IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR.JUSTICE B. SREENIVASE GOWDA MFA.NO. 5870 OF 2013 (MV) C/W MFA.NO. 9095 OF 2013 (MV) IN MFA NO. 5870/2013 BETWEEN:
THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, VISHNUPRAKASH, 2ND AND 3RD FLOOR, COURT ROAD, UDUPI.
REP: BY ITS REGIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, SUMANGALA COMPLEX 2ND FLOOR, LAMINGTON ROAD, HUBLI – 580 020.
…APPELLANT (BY SRI. SHANKARA REDDY C., ADV.) AND:
1. SRI. HARIJEEVANRAM HEGDE, S/O KARUNAKAR HEGDE, AGED ABOUT 53 YEARS, 2. KUMARI KRISHANGI HEGDE, D/O HARIJEEVANRAM HEGDE, AGED ABOUT 13 YEARS, SINCE THE 2ND RESPONDENT IS MINOR IS REPRESENTED BY HER FATHER AS A NATURAL GUARDIAN BOTH AR R/AT IRMADI HOUSE, HAVANJE VILLAGE AND POST, UDUPI TALUK AND DISTRICT – 576 101.
3. MANOMOHANA SHETTY, S/O BACHA, AGED ABOUT 37 YEARS, R/AT SANTHOSH NAGAR, HEMMADY, KUNDAPUR TALUK, UDUPI DISTRICT – 576 201.
4. H. PRASAD BALLAL, S/O LATE SABODA BALLAL, AGED ABOUT 54 YEARS, R/AT HEBRI, KARKALA TALUK, UDUPI DISTRICT – 576 112. …RESPONDENTS (BY SRI. K. PRASANNA SHETTY, ADV. FOR C/R1 AND R2.
NOTICE TO R3 DISPENSED WITH.) ******* THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.03.2013 PASSED IN MVC NO. 345/2009 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, UDUPI AWARDING A COMPENSATION OF RS. 23,51,916/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA NO. 9095/2013 BETWEEN:
1. SRI HARIJEEVANRAM HEGDE, S/O KARUNAKAR HEGDE, AGED ABOUT 53 YEARS, 2. KUMARI KRISHANGI HEGDE, D/O HARIJEEVANRAM HEGDE, AGED ABOUT 13 YEARS, (SINCE NO.2 IS MINOR REP. BY HER NATURAL GUARDIAN AND FATHER PETITIONER NO.1) BOTH ARE R/AT IRMADI HOUSE, HAVANJE VILLAGE AND POST, UDUPI TALUK AND DISTRICT 562101. …APPELLANTS (BY SRI. K. PRASANNA SHETTY, ADV.) AND:
1. SRI. MANOMOHANA SHETTY, S/O BACHA, AGED ABOUT 37 YEARS, R/AT SANTHOSH NAGAR, HEMMADY, KUNDAPURA TALUK, UDUPI DISTRICT – 562 102.
2. SRI. H. PRASAD BALLAL, S/O LATE SABODA BALLAL, AGED ABOUT 54 YEARS, R/AT HEBRI, KARKALA TALUK, UDUPI DISTRICT – 562 103.
3. THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE: VISHNUPRAKASH, 2ND AND 3RD FLOOR, COURT ROAD, UDUPI 562 111.
(BY SRI. C. SHANKARA REDDY, ADV. FOR R3. NOTICE TO R1 AND R2 DISPENSED WITH) ******* …RESPONDENTS THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.03.2013 PASSED IN MVC NO. 345/2009 ON THE FILE OF THE ADDL.
SENIOR CIVIL JUDGE AND ADDL. M.A.C.T., UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING : -
JUDGMENT MFA No.5870/2013 is an appeal filed by the Insurer of the offending vehicle and MFA No.9095/2013 is an appeal filed by the claimants challenging the judgment and award dated 28.3.2013 passed by the Additional Senior Civil Judge, Additional MACT, Udupi in MVC No.345/2009 both on the grounds of negligence as well as quantum.
2. With the consent of learned counsel appearing for the parties, both the appeals are heard together and disposed of by this common judgment. Perused the judgment and award passed by the Tribunal.
3. As there is no dispute regarding death of one Smt. Sandro H. Hegde in a road traffic accident that occurred on 27.12.2008 by involvement of a stage carriage bus bearing Reg.No.KA-20-B-87 and insuring of the said bus with the Oriental Insurance Company, the points that arise for consideration in these appeals are :-
a. Whether the finding of the Tribunal on negligence in holding that the accident had occurred due to contributory negligence of the deceased and the driver of the bus at 25% and 75% respectively is just and proper or does it call for interference by this Court ?
b. Whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for reduction or enhancement?
4. Sri C. Shankara Reddy, learned counsel appearing for the Insurer of the bus submits that even though the driver of the bus was driving the bus slowly and carefully on the left side of the road, the accident occurred as deceased crossed the road negligently without observing the movements of vehicles passing on the said road. The Tribunal without considering this aspect of the matter has committed an error in holding that the accident had occurred due to contributory negligence of the driver of the bus and the deceased at 75% and 25% respectively. Regarding quantum, learned counsel submits that the compensation awarded by the Tribunal is on the higher side. Therefore, he seeks to allow the appeal filed by the Insurer of the bus and dismiss the appeal preferred by the claimants.
5. Per contra, Sri.K. Prasanna Shetty, learned counsel appearing for the claimants submits that when deceased was waiting for road clearance to cross the road, the driver of the bus drove the bus with high speed in a rash and negligent manner and dashed against her, as a result she sustained injuries and succumbed to the injuries. The Tribunal without considering the same has committed an error in holding that the accident had occurred due to contributory negligence on the part of driver of the bus at 75% and 25% on the part of the deceased. Regarding quantum, learned counsel submits that the compensation awarded by the Tribunal is not just and reasonable, it is on the lower side. Therefore, he prays that the appeal filed by the claimants may be allowed and the appeal preferred by the insurer of the bus may be dismissed.
6. The claimants in support of their contention that the accident had occurred due to rash and negligent driving of the driver of the offending bus have examined the husband of the deceased as PW.1 and one Rajesh Bhat, an eye witness to the accident, who lodged the complaint with the police as PW.4 and have produced the police records such as FIR, Complaint, Mahazar, Rough Sketch, Charge Sheet and Accident Information which were marked as Exs.P1 to P6 respectively. The Insurer in support of its contention that accident occurred due to negligent crossing of the road by the deceased herself have examined the driver of the bus as RW.1 and have produced spot sketch, which was marked as Ex.R1. PW.1 has admitted that he did not see the accident and therefore, his evidence is of no use for deciding the issue relating to the negligence. PW.4 has stated in his evidence that deceased had moved about 1 ½ feet from the edge of the road, by the time the driver of the offending bus drove the bus with high speed in a rash and negligent manner and dashed against the deceased. Whereas, RW.1 the driver of the bus has stated that though he was driving the bus slowly and carefully, deceased who has already crossed the road about 8 feet from the edge of the road suddenly retracted and therefore accident occurred due to negligent crossing of the road by the deceased.
7. Considering the above aspect of the matter and other oral and documentary evidence on record, the Tribunal was justified in holding that the accident had occurred due to contributory negligence of both the deceased as well as the driver of the bus. Now the question would be what is the percentage of negligence each one has contributed for the occurrence of the accident. Police after investigating the complainant have filed charge sheet against the driver of the bus. The complainant who was examined as PW.4 has stated that accident occurred due to rash and negligent driving of the bus by its driver. If the driver of the bus drove the bus slowly and carefully at the spot of the accident which is admittedly a village limits he could have easily avoided the accident. The accident had taken place within Uppoor village limits near K.G. Road Junction. The offending bus is a local bus, which used to ply between Mangalore and Kundapur High way road, hence the driver of the bus had knowledge of village limit and he was expected to drive the bus slowly and carefully at village limits. If he had driven the bus slowly there was no occasion for the deceased who was crossing the road, to retract suddenly. If this aspect was taken into consideration, negligence contributed by the driver of the bus is more and heavy. At the same time, people who want to cross public road expected to cross the same carefully by observing movements of vehicles coming on such roads. If the above aspects and other oral and documentary evidence are taken into consideration, negligence contributed by deceased is very little compared to the negligence contributed by the driver of the bus, which would be in my opinion, at the ratio of 10% and 90% respectively. Therefore, it is held that the accident had occurred due to contributory negligence of 10% on the part of the deceased and 90% on the part of the driver of the offending bus.
Regarding quantum 8. Claimants in support of their contention that deceased by working as a teacher at Bhaktivedantha Swamy Mission School, Mumbai, was getting salary of Rs.20,411/- have examined 1st claimant i.e., husband of deceased, Physical Coordinator of Bhaktivedantha Swamy Mission School and the Principal of Kennis Tutorial, Mumbai, as PW.1, PW.2 and PW.3 respectively. They have produced the pay certificate, salary certificate, appointment order and salary certificate of deceased which were marked as Ex.P.8, Ex.P.17, Ex.P.18 and Ex.P.19 respectively. Ex.P.8 and Ex.P.17 are salary certificates issued by the Principal of Bhaktivedantha Swamy Mission School, Mumbai. Though, Ex.P.8 and Ex.P17 are salary certificates issued by the Bhaktivedantha Swamy Mission School, Ex.P.17 was later in point of time, according to which the deceased was drawing salary of Rs.20,411/- and the same was rightly taken by the Tribunal. The deceased was in the age group of 40 to 50 years. She was working in a private school against a fixed salary. Therefore, 25% of Rs.20,411/- amounting to Rs.5,102/- is to be added to her salary towards future prospects. So her salary would come to Rs.25,513/-.
9. Learned counsel for the claimants submits that the deceased in addition to her aforesaid employment, was working as a tutor at Kennis Tutorial, Mumbai since 1998 on monthly remuneration of Rs.7,500/- per month, as could be seen from the salary certificate issued by the Principal of Kennis tutorial.
10. Learned counsel for the insurer submits that deceased having been working as a permanent teacher at Bhaktivedantha Swamy Mission School, Mumbai could not have worked as part time tutor at Kennis Tutorial, Mumbai and therefore the Tribunal was not justified in adding Rs.4,000/- out of Rs.7,500/- to the income of deceased.
11. Both Bhaktivedantha Swamy Mission School and Kennis Tutorial are private institutions. PW.2 has stated that deceased was permitted by Bhaktivedantha Swamy Mission School to work as part time tutor at Kennis Tutorial. Therefore, justice would be met if 1/3rd of Rs.7,500/- amounting to Rs.2,500/- is added to the income of deceased as against Rs.4,000/- added by the Tribunal. The total income of the deceased by working as a permanent teacher and part time tutor would come to Rs.20,411 + 5102 (25% of Rs.20,411) + 2,500 (1/3 of Rs.7,500) = Rs.28,013/- as against Rs.28,000/- assessed by the Tribunal. Rs.2,000/- is to be deducted towards professional and income tax as has been done by the Tribunal. So her salary would come to Rs.26,013/- per month. The multiplier applicable to the age group of deceased is 14. The claimants are husband and daughter. Therefore, Tribunal was justified in deducting 1/3rd of the income of deceased towards her personal expenses and taking 2/3rd of her income as contribution towards family. So loss of dependency works out to Rs.29,13,456/- (Rs.26,013 X 12 X 14 X 2/3) as against Rs.31,35,888/- awarded by the Tribunal and it is awarded.
12. A sum of Rs.40,000/- is awarded to the 1st claimant towards loss of consortium and Rs.15,000/- is awarded to the claimant No.2 towards loss of estate and Rs.15,000/- is awarded for transportation of dead body and funeral expenses and in all a sum of Rs.70,000/- is awarded under ‘Conventional Heads’ as against Rs.40,000/- awarded by the Tribunal.
13. Thus, the claimants are entitled for the following compensation:-
PARTICULARS Rs.
14. After deducting contributory negligence of 10% on the part of the deceased, the claimants are entitled for total compensation of Rs.26,85,110/- with interest at 6% p.a. from the date of claim petition till the date of realisation.
15. Accordingly, both the appeals are disposed of. The judgment and award passed by the Tribunal is modified to the extent stated herein above. The claimants are entitled for a total compensation of Rs.26,85,110/- with interest at 6% p.a. from the date of claim petition till the date of realization.
16. The Insurance company is directed to deposit the compensation of Rs26,85,110/- with the interest at 6% p.a., from the date of claim petition till the date of realization after deducting the amount, if any, already paid or deposited within a period of two months from the date of receipt of copy of this judgment. Apportionment, deposit and release of the compensation amount shall be in terms of the award of the Tribunal.
No order as to costs.
Sd/- JUDGE NG* / MBM