IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE N.K.SUDHINDRARAO M.F.A.No.4798/2010 C/W M.F.A.No.5342/2009 (MV) IN M.F.A.No.4798/2010 BETWEEN:
Mr. B.Umesh, S/o late Devu Maistri @ Poojary, Aged about 59 years, R/at Devappa Maistri Compound, Koppala House, Konchady Post, Yeyyadi, Padavu, Mangalore – 575 008. … APPELLANT (By Sri Guruprasad.B.R., Adv. for M/s. Prasad & Sandhya Assts.) AND:
1. Mr. Vinod C.K.Madival, S/o C.Krishna Madival, Saakrubag, G.K.Road, Baithkol, Agra, Karwar.
2. The Oriental Insurance Co. Ltd., Dwaraka, 2nd Floor, 79, Uttamar, Gandhi Salai, Chennai, Tamilnadu – 600 034.
3. Mr. Satyapal Shetty, S/o T.Ramesh Shetty, Residing at 8-85-1, Athaji, Ujire Post, Belthangady Taluk.
4. The National Insurance Co. Ltd., D.O.II, Rasik Chambers, Opposite Central Market, Mangalore Taluk. … RESPONDENTS (By Sri M.V.Poonacha, Adv. for R-2; Sri M.Narayanappa, Adv. for R-4;
Notice to R-1 & R-3 dispensed with vide Order dt: 30.9.10) This M.F.A. is filed under Section 173(1) of M.V.Act against the judgment and award dated 03.04.2009 passed in M.V.C.No.515/2007 on the file of the III Addl. District Judge, Member, MACT, D.K., Mangaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
IN M.F.A.No.5342/2009 BETWEEN:
The Oriental Insurance Co. Ltd., Dwaraka, 2nd Floor, No.79, Uttmar Gandhi Salai, Chennai, Tamil Nadu – 600 034, Represented by its Assistant Manager, The Oriental Insurance Co. Ltd., Regional Office, Leo Shopping Complex, No.44/45, Residency Road, Bangalore – 560 025. … APPELLANT (By Sri M.U.Poonacha, Adv.) AND:
1. Mr. B.Umesh, S/o late Devu Maistri @ Poojary, Aged 58 years, R/at Devappa Maistri Compound, Koppala House, Konchady Post, Yeyyadi Padavu, Mangalore – 575 008.
2. Mr. Vinod C.K.Madival, S/o Krishna Madival, Major, R/at Saakrubag, G.K.Road, Baithkol, Arga, Karwar.
3. Mr. Sathyapal Shetty, S/o T.Ramesh Shetty, Major, R/at 8-85-1, Athaji, Ujire Post, Belthangady.
4. The National Insurance Co. Ltd., Divisional Office-II, Rasik Chambers, Opposite Central Market, Mangalore Taluk By its branch Manager. ... RESPONDENTS (By Sri Guruprasad.B.R., Adv. for M/s. Prasad & Sandya Assts. For R-1; Sri M.Narayanappa, Adv. for R-4; Notice to R-2 & R-3 is dispensed with vide order dt: 30.9.10) This M.F.A. is filed under Section 173(1) of M.V.Act against the judgment and award dated 03.04.2009 passed in M.V.C.No.515/2007 on the file of the III Addl. District Judge, Member, MACT-IV, D.K., Mangaluru, awarding a compensation of Rs.2,12,500/- with interest @ 6% per annum from the date of petition till realization.
These appeals coming on for admission, this day, the Court delivered the following:
JUDGMENT 1. Though these matters are listed for admission, considering the age of the appeals which are of the years 2009 & 2010, the availability of records and the submissions of the learned Counsel for both sides, the matters are taken up for final disposal.
2. These appeals are directed against the judgment and award dated 03.04.2009 passed by the Motor Accidents Claims Tribunal, Mangaluru, in MVC No.515/2007, wherein the claim petition filed under Section 163A of the Motor Vehicles Act, has been allowed in part and total compensation in a sum of Rs.2,12,500/- has been ordered to be paid together with interest at 6% per annum from the date of petition till realisatsion.
3. MFA No.4798/2010 is filed by the claimant seeking enhancement of compensation. Whereas, MFA No.5342/2009 is filed by the Insurance Company seeking to set aside the judgment award on the ground that negligence being not apportioned.
4. In order to avoid confusion and overlapping, the parties are referred in accordance with the ranks held by them before the Claims Tribunal.
5. The incident that gave raise to initiate the proceedings before the Tribunal, is that on 23.11.2006, one Mr. Harish had started from Mangaluru along with his friends and his family members in a Maruti Van bearing registration No.KA- 19-M-2927 in order to attend the marriage function at Bengaluru. The said Maruti Van was driven by respondent No.3 slowly by observing rules and regulations of traffic. When the vehicle reached Kallahalli Gate at Hirisave Hobli at about 11.00 p.m., the said Maruti Van dashed to the tanker lorry bearing registration No.KA-20-5132 that was parked in the middle of N.H. without displaying any signal. Due to the accident, Harish suffered serious and fatal injuries and succumbed to death. He was declared dead when he was taken to the hospital. It is stated that the deceased while he was alive was an electrician and earning a monthly income of Rs.3,250/- and the other members of his family were dependent on the said income. The claimant is the natural father of the deceased.
6. The matter was contested and the insurance company has denied the claim and the averments regarding dependency and income.
7. Petitioner on his behalf, adduced the evidence of PWs-1 & 2 and got marked the documents at Exs.P-1 to P-12. On behalf of the respondents, there was no oral evidence. However, documents at Exs.R-1 & R-2 were got marked.
8. The learned Member considering the evidence, both oral and documentary, took the monthly income of the deceased at Rs.3,250/- and awarded total compensation of Rs.2,12,500/- under different conventional heads.
9. As the petition is presented under Section 163A of the M.V.Act, Schedule-II is pressed into service.
10. Mr. Poonacha, learned Counsel for the Insurance Company would submit that the lorry was stationed across the road and it was dashed by the Maruti Van. Thus, it is the contention of the learned Counsel for the Insurance Company who is the Insurer of the lorry that the Insurance Company cannot be saddled with the liability to pay the compensation.
11. The aforesaid submission is refuted by Mr.
M.Narayanappa, learned Counsel appearing for the National Insurance Company being the Insurer of Maruti Van. He submits that the impact of negligence of a heavy vehicle like the present lorry and car, would in the context, make the Insurer of the lorry to pay the compensation, as the lorry was stationed across the road covering the middle without signals.
12. Learned Counsel for the claimant would submit that whoever may be the negligent driver between that of the lorry and the car, the sufferer has been the claimant and more over the amount of compensation is under assessed, more particularly regarding the selection of multiplier. It is stated that the age of Harish at the time of death was 20 years. It is further submitted that age of the claimant as on the date of accident was 56 years. According to the learned Counsel, the multiplier ought to have been 17 instead of 8.
13. Having heard the learned Counsel for both the parties, what emerges in the circumstances of the case is, that the loss of dependency should have been calculated on the basis of the age of the deceased and in this connection, I accept the contention of the learned Counsel for the claimant. Thus, the multiplier to be adopted is 17.
14. In so far as the monthly income is concerned, the monthly income taken at Rs.3,250/- for a petition under Section 163A of the Act appears to be just and proper under the circumstances. In so far as the compensation awarded under different conventional heads also appears to be just and proper. Thus, the compensation requires to be modified in terms of the multiplier, which shall be Rs.2167/- x 12 x 17 = Rs.4,42,068 + Rs.4,500/-. Therefore, the total compensation works out to Rs.4,46,568/-.
15. Regarding the question of negligence, it is to be noted that, ‘negligence is a breach of legal duty to take care of oneself and also of others, it may be active or passive. It can happen through irresponsible attitude either the object or person being stationed at a particular place or through motion’. In terms of road accident, it is the impact of two negligent forces that increases the impact of the accident. The accident is said to have happened near Kalahalli gate of Hirisave Hobli on N.H.Road. By comparing the width of the road of National Highway and the length of the lorry, it cannot be said that the lorry has covered the entire road. If the driver of the lorry had stationed the lorry, the negligent act cannot be waived to be claimed on the driver of the lorry in entirety, regard being had to the fact invariably there is negligence on the part of both the drivers of Maruti Van and the lorry. However, the contribution of the driver of the lorry in wrecklessly parked the lorry at the middle of the road is substantively important. In the circumstances, though the negligence cannot be determined with perfect precision looking into the facts and circumstances of the case, I find that the driver of the Maruti Van is contributable to 25% of the negligence and 75% is contributable to the driver of the lorry. Therefore, in such circumstances, the amount of compensation payable by the Insurer of the lorry is at 75% and the Insurer of the Maruti Van is 25%.
16. In the result, these appeals are allowed in part. The judgment and award dated 03.04.2009 passed in MVC No.515/2007 is modified. The total compensation payable to the claimant is fixed at Rs.4,46,568/-. The enhancement would be Rs.2,34,068/- with interest.
17. The total compensation is apportioned between the Insurer of the lorry and Insurer of the Maruti Van in the ratio of 75:25, respectively.
18. The Insurance Companies are directed to deposit the compensation in the said proportion within 30 days from the date of receipt of a receipt of this judgment.
19. The amount in deposit shall be transmitted to the Claims Tribunal.
Sd/- JUDGE KK