PR COMMISSIONER OF vs. M/S TATA ELXSI LTD

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF MARCH 2021 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD MFA No.335 OF 2019(MV) C/W MFA NO.1587 OF 2020(MV)

IN MFA 335/2019 BETWEEN:

M/S ICICI LOMBARD GENERAL INSURANCE COMPANY LTD., REGIONAL OFFICE NO.89, 2ND FLOOR, SVR COMPLEX HOSUR MAIN ROAD MADIWALA, BANGALORE

NOW REP BY ITS LEGAL MANAGER M/S ICICI LOMBARD GIC LTD., REGIONAL OFFICE THE ESTATE 9TH FLOOR, DICKENSON ROAD M.G.ROAD, BANGALORE - 42. ...APPELLANT

(BY SRI. B C SHIVANNE GOWDA, ADV.)

AND 1. SMT. VANITHA.H

2 W/O DEVARAJU AGED ABOUT 34 YEARS R/AT KATTUGOLLAHALLI VILLAGE BIDARAHALLI HOBLI BENGALURU - 560 049.

(BY SRI. D.S.SRIDHAR, ADV. FOR R1 & R2: SRI. K. NAGARAJA, ADV. FOR R3: R4 SERVED AND UNREPRESENTED)

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:19.06.2018 PASSED IN MVC NO.3954/2017 ON THE FILE OF THE XXI ADDITIONAL SCJ & XIX ACMM, MEMBER, MACT, BENGALURU (SCCH-23), AWARDING A COMPENSATION FOR RS.4,34,674/-

3 WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

IN MFA 1587/2020 BETWEEN:

D/O LATE HANUMANTHAPPA W/O DEVARAJU AGED ABOUT 34 YEARS R/AT KATTUGOLLAHALLI VILLAGE BIDARAHALLI HOBLI BENGALURU - 560 049.

D/O LATE HANUMANTHAPPA W/O NARAYANASWAMY R AGED ABOUT 31 YEARS R/AT NO. 13, MATTUKADAHALLI CHINTAMANI TALUK CHIKKABALLAPUR - 563 125. …APPELLANTS (BY SRI. SRIDHAR D.S. ADV.)

AND:

4 3. M/S ICICI LOMBARD GENERAL

INSURANCE CO. LTD.,

REPRESENTED BY ITS MANAGER

NOW AT NO.121, 9TH FLOOR, THE ESTATE

DICKENSON ROAD

BENGALURU-560 042. …RESPONDENTS (BY SRI. K.NAGARAJA, ADV. FOR R1)

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:19.06.2018 PASSED IN MVC NO.3954/2017 ON THE FILE OF THE XXI ADDITIONAL SCJ & XIX ACMM, MEMBER, MACT, BENGALURU (SCCH-23), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THESE MFAs COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

MFA 335/2019 is filed by the Insurance Company and MFA 1587/2020 is filed by the claimants under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) being

5 aggrieved by the judgment dated 19.6.2018 passed by the Motor Accident Claims Tribunal.

6 sustained grievous injuries and succumbed to the injuries.

7 5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.1 as PW-1 and another witness as PW-2 and got exhibited documents namely Ex.P1 to Ex.P10. On behalf of respondents, two witnesses were examined as RWs-1 and 2 and got exhibited documents namely Ex.R1 to Ex.R2. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of contributory negligence, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.6,20,964/- along with interest at the rate of 6% p.a. and directed the KSRTC and insurer of motorcycle to deposit compensation amount at the rate of 35%

8 each along with interest. Being aggrieved, these appeals have been filed.

9 of this court passed in MFA 8513/2015 c/w 9098/2015 dated 10.10.2019. The Tribunal is not justified in holding that the rider of the motorcycle has contributed 35% to the accident. It is very clear from the traffic rules and regulations that if any person who wants to enter the main road from service road, he has to see the vehicles movement on the national highway. But the deceased entered the main road suddenly without following the traffic rules and he was more negligent in causing the accident. In respect of quantum of compensation is concerned, claimants are married daughters of deceased Hanumanthappa. It is very clear from the evidence that they are married and living separately with their husbands and they are not depending on the income of the deceased. They are entitled for compensation under the head of ‘loss of estate’ and not 'loss of dependency'. The income assessed by the

10 Tribunal is without any basis and the overall compensation awarded by the Tribunal is on the higher side. Hence, he sought for allowing the appeal filed by the Insurance Company and dismiss the appeal filed by the claimants.

11 Tribunal has rightly awarded compensation under the head 'loss of dependency'. The overall compensation awarded by the Tribunal is on the lower side. Hence, he prays for allowing the appeal filed by the claimants and dismiss the appeal filed by the Insurance Company.

12 under the head of 'loss of dependency' since the claimants are married daughters and they are not dependents of the deceased.

13 bus rode the same in a rash and negligent manner and ran over the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries. The claimants to prove their case have examined claimant No.1 as PW-1 and another witness as PW-2 and produced 10 documents. The respondents have examined the rider/owner of the motorcycle and conductor of the bus as RWs-1 and 2 and produced two documents.

14 general rule is that the vehicle should be driven at a speed which enables the driver to stop within the limits of his vision and failure to do this will almost always result in the driver being held, in whole or in part, responsible for the collision. [See: CLERK AND LINDSELL ON TORTS, ELEVENTH EDITION, 1954 PAGES 368-370]. It is equally well settled legal proposition that burden of proving negligence lies on the person who alleges it. However, facts of the accident may by themselves constitute evidence of negligence and to such a case the Doctrine of res ipsa loquitor apply which means the things speak for itself. The aforesaid rule is one of the exception to the general rule that burden of proving negligence lies on the person who alleges it. The Supreme Court in ‘MUNICIPAL CORPORATION OF GREATER BOMBAY VS. LAKSHMAN IYER AND ORS.’ AIR 2003 SC 4182 held that the crucial question in case

15 of contributory negligence is whether either party could by reasonable care, have avoided the consequences of other’s negligence. A division Bench of this court in ‘SHARADABAI VS. KARNATAKA STATE ROAD TRANSPORT CORPORATION’, ILR 1987 KAR 2730 has held that in order to discharge the burden of proof with regard to contributory negligence, it is unnecessary for the propounder of that defence to adduce evidence about the matter and contributory negligence can be and very often is inferred from the evidence already adduced by the claimants or from the perceptive facts. However, the finding with regard to contributory negligence has to be recorded on the basis of proper consideration of the pleadings and legal evidence adduced by both the parties and the same cannot be based merely on police records. [See: ‘MINUROUT VS. SATYA PRADYUMNA MOHAPATRA’, (2013) 10

16 SCC 695 AND ‘SARALA DEVI VS. ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD.,’, (2014) 15 SCC 450]. It is well settled in law that burden to prove breach of duty on the part of the victim lies on the insurance company and the insurance company has to discharge the burden.

17 have ran over the deceased. Therefore, the driver of the bus is negligent in causing the accident. The police on the basis of the complaint, registered FIR against the driver of the bus and rider of the motorcycle. As per Ex.P-4, sketch, the place of accident is Bangalore-Kolar, NH-75 road. The bus and the motorcycle were moving from Bangalore towards Kolar and the deceased came from Kolar side and took right turn by utilizing U turn to reach one service road to another service road. It means that the deceased had taken turn towards his right side to reach another service road. It is the duty of all the drivers and riders to stop at U turn point before entering on the national highway since the vehicles will be moving at high speed on national highway. By seeing the evidence of the parties and also sketch as well as mahazar, it is very clear that the deceased has failed to follow the traffic rules and he suddenly entered the main road.

18 At that time, the KSRTC bus was moving on the national highway at high speed. Since it was a heavy vehicle, he could have avoided the accident by slowing down the vehicle or taking the vehicle on the left side and since it was driven at high speed, he could not control and dashed to the vehicle of the deceased and due to the impact, the deceased fell 20 feet away from the accident spot and the rider of the motorcycle coming behind the bus at high speed ran over the deceased. The respondent has examined the rider/owner of the motorcycle as RW-1 and he has stated that he was not negligent in causing the accident. Since the bus has dashed the vehicle of the deceased, and the deceased was thrown away from the spot of accident he fell in front of the motorcycle and as he had not anticipated the accident, he could not avoid the vehicle and ran over him. The KSRTC has examined

19 the conductor of the bus as RW-2. He has stated that the driver of the bus was not negligent in causing the accident. It is the duty of the driver of the vehicle to be careful and keep a good look out. He should look out for other traffic which may be expected to be on the road in front of him, behind him or along side of him especially at cross roads, junctions and bends. The driver of the vehicle is required to be more prudent and circumspect while driving.

20 on record would alsoindicate that he was riding the motor cycle in a rash and negligent manner and before causing fall of the pillion – Kum.Kruthika on road, he had dashed against two other motor cycles. As a result, Kum.Kruthika fell down on road. At that time, the tractor – trailer was proceeding right behind the motor cycle in the same direction in which the motor cycle was proceeding. Hence, when the pillion – Kruthika fell down on the road, there was hardly any time for the driver of tractor – trailer to stop the vehicle and he had no other option but to run over the victim who fell on the road. 11. The evidence on record also clearly discloses that there is no collision between the tractor – trailer and motor cycle on which deceased – Kum.Kruthika was traveling as pillion thereby clearly indicating that there was no accidental involvement of tractor – trailer in causing the fall of Kum.Kruthika from the motor cycle. But, it is the rash and negligent

21 driving of PW.2, who hit two other motor cycles before causing fall of Kum.Kruthika from the motor cycle, which is the reason for her fall in the path of the tractor – trailer. Since the fall has taken place right in front of the tractor – trailer which was moving at moderate speed, there was hardly any time for the driver of the tractor – trailer to stop the same resulting in the said tractor – trailer running over the victim who had fallen from the motor cycle. Therefore, in the fact situation, question of fastening the liability on the driver of tractor – trailer does not arise. In fact, this finding is supported by the decision of Co- ordinate Bench of this Court in the matter of United India Insurance Co.Ltd., Divisional Office, Sagar –vs- Smt.Luviza Fernandis and Others,reported in 2011 (4) KCCR 2954 (DB) where under similar fact situation, the view expressed is as under:- “MOTOR VEHICLES ACT, 1988 –Sections 166 and 173-Motor Vehicle Accident –Tempo

22 Trax coming from the opposite direction dashed against the Motor Cycle of the deceased and both the deceased and pillion rider fell on the road –Due to his sudden fall, the Bus coming behind them ran over the deceased –Tribunal fixed liability on insurers of both the vehicles, of the Bus and Trax- Challenge in appeal as to the liabilities of insurance companies –In the claim petition filed by the pillion rider, the entire compensation was saddled on the insurer of the tempo trax and it satisfied it. Held, insurer of the Tempo Trax was alone liable in the present case also.”

23 to the extent of 40% and rider of the bullet motorcycle has contributed to the accident to the extent of 20%. Hence, the finding of the Tribunal with regard to negligence is concerned, the same is modified to the said extent.

Re: Quantum of compensation. 15. The claimants have not produced any evidence or documents with regard to the income of the deceased. Therefore, considering the age and avocation of the deceased, the notional income of the deceased can be taken at Rs.10,000/- p.m. To the aforesaid amount, 10% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in ‘NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157]. Thus, the monthly income comes to Rs.11,000/-.

24 The claimants are the married daughters of the deceased and they have stated that they are living with their husbands and they have not proved that they are depending on the income of the deceased father. Therefore, the claimants are entitled only for 'loss of estate' and not 'loss of dependency'. In view of the Division Bench decision of this Court in MFA 7318/2016 disposed of on 23.10.2020, it is appropriate to take 50% of the income of the deceased towards 'loss of estate'. Thus, the income of the deceased comes to Rs.5,500/- per month. The deceased was aged about 60 years at the time of the accident and multiplier applicable to his age group is ‘9’. Thus, the claimants are entitled to compensation of Rs.5,94,000/- (Rs.5,500*9*12) on account of ‘loss of dependency’. In addition, the claimants are entitled to Rs.15,000/- on account of ‘funeral expenses’.

25 In view of the law laid down by the Supreme Court in MAGMA GENERAL INSURANCE CO. LTD. – V- NANU RAM reported in 2018 ACJ 2782, claimants are entitled for compensation of Rs.40,000/- each under the head of ‘loss of love and affection’.

The claimants are entitled to a total compensation of Rs.4,13,400/-. KSRTC is directed to deposit 40% of the compensation amount and insurer of bullet motorcycle is directed to deposit 20% of the compensation

26 amount along with interest at 6% p.a. 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 copy of this judgment. To the aforesaid extent, the judgment of the Claims Tribunal is modified. The amount in deposit before this court is ordered to be transferred to the Tribunal forthwith. Accordingly, the appeals are disposed of.

Sd/- JUDGE