IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH 2021 PRESENT THE HON'BLE MR. JUSTICE ALOK ARADHE AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI M.F.A. NO.7505 OF 2016 {MV-D) C/W M.F.A. CROB NO.15 OF 2017 {MV-D) M.F.A. NO.7505 OF 2016 BETWEEN:
BAJAJ ALLIANZ GENERAL INSURANCE CO., LTD., LOCAL OFFICE AT NO.1/2 4TH FLOOR, NEAR SUJATHA THEATRE 59TH C CROSS, 4TH BLOCK RAJAJINAGAR, BANGALORE 560010.
REP. BY ITS CLAIMS LEGAL HUB MANAGER SRI. KRISHNA SHEERNALI.
... APPELLANT (BY MR. KRISHNA KISHORE S, ADV.,) AND:
1. SMT. PRABHAVATHI AGED ABOUT 47 YEARS W/O LATE SHIVANANDA M.
2. S.P. BHAGATH AGED ABOUT 27 YEARS S/O LATE SHIVANANDA M.
3. SRI. A. MUNIYAPPA AGED ABOUT 87 YEARS. SINCE DIED REP. BY LRs.
3(a) SRI. M. RADHAKRISHNA S/O LATE SRI. A. MUNIYAPPA AGED ABOUT 51 YEARS R/AT. NO.19, 2ND FLOOR 29TH 'A' MAIN, BTM LAYOUT 1ST STAGE, BENGALURU-560068.
3(b) SRI. M. RAVINDRA S/O LATE SRI. A. MUNIYAPPA AGED ABOUT 49 YEARS R/AT. NO.52, KANNAIAH LAYOUT NEAR MVIT ENGINEERING COLLEGE KEMPEGOWDA INTERNATIONAL AIRPORT ROAD BETTA HALASURU BENGALURU NORTH TALUK-562157.
3(c) SRI. M. AMARANATH S/O LATE SRI. A. MUNIYAPPA AGED ABOUT 47 YEARS R/AT. NO.18/1, 2ND FLOOR 4TH MAIN, 6TH CROSS N.R. COLONY, BENGALURU-560019.
3(d) SRI. M. SRINIVASA PRASAD S/O LATE SRI. A. MUNIYAPPA AGED ABOUT 45 YEARS R/AT. NO.52, KANNAIAH LAYOUT NEAR MVIT ENGINEERING COLLEGE KEMPEGOWDA INTERNATIONAL AIRPORT ROAD BETTA HALASURU BENGALURU NORTH TALUK-562157.
4. SMT. LAKSHMAMMA AGED ABOUT 80 YEARS W/O SRI A MUNIYAPPA M/O LATE SHIVANANDA M.
ALL ARE RESIDING AT THALAGAVARA VILLAGE CHINTHAMANI TALUK CHIKKABALLAPURA DISTRICT 563128.
5. MR. JIBU JACOB MAJOR IN AGE S/O MR M JACOB KUNJUKUNJU RESIDING AT NO.15, I FLOOR D#1, 3RD CROSS, LAKSHMINARAYANPURA OPP. VAIKUNTOM APARTMENTS AECS LAYOUT, KUNDALAHALLI GATE BENGALURU 560037 (DRIVER OF CAR NO.KA.03-MR-0398).
... RESPONDENTS (BY MR. T.A. RAMAKRISHNA, ADV., FOR MR. H.P. GANESH GOWDA, ADV., FOR R1, R2 & LR'S OF R3, R3(a-d) & R4 V/O DTD:2.3.2021 SERVICE OF NOTICE TO R5 H/S) - - -
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.05.2016 PASSED IN MVC NO.2015/2015 ON THE FILE OF THE 13TH ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU, AWARDING A COMPENSATION OF RS.33,68,000/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION OF THE AMOUNT.
M.F.A. CROB NO.15 OF 2017 BETWEEN:
1. SMT. PRABHAVATHI AGED ABOUT 47 YEARS W/O LATE SHIVANANDA M.
2. S.P. BHAGATH AGED ABOUT 27 YEARS S/O LATE SHIVANANDA M.
3. SRI. A. MUNIYAPPA AGED ABOUT 87 YEARS. SINCE DIED REP. BY LRs.
3(a) SRI. M. RADHAKRISHNA S/O LATE SRI. A. MUNIYAPPA AGED ABOUT 51 YEARS R/AT. NO.19, 2ND FLOOR 29TH 'A' MAIN, BTM LAYOUT 1ST STAGE, BENGALURU-560068.
3(b) SRI. M. RAVINDRA S/O LATE SRI. A. MUNIYAPPA AGED ABOUT 49 YEARS R/AT. NO.52, KANNAIAH LAYOUT NEAR MVIT ENGINEERING COLLEGE KEMPEGOWDA INTERNATIONAL AIRPORT ROAD BETTA HALASURU BENGALURU NORTH TALUK-562157.
3(c) SRI. M. AMARANATH S/O LATE SRI. A. MUNIYAPPA AGED ABOUT 47 YEARS R/AT. NO.18/1, 2ND FLOOR 4TH MAIN, 6TH CROSS N.R. COLONY, BENGALURU-560019.
3(d) SRI. M. SRINIVASA PRASAD S/O LATE SRI. A. MUNIYAPPA AGED ABOUT 45 YEARS R/AT. NO.52, KANNAIAH LAYOUT NEAR MVIT ENGINEERING COLLEGE KEMPEGOWDA INTERNATIONAL AIRPORT ROAD BETTA HALASURU BENGALURU NORTH TALUK-562157.
4. SMT. LAKSHMAMMA AGED ABOUT 72 YEARS W/O SRI A MUNIYAPPA.
ALL ARE PERMANENT RESIDING AT THALAGAVARA VILLAGE CHINTHAMANI TALUK CHIKKABALLAPURA DISTRICT 563128.
... CROSS OBJECTORS (BY MR. T.A. RAMAKRISHNA, ADV., FOR MR. H.P. GANESH GOWDA, ADV.,) AND:
1. MR. JIBU JACOB S/O M. JACAB KUNJUKUNJU MAJOR, NO.15, 1ST FLOOR DOOR NO.1, 3RD CROSS LAKSHMINARAYANAPURA OPP. VAIKUNTAM APPTS AFCS LAYOUT KUNDALAHALLI GATE, BENGALURU 560037 (DRIVER OF CAR BEARING NO.KA-03-MR-0398).
2. BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD LOCAL OFFICE, NO.1/2, 4TH FLOOR NEAR SUJATHA THEATRE, 59TH C CROSS 4TH BLOCK, RAJAJINAGAR, BENGALURU 560010 REP. BY ITS CLAIMS LEGAL HUB MANAGER SRI. KRISHNA SHEERNALLI BENGALURU CITY.
... RESPONDENTS (BY MR. KRISHNA KISHORE S, ADV.,) - - -
THIS M.F.A. CROB IS FILED UNDER SECTION 173(1) OF MV ACT 1988 R/W ORDER XLI RULE 22 AND SECTION 151 OF CPC., PRAYING TO CALL FOR THE RECORDS IN MVC NO.2015/2015 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, COURT OF SMALL CAUSES AT BENGALURU (SCCH-15). ENHANCE THE COMPENSATION BY MODIFYING THE JUDGMENT AND AWARD DATED 27.5.2016 PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL, COURT OF SMALL CAUSES AT BENGALURU (SCCH-15) IN MVC NO.2015/2015 & ETC.
THIS M.F.A. CONNECTED WITH M.F.A. CROB COMING ON FOR FINAL HEARING, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:
COMMON JUDGMENT M.F.A. Crob No.15/2017 has been filed by the claimants seeking enhancement of the amount of compensation, whereas M.F.A. No.7505/2016 has been filed by the insurance company being aggrieved, by the judgment dated 27.05.2016 passed by the Motor Accidents Claims Tribunal (hereinafter referred to as 'the Tribunal' for short). Since, both the cross objection as well as the appeal preferred under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) arise out of the same accident as well as same judgment passed by the Tribunal, they were heard together and are being decided by this common judgment.
2. Facts giving rise to the filing of this appeal briefly stated are that the deceased Shivananda on 15.10.2014 was riding a motorcycle bearing Registration No.KA-40-K-4055 along with one Krishnamurthy as a pillion rider. When they reached near MVIT Junction, Devanahalli and were taking a turn towards Rajanakunte, a Ford Figo car bearing Registration No.KA-03-MR-0398 (hereinafter referred to as 'the offending vehicle' for short), which was being driven by its driver in a rash and negligent manner, came from the opposite direction of the road i.e Bangalore side towards Devanahalli and dashed against the motorcycle in which the deceased was travelling. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the same.
3. The claimants thereupon filed a petition under Section 166 of the Act claiming compensation on the ground that the deceased was aged about 55 years at the time of the accident and was engaged in agriculture, sericulture, dairy and poultry farming and was earning Rs.50,000/- per month. It was further pleaded that the accident took place wholly on account of negligence of the driver of the offending vehicle. The claimants claimed compensation along with interest.
4. Respondent 1 i.e, the owner of the offending vehicle was placed ex-parte. The Insurance Company filed the written statement in which, inter alia, the mode and manner of the accident was denied. It was pleaded that the accident occurred on account of negligence of the deceased himself in riding the motorcycle. It was further pleaded that the driver of the offending vehicle at the time of the accident did not possess a valid and effective driving license to drive the offending vehicle and that the liability of the Insurance Company, if any, is subject to the terms and conditions contained in the insurance policy. The age, avocation, income of the deceased was also denied and it was pleaded that the claim of the claimants is exorbitant and excessive.
5. On the basis of the pleading of the parties, the Tribunal framed the issues and thereafter recorded the evidence. The claimant No.l examined herself as PWl, Khyrishnamur (PW2), Dr.Krishnaprasad (PW3) and got exhibited documents namely Ex.Pl to Ex.P26. The respondents examined Prathibha S as RWl, Jibu Jacob (RW2), Sugirthraj (RW3), R Vimal Raj (RW4), Ramachandra Bhajathri (RW5) and got exhibited documents viz., Ex.Rl to Ex.RS. The Tribunal, by the impugned judgement, inter alia, held that the accident occurred account of negligence of the driver of the offending vehicle as well as the deceased who had contributed to occurrence of the accident to the extent of 75% and 25% respectively. It was also held that, as a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the same. The Tribunal further held that the claimants are entitled to a compensation of Rs.33,6S,000/- along with interest at the rate of 9% per annum. Being aggrieved, this appeal as well as cross objection have been filed.
6. Learned counsel for the claimants submitted that the Tribunal erred in appreciating the evidence on record viz., IMV Report, Spot Sketch, evidence of PW2 as well as cross examination of the investigating officer and in holding that the deceased had contributed to the occurrence of the accident to the extent of 25%. It is further submitted that the Tribunal erred in assessing the income of the deceased at Rs.30,000/- per month when Ex.Pl2, Ex.Pl3, Ex.Pl4 as well as evidence of PWl indicate that the deceased was earning Rs.50,000/- per month. It is also submitted that the amount of compensation awarded by the Tribunal under the conventional heads are on the lower side and deserve to be enhanced suitably. In support of the aforesaid submissions reliance has been placed on the decision of the Supreme Court in CIVIL APPEAL NO.2217/2018 DATED 06.03.2018 and the decisions of this court in MFA NO.811/2015 DATED 18.07.2019 and in MFA NO.9044/2017 DATED 04.02.2021. On the other hand learned counsel for the insurance company submitted that the Tribunal erred in appreciating the evidence adduced by it and in holding that the accident occurred on account of negligence of the driver of the offending vehicle to the extent of 75%. It is further submitted that the Tribunal erred in assessing the income of the deceased at Rs.30,000/- per month notionally in the absence of proof of income. It is also submitted that the Tribunal erred in making an addition to the extent of l5% to the income of the deceased instead of l0% on account of future prospects. It is also submitted that the amount of compensation under the conventional heads as well as the interest awarded by the Tribunal are on the higher side and deserve to be reduced suitably.
7. We have considered the submissions made by learned counsel for the parties and have perused the record.
The Supreme Court in DULCINA FERNANDES v. .JOAQUIM XAVIER CRUZ (2013) 10 SCC 646 has held that the approach of the Tribunal should be holistic analysis of the entire pleading and evidence by applying the test of preponderance of probabilities. It was further held that it was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The court restated that the settled principle is that the evidence of the claimants ought to be examined on the touchstone of preponderance of probabilities and certainly the standard of proof beyond reasonable doubt could not be have been applied. The aforesaid principles have been reiterated by the Supreme Court in 'MANGALA RAM VS. ORIENTAL INSURANCE CO.', (2018) 5 SCC 656 by holding that the proceeding under the Act has to be decided on the basis of preponderance of probabilities and claimant is not required to prove the accident beyond reasonable doubt. It is well settled in law that when an accident happens through the combined negligence of two persons, he alone is liable to the other who had the last opportunity of avoiding the accident by reasonable care, and who then knew or ought to have known of the danger caused by the other's negligence. [See: SALAMOND ON THE LAW OF TORTS, TWELFTH EDITION 1957 PAGE 439-441]. The general rule is that the vehicle should be driven at a speed which enables the driver to stop within the limits of his vision and failure to do this will almost always result in the driver being held, in whole or in part, responsible for the collision. [See: CLERK AND LINDSELL ON TORTS, ELEVENTH EDITION, 1954 PAGES 368-370].
It is equally well settled legal proposition that burden of proving negligence lies on the person who alleges it. The Supreme Court in 'MUNICIPAL CORPORATION OF GREATER BOMBAY VS. LAKSHMAN IYER AND ORS.' AIR 2003 SC 4182 held that the crucial question in case of contributory negligence is whether either party could by reasonable care, have avoided the consequences of other's negligence. The finding with regard to contributory negligence has to be recorded on the basis of proper consideration of the pleadings and legal evidence adduced by both the parties and the same cannot be based merely on police records. [See: 'MINUROUT VS. SATYA PRADYUMNA MOHAPATRA', (2013) 10 Scc 695 AND 'SARALA DEVI VS. ROYAL SUNDARAM ALLIANcE INSURANcE cO. LTD.,', (2014) 15 Scc 450]. It is well settled in law that burden to prove breach of duty on the part of the victim lies on the insurance company and the insurance company has to discharge the burden. [SEE: 'USHA RAJ KHOWA VS. PARAMOUNT INDUSTRIES', (2009) 14 Scc 71].
8. In the backdrop of the aforesaid well settled legal principles, the facts of the case on hand may be examined. Admittedly, PWl is not an eye witness to the accident. PW2 who was the pillion rider along with the deceased and an eye witness to the accident has stated in his evidence that the accident occurred when the deceased was taking a turn towards Rajanakunte at MVIT Junction on account of rash and negligent driving of the offending vehicle by its driver. PW2 has also stated in his evidence that the deceased turned towards the right after opening of the signal. Nothing to the contrary has been elicited in his cross examination. RW2 who was the driver of the offending vehicle at the time of accident and also an eye witness to the accident has stated in his evidence that the deceased swerved his motorcycle to the right towards Rajankunte suddenly, without observing the vehicular movement in the MVIT junction. Nothing to the contrary has been elicited from the aforesaid witness in his cross examination. Ex.Pl FIR and Complaint has been filed against the driver of the offending vehicle. Ex.P3 Spot sketch discloses that accident has occurred in the middle of the MVIT Junction across the center median on the right side of the road. Ex.P4 IMV report discloses that the motorcycle has sustained heavy damage to the rear portion especially on the left side, where as, the offending vehicle has sustained damage to the front portion. The damage sustained by the motorcycle is also indicative of the high speed in which the offending vehicle was being driven.
9. From the aforesaid evidence on record and on the basis of preponderance of evidence, it can safely be inferred that the accident occurred on account of rash and negligent driving of the offending vehicle by its drive who came at a high speed without slowing the down the offending vehicle upon approaching a junction. It is also pertinent to note that the accident occurred in the middle of the right side of road across the median which corroborates the aforesaid inference. Therefore, the finding of the Tribunal that the deceased was also negligent in the causing of the accident to the extent of 25% is set aside and it is held that the accident wholly occurred on account of rash and negligent driving of the offending vehicle by its driver.
l0. Now we may advert to the quantum of compensation. It is the plea of the claimants that the deceased was engaged in agriculture, sericulture, diary farming and poultry farming. Ex.Pl3 viz., Certificate issued by TAB & Bros, Fruits and Vegetable Suppliers to the effect that the deceased had been supplying them with agricultural products regularly since 2006. Ex.Pl5 are the RTC with regard to the agricultural lands which stand in the name of claimant No.3 and were supposed to have been cultivated by the deceased. Therefore, it is evident that the deceased was involved in agriculture, sericulture, dairy farming and poultry farming as pleaded by the claimants. The avocation of the claimant as well as the validity of the aforesaid documents is also not disputed by the insurance company. However, the aforesaid documents do not constitute proof of income of the deceased. Therefore, in the absence of any evidence on record with regard to the income of the deceased and in the fact situation of the case, we are inclined to modify the income of the deceased as assessed by the Tribunal to Rs.20,000/- per month. Accordingly, the income of the deceased is assessed at Rs.20,000/- per month.
ll. In view of the law laid down by the Constitution Bench of the Supreme Court in 'NATIONAL INSURANcE cOMPANY LIMITED Vs. PRANAY SETHI AND OTHERS'
AIR 2017 Sc 5157, l0% of the amount has to be added on account of future prospects as the deceased was self employed. Thus, the monthly income comes to Rs.22,000/-. Since, the number of dependents is 4, therefore, l/4th of the amount has to be deducted towards personal expenses and therefore, the monthly dependency comes to Rs.l6,500/-. Taking into account the age of the deceased which was 55 years at the time of accident, the multiplier of 'll' has to be adopted. Therefore, the claimants are held entitled to (Rs.l6,500xl2xll) i.e., Rs.2l,78,000/- on account of loss of dependency.
l2. In view of laid down by the Supreme Court in 'MAGMA GENERAL INSURANcE cO. LTD. VS. NANU RAM & ORS.' (2018) 18 Scc 130, which has been subsequently clarified by the Supreme Court in 'UNITED INDIA INSURANcE cO. LTD. Vs. SATINDER KAUR AND ORS.'
AIR 2020 Sc 3076 each of the claimant's are entitled to a sum of Rs.40,000/- on account of loss of consortium and loss love and affection. Thus, the claimants are held entitled to Rs.l,60,000/-. In addition, claimants are held entitled to Rs.30,000/- on account of loss of estate and funeral expenses. The amount of compensation awarded under the head 'medical expenses' is maintained. Thus, in all, the claimants are held entitled to a total compensation of Rs.3l,68,000/-. Needless to state that the aforesaid total amount of compensation shall carry interest at the rate of 6% per annum from the date of filing of the petition till the payment is made. To the aforesaid extent, the judgment passed by the Claims Tribunal is modified.
Accordingly, the appeal as well as the cross objection are disposed of.
Sd/- JUDGE Sd/- JUDGE ss