Karnataka High Court
Ashok Kumar Kashi vs S.S. Ganesh on 12 January, 2021
Author: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.10259 OF 2013(MV)
BETWEEN:
1. ASHOK KUMAR KASHI
S/O LATE LAKSHMINARAYANA KASHI
AGED ABOUT 49 YEARS.
2. SMT. SUDHA KASHI
W/O ASHOK KUMAR KASHI
AGED ABOUT 44 YEARS.
BOTH ARE RESIDING AT KASHIMANE
NITTUR POST, HOSANAGARA TALUK
SHIMOGA DISTRICT-576101.
... APPELLANTS
(BY SRI.PRASHANTH A.P., ADV. FOR
SRI. K.PRASANNA SHETTY, ADV.)
AND
1. S.S.GANESH
S/O SHAMANUR SHIVASHANKARAPPA
AGED ABOUT 52 YEARS
MANAGING PARTNER
M/S LAKSHMI FLOUR MILLS
NO.73/1, SHAMANUR ROAD
2
DAVANAGERE DISTRICT-542102.
2. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
BRANCH OFFICE NO.50, 1ST FLOOR,
MURUGARAJENDRA COMPLEX,
JAYADEVA CIRCLE
HADADI ROAD, K.B.EXTENSION
DAVANAGERE-542103
REP BY ITS BRANCH MANAGER.
... RESPONDENTS
(BY SRI. H.S.LINGARAJU, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH )
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 15.07.2013 PASSED IN MVC NO.1391/2009
ON THE FILE OF THE ADDL. DISTRICT AND SESSIONS
JUDGE AND ADDL. MACT. UDUPI (SITTING AT
KUNDAPURA) KUNDAPURA, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE, 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 15.7.2013 passed
by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 14.8.2009, the deceased
Abhishekh Kashi was proceeding on his motorcycle
bearing No.KA-04-EW-3043 from Mangalore towards
Udupi near Saraveshwara Bobbarya Temple, Moolur
Village, Udupi Taluk, at that time, a lorry bearing
registration No.KA-17-6282 which was being driven in
a rash and negligent manner, dashed against the
deceased. As a result of the aforesaid accident, the
deceased sustained grievous injuries and succumbed
to the injuries.
3. The claimants filed a petition under Section
166 of the Act on the ground that the deceased was
aged about 19 years at the time of accident and was
studying II Year BBM. The claimants claimed
compensation along with interest.
4. On service of summons, the respondent
No.2 appeared through counsel and filed written
statement in which the averments made in the
petition were denied. It was pleaded that the petition
itself is false and frivolous in the eye of law. It was
further pleaded that the accident was due to the rash
and negligent riding of the motorcycle by the
deceased himself. The driver of the offending vehicle
did not possess valid driving licence as on the date of
the accident. The liability is subject to terms and
conditions of the policy. Hence, he sought for
dismissal of the petition. The respondent No.1
appeared through counsel but did not choose to file
objections.
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 another witness as PW-2 and got exhibited
documents namely Ex.P1 to Ex.P9. On behalf of
respondents, two witnesses were examined as RWs-1
and 2 and got exhibited documents namely Ex.R1 to
Ex.R10. The Claims Tribunal, by the impugned
judgment, inter alia, held that the accident took place
on account of contributory negligence on the part of
the deceased as well as driver of the lorry to the
extent of 50% each. The Tribunal further held that
the claimants are entitled to a compensation of
Rs.7,50,000/- along with interest at the rate of 7%
p.a. and directed the Insurance Company to deposit
50% of the said compensation amount along with
interest. Being aggrieved, this appeal has been filed.
6. The learned counsel for the claimants has
raised the following contentions:
Firstly, the accident occurred due to rash and
negligent driving of the lorry by its driver. The
claimants have examined PW-2, who is an eye witness
to the accident. Inspite of evidence of eyewitness and
mahazar, the Tribunal is not justified in holding that
the deceased has contributed to the accident equally.
The police have registered FIR against the driver of
the lorry and after investigation have filed charge
sheet against the driver of the lorry. It is very clear
that the driver of the lorry was negligent in causing
the accident.
In respect of quantum of compensation is
concerned, the claimants claim that at the time of the
accident the deceased was aged 19 years and
studying II year BBM. Considering his educational
academics, he had a very bright future. But the
Tribunal is not justified in taking the monthly income
of the deceased as merely as Rs.8,000/-.
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
40% of the established income towards 'future
prospects' should be the warrant where the deceased
was below the age of 40 years. But the Tribunal has
failed to consider the same.
Thirdly, 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 under the head of 'loss of love and
affection and consortium'.
Fourthly, the compensation awarded by the
Tribunal under the conventional heads is on the lower
side.
Hence, the learned counsel appearing for the
claimants prays for allowing the appeal.
7. On the other hand, the learned counsel for
the Insurance Company has contended that the
accident has occurred due to the negligence of the
deceased and he has contributed to the accident
equally. It is very clear from the records that the
accident was due to head on collusion of both the
vehicles. As per IMV report Ex.R-6, both the vehicles
have been damaged on the right side portion.
Therefore, it is very clear that it is a head on collusion.
The Insurance Company has examined the driver of
the lorry as RW-2 and he has specifically stated that
the accident has occurred due to rash and negligent
riding of the motorcycle by the deceased. The Tribunal
considering the same has rightly held that the
deceased, rider of the motorcycle and driver of the
lorry have contributed to the accident to the extent of
50% each.
In respect of quantum of compensation is
concerned, the deceased was a student and the time
of the accident. The claimants have not produced any
documents to establish the income. The Tribunal
considering the same has rightly taken the notional
income of the deceased at Rs.8,000/- p.m. Further,
the overall compensation awarded by the Tribunal is
just and reasonable.
8. Heard the learned counsel for the parties
and perused the records.
9. The specific case of the claimants is that on
14.8.2009 the deceased Abhishekh Kashi was
proceeding on his motorcycle bearing No.KA-04-EW-
3043 from Mangalore towards Udupi near
Saraveshwara Bobbarya Temple, Moolur Village, Udupi
Taluk, at that time, a lorry bearing registration No.KA-
17-6282 which was being driven in a rash and
negligent manner, dashed against the deceased. As a
result of the aforesaid accident, the deceased
sustained grievous injuries and succumbed to the
injuries.
The claimants to prove their case have examined
father of the deceased as PW-1 and an eye witness to
the accident as PW-2 and produced 9 documents. On
the basis of the complaint, FIR has been registered
against the driver of the lorry and after investigation
police have filed charge sheet against the driver of the
lorry. As per Ex.P-2, spot mahazar, it is clear that
deceased was traveling on the motorcycle from
Mangalore to Udupi i.e., from South to North and the
lorry was coming in the opposite direction from Udupi
to Mangalore. PW-2, eye witness to the accident has
deposed that the lorry was trying to overtake the bus
came to the extreme left side and dashed to the
motorcycle. The respondent has examined the driver
of the lorry as RW-1 and he has deposed that the
deceased was driving the motorcycle in rash and
negligent manner and dashed to the lorry. IMV report
discloses that both the vehicles have been damaged.
In respect of car bearing No. KA-17/6282,
damages found due to impact are as follows:
1. Front shape to the extreme right
corner damaged
2. Front bumper to right damaged rest
of the parts/systems was in sides.
In respect of lorry bearing No.KA-04/EW 3043,
damages found due to impact are as follows:
1. Head light/Front Indicators/ Rear view
mirrors damaged
2. crush seen to the right bent.
3. Engine cove/gearbox cover damaged.
4. silencer unit damage.
5. A Benton fuel tank to the right.
6. steering handle to the right bent
7. front shape damaged
8. tool box cover/backup cover damaged
9. rear break pedel bent
10. rear brake drawn damaged
11. front wheel damaged
12. riders foot rest (right) damaged
13. rear right indicator damaged
rest of the parts system were in
order.
Therefore, taking into consideration the evidence
of the parties and documents namely Ex.P-1 FIR,
Ex.P-2 spot mahazar, Ex.P-3 inquest mahazar, Ex.P-4
Police notice, Ex.P-5 charge sheet, Ex.R-6 IMV report,
I am of the opinion that the accident has occurred due
to contributory negligence. It is held that the
deceased has contributed to the accident to the extent
of 25% and the driver of the lorry has contributed to
the accident to the extent of 75%. Hence, the finding
of the Tribunal with regard to negligence is modified
to the said extent.
Re: Quantum of compensation.
9. The deceased was aged about 19 years and
studying in II year BBM at the time of the accident.
The Tribunal considering the age and educational
academics of the deceased has rightly taken the
notional income of the deceased at Rs.8,000/- p.m.
Since, he had a bright future as he was a BBM
student, the claimants are entitled for future
prospects. To the aforesaid amount, 40% 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.11,200/-. Out of
which, it is appropriate to deduct 50% towards
personal expenses and therefore, the monthly income
comes to Rs.5,600/-. The deceased was aged about
19 years at the time of the accident and multiplier
applicable to his age group is '18'. Thus, the
claimants are entitled to compensation of
Rs.12,09,600/- (Rs.5,600*18*12) on account of 'loss
of dependency'.
In view of the law laid down by the Supreme
Court in 'MAGMA GENERAL INSURANCE',
claimants, parents of the deceased are entitled for
compensation of Rs.40,000/- each under the head
'loss of filial consortium' .
In addition, the claimants are entitled to
Rs.15,000/- on account of 'loss of estate' and
Rs.15,000/- on account of 'funeral expenses'.
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 12,09,600
Funeral expenses 15,000
Loss of estate 15,000
Loss of Filial consortium 80,000
Total 13,19,600
Less: 25% negligence 3,29,900
on the part of the
deceased
Balance 9,89,700
The claimants are entitled to a total
compensation of Rs,9,89,700/-.
The Insurance Company is directed to deposit
the compensation amount along with interest at 7%
p.a. within a period of four weeks from the date of
receipt of copy of this judgment.
To the aforesaid extent, the judgment of the
Claims Tribunal is modified.
Accordingly, the appeal is allowed-in-part.
Sd/-
JUDGE
DM
