IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MR. JUSTICE L NARAYANA SWAMY AND THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A. NO.1186 OF 2016 (MV D) C/W M.F.A. NO.1188 OF 2016 (MV I) M.F.A. NO.1824 OF 2016 (MV D) M.F.A. NO.2146 OF 2016 (MV I) M.F.A. NO.2147 OF 2016 (MV D) IN M.F.A. NO.1186 OF 2016:
BETWEEN:
1. SMT. BINA GAJENDRAN, W/O LATE GAJENDRAN, AGED ABOUT 48 YEARS, NO 21, 1ST CROSS, ANKAREDDY LAYOUT, B NARAYANAPURA DOORAVANINAGAR BANGALORE – 16.
2. CHETANA GAJENDRAN, D/O LATE GAJENDRAN, AGED ABOUT 28 YEARS, NO 21, 1ST CROSS, ANKAREDDY LAYOUT, B NARAYANAPURA, DOORAVANINAGAR BANGALORE – 16.
3. CHARANYA G D/O LATE GAJENDRAN, AGED ABOUT 26 YEARS, NO 21, 1ST CROSS, ANKAREDDY LAYOUT, B NARAYANAPURA, DOORAVANINAGAR BANGALORE – 16. ... APPELLANTS (BY SRI R C NAGARAJ, ADVOCATE) AND:
1. THIMMAPPA, S/O RAMAIAH, 48 YEARS, DAIRY CIRCLE,, KUVEMPUNAGAR, BHADRAVATHI TOWN, SHIMOGA DISTRICT (DRIVER OF THE VEHICLE EISHER LORRY BEARING NO KA.14.A.7370).
2. DECCAN ROADWAYS, POWER LINE ROAD, SHIMOGA - 577201, MANAGING PARTNER, N G MANJUNATH (OWNER OF THE EISHER LORRY BEARING NO KA-14-A-7370).
3. THE ORIENTAL INSURANCE COMPANY LTD., (BRANCH OFFICE) VINAYAKA COMPLEX, 1ST CROSS, GARDENS AREA, SHIMOGA - 577201 (INSURER OF THE EISHER LORRY BEARING NO KA-14-A-7370) 4. NATIONAL INSURANCE CO LTD., NO 144, 2ND FLOOR, SHUBHARAM COMPLEX, B G ROAD, BANGALORE - 1.
REP. BY ITS BRANCH MANAGER (INSURER OF CAR BEARING NO KA.02.MD.3323) ... RESPONDENTS (BY SRI A N KRISHNASWAMY, ADV. FOR R3, SMT.H.R.RENUKA FOR R4 NOTICE TO R1, R2, R4) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.01.2016 PASSED IN MVC NO.6532/2013 ON THE FILE OF THE 7TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-3, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A. NO.1188 OF 2016:
BETWEEN:
SMT. BINA GAJENDRAN, W/O LATE GAJENDRAN, AGED ABOUT 48 YEARS NO.21, 1ST CROSS ANKAREDDY LAYOUT B NARAYANAPURA, DOORAVANINAGAR BANGALORE-16. ... APPELLANT (BY SRI R C NAGARAJA & B.N.MANJULA, ADVOCATES) AND:
1. THIMMAPPA S/O RAMAIAH, AGED ABOUT 52 YEARS, DAIRY CIRCLE, KUVEMPUNAGAR, BHADRAVATHI TOWN, SHIMOGA DISTRICT (DRIVER OF THE VEHICLE EISHER LORRY BEARING NO.KA.14.A.7370) 2. DECCAN ROADWAYS, POWER LINE ROAD, SHIMOGA-577201, MANAGING DIRECTOR, N G MANJUNATH, (OWNER OF THE EICHER LORRY BEARING NO.KA-14-A-7370) 3. THE ORIENTAL INSURANCE COMPANY LTD., (BRANCH OFFICE), VINAYAKA COMPLEX, IST CROSS, GARDENS AREA, SHIMOGA-577201, REP BY ITS BRANCH MANAGER, (INSURER OF EISHER, LORRY BEARING NO.KA-14-A7370).
4. NATIONAL INSURANCE CO. LTD., NO.144, 2ND FLOOR, SHUBHARAM COMPLEX, B G ROAD, BANGALORE-1, REP BY ITS BRANCH MANAGER, (INSURER OF CAR BEARING NO.KA.02.MD.3323) ... RESPONDENTS (BY SRI A N KRISHNA SWAMY, ADV. FOR R3 NOTICE TO R1, R2 AND R4) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 20.01.2016 PASSED IN MVC NO.6599/2013 ON THE FILE OF THE 7TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-3, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A. NO.1824 OF 2016:
BETWEEN:
1. SMT. GANGAMMA, W/O LATE SHIVANNA, AGED ABOUT 50 YEARS, 2. NAGARAJ S, S/O LATE SHIVANNA, AGED ABOUT 25 YEARS, BOTH ARE RESIDING AT DURGAMMA TEMPLE STREET, VIDYANAGAR EXTENSION, SHIVAMOGGA CITY. ... APPELLANTS (BY SRI M V MAHESWARAPPA, ADVOCATE) AND:
1. THIMMAPPA, S/O RAMAIAH, AGED ABOUT 50 YEARS, R/AT DIARY CIRCLE, KUVEMPU NAGARA, BHADRAVATHI, SHIVAMOGGA DISTRICT - 577 201.
2. N.G. MANJUNATHA, S/O NAVALIAH, AGED ABOUT 61 YEARS, PARTNER OF DECCAN ROAD WAYS, SAVARALINE ROAD, SHIVAMOGGA CITY, SHIVAMOGGA - 577 201.
3. THE BRANCH MANAGER, ORIENTAL INSURANCE COMAPNY LTD., VINAYAKA COMPLEX, 1ST CROSS, GARDEN AREA, SHIVAMOGGA CITY - 577 201.
... RESPONDENTS (BY SRI A N KRISHNASWAMY, ADV. FOR R3 NOTICE TO R1, R2) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.11.2015 PASSED IN MVC NO.605/14 ON THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL MACT-7, SHIMOGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A. NO.2146 OF 2016: BETWEEN:
BRANCH MANAGER, ORIENTAL INSURANCE CO. LTD. BRANCH OFFICE, VINAYAKA COMPLEX, I CROSS, GARDENS AREA, SHIMOGA -577201, NOW REP. BY ITS REGIONAL MANAGER ORIENTAL INSURANCE CO.LTD. REGIONAL OFFICE, #44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BANGALORE-560 025. ... APPELLANT (BY SRI A N KRISHNA SWAMY, ADVOCATE) AND:
1. SMT BINA GAJENDRAN, W/O LATE GAJENDRAN, NOW AGED ABOUT 49 YEARS, R/AT #21, I CROSS, ANKAREDDY, LAYOUT, B NARAYANAPURA, DOORAVANINAGAR, BANGALORE-560 016.
2. THIMMAPPA, S/O RAMAIAH, NOW AGED ABOUT 51 YEARS, DAIRY CIRCLE, KUVEMPUNAGAR, BHADRAVATHI TOWN, SHIMOGA DISTRICT.
3. N.G. MANJUNATH, MANAGING DIRECTOR, DECCAN ROADWAYS, POWER LINE ROAD, SHIMOGA -577 201.
4. NATIONAL INSURANCE CO.LTD., NO.144, II FLOOR, SUBHARAM COMPLEX, M.G. ROAD, BANGALORE – 560 001. ... RESPONDENTS (BY SRI R C NAGARAJ, ADVOCATE FOR R1 TO R3 SMT. H.R.RENUKA, ADVOCATE FOR R4, R2, R3 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:20.01.2016 PASSED IN MVC NO.6599/2013 ON THE FILE OF THE VII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-3, BENGALURU AWARDING COMPENSATION OF RS.9,46,968/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
IN M.F.A. NO.2147 OF 2016 BETWEEN:
BRANCH MANAGER, ORIENTAL INSURANCE CO. LTD. BRANCH OFFICE, VINAYAKA COMPLEX, I CROSS, GARDENS AREA SHIMOGA-577201, NOW REP. BY ITS REGIONAL MANAGER, ORIENTAL INSURANCE CO.LTD., REGIONAL OFFICE, #44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BANGALORE-560 025. ... APPELLANT (BY SRI A N KRISHNA SWAMY, ADVOCATE) AND:
1. SMT BINA GAJENDRAN, W/O LATE GAJENDRAN, NOW AGED ABOUT 49 YEARS.
2. CHETANA GAJENDRA, D/O LATE GAJENDRAN, NOW AGED ABOUT 28 YEARS.
3. CHARANYA G, D/O LATE GAJENDRAN, NOW AGED ABOUT 26 YEARS, ALL R/AT #21, I CROSS, ANKAREDDY LAYOUT, B. NARAYANAPURA, DOORAVANINAGAR, BANGALORE-560 016.
4. THIMMAPPA, S/O RAMAIAH, NOW AGED ABOUT 51 YEARS DAIRY CIRCLE, KUVEMPUNAGAR, BHADRAVATHI TOWN, SHIMOGA DISTRICT.
5. N.G. MANJUNATH, MANAGING DIRECTOR, DECCAN ROADWAYS, POWER LINE ROAD, SHIMOGA-577 201.
6. NATIONAL INSURANCE CO. LTD., NO.144, II FLOOR SUBHARAM, COMPLEX, M.G. ROAD, BANGALORE-560 001 ... RESPONDENTS (BY SRI R C NAGARAJ, ADV. FOR R1-R3, SMT.H.R.RENUKA FOR R6, R4, R5 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:20.01.2016 PASSED IN MVC NO.6532/2013 ON THE FILE OF THE VII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-3, BENGALURU AWARDING COMPENSATION OF RS.1,26,23,208/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY ASHOK G. NIJAGANNAVAR J., PRONOUNCED THE FOLLOWING:
JUDGMENT All these appeals have arisen out of one and the same motor vehicle accident occurred on 15.09.2013 at about 05.15 p.m., between two vehicles namely Eicher Lorry bearing registration No.KA-14-A-7370 and Swift Dzire Car bearing registration No.KA-02-MD-3323 near Korlahalli Gate via Birur to Tarikere Road on NH-206. In the said accident, the driver of the Swift Dzire Car – Shivanna and one of the inmates therein, namely, Sri Gajendran expired on account of the injuries sustained by them. Another inmate of the Car i.e., Smt. Bina Gajendran, who is wife of the deceased Gajendran also got injured.
2. The legal representatives of the deceased Driver of the Swift Dzire Car, namely wife and son filed claim petition before the MACT, Shivamogga in M.V.C. No.605/2014 claiming compensation. The said petition was allowed. The Tribunal held that the petitioners are entitled for a total compensation of Rs.7,27,200/-, but on the contributory negligence of the deceased to the extent of 50%, awarded only 50% of the quantified compensation amount, i.e., a sum of Rs.3,63,600/- along with interest at 6% p.a.
3. Being aggrieved by the judgment and award passed in MVC No.605/2014, the legal representatives of the deceased Driver - Shivanna, i.e., the wife and son have preferred an appeal in M.F.A. No.1824/2016.
4. The injured victim in the said accident, Smt.
Bina Gajendran had filed M.V.C. No.6599/2013 before the MACT, Bangalore. The Tribunal has awarded a compensation of Rs.9,46,968/- along with interest at 6% p.a. Being aggrieved by the judgment and award passed therein, the petitioner-appellant has preferred an appeal in M.F.A. No.1188/2016.
5. The injured victim in the accident, Smt. Bina Gajendran and her two daughters had filed M.V.C. No.6532/2013, before the MACT, Bangalore, as the dependents and legal representatives of the deceased Gajendran. The Tribunal had awarded a compensation of Rs.1,26,23,208/- along with interest at 6% p.a. Being aggrieved by the judgment and award in respect of quantum of compensation, they have preferred an appeal in M.F.A. No.1186/2016.
6. The insurer of the Eicher Lorry bearing registration No.KA-14-A-7370 namely M/s. Oriental Insurance Company Ltd., being aggrieved by the judgment and award passed by the MACT, Bangalore, in M.V.C. No.6599/2013 and M.V.C. No.6532/2013 has preferred M.F.A. No.2146/2016 and M.F.A. No.2147/2016 challenging the liability to pay the compensation. It is contended that there ought to have been 50% contributory negligence fixed on driver of the car as is done in M.V.C. No.605/2014.
7. The facts briefly stated in all the petitions are that on 15.09.2013, the deceased Gajendran and his wife Smt. Bina Gajendran were traveling in Swift Dzire Car bearing registration No.KA-02-MD-3323. Deceased Shivanna was driving the said car. When the vehicle was near Korlahalli Gate via Birur to Tarikere Road on NH-206, the Eicher Lorry bearing registration No.KA-14-A-7370 driven by respondent No.1 – Thimmappa in a rash and negligent manner came from opposite direction and dashed against the said Car. As a result of which, the driver of the Swift Dzire Car and one of the inmates of the car by name, Sri Gajendran died on the spot. Another inmate Smt. Bina Gajendran sustained multiple grievous injuries. In respect of this accident, the legal representatives of deceased Gajendran and the injured victim Bina Gajendran had filed claim petitions before the MACT, Bangalore and the legal representatives of deceased Driver – Shivanna had filed claim petition before the MACT, Shivamogga.
8. The respondent Nos.1 and 2 who are the Driver and owner of the Eicher Lorry bearing registration No.KA-14-A-7370 remained absent and they were placed exparte. The respondent No.3 namely the Insurer of the Eicher Lorry – M/s. Oriental Insurance Company Ltd., contested the petitions and filed objections admitting issuance of the insurance policy in respect of Eicher Lorry and the liability of the Company subject to the terms and conditions of the policy and the provisions of the Motor Vehicle Act. It was contended that Driver of the lorry was not having valid and effective driving license, as such, the Insurance Company is not liable to indemnify the insured. The records, namely, the spot sketch and spot panchanama prepared in the criminal case clearly go to show that the accident was head-on collision and occurred in the middle of the road. Therefore, the driver of the Swift Dzire Car if he was careful and cautious, could have avoided the accident. The respondent No.4 namely the insurer of the Swift Dzire Car was impleaded in two claim petitions, i.e., in M.V.C. No.6599/2013 and M.V.C. No.6532/2013, on the application filed by respondent No.3. It has filed written statement denying the petition averments and has sought for dismissal of the petitions.
9. On the basis of the pleadings in M.V.C. No.605/2014, the following issues were framed:
i. Whether the petitioners prove that on 15.09.2013, at about 5.15 p.m., near Koranahalli Gate via Birur to Tarikere N.H.206 Road, deceased Shivanna sustained injuries and died in the accident caused due to the rash and negligent driving of Eicher Lorry bearing Regn. No.KA-14-A- 7370 driven by the 1st respondent?
ii. Whether the 3rd respondent proves that the driver of the Lorry did not possess valid and effective driving licence as on the date of accident?
iii. Whether the petitioners are entitled for compensation? If so, at what rate and from whom?
iv. What Order or Award?
10. On appreciation of the oral and documentary evidence, the MACT, Shivamogga has come to the conclusion that the accident has occurred almost in the middle of the road. Exhibit-P5 shows that the respondent No.1, namely the driver of the Eicher Lorry is charge-sheeted for the offences punishable under Section 279 & 304-A of IPC. The road runs East – West and accident had occurred 8 ft. from southern edge of the road. Under these circumstances, the accident was occurred due to the rash and negligent driving of Drivers of both vehicles and contributory negligence was fixed to the extent of 50%. Further, the MACT has determined total compensation at Rs.7,27,200/- and directed to pay a sum of Rs.3,63,600/- being 50% of it along with interest at 6% p.a.
11. As already stated, the petitioner-appellants are before this Court in M.F.A. No.1824/2016 claiming enhancement of the compensation and to fix the entire liability on the offending vehicle to pay the compensation.
12. On the basis of the pleadings in M.V.C. No.6599/2013 and M.V.C. No.6532/2013, the following issues were framed:
Issues in M.V.C No.6599/2013:
i. Whether the petitioners proves that Sri. Gajendra.S, s/o. late Shiva Lingam died due to injuries sustained by him in a Motor Vehicle Accident that was taken place on 15.09.2013 at about 5.15 p.m., near Koranahalli Gate, N.H.206 Road on Birur to Tarikere Road, Tarikere Taluk, Chikmagalur Dist., involving Eicher Lorry bearing Reg.No.KA-14-A-7370 belonging to respondent No.2 and the said vehicle insured with 3rd respondent?
ii. Whether the petitioners prove that they are the only legal heirs and the dependants of the deceased?
iii. Whether the petitioners prove that the accident has mainly occurred due to the rash and negligent driving of the driver of the said vehicle?
iv. Whether the petitioners are entitled for compensation as prayed? If so, at what rate and from whom?
v. What Order or award?
Issues in M.V.C No.6599/2013:
i. Whether the petitioner proves that she had sustained grievous injuries in an accident that was occurred due to rash and negligent driving of the driver of the Eicher Lorry bearing Reg. No.KA- 14-A-7370 on 15.09.2013 at about 5.15 p.m., near Koranahalli Gate, N.H.206 Road, on Birur to Tarikere Road, Tarikere Taluk, Chimagalur?
ii. Whether the petitioner is entitled for compensation as prayed? If so, at what rate and from whom?
iii. What Order or award?
13. On appreciation of the oral and documentary evidence, the MACT, Bangalore, has come to the conclusion that the accident in question has taken place due to the rash and negligent driving of the driver of the offending vehicle, namely Eicher Lorry and has further awarded compensation of Rs.9,46,968/- in M.V.C. No.6599/2013 and a sum of Rs.1,26,23,208/- in M.V.C. No.6532/2013.
14. Being aggrieved by the quantum of compensation awarded, the petitioner-appellants are before this Court respectively in M.F.A. No.1188/2016 and M.F.A. No.1186/2016.
15. The insurer of the Eicher Lorry, namely M/s.Oriental Insurance Company Ltd., has challenged the judgment and award passed in M.V.C. No.6599/2013 and M.V.C. No.6532/2013 on several grounds in M.F.A. No.2146/2016 and M.F.A. No.2147/2016 namely:
i. The Tribunal has not considered the spot sketch and spot mahazar.
ii. The Tribunal has committed error by giving a finding that the driver of the offending vehicle – Eicher Lorry is responsible for the accident, without assigning any reasons.
iii. The admission made by the respondent No.1 during the course of cross-examination would reveal that the accident occurred due to the negligence on the part of the driver of the Car.
iv. The MACT, Shivamogga has held in M.V.C. No.605/2014 that the driver of the said Car was negligent to an extent of 50% in occurrence of the accident.
v. The MACT, Bangalore, was not at all justified in coming to the conclusion that accident occurred due to the negligence of driver of the Lorry alone.
vi. Further, it is contended that the Tribunal has failed to notice that the age of the deceased in M.V.C. No.6532/2013 was more than 52 years and he was left with only 8 years of service. In that view of the matter, the Tribunal should have taken split multiplier, as contemplated in the case of Union of India and others vs K.S.Lakshmi Kumar and others, reported in ILR 2000 KAR 3809. The findings given by the MACT in respect of future prospects was erroneous and unscientific. Taking future prospects is extraneous to multiplier method being adopted by the Tribunal.
vii. The Tribunal has failed to notice that all three claimants are self-reliant and they were not dependent on the income of the deceased, more particularly, respondent Nos.2 and 3. In the said circumstances, the loss of dependency could not have been more than 50%. The determination of compensation by the Tribunal is contrary to Section 168 of the Motor Vehicle Act and the same deserves to be scaled down.
16. Heard learned counsel for the appellants and respondents. Perused the records. We have given anxious consideration to the submissions made by the counsels of both parties.
17. As far as the liability is concerned, in M.V.C. No.605/2014, the MACT, Shivamogga, has observed that PW1 admits the correctness of the panchanama – Exhibit-P4 and sketch – Exhibit-P5. These two documents disclose that the deceased was driving the Car near Korlahalli Gate via Birur to Tarikere Road on NH-206 and the lorry was coming from the opposite direction. The road runs East to West and the mahazar shows that from the southern edge of the road, the accident has occurred at a distance of 8 feet towards north. On looking to the damage caused to the car and the lorry, whether it has occurred at this distance from the right side edge of the vehicle or not, is not clear and has further held that Exhibit-P5 shows that the accident has occurred almost in the middle of the road. Thus fixed 50% contributory negligence on each of the drivers. But, whereas in M.V.C. No.6532/2013 and M.V.C. No.6599/2013 are concerned, the MACT, Bengaluru, has only observed that the evidence of PW1 to 3 coupled with the police papers like FIR, complaint, spot mahazar, IMV report, inquest report, charge sheet as per Ex.P1 to Ex.P8, it is evident that the accident in question has taken place due to the rash and negligent act on the part of the driver of the offending vehicle namely Eicher Lorry.
18. On going through the findings given by both MACTs, it is quite evident that there is no detailed discussion about the relevant documents namely the spot mahazar, spot sketch and other charge-sheet records. The reasons assigned are very cryptic. The respondents No.3 and 4 have simply denied involvement of their respective insured vehicles and thus contend that they are not liable to pay the compensation. However, they have failed to substantiate the same by cogent materials. The Oriental Insurance Company Ltd., insurer of offending vehicle has specifically admitted issuance of policy. The respondent No.4 has specifically admitted the issuance of policy in respect of the offending vehicle, respondent was not initially made as party in the petition, but later on impleaded, but however there are no materials to hold respondent No.4 liable to pay compensation. Because in all the police records, the driver of the offending vehicle (Eicher Lorry) has been made as the accused and that there are no contra materials brought on record to discredit the oral as well as documentary evidence relied upon. The MACT, Bangalore, has jumped to the conclusion without discussion about the spot sketch or the spot mahazar. Even the MACT, Shivamogga, has not considered this issue in detail. Thus, it is necessary to consider the evidence placed on record afresh to arrive at a decision about the manner in which the accident has taken place and whether there was any contributory negligence on the part of the driver of the Swift Dzire Car?
19. No doubt Ex.P4 & P5 show that the accident has occurred in middle of the road. It is also true that accident is due to head on collision. The authors of Ex.P4 & P5 are not examined. The charge sheet is filed only as against the driver of Eicher lorry. The insurer of the said lorry has not challenged the charge sheet. In the absence of the same, it cannot be said that there is contributory negligence on the part of driver of the car. Further, authors of Ex.P4 and P5 are not examined and they are not subjected to cross-examination. In the absence of the same Ex.P4 and P5 cannot be believed to arrive at a definite conclusion that there was contributory negligence on the part of driver of the car. The MACT Bengaluru has failed to assign reasons to fix the sole negligence on driver of the lorry. But its conclusion as to negligence cannot be disturbed. For the above reasons, the finding of the MACT, Shivamogga fixing 50% negligence on both drivers is liable to be set aside and it is accordingly set aside.
20. The insurer has contended in MFA No.2146/2016 & 2147/2016 that split multiplier ought to have been adopted considering the age of the deceased being 52 years, left with only 8 years of service and there was no guarantee that he would have earned amount after retirement. Even if the said ratio is adopted, the difference of the amount would be less and not substantial. Here is a case where the two daughters have lost their father at the age of 25 & 23 years respectively and wife has lost her husband at the age of 46 years. The claims tribunal has adopted a particular procedure and unless there is a material irregularity in the said procedure, it is not a ground to interfere with the judgment and award passed by the Tribunal. Therefore, we do not propose to apply the said principle of split multiplier in the present case.
21. The Tribunal in M.V.C. No.6532/2013 has awarded the compensation under the following heads:
01 Towards loss of dependency Rs.1,24,73,208.00 02 Towards loss of consortium Rs.1,00,000.00 03 Towards funeral expenses Rs.30,000.00 04 Towards loss of love and affection Rs.20,000.00 TOTAL Rs.1,26,23,208.00 22. In M.V.C. No.6532/2013, the petitioner Nos.2 and 3 are aged about 25 and 23 years respectively. There is no specific evidence to show that they being unmarried daughters were dependent on the income of the deceased Gajendran. The petitioner No.1 in a connected case in M.V.C. No.6599/2013 is awarded compensation of Rs.9,46,968/-. No material is produced by the insurer to show that appellants No.2 & 3 were not dependent. Therefore, the deduction admissible is one-third and not 50% as sought to be contended by the insurer. So far as income assessed by the Tribunal, it is based on the documentary evidence. Future prospects is also rightly applied and calculated by the claims tribunal. Therefore, so far as compensation determined towards loss of dependency adopting deduction of one- third cannot be found fault with in MVC No.6532/2013.
23. As far as consortium is concerned, Rs.1,00,000/- is awarded. In addition to that Rs.30,000/- is awarded towards funeral expenses and Rs.20,000/- towards loss of love and affection. As per the guidelines of the Hon’ble Supreme Court in National Insurance Company vs Pranay Sethy’s case, reported in AIR 2017 SC 5157, only a sum of Rs.70,000/- requires to be awarded under the conventional heads – loss of estate, loss of consortium, transportation, love and affection and funeral expenses. Therefore, the total amount of compensation to which the claimants are entitled in MVC No.6532/2013 is Rs.1,25,43,208/- (Rs.1,24,73,208/- + Rs.70,000/-).
24. In related M F A No.1186/2016 (MVC NO.6532/2013) the claimants sought for enhancement of compensation on the ground that the deceased was drawing salary of Rs.17,87,987/- per annum. This contention being not supported by any documentary evidence, it cannot be accepted. Further their contention to enhance the compensation under the head consortium, funeral expenses and love and affection is not permissible in view of the decision in Pranay Sethy’s case as referred to above. Therefore, M F A No.1186/2016 is liable to be dismissed and it is accordingly dismissed. M F A No.2147/2016 is partly allowed.
25. In M.V.C. No.6599/2013 is concerned, the Tribunal has awarded compensation under the following heads:
01 Pain and agony Rs.30,000.00 02 Medical expenses Rs.4,99,968.00 03 Loss of income Rs.15,000.00 04 Disability Rs.3,12,000.00 05 Future medical expenses Rs.40,000.00 06 Loss of enjoyment and amenities in life Rs.20,000.00 07 Food and nourishment Rs.20,000.00 08 Attendant charges Rs.10,000.00 TOTAL Rs.9,46,968.00 26. The grievance of the appellant in related MFA No.1188/2016 (MVC NO.6599/2013) is that the compensation awarded is on the lower side. The MACT has failed to consider the injuries, fracture sustained by the victim Smt. Bina Gajendran. In the instant case, the appellant has sustained the following injuries:
a. Fracture of femur right thigh b. Segmental fracture left humerus c. Fracture of right lamina of C3 involving facet joint articular surface d. Fracture of right radius e. Multiple lacerated wound over face, scalp, left foot, left hand f. Bilateral acromion fracture g. Fracture of right transverse process of D to D3 vertebra.
27. Considering the above fractures and injuries, we are of the view that the appellant is entitled to compensation of Rs.80,000/-, instead of Rs.30,000/- towards pain and suffering. As far as medical expenses are concerned, the MACT has awarded a compensation of Rs.4,99,968/- considering the medical bills, which is just &proper.
28. Regarding loss of income, the appellant has stated that she was working as a Tailor and earning Rs.10,000/- per month and on account of fracture of femur right thigh, segmental fracture left humerus, fracture of right lamina of C3 involving facet joint articular surface, fracture of right radius, multiple lacerated wound over face, scalp, left foot, left hand and bilateral acromion fracture, she was deprived of the income for the period during the medical treatment and rest period. Considering all these aspects, an amount of Rs.15,000/- is awarded. There is no cogent evidence to support the contention of the earnings through tailoring business. Under these circumstances, the compensation awarded under loss of income is justified.
29. Regarding loss of income due to disability, the MACT on the basis of the evidence of PW5 – Doctor has come to the conclusion that the appellant is having disability of 40% to the whole body and her monthly income is taken as Rs.5,000/- and the compensation of Rs.3,12,000/- is awarded towards loss of future earning capacity. The said quantum of amount awarded also does not require interference. Even the compensation awarded towards future medical expenses, loss of enjoyment and amenities in life are just and proper.In the circumstances, M F A No.1188/2016 is partly allowed enhancing the compensation by Rs.50,000/- which shall carry interest as awarded by the claims tribunal. Consequently, M F A No.2146/2016 is liable to be dismissed and it is accordingly dismissed.
30. In M.V.C. No.605/2014, the MACT, Shivamogga, has awarded compensation of Rs.7,27,200/- under the following heads:
01 Loss of dependency Rs.6,07,200.00 02 Loss of consortium Rs.50,000.00 03 Love and affection Rs.30,000.00 04 Funeral expenses Rs.30,000.00 05 Miscellaneous expenses Rs.10,000.00 31. As far as loss of dependency is concerned, the Tribunal has taken monthly salary at Rs.8,000/- and in view of the principle laid down by the Hon’ble Supreme Court in Rajesh and others vs. Rajbeer Singh reported in 2013 ACJ 1403, additional 15% is added and total salary is taken as Rs.9,200/-. Thereafter, 50% has been deducted in view of the guidelines in Sarala Verma’s case, after necessary calculation, the total compensation of Rs.6,07,200/- is awarded under loss of dependency. The compensation awarded towards conventional heads under different heads namely, consortium, love and affection, funeral expenses and miscellaneous expenses is erroneous. In all put together, the appellant is entitled to Rs.70,000/- under the conventional heads in view of the decision in Pranay Sethy’s case referred to supra. This Court has come to the conclusion that there is no contributory negligence on the part of the deceased Shivanna namely the driver of Swift Dzire Car. The claimants in MFA No.1824/2016 are entitled to total compensation of Rs.6,77,200/- along with 6% interest, which the third respondent is liable to make good.
32. In the result, we proceed to pass the following:
ORDER i. MFA NO.1186/2016 is dismissed.
ii. MFA NO.1188/2016 is partly allowed.
iii. MFA NO.1824/2016 is partly allowed.
iv. MFA NO.2146/2016 is dismissed.
v. MFA NO.2147/2016 is partly allowed.
Sd/- JUDGE Sd/- JUDGE SJ