Karnataka High Court

Shri. Manjappa vs Shri. Arunakumar on 24 March, 2021

Author: Alok Aradhe Kamal

                                1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 24TH DAY OF MARCH 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

         THE HON'BLE MR. JUSTICE M.G.S. KAMAL

              M.F.A. NO.1924 OF 2018 (MV-D)
                           C/W
               M.F.A. NO.1925 OF 2018 (MV-I)


M.F.A. NO.1924 OF 2018


BETWEEN:

1.     SHRI. MANJAPPA
       SON OF LATE SHRI. JAVARAPPA
       AGED ABOUT 46 YEARS.

2.     SMT. CHANNAMMA
       WIFE OF SHRI. MANJAPPA
       AGED ABOUT 42 YEARS.

3.     SMT. MEGANA
       DAUGHTER OF SHRI. MANJAPPA
       AGED ABOUT 22 YEARS.

       ALL ARE RESIDENTS OF OTHIGATTA
       SOGANEPOST, SHIVAMOGGA TQ-577222.
                                               ... APPELLANTS

(BY MR. Y.K. SHESHAGIRI RAO, ADV.,)
                                2



AND:

1.     SHRI. ARUNAKUMAR
       SON OF SHRI. KRISHNEGOWDA
       DRIVER MAJOR
       #3, SUNDRA SHILPI STREET
       BERESHWARA NAGARA
       CHUNCHANAGATTA MAIN ROAD
       BANGALORE - 560062.

2.     SHRI. MUNIRAJ K
       SON OF SHRI. KRISHNAPPA
       AGED ABOUT 28 YEARS
       R/O METKAL PALYA VILLAGE
       KENGERI HOBLI
       NEAR BUS STAND, BSK 6TH PHASE
       BENGALURU - 560060
       (OWNER OF THE TATA INDICA CAR
       BEARING REG NO KA- 05-AD-7001).

3.   THE MANAGER
     TATA AIG GENERAL INSURANCE COMPANY LTD
     III FLOOR
     J P & DEVI JAMBUKESHWAR ARCADE
     # 69, MILLERS ROAD
     KAVERAPPA LAYOUT, VASANTHNAGAR
     BANGALORE-560052
                                       ... RESPONDENTS
(BY MR. O. MAHESH, ADV., FOR R3
R1 NOTICE D/W V/O DTD:12.01.2021
R2 SERVED UNREPRESENTED)
                            ---

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 07.11.2017 PASSED IN MVC NO.315/2015 ON THE FILE OF THE 2ND ADDITIONAL SENIOR CIVIL JUDGE & AMACT-8, SHIVAMOGGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

M.F.A. NO.1925 OF 2018 BETWEEN:

SHRI. LAKSHMIKANTH .R S/O SHRI. RAJANNA AGED ABOUT 29 YEARS R/O RAMAMANDIRA ROAD MALAVAGOPPA SHIVAMOGGA TQ-577 222.

... APPELLANT (BY MR. Y.K. SHESHAGIRI, ADV.,)

AND:

1. SHRI. ARUNAKUMAR SON OF SHRI. KRISHNEGOWDA DRIVER MAJOR #3, SUNDRA SHILPI STREET BERESHWARA NAGARA CHUNCHANAGATTA MAIN ROAD BANGALORE - 560062.

2. SHRI. MUNIRAJ K SON OF SHRI. KRISHNAPPA AGED ABOUT 28 YEARS R/O METKAL PALYA VILLAGE KENGERI HOBLI NEAR BUS STAND, BSK 6TH PHASE BENGALURU - 560060 (OWNER OF THE TATA INDICA CAR BEARING REG NO KA- 05-AD-7001).

3. THE MANAGER TATA AIG GENERAL INSURANCE COMPANY LTD III FLOOR J P & DEVI JAMBUKESHWAR ARCADE # 69, MILLERS ROAD KAVERAPPA LAYOUT, VASANTHNAGAR BANGALORE-560052.

... RESPONDENTS (BY MR. O. MAHESH, ADV., FOR R3 R1 NOTICE D/W V/O DTD:20.01.2021 R2 SERVED UNREPRESENTED)

---

THESE M.F.As. COMING ON FOR ADMISSION, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

M.F.A. No. 1924/2018 has been filed by the legal

representatives of the deceased seeking enhancement of the

amount of compensation, whereas M.F.A. No. 1924/2015 has

been filed by the injured claimant seeking enhancement of

the amount of compensation against the judgment dated

07.11.2017 passed by the Motor Accidents Claims Tribunal

(hereinafter referred to as 'the Tribunal' for short). Since,

both the appeals preferred under Section 173(1) of the Motor

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

short) arise out of the same accident as well as common

judgment passed by the Tribunal, they were heard

analogously and are being decided by this common

judgment.

2. Facts giving rise to the filing of these appeals

briefly stated are that on 08.11.2014, the injured claimant

Lakshmikanth along with the deceased Yogesh who was

riding pillion were proceeding on motorcycle bearing

registration No.KA-14-Y-1821. At that time, a car bearing

registration no.KA-05-AD-7001, which was being driven by

its driver in a rash and negligent manner, came from the

opposite direction and dashed against the motorcycle in

which the deceased and the injured claimant were traveling.

As a result of the aforesaid accident, the deceased and the

injured claimant sustained grievous injuries, while the

deceased succumbed to injuries, the injured claimant was

shifted to KMC Hospital, Manipal for treatment.

3. The legal representatives of the deceased

thereupon filed a petition under Section 166 of the Act viz.,

MVC No.315/2015 claiming compensation on the ground that

the deceased was aged about 20 years at the time of

accident and was engaged as a CCTV Installer and was

earning a sum of Rs.10,000/- per month. It was further

pleaded that accident took place solely on account of rash

and negligent driving of the offending car by its driver. The

claimants claimed compensation to the tune of

Rs.35,70,000/- along with interest whereas, the injured

claimant filed a petition under Section 166 of the Act viz.,

MVC No.316/2015, inter alia, on the ground that the claimant

was admitted to KMC Hospital, Manipal, where he took

treatment as inpatient. It is also pleaded that the claimant

has spent huge sums towards medical expenses. It was also

claimed that the claimant was earning Rs.50,000/- from

running a business in the name and style of Silvertree

Technical and due to the impact of the accident, the claimant

is unable to carry on with the work as before. It was also

pleaded that the accident took place on account of the rash

and negligent driving of the driver of the offending car. The

claimant claimed compensation to the tune of Rs.16,00,000/-

along with interest.

4. The respondent No.1 and 2 viz., the driver and

owner of the offending vehicle filed written statement in

which, inter alia, it was pleaded that the accident occurred on

account of the negligence of the injured claimant himself in

riding the motorcycle. It was further pleaded that the

offending vehicle is duly insured with the Respondent No.3

and such any liability to pay the compensation is to be be

fastened on the Insurance Company. The insurance company

filed written statement, in which the mode and manner of the

accident was denied. It was also pleaded that the driver of

the offending vehicle did not hold a valid and effective driving

license at the time of accident and that the liability of the

insurance company, if any, would be subject to the terms

and conditions of the insurance policy. The age, avocation

and income of the deceased was also denied and it was

pleaded that the claim of the claimants is exorbitant and

excessive.

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

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimant No.1 examined himself as PW-1,

the injured claimant as PW2 and got exhibited documents

namely Ex.P1 to Ex.P41, while, Dr.Kiran KV Acharya (CW1)

was examined to prove documents namely, Ex.C1 to Ex.C3.

The respondents examined Manjunatha G as RW1 and got

exhibited documents viz., Ex.R1 to Ex.R6. 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 well as the injured

claimant in riding the motorcycle who contributed equally to

the extent of 50% each in causing the accident. It was

further held, that as a result of aforesaid accident, the

deceased and the injured claimant sustained grievous

injuries, while the deceased succumbed to injuries, the

injured claimant was shifted to KMC Hospital, Manipal for

treatment. The Tribunal further held that the legal

representatives of the deceased in MVC No.315/2015 are

entitled to a compensation of Rs.10,52,500/- along with

interest at the rate of 6% per annum where as, the injured

claimant in MVC No.316/2015 was held entitled to a sum of

Rs.2,04,000/- along with interest at the rate of 6% per

annum. Being aggrieved, these appeals have been filed by

the legal representatives of the deceased as well as the

injured claimant seeking enhancement of the amount of

compensation.

6. Learned counsel for the claimants submitted that the

Tribunal erred in assigning contributory negligence to the

extent of 50% on the part of the injured claimant on the

basis of erroneous appreciation of Ex-R6 spot sketch. It is

further submitted that the respondents have not adduced

any eye witness to prove the manner of accident. It is also

submitted that the Tribunal erred in assessing the income of

the deceased at Rs.7,500/- when Ex-P11 clearly discloses the

income of the deceased to be RS.10,000 per month. It is

also submitted that the amount of compensation awarded

under the conventional heads are on the lower side and

deserve to be enhanced suitably. It is urged that the Tribunal

erred in not awarding any compensation to the injured

claimant under the head 'Loss of Future earning' and 'Loss of

income during laid up period. It is also urged that the

amount of compensation awarded under the other heads are

on the lower side and deserve to be enhanced suitably.

7. On the other hand, Learned counsel for the

insurance company submitted that the Tribunal after

meticulous appreciation of all evidence on record has rightly

assigned negligence on the part of the injured claimant to the

extent of 50% in causing the accident. It is further

submitted that the tribunal after placing reliance on Ex.R6,

spot sketch, has held that the injured claimant contributed to

the extent of 50% in causing the accident. It is also

submitted that the judgment passed by the tribunal is just

and proper and does not call for any interference.

8. We have considered the submissions made by

learned counsel for the parties and have perused the record.

The Supreme Court in 'MANGALA RAM VS. ORIENTAL

INSURANCE CO.', (2018) 5 SCC 656 has held that the

proceeding under the Act has to be decided on the basis of

preponderance of probabilities and claimant is not required to

prove the accident beyond reasonable doubt. It is well settled

in law that when an accident happens through the combined

negligence of two persons, he alone is liable to the other who

had the last opportunity of avoiding the accident by

reasonable care, and who then knew or ought to have known

of the danger caused by the other's negligence. [See:

SALAMOND ON THE LAW OF TORTS, TWELFTH EDITION

1957 PAGE 439-441]. The general rule is that the vehicle

should be driven at a speed which enables the driver to stop

within the limits of his vision and failure to do this will almost

always result in the driver being held, in whole or in part,

responsible for the collision. [See: CLERK AND LINDSELL

ON TORTS, ELEVENTH EDITION, 1954 PAGES 368-370].

It is equally well settled legal proposition that burden of

proving negligence lies on the person who alleges it. The

Supreme Court in 'MUNICIPAL CORPORATION OF

GREATER BOMBAY VS. LAKSHMAN IYER AND ORS.' AIR

2003 SC 4182 held that the crucial question in case of

contributory negligence is whether either party could by

reasonable care, have avoided the consequences of other's

negligence. The finding with regard to contributory

negligence has to be recorded on the basis of proper

consideration of the pleadings and legal evidence adduced by

both the parties and the same cannot be based merely on

police records. [See: 'MINUROUT VS. SATYA

PRADYUMNA MOHAPATRA', (2013) 10 SCC 695 AND

'SARALA DEVI VS. ROYAL SUNDARAM ALLIANCE

INSURANCE CO. LTD.,', (2014) 15 SCC 450]. It is well

settled in law that burden to prove breach of duty on the part

of the victim lies on the insurance company and the

insurance company has to discharge the burden. [SEE:

'USHA RAJ KHOWA VS. PARAMOUNT INDUSTRIES',

(2009) 14 SCC 71]. The Supreme Court in JIJU

KURUVILA AND ORS. VS. KUNJUJAMMA MOHAN AND

ORS.', (2013) 9 SCC 166 has held that mere position of the

vehicles after the accident as shown in scene mahazar cannot

be a substantial proof as to rash and negligent driving on the

part of one or the other. It was further held that when two

vehicles coming from opposite directions collide, the position

of the vehicles and its direction etc. depends on the number

of factors like speed of vehicles, intensity of collision, reason

for collision, place at which one vehicle hit the other, etc.

From the scene of the accident, one may suggest or presume

the manner, in which the accident caused, but in absence of

any direct or corroborative evidence, no conclusion can be

drawn as to whether there was negligence on the part of the

driver. In absence of such direct or corroborative evidence,

the court cannot give any specific finding about negligence

on the part of any individual.

9. Admittedly, PW1 is not an eye witness to the

accident PW2 - the injured claimant has stated in his

evidence that the accident took place on account of the rash

and negligent driving of the offending car by its driver who

came from the opposite direction and dashed against the

motorcycle which he was riding. Though nothing to indicate

to the contrary has been elicited by the Insurance company

in his cross examination, PW2 has admitted that he has not

produced Ex.R6 spot sketch before the Tribunal. However,

the aforesaid witness has denied the contents of Ex.R6-spot

sketch. It is pertinent to note that the Insurance Company

has neither examined the driver of the offending vehicle nor

any other eye witness to prove the manner of accident as

alleged by it. It is also pertinent to note that it is the specific

plea of the Respondent No.1 and Respondent No.2 in their

written statement that the injured claimant was riding the

motorcycle on the extreme right side of the road Ex R6 spot

sketch discloses that the accident occurred next to the

median of the road in the right side. The Tribunal only on

the basis of spot sketch Ex R6 has held that the injured

claimant was riding his motorcycle on the right side and has

attributed negligence on the part of the injured claimant to

the extent of 50 percent without appreciating the evidence of

PW2 injured claimant who was an eye witness to the

accident. The aforesaid finding cannot be sustained in view of

the law laid down by the Supreme Court in JIJU KURUVILA

AND ORS supra. Therefore, in view of preceding analysis

and on the basis of preponderance of probabilities, the

finding of the Tribunal with regard to negligence is hereby set

aside and it is held that the accident occurred wholly on

account of the negligence of the driver of the offending

vehicle.

9. Now we may advert to the quantum of

compensation in MVC No.315/2015. The claimants have

produced Ex.P10 Salary Certificate to prove that the

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

Tribunal has disbelieved the aforesaid document as the same

is authored by PW2 who is an interest witness and has

assessed the income of the deceased notionally at Rs.7,500/-

per month. Though PW2 has proved Ex.P10, no reliance can

be placed on it as the same is not supported by any other

documentary evidence. Therefore, the income of the

deceased is to be assessed notionally. As per the guidelines

issued by the Karnataka Legal Services Authority, for the

accident of the year 2014, the notional income is to be

assessed at Rs.8,500/- per month. Ex.P11 ITI Marks Sheet,

ExP16 and Ex.P18 indicate that the deceased was a skilled

labor engaged as an electrician. Therefore, we assess the

income of the deceased at Rs.9,000/- per month.

10. In view of the law laid down by the Constitution

Bench of the Supreme Court in 'NATIONAL INSURANCE

COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS'

AIR 2017 SC 5157, 40% of the amount has to be added on

account of future prospects as the deceased was in private

employment where security of tenure is not assured. Thus,

the monthly income comes to Rs.12,600/-. Since, the

deceased is a bachelor, therefore, half of the amount has to

be deducted towards personal expenses and therefore, the

monthly dependency comes to Rs.6,300/-. Taking into

account the age of the deceased which was 20 years at the

time of accident, the multiplier of '18' has to be adopted.

Therefore, the claimants are held entitled to

(Rs.6,300x12x18) i.e., Rs.13,60,800/- on account of loss of

dependency.

11. In view of laid down by the Supreme Court in

'MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM

& ORS.' (2018) 18 SCC 130, which has been subsequently

clarified by the Supreme Court in 'UNITED INDIA

INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.'

AIR 2020 SC 3076 each of the claimant's are entitled to a

sum of Rs.40,000/- on account of loss of consortium and loss

love and affection. Thus, the claimants are held entitled to

Rs.1,20,000/-. In addition, claimants are held entitled to

Rs.30,000/- on account of loss of estate and funeral

expenses. Thus, in all, the claimants are held entitled to a

total compensation of Rs.15,10,000/-. Needless to state that

the enhanced amount of compensation shall carry interest at

the rate of 6% per annum from the date of filing of the

petition till the payment is made. The owner of the offending

vehicle viz., Respondent No.2 and the insurer of the

offending vehicle viz., Respondent No.3 are jointly and

severally liable to pay the aforesaid amount of total

compensation. To the aforesaid extent the judgment of the

Tribunal in MVC No.315/2015 is modified.

12. Now we may advert to the quantum of

compensation in MVC No.316/2015. Dr.Kiran KV Acharya

(CW1) in his evidence has stated that the claimant has

sustained the following injuries which are grievous in nature:

1. Fracture mandible

2. Right knee internal derangement

3. Right IV, V metacarpal fracture

He has further stated that the claimant still suffers

from mild weakness in right hand, right quadriceps femoris

stiffness in the right knee. The aforesaid witness has

assessed the disability of the claimant to the extent of 4% to

the upper limb and 14% to right lower limb. The Tribunal has

assessed the disability of the claimant to the extent of 6% to

the whole body. The injured claimant has stated in his

evidence that he is unable to work as prior to the accident.

Ex.P35 discloses that the income of the injured claimant

remains the same even after the occurrence of the accident.

Therefore, the Tribunal has rightly not awarded any

compensation under the head 'Loss of Future Income'. The

Tribunal has also not granted any compensation under the

head 'loss of income during laid up period' as the claimant

has received income from the partnership firm during his laid

up period also and no interference can be made in this

regard also.

13. It is also pertinent to note that the Tribunal has not

awarded any amount on account of Loss of amenities. In

view of the injuries sustained by the claimant and the