Karnataka High Court

Smt.Manjamma vs Muddaraju on 18 November, 2022

Bench: H.P.Sandesh

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 18TH DAY OF NOVEMBER, 2022

                        BEFORE

          THE HON'BLE MR. JUSTICE H.P. SANDESH

               M.F.A.No.2927/2013 (MV-D)


BETWEEN

1. SMT. MANJAMMA
   W/O LATE RANGANATHAPPA
   AGED ABOUT 39 YEARS

2. SRI PRAKASH K R
   S/O LATE RANGANATHAPPA
   AGED ABOUT 23 YEARS

3. PANKAJA
   D/O LATE RANGANATHAPPA
   AGED ABOUT 21 YEARS

4. NAVEENA R
   S/O LATE RANGANATHAPPA
   AGED ABOUT 19 YEARS

   ALL ARE R/O KURUDANAHALLI
   KASABA HOBLI, SIRA TALUK
   NOW R/A "MAHESHA KRUPA"
   R V COLONY, OLD B H ROAD
   TUMKUR
                                           ...APPELLANTS
(BY SRI SUNIL K N , ADVOCATE FOR
 SRI K R RAMESH, ADVOCATE)
                            2




AND


1. MUDDARAJU
   S/O BANAPPA
   AGED ABOUT 47 YEARS
   BADAVANAHALLI
   MADHUGIRI TALUK
   TUMKUR DISTRICT

2. M/S ICICI LOMBARD GENERAL
   INSURANCE CO LTD
   NO.83, S V R COMPLEX
   HOSUR ROAD
   BANGALORE-560068
                                         ... RESPONDENTS

(BY SRI B C RAJANNA, ADVOCATE FOR R1;
 SRI H N KESHAVA PRASHANTH, ADVOCATE FOR R2)


      THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT

AGAINST THE JUDGMENT AND AWARD DATED 12.02.2013

PASSED IN MVC NO.556/2008 ON THE FILE OF THE PRINCIPAL

SENIOR CIVIL JUDGE AND MACT-10, TUMKUR AND ETC.


      THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE

COURT DELIVERED THE FOLLOWING:
                                     3



                            JUDGMENT

This appeal is filed by the claimants challenging the

judgment and award dated 12.02.2013 passed in MVC

No.556/2008 on the file of the Principal Senior Civil Judge and

MACT-10, Tumkur ('the Tribunal' for short).

2. Heard the learned counsel appearing for the

respective parties.

3. The factual matrix of the case is that on 28.02.2008 at

5.00 p.m. the deceased was carrying milk cans on his TVS along

with one Narayanappa as pillion rider and the deceased was

riding the said TVS vehicle with milk cans towards Melkunte from

Kurudanahalli and at that time, the tractor and trailer came from

opposite direction and the driver of the said tractor drove the

same in a rash and negligent manner and dashed against the

said TVS vehicle and caused the accident as a result, the rider of

the TVS and pillion rider have sustained injuries and the rider of

the TVS was taken to the hospital and there he was declared as

dead. Hence, made the claim before the Tribunal stating that

the deceased was doing milk vending business and earning

Rs.12,000/- p.m. The counsel for the Insurance Company

appeared and filed the written statement contending that the

accident was occurred due to the fault of the deceased himself

hence, the question of payment of compensation does not arise.

The claimants in order to substantiate their claim examined wife

of the deceased as PW1, who lodged the complaint as PW2,

eye-witness as PW3, pillion rider of TVS as PW4 and the

Investigating Officer as PW5 and also got marked the documents

at Ex.P1 to P22. On the other hand, the respondents have

examined one witness as RW1 who is the official of the

Insurance Company and got marked the documents at Ex.R1 to

R6. The Tribunal after considering both the oral and

documentary evidence dismissed the claim petition in coming to

the conclusion that the material which discloses that the accident

was occurred due to negligence on the part of the deceased

himself hence, answered Issued No.2 as negative and not

answered the other Issues in coming to the conclusion that in

view of the finding of Issue No.2, to consider the other Issues

does not arise. Hence, the present appeal is filed.

4. The counsel appearing for the claimants would

vehemently contend that there is no dispute with regard to the

accident and the Tribunal has committed an error in coming to

the conclusion that the negligence is on the part of the rider of

the TVS and the Tribunal has committed an error in relying upon

Ex.R3 wherein it is mentioned as history of RTA caught between

two tractors, hit to a tractor which was in front (No.KA06TA-

1913) of it on 28.02.2008 at around 5.30 p.m. near Melkunte

while moving in a two wheeler TVS and the Tribunal fails to

consider the involvement of two vehicles in the alleged accident

and the reasoning given by the Tribunal is erroneous and ought

not to have comes to a conclusion that the accident was

occurred solely on account of negligence on the part of the

deceased. The counsel also brought to notice of the sketch

which discloses that both the vehicles were moving in an

opposite direction and the alleged accident was occurred and on

perusal of Ex.P3 also it discloses that the tractor trailer came in

a curve road and hit the TVS and the very dismissal of the claim

petition is erroneous. Hence, it requires interference.

5. Per contra, the learned counsel for respondent No.2-

Insurance Company has brought to the notice of this Court, the

discussions made by the Tribunal in paragraph Nos.11 to 18,

wherein it is clearly discussed with regard to the manner in

which the accident was taken place and also taken note of

Ex.R3- MLC record which has been discussed in detail and come

to the conclusion that the accident in question had taken place

due to the negligence on the part of the deceased himself.

Hence, no grounds are made out for interference with the

findings.

6. Having heard the arguments of the respective

learned counsel and on perusal of the material available on

record, the points that would arise for consideration of this Court

are:

(i) Whether the Tribunal has committed an error in dismissing the claim petition, coming to the conclusion that the accident was occurred due to the negligence on the part of the deceased himself?

(ii) Whether the Tribunal has committed an error in quantifying the compensation while answering issue No.3?

(iii) To what order?

Point No.(i):

7. Having heard the respective counsel and on perusal

of the material available on record, there is no dispute with

regard to the involvement of vehicles in the accident and also

the complaint given by PW.2 immediately after the accident i.e.,

on the next day 29.02.2008. The accident was occurred on

28.02.2008 at 5.00 p.m., when the deceased was carrying milk

cans on his TVS moped along with one Narayanappa as pillion

rider of the deceased at the time of the accident. The wife of the

deceased is not an eye witness examined as PW.1.

Hulikuntappa, who is the complainant, but not an eye witness,

was examined as P.W.2. Narayanappa, the pillion rider, was also

examined before the Trial Court as PW.4, reiterated the contents

of the complaint and was subjected to cross examination. In the

cross examination of PW.4, it is elicited that when they were

proceeding on TVS moped, no other vehicles were coming

behind their vehicle. It is suggested that when they were

carrying milk can in the TVS, the rider i.e., the deceased lost

balance of the said vehicle and the said suggestion was denied

by him. It is elicited that, he took the treatment in the

Government hospital and said treatment was free treatment.

PW.3- Jayaramaiah also claim that he took the injured to the

hospital. PW.5- Sri. G.S.Gajendra Prasad, who is the

Investigating Officer, in his evidence stated that the case was

registered by him and conducted the spot panchanama,

investigated the matter and filed the charge sheet. He was

subjected to cross examination and he admits that Narayanappa

has not given any complaint and in the cross examination, he

stated that he does not know what happened in the criminal case

and also not aware whether he has given evidence and nothing

is suggested in the cross examination that there was no

negligence on the part of the driver of the Tractor-Trailer.

However, a suggestion was made that a false case was

registered against him and the same was denied.

8. On the other hand, respondent No.2-Insurance

company got examined only one witness i.e., official witness and

in the evidence, it claims that there is no involvement of the

vehicle in the accident. In cross examination a suggestion was

made that he is giving false evidence before the Court that the

driver was not having driving license and the said suggestion

was denied. It is also suggested that he has falsely deposed

that the accident was occurred due to the negligence on the part

of the rider of TVS moped and the said suggestion was also

denied.

9. Having considered the material available on record

and particularly Ex.R.2- D.L extract and also relying upon the

document Ex.R.3, it is seen that the driver was having driving

license from 10.04.1992 to 08.01.2024 in respect of LMV(N/T).

The Tribunal also mainly concentrated on the document Ex.R3-

MLC record, having considered MLC which came in existence

immediately after the accident. It is stated in the MLC record

that, "history of RTA, caught between two tractors, hit to a

tractor which was in front of it on 28.08.2008 at about 5.30 p.m

near melekunte while moving on a two-wheeler". Hence, it is

clear that the accident was occurred between two-wheeler and

the tractor. The Tribunal has concentrated with regard to

mentioning of hit to a tractor and comes to a conclusion that the

accident was occurred only on account of exclusive negligence

on the part of the driver and the very finding of the Tribunal is

erroneous when two vehicles are involved in the accident and

the Tractor-Trailer driver was not examined and he ought to

have been examined as to know how the accident occurred by

exclusive negligence on the part of the deceased himself and no

such evidence before the Court, instead the Tribunal mainly

relied on Ex.R3 and failed to take note of Ex.P.3 -spot sketch

which clearly discloses that tractor came in the opposite direction

that too in a curve road and accident was occurred immediately

after the completion of the curve road and also sketch discloses

the TVS which came in the opposite road also almost entering

the curve road and the accident spot also discloses the TVS rider

also proceeding in the middle of the road.

10. When such being the case, the Tribunal ought to

have apportioned the negligence on the part of both the vehicles

and the same is not been done. Instead by relying upon the

document Ex.R3 comes to an erroneous conclusion that the

accident was occurred solely on account of negligence on the

part of the deceased himself and dismissed the appeal without

apportioning the negligence appropriately. Hence, having

considered the material available on record in the absence of

evidence of driver of Tractor-Trailer and also the Investigating

Officer, who had spoken about the negligence on the part of the

driver of Tractor-trailer, it is appropriate to consider 30% of

negligence on the part of the deceased and 70% of negligence

on the part of the driver of the Tractor-trailer. Hence, issue No.2

answered by the Tribunal is modified, coming to the conclusion

that there is contributory negligence to the extent of apportioned

above and I answer point No.(i) accordingly.

Point No.(ii):

11. With regard to the quantum of compensation is

concerned, I have already pointed out that the Tribunal has

answered issue no.2 in the negative and has not considered the

matter regarding quantum of compensation. Even though, the

compensation is not quantified, the Court can quantify the

compensation. The accident of the year 2008 and the notional

income is taken at Rs.4,500/-p.m. The learned counsel

appearing for the claimant mainly relies upon the document

Ex.P7- cards issued by Milk producers Co-operative Society and

those cards pertain to the deceased Ranganatha dated

1.11.2007, 1.01.2008 and 1.12.2007. On perusal of these

documents it reflects the supply of milk and its quantity. In

respect of proving the same, the Tribunal also examined one

witness PW.3- who is a Secretary of Milk producers Co-operative

Society and in his evidence, it is stated that the deceased was

supplying milk for last ten years and he used to supply 35 liters

every day. He was earning Rs.13,860/- by supplying the milk.

He was subjected to cross examination and in the cross

examination, he admits that while supplying the cards they used

to mention the card number, but he claims that in their Society

they have not given any number and also he claims that there

were 45 persons supplying milk, they have not given any

numbers to them and making the payment of Rs.13/- to Rs.20/-

per liter. He claims that they were paying an amount of

Rs.13,860/-, but no such documents are produced before the

Court except Ex.P7. In the absence of documentary evidence

with regard to payment is concerned and only Ex.P7- cards are

produced to show regarding supplying of milk, but for having

paid the amount no document is placed, under these

circumstances, it is appropriate to rely upon only on the notional

income. Having taken the income of Rs.4,500/-, as the

deceased was aged 35 years as per Post Mortem report, 40%

has to be added towards future prospectus, hence, it comes to

Rs.6,300/- (Rs.4,500X40%). The claimants are wife, children

and parents of the deceased, hence, 1/4th has to be deducted

towards personal expenses, after deducting 1/4th towards

personal expenses, it comes to Rs.4,725/- and applying

multiplier at 16, the loss of dependency would be

Rs.9,07,200/- (Rs.4,725 X12X16).

12. The learned counsel for the claimants submits that

the mother of the deceased passed away during the pendency of

the claim petition, hence, the claimants are only four in number

and they are the wife and children of the deceased and they

have lost love and affection of the deceased and hence, they are

entitled for Rs.1,60,000/- (40,000X4) towards love and affection

and apart from that the claimants are entitled for Rs.33,000/- on

the head of estate and funeral expenses. The claimants are

entitled for the compensation in all Rs.11,00,200/-. Out of this

amount, this Court has apportioned 30% negligence on the part

of the deceased which has to be deducted, then it comes to

Rs.7,70,140/-(Rs.11,00,200 - Rs.3,30,060). Hence, in all the

claimants are entitled for the compensation of Rs.7,70,140/-.

Point No.(iii)

13. In view of the discussion made above, I pass the

following:

ORDER

The appeal is allowed in-part.

The impugned judgment and award of the Tribunal dated 12.02.2013 passed in M.V.C.No.556/2008 is set aside and taken

contributory negligence to the extent of 30% on the part of the deceased and 70% negligence against the respondents and quantified the compensation of Rs.7,70,140/-(Rs.11,00,200 - 3,30,060) with interest at 6% per annum from the date of petition till deposit.

The respondent No.2 -Insurance Company is directed to pay the compensation amount with interest within six weeks from today.

The compensation is apportioned to the claimants i.e., to the wife of the deceased (appellant No.1) to the extent of 40% and to the children of the deceased (appellant Nos.2 to 4) to the extent of 20% each.