IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.9131/2015 (MV) BETWEEN:
UNITED INDIA INSURANCE CO. LTD., REGIONAL OFFICE KRISHI BHAVAN BUILDING NRUPATHUNGA ROAD BENGALURU-560 009 REP. BY ITS MANAGER SRI MOHAN P REVADI.
.APPELLANT (BY SRI K.S. LAKSHMINARASAPPA, ADV. FOR SRI B.C. SEETHA RAMA RAO, ADV.) AND:
1. MRS. CHAND BEGUM AGED ABOUT 64 YEARS W/O LATE AJMEERA SAHEB @ AJMEER KHAN 2. MR.RIYAZ KHAN @ RIYAZ AGED ABOUT 33 YEARS S/O LATE AJMEERA SAHEB @ AJMEER KHAN BOTH ARE R/AT NO.559 ‘B’ BLOCK, SUBHASHNAGAR BENGALURU SOUTH BENGALURU-560068.
ALSO AT NO.56, 5TH CROSS SATISH REDDY LAYOUT NEAR BANDEPALYA BENGALURU-560068.
3. SRI SATHYANARAYANA SETTY MAJOR S/O VANNAPPA RESIDING AT NO.371 MARUTI NILAYA, 16TH CROSS NEW MICO LAYOUT HONGASANDRA BEGUR ROAD BENGALURU-560 068.
(BY SRI.L T GOPAL, ADV. FOR R1 & R2 R3 IS SERVED) …RESPONDENTS THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.10.2015 PASSED IN MVC NO.1285/2015 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSE JUDGE, COURT OF SMALL CAUSES AND MEMBER, MACT, BENGALURU, AWARDING COMPENSATION OF RS.9,49,000/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The United India Insurance Company Limited is in appeal, against the judgment and award dated 13.10.2015 in MVC No.1285/2015 on the file of the Motor Accident Claims Tribunal and Court of Small Causes at Bengaluru (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 death of one Sadiq in a road traffic accident. It is stated on 15.02.2015 when the deceased was crossing the road at Bommanahalli junction, towards Mangammanapalya, Hosur main road, a Car bearing registration No.KA- 01/MH-4847 came in a rash and negligent manner and dashed to the deceased, due to which, he sustained grievous injuries and succumbed to the injuries. It is stated that the deceased was a coolie, earning a sum of Rs.600/- per day. He was aged about 42 years as on the date of accident.
3. In response to the notice, both the respondents appeared and filed their respective objections contending that the accident took place solely due to the negligent act of the deceased who tried to cross the road without observing the regular movement of the vehicles. Hence, there was contributory negligence on the part of the deceased. The issuance of policy is admitted and the insurer contended that the liability would be subject to the terms and conditions of the policy.
4. Claimant No.1/mother of the deceased got examined herself as P.W.1 and also examined P.W.2- Venkatesh eye witness apart from marking the documents at Ex.P1 to Ex.P10. No evidence was let in by the respondents.
5. The Tribunal, appreciating the material on record both oral and documentary awarded total compensation of Rs.9,49,000/- with interest at the rate of 9% p.a., from the date of petition till realization on the following heads. The insurer aggrieved by the judgment and award is before this Court.
6. Heard the learned counsel for the appellant/insurer and learned counsel for the respondents/claimants and perused the material on record.
7. Learned counsel for the appellant/insurer would submit that the Tribunal failed to consider the contention of the appellant with regard to contributory negligence on the part of the deceased. Learned counsel also submits that the deceased was crossing the road unmindfully and without looking at the traffic movement. Solely due to the negligence on the part of the deceased, the accident had taken place, which the Tribunal failed to appreciate. Learned counsel inviting the attention of the Court to Ex.P3/sketch and also spot mahazar submits that the claimant was standing near the middle median and was unmindfully crossing the road and the Car was coming from southern side to northern side by following the traffic Rules. Hence, it is his submission that the deceased has equally contributed his negligence for the occurrence of the accident. Further, the learned counsel for the appellant submitted that the Tribunal erred in awarding 30% of the assessed income towards future prospects. It is his submission that the claimant would be entitled for adding only 10% of the assessed income towards future prospects. Further, the learned counsel submits that the compensation awarded on conventional heads is on the higher side and prays to reduce the same. Learned counsel further submits that the Tribunal committed an error in awarding 9% interest per annum on the compensation amount. He submits that catena of decisions of this Court as well as of the Hon'ble Apex Court have laid down that the claimants would be entitled only for 6% interest per annum on the compensation amount. Thus prays for allowing the appeal.
8. Per contra, learned counsel for the respondents/claimants would submit that the appellant has not made out any ground to reduce the compensation and hence the appeal is liable to be rejected. It is his submission that the accident had occurred solely due to the negligent driving of the offending vehicle. Inviting the attention of this court to Ex.P3/sketch, learned counsel submits that the deceased was standing near the middle median and the Car which was coming from southern direction to the northern side, suddenly took right deviation and dashed to the deceased, as could be seen from the sketch. Thus, he submits that the accident had taken place solely due to the negligent driving of the Car by its driver. Further, he submits that the claimants would be entitled for adding 25% of the assessed income towards future prospects relying upon the decision of the Hon'ble Apex Court in NATIONAL INSURANCE COMPANY LIMITED v/s PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680 case. It is his submission that it is for the Tribunal to award interest on the compensation based on the facts of the case. Thus, he prays for dismissal of the appeal.
9. On hearing the learned counsel for the parties and on perusal of the material on record, including the certified copies of the deposition and documents made available by the learned counsel for the appellant/insurer, the following points would arise for consideration in this appeal:
1. Whether the Tribunal is justified in saddling 100% liability on the insurer rejecting the contention of contributory negligence?
2. Whether the Tribunal is justified in awarding 30% future prospects?
3. Whether the interest at 9% p.a. awarded by the Tribunal is proper and correct?
Answer to point No.1 would be in the affirmative and points No.2 and 3 would be in the negative for the following reasons:
10. The accident that occurred on 15.02.2015 involving the Car bearing registration No.KA-01/MH- 4847 and the accidental death of Sadiq is not in dispute in this appeal. The insurer is before this Court on the ground of non-consideration of its contention of contributory negligence and on the exorbitant quantum of compensation awarded by the Tribunal. To appreciate the contention of the appellant with regard to contributory negligence, it is necessary to look into Ex.P3/spot sketch. The spot sketch would indicate that the accident had taken place closed to the middle median and the offending Car bearing registration No.KA-01/MH-4847 was coming from southern side to northern side. It could be seen from the sketch that the driver of the Car while coming from southern side to northern side, took right deviation and dashed to the deceased who was standing by the side of the middle median. When the Car was proceeding towards northern side from southern side, there was no necessity or occasion for the driver of the Car to take right deviation. There was no cross road or U-turn which could be seen in the sketch. In that circumstance, from the sketch, the driver of Car appears to have taken right deviation unnecessarily and dashed the deceased. A look at the sketch/Ex.P3 would make it clear that the accident occurred solely due to the negligent driving of the driver of the offending Car.
11. Learned counsel for the appellant invited the attention of the Court to deposition of P.W.2/eye witness. P.W.2/Venkatesh states that he was near the accident spot and at that time, he saw a person crossing the road. At that time, a Car bearing registration No.KA-01/MF-4847 being driven by its driver in a high speed, rash and negligent manner dashed to the said person. In the cross-examination to a particular suggestion, that there was no provision at the accident spot to cross the road, the witness has denied the same. On the contrary, the insurer has not lead any evidence to establish that there was no provision for crossing the road at the accident spot. Thus, the contention of the appellant/insurer with regard to contributory negligence is rejected.
12. The Tribunal has assessed the income of the deceased at Rs.7,500/- p.m., and the same is not in dispute. The insurer contends that the Tribunal committed an error in awarding 30% of the assessed income towards future prospects. He submits that the claimants would be entitled for adding only 10% of the assessed income. But, as per the decision of the Hon'ble Apex Court in PRANAY SETHI case (supra), it is made clear that wherever the deceased was aged between 40 to 50 years, the claimants would be entitled for adding 25% of the assessed income towards future prospects. In the instant case, the Tribunal has taken the age of deceased at 42 years. Hence, the claimants would be entitled for adding 25% of the assessed income towards future prospects instead of 30% as awarded by the Tribunal.
13. The Tribunal awarded a sum of Rs.50,000/- on the head of loss of love and affection and Rs.60,000/- on the head of loss of estate and Rs.20,000/- on the head of transportation of dead body and funeral expenses. The Hon'ble Apex Court in PRANAY SETHI (supra) case has made it clear that wherever the deceased was a bachelor, the claimants would be entitled for Rs.30,000/- on conventional heads. Further, the mother of the deceased would be entitled to a sum of Rs.40,000/- towards filial consortium.
14. Learned counsel for the appellant/insurer contended that the Tribunal committed an error in awarding interest at the rate of 9% p.a. on the compensation amount and submits that the claimants would be entitled for only 6% p.a. This Court, in a decision reported in 2018 (3) AKR 690 in the case of VIJAY ESHWAR JADHAV AND OTHERS V. ULRICH BELCHIOR FERNANDES AND ANOTHER at paragraphs 14 and 15 has held as follows:
14. I have carefully considered the rival contentions of the counsel for the Insurance Company for the claimants. It is true that the provisions of Civil Procedure Code are not Proprio vigor applicable to the procedure and powers of claims Tribunal, except to the extent mentioned in sub-Section (2) of Section 169 of the Act. Sub-sections (1) & (2) of Section 169 read as under:
“169. Procedure and powers of Claims Tribunals-
(1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objections and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974) 15. However, the provisions of Section 149(1) of the Act to the extent they speak of interest payable on the compensation amount is in the nature of an exception to the general law enacted n 169 of the M.V.Act and therefore, the provisions of Section 34 of the CPC to that extent become invocable on the general principles of construction of statutes namely the special law overrides the general law. Therefore, in the absence of any other law relating to interest on judgments, the MACT has to follow the provisions of Section 34 of CPC, 1908. Thus, in the given circumstances of this case, interest at the rate of more than 6% could not have been awarded.
Following the above said decision, I deem it appropriate to award interest at the rate of 6% p.a. on the compensation amount instead of 9% awarded by the Tribunal. Thus, the claimants would be entitled for the following modified compensation:
1. Loss of dependency including Future prospects 7500+25%=9375 – 50% = 4688 4688x12x14 :: Rs.7,87,584/-
2. Conventional head :: Rs. 30,000/-
3. Filial Consortium :: Rs. 40,000/-
Total Rs.8,57,584/-
15. Thus the claimants would be entitled to total compensation of Rs.8,57,584/- with interest at the rate of 6% p.a., from the date of petition till realization as against Rs.9,49,000/- awarded by the Tribunal.
Accordingly, the appeal is allowed in part. The judgment and award dated 13.10.2015 in MVC No.1285/2015 on the file of the Motor Accident Claims Tribunal and Small Causes Judge at Bangalore is modified to the above extent. Thereby the compensation is reduced to Rs.8,57,584/- from Rs.9,49,000/- and the rate of interest is also reduced from 9% to 6% per annum.
The amount in deposit be transmitted to the concerned Tribunal.
SD/- JUDGE mpk/-*CT:bms