IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 5414 OF 2015 (MV) BETWEEN 1. SRI. VENKATARAVANAPPA S/O NARAYANAPPA AGED ABOUT 52 YEARS 2. SMT. VENKTARAMANAMMA W/O VENKATARAVANAPPA AGED ABOUT 45 YEARS 3. SRI. LAKSHMANAREDDY S/O VENKATARAVANAPPA AGED ABOUT 24 YEARS ALL ARE RESIDING AT ANAPALLI VILLAGE BURADAGUNTE POST CHINTAMANI TALUK CHIKKABALLAPUR DIST NOW PRESENTLY R/AT C/O KRISHNAPPA NO.8, 1ST FLOOR NEAR DODDAMMA TEMPLE BYATARAYANAPURA SAHAKARANAGAR (P) BENGALURU – 92.
... APPELLANTS (BY SRI. S. RAJU - ADVOCATE) AND 1. THE MANAGER UNITED INDIA ASSURANCE CO. LTD NO. 487/1, C.M.H. ROAD (ABOVE INDIAN OVERSEAS BANK) NEAR AMAR JYOTHI HOME INDIRANAGAR 1ST STAGE BENGALURU – 560 038.
2. SRI. MANJUNATH S/O LATE ASHWATHAPPA NO.22, TMN STREET, 3RD CROSS NEW THIPPASANDRA HAL 3RD STAGE BENGALULRU-560 075.
... RESPONDENTS (BY SRI. P. B. RAJU – ADV., FOR R-1; NOTICE TO R-2 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.04.2014 PASSED IN MVC NO. 4717/2012 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE AND XXVIII ACMM, MACT, BENGALURU, 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 Though this appeal is listed for admission, with the consent of learned counsel on both sides, the matter is taken up for final disposal.
2. This appeal is preferred by the claimants against the judgment and award dated 01.04.2014 rendered by the Tribunal in MVC No.4717/2012 seeking enhancement of the compensation.
3. The factual matrix of the appeal is as under:
It is stated in the claim petition that on 18.06.2012 at about 3.45 a.m. while the deceased was sleeping by the side of parked Canter Eicher vehicle bearing Reg. No.KA-03-D-6875, at that time, the driver of the said vehicle without following the traffic rules drove the said vehicle in a negligent manner due to which deceased sustained grievous injuries and immediately he was shifted to MVJ Hospital but due to heavy bleeding injuries, he was shifted to Victoria Hospital wherein the duty doctor declared as brought dead. The petitioners having suffered the loss of dependency, loss of love and affection and loss of estate, filed the claim petition seeking compensation.
4. On issuance of notice, respondent no.2 did not appear and was placed exparte and respondent no.1 entered appearance through the counsel and filed the written statement denying the petition averments.
5. Based upon the pleadings, the Tribunal framed the issues. In order to prove the claim, the first petitioner was examined as PW.1 and got marked documents as per Exs.P1 to P11. Respondents did not let any evidence on their behalf. The Tribunal after hearing arguments of learned counsel on both sides, passed the impugned judgment, awarding total compensation of Rs.8,10,000/-. Further, the Tribunal held that there is contributory negligence of deceased to the extent of 20% and deducted the same out of the total compensation and awarded Rs.6,48,000/- with interest @ 6% p.a. from the date of petition till deposit. Being not satisfied with the compensation awarded by the Tribunal and so also on the question of contributory negligence, the appellants/claimants have preferred this appeal, by urging various grounds.
6. Learned counsel for the appellants contends that the Tribunal has erred in assessing the income of the deceased while quantifying the compensation. Further, the Tribunal has not awarded any compensation towards consortium, transportation and awarded less compensation towards funeral expenses, loss of dependency, love and affection, loss of estate and accordingly, the compensation under the said heads needs to be enhanced. Further, it is contended that the Tribunal has grossly erred in fixing the contributory negligence on the deceased @ 20% whereas the charge sheet as per Ex.P10 filed against the offending vehicle on record shows that entire negligence is on the part of the driver of the offending vehicle. The compensation awarded by the Tribunal is highly disproportionate and accordingly, needs to be enhanced. On all these grounds, learned counsel for the appellants prays for allowing the appeal.
7. Per contra, learned counsel for the respondent – insurer contends that the accident has not occurred due to rash and negligent driving of the offending vehicle and disputes the death of the deceased on account of the injuries sustained by him in the motor vehicle accident. Further, the vehicle is implicated to claim the compensation. The deceased was also negligent in causing the accident since he slept on the road. The Tribunal has rightly fixed 20% contributory negligence while assessing the compensation. It is further contended that the tribunal, on appreciation of the evidence/material on record has rightly assessed the income of the deceased and awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
8. In the backdrop of the contentions as taken by the learned counsel for the appellants and learned counsel for the insurer, it is relevant to state that there is no dispute about the death of deceased who succumbed to the injuries sustained in a road traffic accident on 18.06.2012 at about 3.45 a.m. in the night hours. On going through the evidence of PW.1 and the documentary evidence such as Ex.P1- FIR and complaint, Ex.P2-Inquest report, Ex.P3-Mahazar, Ex.P4 – PM report, Ex.P5-IMV report, Ex.P6 – Affidavit, Ex.P9- sketch, Ex.P10-charge sheet and other documents, the Tribunal held that accident occurred on account of rash and negligent driving of the offending vehicle by its driver.
9. There is no dispute that Petitioner No.1 is the father, Petitioner No.2 is the mother and petitioner No.3 is the brother of deceased Chowdareddy. The Tribunal by relying on Ex.P4-P.M.Report, Ex.P7–school certificate has taken the age of deceased as 23 years. The deceased was working as cleaner cum labour. In the absence of proof of income of deceased, the Tribunal has taken income of the deceased at Rs.6000/- p.m. and has deducted 50% towards personal expenses and added 50% towards future prospects. By taking the age of the mother of the deceased and adopting multiplier of 14, calculated the compensation towards loss of dependency in a sum of Rs.7,56,000/-. But keeping in view the year of accident and the avocation of the deceased who was working as cleaner cum labour and as per the guidelines and illustration of the Lok Adalath chart, the income of the deceased has to be enhanced to Rs.8,000/- and by taking the age of the deceased as 23 years, the multiplier applicable would be 18 as per the judgment of Hon’ble Supreme Court in Sarla Verma vs. Delhi Transport Corporation. Further, as per the law laid down by the Hon’ble Apex Court in National Insurance Co.Ltd vs. Pranay Sethi reported in AIR 2017 SC 5157 40% future prospects has to be added and 50% has to be deducted towards personal expenses.
10. The Tribunal has awarded Rs.20,000/- towards loss of estate and Rs.25,000/- towards funeral expenses. But having regard to ratio of reliance in Pranay Sethi’s case as stated supra, the same needs to be enhanced to Rs.15,000/- each, under the respective heads. So far as compensation towards loss of love and affection is concerned, the Tribunal has awarded a meager sum of Rs.9,000/-. But keeping in view the age of deceased who was aged 23 years and that he was working as cleaner cum labour at the relevant point of time and the petitioners being parents and brother having lost the love and affection of their son at tender age and as there is reciprocity in between the family and the deceased, a sum of Rs.80,000/- is awarded in addition to Rs.9,000/- awarded by the Tribunal.
11. In so far as negligence aspect is concerned the Tribunal has fixed the contributory negligence in the ratio of 80% on the driver of the offending vehicle and 20% on the deceased. PW.1 in his evidence has stated that the accident was on account of rash and negligent driving of the offending vehicle and due to that his son died. Ex.P1 – FIR reveals that a case has been registered against the driver of the offending vehicle, Ex.P10 is the charge sheet filed by the concerned police confirming the rash and negligent driving of the offending vehicle by its driver and Ex.P4 is the PM report which reveals that due to the accidental injuries the deceased last his breathe. The plea of the insurance company is that the deceased was also negligent in causing the accident since he slept on the road. But no cogent evidence has been placed by the insurance company in this regard. The Tribunal having taken note of all these materials on record, ought not to have fixed contributory negligence on the part of the deceased. The records placed do not create any suspicion with regard to the case registered against the offending vehicle. Therefore, in this appeal it requires intervention of this court by revisiting the judgment and award rendered by the Tribunal and the contributory negligence fixed on the deceased at 20% by the Tribunal needs to be set-aside. Consequently, the claimants would be entitled for compensation of Rs.8,10,000/- as calculated by the Tribunal instead of Rs.6,48,000/-
12. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Particulars Compensation awarded by MACT Compensatio n by this Court Loss of dependency 7,56,000 12,09,600 Loss of estate 20,000 15,000
Therefore, in all the claimants are entitled to Rs.13,19,600/- as against Rs.8,10,000/- and the enhanced compensation would be Rs.5,09,600/-. For the aforesaid reasons and findings, I proceed to pass the following:
ORDER Appeal is allowed in part. The contributory negligence fixed by the Tribunal at 20% on the part of the deceased is hereby set-aside. The appellants/claimants are entitled for enhanced compensation of Rs.5,09,600/- with interest @ 6% p.a. in addition to Rs.8,10,000/- awarded by the Tribunal. The impugned judgment and award rendered by the Tribunal in MVC No.4717/2012 is modified accordingly.
Respondent-insurer shall deposit the enhanced compensation with interest before the tribunal within four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimants, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered.
There shall be no order as to the costs. Office to draw the decree accordingly.
DKB SD/- JUDGE