IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY 2019 PRESENT THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR MISCELLANEOUS FIRST APPEAL NO.2674 OF 2013 (MV) BETWEEN:
1. HAZEERA BANU W/O LATE M.R.NAZEER AHAMED, AGED ABOUT 46 YEARS 2. MOHAMMED NOOHU S/O LATE M.R.NAZEER AHAMED, AGED ABOUT 27 YEARS 3. MOHAMMED NOOR S/O LATE M.R.NAZEER AHAMED, AGED ABOUT 25 YEARS ALL THE APPELLANTS ARE RESIDING OPPOSITE TO NEW GUJARI BAZAAR, GEETHA MANDIRA ROAD, LAKSHKAR MOHALLA, MYSORE – 570 001 ...APPELLANTS (BY SRI.SUNEEL S NARAYAN, ADV.) AND:
1. ZAMEER AHAMED S/O NAZEER AHAMED, MAJOR, R/AT:NO.45, SHIVAPPA EXTENSION, PERIYAPATNA TALUK, MYSORE DISTRICT – 571 102 2. THE BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, NO.1260, 2ND FLOOR, PADMALAYA, VINOBA ROAD, SHIVARAMPET, MYSORE – 570 001 3. SMT.NAZEEM BANU W/O LATE M.R.NAZEER AHAMMED, AGED ABOUT 38 YEARS 4. RUMAN NAZEEM D/O LATE M.R.NAZEER AHAMMED, AGED ABOUT 12 YEARS 5. SHOYAB AHAMMED S/O LATE M.R.NAZEER AHAMMED, AGED ABOUT 12 YEARS 6. AFRIN S/O LATE M.R.NAZEER AHAMMED, AGED ABOUT 6 YEARS RESPONDENTS 4 TO 6 ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN – MOTHER SMT.NAZEEM BANU, RESPONDENTS NO.3 TO 6 ARE RESIDING AT DOOR NO.1805, V.P.BORE, 2ND WEST MAIN, KALKUNI VILLAGE, HUNSURU TOWN – 571 105 7. NOOR HAZEERA W/O LATE M.R.NAZEER AHAMED, AGED ABOUT 35 YEARS 8. NOOR ARMAN S/O LATE M.R.NAZEER AHAMED, AGED ABOUT 13 YEARS 9. NOOR BOOSHRA S/O LATE M.R.NAZEER AHAMED, AGED ABOUT 12 YEARS 10. NOOR KULSOOM S/O LATE M.R.NAZEER AHAMED, AGED ABOUT 10 YEARS, RESPONDENTS 8 TO 10 ARE MINORS, REPRESENTED BY THEIR NATURAL GUARDIAN – MOTHER SMT.NOOR HAZEERA RESPONDENTS NO.3 TO 6 ARE RESIDING AT OPPOSITE TO NEW GUJARI BAZAAR, GEETHA MANDIRA ROAD, LAKSHKAR MOHALLA, MYSORE – 570 001.
11. NAZEER AHAMED S/O ABDUL SIDDIQ MAJOR, RESIDING AT NO.A/4 N.E.S. COLONY, PERIYAPATNA TOWN, MYSORE DISTRICT-571 102 … RESPONDENTS (BY SRI.R RAJAGOPALAN, ADV. FOR R2; NOTICE TO R1 & R11 ARE DISPENSED; SMT.VANITA K.R. ADV. FOR R3, R7;
(R-4 TO R-6 ARE MINORS REP. BY R3; (R-8 TO 10 ARE MINORS REP. BY R7)) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:10.08.2012 PASSED IN MVC NO.1340/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-IV, ADDITIONAL MACT, MYSORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, ACTING CHIEF JUSTICE DELIVERED THE FOLLOWING:
J U D G M E N T For the road traffic accident that took place on 12th August 2011 at 9.45 pm, the case of the complainant is that on the said day when the deceased, along with pillion rider PW2, while were proceeding on their Bajaj Platina bike bearing registration No.KA 09 EC 3464 dashed against the stationed lorry bearing Registration No.KA 37/2649 the impact of which the rider succumbed to the injuries. The claimants filed claim petition seeking compensation on the file of the Presiding Officer, Fast Track Court-IV, Additional Motor Accident Claims Tribunal, Mysore. The Tribunal, having considered the claim petition on the basis of the documents and evidence, awarded compensation of Rs.3,96,500/- and fastened 50% negligence on the part of the deceased-rider. For the purpose of awarding compensation, the Tribunal has taken the income at Rs.3,500/- per month as against the claimed income of Rs.30,000/- per month. Hence, the learned counsel for the appellant seeks enhancement in the compensation.
2. The learned counsel appearing for the respondent submits to dismiss the appeal. He submits that the reasons assigned by the Tribunal and the compensation awarded is sound and proper and there is no ground for interference in this appeal.
3. Heard the learned counsel for the parties and gone through the lower court records made available. While fixing 50% negligence on the part of the deceased rider, the Tribunal has referred to the documentary evidence. While fixing negligence on the deceased, as no other persons are available to adduce evidence in respect of high speed of the two-wheeler, the Tribunal, on the basis of the discussion made at paragraph 17 of the judgment has observed that the lorry was parked without putting the parking lights on. In the absence that there was no indication of parking lights in order to alert the other road-users, inference cannot be drawn that the rider of the two-wheeler committed negligence to the extent of 50%. While the Tribunal considers the negligence, there shall be specific piece of evidence and documents marked to that effect. In the instant case no such documents are marked for consideration for fixing 50% negligence on the rider. Accordingly 100% liability is fixed on the insurance.
In respect of the contention of the learned counsel regarding taking of income by the Tribunal at Rs.3,500/- per month is concerned, though the claimed income is Rs.30,000/- per month, it is to be observed that except stating that the deceased was earning Rs.30,000/- per month nothing has been produced to that effect. Be that as it may, considering the case with relevance to the year of accident, which is 2011 in this case, we consider to take the income of the deceased at Rs.6,000/- per month. Taking the said income, the calculation would be Rs.6,000/- x 12 x 11 x ¼ which comes to Rs.5,94,000/-. The same is awarded under the head loss of dependency as against Rs.3,46,500/- awarded by the Tribunal. Under conventional heads, all put together Rs.70,000/- is awarded. Considering the age of the deceased and the loss to the family because of his untimely death, Rs.50,000/- is awarded towards love and affection. In total, the total compensation would be Rs.7,14,000/- as against the compensation of Rs.3,96,500/- awarded by the Tribunal. It is made clear that the apportionment and the interest on the enhanced amount would be as per the award of the Tribunal. The order of the Tribunal is modified to that effect. Appeal is allowed in part.
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ACTING CHIEF JUSTICE Sd/- JUDGE lnn