Karnataka High Court

Sri M C Narasareddy vs Smt M G Padma on 18 August, 2023

Bench: T G Gowda

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                                                                     NC: 2023:KHC:29552
                                                                      MFA No. 3797/2017




                                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                   DATED THIS THE 18TH DAY OF AUGUST, 2023

                                                    BEFORE
                           THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
                                         MFA NO. 3797 OF 2017 (MV-D)
                           BETWEEN:

                           1.      SRI M C NARASAREDDY
                                   S/O CHIKKANARASIMHAIAH
                                   AGE:66 YEARS,OCC:NIL

                           2.      SMT SHUBHAVATHAMMA
                                   W/O RAMACHANDRAPPA
                                   AGE:49 YEARS, OCC:NIL
                                   R/O AJWARA VILLAGE,
                                   CHIKKABALLAPURA DISTRICT

                           3.      SRI A N PRAKASHKUMARA
                                   S/O SRI M C NARASAREDDY
                                   AGE:43 YEARS, OCC:AGRICULTURE

                           4.      M N CHANDRASHEKHARA
                                   S/O SRI M C NARASAREDDY
                                   AGE:46 YEARS,OCC:AGRICULTURE
                                   CHIKKABALLAPURA TOWN
                                   CHIKKABALLAPURA-562 101
Digitally signed by MALA
KN                         5.      SMT LAKSHMIKANTAMMA
Location: HIGH COURT               W/O NAGARAJU, AGE:43 YEARS
OF KARNATAKA
                                   OCC:NIL, R/O NO.195, SOPPINPETE
                                   RIGHT SIDE HOUSES, GUDIBANDE
                                   CHIKKABALLAPURA-561 209

                                   APPELLANTS NO. 1 AND 3 ARE R/AT
                                   NO.4, MALLIGURKI, BAGEPALLI
                                   CHIKKABALLAPUR - 561 207
                                                                       ...APPELLANTS
                           (BY SRI. SURESH M LATUR., ADV.)
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                                           NC: 2023:KHC:29552
                                            MFA No. 3797/2017




AND:

1.     SMT M G PADMA
       R/O NO.5, 3RD CROSS, ANNAYAPPA BLOCK,
       KUMARAPARK WEST, BENGALURU-560 020

2.     THE REGIONAL MANAGER
       UNITED INDIA INS.CO.LTD.,
       5TH & 6TH FLOOR,KRISHI BHAVAN
       NRUPATHUNGA ROAD,
       HUDSON CIRCLE,BANGALORE-01
                                           ...RESPONDENTS
(BY SRI.S. KRISHNA KISHORE, ADV. FOR R2;
    R1 SERVICE OF NOTICE DISPENSED
    WITH VIDE ORDER DATED 24.01.2020)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 27.01.2017
PASSED IN MVC NO.839/2016     ON THE FILE OF THE II
ADDITIONAL SMALL CAUSES JUDGE AND XXVIII ACMM,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION     AND    SEEKING    ENHANCEMENT     OF
COMPENSATION.

     THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 04.08.2022 AND COMING        ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                      JUDGMENT

In this appeal, the petitioners have challenged

the judgment dated 27.01.2017 passed in

M.V.C.No.839/2016 by the M.A.C.T., Bengaluru

(SCCH-13) ('the Tribunal' in short).

NC: 2023:KHC:29552 MFA No. 3797/2017

2. For the sake of convenience, the rank of the

parties shall be referred to as per their status before

the Tribunal.

3. Brief facts of the case are, wife of petitioner

No.1, mother of petitioner Nos.2 to 4 Smt.Nanjamma,

the deceased, met with an accident on 25.10.2015 at

about 11.00 a.m., while she was crossing the road on

N.H.7, Chikkaballapura-Bagepalli Road near Diguru

Cross, Adennagarhalli village, hit by a Qualis car

bearing No.KA-05/MC-2221 causing her injuries. She

was treated at Government Hospital, Chikkaballapura,

when she was brought to M.S.Ramaiah Hospital,

Bengaluru for higher treatment, she was declared

brought dead. The petitioners have moved the

Tribunal seeking compensation. The claim was

opposed by the Insurance Company. After taking the

evidence, the Tribunal recorded its finding that the

petitioners are entitled for only loss of estate apart

from compensation under conventional heads and also

NC: 2023:KHC:29552 MFA No. 3797/2017

attributed 10% negligence against the deceased and

assessed the compensation of Rs.2,48,000/-, out of

which, 90% was directed to be paid by the

respondents. Aggrieved by the same, the petitioners

have filed this appeal on various grounds.

4. Heard the arguments of Sri.Suresh M.Latur,

learned counsel for the appellants/petitioners and

Sri.S.Krishna Kishore, learned counsel for the

Insurance Company.

5. It is the contention of the learned counsel for

the petitioners that first petitioner is the husband, who

is aged 65 years and he is dependent on his wife. The

Tribunal is not correct in holding that he is not the

dependent on his wife. The compensation was not

assessed properly on the conventional heads, so also,

income assessed by the Tribunal is on the lower side.

When the deceased was crossing the road, duty cast

on the driver to be more cautious. There is no

negligence on the part of the deceased and attribution

NC: 2023:KHC:29552 MFA No. 3797/2017

of 10% of contributory negligence on her part is not

correct. In support of his contentions, he has relied

upon the judgment of the Hon'ble Supreme Court in

the case of Kiran -vs- Sajjan Singh and Others -

2014 ACJ 2550 (SC) and also judgment of Division

Bench of this court in A.Anandan -vs- Abdul Azeez

and Others - 2004 ACJ 1901.

6. Per contra, learned counsel for the Insurance

Company has contended that the deceased was aged

65 years, without observing the incoming traffic, she

has crossed the National Highway, thereby she has

contributed fully for the accident the Tribunal is not

proper in attributing only 10% instead of 50%. The

petitioner Nos.2 to 5 are married children, having

independent income, they are not the dependants of

the deceased, so also the first petitioner/husband. The

Tribunal is right in taking 50% dependency as loss of

estate for non-dependent petitioners and he supported

the impugned judgment.

NC: 2023:KHC:29552 MFA No. 3797/2017

7. I have given my anxious consideration to the

arguments advanced on behalf of both parties and also

perused the materials on record.

8. There is no dispute as to the accident, cause of

accident, death of deceased and the relationship

between the petitioners and the deceased. As rightly

contended by the learned counsel for the Insurance

Company, the petitioner Nos.2 and 5 being the married

daughters and petitioner Nos.3 and 4 being married

sons, earning on their own, they are not the

dependants of the deceased. First petitioner is the

husband of deceased. Learned counsel for the

petitioners is right in arguing that being a husband he

is dependant on his wife. The material on record did

point out that on the date of accident, deceased and

first petitioner were residing together and they are

dependent on each other and therefore, the first

petitioner being the husband is dependent and hence,

NC: 2023:KHC:29552 MFA No. 3797/2017

the petitioners together are entitled to claim loss of

dependency instead of loss of estate. Therefore, the

finding recorded by the Tribunal that the petitioners

are entitled only to loss of estate is not proper. They

are entitled to loss of estate under conventional heads

and independently to claim loss of dependency.

9. Petitioners claim that the age of the deceased

was 60 years when the accident took place.

Ex.P8/Election ID Card of the deceased points out that

the deceased was aged 53 years as on 01.01.2003. In

the year 2015, 12 years has to be added, then the age

of the deceased will come to 65 and therefore,

selection of multiplier shall be on the correct age of the

deceased. The Tribunal has assessed Rs.6,000/- as

the notional income of the deceased. The material on

record would point out that the deceased and her

husband were doing agriculture and earning money.

In the year 2015, the notional income for a person

with no proof of income is assessed at Rs.8,500/- per

NC: 2023:KHC:29552 MFA No. 3797/2017

month. Since the age of the deceased was 65, there is

no question of adding future prospects.

10. In a case of this nature, the principles of

National Insurance Co.Ltd. -vs- Pranay Sethi

and for selection of multiplier, the principles of Sarla

Varma (Smt.) and Others -vs- Delhi Transport

Corporation and Another1, have to be applied for

determining the compensation. As discussed above,

notional income of the deceased in the year 2015 was

Rs.8,500/-, she had a dependent husband. Hence,

Rs.2,833/- (1/3rd) has to be excluded towards personal

expenses. Then the income comes to Rs.5,667/- x 12

x 7 applicable multiplier = Rs.4,76,028/-. The

petitioners being the husband and children of deceased

are entitled to compensation towards loss of love and

affection at Rs.40,000/- each, in all Rs.2,00,000/-.

Towards loss of estate Rs.15,000/- and Rs.15,000/-

towards funeral expenses, in all Rs.7,06,028/- as

against Rs.2,48,000/- assessed by the Tribunal.

(2009) 6 SCC 121

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11. Adverting to contributory negligence of the

deceased is concerned, in Kiran's case (supra), the

Hon'ble Apex Court held at para-13 as under:

"13. With regard to the apportionment of contributory negligence at 25 percent on the part of the appellant-father and 75 percent on the driver of the offending tractor as determined by the High court, we refer to the judgement of this court in jiju kuruvila v. kunjujamma mohan, 2013 ACJ 2141 (SC), as it is applicable to facts of the case on hand. In the above case, Joy Kuruvila (the deceased) had a head-on collision with a bus approaching from the opposite side. Joy Kuruvila sustained serious injuries and died on the way to hospital. The Tribunal found that the accident occurred due to rash and negligent driving of the bus driver. It apportioned the contributory negligence between the driver and the deceased in the ratio of 75:25. On the basis of the pleadings and evidence on record, in the above said case, this court has held thus on the negligence of the driver of the bus:

(24) The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and their direction, etc. depends on a number of factors like the speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident occurred, but in absence of any direct or corroborative evidence, no

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conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, court cannot give any specific finding about negligence on the part of any individual.

(25) Post-mortem report, Exh. A5, shows the condition of the deceased at the time of death. the said report reflects that the deceased had already taken meal and his stomach was half-full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit.

(26) The aforesaid evidence, Exh. A5, clearly suggests that deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of the accident. The mere suspicion based on the 'Scene mahazar', , Exh. B2, and the post-mortem report, Exh. A5, cannot take the place of evidence, particularly when the direct evidence like independent eyewitness. PW 3, F.I.R., Exh. A1, charge-sheet. Exh. 4, and F.I. statement, Exh. B1, are on record."

The observations made by this court in the case of Jiju Kuruvila (supra) surely apply to the fact situation on hand. Upon thorough examination of the facts and legal evidence on record in the present case, it cannot be said that the appellant- father was rash and negligent just on the assumption made by the Tribunal that the collision occurred in the middle of the road since the two vehicles were approaching from opposite directions of the road. However, the only aspect of the case on hand that we can reasonably assume is that appellant-father would have taken

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sufficient caution while riding the motor cycle since he was travelling with his two minor children (appellant-minors). Further, upon examining the evidence produced on record, there is no proof showing negligence on the part of the appellant-father. Thus in our view, the contributory negligence apportioned by the High Court at 25 per cent on the appellant-father and 75 per cent on the driver of the offending tractor is erroneous keeping in view the legal principles laid down by this court on this aspect in the above referred case. Thus, we are of the firm conclusion that negligence is wholly on the part of the driver of the offending tractor since he was driving the heavier vehicle. therefore, we set aside the 25 percent contributory negligence on the part of the appellant-father as apportioned by the High court."

12. In Anandan's case (supra), the Division

Bench of this Court at para-10 of the judgment laid

down as follows:

"10. Let us first advert to the contention of the learned Counsel for the appellant with regard to the finding recorded by the MACT on the issue relating to actionable negligence and apportioning the blame to an extent of 20% to the appellant-claimant. As already pointed out that although the owner was served with notice, he did not put in appearance and contest the claim. Though the Insurance Company chose to file the written statement, it did not examine the owner-cum-driver of the motor-cycle or adduce any other rebuttal evidence before the MACT. As it could be seen from the written statement, it is not the case of the 2nd respondent-Insurance Company that the accident took place on account of

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NC: 2023:KHC:29552 MFA No. 3797/2017

negligence on the part of the owner-cum-driver of the motor-cycle as well as the appellant. It is true that even in the absence of such plea in the written statement, if the facts established by the evidence could possibly lead to an inference that the claimant also contributed negligence in causing the accident, the MACT may be justified in recording a finding of contributory negligence against the claimant also. The question is whether the evidence led before the MACT would warrant drawing of such inference against the claimant."

13. In view of the law laid down by the Hon'ble

Apex Court and also Division Bench of this Court, in

order to attribute contributory negligence, there must

be a pleading and proof. Here in this case, though the

Insurance Company pleaded that the accident was due

to negligence on the part of the deceased, the

evidence did not point out the same. The accident

took place in a National Highway where the roads will

be very straight and wide. If a pedestrian to cross the

road, there is enough space for the vehicles to avoid

hitting against the pedestrian crossing the road. In the

instant case, the driver of the vehicle has not been

examined before the Tribunal to explain how the

accident had taken place and there is no evidence on

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behalf of the Insurance Company also to explain

contribution made by the deceased and what were the

circumstances that prevailed the driver of the vehicle

in not avoiding the accident. In the absence of any

proof of evidence, mere plea of 65 years old lady

crossing the road is not the evidence and it is the

driver of the vehicle, who has to take care of crossing

of any pedestrian or animals on the National Highway.

The deceased was an aged lady and it cannot be said

that she has all of a sudden ran on the National

Highway to put her life in risk. Hence, the finding

recorded by the Tribunal in attributing 10%

contributory negligence is not based on the evidence.

Negligence cannot be attributed merely on assumption

and presumption. Hence, the order of the Tribunal

needs modification.

14. As discussed above, the petitioners are

entitled to claim loss of income due to dependency and

complete negligence on the part of the driver of the

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vehicle. Accordingly, the appeal deserves to be

allowed. In the result, the following:

ORDER

(i) The appeal is allowed in part.

(ii) The impugned judgment is modified

accordingly.

(iii) The appellants/petitioners are entitled for

compensation of Rs.7,06,028/- instead of

Rs.2,48,000/- with interest at the rate of

6% per annum on the enhanced

compensation from the date of petition till

its realization.