Karnataka High Court
Chaitanya And Anr vs Iqbal And Anr on 15 April, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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MFA No.201942 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE K V ARAVIND
MISCL. FIRST APPEAL NO.201942 OF 2022 (MV-D)
BETWEEN:
1. CHAITANYA
D/O VEERAYYA @ VIRAYYA
AGE: 26 YEARS
OCC: STUDENT
R/O KARADKAL VILLAGE
TQ: LINGASUGUR, DIST. RIACHUR.
NOW RESIDING AT
NIJALINGAPPA COLONY
RAICHUR - 585 401.
Digitally signed by 2. MAMATA
BASALINGAPPA
SHIVARAJ D/O VEERAYYA @ VIRAYYA
DHUTTARGAON AGE: 25 YEARS
Location: High
Court Of Karnataka OCC: STUDENT
R/O KARADKAL VILLAGE
TQ: LINGASUGUR, DIST: RAICHUR
NOW RESIDING AT
NIJALINGAPPA COLONY
RAICHUR - 585 401.
...APPELLANTS
(BY SRI BABU H.METAGUDDA, ADVOCATE)
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MFA No.201942 of 2022
AND:
1. IQBAL
S/O MOHD. HANEEF
AGE: MAJOR
OCC: BUSINESS
R/O PLOT NO.12, SHIVALINGA NAGAR
BELLARY, DIST - 585 102.
2. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
NEAR GANDHI CHOWK
RAICHUR - 585 401.
...RESPONDENTS
(BY SRI SHIVANAND PATIL, ADVOCATE FOR R2;
V/O DATED 10.01.2023 NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS
IN M.V.C. NO.499/2015 ON THE FILE OF THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE AT RAICHUR AND ALLOW
THIS APPEAL AND MODIFY THE JUDGMENT AND AWARD DATED
23-03-2017 PASSED IN M.V.C. NO.499/2015 BY THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE AT RAICHUR
AND ENHANCING THE COMPENSATION FROM RS.5,85,000/-
WITH 6 % INTEREST TO RS.1,50,00,000/- WITH 12 %
INTEREST AND ETC.
THIS MFA COMING ON FOR ADMISSION THIS DAY
H.T.NARENDRA PRASAD J., DELIVERED THE FOLLOWING:
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MFA No.201942 of 2022
JUDGMENT
1. This appeal under Section 173(1) of the Motor
Vehicles Act, 1988 (hereinafter referred to as 'the Act', for
short) has been filed by the claimants being aggrieved by
the judgment and award dated 23.03.2017 passed by the
II Addl. District & Sessions Judge, Raichur in MVC
No.499/2015.
2. Facts giving rise to the filing of the appeal briefly
stated are that on 09.02.2014, when the deceased
Gurumurthy was proceeding on motorcycle bearing
registration No.KA-36-EB-4696, at that time, near
Gopalpuram Camp, Bellary on Sirguppa-Bellary road, the
driver of the lorry bearing registration No.MEK 9593 came
from Sirguppa towards Bellary in a rash and negligent
manner and dashed against the motorcycle of the
deceased. As a result of the aforesaid accident, the
deceased sustained grievous injuries and succumbed to
the injuries.
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3. The claimants filed a petition under Section 166 of
the Act seeking compensation for the death of the
deceased along with interest.
4. On service of summons, the respondent No.2
appeared through counsel and filed written statement
denying the averments made in the claim petition. The
respondent No.1 did not appear before the Tribunal inspite
of service of notice and hence was placed ex-parte.
5. On the basis of the pleadings of the parties, the
Claims Tribunal framed the issues and thereafter recorded
the evidence. The claimants, in order to prove the case,
examined claimant No.1 as PW-1 and another witness as
PW-2 and got exhibited documents namely Ex.P1 to
Ex.P13. On behalf of respondents, no witness was
examined but got exhibited one document namely Ex.R1.
The Claims Tribunal, by the impugned judgment, inter
alia, held that the accident took place on account of
contributory negligence on the part of driver of the lorry
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and on the part of the deceased and they have contributed
to the accident equally. The Tribunal further held that
after deducting 50% negligence on the part of the
deceased, the claimants are entitled to a compensation of
Rs.5,85,000/- along with interest at the rate of 6% p.a.
and directed the Insurance Company to deposit the said
compensation amount along with interest. Being
aggrieved, this appeal has been filed.
6. The learned counsel for the claimants has raised the
following contentions:
NEGLIGENCE:
The accident occurred due to rash and negligent
driving of the lorry by its driver. The driver of the lorry
came in a rash and negligent manner and dashed against
the motorcycle of the deceased which was coming in the
opposite direction. On the basis of the complaint, the
police have registered FIR against the driver of the lorry
and after thorough investigation have filed charge sheet
against the driver of the lorry. As per crime details Form
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Ex.P-3, IMV report Ex.P-5 and charge sheet Ex.P-6, it is
very clear that the driver of the lorry was negligent in
causing the accident. The Tribunal is not justified in
holding that the deceased/rider of the motorcycle has
contributed to the accident to the extent of 50%.
QUANTUM OF COMPENSATION
a) Firstly, the claimants claim that the deceased was
aged about 26 years at the time of the accident and he
was running a business in the name and style
'M/s.Computer Sales and Service' and was earning
Rs.198,000/- per annum. But the Tribunal is not justified
in taking the monthly income of the deceased as merely as
Rs.10,000/-.
b) Secondly, as per the law laid down by the Hon'ble
Supreme Court in the case of NATIONAL INSURANCE
CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017
SC 5157], in case the deceased was self-employed or on
a fixed salary, an addition of 40% of the established
income towards 'future prospects' should be the warrant
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where the deceased was below the age of 40 years. The
Tribunal has failed to consider the same.
c) Thirdly, the claimant Nos.3 and 4 are the unmarried
sisters of the deceased and studying and they were
entirely depending on the income of the deceased for their
education and marriage prospects. Claimant Nos.1 and 2
are the parents of the deceased and they were also
entirely depending on the income of the deceased. Since,
all the claimants are entirely depending on the income of
the deceased, the Tribunal is not justified in deducting
50% of the income of the deceased towards personal
expenses and ought to have deducted only 1/3rd of the
income.
d) Lastly, considering the age and avocation of the
deceased, the overall compensation awarded by the
Tribunal is on the lower side. Hence, he prays for allowing
the appeal.
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7. On the other hand, the learned counsel for the
Insurance Company has raised the following counter-
contentions:
NEGLIGENCE:
The accident has occurred due to the negligence of
the driver of the lorry as well as the rider of the
motorcycle/deceased. The deceased while trying to
overtake another vehicle came to the extreme right side of
the road and dashed to the lorry, which was coming in the
opposite direction. Due to the impact, the deceased fell
down and sustained grievous injuries and succumbed to
the injuries. It is very clear from the crime details
form/mahazar produced at Ex.P-3 that the deceased was
riding his motorcycle to the extreme right side of the road
and dashed to the lorry and fell down and succumbed to
injuries. As per Ex.P-7, IMV report, it was a head on
collusion between the two vehicles and therefore, both the
deceased and driver of the lorry have equally contributed
to the accident. The Tribunal considering the materials
available on record has rightly held that the
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deceased/rider of the motorcycle and driver of the lorry
have equally contributed to the accident to the extent of
50% each.
QUANTUM OF COMPENSATION
a) Firstly, even though the claimants claim that the
deceased was earning Rs.198,000/- per annum, the same
is not established by the claimants by producing
documents. Therefore, the Tribunal has rightly assessed
the income of the deceased notionally.
b) Secondly, since the claimants have not established
the income of the deceased, they are not entitled for
compensation towards 'future prospects'.
c) Thirdly, since the deceased was a bachelor, the
Tribunal has rightly deducted 50% of the income of the
deceased towards personal expenses.
d) Fourthly, on appreciation of oral and documentary
evidence and considering the age and avocation of the
deceased, the overall compensation awarded by the
Tribunal is just and reasonable. Hence, he prays for
dismissal of the appeal.
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8. Heard the learned counsel for the parties. Perused
the judgment and award of the Tribunal and original
records.
NEGLIGENCE:
9. The specific case of the claimants is that on
09.02.2014, when the deceased Gurumurthy was
proceeding on motorcycle bearing registration No.KA-36-
EB-4696, at that time, near Gopalpuram Camp, Bellary on
Sirguppa-Bellary road, the driver of the lorry bearing
registration No.MEK 9593 came from Sirguppa towards
Bellary in a rash and negligent manner and dashed against
the motorcycle of the deceased. As a result of the
aforesaid accident, the deceased sustained grievous
injuries and succumbed to the injuries.
10. The claimants in order to prove their case have
documents. The respondent, Insurance Company has not
examined any witness, but produced insurance policy copy
at Ex.R-1.
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11. Under the Motor Vehicles Act in the claim petition
before the Claims Tribunal the standard of proof is much
below than what is required in a criminal case as well as in
the civil case. No doubt, before the Tribunal, there must
be some material on the basis of which the Tribunal can
arrive or decide things necessary to decide for awarding
compensation, but the Tribunal is not expected to take or
to adopt a nicety of a civil or criminal case. After all it is a
summary enquiry and it is the legislation for the welfare of
the Society. The proceedings under the Motor Vehicles Act
are not akin to the proceedings under civil rules. Hence,
strict rules of evidence are not required to be followed in
this regard. In the case of MANGLA RAM -v- ORIENTAL
INSURANCE COMPANY LIMITED (2018) 5 SCC 656,
the Hon'ble Apex Court has held as hereinbelow:
"25. In Dulcina Fernandes, this Court
examined similar situation where the evidence
of claimant's eyewitness was discarded by the
Tribunal and that the respondent in that case
was acquitted in the criminal case concerning
the accident. This Court, however, opined that
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it cannot be overlooked that upon investigation
of the case registered against the respondent,
prima facie, materials showing negligence were
found to put him on trial. The Court restated
the settled principle that the evidence of the
claimants ought to be examined by the Tribunal
on the touchstone of preponderance of
probability and certainly the standard of proof
beyond reasonable doubt could not have been
applied."
12. PW-1 in his evidence has reiterated the averments
made in the claim petition. Immediately after the accident,
compliant has lodged as per Ex.P-1. The police have
registered FIR as per Ex.P-2 against the driver of the lorry
and after investigation, police have filed charge sheet as
per Ex.P-6 against the driver of the lorry. As per Ex.P-3,
Crime Details Form, the Sirguppa-Bellary road runs from
North to South. Sirguppa is to the North and Bellary is to
the South. The width of the road, where the accident took
place is 21 feet from East to West. The lorry was moving
from North to South and the motorcycle was moving on
the opposite direction from South to North. The accident
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spot is 7 feet away from eastern edge and 14 feet away
from western edge. Therefore, it is very clear that the
rider of the motorcycle has gone to the extreme right side
of the road while overtaking another vehicle. As per IMV
report, the front portion of the vehicle has been damaged.
Therefore, it is clear that the driver of the lorry was also
coming at a high speed and in a rash and negligent
manner and he has not made any effort to control the
vehicle and avoid the accident.
Therefore, taking into consideration the evidence of
PW-1 and documents namely complaint (Ex.P-1), FIR
(Ex.P-2) Crime Details Form (Ex.P-3), IMV report (Ex.P-5)
and charge sheet (Ex.P-6) and also taking into
consideration the magnitude or size of the vehicles and the
impact caused due to the accident, this Court is of the
opinion that the accident has occurred due to contributory
negligence on part of the driver of the lorry as well as the
deceased. It is held that the deceased has contributed to
the accident to the extent of 25% and the driver of the
lorry has contributed to the accident to the extent of 75%.
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Hence, the finding of the Tribunal on issue No.1 with
regard to negligence is modified to the said extent.
REGARDING QUANTUM OF COMPENSATION:
13. The claimants claim that deceased was earning
Rs.198,000/- per annum by running a business in the
name and style as 'M/s.Computer Sales and Services'''.
But they have not produced any documents such as bank
statement or Income Tax Returns to prove the income of
the deceased. In the absence of proof of income, the
notional income has to be assessed. The Tribunal
considering the evidence of PW-1, age and nature of
business of the deceased has rightly taken the notional
income of the deceased as Rs.10,000/- p.m. To the
aforesaid income, 40% 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 'PRANAY
SETHI' (supra). Thus, the monthly income comes to
Rs.14,000/-.
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There are four claimants. Claimant Nos.3 and 4 are
the unmarried sisters of the deceased and studying and
they were entirely depending on the income of the
deceased for their education and marriage prospects;
claimant Nos.1 and 2 are the parents of the deceased and
they were also entirely depending on the income of the
deceased. Even though the deceased was a bachelor at
the time of accident, since all the claimants are entirely
depending on the income of the deceased, it is appropriate
to deduct 1/3rd of the income of the deceased towards
personal expenses instead of 50% deducted by the
Tribunal.
The deceased was aged about 26 years at the time of
the accident and multiplier applicable to his age group is
'17'. Thus, the claimants are entitled to compensation of
Rs.19,04,000/- (Rs.14,000*12*17*2/3) on account of
'loss of dependency'.
14. The compensation awarded by the Tribunal under
other heads remains undisturbed.
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15. Thus, the claimants are entitled to the following
compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 19,04,000
Transportation of dead and 25,000
Funeral expenses
Loss of estate 25,000
Loss of love and affection 1,00,000
Total 20,54,000
Less: 25% negligence on 5,13,500
the part of the deceased
Balance 15,40,500
16. In the result, the following order is passed:
ORDER
a) The appeal is allowed in part.
b) The judgment of the Claims Tribunal is modified.
c) After deducting 25% negligence on the part of the
deceased, the claimants are entitled to a compensation of
Rs.15,40,500/-.
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d) The Insurance Company is directed to deposit the
compensation amount along with interest at 6% p.a. from
the date of filing of the claim petition till the date of
realization, within a period of six weeks from the date of
receipt of copy of this judgment.
e) The apportionment, deposit and release of amount
shall be made in terms of the award of the Tribunal.
Sd/-
JUDGE
Sd/-
JUDGE
DM
