IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.312/2015 C/W M.F.A.No.3871/2014 [MV] M.F.A.No.312/2015 BETWEEN:
1. SMT. SHILPASHREE G. B. W/O LATE KRIAN KUMAR K. S. AGED ABOUT 29 YEARS 2. KUM. SHREYA K K D/O LATE KIRAN KUMAR K S AGED ABOUT 5 YEARS 3. SMT. INDRAMMA K W/O LAT K SIDDAPPA AGED ABOUT 52 YEARS APPELLANT NO.2 SINCE MINOR REPRESENTED BY HER NATURAL GUARDIAN MOTHER APPELLANT NO.1 SMT SHILPASHREE G B ALL ARE RESIDING AT NO.20 2ND CROSS, 4TH MAIN ROAD ANNAPURNESHWARI NAGAR NAGARABHAVI BENGALURU-560073 (PRESENT ADDRESS) R/AT HOUSE NO.102-A KONAGALE, MADDUR TALUK MANDYA DISTRICT (PERMANENT ADDRESS).
(BY SMT. SRIVIDYA G.K., ADV. FOR SRI. T N VISWANATHA, ADV.) AND:
1. M/S. NATIONAL INSURANCE CO. LTD., T P CLAIMS HUB NO.144-145, 2ND FLOOR SHUBHARAM COMPLEX M G ROAD BENGALURU-560001.
2. MR. THYAGARAJU S/O LATE PAPAIAH MAJOR R/AT NO.133/1, ‘A’ CROSS MADHURANAGAR, METAGALLI MYSORE-571001.
...APPELLANTS …RESPONDENTS (BY SRI.K.S.LAKSHMINARASAPPA, ADV. FOR SRI. B C SEETHARAMA RAO, ADV. FOR R1 R2-NOTICE D/W V/O DT:02.09.2016) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.03.2014 PASSED IN MVC.NO.7752/2012 ON THE FILE OF THE XXII A.C.M.M. & XXIV A.S.C.J., BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A.No.3871/2014 BETWEEN:
NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE NO.144, SUBHARAM COMPLEX M.G.ROAD, BANGALORE-560 001 REP. BY IT’S ASST. MANAGER SRI R.LAKSHMANA RAO.
(BY SRI.K.S.LAKSHMINARASAPPA, ADV. FOR SRI. SEETHA RAMA RAO B C, ADV.) AND:
1. SMT. SHILAPASHREE G B AGED ABOUT 29 YEARS W/O LATE KIRAN KUMAR K.S.
2. KUM.SHREYA K.K. AGED ABOUT 5 YEARS D/O LATE KIRAN KUMAR K.S.
3. SMT.INDRAMMA K. AGED ABOUT 52 YEARS W/O LATE K.SIDDAPPA ALL ARE RESIDING AT NO.20 2ND CROSS, 4TH MAIN ROAD ANNAPURNESHWARI NAGAR NAGARABHAVI BENGALURU-560073.
PERMANENT ADDRESS:
NO.102/A-, KONAGALE ...APPELLANT MADDUR TALUK MANDYA DISTRICT SINCE RESPONDENT No.2 IS MINOR REPRESENTED BY HER NATURAL GUARDIAN MOTHER RESPONDENT NO.1 4. SRI THYAGARAJU MAJOR S/O LATE PAPAIAH NO.133/1, ‘A’ CROSS MADHURANAGAR METAGALLI MYSORE-570 001.
…RESPONDENTS (BY SMT.SRIVIDYA G.K., ADV. FOR SRI. T.N. VISHWANATHA, ADV. FOR R1 TO R3 R4-SERVED & UNREPRESENTED R2- MINOR, REP. BY R1) ===== THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.03.2014 PASSED IN MVC.NO.7752/2012 ON THE FILE OF THE XXII A.C.M.M. & XXIV A.S.C.J., MACT, BANGALORE, AWARDING COMPENSATION OF RS.10,36,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
THESE M.F.A.s COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Both the claimants and insurer are before this Court in these two appeals, against the judgment and award dated 18.03.2014 passed in MVC No.7752/2012 on the file of the Motor Accident Claims Tribunal and 24th Additional Small Causes Judge, Bangalore (hereinafter referred to as 'the Tribunal' for short).
2. The claimants are wife, daughter and mother of the deceased Kiran Kumar K.S. The claim petition was filed under Section 166 of the Motor Vehicles Act seeking compensation for the accidental death of Kiran Kumar K.S., in a road traffic accident. It is stated that on 21.07.2012 when Kiran Kumar was proceeding on motorcycle bearing registration No.KA-41/R-8403 on Bangalore-Mysore road, at Kenchanakuppe, all of a sudden, a tipper lorry bearing registration No.KA-05/B- 9339 driven in a rash and negligent manner suddenly stopped, due to which, the deceased dashed to the lorry and sustained severe injuries. It is stated that the deceased was aged about 34 years and was earning Rs.25,000/- p.m., by doing business.
3. On issuance of notice, the first respondent/ insurance company appeared and filed its statement contending that the accident took place solely due to the negligence of the rider of the motorcycle. The accident had taken place on 21.07.2012 whereas the complaint was lodged on 22.7.2012. It is also contended that the driver of the tipper lorry was not holding valid and effective driving license as on the date of accident and the driver was not qualified for holding and obtaining such license. The second respondent also filed written statement contending that it is a false claim.
4. The first claimant examined herself as P.W.1 and also examined P.W.2-eye witness apart from marking the documents Ex.P1 to Ex.P21. The respondent/insurer examined the Administrative Officer as R.W.1 as well as the driver of the tipper lorry as R.W.2 apart from marking Ex.R1.
5. The Tribunal, on appreciating the oral and documentary evidence, awarded total compensation of Rs.10,36,000/- with interest at the rate of 6% p.a., from the date of petition till realization, on the following
While awarding the above compensation, the Tribunal assessed the notional income of the deceased at Rs.7,000/- p.m. The claimants not being satisfied with the quantum of compensation are before this Court in MFA No.312/2015 whereas the insurer is in MFA No.3871/2014 contending that the Tribunal failed to consider the contributory negligence on the part of the deceased and also contended that the compensation awarded is exorbitant and excessive.
6. Heard the learned counsel for the claimants and learned counsel for the insurer. Perused the material on record including the lower court records.
7. Learned counsel for the appellants/claimants would submit that the income assessed by the Tribunal at Rs.7,000/- p.m., is on the lower side. He submits that the deceased was doing business of supply of water purifiers and to establish the same, the claimants have produced Ex.P18-rental agreement and Ex.P19-copy of the registration certificate of the shop apart from producing Ex.P20 and Ex.P21 Pass books. Ignoring those documents, the Tribunal assessed the income at Rs.7,000/- p.m., which is on the lower side. Further, learned counsel submits that the Tribunal failed to award compensation towards future prospects. Since the deceased was aged about 34 years, the claimants would be entitled for 40% of the assessed income towards future prospects. It is also her submission that claimants 2 and 3 are minor daughter and mother of the deceased and they would be entitled for parental and filial consortium at Rs.40,000/- each. Thus, prays for enhancement of compensation.
8. Per contra, learned counsel for the insurer submits that the Tribunal committed an error in not considering the contributory negligence on the part of the deceased. It is his submission that the accident took place solely due to the negligence on the part of the deceased who was riding the motorcycle. It is his submission that the deceased on his own dashed to the lorry and there was no mistake on the part of the driver of the lorry. He invites attention of this Court to the panchanama and sketch produced at Ex.P3 to contend that it is the fault of the deceased who had failed to maintain reasonable distance between two vehicles and dashed to the tipper lorry. Further, it is his contention that the claimants would not be entitled for compensation on the head of loss of expectation of life. Thus, prays for allowing the appeal filed by the insurance company.
9. Having heard the learned counsel for the parties and on perusal of the material on record, the following points would arise for consideration:
(i) Whether there is contributory negligence on the part of the deceased as contended by the Insurer?
(ii) Whether the income of the deceased assessed by the Tribunal at Rs.7,000/- p.m., is on the lower side?
(iii) Whether the claimants would be entitled for compensation on the head of future prospects?
10. The accident occurred on 21.07.2012 involving the motorcycle bearing registration No.KA-41/R-8403 and a tipper lorry bearing registration No.KA-05/B-9339 and the accidental death of Kiran Kumar are not in dispute in these two appeals. The insurer contended that the Tribunal committed an error in not considering the contributory negligence on the part of the deceased Kiran Kumar who was the rider of the motorcycle, which dashed to the tipper lorry from behind. The question of contributory negligence would arise when the accident occurs due to the negligence of drivers of both the vehicles. In the instant case, it is to be examined as to whether the accident had taken place due to the negligence on the part of both rider of the motorcycle as well as driver of the tipper lorry. It is an admitted fact that the accident had taken place around 8.15 p.m., on 21.07.2012, the tipper lorry was going ahead of the motorcycle ridden by the deceased. Regulation 23 of the Road Rules Regulations, 1989 mandates that one should maintain sufficient distance from the ongoing vehicles. It is the case of the insurer that driver of the tipper lorry which was going ahead suddenly applied the break, due to which, the deceased dashed to the tipper lorry. Had the deceased maintained sufficient distance, the accident could have been avoided. But the driver of the ongoing lorry had applied sudden break which is evident from Ex.P1-complaint lodged by K.Shivaramu, Uncle of the deceased Kiran Kumar. Ex.P1-complaint indicates that the tipper lorry was proceeding without indicator or lights and suddenly applied break, due to which, the rider of the motorcycle lost control and dashed the hind side of the lorry.
11. The claimants have examined P.W.2-eyewitness, who in his evidence has stated that when the deceased came near Kenchanakuppe, suddenly tipper lorry bearing registration No.KA-05/B-9339 came in a rash and negligent manner without observing traffic norms and took sudden left turn without giving any signal. Due to which, the rider of the motorcycle lost control and dashed to the tipper lorry. In the cross- examination, he has stated that, as the tipper lorry suddenly stopped, the rider of the motorcycle lost control and dashed to the lorry. Thus, from the material on record and evidence of P.W.1 and P.W.2, it could be said that the deceased had also contributed negligence towards occurrence of the accident to an extent of 20%. Learned counsel for the insurer, relied upon a decision of the Hon’ble Apex Court reported in AIR 2018 SC 2118 in the case of NISHAN SINGH AND OTHERS v/S. ORIENTAL INSURANCE COMPANY LTD., THROUGH REGIONAL MANAGER AND OTHERS to contend that the insurer is not liable to pay compensation except Rs.50,000/- on ‘no fault liability’, where the driver of the vehicle failed to keep sufficient distance. In the said case, the Hon'ble Supreme Court at paragraph 11 has clearly given a finding that the Tribunal in the said case has recorded that there was no evidence on record to indicate that the driver of the truck suddenly applied break in middle of the road. But in the instant case, there is evidence of P.W.2- independent witness and Ex.P1-complaint which would demonstrate that the driver of the lorry suddenly applied break due to which, the deceased lost control and dashed to the tipper lorry from behind. Thus, the said decision would have no assistance to the insurer. Accordingly, I hold that the deceased had contributed negligence towards occurrence of the accident to an extent of 20% and accordingly, 20% contributory negligence is saddled on the deceased. Thus, answered point No.1 in the affirmative.
12. The Tribunal assessed the income of the deceased at Rs.7,000/- p.m. The claimants state that the deceased was doing business of supplying water purifiers and was earning more than Rs.25,000/- p.m. In support of their contention, the claimants have produced Ex.P18-rental agreement and Ex.P19-copy of registration certificate of shop and Ex.P20 and Ex.P21 Pass Books. Rental agreement is produced to establish that he had taken a shop premises on rental basis to run his business. Ex.P19-copy of the registration certificate is to demonstrate that the shop was registered under the relevant Act. But the claimants have not produced any material to indicate the exact income of the deceased and they have also not placed on record any documents to show the volume of business the deceased was doing. In the absence of any material to indicate the income of the deceased or volume of business, the Tribunal has rightly assessed the notional income of the deceased at Rs.7,000/- p.m., which needs no interference. The claimants had also produced Ex.P16-salary certificate and Ex.P15- appointment order where the deceased said to have been appointed in ION EXCHANGE INDIA LIMITED. It has come in evidence that the deceased had resigned from the said Company. Thus, the Tribunal has notionally assessed the income of the deceased at Rs.7,000/- p.m., which is proper and correct. Thus, point No.2 is answered in the negative.
13. The Tribunal failed to award any compensation on the head future prospects. The claimants would be entitled for 40% of the assessed income to be added towards future prospects. The Hon'ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED v/s PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680 has held that the claimants would be entitled to add 40% of the assessed income towards future prospects wherever the deceased was aged below 40 years. In the present case, as the deceased was aged 34 years, the claimants would be entitled to addition of 40% of the assessed income towards future prospects. Thus, point No.3 is answered in the affirmative.
14. The claimants would be entitled to Rs.70,000/- on conventional heads as held by the Apex Court in PRANAY SETHI case supra. Further, the second claimant who is minor daughter of the deceased aged about 2½ years has lost love and affection of her father at young age. As such, she would be entitled for Rs.40,000/- towards parental consortium as per the decision reported in 2018 ACJ 2782 in the case of MAGMA GENERAL INSURANCAE COMPANY LIMITED v/s NANU RAM AND OTHERS. The 3rd claimant, mother of the deceased who lost her son who was taking care of her at her old age would be entitled to a sum of Rs.40,000/- on the head filial consortium as per the aforesaid decision of the Hon'ble Apex Court. Thus, the claimants would be entitled for the following modified compensation:
1. Loss of dependency 7000+40% = 9800-1/3= 6534 6534x12x16 :: Rs.12,54,528/-
2. Conventional heads :: Rs. 70,000/-
3. Parental and filial consortium to claimants 2 and 3 :: Rs. 80,000/-
Total Rs.14,04,528/-
Thus, the claimants would be entitled to total compensation of Rs.14,04,528/- with interest at the rate of 6% p.a., from the date of petition till realization. As the contributory negligence of 20% is saddled on the deceased, the claimants would be entitled for Rs.11,23,622/- with interest at the rate of 6% p.a., from the date of petition till realization.
15. Both the appeals are allowed in part. The judgment and award dated 18.03.2014 passed in MVC No.7752/2012 on the file of the Motor Accident Claims Tribunal and 24th Additional Small Causes Judge, Bangalore is modified to the above extent. The claimants would be entitled to enhanced compensation of Rs.57,622/-
The amount in deposit in MFA No.3871/2014 be transmitted to the concerned Tribunal, forthwith.
The apportionment and deposit would be as ordered by the Tribunal.
Sd/- JUDGE mpk/-* CT:bms