IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A.NO.8285 OF 2016 (MV-D) BETWEEN:
1. SMT MACHILA, W/O LATE SHANKAR, AGED 43 YEARS.
2. VIVEK VETRI, S/O LATE SHANKAR, AGED ABOUT 26 YEARS.
3. KIRTHANA, D/O LATE SHANKAR, AGED ABOUT 25 YEARS.
ALL ARE R/AT GANDHI NAGAR, K.G.HALLI, ARABIC COLLEGE POST, BANGALORE-45. ... APPELLANTS (BY SMT.RADHA Y, ADVOCATE FOR; SRI L HARISH KUMAR, ADVOCATE) AND:
1. THE DIRECTOR, DREAM LOGISTICS COMPANY INDIA PRIVATE LIMITED, DREAM CHAMBERS, MANIKANTA COMPELX, DAM ROAD, HOSPET.
2. THE ORIENTAL GENERAL INSURANCE COMPANY LIMITED, REP. BY ITS SECRETARY, SHOPPING COMPLEX, NO.44/45, RESIDENCE ROAD, NEW MAYOHALL, BANGALORE-01. ... RESPONDENTS (BY SRI M NARAYANAPPA, ADVOCATE FOR R2; VIDE ORDER DATED:29.03.2019 NOTICE TO R1 DISPENSED WITH) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:01.03.2016 PASSED IN MVC NO.2593/15 ON THE FILE OF THE 5TH ADDITIONAL SMALL CAUSES JUDGE AND 24TH ACMM, MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION THIS APPEAL COMING ON FOR ADMISSION THIS DAY, ASHOK G.NIJAGANNAVAR J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the appellants-claimants for enhancement of compensation and for modification of the judgment and award dated 01.03.2016 passed in MVC No.2593/2015 by the Motor Accident Claims Tribunal and Court of Small Causes, Mayo Hall Unit, Bengaluru (SCCH- 20) (hereinafter referred to as “Tribunal”, for the sake of brevity).
2. The facts briefly stated are that the appellants- claimants had filed a claim petition seeking compensation in respect of the death of Shankar, who was the main earning member of the family. According to the appellants on the fateful day of the accident i.e., on 20.05.2015 at about 11.20 p.m., while the deceased Shankar was crossing the B.M.Road in front of New High Tech Hotel, Kushalnagar, a car bearing Reg.No.KA-35/M-4917 came from Kushalnagar side towards Mysore in a high speed and rash and negligent manner and dashed against Shankar. Due to the said impact, Shankar sustained grievous injuries and died on the spot.
3. On the information given by the employer of the deceased Shankar, the appellants brought the dead body and performed his funeral and obsequies ceremonies. Due to the untimely death of Shankar, the appellants have become orphans and they have been deprived of the financial support. With these assertions, the claim petition came to be filed.
4. On service of notice, respondent No.1 did not appear before the Tribunal, as such he was placed ex parte. Respondent No.2-insurance company appeared through its counsel and filed objections denying the averments made in the claim petition. It was specifically contended that the petitioners are not the legal heirs of the deceased Shankar and the accident was due to sole negligence on the part of the deceased himself. The driver of the offending vehicle did not possess valid and effective driving licence, as such, there is violation of policy conditions. Hence, respondent No.2-insurance company is not liable to pay compensation, at any rate, the compensation claimed is highly exorbitant and excessive. With these averments, respondent No.2 sought for dismissal of the claim petition.
5. On the basis of the pleadings, the Tribunal farmed the following issues:
“1. Whether the petitioners prove that, on 20.05.2015 at about 11.20p.m. when the deceased (Shankar) was crossing B.M.Road, in front of New High Tech Hotel, at that time one car bearing Reg.No.KA-35/M-4917 came from Kushalnagar towards Mysore in high speed and dashed against the deceased Shankar (Shankar). Due to impact, he fell down on the road and he sustained grievous injuries and died at a spot?
2. Whether the Petitioners are entitled for compensation? If so, to what amount and from whom?
3. What order or award?”
6. In order to substantiate the claim, petitioner No.2 got examined as P.W.1 and marked the documents as Exs.P-1 to P-11. Respondent No.2-insurance company examined the driver as R.W.1 and no documents were marked on their behalf.
7. On appreciating the oral and documentary evidence placed on record, the Tribunal has come to the conclusion that the accident was due to rash and negligent driving by the driver of the car and there was contributory negligence by the deceased also to an extent of 20%. Even though the Tribunal has awarded compensation of Rs.30,000/-. Considering the contributory negligence of the deceased a sum of Rs.6,000/- was deducted and compensation of Rs.24,000/- is awarded with interest at the rate of 9% p.a. from the date of petition till the date of realization.
8. Being aggrieved by the judgment and award passed by the Tribunal awarding meager compensation of Rs.24,000/- and also attributing contributory negligence of the deceased to an extent of 20%, the appellants have preferred this appeal contending that the finding given by the Tribunal is not proper and justified. The evidence of P.W.1 reveals that the information was received from the employer of the deceased regarding the accident. Despite producing the documents as per Exs.P-7 to P-11, the Tribunal has come to the conclusion that the petitioners are not the dependants of the deceased, which is not proper and justified. The Tribunal has committed error in misinterpreting the documents, even though the said documents show the relationship of the appellants with the deceased, thus, it has resulted in miscarriage of justice. Even the Tribunal has committed error in not awarding compensation towards loss of dependency and on other heads.
9. Heard learned counsel for the appellants and the learned counsel for respondent No.2-insurance company, perused the judgment and award passed by the Tribunal and the Court records.
10. In view of the contentions urged by the learned counsel for both sides, the points that would arise for consideration are as follows:
1. Whether the Tribunal was justified in giving the finding that there was contributory negligence by the deceased to an extent of 20%?
2. Whether the Tribunal has committed any error in disallowing compensation towards loss of dependency and other heads?
3. Whether the appellants/claimants are entitled for enhancement of compensation as claimed?
4. What order?
11. As far as point No.1 regarding contributory negligence in the accident is concerned, no eye-witnesses are examined in the matter. It is only on the basis of the Police records and the evidence of hearsay witnesses the Tribunal has come to the conclusion that there was contributory negligence to an extent of 20% by the deceased.
12. During the course of arguments, learned counsel for the appellants strenuously contended that the accident has occurred on the extreme left side of the road, as such there is no contributory negligence whatsoever by the deceased and the finding given by the Tribunal is erroneous. On scrutiny of the Police records produced particularly Ex.P-2(a) annexed along with Ex.P-2 spot mahazar, it is evident that the accident spot is on Kushalnagar-Mysore road and even though the accident spot was on the main road, it is slightly towards left side of the road. Considering this aspect, the Tribunal has come to the conclusion that there is contributory negligence on the part of the deceased to an extent of 20%.
13. The deceased ought to have been circumspect before attempting to cross the road by ascertaining there was any movement of traffic. In the instant case, the deceased has not done so. On re-appreciation of the evidence, we are of the view that the finding given by the Tribunal cannot be found fault with. Hence, point No.1 is answered in the affirmative.
14. The next contention is regarding relationship of the claimants with the deceased and rejection of the claim of the appellants towards loss of dependency and other heads.
In the present case, the Tribunal has observed that the deceased was not residing with his family and he was residing at Kushalanagar and working in the Hotel for his livelihood declaring himself as orphan. Therefore, the appellants-claimants are not entitled for any compensation under the head love and affection, loss of consortium etc.
15. In order to prove the relationship, the claimants have produced the notarized copy of the Election ID Card of deceased Shankar, his daughter Kirthana, wife Smt.Machila and notarized copy of the Aadhaar Card of the son of deceased-Vivek Vetri, which are marked as Exs.P-7 to P-10 respectively. Ex.P-11 is the notarized copy of the Ration Card, wherein the names of deceased Shankar, his wife Machila, claimant No.2 (petitioner No.2) Vetrivelu have been mentioned.
16. No doubt, the name of wife and son of the deceased is mentioned as Smt.Manila and Vetrivelu, but at this stage there is no documentary evidence or any other cogent evidence to show that the persons by name Smt.Machila and Vetrivelu are not related to deceased Shankar. Even non-mentioning of the name of daughter Kirthana will not lead to the conclusion that she is not related to deceased Shankar, as the notarized copy of the Election ID card has been produced to show that Kirthana is the daughter of deceased Shankar, but in the election ID Card, it has been wrongly shown as wife instead of daughter. It is pertinent to note that many a times, printing and typing mistakes would be there in mentioning the names in the ration cards and Election ID Cards by the concerned authorities, but that itself should not blind us to the fact that these claimants are not related to deceased Shankar.
17. P.W.1 is the son of the deceased, who has stated about the relationship, income of the deceased and financial loss suffered due to untimely death of deceased Shankar. This witness was cross-examined at length. In the cross-examination by the learned counsel for respondent No.2, it is suggested that the notarized copies as per Exs.P-7 to P-11 are created subsequent to the death of the deceased, but nothing is elicited to prove that those documents have been fabricated, concocted only with an intention to claim the compensation on account of death of deceased Shankar. Even regarding some mistakes crept in the Election ID card, the witness has specifically stated that it is only on account of the negligence of the authorities, the petitioner No.3 Kirthana is shown as wife of the deceased instead of showing as the daughter of the deceased Shankar in the Election ID card.
18. It is pertinent to note that P.W.1 has stated in his cross-examination that on receiving information from the employer of the deceased Shankar by name Umesh, who is the owner of Maharaja Hotel, the appellants- claimants came to know about the death of deceased Shankar. Immediately, they went to Kushalnagar and brought the dead body and performed funeral and obsequies ceremonies, which clearly goes to show that appellants-claimants are related to the deceased. There are no doubtful circumstances to disbelieve the version of the appellants or to disbelieve their relationship with deceased Shankar. There is no evidence on record to show that the appellants-claimants had deserted the deceased Shankar and because of the said reason the deceased was staying away from the claimants and working at a different place. Thus, we are of the view that the reasoning and the finding given by the Tribunal that claimants are not the dependants, as such, they are not entitled for compensation towards love and affection and loss of consortium etc., is erroneous and the same is not justified. Hence, point No.2 is answered in the affirmative in favour of the appellants-claimants.
19. The third contention is regarding quantum of compensation awarded by the Tribunal. In the instant case, the Tribunal has awarded only a sum of Rs.30,000/- towards funeral and obsequies ceremonies, out of the said amount, a sum of Rs.6,000/- is deducted on the reason that there was contributory negligence by the deceased. Finally, a compensation of Rs.24,000/- has been awarded along with interest at the rate of 9% p.a.
20. As could be seen from the Police records, especially Ex.P-1 complaint, which is filed by the employer of the deceased, it is evident that deceased Shankar was working as Waiter/Supplier in the Maharaja Lodging Bar and Hotel, Kushalnagar. This document has come into existence immediately after the accident. The averments made in the complaint clearly goes to show the occupation of the deceased Shankar. Considering the nature of job done by the deceased, we are inclined to consider his notional income at Rs.9,000/- per month.
21. In view of the principles laid down by the Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 SCC 680, 25% of the amount is required to be added to the income of the deceased, which comes to Rs.11,250/- (Rs.9000 + 2250), out of which 1/3rd is to be deducted towards his personal expenses i.e., Rs.3750/-. In view of the said deduction, the net income that would have been contributed by the deceased to his family would be Rs.7,500/- (Rs.11250 – 3750). Considering the age of the deceased as 49 years, 13 multiplier would be applicable. As per necessary calculations, a sum of Rs.11,70,000/- (Rs.7,500 X 12 X 13) is awarded towards loss of dependency.
22. As far as other heads are concerned, in view of the ratio laid down by the Hon’ble Supreme Court in the case of Magma General Insurance Co. Ltd. vs. Nanu Ram reported in 2018 ACJ 2782, a sum of Rs.40,000/- is awarded towards loss of spousal consortium to claimant No.1 and a sum of Rs.30,000/- each is awarded to other claimants viz., the son and daughter of the deceased. In addition to that a sum of Rs.15,000/- is awarded towards loss of estate and a sum of Rs.15,000/- towards funeral expenses. Thus, a total compensation of Rs.13,00,000/- is awarded.
23. In view of our finding on point No.1, the compensation requires to be reduced to an extent of 20% for contributory negligence by the deceased. Thus, after 20% deduction, the compensation payable would be Rs.10,40,000/- (Rs.13,00,000-2,60,000/-), which shall carry interest at the rate of 6% p.a. instead of 9% p.a. awarded by the Tribunal from the date of claim petition till realization.
24. Since the Tribunal has awarded compensation of Rs.30,000/- and after necessary deduction towards contributory negligence by the deceased, the respondent Nos.1 and 2 are directed to pay the compensation of Rs.24,000/-. Hence, the same amount requires to be deducted in the total compensation awarded in this appeal. Thus, the enhanced compensation would be Rs.10,16,000/-.
25. It is submitted that the daughter of the deceased Shankar is divorced. Considering this aspect, the apportionment of compensation would be as follows:
26. For the foregoing reasons, the appeal is partly allowed. The appellants-claimants are entitled for the compensation of Rs.10,16,000/- which shall carry interest at the rate of 6% p.a. instead of 9% p.a. awarded by the Tribunal, from the date of claim petition till realization.
Out of the compensation to be deposited by the insurance company, 50% of the amount apportioned to each of the claimants shall be deposited in any Post Office/Nationalized Bank/Scheduled Bank for an initial period of ten years in respect of appellant Nos.1 and 3 i.e., wife and daughter of deceased Shankar and for a period of five years in respect of appellant No.2-son of the deceased Shankar and balance 50% of the compensation amount shall be released to the appellants on proper identification and acknowledgment.
Respondent No.2-insurance company is directed to deposit the compensation amount along with up to date interest after deducting the amount deposited before the Tribunal, within a period of four weeks from the date of receipt of certified copy of the judgment.
The parties to bear their respective costs.
Office to transmit the original records to the Tribunal forthwith.
Sd/- JUDGE Sd/- JUDGE BSR