Karnataka High Court
Bhimanayaka @ Beemanaik S/O Basyanaik vs Shambhu R K S/O Rajashekhaarappa on 9 January, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No. 104032 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
MISCELLANEOUS FIRST APPEAL NO. 104032 OF 2016 (MV-D)
BETWEEN:
1. BHIMANAYAKA @ BEEMANAIK,
S/O. BASYANAIK,
AGE: 44 YEARS,
OCC: COOLIE WORK.
2. VINODIBAI,
W/O. BHIMANAYAKA @ BEEMANAIK,
AGE: 40 YEARS,
OCC: HOUSEHOLD WORK.
3. KIRAN,
S/O. BHIMANAYAKA @ BEEMANAIK,
AGE: 24 YEARS, OCC: STUDENT.
CHANDRASHEKAR
4. SUNIL S/O. BHIMANAYAKA @ BEEMANAIK,
LAXMAN
KATTIMANI AGE: 22 YEARS,
Digitally signed by
OCC: HOUSEHOLD WORK,
CHANDRASHEKAR
LAXMAN KATTIMANI
Date: 2024.01.22
17:20:49 +0530 ALL ARE R/O: RANGIKOPPA THANDA,
TQ: SHIKARIPUR,
NOW AT MARUTHI NAGAR,
RANEBENNUR,
TQ: RANEBENNUR,
DIST: HAVERI-581115.
...APPELLANTS
(BY SRI. G. S. HULMANI, ADVOCATE)
AND:
1. SHAMBHU R. K,
S/O. RAJASHEKHAARAPPA,
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MFA No. 104032 of 2016
AGE: MAJOR, OCC: BUSINESS,
R/O: H.NO.41, MULAKOPPA,
POST: BILIKI,
TQ: SHIKARIPUR,
DIST: SHIMOGA-577450.
2. THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD,
OPP. P .B. ROAD,
NEAR BASAVA VANA,
HUBBALLI-580020.
3. LAKSHAMANA NAIK D. B,
S/O DEVENDRA NAIK,
AGE: MAJOR,
OCC: BUSINESS,
R/O: NO. 39,
RAGIKOPPA THANDA,
TQ: SHIKARPUR,
DIST: SHIVAMOGGA-577427.
4. THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD,
OPP. P. B. ROAD,
NEAR BASAVA VANA,
HUBBALLI-580020.
...RESPONDENTS
(BY SRI. C. V. ANGADI, ADVOCATE FOR RESPONDENT NO.2 & 4;
NOTICE TO RESPONDENT NO.1 AND 3 ARE SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, PRAYING TO CALL FOR RECORDS FROM THE PRL. SENIOR
CIVIL JUDGE AND AMACT, RANEBENNUR AND MODIFY THE
JUDGMENT AND AWARD PASSED BY THE LEARNED JUDGE, M.V.C
NO.612/2014 DTD: 28TH SEPTEMBER 2016 BY SETTING ASIDE
DEDUCTION MADE TOWARDS CONTRIBUTORY NEGLIGENCE; B)
ENHANCE THE COMPENSATION AS PRAYED FOR; C) COST OF THE
APPEAL.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
K V ARAVIND, J., DELIVERED THE FOLLOWING:
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MFA No. 104032 of 2016
JUDGMENT
Though this appeal is listed for admission, it is taken
up for final disposal, with the consent of learned counsel for
both the parties.
2. The appellants-claimants are before this Court
dissatisfied with the quantum of compensation awarded
under judgment and award dated 28.09.2016 in M.V.C.
No.612/2014 on the file of learned Principal Senior Civil
Judge and J.M.F.C., Ranebennur (for short, 'Tribunal'),
praying for enhancement of compensation.
3. The claimants are father, mother and brothers of
deceased Anil B.B. The claimants filed claim petition under
Section 166 of the Motor Vehicles Act, 1988 seeking
compensation for the accidental death of deceased Anil B.B.
that occurred on 25.02.2014 involving motorcycles bearing
registration No.KA-15/TR-9107 and KA-15/U-8076. The
claimants contended that the deceased was aged 18 years
and was doing mason work earning Rs.10,000/- per month
and claimed compensation of Rs.30,00,000/-.
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4. On issuance of notice, respondents No.1, 2 and 4
appeared through their respective counsels. Respondent
No.3 failed to appear though served and placed ex-parte.
Respondent No.1 is owner of motorcycle bearing No.KA-
15/U-8076 and respondent No.2 is its insurer. Respondent
No.3 is owner of motorcycle bearing No.KA-15/TR-9107 and
respondent No.4 is its insurer.
5. The 1st respondent in his objection denied the
factum of accident, date, time, place and the mode in which
the accident has occurred. The 2nd respondent disputed the
relationship of claimants with the deceased, validity of the
driving licence and involvement of the vehicle. The 4th
respondent in its objection has contended that deceased was
rider of the motorcycle and accident was due to rash and
negligent driving of the deceased himself. On the above
contentions, respondent Nos.2 and 4 prayed for dismissal of
the claim petition.
6. Before the Tribunal, claimant No.1-father of the
deceased examined himself as PW1 and got marked the
documents as Exs.P1 to P26. PW2 and PW3 were examined
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in support of the case of the claimants. PW2 is the Doctor,
who treated the deceased and PW3 is the Doctor, who
conducted postmortem. The Tribunal based on material
evidence on record awarded total compensation of
Rs.7,27,371/- with interest at 7% per annum on the
following heads:
Towards loss of dependency Rs.6,48,000/-
Towards transportation of dead
body and funeral expenses Rs. 10,000/-
Medical expenses Rs. 19,371/-
Towards loss of estate Rs. 10,000/-
Towards love and affection Rs. 40,000/-
Total Rs.7,27,371/-
7. The Tribunal while awarding the above
compensation, assessed notional income of the deceased at
Rs.6,000/- per month, deducted 50% of the same towards
personal and living expenses of the deceased and applied
multiplier of '18'. The claimants not being satisfied with the
quantum of compensation awarded by the Tribunal are
before this Court praying for enhancement of compensation.
8. Heard learned counsel Sri G.S.Hulmani for the
appellants-claimants and Sri C.V.Angadi, learned counsel for
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respondent Nos.2 and 4-Insurance Company, respondent
Nos.1 and 3 are served and unrepresented. Perused the
appeal papers along with original records.
9. Learned counsel for the appellants would contend
that the Tribunal committed an error in assessing the
notional income of the deceased at Rs.6,000/- when the
deceased was a mason and earning Rs.10,000/- per month.
It is submitted that the notional income adopted at
Rs.6,000/- per month is on the lower side. It is further
submitted that the parents and the brothers were depending
on the earning of the deceased, deduction of 50% towards
personal expenses is on the higher side. It is further
submitted that the compensation awarded under the
conventional heads is on the lower side in view of the law
laid down by the Hon'ble Apex Court in the case of National
Insurance Company Limited V/s Pranay Sethi and
others1.
AIR 2017 SC 5157
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10. It is submitted that the Tribunal quantified the
contributory negligence of the deceased at 50% and entitled
compensation was determined at Rs.3,63,685.5 (50% of
Rs.7,27,371). Learned counsel submits that the deceased
was a pillion rider. The Tribunal merely on the basis of the
entry in the MLC report at Ex.P22 mentioning Nagaraj Naik
as a pillion rider, committed an error in arriving at a
conclusion that the deceased was a rider and Nagaraj Naik
was a pillion rider without considering the evidence of PW1-
Doctor, who registered the MLC and also the complaint, FIR
and charge sheet.
11. Per contra, Sri. C.V.Angadi, learned counsel for
respondent Nos.2 and 4-Insurance Company submits that
the compensation awarded by the Tribunal is just
compensation. Learned counsel further relying on Ex.P22
would contend that Nagaraj Naik was recorded as pillion
rider and would establish that the deceased was rider of the
vehicle. Further contends that Ex.P24-postmortem report
would also record that victim i.e. deceased was driving a two
wheeler and hence Tribunal rightly quantified contributory
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negligence at 50%. Learned counsel further submits that the
notional income, future prospects and compensation on other
conventional heads is just and proper. Therefore, prays for
dismissal of the appeal.
12. Having heard the learned counsel for the parties
and on perusal of the appeal papers along with original
records, the points that would fall for consideration in this
appeal are as follows:
i. Whether the Tribunal is justified in assessing
notional income of the deceased at
Rs.6,000/- per month?
ii. Whether the Tribunal is justified in
determining the contributory negligence of
the deceased at 50%?
iii. Whether the award of compensation on
conventional heads requires modification?
13. Answer to the Points (i) and (ii) would be 'in the
negative' and (iii) in the affirmative for the following reasons.
14. The occurrence of accident on 25.02.2014 and
the death of Anil B.B. due to the accident is not in dispute.
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The appellants are before this Court praying for
enhancement of compensation and also disputing the
deduction of 50% towards contributory negligence.
15. The Tribunal was right in rejecting the income of
the deceased at Rs.10,000/- as no documentary evidence
was produced to prove the actual source of income. In the
absence of any evidence regarding income, notional income
of the deceased was assessed at Rs.6,000/- per month. The
year of accident is of 2014 and the notional income in terms
of chart prepared by Karnataka State Legal Services
Authority is Rs.7,500/- per month. To the above extent, the
Tribunal has committed an error in adopting notional income
at Rs.6,000/- as against applicable notional income of
Rs.7,500/- per month. The Tribunal considering the age of
the deceased as 18, has rightly applied multiplier '18'. The
Tribunal has deducted 50% of the notional income towards
personal expenses as per the law laid down by the Hon'ble
Apex Court in the case of Sarla Verma & Others V/s Delhi
Transport Corporation and Another2. As the deceased
(2009) 6 SCC 121
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was a bachelor and 1st and 2nd claimants being father and
mother are the dependents, deduction at 50% is justified.
Claimant Nos.3 and 4 being majors and considering the age
of the deceased and claimant Nos.3 and 4, it cannot be
considered that claimant Nos.3 and 4 were dependents on
the deceased. Hence, deduction at 50% is justified. The
Tribunal has committed an error in not awarding future
prospects as per the law laid down by the Hon'ble Apex
Court in Pranay Sethi (supra). The deceased was not in
permanent job and considering the age of the deceased,
future prospects is to be awarded at 40%. Thus, under the
head 'loss of dependency', the claimants are entitled to a
sum of Rs.11,34,000/- [Rs.7,500 + Rs.3,000 (40% future
prospects) = Rs.10,500 less Rs.5,250/- (50% deduction) =
Rs.5,250/- x 12 (months) x 18 (multiplier)].
16. The Tribunal committed an error in awarding
Rs.10,000/- towards loss of estate and Rs.10,000/- each to
the claimants under the head of loss of love and affection
and Rs.10,000/- towards transportation of dead body and
funeral expenses. In view of the decision of the Hon'ble Apex
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Court in Pranay Sethi (supra), the 2nd claimant-mother of
the deceased would be entitled to a sum of Rs.70,000/- on
the conventional heads including consortium, loss of estate
and transportation of dead body and funeral expenses. The
2nd claimant-father would be entitled to a sum of
Rs.40,000/- on the head of loss of consortium in terms of
law laid down by the Hon'ble Apex Court in the case of
Magma General Insurance Company Ltd. V/s Nanu
Ramu and others3. Thus, the claimants would be entitled
for modified compensation on the following heads:
Sl. Particulars Amount
No.
1 Loss of dependency Rs. 11,34,000/-
2 Towards conventional heads Rs. 70,000/-
3 Loss of consortium Rs. 40,000/-
Total Rs.12,44,000/-
17. Thus, the claimants would be entitled to total
compensation of Rs.12,44,000/- as against Rs.3,63,686/-
awarded by the Tribunal.
18. The Tribunal committed an error in apportioning
the contributory negligence of 50% to the deceased. The
2018 ACJ 2782
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Tribunal on the basis of Exs.P22 and P26-MLC extract and
Ex.P24-postmortem report arrived at a conclusion that the
deceased was rider of two wheeler. The oral evidence of
PW2, author of Ex.P22 and PW3-author of Ex.P24-
postmortem report is not considered by the Tribunal. Though
PW2 in Ex.P22 has recorded that Nagaraj Naik was a pillion
rider, subsequently corrections have been carried out to
record that Nagaraj Naik was rider and Anil B.B. was pillion
rider. The reason for correction has been stated by PW2 in
his evidence and in cross-examination nothing contrary is
proved. PW2 has clearly stated that at a time four injured
persons were brought to the hospital and he was
concentrating on treating the injured. Due to oversight,
Nagaraj Naik was recorded as rider. PW2 has further
deposed that the deceased was not conscious when he was
brought to the hospital.
19. The claimants have examined PW3, the doctor
who conducted postmortem and issued Ex.P24-postmortem
report. He has stated that mentioning of the deceased was
driving two wheeler was due to oversight and he conducted
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postmortem only on the basis of request of the police as per
Ex.P25. The Tribunal has failed to appreciate that PWs.2 and
3 are not competent to determine as to whether the
deceased was pillion rider or otherwise. The entry made in
Exs.P22 and 24 has been clarified in their evidence as PWs.2
and 3 and no contrary evidence has been either produced or
elicited by respondent Nos.2 to 4 in cross-examination.
Further, the complaint at Ex.P2 reflects that Sri
Naganagouda and Nagaraj Naik were riding the two wheelers
involved in the accident. Ex.P5-charge sheet also reveals
that Nagaraj Naik was rider and the deceased Anil B.B. was
pillion rider. In view of Ex.P2-complaint, it is clear that the
deceased was a pillion rider. Ex.P5-charge sheet has been
filed by the police after detailed investigation and
examination of witnesses regarding the accident and
concluded that the deceased was the pillion rider. In the
circumstances, Exs.P22 and 24 are without any basis and
cannot be considered as a conclusive evidence when Ex.P5-
charge sheet has been filed after due investigation by the
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competent authorities. Evidence of PW2, PW3 and Ex.P5 are
to be preferred and considered against Ex.P22 and 24.
20. For the above reasons, the Tribunal committed an
error in determining the negligence at 50% on the deceased
and restricting the compensation awarded to 50%.
21. In the result, we proceed to pass the following:
ORDER
a) The above appeal is allowed in part.
b) The impugned judgment and award of
the Tribunal is modified. The finding
insofar as the apportionment of
contributory negligence of the deceased
is hereby set aside. The claimants are
entitled to total compensation of
Rs.12,44,000/- as against
Rs.3,63,686/- awarded by Tribunal.
c) The enhanced compensation will bear
interest at the rate of 6% per annum
from the date of claim petition till date of
realization.
d) The 2nd respondent-Insurance Company
shall deposit the enhanced compensation
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amount with accrued interest before the
Tribunal within six weeks from the date
of receipt of certified copy of this
judgment.
e) Apportionment, deposit and
disbursement of the compensation shall
be made as per the award of the
Tribunal.
f) Registry to transmit the records to the
Tribunal forthwith.
g) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
CLK
