Karnataka High Court

Smt Nagavva @ Nagamma vs Sri Pazil on 16 January, 2021

Author: H T Prasad

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 16TH DAY OF JANUARY 2021

                     BEFORE

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

            MFA No.6632/2013 (MV)

BETWEEN:

1.   SMT NAGAVVA @ NAGAMMA
     W/O BASANNA AJUR
     AGED ABOUT 43 YEARS

2.   SRI SUBHASH CHANDRA AJUR
     S/O BASANNA AJUR
     AGED ABOUT 31 YEARS

3.   SRI SANJEEV KUMAR AJUR
     S/O BASANNA AJUR
     AGED ABOUT 27 YEARS

4.   SRI SIDDARAMAJOOR
     S/O BASANNA AJUR
     AGED ABOUT 25 YEARS

5.   SRI MANJUNATH AJUR
     S/O BASANNA AJUR
     AGED ABOUT 22 YEARS

ALL ARE RESIDING AT NO.20,
2ND MAIN, 2ND CROSS, SARJAPUR
BANGALORE
                                   ...APPELLANTS
                            2




(BY SRI. M. PRAKASH, ADV. FOR
    SRI.NAIK N R, ADV.)

AND
1 . SRI PAZIL
    S/O AJISUYLA
    NO.246/1, AMBALAPURA
    BELANDUR GATE, BANGALORE - 562125

2.   ICICI LOMBARD GENERAL INSURANCE CO. LTD.
     REGIONAL OFFICE, NO.89
     2ND FLOOR, S.V.R.COMPLEX
     HOSUR MAIN ROAD, MADIVALA
     BANGALORE - 560068
                                ...RESPONDENTS

(BY SRI. D. MANJUNATH, ADV. FOR R2
    R1 - NOTICE DISPENSED WITH V/O DT.4.9.2015)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
16.02.2013 PASSED IN MVC NO.8329/2010, ON THE
FILE OF THE I ADDITIONAL SMALL CAUSE JUDGE AND
XVII ACMM, MACT, BANGALORE, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCMENT 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 16.02.2013 passed

by the Motor Accident Claims Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 30.09.2010 at about 10.30

a.m., the deceased Basanna Ajur was a pedestrian on

Hosur-Bangalore (NH-7) road and was crossing the

said road opposite to Narayana Hrudayalaya Hospital,

Bangaore, at that time, a 407 Goods Tempo bearing

registration No.KA-05/5911 being driven by its driver,

from Hosur towards Bangalore side at a high speed

and 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

hale and healthy before the accident and was earning

Rs.12,000/- p.m. The claimants claimed

compensation to the tune of Rs.20,00,000/- along

with interest.

4. On service of summons, the respondent

No.2 appeared through its 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 not due to the

rash and negligent driving of the offending vehicle by

its driver and it was due to negligent on the part of

the deceased himself. The driver of the offending

vehicle did not possess valid and effective driving

licence as on the date of the accident to drive the

same. Hence, he sought for dismissal of the petition.

The respondent No.1 did not appear inspite of service

of notice and 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.4 as PW-1

and got exhibited 12 documents namely Ex.P1 to

Ex.P12. On behalf of respondents, one witness was

examined as RW-1 and got exhibited 3 documents

namely Ex.R1 to Ex.R3. The Claims Tribunal, by the

impugned judgment, inter alia, held that the accident

took place on account of rash and negligent driving of

the offending vehicle by its driver, 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.1,35,000/- (being 75% of the total compensation

amount) along with interest at the rate of 6% p.a. and

directed the respondent No.1/RC owner to deposit the

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 has occurred due to rash

and negligent driving of the tempo bearing

Reg.No.KA-05/5911. The deceased Basanna Ajur was

crossing the road after following all traffic rules, the

driver of the offending vehicle was driving the said

vehicle in a rash and negligent manner and dashed

against the deceased. Due to the said impact,

Basanna Ajur has died. It is very clear from the

sketch that the accident has occurred due to rash and

negligent driving of the offending vehicle by its driver.

The Tribunal has given a finding that deceased has

contributed 25% of the negligence to the accident,

which is contrary to the materials available on record.

The same is unsustainable.

Secondly, even the driver of the offending

vehicle was not having valid and effective driving

licence to drive the said vehicle. In view of the law

laid down by the Full Bench decision of this Court in

the case of 'NEW INDIA ASSURANCE CO. LTD.

BIJAPUR vs. YALLAVVA AND ANOTHER' ILR 2020

Kar.2239, the Insurance Company may be directed

to pay compensation to the claimants with liberty to

recover the same from the owner of the offending

vehicle.

Thirdly, in respect of quantum of compensation

is concerned, the deceased was aged about 66 years

and was earning Rs.12,000/- from vending

vegetables. The Tribunal is not justified in taking

monthly income of the deceased as merely as

Rs.4,000/-.

Fourthly, in view of the case of NATIONAL

INSURANCE CO. LTD. -v- PRANAY SETHI AND

OTHERS [AIR 2017 SC 5157], the claimants are

entitled for compensation of Rs.15,000/- each under

the heads of 'loss of estate and funeral expenses'.

Fifthly, 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/- each under the head

of 'loss of love and affection and consortium'.

Sixthly, the claimants are dependants of the

income of the deceased, the Tribunal is not justified in

deducting 50% instead of 1/3rd towards personal

expenses of the deceased.

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 raised the following

counter-contentions:

Firstly, the accident has occurred due to

negligence on the part of the deceased. The deceased

was crossing the road where there was no space for

crossing to the pedestrians and there are no zebra

marks and he was crossing the road, after passing

through the road divider. Since it was a highway and

there is no zebra crossing marks, it is very clear that

the accident has occurred only due to negligent act of

the deceased. There is no negligence on the part of

the driver of the offending vehicle. The Tribunal after

considering the materials available on record has

rightly held that the deceased has contributed 25%

negligence to the accident.

Secondly, the owner has failed to produce any

documents to show that the driver of the offending

vehicle was having valid and effective driving licence

as on the date of the accident. The Tribunal has given

a finding that as on the date of the accident, the

driver of the offending vehicle was not having valid

and effective driving licence. Since the insured has

violated policy conditions, the Insurance Company is

not liable to pay compensation.

Thirdly, even though the claimants claim that the

deceased was earning Rs.12,000/- from vegetable

business, but they have not produced any documents

to establish the same. Since the deceased was aged

about 66 years, the overall compensation awarded by

the Tribunal is just and reasonable.

Fourthly, claimants are majors and hence they

are not dependents on the income of the deceased.

Therefore, the Tribunal has rightly deducted 50% for

personal expenses.

Hence, the learned counsel for the Insurance

Company prays for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the records.

     9.   The     case    of    the     claimants    that   on

30.09.2010   at   about    10.30       a.m.,   the   deceased

Basanna Ajur was a pedestrian on Hosur-Bangalore

(NH-7) road and was crossing the said road, at that

time, a Goods Tempo bearing Reg.No.KA-05/5911

came from Hosur towards Bangalore at a high speed

and in a rash and negligent manner and dashed

against the deceased and caused the accident. The

claimants to prove their case, have examined claimant

No.4 as PW.1 and marked 12 documents. In the

cross-examination, PW.1 has specifically admitted that

after crossing one side road and road divider the

deceased was crossing the other side road and he was

in the middle of the road. It is very clear from the

sketch-Ex.P8 that deceased was crossing the road

where there was no pedestrians crossing and he was

in the middle of the road. Since it is a Highway, the

vehicles are coming on high speed. The Tribunal after

considering the materials available on record has

rightly held that the deceased has contributed 25%

and driver of the offending vehicle has contributed

75% negligence to the accident.

In respect of quantum of compensation is

concerned, even though the claimants claim that

deceased was earning Rs.12,000/- per month by

vending vegetables, but they have not produced any

documents to establish the same. Under the

circumstances, the notional income has to be assessed

as per the guidelines issued by the Karnataka State

Legal Services Authority. Since the accident has taken

place in the year 2010, the notional income has to be

taken at Rs.5,500/- p.m. The deceased was aged

about 65 years at the time of accident and multiplier

applicable to his age group is '5'.

Regarding deduction towards personal expenses

is concerned, the Apex Court in the case of SARLA

VERMA AND OTHERS -V- DELHI TRANSPORT

CORPORATION AND ANOTHER (AIR 2009 SCC

3104) has observed at para No.26 as follows:-

"We have already noticed that the personal and living expenses of the deceased should be deducted from the income, to arrive at the contribution to the dependents. No evidence need be led to show the actual expenses of the deceased. In fact, any evidence in that behalf will be wholly unverifiable and likely to be unreliable. Claimants will obviously tend to claim that the deceased was very frugal and did not have any expensive habits and was spending virtually the entire income on the family. In some cases, it may be so. No claimant would admit that the deceased was a spendthrift, even if he was one. It is also very difficult for the respondents in a claim petition to produce evidence to show that the deceased was spending a considerable part of the income on himself or that he was contributing only a small

part of the income on his family. Therefore, it became necessary to standardize the deductions to be made under the head of personal and living expenses of the deceased. This lead to the practice of deducting towards personal and living expenses of the deceased, one-third of the income if the deceased was a married, and one-half (50%) of the income if the deceased was a bachelor. This practice was evolved out of experience, logic and convenience".

Therefore, it is well settled law that if the

deceased was married and the claimant is the wife of

the deceased, one-third of the income of the deceased

has to be deducted towards personal expenses of the

deceased.

Thus, the claimants are entitled to compensation

of Rs.2,20,020/- (Rs.3,667 *12*5) on account of 'loss

of dependency'.

In view of the law laid down by the Supreme

Court in 'MAGMA GENERAL INSURANCE', claimant

No.1, wife of the deceased is entitled for

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

of spousal consortium', claimant Nos.2 to 5, children

are entitled for compensation of Rs.40,000/- each

under the head of 'loss of parental consortium' .

In view of the judgment of the Hon'ble Supreme

Court in the case of Pranay Sethi (supra), 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              2,20,020
        Funeral expenses                  15,000
        Loss of estate                    15,000
        Loss of spousal                   40,000
        consortium
        Loss of Parental                    1,60,000
        consortium
                       Total            4,50,020

       The   claimants   are     entitled     to    a    total

compensation of Rs.3,37,515/- (being 75% of the

total compensation) instead of Rs.1,35,000/- awarded

by the Tribunal.

It is not in dispute that the driver of the

offending vehicle was not holding valid and effective

driving licence. Therefore, the Insurance Company is

not liable to pay compensation. In view of the law laid

down by the Full Bench decision of this Court, in the

case of 'NEW INDIA ASSURANCE CO. LTD.

BIJAPUR vs. YALLAVVA AND ANOTHER' ILR 2020

Kar.2239, the Insurance Company is directed to

deposit the compensation amount along with interest