IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA M.F.A. NO.1723/2013 (MVC) BETWEEN;
1. SMT.DRAUPADI P.S. AGED ABOUT 55 YEARS W/O LATE P T GOPALA 2. SHRI P G THRISHUL AGED ABOUT 24 YEARS S/O LATE P T GOPALA 3. SHRI P G HARSHA BELLIAPPA AGED ABOUT 22 YEARS S/O LATE P T GOPALA ALL ARE R/AT "MANJUSHREE NILAYA" VIDYANAGAR, BLOCK NO.14, CMC, MADIKERE.
... APPELLANTS (By Sri. N. S. BHAT, ADV.) AND:
1. SMT. SARITHA JALAN AGED ABOUT 32 YEARS W/O SUDHIR KUMAR JALAN SRI GANESH BULK CARRIERS VEENA KRISHNA KODIAL GUTHU EAST, M G ROAD MANGALORE.
(OWNER OF TRANKER BEARING REGISTRATION NO.KA-19-AC-9099) 2. RAYAN PETER RODRIGUES, AGED ABOUT 30 YEARS, S/O. JOHN RODRIGUES "BEDRODI HOUSE" BAJATHOOR VILLAGE PUTTUR TALUK, DK (DRIVER OF TANKER) 3. THE BRANCH MANAGER ORIENTAL INSURANCE COMPANY LTD., CITY BRANCH, KULADI BUILDING, K S RAO ROAD, HAMPANAKATTA 575 001 MANGALORE ... RESPONDENTS (By R.1 AND R.2 – SERVED, SRI. K. K. VASANTH, ADV. FOR R.3) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:14.9.2012 PASSED IN MVC NO.115/2008 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, KODAGU, MADIKERI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal is by the claimants challenging the judgment and award passed by the Tribunal both on the ground of negligence as well as quantum of compensation.
2. With the consent of the learned counsels appearing for the parties, the appeal is heard and disposed of finally. Perused the judgment and award of the Tribunal.
3. As there is no dispute regarding death of one P.T.Gopala in a road traffic accident occurred on 18.10.2006 by involvement of Toyota Qualis and a Tanker, the points that arise for consideration in the appeal are:
(i) Whether the finding of the Tribunal on negligence in holding that accident occurred due to contributory negligence of 20% on the part of the driver of the Toyota Qualis and 80% on the part of the driver of the Tanker, is sustainable in law?
(ii) Whether compensation awarded by the Tribunal is Just and proper or does it call for enhancement?”
4. Sri. N.S.Bhat, learned Counsel appearing for the claimants in MVC No.115/2008 submits, though the driver of the Toyota Qualis in which deceased was travelling along with others as passenger, was driving the Toyota Qualis on the left side of the road, accident occurred due to sole rash and negligent driving of the driver of tanker and the Tribunal without considering the same has committed an error in holding that accident occurred due to contributory negligence of 20% on the part of the driver of Toyota Qualis and 80% on the part of the driver of the tanker.
5. Regarding quantum, learned Counsel submits, Tribunal has committed an error by applying split multiplier in awarding compensation towards loss of dependency and consequently compensation awarded towards loss of dependency is on the lower side, therefore, he prays for allowing the appeal both on the ground of negligence as well as on quantum.
6. Sri. K.K.Vasanth, learned Counsel appearing for the insurer of tanker submits, the Tribunal considering the oral and documentary evidence on record, particularly the Police records, has rightly held that accident occurred due to contributory negligence of the drivers of both the vehicles and the said finding of the Tribunal does not call for interference. Regarding quantum he submits, whatever compensation which has been awarded by the Tribunal is just and proper and there is no scope for enhancement and prays for dismissal of the appeal in its entirety.
7. The claimants in support of their contentions that accident occurred due to rash and negligent driving of the driver of the tanker, have examined eye witnesses to the accident who have stated that accident had occurred due to sole rash and negligent driving of the driver of the tanker. However, Tribunal considering the oral and documentary evidence on record, specially the spot mahazar, sketch and IMV reports of the vehicles has rightly held that the accident had occurred due to contributory negligence of 20% on the part of the driver of Toyota Qualis and 80% on the part of the driver of tanker. I have carefully gone through the said finding of the Tribunal on negligence and do not find any illegality warranting interference. Hence, finding of the Tribunal on negligence is confirmed and point no.1 is answered accordingly.
8. Regarding quantum : In the case of Puttamma and others vs. K.L.Narayana Reddy and another reported in (2013) 15 SCC 45, the Hon’ble Supreme Court has held, applying of split multiplier in routine course is bad in law. Therefore compensation awarded by the Tribunal is reassessed.
9. Claimants in support of their contention that deceased by working as Police Constable in the Department of Home, Government of Karnataka, was drawing salary of Rs.12,020/-, have examined Draupadi – wife of deceased as P.W.3 who has produced salary certificate of her deceased husband as Ex.P.8. Perusal of salary certificate would show, deceased was drawing gross salary of Rs.12,020/-. A sum of Rs.150/- is shown to have been deducted towards professional tax. If that is so, his monthly salary would become Rs.11,870/-. As deceased was 51 years at the time of his death in the accident, no portion of salary can be added to his income towards future prospects. Multiplier applicable to his age group is `11’. Claimants are wife and two sons who are in the age group of 20 and 18 years respectively. Therefore, 1/3rd of the income of the deceased has to be deducted towards his personal expenses and remaining 2/3rd has to be taken as his contribution towards family. So, loss of dependency works out to Rs.10,44,560/- (Rs.11,870/- x 12 x 2/3 x 11) and it is awarded as against Rs.7,36,720/- awarded by the Tribunal under this head.
10. First claimant – wife of the deceased has lost her husband at the age of 51 years. Therefore, a sum of Rs.50,000/- is awarded towards loss of consortium and Rs.1,00,000/- is awarded towards loss of love and affection of claimants 2 and 3 at the rate of Rs.50,000/- each and a sum of Rs.20,000/- is awarded towards transportation of dead body and funeral expenses.
11. Thus claimants are entitled for the following compensation:
1) Loss of dependency Rs.10,44,560/-
2) Loss of consortium Rs. 50,000/-
3) Loss of love and affection Rs. 1,00,000/-
4) Transportation of dead body and funeral expenses Rs. 20,000/-
Rs.12,14,560/-
12. From the total compensation, 20% has to be deducted towards negligence contributed by the driver of Toyota Qualis in which deceased was travelling. Consequently, claimants are entitled to 80% of Rs.12,14,560/- which comes to Rs.9,71,648/- with interest at 6% p.a. from the date of claim petition till the date of realization.
Accordingly the appeal is allowed in part and the Judgment and award of the Tribunal is modified to the extent stated herein above. The claimants are entitled for a total compensation of Rs.9,71,648/- as against Rs.7,64,720/- awarded by the Tribunal, with interest at 6% p.a. from the date of claim petition till the date of realisation.
The Insurance Co. is directed to deposit the compensation amount with interest within two months from the date of receipt of a copy of this judgment. Disbursement and apportion of compensation amongst the claimants shall be in the ratio of the award of the Tribunal.
No order as to costs.
SD/- JUDGE MGN