in deducting the other allowances in the salary and taking the net salary as his income. Therefore, I propose to take Rs.47,467/- as the income of the deceased and after deducting Rs.200/- towards professional tax, actual income of the deceased would come to Rs.47,267/-. If 30% towards future prospectus is taken, the income would be Rs.61,447/-. The deceased was having three dependents that is his wife and two children apart from his parents. Therefore, if one-fourth of the income is deducted, the net income would come to Rs.46,085/-. Then, the loss of dependency would be Rs.77,42,317/- (Rs.46,085/- x 12 x 14).
19. The Tribunal has awarded Rs.2 lakhs towards consortium to the claimants. There is no reason to interfere with the said award and the same is kept as it is.
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20. The Tribunal has awarded Rs.32,893/- towards medical expenses, which is on the basis of the bills and hence, the same is retained.
21. The Tribunal has also awarded Rs.30,000/- towards loss of estate and funeral expenses and the same is retained.
22. In all, the claimants are entitled for modified compensation as tabulated below:
Sl.
Heads of compensation Amount in `
No.
1 Loss of dependence 77,42,448-00
2 Filial consortium 2,00,000-00
3 Medical expenses 32,893-00
4 Loss of estate and funeral expenses 30,000-00
Total 80,00,341-00
23. Now, the question is whether the Court can award more than Rs.50 lakhs, when the claimants have sought only Rs. 14,83,259/- in the appeal memo.
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NC: 2024:KHC:25129 MFA No. 1281 of 2023
24. Further, the Hon'ble Supreme Court in the case of MONA BAGHEL AND OTHERS Vs. SAJJAN SINGH YADAV AND OTHERS in SLP (C) No.29207/2018 and KAMALA BAI AND OTHERS Vs. DIVISIONAL MANAGER, K.S.R.T.C. reported in 2019 SCC Online KAR 3502, has held that the Court cannot restrict to the claim made by the claimants and even the Court can award more than what is sought by the claimants. Such being the case, this Court cannot restrict to the claim made by the claimants and can award just and reasonable compensation.
25. Accordingly, the following order is passed:
(i) The appeal is allowed in part.
(ii) The appellant-claimants are entitled for the
compensation of Rs.80,00,341/- as against the award of Rs.57,66,741/- passed by the the VIII Additional Small Causes Judge and Motor Accident Claims Tribunal, Bengaluru, in MVC No.2576/2021 dated 14.12.2022.
(iii) The appellants are entitled to the interest at the rate of 6% per annum on the enhanced compensation, from the date of claim petition till the date of realisation.
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(iv) The respondent-insurance company is directed to deposit the enhanced compensation with interest at 6% per annum, within 60 days from the date of receipt of a copy of the award.
(v) The apportionment made by the Tribunal is hereby confirmed.
(vi) Draw the award accordingly.
Sd/-
JUDGE CS List No.: 1 Sl No.: 52 CT:SK