IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.1275/2016 (MV) C/w.
MISCELLANEOUS FIRST APPEAL No 8428/2015 IN MFA 1275/2016 Between:
1. Smt. Meenakshi Wife of Puttaswamy Gowda @ Puttaswamy.N Aged about 51 years.
2. Sri. puttaswamy Gowda @ Puttaswamy.N Son of Late Narayanappa, aged about 56 years.
3. Smt. Tejashwini Wife ofe Late Vijayasimha B.P Aged about 24 years All are residing at:
No. 13, 1st Cross, 1st main raod Thimmarayappa Layout, Doddakallasandra Bengaluru – 560 062. …Appellants (By Sri. Prakash M.H., Advocate) AND:
1. Royal sundram allianz Insurance Co. Ltd., No. 186/7, Raghavendra Complex 1st Cross, Wilson Garden Bengaluru – 56 027.
2. Mrs. Sylvia D’souza Wife of John B.D’Souza No. 12, R &S Homes, No. 14, Lewis Road Cooke Town, Bengaluru – 560 005.
... Respondents (By Sri. O. Mahesh, Advocate for R-1, R2 Notice dispensed with vide order dated 06.03.2018) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the judgment and award dated 28.09.2015 passed in MVC No.3856 of 2014 on the file of the XIII Addl Small Cause Judge and member MACT, Bengaluru. Partly allowing the claim petition for compensation and seeking enhancement of compensation.
IN MFA 8428/2015 Between:
The Claim Manager Royal Sundram Allaiance Insurance Company Limited No.186/7, Raghavendra Complex, 1st cross, Wilson garden, Bengaluru - 560 027.
By Royal Sundaram Alliance Comapany Ltd. Subramaniam Building, II Floor, No.1, Club house road, Annasasalai, Chennai - 600 002, By Its Manager (By Sri. O. Mahesh, Advocate) And:
1. Meenakshi, Age 51 year W/o Puttaswamy Gowda @ Puttaswamy. N.
2. Puttaswamy Gowda @ Puttaswamy.N. Age 56 years S/o Late Narayanappa, 3. Tejaswini Age 24 years, W/o late Vijayasimha B.P All are Residing at no.13, 1st Cross, 1st main road, Thimmarayappa layout, Doddakallasandra, Bengaluru - 560 062.
4. Mrs. Sylvia D’ Souza, Major, W/o John B.D’ Souza, No.102, R & S homes, No.14, Lewis road, cooke town, Bengaluru - 560 005.
... Appellant ... Respondents (By Sri. Prakash M H for R1 to R3 Sri. K.M.A. Peres, Advocate for R4) This MFA Filed U/s 173(1) of MV act against the Judgment and award dated 28.09.2015 passed in MVC No.3856/2014 on the file of the 13th additional small cause Judge & Member, Mact, Bengaluru, awarding the compensation of Rs.13,66,400/- with interest at 9% p.a., from the date of petition till its realization.
These Miscellaneous First Appeals coming on for Admission, this day, the Court delivered the following:
J U D G M E N T MFA No.1275/2016 is filed by the claimants and MFA No.8428/2015 is filed by the insurance company. Both appeals are directed against the judgment and award passed by the Motor Accidents Claims Tribunal, (SCCH-15) Court of Small Causes at Bengaluru in MVC No.3856/2014 dated 28.09.2015.
2. I have heard the learned counsel appearing for the appellants and the learned counsel appearing for respondent No.1/Insurance Company.
3. The brief facts of the case are as follows;
On 03.09.2014 at about 11.45 a.m., the deceased by name Vijaya Simha was riding a motor cycle bearing registration No.MEA-8308, from Bengaluru side towards Kanakapura side. When he reached near Trimurthy temple, the driver of a Maruthi Wagon-R car bearing registration No.KA-03 MG-6726, who was proceeding from Bengaluru towards Kanakapura, without giving any signal, all of a sudden applied the brake and stopped the vehicle. On account of which, the motor cycle dashed against the hind portion of the car and the deceased fell down and suffered severe head injury and fractured injuries all over the body and succumbed to the injuries on the spot.
4. The claimants being the parents and wife of the deceased filed a claim petition seeking a total compensation of Rs.50,00,000/-. Before the Tribunal, the wife of the deceased was examined as P.W.-1., the first informant who lodged the FIR, was examined as P.W.-2. On behalf of the claimants, Ex.P.1 to Ex.P.20 were got marked. The claim petition was resisted by the insurance company. On behalf of the respondents, Ex.R1 to Ex.R3 were got marked. The Tribunal after considering the evidence and material placed on record, awarded a total compensation of Rs.17,08,000/- and held that there is contributory negligence on the part of the deceased to an extent of 20% and therefore, held that the claimants are entitled for compensation of Rs.13,66,400/- with interest at the rate of 9% p.a.
5. Learned counsel appearing for the claimants would contend that the deceased was aged about 25 years. His father was a Class-I Civil Contractor and he was assisting his father and earning a sum of 30,000/-
p.m. Hence he submits that the income taken as Rs.9,000/- p.m. by the Tribunal is not proper. It is further submitted that the driver of the offending vehicle was driving the said vehicle in a rash and negligent manner and he over took the motor cycle of the deceased and without giving any signal, suddenly he attempted to stop the vehicle, on account of which the accident took place and therefore, the finding recorded by the tribunal that there is contributory negligence on the part of the deceased is not erroneous. It is his further submission that the claimants are the wife and parents of the deceased and therefore, the Tribunal was not proper in deducting 50% towards personal expenses. Accordingly, he seeks to allow the appeal and to set aside the judgment and award of the Tribunal.
6. Per contra, the learned counsel appearing for respondent/Insurance Company vehemently contended that the accident has occurred solely on account of the rash and negligent act of the deceased himself. The deceased has dashed his motor cycle against the Maruthi Omni. The spot sketch marked at Ex.P.3 as well as the damage caused to the vehicle clearly goes to show the manner in which the accident has taken place. Therefore, he submits that the Tribunal was not proper in holding that the insurer is liable to pay 80% of the compensation. He further contends that the total compensation awarded is also exorbitant. It is his submission that two motor cycles were going parallel to each other and both motor cycles collided against the maruthi car from behind and there is no rash or negligent driving by the driver of the maruti car. Hence, he prays to allow the appeal filed by the insurance company.
7. The case of the claimants is that the deceased while riding the motor cycle bearing registration No.MEA-8308 from Bengaluru side to Kanakapura side and when he reached near Trimurthy temple, the driver of the Maruthi Wagon-R car bearing registration No.KA03 MG-6726, who was also proceedings from Bengaluru towards Kanakapura in high speed, all of a sudden applied brake and stopped the vehicle. On account of which the motor cycle dashed against the car and the deceased fell down and sustained severe head injuries and fractured injuries all over the body and succumbed to the said injuries on the spot.
8. P.W.-2 is the first informant and an eye witness to the incident. He has deposed that on 03.09.2014 at about 11.45 a.m., he was proceeding in a car from Bengaluru towards Harohalli side and when he reached near Trimurthy temple, Kanakapura-Bengaluru road, he saw the riders of two motor cycles bearing registration Nos.KA-51-R-8152 and MEA-8308 were proceeding very slowly and cautiously, at that time, the Maruthi Wagon-R car bearing Registration No.KA-03 MG-6726 without observing any traffic rules and regulations and in rash and negligent manner, overtook the two wheelers proceeding ahead of him and immediately he stopped by applying sudden break, due to which, the riders of the said motor cycles dashed against the said Maruthi Wagon-R car and the rider of the motor cycle bearing registration No.MEA-8308 died on the spot and another rider of the motor cycle sustained severe injuries.
9. During the course of cross-examination, he has deposed that the motor cycles dashed the hind portion of the car. He further submits that the car driver applied sudden break. The motor cycle was maintaining the distance of around 20 to 25 feet and he was at a distance of 30 to 35 feet from the accident spot. Ex.P.3- spot sketch was marked through the said witness.
10. R.W.-1 is the registered owner of the car.
According to the said witness, on the date of accident her husband John B.D’Souza was driving the car. He was examined as R.W.-2. According to R.W.-2, there is no nexus and any impact of collusion between the vehicle driven by him and the motor cycle which was involved in the accident. He was driving the car very slowly on the left side of the road and no accident took place as alleged. He states that Ex.P.3 is a manipulated and concocted document for the purpose of claiming compensation. However, in the cross-examination, he has admitted that he was driving the car and near Trimurthy temple, his car met with an accident. He asserts that he was proceeding slowly and cautiously at a speed of 30 to 40 kmph and at that time, the two wheelers which were ridden by minors aged about 15- 16 years came from behind and dashed against his car on the right rare side. According to him there is one more complaint lodged by the person related to the deceased in respect of the alleged accident. When, he went to lodge the complaint, despite his request, case was not registered since there was already a complaint registered with regard to the said accident. According to him only one two wheeler i.e., Bajaj Platinum dashed his car and that there was no need for him to apply sudden brake.
11. Ex.P.1 is the copy of FIR with complaint, Ex.P.2 is the copy of spot mahazar, Ex.P.3 is the copy of spot sketch and Ex.P.4 is the IMV report. Perusal of the said documents goes to show that a case was registered against the driver of Maruthi Wagon-R car bearing registration No.KA-03 MG-6726 on the complaint lodged by P.W.-2-Sri Lokesh. The accident has taken place on 03.09.2014 around 11.45 a.m. The complaint came to be lodged on 03.09.2014 at 1.00 p.m without loss of time. It is stated that the accident has occurred due to the rash and negligent driving by the driver of car, since he applied sudden brake. According to the FIR, the accident has occurred due to the fault of the driver of the car, on account of applying sudden brake and dashing against the two motor cycles. It is the case of the claimants that when the driver of the car applied sudden brake the two wheelers hit the back portion of the car. The fact that R.W.-2 was driving the car has been established. The sketch at Ex.P.3 shows the presence of two motor cycles at the accident spot.
12. Perusal of Ex.P.-4-IMV report goes to show that the following damages were caused to the car.
a. Rear right side Indicator and Tail lamp assembly broken.
b. Rear bumper Right side damaged.
c. Rear right body damaged The damages caused to the offending motorcycle are as follows;
a. Head light assembly broken b. Left foot rest damaged c. Front mudguard damaged 13. Considering the aforesaid documents, it can be safely held that the car was damaged on the rear right side and the damage caused to the motor cycle was on the front side. Therefore, it can be said that the motorcycle dashed against the car from behind.
Considering the aforesaid evidence, it can be safely held that there is some negligence on the part of the deceased in causing the accident. According to P.W.-2, eye witness to the incident, the car driver applied sudden brake and on account of which, the motor cycle dashed against the said car from backside.
14. The Tribunal after considering the entire evidence has observed that the deceased has not maintained safe distance between his vehicle and the offending vehicle. Therefore, the deceased has also contributed some negligence in causing the accident. Considering the entire facts and circumstance, it can be held that there is contributory negligence on the part of the deceased as well in causing the accident and it is fixed at 25% as against 20% fixed by the Tribunal.
15. It is the case of the claimants that the deceased was earning a sum of Rs.30,000/- per month by assisting his father in civil contract work. The Tribunal has assessed the income of the deceased at Rs.9,000/- per month. In this regard, the evidence of PW.1 i.e., wife of the deceased goes to show that the deceased was earning a sum of Rs.30,000/- per month as civil contractor. Her father-in-law was Class-I contractor and BBMP license holder. The deceased was working with her father-in-law and out of his income he was maintaining his family members. In the cross-examination, she has stated that the deceased was not an income tax assessee and there is no document to establish the avocation and income of her husband. She has stated that her husband was assisting her father-in-law who was class-I Contractor and BBMP license holder. In the absence of any specific and definite evidence with regard to the income of the deceased, it cannot be said that the deceased was having income of Rs.30,000/- per month. In the above facts and circumstances, the income taken by the Tribunal is slightly on a higher side. Hence, the notional income of the deceased is taken as Rs.8,500/- per month.
16. In view of the decision of the Hon’ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED V. PRANAY SETHI AND OTHERS AIR 2017 SC 5157, an addition of 40% has to be made to the income of the deceased towards ‘Future prospects’ as he was aged below 40 years and after deducting 1/3rd towards personal expenses, the same comes to Rs.7,934/-. The deceased was aged 25 years at the time of the accident and therefore the appropriate multiplier is 18. The claimants are therefore entitled for a compensation of Rs.17,13,744/- ( Rs.7,934 x 18 x 12/100) towards ‘Loss of dependency’.
17. The claimants are the parents and the widow of the deceased. Under the conventional heads, the claimants are entitled for a sum of Rs.70,000/-. Sum of Rs.50,000/- awarded towards ‘Loss of love and affection’ is unaltered. Hence, the claimants are entitled for a total compensation of Rs.18,33,744/- which is rounded off to Rs.18,34,000/-.
18. It is already held that there is contributory negligence on the part of the deceased to an extent of 25%. Hence, total compensation for which the claimants are entitled is Rs.13,75,500/- (75% of Rs.18,34,000/-) as against Rs.13,66,400/- awarded by the Tribunal.
19. For the foregoing reasons, I pass the following:
O R D E R The appeals are allowed in part.
The judgment and award dated 28.09.2015 passed by the MACT, in the Court of Small Causes, MACT, Bengaluru in MVC No.3856/2014 is hereby modified.
The appellants are entitled for a total compensation of Rs.13,75,500/- as against Rs.13,66,400/- awarded by the Tribunal.
The interest, apportionment and disbursement shall be in terms of the order passed by the Tribunal.
Sd/- JUDGE PN/nms