Mr Veerappa Poojary vs New India Assurance Co Ltd
2021 Latest Caselaw 4778 Kant

                          -1-




 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 25TH DAY OF NOVEMBER, 2021

                        BEFORE

     THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              M.F.A.No.4285 / 2016 (MV)

BETWEEN:

1.      VEERAPPA POOJARY
        S/O LATE HONNAYYA POOJARY
        AGED ABOUT 62 YEARS

2.      SMT NALINI
        W/O VEERAPPA POOJARY
        AGED ABOUT 56 YEARS

        BOTH ARE R/AT DHOTA HOUSE,
        UPPAROTTU VILLAGE, KARMBARU
        MALAVOOR, MANGALURU TALUK.
                                        ...APPELLANTS

(BY SRI. GURUPRASAD B.R., ADVOCATE)

AND:

1.      NEW INDIA ASSURANCE CO. LTD.,
        DIVISIONAL OFFICE
        RAM BHAVAN COMPLEX
        MANGALURU-575003
        REPRESENTED BY ITS MANAGER.

2.      MR SAMEER
        S/O MOOSA KUNHI
        AGED ABOUT 31 YEARS
        R/AT D.NO.7/104, KODI DOWN ROAD
        ULLAL, MANGALORE-575 001.
                          -2-




3.    VINOD
      S/O VEERAPPA POOJARY
      AGED 32 YEARS
      R/AT DHOTA HOUSE
      UPPAROTTU VILLAGE
      KARMBARU, MALAVOOR
      MANGALURU TALUK-575 001.
                                     ...RESPONDENTS

(BY SRI. M.P.SRIKANTH, ADVOCATE FOR R1;
    R2 AND R3 DESPENSED WITH)

      THIS MFA IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND
AWARD      DATED:   09.03.2016     PASSED   IN   MVC
NO.925/2014 ON THE FILE OF THE I ADDITIONAL
DISTRICT    &   SESSIONS    JUDGE,    MACT-II,   D.K.,
MANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.


      THIS MFA COMING ON FOR ADMISSION THIS
DAY, THE COURT, DELIVERED THE FOLLOWING:


                    JUDGMENT

This captioned appeal is filed by the appellants

questioning the quantum of compensation awarded by

the tribunal in MVC No.925/2014.

2. It is stated across the bar that the 2nd

respondent- Insurance company has satisfied the award

passed by the tribunal. Therefore, the present appeal is

filed only with regard to quantum and negligence fixed

on the rider of the bike.

3. For the sake of convenience, hereinafter the

parties are referred to as per their rankings before the

tribunal.

4. The claimants filed claim petition for having

lost their son by name Vitesh in a road traffic accident

that occurred on 23.03.2014. They contended that their

son was proceeding on a motorbike bearing registration

No.KA-19-EC-7846 by following traffic rules. The

claimants have contended that the driver of the

offending lorry was proceeding in front of the bike on

which the deceased was proceeding as a rider along

with pillion rider, namely Dinesh. Suddenly, the lorry

stopped without giving any signal, and took right turn,

on account of which the rider of the bike was taken by

surprise, failed to control the bike, as a result, it

collided with the lorry at the hind portion and sustained

multiple injuries. It is further contended that their son

Vitesh and the pillion rider succumbed to injuries, on

the way to Government Wenlock Hospital, Mangaluru.

Hence, filed the claim petition claiming compensation of

Rs.30,00,000/- and Rs.35,00,000/- respectively.

5. On receipt of notice, second respondent-

insurance company contested the proceedings by filing

written statement. The second respondent - Insurance

Company stoutly denied the averments made in the

claim petition. The second respondent further denied

that the driver of the offending lorry was negligent. The

tribunal having examined oral and documentary

evidence, recorded a finding that the rider of the bike

namely Vithesh, who is son of claimants-appellants No.1

and 2 was also negligent in causing the accident. The

tribunal having assessed the evidence on record, has

come to the conclusion that the deceased was also

contributed negligent to the tune of 30%. While

determining the compensation, in the absence of

income proof, the tribunal has proceeded to assess the

income of the deceased notionally at Rs.6,000/- per

month and by adding 50% towards future prospects and

deducting 50% towards personal expenses of the

deceased, has awarded a sum of Rs.9,72,000/- under

the head 'loss of dependency'. Under conventional

heads, the tribunal has awarded a sum of Rs.1,00,000/.

The tribunal, in all, has awarded a total compensation of

Rs.10,72,000/-.

6. Learned counsel appearing for the claimants

reiterating the grounds urged in the appeal memo,

vehemently contended that the finding recorded by the

tribunal fixing 30% negligence on the part of the rider

of the bike is palpably erroneous and there is no contra

evidence on record to establish the same. Learned

counsel submitted that there is no rebuttal evidence led

by respondent No.2- insurance company and therefore,

would submit that the tribunal ought to have relied on

Ex.P.1 - charge sheet, which clearly indicates that the

driver of the offending lorry was solely responsible and

the accident occurred on account of rash and negligent

driving by the driver of the offending lorry and not the

rider of the bike.

7. Insofar as the quantum is concerned, learned

counsel appearing for the claimants would submit before

this Court that even in the absence of proof of income,

the tribunal erred in notionally assessing the income of

the deceased at Rs.6,000/-. Therefore, the

compensation awarded under the head 'loss of

dependency' is on the lower side and warrants

interference at the hands of this Court.

8. However, learned counsel for the second

respondent-Insurance Company supports the finding of

the tribunal and also the conclusion arrived at by the

Tribunal. He would submit to this Court that while

determining the 'loss of dependency' the tribunal in fact

has taken 50% towards future prospects and therefore,

the compensation awarded by the tribunal is just and

fair and would not warrant interference.

9. Insofar as negligence is concerned, he would

submit to this Court that the rider of the bike was

required to maintain reasonable distance and the fact

that rider of the bike collided with the lorry from the

hind side would clearly establish that the rider of the

bike was equally responsible and negligent in causing

the accident and therefore, the finding recorded by the

tribunal in fixing 30% negligence would not call for

interference at the hands of this Court.

10. Heard the learned counsel for the appellants

and learned counsel appearing for the 2nd respondent-

insurance company. Perused the records.

Reg. Negligence

11. It is the specific case of the appellants that

the driver of the offending lorry without indicating any

signal that he is going to take right turn has abruptly

took right turn and therefore, caused the accident. It is

further specific case of the claimant, that the driver of

the offending lorry was solely responsible and it is on

account of his rash and negligent driving, the accident

had occurred, resulting in two deaths. To substantiate

the pleadings in the claim petition, the claimants have

relied on the charge sheet. On perusal of the charge

sheet, it goes to show that after investigation police

have filed charge sheet against the offending lorry.

Though a feeble attempt is made by 2nd respondent-

Insurance company by denying that driver of the

offending lorry was negligent, however, no rebuttal

evidence is let in. [In the absence of rebuttal evidence,

in the light of the catena of judgments rendered by the

Hon'ble Apex Court, the tribunal ought to have taken

holistic view of charge sheet]. Therefore, in the present

case on hand, I am of the view that the finding arrived

at by the tribunal in fixing 30% negligence on the rider

of the motorbike is erroneous in the absence of rebuttal

evidence and contrary to clinching evidence placed on

record by the claimant as per Ex.P.1 coupled with spot

sketch at Ex.P.4. Therefore the finding with regard to

fixing 30% negligence needs interference at the hands

of this Court. Accordingly, the said finding is set aside.

12. Insofar as quantum of compensation is

concerned, the tribunal in the absence of income proof

has notionally assessed the income of the deceased at

Rs.6,000/-. Though this Court cannot find fault with the

finding of the tribunal in notionally assessing the

income, however, having regard to the date of the

accident, I am of the view that the income assessed by

the tribunal appears to be on the lower side. In the

absence of income proof, this Court would place reliance

on the chart issued by the Karnataka Legal Services

Authority and assess the income of the deceased

notionally at Rs.8,500/-. The deceased was aged about

24 years, therefore 40% towards future prospects

needs to be added, which works out to Rs.11,900/-.

The deceased was a bachelor, therefore, 50% is to be

deducted towards personable expenses which works out

to i.e., Rs.5,950/-. Thus the compensation payable

under the head 'loss of dependency' works out to

Rs.12,85,200/-(5,950/- X 12 X 18).

Claimants No.1 and 2 being parents are entitled

for filial compensation, in the light of the decision

rendered by the Hon'ble Apex Court in the case of

Magma General Insurance Company limited Vs.

Nanu Ram @ Chuhru Ram & Others1. Appellants

No.1 and 2 are entitled for a sum of Rs.40,000/- each

and Rs.30,000/- each towards funeral expenses and

loss of estate. Hence, the total compensation payable

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1. (2018) 18 SCC 130

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under the conventional heads works out to

Rs.1,10,000/-.

13. The total compensation re-determined by this

Court comes to Rs.13,95,200/- as against

Rs.10,72,000/- awarded by the tribunal.

The claimants are entitled to enhanced

compensation of Rs.3,23,200/- with interest at the rate

of 6% per annum from the date of petition till

realisation.

For the foregoing reasons, the appeal is allowed in

part.

Sd/-

JUDGE

Psg*