IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 5TH DAY OF APRIL, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.7649 OF 2012 [MV] BETWEEN 1. SMT. PALLAVI, W/O. RAVI, AGED ABOUT 23 YEARS, 2. SMT. MAHADEVAMMA, W/O. J.NAGARAJU, AGED ABOUT 61 YEARS, 3. J.NAGARAJU, S/O. JAVARAPPA, AGED ABOUT 65 YEARS, 4. ROHINI, D/O. RAVI, AGED 5 YEARS, REPRESENTED BY NATURAL GUARDIAN HER MOTHER- APPELLANT NO.1.
ALL ARE RESIDING AT NO.73/1A, 8TH CROSS, RAJENDRA NAGAR, MYSORE-570 001. ... APPELLANTS [BY SRI. DORESWAMACHAR S.P., ADVOCATE FOR SRI. P.MAHESHA, ADVOCATE] AND 1. MUKUND ROADLINES PVT. LTD., NO.80/29, TATHAWALEWADE PHATATAL, MULSHI DISTRICT, PUNE, MAHARASHTRA STATE, BY ITS BRANCH MANAGER.
2. ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE NO.II, MUSLIM COMPLEX, NEAR SARASWATI TALKIES, SARASWATIPURAM, MYSORE-570 004.
REPRESENTED BY ITS BRANCH MANAGER. ... RESPONDENTS [BY SRI. B.C. SEETHARAMA RAO, ADVOCATE FOR R2.
NOTICE TO R1 IS DISPENSED WITH VIDE COURT ORDER DATED 28.01.2016] * * * THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.11.2010 PASSED IN MVC NO.36/2010 (OLD NO.85/2008) ON THE FILE OF THE CIVIL JUDGE (SR. DN.), JMFC & MACT., PANDAVAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the claimants seeking enhancement of compensation awarded by the Tribunal in MVC No.36/2010 [Old No.85/2008] on the file of the MACT., Pandavapura.
2. The claimants are the wife, parents and minor daughter of the deceased. It is the case of the claimants that on 23.11.2007, the deceased Ravi was returning from Lakshmisagar to Mysuru in a motorcycle bearing reg. No.KA- 09/EK-7846 along with a pillion rider by name Rajesh and when they reached near Bannagatta V.C.Channel bridge at 5.25 p.m., a lorry bearing reg. No.MH-14/AH-6356 came from the opposite direction i.e., from Pandavapura side in high speed and in a rash and negligent manner and dashed against the motorcycle. Due to the said impact, the deceased sustained grievous injuries and later on died in a hospital.
A compensation of Rs.13,62,000/- was sought before the Tribunal. The Tribunal after considering the evidence and material on record, awarded a total compensation of Rs.6,13,750/- and deducted 20% holding that there is contributory negligence on the part of the deceased in causing the accident.
3. Assailing the aforesaid Judgment and Award passed by the Tribunal, the learned counsel for the appellants submits that the Tribunal has erred in holding that there was contributory negligence to an extent of 20% on the part of the deceased. He submits that the said finding is contrary to the evidence and material on record. The learned counsel further submits that the total compensation awarded is on the lower side and accordingly seeks to enhance the compensation.
4. The accident in question involving the lorry bearing reg. No.MH-14/AH-6356 is not in dispute. The said lorry was insured with the 2nd respondent herein.
5. The Tribunal while answering Issue No.1 held that on perusal of the documentary evidence, it appears that there is sufficient evidence to show that the accident is caused due to the rash and negligent driving by the driver of the lorry bearing reg. No.MH-14/AH-6356. Issue No.1 was answered in the affirmative. However, it was further observed that, on a perusal of the documents, particularly sketch map produced at Ex.P4 it appears that the rider of the motorcycle also contributed to the said accident and the Tribunal deducted 20% of the compensation also holding that the owner and the insurer of the said motorcycle have not been made party.
The Tribunal has not discussed as to in what manner the deceased also contributed to the cause of the accident. The sketch has not been properly considered by the Tribunal. On the other hand, Issue No.1 was answered in favour of the claimants holding that the oral and documentary evidence shows that the accident was due to the rash and negligent driving of the lorry by its driver. In that view of the matter, the Tribunal holding that there is contributory negligence on the part of the deceased is not sustainable. From the evidence of eye witness, FIR at Ex.P1, it can be said that the accident was due to the rash and negligent driving by the lorry driver.
6. According to the claimants, the deceased was working as a mason and he was earning a sum of Rs.8,000/-
p.m. In the absence of a satisfactory evidence, it cannot be held that the deceased was having an income of Rs.8,000/-
p.m. However, considering the facts and circumstances of the case, the notional income of the deceased is taken as Rs.4,000/- p.m. as against Rs.3,750/- p.m. taken by the Tribunal. The deceased was aged about 26 years at the time of the accident. The proper multiplier applicable is ‘17’.
Therefore, 40% of the income has to be added towards future prospects and after deducting 1/4th towards personal expenses, the claimants are entitled for a total compensation of Rs.8,56,800/- [Rs.4,000 + 1,600 = Rs.5,600 – 1,400 = Rs.4,200 x 12 x 17] towards loss of dependency as against Rs.5,73,750/- awarded by the Tribunal. A sum of Rs.70,000/- is awarded under the conventional heads. A sum of Rs.30,000/- is awarded towards loss of love and affection. In all, the claimants are entitled for a total compensation of Rs.9,56,800/-. Accordingly, I pass the following:
ORDER The appeal is allowed in part. The Judgment and Award dated 11.11.2010 passed in MVC No.36/2010 [Old No.85/2008] on the file of the Civil Judge [Sr. Dn.] and JMFC and MACT at Pandavapura is hereby modified.
The appellants/claimants are entitled for a total compensation of Rs.9,56,800/-. Respondent Nos.1 and 2 are jointly and severally liable to pay the compensation.
Respondent No.2-Insurance Company shall deposit the entire amount within a period of six weeks from the date of receipt of a copy of this Judgment.
The apportionment and disbursement of the compensation shall be in terms of the Judgment and Award passed by the Tribunal.
Sd/- JUDGE.
Ksm*