Karnataka High Court

Sri M Munikrishnappa vs Sri Subhranarayan Patra on 2 August, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                             NC: 2024:KHC:30673
                                                           MFA No. 3294 of 2020




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 2ND DAY OF AUGUST, 2024

                                               BEFORE
                           THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                      MISCELLANEOUS FIRST APPEAL NO. 3294 OF 2020 (MV)
                      BETWEEN:
                      1. SRI M MUNIKRISHNAPPA
                         S/O. MUNIYAPPA
                         AGED ABOUT 55 YEARS

                      2.    SRI. S. M. ANANDA
                            S/O. M. MUNIKRISHNAPPA
                            AGED ABOUT 27 YEARS

                      3.    SRI. S. M. HARISH
                            S/O.M. MUNIKRISHNAPPA
                            AGED ABOUT 26 YEARS
                            ALL ARE R/AT SUGATUR VILLAGE
                            JANGAMAKOTE POST
                            SIDLAGHATTA TALUK
                            CHIKKABALLAPURA DISTRICT.
                                                                  ...APPELLANTS
                      (BY SRI. GOPAL KRISHNA N.,ADVOCATE)
Digitally signed by
HEMALATHA A
                      AND:
Location: HIGH
COURT OF              1. SRI SUBHRANARAYAN PATRA
KARNATAKA
                         S/O. JADUNATH PATRA
                         MAJOR BY AGE
                         RESIDING AT NO. 3, 1ST FLOOR
                         5TH MAIN, CAUVERY LAYOUT
                         G.M. PALYA, BENGALURU-560 075.

                      2.    L AND T GENERAL INSURANCE COMPANY LTD.,
                            1ST FLOOR , SHUNAM BUILDING
                            NO.7, MAGRATH ROAD
                            BENGALURU-560 025
                            REP BY ITS MANAGER.
                                                               ...RESPONDENTS
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                                          NC: 2024:KHC:30673
                                       MFA No. 3294 of 2020




(BY SRI.RAVI S SAMPRATHI., ADVOCATE FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED: 22.09.2022)


     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 11.01.2019
PASSED IN MVC NO127/2016 ON THE FILE OF       THE VII
ADDITIONAL JUDGE AND XXXII ACMM, COURT OF SMALL
CAUSES, BENGALURU SCCH-3, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

    THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:    HON'BLE MR JUSTICE H.T. NARENDRA PRASAD


                     ORAL 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 challenging the

judgment and award dated 11.01.2019 passed by the

MACT, Bangalore in MVC 127/2016.

2. Facts giving rise to the filing of the appeal briefly

stated are that on 18.07.2017, when the deceased

S.M.Ashok was proceeding along with another as pillion

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riders on motorcycle bearing registration No.KA-20-V-

2204 ridden by Nagesh on Kolar-Bengaluru NH-4 Road,

near MVJ hospital U turn, at that time, a car bearing

registration No.KA-03-MR-454 which was being driven in a

rash and negligent manner, dashed against the

motorcycle, in which the deceased was proceeding. As a

result of the aforesaid accident, the deceased sustained

grievous injuries and succumbed to the injuries.

3. The claimants filed a petition under Section 166 of

the Act seeking compensation for the death of the

deceased along with interest.

4. Upon service of notice, the respondent No.2

appeared through counsel and filed written statement

denying the averments made in the claim petition. The

respondent No.1, despite service of notice, did not appear

before the Tribunal and was placed ex-parte.

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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 two more witnesses

as PWs-2 and 3, and got exhibited documents namely

Ex.P1 to Ex.P20. On behalf of respondents, one witness

was examined as RW-1 and got exhibited documents

namely Ex.R1 to Ex.R4. The Claims Tribunal, by the

impugned judgment, inter alia, held that the accident took

place on account of contributory negligence. The Tribunal

further held that the claimants are entitled to a

compensation of Rs.10,96,400/- (after deducting 20%

negligence on the part of the deceased) along with interest

at the rate of 8% p.a. and directed the Insurance

Company to deposit the compensation amount along with

interest. Being aggrieved, this appeal has been filed.

6. The learned counsel for the claimants has raised the

following contentions:

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NEGLIGENCE:

The Tribunal has erred in holding that the deceased

has contributed to the accident to the extent of 20%. The

deceased was a pillion rider and he was not riding the

vehicle. Therefore, the finding of the Tribunal that the

deceased has contributed to the accident to the extent of

20% is contrary to the materials available on record. He

further submitted that even if two pillion riders were

proceeding on the motorcycle along with the rider, unless

it is proved that the deceased has contributed to the

accident or contributed to the impact of the accident,

negligence cannot be attributed on the ground that three

persons were proceeding on the motorcycle. If three

persons are proceeding on motorcycle, it is only violation

of Motor Vehicle Rules. In support of his contention, he

relied on the judgment of the Apex Court in the case of

MOHAMMED SIDDIQUI vs. NATIONAL INSURANCE

COMPANY LIMITED reported in AIR 2020 SC 520.

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QUANTUM OF COMPENSATION

a) Firstly, the claimants assert that the deceased was

aged about 20 years at the time of the accident and had a

monthly income of Rs.15,000/- by working as a Loader

and unloader in Kempegowda international airport.

However, the assessment of income of the deceased at

Rs.7,000/- by the Tribunal is unjustified and erroneous.

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 cases, where the deceased was self-

employed or received a fixed salary, an addition of 40% of

the established income towards 'future prospects' is

warranted when the deceased was below the age of 40

years. This principle has been rightly considered by the

Tribunal.

c) Thirdly, as per the judgment of the Hon'ble Supreme

Court in the case of MAGMA GENERAL INSURANCE CO.

LTD. -V- NANU RAM [2018 ACJ 2782], each of the

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claimants is entitled to compensation of Rs.40,000/- under

the head of 'loss of love and affection and consortium'.

d) Lastly, considering the age and avocation of the

deceased, the overall compensation awarded by the

Tribunal is inadequate and on the lower side.

With the above contentions, the learned counsel

sought to allow the appeal.

7. On the other hand, the learned counsel for the

Insurance Company has raised the following counter-

contentions:

NEGLIGENCE:

At the time of the accident, three persons were

traveling on the motorcycle, whereas the seating capacity

of the motorcycle is only two persons. Since three persons

were traveling, the rider of the motorcycle lost control and

dashed against the offending vehicle and as a result, the

accident occurred. Considering the same, the Tribunal has

NC: 2024:KHC:30673

rightly held that the deceased has contributed to the

accident to the extent of 20%.

QUANTUM OF COMPENSATION:

a) Firstly, although the claimants claim that the

deceased was earning Rs.15,000/- per month, they have

failed to substantiate their claim with supporting

documents. Consequently, the Tribunal has correctly

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, 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.

d) Lastly, in light of the Division Bench decision of this

Court in the case of MS.JOYEETA BOSE AND OTHERS -

V- VENKATESHAN.V AND OTHERS (MFA 5896/2018

AND CONNECTED MATTERS DISPOSED OF ON

24.8.2020), the rate of interest awarded by the Tribunal

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at 8% p.a. on the compensation amount is on the higher

side.

With the above contentions, the learned counsel

sought to dismiss the appeal.

8. Heard the learned counsel for the parties and

perused the judgment and award of the Tribunal.

NEGLIGENCE:

9. The specific case of the claimants is that on

18.07.2017, when the deceased S.M.Ashok was

proceeding along with another as pillion riders on

motorcycle bearing registration No.KA-20-V-2204 ridden

by Nagesh on Kolar-Bengaluru NH-4 Road, near MVJ

hospital U turn, at that time, a car bearing registration

No.KA-03-MR-454 which was being driven in a rash and

negligent manner, dashed against the deceased. As a

result of the aforesaid accident, the deceased sustained

grievous injuries and succumbed to the injuries.

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NC: 2024:KHC:30673

10. It is not in dispute that the deceased S.M.Ashok died

in the road traffic accident occurred on 02.05.2015. It is

also not in dispute that in the motorcycle in which the

deceased was traveling i.e., bearing No.KA-40-V-2204,

one rider and two pillion riders were proceeding.

11. The case of the respondent is that the seating

capacity of the motorcycle is only two and since three

persons were traveling in the motorcycle, the rider of the

motorcycle lost control over the vehicle and as a result,

caused accident. Consequently, all the three persons have

contributed to the accident or to the impact of the

accident.

12. The Apex Court in the case of MOHAMMED

SIDDIQUI (supra) has held that, the fact that a person

was a pillion rider on a motor cycle along with the driver

and one more person on the pillion, may be a violation of

the law. But such violation by itself, without anything

more, cannot lead to a finding of contributory negligence,

unless it is established that his very act of riding along

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with two others, contributed either to the accident or to

the impact of the accident upon the victim. The relevant

portion is extracted below:

"13. But the above reason, in our view, is flawed. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194C inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury

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or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motor cycle. It is not even the case of the insurer that the accident would have been averted, if three persons were not riding on the motor cycle. The fact that the motor cycle was hit by the car from behind, is admitted. Interestingly, the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motor cycle from behind, are all not assailed. Therefore, the finding of the High Court that 2 persons on the pillion of the motor cycle, could have added to the imbalance, is nothing but presumptuous and is not based either upon pleading or upon the evidence on record. Nothing was extracted from PW3 to the effect that 2 persons on the pillion added to the imbalance."

13. Therefore, considering the evidence of the parties,

materials available on record and law laid down by the

Apex Court in the case of MOHAMMED SIDDIQUI

(supra), I am of the opinion that the driver of the

offending vehicle alone is negligent in causing the

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accident. Hence, the finding of the Tribunal in respect of

negligence is concerned, the same is modified.

QUANTUM OF COMPENSATION

14. The claimants claim that deceased was earning

Rs.15,000/- per month, but failed to produce supporting

documents to substantiate their claim. In the absence of

proof of income, the notional income has to be assessed.

According to the guidelines issued by the Karnataka State

Legal Services Authority, for accidents occurred in the year

2015, the notional income of the deceased shall be taken

at Rs.9,000/- p.m. To the aforesaid income, 40% has been

rightly 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.12,600/-. Since the deceased was a

bachelor, it is appropriate to deduct 50% of the income of

the deceased towards personal expenses and remaining

amount has to be taken as his contribution to the family.

The deceased was aged about 20 years at the time of the

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accident and multiplier applicable to his age group is '18'.

Thus, the claimants are entitled to compensation of

Rs.13,60,800/- (Rs.12,600*12*18*50%) on account of

'loss of dependency'.

15. In addition, the claimants are entitled to

compensation of Rs.15,000/- on account of 'loss of

estate' and compensation of Rs.15,000/- on account of

'funeral expenses'.

16. In view of the law laid down by the Supreme Court in

the case of 'MAGMA GENERAL INSURANCE' (supra),

claimants No.1 and 2, parents of the deceased are entitled

for compensation of Rs.40,000/- each under the head of

'loss of filial consortium'.

17. The compensation of Rs.282,100/- awarded by the

Tribunal under the head of 'medical expenses' is based on

the medical bills produced by the claimants and is deemed

just and reasonable.

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18. Thus, the claimants are entitled to the following

compensation:

           Compensation under              Amount in
             different Heads                 (Rs.)

        Loss of dependency                   13,60,800

        Funeral expenses                        15,000

        Loss of estate                          15,000

        Loss of Filial consortium               80,000

        Medical expenses                      2,82,100

                         Total              1,752,900

19. In the result, the following order is passed: