Alappa vs Sri Sukhraj Singh
2021 Latest Caselaw 6260 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 16TH DAY OF DECEMBER 2021

                     BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

            MFA No.8674 OF 2019(MV)

BETWEEN:

1.    ALAPPA
      S/O LATE ERAPPA
      AGED ABOUT 52 YEARS

2.    BHARATH A
      S/O ALAPPA
      AGED ABOUT 27 YEARS

3.    ANUSHA A
      D/O ALAPPA
      AGED ABOUT 25 YEARS
      R/AT HEJJALA VILLAGE AND POST
      BIDADI HOBLI
      RAMANAGAR DISTRICT-660053.
                                      ...APPELLANTS

(BY SRI. GURUDEV PRASAD K T., ADV.)

AND

1.    SRI.SUKHRAJ SINGH
      S/O SHADALIP SINGH
      CHAKBUNDALA TEH (V AND P)
      SHAHKOT DISTRICT
                       2



     JALANDHAR
     PUNJAB 144001.

2.   THE NEW INDIA ASSURANCE CO LTD.
     BY ITS MANAGER
     LAKSHMI COMPLEX
     M G ROAD
     BENGALURU 560001.

3.   SMT. S. AMUTHA
     W/O S R SENGOTTUVEL
     NO.12, NEAR AYYAPPA TEMPLE
     ATTIBELE POST
     ANEKAL TALUK
     BENGALURU 562107.

4.   M/S. RELIANCE GENERAL
     INSURANCE COMPANY
     BY ITS MANAGER
     MANANDI PLAZA
     ST MARKS ROAD
     BENGALURU 560001.
                                  ...RESPONDENTS

(BY SRI.K.N.SRINIVASA, ADV. FOR R2:
SRI. B. PRADEEP, ADV. FOR R4
R1 SERVED AND UNREPRESENTED
NOTICE TO R3 IS D/W V/O DATED:24.09.2021)

     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:
09.07.2019 PASSED IN MVC NO.3023/2017 ON THE
FILE OF THE VIII ADDITIONAL SMALL CAUSES JUDGE
AND XXXIII ACMM, MEMBER-MACT, BENGALURU
(SCCH-5), PARTLY ALLOWING THE CLAIM PETITION
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FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

     THIS MFA COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                      JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the claimants being

aggrieved by the judgment dated 9.7.2019 passed by

the Motor Accident Claims Tribunal, Bengaluru in MVC

3023/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 14.5.2015, the deceased

Leelavathi was traveling as a pillion order along with

her husband as rider on motorcycle bearing No.KA-41-

L-1024 on Bangalore-Mysore Main Road, near

Kumbalgud Bus Stop, on road hump ahead, at that

time, a concrete Mixer lorry bearing No.KA-51-B-9731

was driven in a rash and negligent manner in the

same direction and dashed to the back portion of the

motorcycle and due to the impact, the pillion rider fell

from the motorcycle on the road, at the same time,

another lorry bearing No.PB-32-K-8449 came in a

rash and negligent manner and the wheel of the said

lorry ran over the head of the deceased. As a result

of the aforesaid accident, the deceased sustained

grievous injuries and succumbed to the injuries on the

spot.

3. The claimants filed a petition under Section

166 of the Act seeking compensation for the death of

the deceased along with interest.

4. On service of summons, the respondent

Nos.1, 2 and 4 appeared through counsel and only

respondent Nos.2 and 4 filed written statements in

which the averments made in the petition were

denied.

The respondent No.1 did not appear before the

Tribunal inspite of service of notice and hence was

placed ex-parte.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants, in order to

prove their case, examined claimant No.1 as PW-1

and got exhibited documents namely Ex.P1 to Ex.P12.

On behalf of respondents, two witnesses were

examined as RWs-1 and 2 and got exhibited

documents namely Ex.R1 to Ex.R4. The Claims

Tribunal, by the impugned judgment, inter alia, held

that the accident took place on account of contributory

negligence, as a result of which, the deceased

sustained injuries and succumbed to the injuries. The

Tribunal further held that the claimants are entitled to

a compensation of Rs.8,12,000/- along with interest

at the rate of 9% p.a. and directed the respondent

Nos.2 and 4, Insurance Companies to deposit the

compensation amount along with interest at 50%

each. Being aggrieved, this appeal has been filed.

6. The learned counsel for the claimants has

raised the following contentions:

Negligence:

It is contended that at the time of the accident,

the deceased was proceeding as a pillion rider along

with her husband on the motorcycle. The accident

occurred due to rash and negligent driving of the

Concrete Mixer lorry bearing No.KA-51-B-9731 and

another lorry bearing No.PB-32-K-8449. The Tribunal

after considering the evidences of the parties and

materials available on record has given a clear finding

that the drivers of both the concrete mixer lorry and

another lorry were negligent in causing the accident.

But the Tribunal only on the ground that the deceased

was not wearing helmet has held that even she has

also contributed to the accident to the extent of 10%.

Hence, the said finding of the Tribunal holding that the

deceased has contributed to the accident is

unsustainable. In support of his contention, he has

relied upon the decision of the Apex Court in the case

of Union of India -v- United India Insurance Co. Ltd

and Others reported (1997) 8 SCC 683 and decision of

the Kerala High Court in the case of P.J.Jose and Ors.

v. Vanchankal Niyas and Ors. decided on 17.12.2015

in MACA NO.2482 of 2009.

Quantum of compensation:

Firstly, the claimants claim that the deceased

was aged about 45 years at the time of the accident

and he was earning Rs.10,000/- per month by doing

tailoring work. But the Tribunal is not justified in

taking the monthly income of the deceased as merely

as Rs.7,000/-.

Secondly, as per the law laid down by the

Hon'ble Supreme Court in the case of NATIONAL

INSURANCE CO. LTD. -v- PRANAY SETHI AND

OTHERS [AIR 2017 SC 5157], in case the deceased

was self-employed or on a fixed salary, an addition of

25% of the established income towards 'future

prospects' should be the warrant where the deceased

was between the age group of 40-50 years. The same

has been rightly considered by the Tribunal.

Thirdly, the claimants are husband, son and

unmarried daughter of the deceased and they were

depending on the income of the deceased. There are

three dependents. The Tribunal instead of deducting

1/3rd of the income of the deceased towards personal

expenses has wrongly deducted 50% of the income.

Fourthly, as per the judgment of the Hon'ble

Supreme Court in the case of MAGMA GENERAL

INSURANCE CO. LTD. -V- NANU RAM reported in

2018 ACJ 2782, each of the claimants are entitled

for compensation of Rs.40,000/- under the head of

'loss of love and affection and consortium'. Hence, he

prays for allowing the appeal.

7. On the other hand, the learned counsel for

the respondent Nos.2 and 4 have raised the following

counter-contentions:

Negligence:

At the time of the accident, the deceased

Leelavathi was proceeding on the motorcycle as a

pillion rider and she was not wearing helmet. If she

had worn the helmet, she would not have died in the

accident. The Tribunal considering the same has

rightly held that the deceased has contributed to the

accident to the extent of 10%.

Quantum of compensation:

Firstly, even though the claimants claim that the

deceased was earning Rs.10,000/- per month, the

same is not established by the claimants by producing

documents. Therefore, the Tribunal has rightly

assessed the income of the deceased notionally.

Secondly, since the claimants have not

established the income of the deceased, they are not

entitled for compensation towards 'future prospects'.

Thirdly, the claimants are husband and major

son and daughter of the deceased and they are not

depending on the income of the deceased. Therefore,

the Tribunal has rightly deducted 50% of the income

of the deceased towards personal expenses.

Fourthly, on appreciation of oral and

documentary evidence and considering the age and

avocation of the deceased, the overall compensation

awarded by the Tribunal is just and reasonable.

Hence, they pray for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. The case of the claimants is that on

14.5.2015, when the deceased Leelavathi was

traveling as a pillion order along with her husband as

rider on motorcycle bearing No.KA-41-L-1024 on

Bangalore-Mysore Main Road, near Kumbalgud Bus

Stop, on road hump ahead, at that time, a concrete

Mixer lorry bearing No.KA-51-B-9731 was driven in a

rash and negligent manner in the same direction and

dashed to the back portion of the motorcycle and due

to the impact, the pillion rider fell from the motorcycle

on the road, at the same time, another lorry bearing

No.PB-32-K-8449 came in a rash and negligent

manner and the wheel of the said lorry ran over the

head of the deceased. As a result of the aforesaid

accident, the deceased sustained grievous injuries and

succumbed to the injuries on the spot.

The Tribunal on the basis of the pleadings of the

parties framed issues and after considering the

materials available on record has held that the drivers

of concrete Mixer lorry bearing No.KA-51-B-9731 and

lorry bearing No.PB-32-K-8449 are negligent in

causing the accident.

But the Tribunal only on the ground that the

deceased was not wearing helmet at the time of the

accident has held that the deceased has contributed to

the accident to the extent of 10%. There is no

evidence to prove that she has contributed to the

accident. Just because, the deceased was not wearing

helmet at the time of the accident, it cannot be held

that she was negligent and has contributed to the

extent.

10. The Apex Court in the case of MOHAMMED

SIDDIQUE AND ANOTHER vs. NATIONAL

INSURANCE COMPANY LIMITED AND OTHERS

reported in (2020) 3 SCC 57 has held that just

because the rider/deceased was traveling with two

pillion riders, it cannot be held that the deceased has

contributed to the accident, unless it is proved that

the deceased was negligent and he has contributed to

the accident.

11. Further, the Apex Court in the case of

Union of India -v- United India Insurance Co.

Ltd reported (1997) 8 SCC 683, in paragraph 10 has

held as follows:

"10. There is a well-known principle in the law of torts, called the doctrine of identification or `imputation'. It is to the effect that the defendant can plead the contributory negligence of the plaintiff or of an employee of the plaintiff where the employee is acting in the course of employment. But, it has been also held in Mills vs. Armstrong [1988] 13 A.C. 1 (HL) (also called The Bernina case) that principle is not applicable to a passenger in a vehicle in the sense that the negligence of the driver of the vehicle in which the passenger

is travelling, cannot be imputed to passenger. (Halsbury's laws of England 4th Ed., 1984 Vol. 34, page 74) (Ratanlal and Dhirajlal, Law of Torts (23rd Ed. 1997 p.511) (Ramaswamy Iyer, Law of Torts, 7th Ed., p. 447). The Barnina case in which the principle was laid in 1888 related to passengers in a steamship. In that case a member of the crew and a passenger in the ship Bushire were drowned on account of its collision with another ship Bernina. It was held that even if the navigators of the ship Bushire were negligent, the navigators' negligence could not be imputed to the deceased who were travelling in that ship. This principle has been applied, in latter cases, no passengers travelling in a motor-vehicle whose driver is found guilty of contributory negligence.

In other words, the principle of contributory negligence is confined to the actual negligence of the plaintiff or of his agents. There is no rule that the driver of an omnibus or a coach of a cab or the engine

driver of a train, or the captain of a ship on the one hand and the passengers on the other hand are to be `identified' so as to fasten the latter with any liability for the former's contributory negligence. There cannot be a fiction of the passenger sharing a `right of control' of the operation of the vehicle nor is there a fiction that the driver is an agent of the passenger. A passenger is not treated as a backseat driver. (Prosser and Keeton on Torts, 5th Ed., (984 p.521

522). It is therefore clear that even if the driver of the passenger vehicle was negligent, the Railways, if its negligence was otherwise proved - could not plead contributory negligence on the part of the passengers of the vehicle. What is clear is that qua the passengers of the bus who were innocent, - the driver and owner of the bus and, if proved, the railways - can all be joint tort-feasors."

12. In the decision of the Kerala High Court in

the case of P.J.Jose and Ors. v. Vanchankal Niyas

and Ors. decided on 17.12.2015 in MACA NO.2482 of

2009, in paragraph 5, it is held as follows:

"5. The learned counsel appearing for the insurance company submits that the consequence of non-wearing of the Helmet and the course that could be followed by the Tribunal in apportioning negligence had come up for consideration before a Division Bench of this Court and as per the judgment reported in Siby Paul v.

Praveen Kumar (2009 (1) KLT 322)it has been held that it could be raised as a defence from the part of the insurance company to apportion the liability to an appropriate extent. The Tribunal, in the award, has referred to the instance of non-wearing of the 'Helmet' leading to the death of the deceased and in turn, has fixed 25% contributory negligence on the part of the rider. No other aspect was discussed by the Tribunal in the award. We find it difficult to agree with the proposition that non-wearing of 'Helmet',

though an offence under the relevant provisions of the M.V.Act, could be taken as a ground to fix contributory negligence on the part of the rider. What is to be considered with regard to the apportionment of negligence is whether the party concerned had any role/part in causing or contributing to the accident. In other words, the consequence pursuant to the accident is not a circumstance to be weighed for fixation of negligence in causing the accident. With regard to the non-wearing of 'Helmet' and resultant death because of the head injury, it is only a 'consequence' after the accident. Because of the non-wearing of 'Helmet', the injury sustained to the head became fatal, leading to the death of the deceased. It is true that, had the deceased been wearing a 'Helmet', probably his life could have been saved and the gravity of the injury would not have been this much severe, to have resulted in the death of

the deceased. But the consequence because of the non-wearing of 'Helmet' was not the reason for knocking down the rider of the motor cycle by the driver of the jeep which was coming from the opposite side and this being the position, negligence cannot be fixed on the shoulders of the rider of the vehicle merely for not wearing the 'Helmet'.

13. Therefore, in view of the above decisions

and considering the materials available on record, I

am of the view that the finding of the Tribunal that the

deceased has contributed to the accident to the extent

of 10% is unsustainable and hence the same is set

aside.

Quantum of compensation:

14. The claimants claim that deceased was

earning Rs.10,000/- per month. But they have not

produced any documents to prove the income of the

deceased. In the absence of proof of income, the

notional income has to be assessed. As per the

guidelines issued by the Karnataka State Legal

Services Authority, for the accident taken place in the

year 2015, the notional income of the deceased has to

be taken at Rs.9,000/- p.m.

To the aforesaid income, 25% has to be added

on account of future prospects in view of the law laid

down by the Constitution Bench of the Supreme Court

in 'PRANAY SETHI' (supra). Thus, the monthly

income comes to Rs.11,250/-. The claimants are

husband, son and unmarried daughter of the deceased

and they were depending on the income of the

deceased. There are three dependents. The Tribunal

instead of deducting 1/3rd of the income of the

deceased towards personal expenses has wrongly

deducted 50% of the income. Therefore, it is

appropriate to deduct 1/3rd of the income of the

deceased towards personal expenses and remaining

amount has to be taken as her contribution to the

family. The deceased was aged about 45 years at

the time of the accident and multiplier applicable to

his age group is '14'. Thus, the claimants are

entitled to compensation of Rs.12,60,000/-

(Rs.11,250*12*14*2/3) on account of 'loss of

dependency'.

In addition, the claimants are entitled to

compensation of Rs.15,000/- on account of 'loss of

estate' and compensation of Rs.15,000/- on account

of 'funeral expenses'. Claimant No.1, husband of the

deceased is entitled for compensation of Rs.40,000/-

under the head of 'loss of spousal consortium'.

In view of the law laid down by the Supreme

Court in the case of 'MAGMA GENERAL

INSURANCE' (supra), claimant Nos.2 and 3, children

of the deceased are entitled for compensation of

Rs.40,000/- each under the head of 'loss of parental

consortium'.

15. Thus, the claimants are entitled to the

following compensation:

        Compensation under          Amount in
           different Heads            (Rs.)
       Loss of dependency            12,60,000
       Funeral expenses                 15,000
       Loss of estate                   15,000
       Loss of spousal                  40,000
       consortium
       Loss of Parental                     80,000
       consortium
                      Total          14,10,000

16. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is modified.

The claimants are entitled to a total

compensation of Rs.14,10,000/-.

The respondent No.2, New India Assurance

Company Ltd. and respondent No.4, Reliance General

Insurance company are directed to deposit the

compensation amount at the ratio of 50:50 along with

interest from the date of filing of the claim petition till

the date of realization, within a period of six weeks

from the date of receipt of copy of this judgment.

The enhanced amount shall carry interest at 6%

p.a.

Sd/-

JUDGE

DM