Karnataka High Court
Lalita Bai W/O Late Vinod And Ors vs Sangamma W/O Bhimanna Allambure on 31 March, 2022
Bench: Ashok S. Kinagi
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 31ST DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
MFA No.201382/2014 (MV)
BETWEEN:
1. LALITA BAI W/O LATE VINOD,
AGE: 32 YEARS,
OCC: HOUSEHOLD,
2. AMAR S/O LATE VINOD,
AGE: 17 YEARS,
OCC: STUDENT,
3. ABRAHAM S/O LATE VINOD,
AGE: 16 YEARS,
OCC: STUDENT,
4. MARY D/O LATE VINOD,
AGE: 14 YEARS,
OCC: STUDENT,
5. ARUN S/O LATE VINOD,
AGE: 12 YEARS,
OCC: STUDENT,
6. KALLAPPA S/O LATE JATTEPPA,
AGE: 64 YEARS, OCC: NIL,
7. RAMAWWA W/O KALAPPA,
AGE: 59 YEARS, OCC: NIL,
2
THE APPELLANT NO.3 TO 5
ARE MINORS UNDER THE
GUARDIANSHIP OF THEIR
REAL MOTHER APPELLANT NO.1
AND ALL R/O MALCHAPUR,
TQ. BHALKI, DIST. BIDAR.
... APPELLANTS
(BY SRI SHARANABASAPPA K.BABSHETTY, ADV.)
AND:
SANGAMMA W/O
BHIMANNA ALLAMBURE,
AGE: MAJOR,
OCC: HOUSEHOLD & BUSINESS,
R/O VILLAGE VILASPUR,
TQ. & DIST. BIDAR-585 401.
... RESPONDENT
(BY SRI. RAHUL R. ASTURE, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED 24.05.2014 PASSED IN
MVC No.181/2010 ON THE FILE OF THE ADDL. DISTRICT
JUDGE, M.A.C.T BIDAR SITTING AT BHALKI, PARTLY
ALLOWING THE CLAIM PETITION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGEMENT
This appeal is filed by the petitioners under Section
173(1) of the Motor Vehicles Act (for short 'the Act')
aggrieved by the judgment and award dated 24.05.2014
passed by the Additional District Judge, Motor Accident
Claims Tribunal, Bidar sitting at Bhalki (for short
hereinafter referred to as 'the Tribunal') in MVC
No.181/2010.
2. For the sake of convenience, parties are
referred to as per their ranking before the Claims
Tribunal. Appellants are the petitioners and
respondent is the respondent before the Tribunal.
3. Facts giving rise to filing of this appeal are as
under:
On 15.11.2009 at Bidar-Bhalki Road, near water
filter acquamine, while the deceased - Vinod was
proceeding on the road on a motor cycle bearing No.KA-
38/E-2668 to return his village Malchapur, the driver of
the tractor and trolley bearing No.KA-38/F-573 and KA-
38/661 belonging to the respondent driven in a rash and
negligent manner and negligently stopped the vehicle in
the middle of the road, without giving any signal and
caused impact while the motorcycle was dashed to the
tractor. Due to the said accident, the deceased - Vinod
sustained injuries and succumbed to the injuries on the
spot. The petitioners being the legal representatives of
the deceased filed the claim petition under Section 166
of the Act seeking compensation on account of death of
Sri Vinod in the road traffic accident.
4. The respondent filed the written statement
denying the occurrence of accident, as well as the rash
and negligent driving of the driver of the offending
vehicle. It is contended that the deceased - Vinod was
negligent in riding the motor cycle in a rash and
negligent manner and he caused the accident.
Therefore, the respondent is not liable to pay the
compensation as sought by the petitioners. Hence, on
these grounds, he prayed to dismiss the claim petition.
5. The Tribunal on the basis of the pleadings of
the parties framed the issues:
6. The petitioners in support of their claim
petition examined petitioner No.1 as P.W.1 and
examined one witness as P.W.2 and got marked the
documents as Exs.P-1 to P-9. The respondent examined
as R.W.1 and affidavit of R.W.2 has filed for the similar
purpose, who treated as RW.2 and got marked the
documents as Exs.R-1 to R-6.
7. The Tribunal, after recording the evidence
and considering the material on record, allowed the
claim petition in part and awarded compensation of
Rs.1,61,500/- along with interest at the rate of 6% per
annum from the date of petition till the date of deposit.
Further held that the respondent is directed to deposit
the compensation to an extent of 25%. Further recorded
a finding that the deceased has contributed for the
cause of accident at the rate of 75% and 25% on the
respondent and directed the respondent to deposit 25%
of the total compensation amount.
8. Being dissatisfied with the compensation
awarded by the Tribunal, the petitioners/appellants have
filed this appeal seeking enhancement of the
compensation and liability.
9. Heard the learned counsel for the petitioners
and also the learned counsel for the respondent.
10. The learned counsel for the petitioners
submits that the Tribunal has committed an error in
fastening the liability to an extent of 75% on the
deceased and 25% on the respondent. He further
submits that he places reliance on the Police report,
where there was a contributory negligence on both the
deceased as well as the respondent. He submits that the
Tribunal ought to have fixed the liability to an extent of
50% each. On the contrary, fixed the liability of 75% on
the deceased and 25% on the respondent. He further
submits that the compensation awarded by the Tribunal
is on the lower side. Hence, he submits that the appeal
may be allowed and the compensation may be
enhanced.
11. Per contra, the learned counsel for the
respondent submits that the Tribunal was justified in
fastening the liability 75% on the deceased and 25% on
the respondent. He further submits that the
compensation awarded by the Tribunal is just and
proper and does not call for any interference. Hence,
she prayed to dismiss the appeal.
12. I have perused the records and considered
the submissions made by the learned counsel for the
parties. The point that arises for consideration is with
regard to quantum of compensation.
13. It is not in dispute that the deceased met
with an accident, sustained injuries and succumbed to
the injuries. In order to prove that the accident was
occurred due to rash and negligent riding of the
deceased, respondent No.1 has produced the charge
sheet marked as Ex.P-3. Ex.P-3 discloses that the
attempts are being made to attribute the accused of his
stopping the tractor, on the road, without putting any
signal, it is attributed him that on account of such
negligence he caused the accident. The respondent
examined as R.W.1 wants to attribute the deceased of
riding his motorcycle in a rash and negligent manner
and he has dashed to the tractor and he has contributed
negligence for the cause of accident. Further in order to
substantiate the contention of the respondent, the
respondent has examined one witness as RW.2, who is
the driver of the offending vehicle. He has deposed that
the deceased was riding the vehicle in a rash and
negligent manner and dashed to the tractor. The
deceased had contributed for the cause of accident. On
careful perusal of the evidence on record, the Trial Court
has recorded the finding that the deceased - Vinod was
negligent and his degree of negligence is more than the
negligence of the driver of the offending tractor and
recorded the finding that the driver of the offending
tractor with the negligence on the part of the driver of
the offending tractor would be 25% while the degree of
negligence on the part of the deceased rider of the
motor cycle would be at 75%. From the perusal of the
police papers, the driver of the tractor and trolley and
the deceased was equally negligent in the cause of
accident the degree of negligence on the part of the
both rider as well as driver of the tractor is the same.
This Court holds that the degree of negligence on the
part of the deceased rider be at 50% and the driver of
the offending tractor would be at 50%.
14. Insofar as quantum of compensation is
concerned, it is the case of the petitioners that the
deceased was carrying contract work and earning
Rs.9,000/- per month. In order to substantiate the
contention of the petitioners, the petitioners have not
produced any proof of his income. In the absence of
proof of the income, the income is taken as per the
chart provided by the Karnataka State Legal Services
Authority, the notional income will have to be taken into
consideration. In terms of the chart, for the accident of
the year 2009, the income of the deceased will have to
be taken at Rs.5,000/- as against Rs.4,500/- per month
taken by the Tribunal. To the aforesaid amount, as the
deceased was aged 35 years, 40% of the said amount
has to be added on account of future prospects in
view of the law laid down by the Constitution Bench of
the Supreme Court in the case of National
Insurance Company Limited vs. Pranay Sethi and
Others reported in AIR 2017 SC 5157. Thus, the
monthly income comes to Rs.7,000/-. Further,
deceased is having 7 dependents, 1/5th has to be
deducted out of Rs.7,000/-, it comes to Rs.5,600/-
(7,000/- - 1,400/- = 5,600/-). Therefore, the monthly
income of the deceased comes to Rs.5,600/-. Taking
into account, the age of the deceased which was 35
years at the time of accident, multiplier of '16' has to
be adopted as per the judgment of the Hon'ble
Supreme Court in the case of Sarla Verma vs. Delhi
Transport Corporation reported in (2009) 6 SCC
121. Therefore, the petitioners are entitled to a sum
of Rs.10,75,200/- (5,600 x 12 x 16) on account of
loss of dependency as against Rs.5,76,000/- awarded
by the Tribunal.
15. Further, in view of the law laid down by the
Hon'ble Supreme Court in the case of Magma General
Insurance Company Limited vs. Nanu Ram Alias
Chuhru Ram & Others reported in (2018) 18 SCC
130, each petitioners are entitled to a sum of
Rs.40,000/- towards loss of consortium. The
petitioners are 7 in number, hence the compensation
towards loss of consortium would be Rs.2,80,000/-
(40,000 x 7). In addition, the petitioners are entitled
for a sum of Rs.15,000/- towards 'funeral expenses'
and Rs.15,000/- towards of 'loss of estate'.
16. Thus, in all, the petitioner is entitled to a
sum of Rs.13,85,200/-. Since 50% of the negligence is
fixed on the deceased, petitioners are entitled to 50% of
Rs.13,85,000/- i.e., Rs.6,92,600/-.
17. In view of the above discussion, I proceed to
pass the following:
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and award
passed by the Tribunal dated is
modified.
iii. The petitioners are entitled to an
enhanced compensation of
Rs.6,92,600/- along with interest at
the rate of 6% per annum from the
date of petition till the date of
realization.
iv. The respondent is directed to deposit
the compensation amount before the
Tribunal, within a period of eight
weeks from date of the receipt of
certified copy of this judgment.
Sd/-
JUDGE
ssb
