Karnataka High Court

P Shobha @ Bhavya vs Hanumantha Reddy on 11 October, 2022

Bench: H.P.Sandesh

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 11TH DAY OF OCTOBER, 2022

                         BEFORE

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

               M.F.A.NO.1042/2014 (MV-D)
                          C/W.
               M.F.A.NO.1043/2014 (MV-D)

IN M.F.A.NO.1042/2014 (MV-D):

BETWEEN:

1.   P. SHOBHA @ BHAVYA
     W/O. LATE YELLAPPA,
     AGED ABOUT 27 YEARS

2.   MANOJ KUMAR
     S/O. LATE YELLAPPA
     AGED ABOUT 4 YEARS,

3.   NANJUNDAPPA
     S/O. LATE RAMAIAH
     AGED ABOUT 57 YEARS,

4.   JAYAMMA
     W/O. NANJUNDAPPA,
     AGED ABOUT 52 YEARS,

     ALL ARE RESIDING AT 2ND CROSS
     NEAR GOTTIGERE YELLAMMA TEMPLE
     BANNERGATTA ROAD, BENGALURU.

5.   BHUVANESH
     S/O. LATE YELLAPPA,
     AGED ABOUT 3 YEARS,
     R/AT 244, VENUGOPALNAGAR,
     HULIMAVU, BENGALURU -560 683.
                              2



       2ND AND 5TH APPELLANTS SINCE MINOR
       REPRESENTED BY HER MOTHER
       P. SHOBHA @ BHAVYA.                    ... APPELLANTS

         (BY SRI S.R.SREEPRASAD, ADVOCATE FOR
 APPELLANT NOS.1, 2 & 5 [APPELLANT NOS.2 & 5 ARE MINORS
            REPRESENTED BY APPELLANT NO.1])

AND:

1.     HANUMANTHA REDDY
       NO.7, CHOWDESHWARI LAYOUT,
       7TH MAIN, 80 FEET ROAD,
       SUBBAIHAHNAPALYA, BANASWADI,
       BENGALURU-560037.

2.     ROYAL SUNDARAM ALLIANCE
       INSURANCE CO. LIMITED
       REGIONAL OFFICE BY ITS
       REGIONAL MANAGER,
       NO. 186/7, RAGHAVENDRA COMPLEX,
       WILSON GARDEN, 1ST CROSS,
       HOSUR MAIN ROAD
       BENGALURU-560 023.

3.     V.J.M MUNIKRISHNAPPA
       S/O. SRINIVAS,
       NO.281, THIRUMAGONDANAHALLI,
       ANEKAL TALUK-561 201
       BENGALURU DISTRICT.                  ... RESPONDENTS

          (BY SRI C.R.RAVISHANKAR, ADVOCATE FOR
        SRI K.SURYANARAYANA RAO, ADVOCATE FOR R2;
               SRI S.BALAN, ADVOCATE FOR R3;
                VIDE ORDER DATED 13.01.2015,
              NOTICE TO R1 IS DISPENSED WITH)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 21.12.2012
PASSED IN MVC NO.4134/2011 ON THE FILE OF THE I ADDL.
SCJ & MACT,(SCCH-11), BENGALURU, PARTLY ALLOWING THE
                               3



CLAIM  PETITION  FOR  COMPENSATION        AND   SEEKING
ENHANCEMENT OF COMPENSATION.

IN M.F.A.NO.1043/2014 (MV-D):

BETWEEN:

1.     NAGARATHNAMMA
       W/O. LATE RAMAPPA,
       AGED ABOUT 49 YEARS,

2.     R. NARASIMHAMURTHY
       S/O. LATE RAMAPPA,
       AGED ABOUT 27 YEARS,

       BOTH ARE RESIDING AT NO.3-329,
       SRINIVAS IYENGAR STREET,
       BAGALUR, HOSUR.

3.     R. HARISH
       S/O. LATE RAMAPPA,
       AGED ABOUT 21 YEARS,
       R/AT NO.3/95, M.G. ROAD,
       FORT BAGALUR VILLAGE,
       HOSUR TALUK,
       KRISHNAGIRI DISTRICT-561201

       PRESENTLY RESIDING AT
       NO.5, 2ND CROSS, SARJAPUR,
       BENGALURU.                         ... APPELLANTS

             (BY SRI M.PRAKASHA, ADVOCATE FOR
                  SRI N.R.NAIK, ADVOCATE)
AND:

1.     HANUMANTHA REDDY
       NO.7, CHOWDESHWARI LAYOUT,
       7TH MAIN, 80 FEET ROAD,
       SUBBAIHAHNAPALYA, BANASWADI,
       BENGALURU-560037.
                                   4



2.   ROYAL SUNDARAM ALLIANCE
     INSURANCE CO. LIMITED
     REGIONAL OFFICE BY
     ITS REGIONAL MANAGER,
     NO. 186/7, RAGHAVENDRA COMPLEX,
     WILSON GARDEN, 1ST CROSS,
     HOSUR MAIN ROAD
     BENGALURU-560 023

3.   V.J.M MUNIKRISHNAPPA
     S/O. SRINIVAS,
     NO.281, THIRUMAGONDANAHALLI,
     ANEKAL TALUK-561201
     BENGALURU DISTRICT.                          ... RESPONDENTS

         (BY SRI C.R.RAVISHANKAR, ADVOCATE FOR
       SRI K.SURYANARAYANA RAO, ADVOCATE FOR R2;
               SRI S.BALAN, ADVOCATE FOR R3;
              NOTICE TO R1 IS DISPENSED WITH
               VIDE ORDER DATED 13.01.2015)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 21.12.2012
PASSED IN MVC NO.4136/2011 ON THE FILE OF THE I ADDL.
SCJ & MACT, BENGALURU (SCCH-11), PARTLY ALLOWING THE
CLAIM   PETITION    FOR   COMPENSATION   AND    SEEKING
ENHANCEMENT OF COMPENSATION

     THESE APPEALS COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

Heard the learned counsel for the appellants and learned

counsel for the respondents.

2. These two appeals are filed by the claimants

challenging the judgment and award passed in

M.V.C.Nos.4134/2011 and 4136/2011 dated 21.12.2012 on the

file of the Motor Accident Claims Tribunal, Bengaluru, (SCCH-11)

questioning the contributory negligence as well as the quantum

of compensation awarded by the Tribunal.

3. The factual matrix of the case of the claimants

before the Tribunal is that on 27.03.2011 at about 6.30 p.m.,

both the deceased were proceeding in the motorcycle as rider

and pillion rider. At that time, rider of the motorcycle bearing

No.KA-05-ES-2337 came from behind and dashed against the

motorcycle in which the deceased were proceeding. As a result,

both of them fell down. At that time, suddenly Mahindra Xylo

car bearing registration No.KA-03-MK-7652 came with high

speed in a rash and negligent manner and dashed against both

of them. As a result, both of them succumbed to the injuries

and hence, respective legal heirs have made the claim before the

Tribunal.

4. It is the claim of the claimants in their respective

claim petition that deceased Yellappa was doing Centering work

and earning Rs.12,000/- per month and the deceased Ambarish

was working as Bar Bender and earning Rs.9,000/- per month.

On account of untimely death of the deceased, the families have

lost their income.

5. In order to substantiate the claim of the claimants,

they have examined the witnesses as P.Ws.1 and 2 and got

marked the documents as Exs.P1 to P15(a). On the other hand,

the respondents have examined the witnesses as R.Ws.1 and 2

and no documents are marked by the respondents.

6. The Tribunal, after considering both oral and

documentary evidence placed on record, allowed the claim

petition in part and while awarding compensation apportioned

the contributory negligence to the extent of 70% on the rider of

the motorcycle and 30% on the driver of the xylo car. Being

aggrieved by the apportionment of contributory negligence as

well as the quantum of compensation, the present two appeals

are filed by the claimants.

7. The claimants in M.F.A.No.1043/2014 are the mother

and two children of the deceased. It is the contention of the

claimants that the Tribunal has committed an error in

apportioning the contributory negligence to such an extent and

the Tribunal has not awarded any compensation towards future

prospects. Apart from that, the Tribunal has taken the income

at Rs.4,000/- per month. Hence, it requires interference of this

Court.

8. The claimants in M.F.A.No.1042/2014 are wife, two

minor children and the parents of the deceased. It is the

contention of the claimants that the Tribunal has not awarded

just and reasonable compensation and only Rs.10,000/- is

awarded under conventional heads and income was taken only

at Rs.4,000/- per month. It is also their contention that the

Tribunal committed an error in taking the multiplier of '15'

instead of '17'. It is also the contention of the claimants in

M.V.C.No.4136/2011 that though the deceased was 22 years,

the Tribunal, instead of taking the multiplier 18, taken the

multiplier as 16. Hence, the Tribunal has committed an error.

9. Per contra, learned counsel for the respondents

would vehemently contend that the driver of the xylo car cannot

expect that two motorcyclist are going to hit each other and

driver of the xylo car was also proceeding on the very same

direction and unexpectedly, the deceased persons fell down

hitting each other and the accident has occurred and the

Tribunal has considered the said fact into consideration and

rightly apportioned the negligence at 30%. Hence, it does not

require any interference. The counsel also would submit that, in

the absence of documentary evidence, the Tribunal has rightly

taken the income at Rs.4,000/- per month and it does not

require any interference.

10. Having heard the respective counsel and also on

perusal of the material available on record in both the appeals,

the points that would arise for consideration of this Court are:

(i) Whether the Tribunal has committed an error in apportioning the contributory negligence at 30% and 70% and whether it requires interference?

      (ii)    Whether the Tribunal has committed an error
              in    not    awarding   just   and    reasonable

compensation in both the claim petition and whether it requires interference?

(iii) What order?

Point No.(i)

11. Having heard the respective counsel and also on

perusal of both oral and documentary evidence placed on record,

it is the contention of the claimants before the Tribunal that both

the deceased were proceeding in the motorcycle on 27.03.2011

at 6.30 p.m. on NH-4 of Hosur-Bengaluru Road and at that time,

the rider of the offending motorcycle came from behind and

dashed against them. As a result, both the victims fell down and

at that time, driver of the xylo car, who drove the vehicle in a

rash and negligent manner caused accident and ran over both of

them. As a result, they succumbed to the injuries.

12. In order to prove the contention of the claimants,

the first claimants in both the claim petitions have examined

themselves as P.Ws.1 and 2 and none of the eye witnesses are

examined before the Tribunal. On the other hand, the owner of

the motorcycle examined himself as R.W.1 and in his affidavit,

he has stated that he was not riding the vehicle and he has not

caused the accident and denied the accident. But, in the cross-

examination, he admits that the vehicle belongs to him. He also

admits that he has no knowledge of the registration of the case

against him and there was no policy and in the cross-

examination made by the learned counsel for respondent No.2, it

is elicited that vehicle belongs to him and he uses the very same

vehicle regularly and he is having driving license and also at the

time of the accident, he was alone. Hence, it is clear that

though he denied the accident and he was not riding the vehicle,

his admission is very clear that he was riding the motorcycle.

Hence, he has given a false evidence before the Court denying

the accident that he was not riding the vehicle. He also admits

that the police have called him and enquired with regard to the

accident. The other witness R.W.2 is the driver of the xylo car

and he also disputes the very accident. But, he admits that he

has given information to the police and also admits that charge-

sheet is filed against him. He also admits that he has not

challenged the said filing of the chare-sheet against him and that

he has not given any complaint.

13. Having considered both oral and documentary

evidence placed on record, I have already pointed out that the

P.Ws.1 and 2 are not eye witnesses but, involvement of three

vehicles in the accident is not in dispute. It is also not in dispute

that both the victims were proceeding in the motorcycle and

other motorcyclist came from behind and hit the victims. As a

result, both of them fell down and other ongoing vehicle i.e.,

xylo car ran over both the victims and as a result, they

succumbed to the injuries.

14. Having perused the evidence of R.Ws.1 and 2, they

have not approached the Court with clean hands and they have

denied the very accident. But, in the cross-examination of

R.W.1, he has categorically admitted that he was riding the

motorcycle at the time of the accident and that he was alone.

R.W.2, the owner of the xylo car also denies the accident but,

categorically admits that charge-sheet is filed against both of

them.

15. The Tribunal, while apportioning contributory

negligence on the part of the rider of the motorcycle as well as

the driver of the xylo car, in Para No.29, apart from making

discussion with regard to issue No.1, apportioned the

contributory negligence to the extent of 70% and 30% and while

coming to such a conclusion, the Tribunal has observed that

there was rash and negligence on the part of the motorcycle as

well as the driver of the xylo car but, while apportioning the

contributory negligence, while giving finding comes to the

conclusion that the Tribunal can presume that there is negligent

act on the part of the rider of the motorcycle at 70% and driver

of the xylo car at 30%. However, while arriving at such a

conclusion, not taken note of the panchanama which is marked

as Ex.P3, wherein the details of the blood stains were found on

the road has been categorically mentioned. The IMV report

which is marked as Ex.P5 also discloses that there are scratch

marks on the vehicle KA-03-MK-7652 i.e., xylo car and more

damages are caused to the motorcycle as well.

16. Having taken note of the panchanama at Ex.P3 and

also Exs.P4 and P5 and considering the damages caused to both

the vehicle, normally, heavy vehicle would sustain less damages

compared to a two wheeler. Both R.Ws.1 and 2 have not

deposed anything about contributory negligence and both of

them have totally denied the accident. When such being the

case, the Tribunal ought to have taken note of the fact that

charge-sheet is filed against both of them and involvement of

three vehicles in the accident and the damages caused to the

vehicles. When they have not come up with the evidence with

regard to the negligence on their part, the Tribunal ought to

have taken note of the filing of the charge-sheet against both

the rider of the motorcycle as well as the driver of the xylo car.

17. I have already pointed out that both the rider of the

motorcycle as well as the driver of the xylo car have contributed

to the accident on account of the negligence on their part. When

such being the case, the Tribunal, ought to have apportioned the

negligence to the extent of 50% each considering the documents

of Exs.P3 and P5. Hence, the contributory negligence is

apportioned as 50% each. Accordingly, I answer point No.(i) as

'affirmative'.

Point No.(ii)

18. In respect of the claim is concerned, in the case in

M.F.A.No.1042/2014, Ex.P8-PM report discloses the age of the

deceased as 30 years and there is no documentary evidence

contrary to the document at Ex.P8 and the Tribunal, while taking

note of the fact that the deceased was having two children,

comes to the conclusion that the deceased is more than 35 years

and the said observation is erroneous. In the absence of contra

evidence, the Tribunal ought to have taken note of PM report

which is marked as Ex.P8 which discloses the age of the

deceased as 30 years. Hence, relevant multiplier applicable is

'17' and not '16' as contended by the learned counsel for the

appellants. The accident has occurred in the year 2011 and

income taken was only Rs.4,000/- per month. In the absence of

documentary evidence, the Tribunal ought to have taken the

notional income at Rs.6,500/- per month. The Tribunal has not

awarded any compensation towards future prospects and having

taken note of the age of the deceased, 40% is to added towards

future prospects. If the same is added, the income of the

deceased would be Rs.9,100/- and out of the same, 1/4th has to

be deducted towards personal expenses and if the same is

deducted, the income of the deceased would be Rs.6,825/- per

month and applying the relevant multiplier '17', the loss of

dependency works out to Rs.13,92,300/- (6,825 x 12 x 17).

19. The claimants in M.F.A.No.1042/2014 are wife, two

children as well as the parents. Hence, they are entitled for an

amount of Rs.40,000/- each under the conventional heads which

comes to Rs.2,00,000/-. Apart from that, they are also entitled

for an amount of Rs.33,000/- on the head of loss of estate and

funeral expenses. Hence, in all, the claimants are entitled for an

amount of Rs.16,25,300/- with interest at 6% per annum as

against Rs.5,30,000/- awarded by the Tribunal.

20. In the case in M.F.A.No.1043/2014, the deceased

was aged about 22 years and Ex.P14-PM report discloses that he

was aged about 22 years and he is a bachelor and no contra

documentary evidence is produced to prove that he is aged more

than 22 years. However, the Tribunal has taken the age as 31

years and applied the multiplier of '16'. Hence, considering the

age of the deceased, multiplier '18' would be applicable. The

Tribunal has taken the income of the deceased at Rs.4,000/- per

month. In the absence of any documentary proof, the Tribunal

ought to have taken the notional income at Rs.6,500/- per

month and 40% is to be added towards future prospects which

comes to Rs.9,100/-. Since, the deceased is a bachelor, 50% is

to be deducted towards personal expenses. After deducting the

same, the notional income of the deceased would be Rs.4,550/-

per month. Taking the income at Rs.4,550/- per month and

applying the relevant multiplier '18', the loss of dependency

works out to Rs.9,82,800/- (4,550 x 12 x 18).

21. The claimants in M.F.A.No.1043/2014 are the mother

and two children. In view of the judgment of the Apex Court in

NATIONAL INSURANCE COMPANY LIMITED VS. BIRENDER

AND OTHERS reported in (2020) 11 SCC 356, the claimants

are also entitled for an amount of Rs.40,000/- each towards love

and affection which comes to Rs.1,20,000/-. Apart from that,

the claimants are also entitled for an amount of Rs.33,000/-

towards funeral expenses and loss of estate. Hence, in all, the

claimants are entitled for an amount of Rs.11,35,800/- with

interest at 6% per annum as against Rs.4,19,000/- awarded by

the Tribunal.

Point No.(iii)

22. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeals are allowed in part.

      (ii)   The impugned judgment and award of the
             Tribunal    dated     21.12.2012      passed      in
             M.V.C.No.4134/2011,       is   modified     granting

compensation of Rs.16,25,300/- as against Rs.5,30,000/- with interest at 6% per annum from the date of petition till deposit.

(iii) The impugned judgment and award of the Tribunal dated 21.12.2012 passed in M.V.C.No.4136/2011, is modified granting compensation of Rs.11,35,800/- as against Rs.4,19,000/- with interest at 6% per annum from the date of petition till deposit.


     (iv)    The contributory negligence is apportioned as
             50% each in respect of respondent Nos.2 and
             3   and    they   are     directed   to    pay   the