IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE H.P. SANDESH M.F.A.No.6476 of 2012 (MV) C/W M.F.A.No.5633 of 2012 (MV) IN M.F.A.No.6476 of 2012 BETWEEN:
M/S ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED, NO. 89, 2ND FLOOR, S.V.R. COMPLEX, HOSUR MAIN ROAD, MADIWALA, BENGALURU-560068, REP BY ITS MANAGER-LEGAL …APPELLANT (BY SRI:A.M. VENKATESH, ADVOCATE) AND:
1. G REVANASIDDAPPA S/O LATE NAGAPPA, AGED ABOUT 42 YEARS OCC: AGRICULTURE R/O KADAKOLA VILLAGE IN HARAPANAHALLI TALUK, DAVANAGERE DISTRICT.
2. G. RAVICHANDAR S/O G. REVANASIDDAPPA AGED ABOUT 19 YEARS OCC: STUDENT, 3. G. NAGAVENI D/O G REVANASIDDAPPA AGED ABOUT 16 YEARS OCC: STUDENT, 4. G. SREEKANTHA S/O G REVANASIDDAPPA AGED ABOUT 13 YEARS, OCC: STUDENT, RESPONDENT NOS.3 AND 4 ARE MINORS REP BY THEIR NEXT FRIEND AND NATURAL GUARDIAN G.REVANASIDDAPPA, S/O LATE NAGAPPA, AGED ABOUT 42 YEARS, OCC: AGRICULTURE R/O KADAKOLA VILLAGE IN HARAPANAHALLI TALUK, DAVANAGERE DISTRICT.
5. D.M. NARAPPA S/O MUNIYAPPA AGED ABOUT 40 YEARS OCC: DRIVER OF TRAX BEARING REG. NO.KA-35/9730, R/O NICHHAPURA VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT.
6. M. MANJUNATH S/O MUDELINGAPPA AGED ABOUT 38 YEARS OCC: OWNER OF TRAX BEARING REG NO.KA-35/9730, R/O DHARAMAPURA VILLAGE, SANDURE TALUK, BELLARY DISTRICT.
7. A.K. HALAPPA S/O NANDYAPPA AGED ABOUT 45 YEARS OCC: DRIVER OF TRACTOR BEARING REG. NO.KA-17/T-167, R/O KAMMATHAHALLI VILLAGE IN HARAPANAHALLI TALUK, DAVANAGERE DISTRICT.
8. M. CHANDRAPPA S/O SIDDAPPA AGED ABOUT 42 YEARS OCC: OWNER OF TRACTOR BEARING REG. NO.KA-17/T-167, R/O DAGGIBASAPURA VILLAGE IN HARAPANAHALLI VILLAGE, DAVANAGERE TALUK.
…RESPONDENTS (BY SRI: P H VIRUPAKSHAIAH, ADVOCATE FOR R1-4 SRI: BASAVARAJ PATEL G.K., ADVOCATE FOR R6, SRI: N.SATISH, ADVOCATE, FOR R7 & R8, R5-SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 14.03.2012 PASSED IN MVC NO.136/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, HARAPANAHALLI, AWARDING A COMPENSATION OF RS.8,00,000/- WITH INTEREST @ 10% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
IN M.F.A.No.5633 of 2012 BETWEEN:
M. MANJUNATH S/O MUDELINGAPPA AGED ABOUT 42 YEARS OCC: OWNER OF TRAX BEARING REG NO.KA-35/9730, R/O DHARAMAPURA VILLAGE, SANDUR TALUK, BELLARY DISTRICT-577012 …APPELLANT (BY SRI: BASAVARAJA PATIL G.K., ADVOCATE) AND:
1. SRI. G REVANASIDDAPPA S/O LATE NAGAPPA, AGED ABOUT 42 YEARS R/O KADAKOLA VILLAGE HARAPANAHALLI TALUK, DAVANAGERE DISTRICT-577318.
2. G. RAVICHANDRA S/O G. REVANASIDDAPPA AGED ABOUT 19 YEARS OCC: STUDENT, MINOR 3. G. NAGAVENI D/O G REVANASIDDAPPA AGED ABOUT 16 YEARS OCC: STUDENT, MINOR 4. G. SREEKANTHA S/O G REVANASIDDAPPA AGED ABOUT 13 YEARS, OCC: STUDENT, MINOR RESPONDENTS NO.3 AND 4 ARE MINORS REP BY THEIR NATURAL GUARDIAN AND FATHER RESPONDENT NO.1 5. D.M. NARAPPA S/O MUNIYAPPA AGED ABOUT 42 YEARS OCC: DRIVER OF TRAX BEARING REG. NO.KA-35/9730, R/O NICHHAPURA VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT-577412.
6. A.K. HALAPPA S/O NANDYAPPA AGED ABOUT 47 YEARS OCC: DRIVER OF TRACTOR BEARING REG.NO.KA-17/T-167, R/O KAMATHAHALLI VILLAGE HARAPANAHALLI TALUK, DAVANAGERE DISTRICT-577419.
7. M. CHANDRAPPA S/O SIDDAPPA AGED ABOUT 44 YEARS OCC: OWNER OF TRACTOR BEARING REG.NO.KA-17/T-167, R/O DAGGIBASAPURA VILLAGE IN HARAPANAHALLI VILLAGE, DAVANAGERE TALUK-577419.
8. THE GENERAL MANAGER, I.C.I.C.I LOMBARD GENERAL INSURANCE CO. LTD., ZENITH HOUSE, KESHAVARAO KHADYA MARG, OPPOSITE TO RACE COURSE, MAHALAKSHMI, BOMBAY-400034. …RESPONDENTS (BY SRI: P H VIRUPAKSHAIAH, ADVOCATE FOR R1-4 SRI:N.SATISH, ADVOCATE FOR R6 & R7, SRI: B. PRADEEP, ADVOCATE FOR R8) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 14.03.2012 PASSED IN MVC NO.136/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, HARAPANAHALLI, AWARDING A COMPENSATION OF RS.8,00,000/- WITH INTEREST @ 10% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
***** THESE MFA’S COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T MFA.No.6476/2012 is filed by the Insurance Company in respect of tractor and trailer and the other MFA.No.5633/2012 is filed by the owner in respect of the tempo trax, questioning the Tribunal taking the contributory negligence to the extent of 25% and 75% and both the appellants have also questioned the quantum of compensation and interest awarded in MVC.No.136/2010 dated 14th day of March, 2012 on the file of the Senior Civil Judge and MACT at Harapanahalli.
For the sake of convenience, the parties would be referred to in terms of their status and rankings before the Tribunal.
2(i). The factual matrix of the case are, that on 2.8.2010, the deceased Ummakka along with other relatives were traveling in a trax bearing registration No.KA-35/9730 from Madiki Nichhapura to Basavanakote village. When they were near the Kambathahalli village cross of Arasikere road (at road junction), the respondent No.1 being the driver of the said trax, drove the same in high speed and in rash and negligent manner and dashed against the tractor bearing registration No.KA.17-T-167 which was approaching the main road from the sub-road, coming from Kambathahalli village and without any proper precautions, the tractor entered into the main road due to which the accident occurred in between both the trax and tractor and hence, several persons have sustained injuries and Smt.Ummakka died at the spot. Hence the claim petition is filed by the legal heirs of deceased Ummakka. It is the case of the claimants that Ummakka was earning Rs.5,000/- and on account of the untimely death of Smt.Ummakka, the family has suffered loss.
(ii) In pursuance of the claim petition, the respondent No.5 - Insurance Company appeared before the Court and filed its written statement, contending that the accident was on account of rash and negligent driving by the driver of the tempo trax and there is no negligence on the part of the driver of the tractor.
(iii) The owner of the tempo trax – respondent No.2 in the written statement contended that there is no negligence on the part of the driver of the tempo trax and contended that without observing traffic rules, the driver of the tractor and trailer entered the main road and the accident is on account of sole negligence on the part of the driver of the tractor and trailer.
(iv) The claimants in order to substantiate their contentions, they examined one witness as PW.1 and also examined two witnesses as PW.2 and PW.3 who were traveling in the tempo trax and got marked the documents as Exs-P1 to P11. The respondent No.2 is examined as RW.1, respondent No.1 as RW.2 and the Insurance Company examined one witness as RW.3 and got marked Exs-R1 to R21. The Tribunal on considering both oral and documentary evidence allowed the claim petition in part, granting compensation of Rs.8,00,000/- with interest at 10% per annum. The liability is fixed on respondent Nos.1 and 2 to the extent of 75% and on respondent Nos.3 to 5 to the extent of 25%. Hence, the present appeal is filed before this Court by both of them questioning the contributory negligence fixed at 75% and 25% and also contended that the compensation awarded is on higher side and so also the interest.
3. In MFA.No.6476/2012, the main contention of the learned counsel appearing for the Insurance Company is that, the Court below has committed an error in taking contributory negligence of 25% in respect of the driver of tractor and trailer and the Tribunal ought to have come to the conclusion that the accident is on account of the sole negligence on the part of the driver of the tempo trax and hence, it requires interference of this Court. The other contention of the Insurance Company is that the driver of the tempo trax was not having driving licence and the Tribunal taking note that there was no insurance in respect of the said vehicle, the contributory negligence was taken at 25% in respect of the tractor and trailer and the same is erroneous and hence, it requires interference of this Court.
4. The appellant in MFA.No.5633/2012 in the memorandum of appeal would contend that the Tribunal has committed an error in taking the contributory negligence on the part of the driver of the tempo trax to the extent of 75% and the accident is on account of the sole negligence of the driver of the tractor who entered main road without observing the traffic rules and regulations and the Tribunal ought to have fixed the liability in entirety on respondent Nos.3 to 5. In this appeal also, it is contended that the Tribunal has awarded higher compensation by taking 1/5th income while calculating the loss of dependency and interest awarded at 10% which is exorbitant and hence, it requires interference of this Court.
5. Both the learned counsel reiterates the grounds urged in the respective appeal memos and contended that the Court below did not appreciate both the oral and documentary evidence particularly the Sketch which is marked as Ex.P9 while apportioning the contributory negligence and hence it requires interference of this Court.
6. Per contra, learned counsel for the appellant in MFA.No.5633/2012 in his arguments vehemently contended that the Tribunal did not appreciate both the oral and documentary evidence while apportioning the contributory negligence and the Tribunal ought to have fixed the liability in entirety on respondent Nos.3 to 5 since the negligence is on the part of the driver of the tractor and hence, it requires modification.
7. Having heard the arguments of the respective appellants’ counsel and also respective respondents’ counsel and also keeping in view the contentions urged by both the parties, the points that arise for consideration of this Court are:-
1. Whether the court below has committed an error in apportioning contributory negligence to the extent of 75% and 25% as contended by both the appellants and whether it requires interference of this Court?
2. Whether the Court below has committed an error in awarding exorbitant compensation and interest as contended by both the appellants in the appeals and whether it requires interference of this Court?
3. What order?
Point No.1 8. It is case of the claimants in the claim petition that the driver of the trax drove the said trax in rash and negligent manner and hit the tractor. Kambathahalli village has approach road to reach the main road. As driver of the tractor entered the main road without taking proper precaution, the accident had occurred due to the negligence on the part of the driver of the trax as well as driver of the tractor. It is also alleged that the respondent No.3 - driver of the tractor entered the main road without following traffic rules and regulations.
9. The claimants in order to substantiate their claim, have examined PWs.1 to 3. PW.1 is not an eyewitness and PWs.2 and 3 are occupants of the trax. PW.2 in his evidence has deposed that the accident was on account of purely sole negligence on the part of the driver of the tractor, stating that he entered the main road without observing traffic rules and regulations. PW.2 was subjected to cross-examination by the learned counsel appearing for respondent No.5 – Insurance Company. In the cross-examination, only suggestion was made that he is falsely deposing that the driver of the tractor drove the same in rash and negligent manner and the said suggestion was denied. The evidence of PW.3 is also similar, that the accident had occurred due to the negligence on the part of the driver of the tractor and in the cross-examination of the PW.3 also a suggestion was made that the accident was not on account of the negligence on the part of the driver of the tractor and he is falsely deposing before the Court and the said suggestion was denied.
10. The respondents have also examined three witnesses. The respondent No.1 is the owner of the trax and respondent No.2 is the driver of the trax. RW.1 owner was not at the spot and his evidence is hearsay evidence. RW.2 who is the driver of the trax. In his evidence he says that the driver of the tractor without following traffic rules and regulations, suddenly entered the main road. As a result, the accident had occurred. It is in his evidence that the accident was on account of the sole negligence on the part of the driver of the tractor and trailer. He was subjected to cross-examination. In the cross-examination, a suggestion was made that on the date of the accident, he drove the trax in rash and negligent manner without following the rules and regulations and the said suggestion was denied. It is suggested by the claimants’ counsel that the accident had occurred on account of the negligence of the driver of the tractor and also his negligence and the same was denied. However, he admits that both the vehicles have sustained damages. In the cross- examination a suggestion was made by the learned counsel for respondent No.5 that he was not having the driving licence to drive the vehicle and the same was denied. He admits that he has not given complaint against the driver of the tractor and also he has not filed any private complaint before the Court. It is suggested that the accident had occurred due to his negligence and the same was denied. The respondent No.5 did not choose to examine the driver of the tractor and trailer. Now what remains with regard to the negligence is concerned is the evidence of PWs.2 and 3 and also RW.2.
11. On perusal of the records, the complaint is given against the driver of the trax at the first instance by the occupants of the trax and chargesheet is also laid against the driver of the trax. PWs.2 and 3 also deposed before the Court that the accident was on account of the rash and negligence on the part of the driver of the tractor. In the cross-examination by the learned counsel respondent No.5, except the suggestion to PWs.2 and 3 that accident occurred on account of negligence on the part of the driver of the trax, nothing is elicited. It is also suggested that they are falsely deposing before the Court and the same was denied.
12. Learned counsel appearing for the appellant – Insurance Company (in MFA.No.6476/2012) brought to my notice that PW.3 gave the evidence before the Tribunal at the instance of PW.2 and he was not aware of the contents of the affidavit. RW.2 is driver of the tempo trax. In his affidavit, he has deposed against the driver of the tractor and trailer. Learned counsel would further contend that the driver of the tempo trax was not having valid driving licence and he was having only LMV and not having driving licence in respect of non-transport vehicle and the said contention is not available to the Insurance Company since the driver of the tractor and trailer was having valid driving licence. It is not the case of the respondent No.5 that the driver of the tractor and trailer was not having valid driving licence and hence, the question of considering the same also does not arise and the driver of the tempo trax was not having driving licence in respect of non-transport vehicle but there was no insurance and liability is fastened to the extent of proportionate contributory negligence and hence, it does not require any modification.
13. Keeping in view the admissions elicited from the mouth of PW.2, PW.3 and RW.2, this court also examined the document marked as Ex.P9 – Sketch. Tempo trax was proceeding in its direction on the left side of the road and tractor came from the cross road and entered the main road in which tempo trax was proceeding. When the driver of the tractor was entering the main road, he ought to have observed whether any vehicles are coming and passing in the main road and the same has not been done and when the accident had taken place and the same was on the left side of the main road wherein the tractor driver came to main road and hence, it is clear that it is negligence on the part of the drivers of both the vehicles. The driver of the vehicle passing on the main road also to observe whether any vehicles are coming in cross road and simultaneously the vehicle which has entered the main road to go to other cross road to observe for vehicles which are passing in the main road and the same has not been done. The complaint in the first instance is against the driver of the trax, but the witnesses who have spoken before the Court point out negligence only against the driver of the tractor and no doubt learned counsel brought to my notice evidence of PW.3 that he had spoken at the instance of PW.2 and having considered the documentary evidence and sketch (Ex.P9) which has not been disputed by either of the parties, it is clear that it is due to composite contributory negligence on the part of drivers of both the vehicles. Having considered Ex.P9, it is clear that driver of the tractor entered the main road and the driver of the trax also proceeded in high speed without observing traffic rules and regulations and hence, the Tribunal ought to have considered negligence on the part of both the vehicles to the extent of 50% and the same has not been done. The Tribunal erroneously apportioned the negligence to the extent of 25% and 75%. It is the duty of the driver of the tractor who is entering the main road to observe for vehicles and the Tribunal instead of taking contributory negligence to the extent of 50%, has taken at 25% and also it is important to note that the driver of the tractor has not been examined by respondent No.5 before the Tribunal. The Tribunal did not consider the said fact also as the right person to speak before the court with regard to the negligence is also driver of the tractor and hence, it is a fit case to apportion the contributory negligence to the extent of 50% each. Hence, point No.1 is answered accordingly.
Point No.2 14. Regarding quantum of compensation is concerned, the Tribunal while passing the judgment, while awarding the compensation and calculating loss of dependency, at page 26 para 42, has taken 1/5th of the notional income of the deceased and deducted 1/5th towards her personal and living expenses. There are four claimants who are husband and children of the deceased and the children are minors and hence, the Tribunal ought to have taken 1/3rd instead of taking 1/5th and the same is erroneous. Since the first claimant is the husband and he is not dependant and there are three minor children and hence, the income ought to have been taken at 1/3rd and not 1/5th. Having considered the age of the deceased as 38 years, the relevant multiplier applicable is ‘15’ and the Tribunal has rightly taken the multiplier as ‘15’. However, the Tribunal failed to add the future prospects and when there is no definite income and the deceased was not working in an organized sector and she is a coolie and she is aged 38 years, if the future prospects is added at 40%, it comes to Rs.7,700/- and by deducting 1/3rd i.e., Rs.2,567/-, the amount comes to Rs.5,133/-. Rs.5,133 x 12 x 15 = Rs.9,23,940/-. Therefore, the loss of dependency comes to Rs.9,23,940/-. The Tribunal awarded an amount of Rs.10,000/- under the head loss of estate, transportation and funeral expenses Rs.10,000/-, loss of consortium Rs.30,000/- and loss of love and affection Rs.30,000/-. The first claimant is the husband and other three claimants are minor children. In view of ratio laid down in NATIONAL INSURANCE CO. LTD., vs. PRANAY SETHI & Others reported in (2017) SCC Online SC 1270, the claimants are entitled to Rs.70,000/- and hence, as against Rs.80,000/-, it is reduced to Rs.70,000/-.
15. In view of the discussions made above, this Court has revisited each head of compensation awarded and the same has to be modified to the tune of Rs.9,93,940/- (Rs.9,23,940/- + Rs.70,000/-). Learned counsel appearing for the appellants would contend that there is no appeal filed by the claimants and when the Insurance Company and the owner have challenged the quantum of compensation contending that the compensation awarded by the Tribunal is on the higher side, the same cannot be revisited and the said contention cannot be accepted in view of the judgment of the Hon’ble Supreme Court in RANI & Others vs. NATIONAL INSURANCE CO. LTD., & Others reported in (2018) 8 SCC 492, held that just and reasonable compensation has to be awarded in the absence of claimants’ appeal. Hence, this Court has revisited and modified the quantum of compensation.
16. The other contention of the learned counsel appearing for the appellants is that the Tribunal awarded interest of 10% and the same is on higher side. The accident has taken place in the year 2010 and when the accident had taken place in 2010, interest awarded by the Tribunal at 10% is on higher side and the same has to be modified and considering that interest at the Nationalized Bank in the year 2010, it is appropriate to reduce the same from 10% to 8%.
In view of the discussions made above, I pass the following:-
ORDER (i) Both the appeals are allowed-in-part.
(ii) The impugned judgment and award of the Tribunal in M.V.C.No.136/2010 dated 14th day of March 2012 on the file of Senior Civil Judge & M.A.C.T., Harapanahalli is modified to the tune of Rs.9,93,940/- as against Rs.8,00,000/- awarded by the Tribunal with interest at 8% from the date of petition till the date of payment reducing the interest from 10% awarded by the Tribunal.
(iii) The respondent Nos.1 and 2 before the Tribunal are directed to pay 50% compensation and respondent Nos.3 to 5 before the Tribunal are directed to pay 50% compensation, since this Court has apportioned the contributory negligence to the extent of 50% each.
(iv) If any amount is in deposit, transmit the same to the Tribunal forthwith.
(v) Send the records to the Tribunal forthwith.
Sd/- JUDGE Bss.