Karnataka High Court
Mallesha @ Malleshappa vs Annappa on 1 April, 2022
Bench: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF APRIL, 2022
BEFORE
THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 2754 /2012 (MV)
BETWEEN:
1. MALLESHA @ MALLESHAPPA
S/O MALLAIAH
AGED ABOT 47 YEARS
COOLIE WORK.
2. SMT. NINGAMMA
W/O MALLESHA
AGED ABOUT 37 YEARS
BOTH ARE R/O FILTER SHED
OPP: NEW TOWN POLICE STATION
NEW TOWN
BHADRAVATHI-577 301.
... APPELLANTS
(BY SRI. R.GOPAL, ADVOCATE (VC))
AND:
1. ANNAPPA
S/O BANGARAPPA
AGED ABOUT 37 YEARS
DRIVER OF THE BUS
R/O MAASURU ROAD
SHIKARIPURA TOWN
SHIKARIPURA-577 427.
2
2. N.MANJUNATHA
S/O NAGAPPA
AGED ABOUT 47 YEARS
R/O RAJALAKSHMI NILAYA
MALEERA KERI
HALIYUR
SHIKARIPURA TOWN
SHIKARIPURA-577 427.
3. THE UNITED INDIA INSURANCE COMPANY LIMITED
P.B.NO.21, J.C.ROAD,
SAGAR-577 401
SHIMOGA DISTRICT
REPRESENTED BY ITS
MANAGER
... RESPONDENTS
(APPEAL IS DIMISSED AGAINST R1
V/O DATED: 26.08.2015;
R2 SERVED;
BY SRI. K.LAKSHMINARASAPPA, ADVOCATE FOR
SRI. A.M.VENKATESH, ADVOCATE FOR R3)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED:
21.12.2011 PASSED IN MVC NO.716/2010 ON THE FILE
OF THE PRESIDING OFFICER, FAST TRACK COURT
ADDITIONAL MACT(11), BHADRAVATHI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section-173(1) of the
Motor Vehicles Act, by the appellants-claimants,
challenging the judgment and award dated 21.12.2011,
passed in MVC No.716/2010, on the file of Fast Track And
Additional MACT (11) at Bhadravathi, seeking
enhancement.
Brief facts:
2. The appellants - claimants are the father and
mother of deceased Raju @ Shivaraju. That on 19.02.2010
at about 4.45 p.m., the deceased Rau was pushing his bike
by walking on left side of Anavatti to Shivamogga road
near Veeranna Benavalli Cross. At that time, first
respondent came driving the bus bearing registration
No.KA.15.A.1371, from Shivamogga side in a rash and
negligent manner with high speed and dashed against
deceased Raju. Due to the impact, Raju sustained grievous
injuries on his head and other parts of his body and he
died on the way to the hospital.
3. Hence, a claim petition was filed by the
appellants-claimants under Section-166 of the M.V. Act,
claiming compensation. The deceased was a Contract
Labour in H.T.S. Department, V.I.S.P. Bhadravathi and
earning Rs.7,000/- per month. The appellants, who are the
parents were depending upon the earning of the deceased.
The Tribunal on appreciating the materials on record,
allowed the petition in part, and awarded a compensation
of Rs.2,20,500/-, along with interest at 6% per annum
from the date of petition till realization. The Tribunal held
respondent Nos.2 and 3 therein, jointly and severally liable
to pay the compensation.
4. The learned counsel appearing for the
appellants-claimants submitted that the Tribunal has
committed an error in holding that the bus driver was
negligent of 70% and the deceased was negligent of 30%
by applying contributory negligence. The spot sketch
produced at Exhibit-R3, shows that the accident has
occurred on the right side of the road from Shivamogga to
Sagar. The Motor cycle was coming from Sagar to
Shivamogga. Therefore, the bus driver had come to the
extreme right side of the road and hit motor cycle, which
can be clearly seen in the spot sketch. Further, the Police
have filed a charge-sheet against the driver of the
offending bus, that fortified the appellants-claimants' case.
Therefore, the learned counsel submitted that applying
contributory negligence is not correct.
5. Further, the learned counsel for the appellant
submitted that the compensation awarded by the Tribunal
under the various heads is not sufficient. Therefore, prays
to enhance the compensation on various heads.
6. On the other hand, the learned counsel
appearing for respondent No.3 - insurance company
Sri.K.Lakshmi Narasappa vehemently contended that the
deceased, who was the rider of the motor cycle, was riding
along with two pillion riders on the motor cycle and he was
unable to control the motor cycle. Therefore, the accident
has taken place. In this regard, the Tribunal has correctly
assessed the contributory negligence on the part of the
deceased also at 30%. Therefore, prays to confirm the
judgment and award of the Tribunal. Further, submitted
that the accident has taken place on middle of the Road as
can be seen in the spot sketch at Exhibit-R3. Therefore,
the Tribunal has rightly observed and held that there is a
contributory negligence on the part of the deceased.
Further, submitted that the compensation awarded by the
Tribunal under various heads are sufficient. Hence, there is
no need to enhance the compensation amount. Therefore,
prays to dismiss the appeal.
7. The compensation awarded by the Tribunal
under various heads are as follows:
1 Towards Loss of dependency : Rs. 2,70,000/-
2 Towards funeral and Transportation : Rs. 15,000/-
3 Towards loss to the Estate : Rs. 15,000/-
4 Towards Filial Love : Rs. 15,000/-
TOTAL : Rs. 3,15,000/-
8. Heard the learned counsels and perused the
material on record.
9. The Tribunal has held that the bus driver was
70% negligent and the rider of the motor cycle was 30%
negligent and therefore the theory of contributory
negligence is applicable. Upon perusing Exhibit-R3, a copy
of the spot sketch produced, it is seen that the bus was
moving from Shivammogga to Sagara and motor cycle was
proceeding from Sagara to Shivammoga, the spot sketch
reveals that the place of accident is not middle of the road
but it is slightly extreme to the right side of the road from
Shivamogga to Sagara. Therefore when it is depicted that
the bus was going on the right side of the road of
Shivamogga to Sagara, then the bus driver was negligent.
The motor cycle rider was on correct side, just because
there were two pillion riders that cannot be said that there
is contributory negligence on the part of the deceased.
10. In this regard, I place reliance on the judgment
of this Court reported in KARNATAKA STATE ROAD
TRANSPORT CORPORATION Vs. BELLAPPA, reported
in ILR 2017 KAR 1292. Therefore by appreciating the
material evidence, Exhibit-R3, spot sketch it is proved that
the bus had come to the right side of the road towards
Shivamogga to Sagara, then the entire negligence is to be
attributed on the part of the Bus driver. Therefore, the
Tribunal holding the deceased negligent of 30% is not
justified. The bus being a heavy vehicle, the driver of the
bus ought to has driven the bus cautiously, but by going
over to the right side of the road from Shivamogga to
Sagara dashed the motor cycle. Therefore, the bus driver
is found to be entirely rash and negligent. Hence, the
finding arrived at by the Tribunal in this regard is not
correct, as it is perverse. Accordingly, contributory
negligence held by the Tribunal is liable to be set-aside.
11. The learned counsel for the appellants-
claimants submitted that the deceased was a contract
employee working in H.T.S. Department, V.I.S.P.
Bhadravathi and earning Rs.6,750/- per month. In
support, the appellants have produced the payslip at
Exhibit-P7 and therefore requested to consider the income
of the deceased at Rs.6,750/- per month. However, on
considering the evidence, it is seen that the Author of the
payslip at Exhibit-P7 was not examined. Therefore, the
notional income is to be taken into consideration as the
deceased as a contract employee and accordingly the
notional income as per the Chart of the Karnataka State
Legal Services Authority, for the year 2010 is taken at
Rs.5,500/- per month. Therefore, the compensation
awarded by the Tribunal considering the income of the
deceased at Rs.3,000/- is not correct. The appropriate
multiplier applicable as per the judgment of the Hon'ble
Supreme Court, in the case of Smt.Sarla Verma &
Others. Vs. Delhi Transport Corpn And Another
reported in AIR 2009 SC 3104, is '18', since the
appellant was aged 20 years at the time of accident.
Further, the accident has occurred in the year 2010.
Therefore, as per the Notional Income Chart preferred by
the Karnataka State Legal Service Authority, the notional
income of Rs.5,500/- is to be taken into consideration.
Further, as per principle of law laid down by the Hon'ble
Apex Court in the case of National Insurance Co. Ltd.
Vs. Pranay Sethi reported in (2017) 16 SCC 680, 40%
of his monthly income is added towards 'Loss Of Future
Prospects In Life', i.e., Rs.2,200/- (Rs.5,500/- x 40%).
Therefore, the monthly income of the deceased is taken at
Rs.7,700/- (Rs.5,500/- + Rs.2,200/-). The deceased was
a bachelor. Therefore, 50% of deceased income is
deducted towards personal expenses and the contribution
to the family is taken as Rs.3,850/- per month.
Therefore, the compensation under the head 'Loss Of
Dependency' is recalculated and quantified as follows:
Rs.7,700 / 2 x 18 x 12 = Rs.8,31,600/-
9. Further, the Tribunal has awarded a
compensation of Rs.15,000/- towards 'Funeral And
Transportation Expenses', which is found to be correct
considering the year of the accident and therefore there is
no ground for interference. Accordingly, the same is kept
in tact.
10. The Tribunal has awarded compensation of
Rs.15,000/- towards 'Loss Of Estate'. The same is
sufficient and kept in tact.
11. Further, the compensation of Rs.15,000/- is
awarded towards 'Towards Filial Love / Loss of
Consortium' the same is not sufficient. Since the
appellants - claimants are the father and mother of the
deceased who have lost their only son. Therefore, as per
the principles of law laid down by the Hon'ble Apex Court
in Pranay Sethi's case, appellants - claimants who are
parents of the deceased are awarded Rs.40,000/- each,
under the head 'Towards Filial Love / Loss of
Consortium'.
12. Therefore, the appellants are entitled to the
enhanced compensation as follows:
1 Loss of dependency Rs.8,31,600/-
( Rs.7,700 / 2 x 18 x 12 = Rs.8,31,600/-)
2 Transportation of dead body Rs.15,000/-
3 Loss of Estate Rs.15,000/-
Towards Filial Love/Loss of
4 Rs.80,000/-
Consortium (Rs.40,000 x 2)
Total Rs.9,41,600/-
13. The appellants-claimants are entitled for a
total enhanced compensation of Rs.9,41,600/- as against
Rs.2,20,500/- awarded by the Tribunal. Hence, the
appellants are entitled for an additional Compensation of
Rs.7,21,100/- (Rs.9,41,600 - Rs.2,20,500), along with
interest at the rate of 6% per annum from the date of
petition till the date of realization.
14. Accordingly, I pass the following:
ORDER
i. Appeal is allowed in part.
ii. The judgment and award dated 21.12.2011, passed
in MVC No.716/2010, on the file of Fast Track And
Additional MACT (11) at Bhadravathi is modified to
the above extent.
iii. The appellants are entitled to an enhanced
compensation of Rs.7,21,100/- (Rs.9,41,600 -
Rs.2,20,500), along with interest at the rate of 6%
per annum from the date of petition till the date of
realization, in addition to what has been awarded by
the Tribunal.
iv. Registry is directed to return the Trial Court Records
to the Tribunal, along with certified copy of the order
passed by this Court forthwith without any delay.
v. Draw award accordingly.
Sd/-
JUDGE
JJ
