IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA MISCELLANEOUS FIRST APPEAL NO. 4366/2014(MV) BETWEEN:
1. SMT VASANTHI PRABHU W/O LATE GIRIDHAR PRABHU, AGED ABOUT 47 YEARS, 2. DEEPAK PRABHU S/O LATE GIRIDHAR PRABHU, AGED ABOUT 26 YEARS, 3. DEEPTHI PRABHU D/O LATE GIRIDHAR PRABHU, AGED ABOUT 23 YEARS, ALL ARE R/AT VASUDEVA NILAYA, PRABHU COMPOUND, KODI ROAD, HANGLUR VILLAGE, KUNDAPURA TALUK. UDUPI DIST-576 201.
(BY SRI. NAGARAJA HEGDE, ADV.) AND 1. S S PATIL S/O SOMANA GOWDA, ... APPELLANTS AGED ABOUT 54 YEARS, R/O. PATILA SADAPURA- GOWARA VONI, DHARWAD – 580 001.
SINCE DECEASED BY L.R S 1 (A) MAHADEVE SIDDANA GOWDA, W/O PATIL, AGED ABOUT 51 YEAR, 1 (B) MADHUMATHI SIDDANA GOWDA D/O PATIL, CHILDREN OF LATE S.S. PATIL, AGED ABOUT 28 YEARS.
1 (C) SWAMY SIDDANA GOWDA, S/O PATIL, AGED ABOUT 25 YEARS, 1 (D) MANJUNATH SIDDANA GOWDA D/O PATIL, AGED ABOUT 23 YEARS CHILDREN OF LATE S.S. PATIL, REPRESENTED BY MAHADEVI SIDDANA GOWDA, ALL ARE R/AT PATILA SADAPURA, GOWDARA ONI, DHARWAD-580 001.
2. THE NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE: SRINATH COMPLEX, 2ND FLOOR, HUBLI, REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, UDUPI-576 101.
3. B. RAMA BAI PRABHU, (SINCE DECEASED) 3 (A) B. RATHNAKAR PRABHU, S/O LATE B. RAMA BAI PRABHU, AGED ABOUT 67 YEARS, R/O. PLOT NO. 16(A), SARITHA APARTMENT, 178, BABA ROAD, BAND-STAND, BANDRA WEST, MUMBAI-400 050.
3 (B) B. CHANDRASHEKAR PRABHU S/O LATE. B. RAMA BAI PRABHU, AGED ABOUT 64 YEAR,S R/O KODI RAOD, HANGLOOR VILLAGE, KUNDAPUR TALUK, UDUPI DIST-576 201.
3 (C) U. LATHA RAO D/O LATE B. RAMA BAI PRABHU, W/O U. RAGHAV RAO, AGED ABOUT 61 YEARS, R/O PLOT NO. LIG "B" 271, DR. A.S. RAO NAGAR, HYDERABAD, (A.P)-500062.
3 (D) B. SUDHAKARA PRABHU S/O LATE. B. RAMA BAI PRABHU, AGED ABOUT 58 YEARS, R/O CG-COREEL TECHNOLOGIES LTD., 21, 7TH MAIN, I BLOCK, KORAMANGAL, BANGALORE-560 034.
3 (E) SUPRIYA NAYAK D/O LATE. B. RAMA BAI PRABHU, W/O LATE SURESH NAYAK, AGED ABOUT 56 YEARS, R/O MASTHIKATTE, KUMTA.
3 (F) GEETHA Y. KAMATH D/O LATE. B. RAMA BAI PRABHU, AGED ABOUT 50 YEARS, C/O SADANDA KHARVI, PANDURANGA NILAYA, HOUSE NO. 103, "C"
MEL KHARVI KERI, KUNDAPUR TALUK, UDUPI DIST.-576 201., 3 (G) N. ANITHA P. KINI D/O LATE. B. RAMA BAI PRABHU, W/O PUNDALIKA KINI, AGED ABOUT 46 YEARS NERALAKATTE, KARKUNJE POST, KUNDAPUR TALUK, UDUPI DIST.-576 201.
... RESPONDENTS (BY SRI. O. MAHESH, ADVOCATE FOR R2 NOTICE TO R1 (A TO D) & R3 (A TO G) DISPENSED WITH) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: :24.09.2013 PASSED IN MVC NO.1104/2005 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MEMBER, ADDL.MACT, KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is by the claimants challenging judgment and award passed by the Tribunal both on the ground of negligence as well as quantum.
2. With the consent of the learned counsels appearing for both the parties, the appeal is heard and disposed of finally. Perused the judgment and award passed by the Tribunal.
3. As there is no dispute regarding death of one Giridhar Prabhu in a road traffic accident occurred on 14.08.2005 by involvement of a motor cycle bearing Reg. No.KA.20.4.2326 and a lorry bearing Reg.No.KA- 25-B-1243, the points that arise for consideration in the appeal are:-
“1. Whether the finding of the Tribunal on negligence in holding that accident occurred due to contributory negligence of 40 % on the part of the deceased in riding his motor cycle and 60% on the part of the driver of the offending lorry, is sustainable in law?
2. Whether quantum of compensation awarded by the tribunal is just and reasonable or does it call for enhancement.”?
Regarding negligence:
4. Sri. Nagaraja Hedge, learned counsel appearing for the claimants submits that even though deceased was riding his motor cycle on the left side of the road slowly and carefully, the driver of the lorry came with high speed in a rash and negligent manner and dashed against the motor cycle of the deceased from behind and caused the accident, as a result deceased fell down, sustained grievous injuries and died on the spot. He further submits, PW1, an eye witness to the accident has clearly deposed that accident occurred due to rash and negligent driving of the driver of the lorry and his evidence is corroborated by documentary evidence such as complaint, police record. The tribunal without considering the oral and documentary evidence on record has committed an error in holding that accident had occurred due contributory negligence at the rate of 40% on the part of deceased in driving his motor cycle and 60% on the part of the driver of the offending lorry. Regarding quantum, learned counsel submits, the income assessed by the tribunal is on the lower side and further it has not added portion of earning to his income towards future prospects. Consequently, the compensation awarded towards loss of dependency is on the lower side and therefore he prays for allowing the appeal both on the ground of negligence as well as quantum.
5. Claimants in support of their contention that death of deceased is on account of injuries sustained by him in a road accident occurred due to rash and negligent driving of the driver of the offending lorry, have examined first claimant–wife of deceased as PW1 and one Laxman Devadiga as PW2 and have produced police records such as FIR, Complaint, Spot Mahazar, Post Mortem Report, Inquest report and Police Notice, which were marked as Ex-P1 to P6. The insurer of the offending lorry in support of their contention that accident had occurred due to contributory negligence of both the deceased in riding his motor cycle as well as the driver of the offending lorry have examined two Officials of the Insurance company as RW1 and RW2, the driver of the offending lorry as RW3 and the motor vehicle inspector as RW4 and have produced certified copy of deposition of Laxman Devadiga recorded in CC.No.2004/2005, trade license of deceased as Ex.R1, assessment order as Ex.R2, profit and loss Account, return of turnover for the year 2001-2002 & 2002-2003 as Ex. R4 and Ex.R5 respectively, assessment Orders from 1-4-2002 to 31-3-2003 as Ex.R6, from 1-4-2003 to 31-3-2004 as Ex.R7. Form No.4 as Ex.R8, Profit and Loss account as Ex.R9, assessment order from 1-4-
2004 to 31-3-2005 as Ex.R10, Assessment Order from 1.4.2004 to 31.3.2005 as Ex.R11 and Photos and negatives as Ex. R12 and R13 and IMV report as Ex.R14.
6. Admittedly, PW1, RW.1, 2 and 4 had not seen the accident and therefore, their evidence is of no use to consider the issue relating to negligence. PW2 in his evidence has stated that at the time of accident, he was coming in his bicycle, behind the offending lorry and he was at the distance of 10-15 meters from the spot of accident and could not see the vehicles passing ahead of the offending lorry. Therefore, he did not see how the accident had taken place. Accident had taken place during the night at 9.15 pm on 14.08.2005 and spot Mahazar was drawn on the next day at 10 a.m. after 12 hours from the time of accident. Therefore, it is not worth relying on the Mahazar.
7. It is the case of the claimants that deceased was proceeding in his motor cycle ahead of the offending lorry and the lorry came and dashed against the two wheeler of the deceased from his behind. Perusal of IMV report marked as Ex.R14, would falsify the above statement of the claimants. As per R14-IMV report, rear left wheel inner mudguard of the lorry was found dented. The motor cycle’s handle found bent, rider’s foot rest right side found bent. Front right side indicator of the two wheeler of deceased were bent and broken into pieces. If deceased was proceeding ahead of the offending lorry and if the offending lorry had dashed the motorcycle from behind, the nature of damage indicated in the EX.R14 would not have caused to the lorry and to the motorcycle. Therefore, it must be a case where the deceased must have been in the process of overtaking the offending lorry from its left side and deliberately the spot sketch is not produced before the Tribunal.
8. The Tribunal considering the above aspect of the matter and other oral and documentary evidence on record was justified in holding that the accident had occurred due to contributory negligence of 40% on the part of deceased in riding his motor cycle and 60% on the part of the driver of the offending lorry and the said finding of the Tribunal does not call for interference of this Court. Therefore, Point no.1 is answered accordingly.
Regarding quantum:
9. Ex.P7 is the Licence dated 26.07.2004 issued by the CMC Kundapura in favour of deceased to do bakery business. Ex.P8 is the Certificate of Establishment issued by the Office of the Inspector Under Karnataka Shops and Commercial Establishments Act, 1961 in favor of deceased, Ex. P9 is Profit and Loss account and Balance sheet of M/s. Prabhu Sweets run by the proprietor, Giridhar Prabhu (deceased) as on 31.03.2004. According to which there was Cash Balance at Rs.62,635/-. It further shows that the deceased had gross profit amounting to Rs.1,18,822/- as on 31.03.2004. As on 31.3.2005, he had gross Profit of Rs.1,25,791/-. Ex.P-9 is the order of cancellation issued by Chief Officer, TMC, Kundapura. Ex.P-3 is the profit and loss account ended for the year 2002 summoned by the insurer from the Office of the Commissioner Tax, Kundapura, according to which the gross profit was Rs.42,016/-. Perusal of the above documents would show that deceased was having gross income between Rs.9,000/- to Rs.10,000/- per month during the year 2003-2004. After deducting some amount towards expenses, he must have been getting the income between Rs.7,000 to Rs.8,000/- per month. If 40% of said earnings is added to his income towards future prospects, total income would be around Rs.10,000/- to Rs.11,000/-. If that is so, the Tribunal was justified in taking the income of the deceased at Rs.10,000/- per month inclusive of future prospects. Initially, the claim petition was filed by wife, two minor children and mother of the deceased. During the pendency of the claim petition, his mother died. Therefore, the Tribunal was justified in deducting 1/3rd of the income of the deceased towards his personal expenses and taking remaining 2/3rd of his income as contribution towards family. The multiplier of 15 applied by the Tribunal based on the age of deceased is just and proper. Therefore, Rs.12,00,600/- awarded by the Tribunal towards ‘loss of dependency’ is just and proper and there is no scope for enhancement under this head.
10. Further, a sum of Rs.40,000/- is awarded towards ‘loss of consortium’ in respect of first claimant, Rs.15,000/- is awarded towards ‘loss of estate’ and Rs.15,000/- is awarded towards ‘transportation of dead body and funeral expenses’ as per the decision of the Apex Court in the case of National Insurance Co. Ltd vs. Pranay Sethi and others.
11. Thus, the claimants are entitled for the following compensation:-
12. Accordingly, the following order is passed:
ORDER a) The appeal is allowed-in-part. The judgment and award passed by the Tribunal is modified to the extent stated hereinabove.
b) The finding of the Tribunal on negligence is confirmed.
c) The claimants are entitled for 60% of total compensation of Rs.12,70,600/- amounting to Rs.7,62,360/- with interest at 6% p.a. from the date of claim petition till the date of realization.
d) The Insurance Company is directed to deposit the compensation amount together with interest within two months from the date of receipt of a copy of this judgment, after deducting the amount, if any, already deposited.
e) The apportionment, deposit and release of compensation amount shall be made in terms of the award of the Tribunal.
f) The Tribunal while releasing the amount is also directed to issue the fixed deposit slips, so as to enable the claimants to withdraw the deposit amount on its maturity without approaching the Tribunal once again and the Bank is directed to release the fixed deposit amount without insisting for any further order from the Tribunal.
No order as to costs.
Sd/- JUDGE AKV/DM