(PER: HON'BLE MR. JUSTICE C.M. JOSHI)
1. Heard learned counsel appearing for the
2. These appeals arise out of the judgment and
3. The factual matrix of the case is below:
"1. Whether the petitioners prove that on
22-04-2015 at about 4-45 P.M. near
Bhimnalli after crossing of Ramthirth
on Chittapur-Bhimnalli road, the
deceased met with accident and
sustained grievous injuries and die
due to rash and negligent driving of
the driver of Force Tempo Trax Jeep
bearing No.KA-14/A-3288?
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2. Whether the petitioners prove that,
they are entitle for compensation? If
so, how much and from whom?
3. What order or award?"
d) Before the Tribunal, petitioner No.1 was
examined as PW1 and Exs.P1 to P7 were marked. Though
the official of respondent No.2 - Insurance Company got
himself examined as RW1 but no documents were produced
on its behalf.
e) After hearing the arguments by both sides, the
Tribunal held that there was no such negligence on the part
of the deceased and that the Insurance Company is liable to
pay the compensation to the petitioners to the tune of
Rs.9,14,100/- under different heads as below:
Towards Loss of dependency Rs.7,84,056/-
Towards Funeral & Transportation Rs.15,000/-
charges
Towards consortium Rs.40,000/-
Towards Love and affection Rs.60,000/-
Towards Loss of Estate Rs,15,000/-
Total Rs.9,14,056/-
Rs.9,14,100/-
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4. Being aggrieved by the said the judgment and
award, the petitioners are before this Court seeking
enhancement of the compensation in MFA No.202213/2018
and the respondent No.2 - Insurance Company is in appeal
before this Court in MFA No.201420/2018 contending that
the liability has been wrongly fastened upon it.
5. The Tribunal records have been secured and the
arguments by both appellants are heard. In both these
appeals the owner of the vehicle though appeared before the
this Court, did not argue the case.
6. The learned counsel for the petitioners contend
that the deceased was traveling on the rooftop as mentioned
in the FIR and there was no such request or an effort by the
driver of the vehicle to prevent the deceased from traveling
on the rooftop, therefore, the avoidance of the negligence on
his part has not been established and the owner of the
vehicle has not adduced any evidence in the matter. Even
the cross-examination of the PW1 does not show that the
driver of the vehicle had made any effort to avoid the
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accident by requesting the deceased not to travel on the
rooftop. Secondly, he contends that the policy has not been
produced by respondent No.2 despite the official of
respondent No.2 to enter the witness box and deposed as
RW1. It is also contended that the violation of the terms and
conditions of the policy being interse matter between
respondent Nos. 1 and 2, adequate evidence should have
been led by respondent No.2 to show that the vehicle was
covered by a private package policy, but it was used as a
taxi. Therefore, he contends that the liability fastened upon
the respondent No.2 is proper.
7. Thirdly, he contends that the compensation
awarded by the Tribunal is on the lower side and the income
of the deceased has been considered at Rs.7,000/- per
month, which is also on the lower side. He further contends
that the compensation awarded towards consortium should
have been to each of the petitioners and therefore, on this
count also the Tribunal has erred in awarding adequate
compensation.
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8. Per contra, learned counsel appearing for
respondent No.2 would submit that the deceased was
traveling on the rooftop of the Jeep and such traveling on the
rooftop is a clear indication that there was negligence on the
part of the deceased also. In this regard he relies on the
judgment in the case of The Managing Director NWKRTC
Vs. Smt. Mamatajbi W/o. Jilaniahamad @ Jaleelahmad
Munshi, in MFA No.102446/2019 C/w. MFA
No.202241/2019 passed by the Division Bench of this
Court. He also relied on the judgment in the case of
NWKRTC Vs. Vijaylakshmi and Others1, wherein, it was
held that traveling on the rooftop though per-se cannot be
said to be negligent, but there was necessity of exercising
due precaution by the driver of the vehicle.
9. Secondly, he contended that though RW1 had not
produced a copy of the policy and the charge-sheet shows
that there were violation of the provisions of the Motor
ILR 2011 Karnataka 4845
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Vehicles Act and therefore, that would suffice to hold that
the deceased was a gratuitous passenger in the said vehicle.
10. The first aspect that needs to be considered is,
'whether there was any contributory negligence on the part
of the deceased when he was traveling on the rooftop of the
vehicle'. The fact that he was traveling on the rooftop of the
vehicle has been narrated in the complaint filed by petitioner
No.1 herself, which is produced at Ex.P2. However, it is
worth to note that Ex.P2 do not mention anything about they
traveling as a fare paying passengers or in what capacity
they were traveling in the said vehicle. However, it is
mentioned that the deceased was traveling on the rooftop of
the vehicle. The cross-examination of the PW1 would
indicate that they were traveling by hiring the vehicle. It is
stated that they had paid the rent to the driver, but, it does
not mention as to how many passengers were traveling in
the said vehicle. But it is not known whether all the 10 or 12
persons who were in the vehicle were party belonging to the
deceased and PW1. Therefore, there is lack of clarity as to
whether they were fare paying passengers or they had hired
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the vehicle for plying from point to point. The testimony of
RW1 is also not clear in this regard and he has not produced
the copy of the policy. Therefore, it can safely be said that
there is violation of the terms and conditions of the policy.
But the nature of violation of the terms and conditions of the
policy is not clearly established before the Tribunal. In that
view of the matter, the Tribunal was justified in fastening the
liability on respondent No.2 and if the respondent No.2 is
disputing any such terms and conditions, it is at liberty to
take up the matter with respondent No.1 in seeking
avoidance of the policy. Therefore, it cannot be said that the
primary burden having been discharged by PW1 in the form
of FIR and her own testimony, it can be said that primarily
respondent No.2 is liable, but, it is at liberty to recover the
same from the respondent No.1. It is needless to say that
respondent No.1 is at liberty to take up whatever the
defence available for him.
11. Insofar as contributory negligence is concerned,
the cross-examination of the PW1 does not show that the
driver of the vehicle or anybody else on his behalf had
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requested the deceased not to travel on the rooftop. It is
worth to note at this juncture that the judgment in the case
of NEKRTC Vs. Vijaylakshmi clearly indicates that simply
traveling on the rooftop cannot be a ground in itself to hold
that there was contributory negligence. It is necessary to
establish that though the deceased was traveling on the
rooftop, he had not exercised due precautions when the
accident took place. Traveling on the rooftop, if it was not
tried to be prevented by the driver, then, obviously it is a
negligence. In the case on hand, it is evident that the driver
of the vehicle abruptly applied the brakes and thereby, it
clearly indicates that there was negligence on his part. He
was aware that the deceased was traveling on the rooftop
and even then he applied the brakes abruptly. This would be
negligence on the part of the driver of the vehicle. If the
driver of the vehicle had not applied the brakes abruptly,
even though there was negligence on the part of the
deceased by traveling on the rooftop, he would not have
fallen. Therefore, it cannot be said that there is an
actionable negligence or proactive negligence on the part of
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the deceased. In that view of the matter, the contributory
negligence contended by learned counsel for Insurance
Company cannot be accepted.
12. The 3rd aspect to be considered is, whether the
quantum of the compensation is on the lower side. The fact
that the deceased was aged 45 years at the time of accident,
therefore the appropriate multiplier is 14 is not in dispute.
Evidently, the deceased was an agriculturist and therefore,
there is no clear proof of income. This aspect is also borne
out of the complaint, which is at Ex.P2. The Tribunal has
taken the notional income at Rs.7,000/- per month.
13. The guidelines issued by the Karnataka State
Legal Services Authority (KSLSA) for settlement of the
disputes before the Lok Adalat prescribe the notional income
of `8,000/- for the year 2015. In umpteen numbers of
decisions, this Court has held that the guidelines issued by
KSLSA are acceptable on the ground that they are in general
conformity with the minimum wages fixed under the
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Minimum Wages Act. Therefore, the notional income of the
petitioner is accepted as `8,000/- per month.
14. As per the law laid down by the Apex Court in the
case of National Insurance Company Limited Vs.
Pranay Sethi and others2 the future prospects has to be
considered at 25% of the income of the deceased,
accordingly 25% of Rs.8,000/- is Rs.2,000/-.
15. Thus, the loss of dependency is calculated as
(Rs.8000 + 2000) x 12 x 14 x 2/3 that equals to
Rs.11,20,000/- by adopting multiplier of '14' and deducting
1/3rd towards the personal expenses of the deceased.
16. The Tribunal has awarded the compensation of
Rs.60,000/- towards loss of love and affection, which is
impermissible in the light of the judgment of the Apex Court
in the case of Pranay Sethi referred supra. However, there
shall be an enhancement of 10% on the amount of the
consortium, loss of estate and funeral expenses for every 3
(2017) 16 SCC 680
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years. Now the compensation is being determined in the
year 2025, there shall be enhancement to the extent of
30%, that means the compensation awarded under
conventional heads have to be increased from Rs.70,000/- to
Rs.91,000/-. Hence, the compensation is calculated as
Rs.11,20,000 + Rs.91,000/-, that equals to Rs.12,11,000/-.
After deducting the compensation awarded by the Tribunal,
i.e., Rs.9,14,100/-, petitioners are entitled for an
enhancement of Rs.2,96,900/-.
17. In the light of the above discussion, both the
appeals deserve to be allowed in part. Hence, the following:
ORDER
i) The MFA No.202213/2018 filed by the
petitioners is allowed in part and the
petitioners are entitled for compensation of
Rs2,96,900/- in addition to what has been
awarded by the Tribunal, along with
interest at 6% per annum, from the date
of petition till its deposit.
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ii) The MFA No.201420/2018 filed by the
Insurance Company is also allowed in part.
The Insurance Company is directed to
deposit the compensation amount before
the Tribunal at the first instance and
thereafter, recover the same from the
respondent No.1 - owner of the vehicle, if
it chooses to do so.
iii) The rest of the terms and conditions
regarding deposit, apportionment etc.,
ordered by the Tribunal remain unaltered.
iv) The amount deposited before this Court is
ordered to be transmitted to the Tribunal.
Sd/-
(C.M. JOSHI)
JUDGE
SBS
CT: AK
