IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ M.F.A. NO.2236 OF 2013 (MV) C/W M.F.A. CROB NO.72 OF 2015 (MV) IN M.F.A NO.2236 OF 2013 (MV) IN M.F.A. NO.2236 OF 2013:
BETWEEN:
THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO LTD DO-2, NEW MUSLIM HOSTEL COMPLEX BUILDING, NEAR FIRE BRIGADE, SARASWATHIPURAM, MYSORE.
REPTD. BY ITS AUTHORIZED OFFICER, REGIONAL OFFICE, NO.44/45, IV FLOOR, LEO SHOPPING, RESIDENCY ROAD CROSS, BENGALURU- 560 025. ... APPELLANT (BY SRI R GUNASHEKAR, ADVOCATE) AND 1. SMT BHAGYAMMA, W/O LATE SUNDRESH @ SUNDRESH GOWDA, AGED ABOUT 29 YEARS, 2. MASTER BHARATH, S/O LATE SUNDRESH @ SUNDRESH GOWDA, AGED ABOUT 12 YEARS, 3. KUM BHAVANI D/O LATE SUNDRESH @ SUNDRESH GOWDA, AGED ABOUT 10 YEARS, RESPONDENT NOS.2 AND 3 SINCE ARE MINORS, REPRESENTED BY RESPONDENT NO.1 – THEIR MOTHER AND NATURAL GUARDIAN.
4. SMT GOWRAMMA, W/O SIDDEGOWDA, AGED ABOUT 59 YEARS, RESPONDENT NOS.1 TO 4 ARE R/O AND C/O NAGESH, S/O PUTTEGOWDA, 2ND CROSS, LABOUR COLONY, MANDYA DISTRICT.
5. SRI N JAGADESH, S/O NARAYANAPPPA,MAJOR, R/O NO. 197, MYLASANDRA, R V COLLEGE, BENGALURU (OWNER OF TOYOTA QUALIS CAR BEARING REGN.NO.KA 03/MK 369) 6. SRI MAJESH, S/O PATHROSE, NEDUPURATH HOUSE, PUNNAYAM, ASAMANNOOR POST, ERNAKULAM, KERALA STATE- 683 549 (OWNER OF LORRY NO. KA-08/J 1827 7. THE BRANCH MANAGER, UNITED INDIA INSURANCE CO.,LTD M C ROAD, MANDYA (POLICY ISSUING OFFICE:101103 (OFFICE CODE) BRANCH OFFICE, II FLOOR, VADAKKANETHAL TOWERS, PRIVATE BUS STAND ROAD, PERUMBAVOOR- 683 542.
KERALA STATE. ... RESPONDENTS (BY SRI.L.RAJA, ADVOCATE FOR R.1 AND R.4 AND SRI.S GANGADHARA AITHAL, ADVOCATE FOR R5) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 23.11.2012 PASSED IN MVC NO.206/2009 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (SR.DN) & CJM, MACT, MANDYA, AWARDING A COMPENSATION OF RS.7,05,000/- WITH INTEREST @ 6% P.A, FROM THE DATE OF PETITION TILL ITS DEPOSIT AND ETC., IN M.F.A. CROB NO.72 OF 2015 IN M.F.A NO.2236 OF 2013:
BETWEEN:
1. BHAGYAMMA W/O SUNDARESH @ SUNDRESHGOWDA, AGED ABOUT 32 YEARS, 2. BHARATH, S/O LATE SUNDARESH @ SUNDRESHGOWDA, AGED ABOUT 15 YEARS, 3. BHAVANI, D/O LATE SUNDARESH @ SUNDRESHGOWDA AGED ABOUT 13 YEARS, SL. NOS.2 & 3 CROSS OBJECTORS ARE MINORS REPRESENTED BY CROSS OBJECTOR NO.1 THEIR NATURAL GUARDIAN.
4. GOWRAMMA W/O SIDDEGOWDA AGED ABOUT 58 YEARS ALL ARE RESIDENT OF C/O NAGESH, S/O PUTTEGOWDA, 2ND CROSS, LABOUR COLONY, MANDYA CITY-571401. ...CROSS OBJECTORS (BY SRI.RAJA L, ADVOCATE) AND 1. N. JAGADEESH, S/O NARYAPPA, MAJOR, RESIDING AT NO.197, MYLASANDRA, R.V.COLLEGE, BENGALURU.
2. THE DIVISION MANAGER, ORIENTAL INSURANCE COMPANY LTD., DO-2, NEW MUSLIM HOSTEL COMPLEX, BUILDING, NEAR FIRE BRIGADE, SARASWATHIPURAM, MYSURU, REPRESENTED BY ITS AUTHORIZED OFFICER, REGIONAL OFFICER, NO.44/45, 4TH FLOOR, LEO SHOPPING, RESIDENCY ROAD CROSS, BENGALURU-560 025.
3. MAJESH, S/O PATHROSE, NEDUPURATH HOUSE, PUNNAYAM, ASAMANNOOR POST, ERNAKULAM, KERALA STATE-683549.
4. THE BRANCH MANAGER, UNITED INDIA INSURANCE CO LTD., M.C.ROAD, MANDYA, POLICY ISSUING OFFICE - 101103 (OFFICE CODE), BRANCH OFFICE 2ND FLOOR, VADAKKANETHAL TOWERS, PRIVATE BUS-STAND ROAD, PERUMBAVOOR-683542, KERALA STATE. ... RESPONDENTS THIS MFA CROB IN MFA NO.2236/2013 IS FILED UNDER ORDER 41, RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED:23.11.2012 PASSED IN MVC NO.206/2009 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (SR.DN), CJM, MACT, MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL CONNECTED WITH MFA CROB COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T The above MFA No.2236/2013 is preferred by the Insurer/2nd respondent before the Tribunal challenging the judgment and award dated 23.11.2012 passed by the Additional Senior Civil Judge & CJM and MACT at Mandya, in MVC No.206/2009 wherein a total compensation of Rs.7,05,000/- with interest at the rate of 6% per annum was awarded to the claimants namely the legal representatives of the deceased Sundresh @ Sundreshgowda who died in a road traffic accident on 08.01.2009 involving a Toyata Qualis Car bearing Registration No.KA.03/MK 369 and lorry bearing No.KL.08/J 1827. The Tribunal has held that there is a contributory negligence on the part of both the vehicles and thereby directed each of the owner and insurer of both the vehicles to deposit 50% of the compensation amount.
2. I have heard the learned counsel appearing for the appellant and learned counsel appearing for the respondents.
3. Notice to respondent No.6 has been held sufficient.
4. MFA CROB No.72/2015 has been filed by the claimants seeking enhancement of compensation awarded by the Tribunal.
5. The claimants are the wife, two children and mother of the deceased. It is the case of the claimants that on 08.01.2009, the husband of 1st claimant by name Sundresh @ Sundareshgowda was traveling along with his wife, children and friends in a Toyata Qualis Car No.KA.03/MJ 369 to go to Shabarimali Temple from his village Bekya, Periyapatna Taluk. At about 11.45 p.m., midnight on Trissur Boulakudi (Angamalai) National Highway, N.H.47 near Nelayi one lorry bearing No.KL.08/J 1827 was parked on the said road facing towards Angamalai, loaded with huge bamboos projecting from it. The Toyata Qualis Car driven by its driver in a rash and negligent manner dashed against the hind portion of the lorry. Due to which the said car was caught over the bamboos and back side of the lorry. In the said accident, three persons died at the spot. The husband of the 1st claimant sustained severe injuries and he was shifted to hospital, however, on the way, he succumbed to the injuries.
6. The claimants filed a claim petition before the Tribunal claiming a total compensation of Rs.14,59,000/-. According to the claimants, the deceased was an agriculturist and also doing tailoring business and he was aged about 31 years at the time of accident. The deceased was owning 8 cross breed cows and getting 80 liters milk per day and he was owning 2 acres of land and in all, he was earning about Rs.25,000/- per month and spending the entire amount towards the maintenance of the family.
7. Before the Tribunal, the claimants got examined P.W.1 and 2 and got marked Ex.P.1 to 12. On behalf of the respondents, no evidence was led.
8. The Tribunal after considering the evidence and material on record, framed the following issues and additional issue.
1. Whether the petitioners prove that on 08.01.2009 at about 11.45 p.m., midnight on Trissur – Boulakudi (Angamalai) National High Way – NH No.47, the accident took place due to actionable rash and negligent driving of Toyota Qualis bearing No.KA.03/MK-369 by its driver and Sundresh @ Sundreshgowda died in the accident?
2. Whether the petitioners are entitled for compensation? If so, at what rate and from whom?
3. What order or award?
Addl. Issue 1. Whether there is contributory negligence on the part of driver of lorry No.KL.08/J 1827?
9. The Tribunal after considering the evidence and material on record, came to the conclusion that the deceased was earning a sum of Rs.5,000/- per month. On taking 15 as the multiplier and after deducting 1/4th towards personal expenses, awarded a total sum of Rs.6,75,000/- towards loss of dependency and another sum of Rs.30,000/- was awarded towards loss of estate, loss of consortium and funeral expenses and in all it was ordered that the claimants are entitled for total compensation of Rs.7,05,000/- with interest at 6% per annum.
10. With regard to the liability and additional issue framed, it was held that there is a contributory negligence on the part of both the vehicles and therefore, the owners and the Insurance Company of both the vehicles were held liable jointly and severally. Accordingly, they were directed to deposit 50% each of the total compensation awarded.
11. Learned counsel for the appellant/insurer of the Toyata Qualis Car No.KA.03/MK-369 contended that the accident has taken place late in the night at about 11.45 p.m. and the lorry was parked on the road facing towards Angamalai loaded with huge bamboos projecting over it and its back side without any indicator or signal. Hence, he submitted that the Tribunal has erred in computing the contributory negligence by fixing the liability at 50% on the Insurer of the Toyata Qualis Car. On the other hand, he submits that the accident has occurred solely on account of the negligence on the part of the driver of the lorry. He submitted that the owner and insurer of the lorry is solely liable to pay the compensation and not the owner and insurer of the Toyata Qualis Car. He further submits that the compensation awarded by the Tribunal is also on the higher side since there is no evidence adduced by the claimants to prove the income of the deceased and therefore, he submits that the loss of dependency computed by the Tribunal is on the higher side and accordingly, seeks to allow the appeal.
12. Per contra, the learned counsel appearing for the claimants submitted that the accident has taken place on account of the contributory negligence of both the vehicles and the Tribunal after considering the entire evidence has rightly come to the conclusion that there is a contributory negligence and fixed the liability on both the vehicles and hence, he submits that the said finding does not call for any interference. He further submitted that the deceased was an Agriculturist and he was also doing tailoring business and he was owning 8 cross breed cows and getting sufficient income by milk vending business. He was also owning 2 acres of land and hence, the income of Rs.5,000/- taken by the Tribunal is on the lower side. He would further submit that the Tribunal has awarded only Rs.30,000/- under the head ‘loss of estate’, ‘loss of consortium’ and ‘funeral expenses’ which is also not in accordance with law laid down by the Hon’ble Apex Court in the case of National Insurance Company Limited v.
Pranay Sethi reported in 2017 ACJ 2700. Accordingly, he seeks to dismiss the appeal filed by the Insurance Company and to enhance the compensation awarded by the Tribunal by modifying the judgment and award.
13. It is the case of the claimants that the deceased while traveling in a Toyata Qualis Car No.KA.03/MK-369 along with others, met with an accident on 08.01.2009 at about 11.45 p.m., on Trishul Boulakudi (Angamalai) National Highway, N.H.47 near Nelayi. The said car dashed against one lorry which was parked on the road facing towards Angamalai loaded with huge bamboo projecting from it.
14. It is the contention of the learned counsel for the Insurance Company that the accident has occurred solely on account of the negligence of the driver of the lorry in question. Because the said lorry was parked without putting any indicator or parking light and it was loaded with bamboos which were projecting from it. It is his submission that the liability fixed on the insurer of the car in question at 50% is not proper and the Tribunal ought to have held the owner and insurer of the lorry in question solely responsible for the accident.
15. It is no doubt true that the lorry was loaded with bamboos projecting from it and the evidence does not suggest that there was any parking light. However, the fact remains that the lorry was parked and the driver of the Toyata Qualis Car by driving the said car in a rash and negligent manner dashed against the hind portion of the lorry. The Tribunal has considered the evidence of P.W.2, who has stated that the driver was overtaking the other vehicle, though space was available on road he rashly and negligently dashed against the lorry. Considering the said evidence, the Tribunal has come to the conclusion that there is a contributory negligence on the part of both vehicles and fixed the liability at 50% each. I do not see any error in the said finding recorded by the Tribunal. Accordingly, the finding of the Tribunal holding that both the vehicles are responsible for the accident and apportioning the liability equally cannot be said to be erroneous. The contention of the learned counsel for the appellant in this regard is rejected.
16. In so far as the quantum of compensation awarded by the Tribunal is concerned, it is the case of the claimants that the deceased was aged about 31 years at the time of accident. In the Post Mortem Report, the age of the deceased is mentioned as 35 years. It is stated that the deceased was doing tailoring business and he was also an agriculturist. Ex.P.11 is the certificate issued by the Grama Panchayath stating that the deceased Sundresh @ Sundresh Gowda was doing tailoring business. Ex.P.12 is the certificate issued by Milk Producers Co-operative Society, Panchavali, Piriyapatna Taluk, which discloses that the deceased used to supply milk to the above said society. Considering the evidence on record, I deem it fit to take the income of the deceased at Rs.6,000/- per month. The age of the deceased being 35 years, the proper multiplier which applicable is 16.
17. The Hon’ble Supreme Court of India in the case of National Insurance Company Limited v. Pranay Sethi reported in 2017 ACJ 2700 has held that in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. In the case of Hemraj vs. Oriental Insurance Company and others reported in 2018 ACJ 5. The Hon’ble Apex Court has held at para No.13 that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guesswork in the facts and circumstances of a case. Both the situations stand at the same footing.
18. In view of the law laid down by the Hon’ble Apex Court, I deem it fit to add another 40% to the income assessed in the present case. Accordingly, the loss of dependency comes at (6,000+2,400x12x16) = Rs.16,12,800/- and by deducting 1/4th towards personal expenses of the deceased, it comes to Rs.12,09,600/-. The claimants are also entitled for a sum of Rs.70,000/- towards loss of estate, loss of consortium and funeral expenses. Hence, the total compensation for which the claimants are entitled is Rs.12,79,600/-. Accordingly, I proceed to pass the following;
ORDER MFA No.2236/2013 is dismissed.
MFA CROB No.72/2015 is allowed in part.
The judgment and award dated 23.11.2012 passed by the Additional Senior Civil Judge & CJM and MACT at Mandya in MVC No.206/2009 is hereby modified.
The Claimants/Cross Objectors are entitled for a total compensation of Rs.12,79,600/- as against the compensation of Rs.7,05,000/- awarded by the Tribunal.
The enhanced compensation of Rs.5,74,600/- shall carry interest at the rate of 6% per annum from the date of petition till its deposit.
The Insurance Company and the owners of both vehicles are jointly and severally liable to pay the enhanced compensation as directed by the Tribunal.
The compensation amount shall be deposited before Tribunal equally by the Insurer of both vehicles within a period of 4 weeks from the date of receipt of the copy of this judgment.
The amount in deposit shall be transmitted to the Tribunal.
SD/- JUDGE NBM