Prabhakar, vs Srinivasa M,
2021 Latest Caselaw 892 Kant

                               1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 15TH DAY OF JANUARY, 2021

                         PRESENT

          THE HON'BLE MR.JUSTICE ALOK ARADHE

                               AND

     THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY

            M.F.A. NO.3817 OF 2015 (MV-D)

BETWEEN:

1.     PRABHAKAR,
       S/O K.P. GNANA SHEKAR,
       AGED 24 YEARS

2.     PRAVEEN G. SHEKAR,
       S/O K.P. GNANA SHEKAR,
       AGED 22 YEARS,
       BOTH ARE R/A NO.48,
       2ND MAIN, SHAKTHI GARDEN,
       MUDALAPALYA, NAGARABHAVI,
       BENGALURU-560072.
                                 ...APPELLANTS

(BY SRI. K.V. SHYAMAPRASADA, ADVOCATE)


AND:

1.     SRINIVASA M,
       S/O R. MUDDAIAH,
       MAJOR,
       R/A NO.804, 8TH MAIN,
       9TH BLOCK, 2ND STAGE,
       NAGARABHAVI,
       BENGALURU-560076.
                          2




     REPRESENTED BY ONE OF ITS DIRECTOR.

2.   M/S ORIENTAL INSURANCE CO. LTD.,
     D.O.IX, BENGALURU,
     NO.70/5, SUVARNA TOWERS,
     1ST FLOOR, NEAR VIJAYANAGARA,
     BDA COMPLEX, GOVINDARAJANAGAR,
     BENGALURU-560040.
     REPRESENTED BY ITS MANAGER.


                                ...RESPONDENTS


(BY SRI. C.R. RAVISHANKAR, ADVOCATE FOR RESPONDENT
NO.2;
SERVICE OF NOTICE ON RESPONDENT NO.1 IS DISPENSED
WITH VIDE COURT ORDER DATED 24.06.2015)


     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST
THE JUDGMENT AND AWARD DATED 04.12.2014, PASSED IN
MVC NO.5633/2013, ON THE FILE OF THE MEMBER, MACT AND
XX ADDITIONAL SMALL CAUSES JUDGE, BANGALORE (SCCH-
22)  PARTLY    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 the compensation awarded by the Motor

Accident Claims Tribunal, XX Additional Small Causes

Judge, Bengaluru (SCCH-22) (henceforth referred to as the

"Tribunal") in terms of the Judgment and Award dated

04-12-2014 in MVC No.5633/2013.

2. Though this appeal was listed for admission

today, it is taken up for final disposal with the consent of

the learned counsel for the parties.

3. The appellants were the claimants while

respondent No.1 is the owner and respondent No.2 is the

insurer of a motorcycle bearing registration number KA-

02-EN-5066 (henceforth referred to as the "offending

vehicle") before the Tribunal. They shall henceforth be

referred as they were arrayed before the Tribunal.

4. The claim petition discloses that the claimants

are the legal representatives of Mr.K.P.Gnanashekar, who

was aged 49 years and was a businessman who had his

own factory and earning a sum of Rs.5,00,000/- per

annum. It is stated that on 07-09-2013 at about 4.30

p.m., the said Mr.K.P.Gnana Shekara was crossing the

road near 3rd cross, 9th block, Nagarabhavi ring road-

service road. At that time the rider of a motorcycle rode it

in a rash and negligent manner and dashed against

Mr.K.P.Gnanashekar. Due to the impact, he fell and

sustained grievous injuries. He was shifted to BGS Global

Hospital, Kengeri but he succumbed to the injuries on

25-09-2013. The claimants are the sons of the deceased

who were still pursuing their studies. The claimants

therefore filed a claim petition under Section 166 of the

Motor Vehicles Act, 1988 claiming compensation of a sum

of Rs.80,00,000/- from the owner and insurer of the

offending vehicle.

5. The claim petition was contested by the owner/

rider of the offending vehicle. He contended that the

deceased who had crossed the road suddenly started

running on the road and therefore he was negligent and

responsible for the accident. He claimed that the

compensation claimed was excessive. He however claimed

that he held a licence and the offending vehicle was

sufficiently insured.

6. The insurer of the offending vehicle defended

the claim by contending that the rider of the offending

vehicle did not possess a licence and that the accident was

due to the negligence on the part of the deceased, as he

crossed the road without noticing the traffic. Thus, it

contended that the deceased had contributed to the

accident. It also claimed that the claimants were not the

legal representatives of the deceased and in the same vein

claimed that the claimants were not dependents on the

deceased.

7. With these contentions, the claim petition was

set down for trial. The claimant No.2 was examined as

PW.1 and he marked documents as Exs.P1 to P23. The

insurer examined its officer as RW.1 who marked

documents as Exs.R1 to R5.

8. The Tribunal noticed the complaint (Ex.P1)

lodged by the claimant No.2 with the jurisdictional police

and the consequent spot mahazar (Ex-P6) and sketch (Ex-

P7) as well as the charge sheet (Ex.P9) filed against the

rider of the offending vehicle. The Tribunal noticed that the

claimants had not examined any person to prove the

negligence on the part of the rider of the offending vehicle.

Thus, it relied upon the Judgment of this Court in the case

of KOOSAPPA POOJARI vs. SADABBA AND OTHERS

[ILR 2004 Kar 1104] and BAJAJ ALLIANZ GENERAL

INSURANCE COMPANY LTD., vs. B.C.KUMAR [ILR 2009

Kar 2921] and held that the deceased had contributed

40% negligence for the cause of the accident.

9. In so far as the claim for compensation is

concerned, the Tribunal noticed the Income Tax returns of

the deceased (Exs.P14 to P16). Ex-P16 was the income tax

return for the assessment year 2012-13 which disclosed a

gross income of Rs.4,88,370/- and income tax of

Rs.21,462/- was paid. The Tribunal relied upon the

statements of claimant Nos.1 and 2 as per Exs.R1 and R2,

who deposed that the claimants, in their leisure time, were

also working in the factory owned by the deceased. The

Tribunal thus held that the deceased alone was not

running the industry and that the claimants had not

produced any material to establish that the industry was

closed. It also held that the claimants had not closed the

bank account of the industry but had closed it after PW.1

was cross examined on 08-04-2014. It also noticed that

the claimants had not surrendered the KST and CST

registration certificates after the death of their father.

Thus, it held that the unit was still operating and that the

claimants could still run the industry and therefore, there

was no loss of dependency. The Tribunal noticed that the

claimants had spent a sum of Rs.5,10,000/- towards the

treatment of the deceased and thus, awarded the whole

amount to reimburse the medical expenses. The Tribunal

awarded a sum of Rs.50,000/- towards the loss of love and

affection and a sum of Rs.20,000/- towards funeral and

obsequies and a sum of Rs.50,000/- towards loss of estate

and after making corresponding pro-rata deduction

towards 40% contributory negligence on the part of the

deceased, awarded a sum of Rs.3,78,000/- out of the

total compensation of Rs.6,30,000/-. The Tribunal awarded

interest at 6% per annum from the date of the claim

petition till the date of realisation.

10. Feeling aggrieved by the Judgment and Award

of the Tribunal in not awarding compensation for the loss

of dependency, the claimants have filed this appeal.

11. The learned counsel for the claimants

contended that the claimants were entitled to claim the

compensation on account of the loss of dependency. He

relied upon the Judgment of the Apex Court in the case of

NATIONAL INSURANCE COMPANY LIMITED vs.

BIRENDER AND OTHERS [2020 (11) SCC 356], where it

is held that the legal representatives of the deceased have

a right to apply for compensation notwithstanding the fact

that the claimants were major by age and married and

earning. It further held that it is the duty of the Tribunals

to consider the claim irrespective of the fact that the

claimants were fully dependant on the deceased. The

learned counsel therefore contended that the claimants

were entitled to enhanced compensation based on the

income tax returns that were filed long prior to the date of

the accident.

12. Per contra, the learned counsel for the insurer

contended that the claimants had not proved negligence

on the part of the rider of the offending vehicle and

therefore, prayed that the impugned Judgment and award

may not be disturbed.

13. The Tribunal had noticed that the claimants

had not examined any witness in proof of the negligence

on the part of the rider of the offending vehicle, but yet, it

held on the basis of Ex.P7, copy of sketch, and Ex-R4 -

photograph that the deceased was negligent and

contributed to the cause of the accident. The Tribunal in

view of the law as declared in MANGLA RAM VS

ORIENTAL INSURANCE CO. LTD. [2018 (5) SCC 656],

could not have relied upon Ex.P7 to pin the negligence on

the part of the deceased. The burden of proving

contributory negligence is upon the person who alleges it.

In the present case, the insurer made no effort to prove

the alleged contributory negligence on the part of the

deceased. The Apex Court in the cases of MINUROUT VS.

SATYA PRADYUMNA MOHAPATRA' [(2013) 10 SCC

695] AND 'SARALA DEVI VS. ROYAL SUNDARAM

ALLIANCE INSURANCE CO. LTD.,' [(2014) 15 SCC

450] had held that the documents prepared by the police

cannot be the basis of determining negligence /

contributory negligence as the Tribunal is expected to

determine the case based on the preponderance of

probabilities. The Supreme Court in the case of MANGAL

RAM (supra) has held that the proceeding under the Act of

1988 has to be decided on the basis of preponderance of

probabilities and claimant is not required to prove the

accident beyond reasonable doubt. The Apex Court

reiterated the principles laid down in DULCINA

FERNANDES V. JOAQUIM XAVIER CRUZ, (2013) 10

SCC 646, the approach of the Tribunal should be holistic

analysis of the entire pleadings and evidence by applying

the test of preponderance of probabilities. It was held that

it was necessary to be borne in mind that strict proof of an

accident caused by a particular bus in a particular manner

may not be possible to be done by the claimants. The

Court restated that the settled principle is that the

evidence of the claimants ought to be examined on the

touchstone of preponderance of probabilities and certainly

the standard of proof beyond reasonable doubt could not

be have been applied.

14. Under the circumstances, it is held that there

was no proof on record to indicate that the deceased was

negligent. Even if be so, for the sake of argument, the

accident occurred in broad day light and the rider of the

offending vehicle ought to have exercised due care and

caution as in cases of contributory negligence, the test is

to determine who had the opportunity to avoid the

accident. In the case on hand, the occurrence of the

accident is not in dispute and it is also not in dispute that

the death was due to the injuries sustained in the accident.

A perusal of the photographs marked as Ex-R4 indicates

that there is a road median which the deceased had

crossed. The rider ought to have seen the deceased

crossing the road and must have slowed down his vehicle.

As is said, a prudent and a man of ordinary sense would

take all steps to be careful while a man blinded by ego or

hatred would throw caution to the wind. In the present

case too, the rider of the offending vehicle who could have

been cautious by riding his motorcycle slowly, which he

didn't.

15. In that view of the matter, the finding of the

Tribunal that there was no proof of negligence and that the

deceased had contributed to the accident deserves to be

set aside.

16. In so far as the claim for compensation is

concerned, the income tax return (Ex.P16) for the

assessment year 2012-13 indicates a gross income of

Rs.4,88,370/- and income tax of Rs.21,462/- was paid by

the claimant. Hence, this income tax return could be the

basis to determine the income of the deceased. The

income after tax would be Rs.4,66,908/- per annum and

the monthly income would be Rs.38,909/-. The deceased

was 49 years at the time of his death and hence the future

prospects could be factored at 25% of his actual income

while computing the compensation towards loss of

dependency. Having regard to the fact that there were two

dependants, 1/3rd of the income of the deceased could be

deducted towards his personal and living expenses. Hence,

the claimants would be entitled to a sum of Rs.50,58,144/-

(Rs.38,909/- plus future prospects at 25% = Rs.48,636/-

and after deducting 1/3rd of the same, it would be

Rs.32,424/- x 12 x 13) towards loss of dependency.

Further, in view of the Judgment of the Apex Court in the

case of Magma General Insurance Company Limited

vs. Nanu Ram Alias Chuhru Ram [2018 (18) SCC 130]

and in the case of United India Insurance Co. Ltd. vs

Satinder Kaur @ Satwinder Kaur and others [2020

SCC OnLine SC 410], the claimants are entitled to loss of

parental love and affection at Rs.40,000/- each. Except

the above, the compensation awarded by the Tribunal

under the other heads is just and reasonable.

17. Hence this appeal is allowed in part and the

impugned Judgment and award dated 04-12-2014 passed

by the Tribunal in MVC No.5633/2013 is modified and the

finding of the Tribunal that there was no proof of

negligence and that the deceased had contributed to the

accident is set aside and the compensation awarded by the

Tribunal is enhanced to Rs.57,68,144/-, which is payable

by the insurer along with interest at 7% per annum from

the date of the claim petition till the date of realization to

the claimant.

18. The insurer shall deposit the enhanced

compensation along with interest within one month from

the date of receipt of a certified copy of this Judgment.

Upon deposit, 25% of the compensation shall be deposited

in each of the names of the claimants in any nationalized

banks for a period of two years.

Sd/-

JUDGE

Sd/-

JUDGE

sma