IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL 2019 PRESENT THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD M.F.A.No.1640 OF 2012 (MV) BETWEEN:
1. Y.K.Prasanna, S/o.S.B.Kanthappa, Aged about 31 years.
2. K.Purushothama, S/o.S.B.Kanthappa, Aged about 29 years.
3. Y.K.Prathiba, M.A.Med. D/o.S.B.Kanthappa, Aged about 29 years.
All are R/o.Yalakappanahatty Village, Kasaba Hobli, Hosadurga Taluk, Chitradurga District – 577 527. …. Appellants (By Sri Spoorthy Hegde N., Advocate) AND 1. H.G.Jaffer Sab, S/o.Late Abdul Gaffor Sab, Aged about 49 years, Owner of Lorry No.
KA-16/7686, Near ITI Collage Opposite. Hosadurga, Chitradurga Dist. – 577 527.
2. M/s.New India Assu. Co. Ltd., By its Branch Manager, Town Co-operative Society Building, Near Taluk Office, Chitradurga – 577 501. … Respondents (By Sri M.Narayanappa, Advocate for R2: Sri N.Praveen Kumar, Advocate for R1) This MFA is filed under Section 173(1) of MV Act against the Judgment and award dated:05.11.2011 passed in MVC No.320/2011 on the file of the Itinerary Senior Civil Judge, MACT, Hosadurga, dismissing the claim petition for compensation.
This MFA, having been heard and reserved for orders on 20.03.2019, coming on for pronouncement this day, NARENDRA PRASAD J., delivered the following:
JUDGMENT This appeal is directed against the judgment and award dated 05.11.2011 passed in MVC No.320/2006 by the Itinerary Senior Civil Judge & MACT at Hosadurga (hereinafter referred to as the ‘Tribunal’ for the sake of brevity).
2. For the sake of convenience, parties herein shall be referred in terms of their status before the Tribunal.
3. Appellant-claimants filed the claim petition seeking compensation on account of death of Nagarathnamma, mother of the claimants. According to them, on 22.06.2006 at about 9.30 p.m. deceased Nagarathnamma was proceeding on a motor cycle bearing registration No.KA-18/960-TP from Hosadurga towards Channapura. While the motor cycle was moving near Adrikatte-Hurulihally gate, a lorry bearing registration No.KA-16/7686 came from Hosadurga side. Driver of the said lorry came with high speed in a rash and negligent manner and dashed to the motor cycle. As a result, Nagarathnamma fell down from the motor cycle and sustained grievous injuries and died on the spot. Contending that they had lost the sole bread earner of the family, claimants filed the claim petition seeking compensation.
4. The claimants contended that deceased was aged about 48 years and she was working as an Administrator of Kalikamba Education Society and Social worker and earning Rs.30,000/- per month and that she was utilizing the entire amount for maintenance of her family. Therefore, they sought for compensation on various heads.
5. In response to the notice issued, respondent No.
2, Insurance Company appeared through an advocate and filed objections and additional objections denying the petition averments including age, occupation and income of deceased, relationship with deceased and rash and negligent driving of the driver of the offending vehicle. It was contended that accident was due to contributory negligence of both the drivers and the accident occurred due to a hit by an unknown truck but lorry bearing No.KA- 16/7686 had been fixed to get the compensation from the Insurance Company and sought for dismissal of the same.
6. On the basis of the rival pleadings, the Tribunal framed the following issues:-
“1. Whether petitioners prove that Nagarathnamma, W/o.Kanthappa died due to injuries sustained in the motor vehicle accident occurred on 22.06.2006 at 9.30 p.. near Adrikatte, Hurulihalli Gate, involving lorry bearing Reg.No.KA-16/7686 belonging to respondent No.1 and insured with respondent No.2?
2. Whether petitioners prove that accident is mainly due to rash and negligent driving of the driver of lorry bearing Reg.No.KA-16/7686?
3. Whether petitioners prove that they are the only legal heirs to the deceased?
4. Whether petitioners are entitled for compensation? If so, what is the quantum and from whom?
7. In support of their case, claimants examined the son of deceased as PW1 and they produced twelve documents as Exs.P-1 to P-12, while respondent-insurer examined one witness as RW1 and produced eleven documents as Exs. R1 to R11.
8. On the basis of the said evidence, Tribunal by judgment and award dated 03.10.2007 awarded compensation of Rs.5,48,000/- with interest at the rate of 6% p.a. Being aggrieved by the same, Insurance Company had filed an appeal before this Court in MFA No.15479/2007. This Court, by judgment and award dated 30.11.2010 remanded the matter to the Tribunal for examination of driver, owner and Investing Officer (IO). After matter has been remanded, Insurance Company examined three more witnesses. Thereafter, by order dated 05.11.2011 Tribunal dismissed the claim petition. Being aggrieved by the same, claimants are before this Court.
9. We have heard learned counsel for the appellant claimants and learned counsel for the respondent Insurance Company and perused the materials on record.
10. Sri Spoorthy Hegde, learned counsel for the appellants contended that deceased Nagarathnamma died due to accident that occurred on 22.06.2006 at 9.30 p.m.
when she was proceeding on the motor cycle along with her son. Since it was night, driver of the lorry, without stopping the vehicle flew away from the spot. Hence the son of deceased had not seen the registration number of the vehicle. Therefore, in the complaint, vehicle number was not mentioned. Further, he submitted that due to the accident mother of the claimants died. In that shock, he could not give complaint on the same day. On the next day, son of deceased Purushotham gave the complaint to the police station. The Tribunal, without appreciating the above facts, only on the ground that in the complaint the vehicle number was not mentioned and the complaint had been given next day of the accident, dismissed the claim petition.
11. He further submitted that even the owner of the vehicle had admitted the accident. The Insurance Company has not elicited anything from the owner of the vehicle; that the Tribunal has not properly considered FIR, postmortem report, MVA report, mahazar and charge-
sheet. He further submitted that claimants had produced the salary certificate of the deceased as Ex.P10. Hence, he sought for payment of compensation.
12. Per contra, Sri M.Narayanappa, learned counsel for the respondent Insurance Company submitted that accident took place on 22.06.2006 and complaint was registered on 23.06.2006. In the complaint, vehicle number was not mentioned. Even in the evidence also claimants have not proved that lorry bearing registration No.KA-16/7686 was involved in the accident. Tribunal after considering oral and documentary evidence has rightly rejected the claim petition.
13. He further contended that in respect of compensation is concerned, even though claimants have produced salary certificate of the deceased as per Ex.P10, they have not examined the author of the document. Hence, he sought for dismissal of the appeal.
14. Having heard learned counsel for the respective parties, the following points would arise for our consideration :
i. Whether appellants have proved that Smt.Nagarathnamma, wife of Kanthappa died due to the accident that occurred on 22.06.2006, due to the rash and negligent driving of the lorry bearing No.KA-16/7686?
ii. Whether the Tribunal is justified in dismissing the claim petition?
iii. What order?
15. It is not in dispute that on 22.06.2006 deceased Nagarathnamma was proceeding on motor cycle bearing No.KA-18/960, which was driven by her son Puruthotham from Hosadurga towards Chennapura. At about 9.30 p.m. lorry bearing No.KA-16/7686 came from Hosadurga side at a high speed in a rash and negligent manner and dashed to the motor cycle. Due to the impact, Nagarathnamma died on the spot. Driver of the lorry, without stopping the vehicle, vanished from the spot. Hence, son of the deceased who was in a shock was not in a position to note down the number of the vehicle. Since his mother had died on the spot and it was night at 9.30 p.m. he was not in a position to give the complaint. On next day, i.e., on 23.06.2006 he gave the complaint stating that since it was at night 9.30, he could not note the registration number of the vehicle which dashed against his motor cycle and driver of the lorry had not stopped the vehicle and therefore complaint was given without mentioning the lorry number. Subsequently, on the basis of the information, Police, after investigation, had filed charge-sheet mentioning that lorry bearing No.KA-16/7686 was involved in the accident. Police had also drawn mahazar. The owner of the vehicle has not denied the accident. Therefore, it is clear from FIR Ex.P1, IMV report Ex.P3, mahazar Ex.P4 and charge-sheet Ex.P5 that lorry bearing No.KA-16/7686 was involved in the accident and due to rash and negligent driving of the driver of the lorry, Nagarathnamma died on 22.06.2006. The Tribunal, contrary to oral and documentary evidence on record has wrongly given a finding that lorry bearing No.KA-16/7686 was not involved in the accident. In view of the above, this Court is of the opinion that lorry bearing No.KA- 16/7686 was involved in the accident and due to that accident Nagarathnamma died. Accordingly point No.1 is answered.
16. This takes us to the next point. At the time of the accident deceased was aged about 49 years and claimants have produced salary certificate as per Ex.P10. It shows that deceased was earning a salary of Rs.5,000/- per month. In the earlier proceedings dated 03.10.2007 Tribunal had taken monthly income of deceased as Rs.5,000/- per month. Accordingly, we asses monthly income of deceased as Rs.5,000/- per month. The Hon’ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157 has held that if the age of deceased is between 40 to 50 years, an addition of 30% of actual salary should be made. In the case on hand, deceased was aged about 49 years. Hence, 30% of the income has to be added for future prospects. Accordingly, loss of dependency is recalculated as below:
Monthly income - 5,000/- Add: 40% towards future prospects - 1,500/- Total - 6,500/-
Less: 1/3 towards personal expenses - 2,167/- Actual income - 4,333/-
Multiplier - 13 Loss of dependency 4,333 x 12 x 13 -
6,75,948/-
(rounded off to Rs.6,75,950/-) 17. Having regard to the latest judgment of the Hon’ble Supreme Court in the case of MAGMA GENERAL INSURANCE COMPANY LIMITED vs. NANU RAM AND OTHERS, reported in 2018 ACJ 2782, a sum of Rs.40,000/- each would have to be awarded under the head of ‘parental consortium and loss of love and affection’ to the children of the deceased. Accordingly, a sum of Rs.1,20,000/- is awarded.
18. In respect of conventional heads, as per the judgment of the Hon’ble Supreme Court in the case of PRANAY SETHI (supra) claimants are entitled for a compensation of Rs.15,000/- under the head ‘loss of estate’ and Rs.15,000/- under the head ‘funeral expenses’.
19. For the reasons stated above, appeal is allowed in part, awarding the compensation as under:
The compensation shall carry interest at the rate of 6% p.a. from the date of claim petition till the date of realization. Point Nos.1, 2 and 3 are accordingly answered.
The Insurance Company is directed to deposit the compensation amount along with interest @ 6% per annum from the date of filing of the claim petition, till the date of realization, within a period of six weeks from the date of receipt of a copy of this judgment. The amount so deposited by the Insurance Company shall be apportioned to all the claimants in equal proportion. Out of amount apportioned to each of the claimants, 30% shall be released in their favour, after due verification of their identity and 70% shall be kept in a fixed deposit in any Nationalized Bank for a period of three years.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE Cm/-