IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.2779/2014 [MV] BETWEEN:
1. SUKANYA W/O LATE RAJASHEKARA AGED ABOUT 51 YEARS 2. HARSHA S/O LATE RAJASHEKARA AGED ABOUT 31 YEARS BOTH ARE R/O BASARALU VILLAGE BASARALU HOBLI, MANDYA TQ & MANDYA DISTRICT-571410.
...APPELLANTS (BY SRI.SREENIVASAN M Y, ADV.) AND:
1. MANJU S/O SUBRAMANYA AGED ABOUT 31 YEARS R/O NO.20, HARAVU VILLAGE PANDAVAPURA TALUK MANDYA DIST.-571418.
2. THE BRANCH MANAGER ROYAL SUNDARAM ALLIANZ INSURANCE CO.LTD., NO.133, 3RD FLOOR SHIKA TOWERS RAMAVILAS ROAD MYSORE-570023.
3. ANNAIAH S/O PAPEGOWDA AGED ABOUT 49 YEARS R/O HOUSE NO.2/1 SINDHABHOGANAHALLI KANIVEKOPPALU POST PANDAVAPUR TALUK MANDYA DISTRICT-571418.
4. THE BRANCH MANAGER UNITED INDIA INSURANCE CO.LTD., KAMBALI BUILDING M.C.ROAD, MANDYA-571401.
…RESPONDENTS (BY SRI.RAVI S SAMPRATHI, ADV. FOR R2 SRI.JANARDHAN REDDY, ADV. FOR R4 R1 & R3 – NOTICE D/W V/O DT:28.09.2018) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.01.2014 PASSED IN MVC NO.156/2011 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND CJM, AND MACT, MANDYA, 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 The claimants are in appeal, not being satisfied with the quantum of compensation awarded and aggrieved by saddling 1/3rd contributory negligence on the deceased under the judgment and award dated 10.01.2014 in MVC No.156/2011 on the file of the Additional Senior Civil Judge and CJM and Motor Accident Claims Tribunal, Mandya (hereinafter referred to as 'the Tribunal' for short).
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental death of Rajashekharappa in a motor vehicle accident. It is stated that on 26.12.2010, when the deceased Rajashekharappa was proceeding in a Bajaj Pulsar Motor cycle bearing registration No. KA-11/G-0375 along with a pillion rider one Anand, the driver of the Tata Ace vehicle bearing registration No.KA-11/A-1405 which was going ahead of the motorbike, suddenly applied brake without giving any signal. As the driver of the Tata Ace vehicle suddenly applied brake, the deceased took his motorbike towards right side of the Tata Ace vehicle and suddenly the driver of the Tata Ace opened the right side door of the vehicle, negligently without observing that the motorbike ridden by the deceased. As a result, the deceased lost control and fell down on the road. In the meanwhile, a lorry bearing registration No.KA-13/A- 3434 came in a rash and negligent manner, with a high speed and ran over the head of the deceased. It is stated that the deceased was aged 54 years as on the date of accident and was working as an Assistant Sub- Inspector at KRS Police Station, earning salary of Rs.21,418/-p.m. Further, it is also stated that he was earning Rs.10,000/- p.m., from agriculture in addition to his salary.
3. On issuance of notice, respondent No.1, even though served with notice, remained absent. Respondent No.2/insurer appeared and filed its statement denying the claim petition averments. Further, it is contended that the driver of the offending vehicle had no valid and effective driving license to drive the vehicle as on the date of accident and that the vehicle had no permit and Fitness Certificate. It is also contended that the accident occurred solely due to the negligent riding of the motorcycle by the deceased.
4. Respondents No.3 and 4 also appeared and filed their objections.
5. Claimant No.2 got examined himself as P.W.1 and also examined one Anand as P.W.2 apart from marking 9 documents as Ex.P1 to Ex.P9. The respondents examined two witnesses as R.W1 and R.W.2 apart from marking three documents as Ex.R1 to Ex.R3.
6. The Tribunal, on appreciating the material placed on record awarded total compensation of Rs.19,14,784/- with interest at the rate of 9% p.a., from the date of petition till realization, on the following heads and saddled 1/3rd contributory negligence on the deceased. After deduction of 1/3rd contributory negligence, the claimant was entitled for
4. Loss of dependency :: Rs.18,84,784/-
Total Rs.19,14,784/-
Aggrieved by the quantum of compensation and saddling 1/3rd liability on the deceased, the claimants are in appeal.
7. Heard the learned counsel for the appellants/claimants and learned counsel for the respondent/insurer. Perused the material on record including the Lower Court Records.
8. Learned counsel for the appellant would submit that the Tribunal committed an error in saddling 1/3 contributory negligence on the deceased. It is his submission that the accident occurred solely due to the rash and negligent driving of the drivers of the Tata Ace and the lorry. The deceased was riding the motorcycle very slowly, following the traffic rules. But, the accident occurred solely due to negligent driving of the TaTa Ace vehicle who suddenly opened the right side door of the vehicle. Due to which, the deceased lost control and fell down on the road and the lorry ran over the head of the claimant. Thus, he prays fro setting aside that portion of the judgment and award by which, 1/3rd contributory negligence is saddled on the deceased.
9. Further, learned counsel submits that the deceased was aged 54 years and the Tribunal has failed to award any compensation on the head of future prospects, for which the claimants would be entitled for adding 15% of the determined income towards future prospects, as per the decision of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v/s PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680. No other ground is urged by the appellants for enhancement of compensation.
10. 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 the Tribunal is justified in saddling 1/3 contributory negligence on the deceased?
(ii) Whether the claimants would be entitled for enhanced compensation on the future prospects?
11. Answer to the above points would be in the affirmative for the following reasons:
The accident occurred on 26.12.2010, involving the motorbike bearing registration No.KA-11/G-0375, Tata Ace vehicle bearing registration No.KA-11/A-1405 and a lorry bearing registration No.KA-13/A-3434 and the accidental death of Rajashekharappa is not in dispute, in this appeal. The claimants are wife and son of the deceased Rajashekharappa. The claimants’ appeal is for enhancement of compensation and also aggrieved by saddling 1/3 contributory negligence on the deceased. Learned counsel for the claimants contended that the accident occurred solely due to rash and negligent driving of the drivers of offending Tata Ace vehicle and the lorry. As the driver of the Tata Ace vehicle opened the right side door of the vehicle, the deceased, who was following the Tata Ace vehicle, lost control and fell down and the lorry which was coming in rash and negligent manner, ran over the head of the deceased.
12. It is on record that the claimant was proceeding in his motorbike bearing registration No.KA-11/G-0375 along with pillion rider. He was following the Tata Ace vehicle. While following the vehicles going ahead, the rider who follows the vehicle has to maintain sufficient distance. It appears, the deceased was not maintaining minimum distance between the motorbike and the Tata Ace vehicle. When the driver of the Tata Ace vehicle suddenly applied the brake and opened the right side door, the deceased who was following the vehicle lost control and fell down on the right side and the lorry which was coming from the opposite direction ran over the head of the deceased. Thus, it could be said that the rider of the motorcycle also contributed his negligence for occurrence of accident. The finding of the Tribunal with regard to contributory negligence needs no interference.
13. Learned counsel for the claimants urged only one ground for enhancement of compensation i.e., non- awarding compensation under the head future prospects. The deceased was aged 54 years as on the date of accident. He was working as Assistant Sub- Inspector of Police in the State Police Department and was earning Rs.21,418/- p.m. There is no dispute that the deceased was having permanent Government job. The Hon'ble Apex Court in PRANAY SETHI case (supra) at paragraph 59.3 has held as follows:
“59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The additional should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.”
14. The above paragraph would make it clear that if the deceased was aged between 50 to 60 years and was drawing salary from a permanent job, the claimants would be entitled for adding 15% of the determined income towards future prospects. Thus, in the case on hand also, since the deceased was aged 54 years and was holding permanent Government job, the claimants would be entitled for adding 15% of the determined income towards future prospects. Thus, the claimants would be entitled for the following modified compensation:
1. Loss of dependency (21,418 + 15% = 3212 = 24,630-1/3 = 8,210 = 16,420x12x11) :: Rs.21,67,440.00 2. Conventional heads :: Rs. 70,000.00 Total Rs.22,37,440.00 Out of the above compensation of Rs.22,37,440/-, 1/3 has to be deducted towards contributory negligence, which comes to Rs.7,45,813/-. Thus, the claimants would be entitled to Rs.14,91,627/- with interest at the rate of 9% p.a., from the date of petition till realization as against Rs.12,76,530/- awarded by the Tribunal. Thereby, the claimants are entitled to enhanced compensation of Rs.2,15,097/-.
15. Accordingly, the appeal is allowed in part. The judgment and award dated 10.01.2014 in MVC No.156/2011 on the file of the Additional Senior Civil Judge and CJM and Motor Accident Claims Tribunal, Mandya is modified to the above extent. The claimants are entitled for enhanced compensation of Rs.2,15,097/-.
The apportionment and deposit would be as ordered by the Tribunal.
Sd/-
JUDGE mpk/-* CT:bms