IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE L NARAYANA SWAMY AND THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A. NO. 2550 OF 2017 (MV-I) C/W M.F.A. NO.2551 OF 2017(MV-D) IN M.F.A.NO.2550 OF 2017 BETWEEN:
SUNIL KAGI @ SUNIL P S/O PUNDALIK @ PUNDALIK NINGAPPA KAGI AGED 26 YEARS R/AT: LAKSHMIPURA VILLAGE KENGERI HOBLI BENGALURU SOUTH BENGALURU -82.
PREVIOUSLY R/AT:
SHIVAGANGA NAGARA NEAR MURUGAMUTT M.J.NAGARA DHARWAD. …APPELLANT (BY SRI. PRAKASH M H, ADVOCATE) AND:
1. S B I GEN. INS. CO.LTD O/AT RUKMINI TOWERS PLAT FORM ROAD SHESHADRIPURAM BENGALURU-20 REP. BY ITS MANAGER.
2. KARTHIK V S/O VASANTHAPPA R/AT NO.79, HUSKUR SARJAPURA BENGALURU EAST BENGALURU -99.
3. MAHESHA A S/O AJJAPPA, R/AT NEAR KALANIKETHAN SCHOOL KUDLU, MADIWALA POST BANGALORE-68. ...RESPONDENTS (BY SRI. B. PRADEEP, ADV. FOR R-1 V/O DATED.22.11.18-
NOTICE TO R-2, R-3 DISPENSED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 31.12.2016 PASSED IN MVC NO.3221/2015 ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSE JUDGE AND XX A.C.M.M. AND MEMBER MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A.NO.2551 OF 2017 BETWEEN:
1. SMT. AKKAMMA @ AKKAMMA RAVI KAGI @ AKKAMMA KAGI W/O LATE RAVI P KAGI @ RAVI PUNDALIK KAGI AGED ABOUT 27 YEARS, 2. MANOJ @ MANOJ RAVI KAGI S/O LALTE RAVI P KAGI @ RAVI PUNDALIK KAGI AGED ABOUT 8 YEARS, 3. VIJAY @ VIJAY RAVI KAGI S/O LALTE RAVI P KAGI @ RAVI PUNDALIK KAGI AGED ABOUT 3 YEARS, 4. PUNDALIK NINGAPPA KAGI @ PUNDALIK @ P.KAGI S/O LATE NINGAPPA KAGI AGED ABOUT 62 YEARS, 5. SHAKUNTHALA PUNDALIK KAGI W/O PUNDALIK NINGAPPA KAGI, @ PUNCALIK @ P KAGI, AGED ABOUT 57 YEARS, 6. VAISHNAVI D/O LATE RAVI P KAGI @ RAVI PUNDALIK KAGI AGED ABOUT 2 YEARS, ALL ARE RESIDING AT: LAKSHMIPURA VILLAGE KENGERI HOBLI BENGALURU SOUTH BENGALURU -82.
PREVIOUSLY R/AT:
SHIVAGANGA NAGARA NEAR MURUGAMUTT M.J.NAGARA, DHARWAD.
SINCE 2ND, 3RD AND 6TH APPELLANTS ARE MINORS HENCE REP. BY THEIR MOTHER AND NATURAL GUARDIAN APPELLANT NO.1.
…APPELLANTS (BY SRI. PRAKASH M H, ADVOCATE) AND:
1. S B I GEN. INS. CO.LTD O/AT RUKMINI TOWERS PLAT FORM ROAD SHESHADRIPURAM BENGALURU-20 REP. BY ITS MANAGER.
2. KARTHIK V S/O VASANTHAPPA R/AT NO.79, HUSKUR SARJAPURA BENGALURU EAST BENGALURU -99.
3. MAHESHA A S/O AJJAPPA, R/AT NEAR KALANIKETHAN SCHOOL KUDLU, MADIWALA POST BANGALORE-68. ...RESPONDENTS (BY SRI. B. PRADEEP, ADV. FOR R-1 R-2- SERVED NOTICE TO R-3-DISPENSED) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 31.12.2016 PASSED IN MVC NO.3220/2015 ON THE FILE OF THE XXII A.S.C.J AND XX A.C.M.M AND MEMBER MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, NARAYANA SWAMY J., DELIVERED THE FOLLOWING:
JUDGMENT These two appeals have been filed on behalf of the claimants. MVC No.3221/2015 (MFA No.2550/17) was by the claimant who suffered injury in a road traffic accident dated 12.07.2015 and MVC No.3220/2015 (MFA No.2551/17) was by the legal representatives of the deceased who filed this appeal for enhancement of compensation. The Tribunal has awarded compensation of Rs.22,06,500/- in MVC No.3220/2015 and Rs.1,82,340/- in MVC No.3221/2015. While awarding such compensation the Tribunal has fixed negligence at 25% on the deceased as well as on the injured on the ground that the two wheeler which was having two pillion riders which itself contributed to the negligence and it is a violation of Section 123 of the Motor Vehicles Act.
2. The grounds taken by the appellant is that mere having two pillion riders itself is not a ground to fix negligence at 25%. There should be a specific finding as to whether deceased and injured have contributed to accident and if such finding is there, then it is for the Tribunal to fix the negligence. In the instant case no such findings are given except stating that the injured and deceased were two pillion riders, they were proceeding and secondly the driver of the offending vehicle bearing registration No.KA-51-C-2606 a Toyota car has been charge sheeted for the offence punishable under Sections 279, 338 and 304(A) of IPC. Hence at no stretch of imagination the negligence could have been fastened on the claimants and in respect of their case the learned counsel referred the judgment of this Court in MFA No.10768/2010 dated 20.06.2013 wherein in a similar circumstance the appeal has been allowed and negligence has been set aside and the Division Bench in MFA wherein 50% negligence was fixed on the injured and deceased was held as not sustainable in the eye of law.
3. Learned counsel for the Insurance Company supports the impugned judgment and submits that the appeal may be dismissed.
4. When there is violation of Section 123 of the Motor Vehicles Act as held by this Court in several appeals the negligence should be on the deceased or the injured. In the instant case the two wheeler having two pillion riders, there is contravention of Section 123 of the Motor Vehicles Act. Hence it is justifiable in fixing the negligence at 25%.
5. We have heard the learned counsel for both the parties and gone through the records. It is undisputed fact that the injured was proceeding as the second pillion rider and another pillion rider succumbed to the road traffic accident injury. The learned Tribunal has fixed the negligence at 25% on the injured and deceased in view of the contravention of Section 123 of the Motor Vehicle Act.
6. Unless there is specific finding given in respect of contribution of negligence, it is impermissible to fasten negligence. Here, we have examined copy of spot mahazar at EX.P4 and copy of sketch at EX.P6 from which it is seen that the accident spot is extreme left side of the road where the two wheeler was proceeding on its left side. The charge sheeted offending vehicle was on its wrong way and caused the accident. Under this circumstance, it is impermissible to fasten the negligence on the part of the two wheeler rider and pillion riders merely on the ground that there is contravention of Section 123 of the Motor Vehicles Act. Under this circumstances, the appeal is allowed. Fixing of 25% negligence by the Tribunal is accordingly set aside and the Insurance Company is directed to satisfy the award.
7. The appeal filed for enhancement of compensation by the claimant is to be rejected since the Tribunal has selected the disability on the basis of the evidence of the doctor at 5% whereas the doctor has deposed that disability is at 12%. As per judgment of the Hon’ble Supreme Court the disability has to be assessed in case if it is below the lower limbs at 1/3rd. There is no error in the order of Tribunal and hence there is no scope for enhancement.
8. In the appeal filed by legal representatives of the deceased, deceased was a driver in BMTC having permanent job and static income, as per the judgment of the Hon’ble Supreme Court reported in National Insurance Company Ltd., vs. Pranay Sethi and others reported in (2017) 16 SCC 680, if there is an assured income is proved, then he is entitled for future prospects to the extent of 50%. 50% to be added to the income and loss of dependency is to be calculated. The income is assessed at Rs.20,879/- and 50% of it comes to Rs.10,439.50/- which is rounded of to Rs.10,440/-. Total income comes to Rs.31,319/-. If *1/4th is deducted, it comes to *Rs.23,490/-. The loss of dependency would be (*Rs.23,490x12x16)= *Rs.45,09,936/-. Medical expenses as awarded by the Tribunal is retained at Rs.1,84,464/-. Towards conventional heads claimants are entitled to Rs.70,000/-. Total compensation comes to *Rs.47,64,400/- as against Rs.29,41,976/- awarded by the Tribunal. The same * Corrected vide Court order dated 24.4.2019 shall carry 6% interest. MFA No.2551/2017 is allowed accordingly.
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