Karnataka High Court
Smt S Lalitha vs Sri E Manoj on 22 January, 2021
Author: Alok Aradhe Rangaswamy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
M.F.A. NO.1313 OF 2015 (MV-D)
BETWEEN:
1. SMT. S. LALITHA
W/O LATE SADISH R.
AGED ABOUT 35 YEARS
2. KUM. ABHI AMUDHAN S.
S/O LATE SADISH R.
AGED ABOUT 16 YEARS
3. KUM. ANUP AMIRTHAM
S/O LATE SADISH R.
AGED ABOUT 8 YEARS
APPELLANTS 2 AND 3 ARE MINORS
REPRESENTED BY THEIR NEXT FRIEND-
MOTHER SMT.S.LALITHA, 1ST APPELLANT
4. SMT. KALAI R.
W/O RANGASWMAY
AGED ABOUT 60 YEARS
5. SRI. RANGASWAMY
S/O LATE MUTHUSWAMY,
AGED ABOUT 67 YEARS,
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ALL THE ABOVE APPELLANTS ARE
R/AT NO.156, III CROSS,
SUBRAMANYANAGAR,
HEBBAL II STAGE, MYSORE.
...APPELLANTS
(BY SMT. SUMA KEDILAYA, ADVOCATE)
AND:
1. SRI. E. MANOJ
S/O MADHU
AGED ABOUT 35 YEARS
NO.24, I CROSS, MEDAR BLOCK
BAMBOO BAZAAR,
MYSORE-570001.
2. SRI. SREEJITH P.J.
S/O JAYAPRAKASH P.C.
AGED ABOUT 34 YEARS
NO.24, I CROSS,
MEDAR BLOCK, BAMBOO BAZAAR,
MYSORE-570001.
3. M/S NATIONAL INSURANCE CO. LTD.
NO.371/A, II FLOOR,
PRESTIGE SHOPPING COMPLEX ARCADE,
RAMASWAMY CIRCLE,
MYSORE CITY-570001.
...RESPONDENTS
(BY SRI. A.N. KRISHNASWAMY, ADVOCATE FOR RESPONDENT
NO.3;
SERVICE OF NOTICES ON RESPONDENT NOs.1 AND 2 ARE
DISPENSED WITH VIDE COURT ORDER DATED 20.06.2018)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST
THE JUDGMENT AND AWARD DATED 12.09.2014 PASSED IN
MVC NO.449/2013 ON THE FILE OF THE PRINCIPAL JUDGE,
COURT OF SMALL CAUSES, MYSORE, CONCURRENT CHARGE OF
ADDITIONAL COURT OF SMALL CAUSES, MYSORE PARTLY
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ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
NATARAJ RANGASWAMY, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of the Motor
Vehicles Act, 1988 is filed by the claimants seeking
enhancement of compensation awarded by the Principal
Judge, Court of Small Causes, MACT, Mysore, (henceforth
referred to as 'Tribunal') in M.V.C.No.449/2013 dated
12.09.2014.
2. Though this appeal is listed for admission
today, the same is taken up for the final disposal with the
consent of the learned counsel for the parties.
3. The parties shall henceforth be referred to as
they were arrayed before the Tribunal.
4. The claim petition discloses that the claimants
are the dependents and the legal representatives of
Mr.Sadish R., aged 42 years, who was working in the
production department at Falcon Tyres and was drawing a
monthly gross salary of Rs.21,299/-. It is stated that on
27.01.2013 the said Sadish R. was riding his motorcycle
bearing registration No.KA09-EH-7927 and when he
reached RMC Circle, the rider of another motorbike bearing
registration No.KA09-EU-8318 (henceforth referred to as
'offending motorbike') rode it in a rash and negligent
manner regardless of the moving traffic and dashed
against the motor cycle ridden by Mr.Sadish. As a result of
the accident, Sadish R. suffered injuries on his forehead,
nose, hands and legs. He was shifted to K.R.Hospital
where he was treated as an out-patient and since he
complained of severe pain, the next day, he was taken to
Vikram Jeev hospital where he succumbed to the injuries
on 28.01.2013. The claimants contended that they were
dependents on the deceased both emotionally and
financially, which they lost. Hence, they filed a claim
petition under Section 166 of the Motor Vehicles Act, 1988
claiming compensation of a sum of Rs.47,00,000/-.
5. The rider and the owner of the offending
motorbike contested the claim petition and denied the
averments contained therein.
6. The Insurer also denied the assertions made in
the claim petition. It claimed that the accident was due to
the negligence on the part of the deceased.
7. Based on these rival contentions, the claim
petition was set down for trial.
8. Claimant No.1 was examined as P.W.1 and she
marked documents Exs.P1 to P21. While the Insurer
examined its official as R.W.1, who marked the documents
as Exs.R1 and R2.
9. The Tribunal held that the accident was due to
the rash and negligent riding on the part of the rider of
offending motorbike. It noticed the evidence of P.W.1 that
the rider of the offending motorbike came from the wrong
side and dashed against the motorbike ridden by
deceased. The Insurer did not examine the rider of the
offending motorbike to reject the claim of P.W.1. Thus,
having regard to the Rule of preponderance of
probabilities, the Tribunal held that the rider of the
offending motorbike and the deceased were both negligent
and were responsible for the accident.
10. In so far as the claim for compensation is
concerned, the Tribunal noticed that the claimants had
placed on record the salary slip dated 28.01.2013 issued
by Falcon Tyres Limited which disclosed the gross income
of the deceased at Rs.21,299.20/- and the net income at
Rs.19,452/-. It disallowed the traveling allowance of
Rs.1,100/- and washing allowance of Rs.350/- and thus,
held that the deceased was drawing a net salary of
Rs.18,000/-. Having regard to the age of the deceased,
the Tribunal factored 30% as loss of future prospects and
awarded the following compensation:
Sl. Heads under which Amount
No. compensation is awarded (In Rs.)
1 Loss of Dependency 29,48,400/-
2 Loss of Consortium 1,00,000/-
3 Funeral Expenses 25,000/-
4 Lost of Estate 10,000/-
5 Loss of Love and Affection 30,000/-
Total 31,13,400/-
11. The Tribunal held that the insurer of the
offending motorbike is liable to pay the compensation to
the claimants to an extent of 70%.
12. Feeling aggrieved by the quantum of
compensation awarded by the Tribunal and the attribution
of contributory negligence, the claimants have preferred
this appeal.
13. The learned counsel for the claimants
contended that the Tribunal committed an error in solely
relying upon Ex.R2 - spot sketch to return a finding that
the deceased was negligent and had contributed to the
accident. The learned counsel claimed that the rider of the
offending motorbike was not examined and thus, when the
Insurer alleged contributory negligence, it was incumbent
upon it to prove the same by cogent evidence. The
learned counsel contended that Ex.R2 - spot sketch cannot
be the basis for determination of the contributory
negligence. Even otherwise, she contended as per Ex.P3,
which is the spot mahazar, it was found that barricades
were laid to create temporary one way and that the rider
of the offending motorbike, instead of following the lane,
rode the offending motorbike in the wrong direction and
dashed against the bike of the deceased. The learned
counsel also brought to the notice of the Court Ex.P10,
which is the report of the Motor Vehicle Inspector, which
indicates that the front portion of both the motor vehicles
was completely damaged. The learned counsel relied
upon the Judgment of the Apex Court in the case of
MANGLA RAM VS. ORIENTAL INSURANCE COMPANY &
OTHERS - (2018) 5 SCC 656 and contended that police
documents could not be the basis for attributing
contributory negligence. She further contended that the
Tribunal committed an error in deducting Rs.1,450/- out of
net salary of Rs.19,452/- as the amount deducted would
have been utilized by the deceased for his living expenses.
She contended that if the amount is deducted, then that
would amount to double deduction and therefore, prayed
that the impugned judgment and award be modified.
14. Per contra, learned counsel for the Insurer
contended that except the self serving statements of the
claimants, there was no other material on record to
indicate the negligence on the part of the rider of the
offending motorbike which is sine qua non for a claim for
damages under Section 166 of the Motor Vehicles Act,
1988. He contended that since two motorbikes were
involved, it is obvious that both of them must have
contributed to the accident. Hence, he prayed that the
impugned judgment and award passed by the Tribunal, be
not disturbed. He also contended that the deduction out of
the net salary was towards the traveling allowance and
washing allowance, which would have been drawn by the
deceased if he was alive. Therefore, he contended that the
deductions were justified.
15. As rightly contended by the learned counsel for
the claimants, a finding of contributory negligence cannot
be based on the documents prepared by the police in the
course of their investigation in view of the law declared by
the Apex Court in Mangla Ram's case referred to supra.
Thus, the Tribunal was not justified in solely relying upon
Ex.R2 to hold that the deceased was negligent and had
contributed to the accident.
16. A perusal of the IMV report would indicate the
extent of damage to both the vehicles. The accident is
stated to have occurred at RMC Circle which is a traffic
island and therefore, there could not have been a head on
collision between two motorbikes. P.W.1 deposed that the
rider of the offending motorbike came from the wrong side
of RMC Circle to avoid a barricade and dashed against the
motorbike of the deceased. This claim of P.W.1 is
corroborated by Ex.P3 which is the spot mahazar prepared
by the police. Since a claim under Section 166 of the
Motor Vehicles Act, 1988 has to be determined based on
preponderance of probabilities as held by the Apex Court in
BIMLA DEVI AND OTHERS Vs. HIMACHAL ROAD
TRANSPORT CORPORATION AND OTHERS - AIR 2009 SC
2819, it is held that there was no evidence on record to
establish the negligence on the part of the deceased and
that he contributed to the accident. Hence, the finding of
the Tribunal in this regard is liable to be set aside.
17. Insofar as the claim for enhancement of
compensation is concerned, Ex.P11 is the salary certificate
of the deceased which indicates the gross salary of
Rs.21,299.20/- and the deduction is provided to an extent
of Rs.1,847/- towards provident fund and professional tax.
It is now well settled that provident fund is a contribution
of an employee and is a part of his income and therefore,
the only amount that could be deducted was professional
tax of Rs.200/-. Hence, the income of the deceased had to
be considered at Rs.21,099.20/- rounded off to
Rs.21,100/-. The Tribunal had rightly factored 30% as
loss of future prospects taking into account that the
deceased was permanently employed and also rightly
applied the multiplier of 14.
18. It is now settled by the Apex Court in the case
of MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM
ALIAS CHUHRU RAM - 2018 (18) SCC 130 and UNITED
INDIA INSURANCE COMPANY LIMITED Vs. SATHINDER
KAUR @ SATHWINDER KAUR & OTHERS - 2020 SCC
ONLINE SC 410 that the claimants 2 and 3 are entitled to
loss of parental consortium and claimants 4 and 5 are
entitled to loss of filial consortium and claimant No.1 is
entitled to loss of spousal consortium at the rate of
Rs.40,000/- each which was not granted by the Tribunal.
Since the law as declared by the Apex Court in NATIONAL
INSURANCE COMPANY LIMITED VS. PRANAY SETHI &
OTHERS - (2017) 16 SCC 680 did not allow grant of
compensation under these heads.
19. In view of the foregoing discussion, the
claimants are entitled to loss of spousal, parental and filial
consortium as stated above as well as enhancement under
the head loss of dependency based on the income of the
deceased at Rs.21,100/- which would come to
Rs.34,56,180/- [21,100 + 6330 (30% of 21,100) = 27430
X ¾ = 20572.5 X 12 X 14]. Thus, the compensation to
which the claimants are entitled is redetermined as
follows:
Heads under which Amount
compensation awarded (In Rs.)
Loss of Dependency 34,56,180
Loss of spousal consortium for claimant 40,000
No.1
Loss of parental consortium for claimants 2 80,000
&3
Loss of filial consortium for claimants 4 & 5 80,000
Funeral expenses 15,000
Loss of estate 15,000
Total 36,86,180
20. In view of the above, this appeal is allowed.
The impugned Judgment and Award passed in
M.V.C.No.449/2013 is modified and the compensation of
Rs.31,13,400/- is enhanced to a sum of Rs.36,86,180/-
which is payable by the Insurer to the claimants along with
interest at the rate of 6% p.a. from the date of petition till
its realization.
21. The Insurer shall deposit the compensation
along with interest within one month from the date of
receipt of a certified copy of this order.
22. The compensation shall be apportioned
amongst the claimants in the same ratio as is done by the
Tribunal in MVC.No.449/2013.
Sd/-
JUDGE
Sd/-
JUDGE
PKS
