IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.11722/2012 (MV) BETWEEN:
1. SRI SHIVALINGA, S/O LATE NINGAIAH, AGED ABOUT 45 YEARS.
2. SMT. SHANTHAMMA, W/O SHIVALINGA, AGED ABOUT 42 YEARS.
3. KUM. S. SUMA, D/O SHIVALINGA, AGED ABOUT 20 YEARS.
ALL ARE R/AT NO.72, 12TH MAIN, ANANTHARAMAIAH LAYOUT, KALAPPA BLOCK, SRINAGAR, BENGALURU-560 050. … APPELLANTS (BY SRI K.T. GURUDEVA PRASAD AND SRI SATHYAPAL, ADVOCATES) AND:
1. THE UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, NO.40, LAKSHMI COMPLEX, OPP. TO VANI VILAS HOSPITAL, K.R. FORT ROAD,BENGALURU. REPRESENTED BY ITS MANAGER.
2. THE MANAGING DIRECTOR, BMTC, CENTRAL OFFICE, K.H. ROAD, SHANTHINAGAR, BENGALURU-560 027. ... RESPONDENTS (BY SRI B.A. RAMAKRISHNA, ADVOCATE FOR R-1, R-2 – NOTICE DISPENSED WITH) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.06.2012 PASSED IN MVC.NO.81/2011 ON THE FILE OF THE CHIEF JUDGE, MEMBER, PRINCIPAL MACT, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed against the judgment and award dated 30.6.2012, passed in M.V.C.No.81/2011, on the file of the Chief Judge, Member, Principal MACT, Court of Small Causes, Bengaluru, questioning the contributory negligence taken as 25% and also the quantum of compensation awarded by the Tribunal.
2. The factual matrix of the case is that on 3.12.2010 at about 8.10 a.m., one Yogesh was proceeding on a motorcycle bearing No.KA-01-EC-6546 from Corporation Circle towards Kasturba Road and at that time, an unknown white colour Tata Indica car also came in the same direction towards the left side of the motorcycle in a rash and negligent manner and dashed against the steering handle of the motorcycle from the left side. As a result, the motorcyclist fell down and at that time, a BMTC bus bearing registration No.KA-01-F-3790, which was coming in the opposite direction on Queen’s Circle ran over both the legs of Yogesh. As a result, his both legs were crushed. Immediately he was shifted to Mallya Hospital. On the next day of the accident i.e., on 4.12.2010, he underwent below knee amputation of the leg and ultimately on 19.12.2010, he succumbed to the injuries. It is the claim of the claimants that the deceased was working as a Customer Support Engineer in Pranag Data Links Private Limited and getting a monthly salary of Rs.7,000/-. Apart from that, he was also getting the incentive. They have spent about Rs.2,00,000/- for his treatment.
3. In response to the claim petition, the respondent No.2 – BMTC remained absent and was placed exparte. The respondent No.1 – Insurance Company appeared and denied the claim made by the claimants. The claimants in order to substantiate their claim, petitioner No.1 examined himself as P.W.1 and examined doctor as P.W.2 and two more witnesses as P.Ws.3 and 4 and got marked the documents at Ex.P.1 to 27.
The respondent No.1 examined one witness as R.W.1 and got marked the certified copy of the judgment as Ex.R.1 and certified copy of the deposition as Exs.R.2 to 4.
4. The Tribunal after having heard both the sides, allowed the petition in part granting compensation of Rs.5,94,505/- directing the respondent Nos.1 and 2 jointly and severally to pay the compensation amount with interest at 6% per annum.
5. Being aggrieved by the judgment and award, the claimants have preferred the present appeal questioning the apportionment of contributory negligence in respect of both the vehicles and also the quantum of compensation.
6. The other grounds urged by the appellants is that the Tribunal has taken the income of the deceased as Rs.7,000/- per month and the same is very meagre and the Tribunal did not consider the incentives while calculating the loss of income and also erroneously deducted 50% instead of 1/3rd and hence it requires interference of this Court. The learned counsel for the appellants would contend that the multiplier adopted by the Tribunal is erroneous. The Tribunal has taken the age of the mother, but it ought to have taken the age of the deceased. Hence, it requires modification of the judgment and award.
7. Per contra, the learned counsel for the respondent No.1 would contend that the incentives cannot be taken as income. The Tribunal has rightly taken Rs.7,000/- as his income, as pleaded by the claimants and so also age of the mother is taken and there are no grounds to interfere with the order of the Tribunal.
8. Having heard the arguments of the learned counsel for the appellants and the learned counsel for the respondent No.1, the points that arise for the consideration of this Court are:
(i) Whether the Tribunal has committed an error in apportioning the contributory negligence in respect of two vehicles and whether it requires interference of this Court?
(ii) Whether the Tribunal has committed an error in not granting just and reasonable compensation and whether it requires interference of this Court?
(iii) What order?
Point (i):
9. Insofar as the contributory negligence is concerned, the involvement of two vehicles is not in dispute. It is also the specific case of the claimants that the Tata Indica car came from left side and dashed the handle of the motorcycle. As a result, the accident had taken place and the other vehicle which came in the opposite direction ran over both the legs of the rider of the motorcycle. Admittedly, the rider of the Tata Indica car has not been made as party to the proceedings. The Tribunal after having considered the materials available on record, has rightly come to the conclusion that the involvement of two vehicles i.e., Tata Indica car and BMTC bus is not in dispute and rightly apportioned contributory negligence to the extent of 25% and 75% respectively. Hence, the question of interfering with the findings of the Tribunal with regard to the contributory negligence does not arise, since the same is based on material on record. Hence, I do not find any reason to interfere with the order of the Tribunal with regard to the contributory negligence is concerned. Hence, I answer point No.(i) in the negative.
Points (ii) and (iii):
10. Having considered the rival contentions of both the parties, it is evident that the salary certificate is marked as Ex.P.16 and the Tribunal has rightly taken the monthly salary of the deceased as Rs.7,000/-, as claimed by the claimants. The other contention of the claimants that the incentive has not been taken, cannot be accepted. Whatever incentives he had received is only conveyance and other expenses and the same cannot be calculated as loss of dependency. However, it is noticed that the Tribunal while applying the multiplier has taken the age of the mother and the same is not correct. The Hon’ble Apex Court has recently held that the age of the deceased has to be taken while calculating the loss of dependency and not the age of the parents. Admittedly, the deceased was a bachelor and 50% of income deducted towards his personal expenses is in accordance with law and the same cannot be interfered with. However, the documentary evidence discloses that he was working as a Customer Support Engineer and he was appointed in 2008 and probationary period was only for a period of six months and he has already completed his probationary period. When such being the case, the Tribunal ought to have added 50% towards his future prospectus while calculating the loss of dependency. The contention of the learned counsel for the respondent No.1 that it has to be taken as 40% cannot be accepted, since Ex.P.16 is clear that he has completed the probationary period and two years has been lapsed after his appointment and hence it cannot be held that it is an unorganised sector. Hence, 50% has to be added. Having considered his age as 23 years, the relevant multiplier is ‘18’. Having taken his income as Rs.10,500/- per month (Rs.7,000/- + 50%), the loss of dependency comes to Rs.11,34,000/- (Rs.10,500/- x 12 x 18 x 50/100 = Rs.11,34,000/-).
11. The Tribunal has awarded an amount of Rs.10,000/- under the head ‘funeral expenses’ and the same is against the settled law. Hence, it is enhanced to Rs.30,000/-.
12. The Tribunal also considered the medical bills for having spent the money after the accident and the same does not require interference, as it is awarded based on the records.
13. The injured was in the hospital for seven days and later succumbed to the injuries. Hence, an amount Rs.10,000/- is awarded under the head ‘other incidental expenses’.
14. The compensation awarded under all the heads comes to Rs.13,68,674/-. After deducting 25% towards contributory negligence, the total compensation comes to Rs.10,26,505/- as against Rs.5,94,505/-.
15. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed partly.
(ii) The impugned judgment and award of the Tribunal is modified granting compensation of Rs.10,26,505/- after deducting 25% towards contributory negligence of the other vehicle, as against Rs.5,94,505/- with interest at 6% per annum.
(iii) The Insurance Company is directed to pay the compensation with interest within eight weeks from today.
Sd/- JUDGE MD