IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN MISCELLANEOUS FIRST APPEAL NO. 4026 OF 2015 (MV) C/W MISCELLANEOUS FIRST APPEAL NO. 4816 OF 2015 (MV) IN M.F.A.No.4026/2015 BETWEEN:
The New India Assurance Co., Ltd. Ram Complex, No.29, Paramathi Road, Kanakal – 637 through its Bengaluru Regional Office No.9/2, Mahalakshmi Chambers, 2nd Floor, M.G.Road, Bengaluru – 560 001 Represented by its Manager.
(By Sri.S.V.Hegde Mulkhand, Advocate) AND 1. Smt.Shylaja W/o late Ramesha Aged about 37 years, 2. Kum. Ashwini D/o Late Ramesha Aged about 20 years, ... Appellant 3. Kum.Nandini D/o Late Ramesha Aged about 18 years 4. Kum.Rozeeni D/o Late Ramesha Aged about 16 years, 5. Smt.Puttalingamma W/o Late Nanjaiah Aged about 69 years, All are R/o Yadavani, Amruthur Hobli, Kunigal Tauk, Tumkur District.
The respondent No.4 is the minor represented by her mother and natural guardian the respondent No.1.
6. Sri.Sambasivam.M S/o Marappan Major in age No.10-1-20/2/1, Masab Tank, Hyderabad, Andhra Pradesh.
... Respondents (By Sri.N.R.Rangegowda, Advocate for R1 to R5;
Vide order dated 3.10.2017, notice to R-6 is dispensed with) This MFA is filed under Section 173 (1) of MV Act against the judgment and award dated 18.12.2014 passed in MVC No.3/2014 (Old MVC No.44/2011) on the file of the Senior Civil Judge, MACT, Magadi, awarding compensation of `11,16,000/- with interest @ 8% p.a. from the date of petition till deposit.
IN M.F.A.No.4816/2015 BETWEEN:
1. Smt.Shylaja W/o late Ramesha Aged about 37 years, 2. Kum.Ashwini D/o Late Ramesha Aged about 20 years, 3. Kum.Nandini D/o Late Ramesh Aged about 18 years 4. Kum.Rozeeni D/o Late Ramesha Aged about 16 years, 5. Smt.Puttalingamma W/o Late Nanjaiah Aged about 69 years, Appellant No.4 since minor represented by her mother natural guardian Appellant No.1. All are R/o Yadavani, Amruthur Hobli, Kunigal Tauk, Tumkur District.
(By Sri. N.R.Range Gowda, Advocate) AND:
1. Sri.Sambasivam.M S/o Marappan Aged Major, …Appellants No.10-1-20/2/1, Masab Tank, Hyderabad, Andhra Pradesh.
2. New India Assurance Co., Ltd. Ram Complex, No.29, Paramathi Road, Kanakal – 637 ... Respondents (By Sri.S.V.Hegde Mulkhand, Advocate for R2; Notice to R1 D/w vide order dated 28.10.2016) This MFA is filed under Section 173 (1) of MV Act against the judgment and award dated 18.12.2014 passed in MVC No.3/2014 (Old MVC No.44/2011) on the file of the Senior Civil Judge, & JMFC, Magadi partly allowing the claim petition for compensation and seeking enhancement of compensation.
These appeals coming on for admission, this day, the Court delivered the following:
JUDGMENT Mr. S.V. Hegde Mulkhand, learned counsel, accepts notice on behalf of respondent No.2 in M.F.A No.4816/2015. With the consent of the learned counsel, these appeals are being decided at this stage itself.
2. Both the Insurance company and the claimants have challenged the legality of the award dated 18.12.2014, passed by the M.A.C.T and Senior Civil Judge, Magadi, whereby due to death of Ramesha, the learned Tribunal has granted a compensation of `11,16,000/- along with the interest of 8% p.a., from the date of filing the petition till the date of realization. Therefore, both these appeals are being decided by this common order.
3. The facts of the case are being taken from, M.F.A No.4026/2015, filed by the New India Assurance Company Limited.
Briefly, the facts of the case are that, on 20.08.2010, at about 9.15 p.m., Ramesha was proceeding on his scooter Bajaj Chetak, bearing registration No.KA-06-L-3090 towards Kudur. He was driving on the left side of the road. When he reached near Mangalore Dhaba, on the National Highway No.48, near Kudur, a Gas Tanker, bearing registration No. AP-16-X-9929 was proceeding in front of his scooter. Suddenly, without giving any signal, the Gas Tanker applied the breaks.
Ramesha, who was driving behind the Gas Tanker, dashed against the Gas Tanker. He died on the spot. Subsequently, his widowed wife, his three minor children, and his mother filed a claim petition before the learned Tribunal. In order to substantiate their case, they examined two witnesses and submitted ten documents. Although, the Insurance Company did not examine any witnesses, it did submit two documents. After assessing the evidence, the learned Tribunal granted the compensation as aforementioned. Hence, M.F.A No.4026/2015 by the Insurance Company challenging the award; the M.F.A No.4816/2015 filed by the Claimants, for seeking enhancement of the compensation amount.
M.F.A No.4026/2015:
4. Mr. S.V. Hegde Mulkhand, the learned counsel for the appellant-Insurance Company has relied on the case of Shrimanti and others vs. Krishna Deva Madiwal and others (2005 ACJ 350) in order to plead that since Ramesha was driving his scooter behind the Gas Tanker, he was duty bound to maintain a safe distance from the Gas Tanker moving in front of him. However, he had failed to do so. According to the learned counsel, the Insurance Company had raised the issue of negligence on the part of the deceased, but the learned Tribunal has failed to appreciate the said issue. Hence, the learned Tribunal has erred in placing the negligence squarely on the driver of the Gas Tanker. He has further pleaded that even if the Insurance Company did not lead any evidence to establish the contributory negligence on the part of the deceased, but the facts speak for themselves, and if an inference can be drawn, then the contributory negligence on the part of the deceased can be concluded by the learned Tribunal. However, the learned Tribunal has failed to do so. Moreover, in the present case, since Ramesha did not maintain a safe distance, apparently, he can be blamed for his death. Thus, the learned Tribunal should have held the deceased partly liable for the accident, and should have concluded that he has contributed 25% to the causing of the accident.
Lastly, the learned Tribunal has erred in granting the loss of future aspect to the extent of 30%. Since Ramesha was merely an agriculturist, and since the claimants’ had failed to prove that he was carrying out any business, therefore, no compensation should have been paid by granting the benefit of loss of future income to the claimants.
5. On the other hand, Mr. N.R. Rangegowda, the learned counsel for the claimant-respondent Nos.1 to 5, has vehemently contended that the Insurance Company did not lead any evidence to establish the contributory negligence on the part of the deceased. Hence, no inference can be drawn that Ramesha was partly responsible for having caused the accident. Secondly, in the case of Bhogireddi Varalakshmi and others vs. Mani Muthupandi and others (AIR 2017 Supreme Court 1195), the Hon’ble Supreme Court has clearly opined that the issue of loss of future income should be left open till the matter is finally settled by the Hon’ble Supreme Court. Therefore, the learned counsel pleads that the said issue should not be examined by this Court at the present moment.
6. Heard the learned counsel for the parties, perused the impugned award and examined the record.
7. In the case of Shrimanti (supra), the issue which arose before this Court was whether the defence of contributory negligence should be pleaded or not? And whether any evidence needs to be led to establish the contributory negligence on the part of insured/deceased or not? In the said case, a Full Bench of this Court has held that it is not necessary for the Insurance Company to raise a specific plea of contributory negligence, provided it has denied the negligence on the part of the offending vehicle, and has claimed that the negligence is squarely of that of the deceased. Secondly, the learned Full Bench has observed as under:
“It is trite that an argument based on contributory negligence has to be substantiated by the party who advances that argument, but it is equally true that for discharging that burden, the party concerned need not lead evidence. As observed by the Division Bench of this court in Sharada Bai v. Karnataka State Road Transport Corporation, 1988 ACJ 490 (Karnataka), contributory negligence can be-and very often is inferred from the evidence adduced on the claimants' behalf or from the perceptive facts either admitted or found established, on a balance of probabilities in the case. The absence of a specific plea may not therefore be conclusive of the matter nor can the argument that the deceased motorcyclist had contributed to the occurrence of the accident be rejected summarily only because a specific plea in that regard, was not raised in the objections.”
8. Thus, it is not necessary that evidence has to be led by the Insurance Company in order to establish contributory negligence, provided that the perceptive facts are either admitted or found established from the evidence adduced by the claimants, and on the basis of probabilities, in a case, a reasonable inference can be drawn that the deceased was responsible for the accident.
9. Interestingly, the facts of the case of Shrimanti (supra), are almost identical to the facts of the present case. In the said case, a bus was being driven in a rash and negligent manner, and the bus was going ahead of the motorcycle driven by the deceased. According to the eye-witnesses, the bus had suddenly stopped, without giving any signal, and the motorcycle, which was being driven by the deceased dashed against the back of the bus. The motor cyclist died on the spot. Likewise, in the present case, the Gas Tanker was being driven in front of the scooter driven by Ramesha. According to the claimants, the Gas Tanker stopped suddenly without giving any signal, and Ramesha dashed against the Gas Tanker.
10. Regulation 23 of the Rules of Road Regulations, 1989, clearly prescribe that a sufficient distance be maintained from the other vehicles in order to avoid collusion, if the vehicle in front, suddenly slows down or stop. Thus, even Ramesha was required to maintain a sufficient distance from the Gas Tanker which was moving in front of him. He should have anticipated the possibility that the tanker, in front of him, may suddenly stop. Despite the fact that the Gas Tanker had suddenly stopped, Ramesha could not stop his own vehicle, which was in motion. Thus, apparently, he did not maintain a sufficient and a safe distance between the Gas Tanker and himself. Therefore, he dashed against the back of the Tanker leading to his untimely death. Hence, Ramesha was partly responsible for causing the accident. Therefore, the learned Tribunal ought to have concluded that the negligence was on the part of Ramesha. Hence, it is clearly a case of contributory negligence: the Insurance Company cannot be held liable to pay 100% of the compensation amount.
11. Therefore, the appeal filed by the Insurance Company, is partly allowed. The compensation amount shall be reduced to 25%.
12. As far as the question of granting of loss of future income is concerned, the Hon’ble Supreme Court has opined that the issue of loss of future income should be left open till the final decision of the Larger Bench of the Hon’ble Apex Court is pronounced. Therefore, the learned counsel for the parties are free to mention before this Court, that these appeals should be taken on board, after the judgment of the Larger Bench of the Apex Court is pronounced. Therefore, the said issue is left open to be decided later.
M.F.A No.4816/2015:
13. Mr. N.R. Rangegowda, the learned counsel for the claimant-appellant Nos.1 to 5, has raised a specific plea before this Court, namely that since the claimants could not clearly establish the income earned by Ramesha, the learned Tribunal should have taken the notional income of the deceased. Although, the accident had occurred in the year 2010, the learned Tribunal has taken the notional income as merely `5,000/- per month. According to the learned counsel, this Court has drawn up the Schedule of notional income. In catena of cases, this Court has emphasized that the Schedule prepared by this Court, with regard to the notional income, should be followed. According to the Schedule, the income for the year 2010 should be taken notionally as `5,500/- per month. However, the learned Tribunal has taken the income as `5,000/- per month. Therefore, the income of the deceased should be enhanced by `500/-.
14. On the other hand, Mr. S.V. Hegede Mulkhand, the learned counsel for the Insurance Company, has pleaded that since the said income was based on agricultural activities, the income need not be enhanced by `500/- by this Court.
15. Heard the learned counsel for the parties.
16. In catena of cases, this Court has opined that the Schedule prepared by this Court with regard to the notional income has to be followed by the learned Tribunal. According to the Schedule, the notional income for the year 2010 should be taken as `5,500/- per month. Therefore, the learned Tribunal was not justified in taking the notional income as merely `5,000/- per month. Hence, the income is enhanced and is taken as `5,500/- per month. Thus, yearly income comes out to be `66,000/- per annum. Hence, the loss of dependency needs to be re-calculated as under:
Loss of dependency :-
`5,500/- x 12 x ¾ x 16 = `7,92,000/- + 30% = `10,29,600/-
Thus, the claimant-appellants are entitled for total compensation of `12,09,600/-, which is as under :
17. The compensation, is thus enhanced from `11,16,000/- to `12,09,600/-. But, considering the fact that in the appeal filed by the Insurance Company, this Court has held that 25% of the negligence is contributable to the deceased, therefore, the claimant-appellants in M.F.A. No.4186/2015 are entitled to a compensation of merely `9,07,200/- {`12,09,600-(12,09,600 x 25/100)}.
18. As stated above, the issue of granting of future income shall be left open by this Court.
Therefore, the Insurance Company is directed to deposit `9,07,200/- with the learned Tribunal. The learned Tribunal shall disburse the amount to the claimant-appellants, in accordance with the directions passed by the learned Tribunal in the award dated 18.12.2014. The appeal filed by the claimant-appellants is hereby partly allowed.
SD/- JUDGE Mds/-