Karnataka High Court

Divisional Manager vs Smt Shailaja Yogesh Shetty on 28 February, 2022

Bench: P S Kumar, Rajendra Badamikar

                                             M.F.A No.304/2016
                                         C/W M.F.A No.770/2016

                              1
     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 28TH DAY OF FEBRUARY, 2022

                          PRESENT

      THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR

                            AND
     THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

                  M.F.A No.304 OF 2016
                           C/W
                M.F.A No.770 OF 2016 (MV)

IN MFA No.304 OF 2016

BETWEEN :

SMT. SHAILAJA SHETTY
W/O LATE YOGESH SUNDAR SHETTY
D/O SHANKARA ADYANTHAYA
AGED ABOUT 32 YEARS
R/AT "NITHYANANDA NILAYA"
UNDAARU VILLAGE, INNANJE POST
UDUPI TALUK AND DIST.-576 101                   ... APPELLANT

(BY SHRI. A. NATARAJ BALLAL, ADVOCATE)

AND :

1.    GAJANAN D. GADEKAR
      AGED ABOUT 48 YEARS
      R/AT 331, VETALDEVI VRKHAND
      PERNEM, GOA-403 406

2.    THE DIVISIONAL MANAGER
      THE ORIENTAL INS. CO. LTD.,
      GOUVEJA CHAMBERS, 3RD FLOOR
      HELIDORO SALGADO ROAD
      PANAJI, GOA-403 406
                                           M.F.A No.304/2016
                                      C/W M.F.A No.770/2016

                               2
3.   KRISHNA
     AGED ABOUT 36 YEARS
     R/AT GEDDAKLAMANI VILLAGE AND POST
     MUDDEBIHAL TALUK
     BIJAPURA DIST-586 101                  ... RESPONDENTS

(BY SHRI. A.N. KRISHNA SWAMY, ADVOCATE FOR R2
    - THROUGH VIDEO CONFERENCE;
    R1-SERVED;
    NOTICE TO R3 DISPENSED WITH)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED.14.09.2015 PASSED IN MVC
NO.258/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE,
ADDITIONAL MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION
FOR    COMPENSATION     AND   SEEKING     ENHANCEMENT     OF
COMPENSATION.

IN MFA No.770 OF 2016

BETWEEN :

DIVISIONAL MANAGER
ORIENTAL INSURANCE CO. LTD.,
GOUVEJA CHAMBERS, 3RD FLOOR
HELIDORO SALGADO ROAD
PANAJI, GOA
NOW REPRESENTED BY
REGIONAL MANAGER
ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE
SUMANGALA COMPLEX, II FLOOR
LAMINGTON ROAD
HUBLI-580 020                                   ... APPELLANT

(BY SHRI. A.N. KRISHNA SWAMY, ADVOCATE)
[THROUGH VIDEO CONFERENCE]

AND :

1.   SMT SHAILAJA YOGESH SHETTY
     W/O LATE YOGESH SUNDAR SHETTY
     D/O SHANKARA ADYANTHAYA
     NOW AGED ABOUT 32 YEARS
                                               M.F.A No.304/2016
                                          C/W M.F.A No.770/2016

                                 3
     R/A NITHYANANDA NILAYA
     UNDAARU VILLAGE, INNANJE POST
     UDUPI TALUK & DISTRICT

2.   GAJANAN D. GADEKAR
     MAJOR
     R/AT 331, VETADEVI VRKHAND
     PERNEM, GOA

3.   KRISHNA
     NOW AGED ABOUT 36 YEARS
     R/A GEDDALAMANI VILLAGE AND POST
     MUDDEBIHAL TALUK
     BIJAPURA DISTRICT                          ... RESPONDENTS

(BY SHRI. A. NATARAJ BALLAL, ADVOCATE FOR R1;
    R3-SERVED;
    VIDE ORDER DTD.23.02.2018, NOTICE TO
    R2 IS DISPENSED WITH)
                              ....
     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT   AND   AWARD       DATED.14.09.2015   PASSED   IN   MVC
NO.258/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE,
UDUPI AND ADDITIONAL MACT, UDUPI, AWARDING COMPENSATION
OF RS.13,93,000/- WITH INTEREST AT 8% P.A FROM THE DATE OF
PETITION TILL THE DEPOSIT.


     THESE MFAs, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 09.02.2022 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, P.S.DINESH KUMAR        J, PRONOUNCED THE
FOLLOWING:-
                                             M.F.A No.304/2016
                                        C/W M.F.A No.770/2016

                               4
                         JUDGMENT

These two appeals have been preferred by the

claimants and insurer. Hence, they are heard together and

disposed of by this common order.

2. M.F.A. No.304/2016 is by the claimant and

M.F.A. No.770/2016 is by the Insurer of the offending

vehicle.

3. For the sake of convenience, parties shall be

referred as per their status before the Tribunal.

4. We have heard Shri. A. Nataraj Ballal, learned

Advocate for claimants and Shri. Krishna Swamy, learned

Advocate for insurer.

5. Brief facts of the case are, claimant's husband

was travelling in his car from Pernem town towards

Patradevi side in Goa State. It dashed against a tipper lorry

coming from opposite side. Petitioner's husband Yogesh

Sundar Shetty sustained grievous injuries and died on the

spot.

M.F.A No.304/2016 C/W M.F.A No.770/2016

6. On consideration of claim petition, Tribunal has

awarded Rs.39,80,000/-. It has held that the driver of the

car was negligent to the extent of 65% and awarded

Rs.13,93,000/- with 8% interest per annum to the claimant.

7. Feeling aggrieved, claimant has filed her appeal

seeking enhancement and insurer has come up in appeal

challenging the findings recorded by the Tribunal both on

the aspects of negligence and quantum.

8. Shri. Nataraj Ballal, learned Advocate contended

that:

• the complaint has been given by a local police

constable. The offending lorry is a local lorry belonging

to Goa State. The complaint has been drafted

incorrectly to help the driver of the offending lorry;

• after the impact, the lorry has pushed the car back by

5.5 meters. This shows that lorry was being driven in

a rash and negligent manner. Therefore, the entire

liability ought to have been saddled upon the owner of

the lorry;

M.F.A No.304/2016 C/W M.F.A No.770/2016

• Tribunal has erred in considering the income of

petitioner's husband as Rs.30,000/- per month.

Though, the Tribunal has taken note of the income tax

returns, it has assessed the monthly income

arbitrarily.

9. Shri. Krishnaswamy for the insurer submitted

that:

• the accident has taken place on the National Highway

at about 3.35 p.m. in broad daylight;

• the sketch produced by Shri. Ballal, learned Advocate

for the claimant clearly shows that the car was moving

completely on the wrong side and the offending lorry

was correctly moving on the left side in its lane.

Therefore, there is no negligence on the part of the

driver of the offending vehicle. Hence, claimant shall

not be entitled for any compensation.

10. We have carefully considered rival contentions

and perused the records.

M.F.A No.304/2016 C/W M.F.A No.770/2016

11. Undisputed facts of the case are, the accident

has taken place in broad daylight at about 3.35 p.m. in the

afternoon. Claimant's husband was driving in his Ford Fiesta

Car with his family members. Claimant's case is, the

offending lorry was coming in a rash and negligent manner

from the opposite side and it dashed against the car.

12. Claimants next contention is, the complaint has

been drafted to help the owner of the offending lorry.

Therefore, it is necessary to analyze the evidence on record.

13. On behalf of claimant, P.W.1 and P.W.2 have

been examined. P.W.1 is the wife of the deceased Yogesh

Shetty. She is not an eye witness. P.W.2 is one Kodavar

Shankar Chandu Poojary. He has stated in his evidence

that he was travelling on National High Way 17 and is an

eye witness to the incident. After returning to his native

place, he learnt that Police had registered a false case

against claimant's husband. Hence, he had filed a private

complaint against the driver of the truck in the Court of

JMFC at Pernem, Goa seeking justice.

M.F.A No.304/2016 C/W M.F.A No.770/2016

14. In substance, the private complaint by P.W.2 is a

counter blast to the FIR filed by R.W.1.

15. Shri. Ballal, learned Advocate for the claimant

submitted that he does not depend upon the evidence of

P.W.2.

16. R.W.1 is the complainant. He has stated in his

evidence that he was working in the office of Anti-narcotic

Cell, Panaji, Goa. When he was proceeding from Pernem

Police Station, to his residence, near Jaitir Devasthan at

Kusulam, a white coloured Ford Fiesta over took his two

wheeler in high speed. When he reached near Mahadev

Temple, he noticed that the Ford car overtook a Maruthi

Zen car and dashed against the Truck coming from the

opposite side. In the cross-examination it has been

suggested to him that he was deposing falsely against the

driver of the car as it belonged to Maharashtra State and he

has denied the same.

M.F.A No.304/2016 C/W M.F.A No.770/2016

17. Shri. Ballal has produced a copy of the FIR and

the sketch showing the location of vehicles on the road.

Both have been issued by Pernem Police Station. The Truck

was moving from Patradevi side to Pernem. The sketch

clearly shows that lorry was on the left side of the road and

the car has dashed against the lorry head-on. The car ought

to have been on its left side, but it has dashed against the

lorry coming from opposite in its lane.

18. Admittedly, complaint has been lodged by a

Police Officer. Though a private complaint has been filed by

P.W.2, Shri. Ballal has given up the testimony of P.W.2.

Therefore, what remains for consideration is the testimony

of R.W.1, to appreciate the manner in which the accident

has taken place.

19. R.W.2 has been appointed by the Insurance

Company as an investigator. He has stated in his

examination-in-chief that he had submitted his investigation M.F.A No.304/2016 C/W M.F.A No.770/2016

report and copies of police documents. Therefore, his

evidence is not of much importance.

20. According to R.W.1, the Ford car dashed against

the Truck while overtaking a Maruti Zen Car. This evidence,

corroborates the sketch produced by Shri. Ballal.

21. Shri. Krishnaswamy's argument is, there is no

negligence on the part of the Truck driver. Therefore, the

owner of the Truck and the insurer are not liable to satisfy

the award.

22. Shri. Ballal has argued in the alternative that the

sketch shows that after the impact, the Truck has pushed

the car back by 5.5 meters. According to him, the Truck

was also being driven in a very rash and negligent manner.

Therefore, negligence on the part of the truck driver is

largely responsible for the accident.

23. As recorded hereinabove, the accident has taken

place in broad daylight. The driver of the Truck will be M.F.A No.304/2016 C/W M.F.A No.770/2016

sitting at an higher elevation when compared to driver of a

Ford car. Therefore, aerial view would be much clear for

him. If he were to be a cautious driver, he could have

noticed that the driver of Ford car was overtaking the Zen

car possibly and avoided the accident. Shri. Ballal has also

argued that the strong impact of the accident has pushed

the car by 5.5 meters. Therefore, driver of the truck was in

high speed and more negligent. But the incontrovertible

fact is the car had moved fully in the lane meant for the

truck which was coming from opposite side. Even if it is

construed that the driver of the lorry was driving at a higher

speed, yet the negligence on the part of car driver is

comparatively much higher. The Tribunal has considered

and fixed the negligence on the part of the car driver at

65%. Keeping in view the overall circumstances of the case,

we do not wish to disturb that finding.

24. The next aspect is with regard to the quantum of

compensation. Tribunal has awarded Rs.38,40,000/-

towards loss of dependency, by considering the monthly M.F.A No.304/2016 C/W M.F.A No.770/2016

income of the deceased as Rs.30,000/- per month. Claimant

has produced the Income tax returns for the assessment

years 2009-10, 2010-11, 2011-12 and 2012-13. The

accident has taken place on 24.05.2010. Then the last

Income tax return could have been for the year ending

31.03.2011 (for the financial year 01.04.2010 to

31.03.2011).

25. The total income shown for the assessment year

2009-10 is Rs.12,34,530/-. The total income for the

assessment year 2010-11 is, Rs.12,58,920/-. The income

for the assessment year 2011-12 is, Rs.11,10,420/-. The

average of these three years' income works out to

Rs.12,01,290/-. A sum of Rs.2,400/- per annum is

deductable towards professional tax. Thus, the net income

works out to Rs.11,98,890/- per annum.

26. Shri. Krishnaswamy, has submitted that

deceased Yogesh Shetty was a business man and his wife

has been continuing the business. Therefore, there will be M.F.A No.304/2016 C/W M.F.A No.770/2016

no loss in the income. This argument is untenable because,

the Income tax returns have been filed in the name of

Yogesh Sundar Shetty in his individual capacity. There is no

evidence on record to support the argument of Shri.

Krishnaswamy. Therefore, we consider it appropriate to

take the annual income of deceased Yogesh Shetty as

Rs.11,98,890/-.

27. In view of the findings recorded hereinabove, the

compensation needs to be recomputed.

28. Deceased was aged 33 years at the time of

death and he was self-employed. He was married and his

family consisted of his wife and mother. Therefore, 1/3rd of

his income has to be deducted towards his personal

expenses. A sum equivalent to 40% of his income will have

to be added towards future prospects (See: National

Insurance Company Ltd., Vs. Pranay Sethi and others1).

The applicable multiplier is 16.

(2017)16 SCC 680 (para 59.4) M.F.A No.304/2016 C/W M.F.A No.770/2016

29. Thus, compensation towards loss of dependency

is worked as follows:

The monthly income works out to Rs.1,39,871/-

(Rs.99,908+39,963) [by adding 40% towards future

prospects (Rs.99,908*40%=39,963]. After deducting 1/3, it

works out to Rs.93,247/- per month (Rs.1,39,871*2/3).

The annual income works out to Rs.11,18,964/-

(Rs.93247*12). By applying 16 as multiplier, the loss of

dependency works out to Rs.1,79,03,424/-

(Rs.11,18,964X16).

The total compensation is recomputed as follows:

      Sl.No                 Description                    Amount

      a.            Loss of dependency                   Rs.1,79,03,424

      b.            ADD: Consortium                           Rs.40,000

      c.            ADD: Conventional heads;                  Rs.30,000
                    funeral expenses, etc.,
      d.                     Total (a+b+c)                Rs.1,79,73,424

      e.            LESS: Compensation awarded             Rs.39,80,000
                        by the Tribunal (d-e)
                 Enhanced Compensation                  Rs.1,39,93,424

The total compensation works out to Rs.1,79,93,424/-.

M.F.A No.304/2016 C/W M.F.A No.770/2016

30. We have recorded that the contributory

negligence assessed by the Tribunal correct. Hence,

claimants shall be entitled for 35% of the total

compensation and it works out to Rs.62,90,698/-

(1,79,73,424*35%)

31. Shri. Krishnaswamy has also rightly pointed out

that this Court has been consistently awarding interest at

6% in all motor vehicle compensation cases. Accordingly,

we hold that the compensation amount shall be paid with

interest at 6% p.a., throughout.

32. In the result, the following:

ORDER

(a) M.F.A. 304/2016 by the claimant is allowed in part holding that the claimant shall be entitled for a total compensation of Rs.62,90,698/-;

(b) M.F.A. No.770/2016 filed by the Insurer is dismissed;

(c) Insurer shall deposit the sum of Rs.62,90,698/- with interest at 6% p.a. through out, excluding the amount if any, paid/deposited already, within six weeks;