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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF FEBRUARY 2021 PRESENT THE HON’BLE MR. JUSTICE ALOK ARADHE AND THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY M.F.A. NO.26 OF 2015 (MV-D) C/W M.F.A. NO.831 OF 2015 (MV-D) M.F.A. NO.26 OF 2015 BETWEEN: THE NEW INDIA ASSURANCE CO., LTD., REGIONAL OFFICE MAHALAKSHMI CHAMBERS M.G. ROAD, BANGALORE-560001 REP. BY ITS MANAGER SRI. V. RAMACHANDRAN. .... APPELLANT (BY MR. ANUP SEETHARAMA RAO, ADV., FOR MR. SEETHARAMA RAO B.C. ADV.,) AND: 1. SMT. G. MADHUMATHI
AGED ABOUT 57 YEARS
W/O LATE S.N. SATYANARAYANA. 2. SMT. SHALINI S. SAGAR
AGED ABOUT 27 YEARS
D/O LATE S.N. SATYANARAYANA.
2 3. MISS. SAROJINI S. SAGAR
AGED ABOUT 20 YEARS
D/O LATE S.N. SATYANARAYANA.
ALL ARE RESIDING AT NO.474/D
K. MAIN, VYSYA BANK COLONY
SHANTHINIKETHAN LAYOUT
ARAKERE, BANGALORE-560 076. 4. SMT. SUBBA LAKSHMAMMA
AGED ABOUT 90 YEARS
(SINCE R4 IS DECEASED REP. BY
HER LR'S I.E., R1 TO R3
ALREADY ON RECORD.) 5. MR. AJEET SINGH KHANUJA
MAJOR, S/O GURUCHARAN SINGH
NO.6, VISHNUPURI MAIN ROAD
INDORE (MADHYAPRADESH STATE-452001)
(OWNER OF LORRY NO. MP-09/HG-0340). ... RESPONDENTS (BY MR. SHRIPAD V. SHASTRI, ADV., FOR C/R1
& ALSO FOR R2 & R3 V/O DTD:5.2.2015 NOTICE TO R5 IS D/W V/O DTD: 20.1.2021 R1-R3 ARE LRS OF DECEASED R4) - - - THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.10.2014 PASSED IN MVC NO.3343/2012 ON THE FILE OF THE 22ND ADDITIONAL SMALL CAUSES JUDGE, COURT OF SMALL CAUSES, MEMBER MACT, BANGALORE, AWARDING A COMPENSATION OF RS.47,38,664/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT. M.F.A. NO.831 OF 2015 BETWEEN: 1. SMT. G. MADHUMATHI
W/O LATE S N SATHYANARAYANA
AGED ABOUT 56 YEARS.
3 2. SHALINI S. SAGAR
AGED ABOUT 26 YEARS
D/O LATE S N SATYANARAYANA. 3. KUM. SAROJINI S. SAGAR
AGED ABOUT 19 YEARS
D/O LATE S.N. SATYANARAYANA. 4. SMT. SUBBA LAKSHMAMMA
AGED ABOUT 89 YEARS
W/O LATE S. NARAYANAPPA
M/O LATE S N SATYANARANAYA.
ALL ARE R/AT NO.474/D, K MAIN
VYSYS BANK COLONY
SHANTHINIKETHAN LAYOUT
ARAKERE, BANGALORE-76
4TH APPELLANT PERMANENT
ADDRESS: C/O SRINIVASAMURTHY
JYOTHI PROVISION STORES
HADADI ROAD, DAVANAGERE-577002. .... APPELLANTS (BY MR. SHRIPAD V. SHASTRI, ADV.,) AND: 1. AJEET SINGH KHANUJA
S/O GURUCHARAN SINGH
NO.6, VISHNUPURI MAIN ROAD
INDORE, MADHYAPRADESH-452001. 2. THE NEW INIDA ASSURANCE CO., LTD.,
MOTOR T P HUB, NO.9/2
2ND FLOOR, MAHALAKSHMI
CHAMBERS, M G ROAD
BANGALORE-560001
BY ITS DIVISIONAL MANAGER. ... RESPONDENTS (BY MR. ANUP SEETHARAMA RAO, ADV., FOR MR. B.C. SEETHARAMA RAO, ADV., FOR R2 V/O DTD:10.6.2015 NOTICE TO R1 IS D/W) - - -
4 THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.10.2014 PASSED IN MVC NO.3343/2012 ON THE FILE OF THE 22ND ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THESE M.F.As. COMING ON FOR ADMISSION, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING: COMMON JUDGMENT M.F.A.No.831/2015 has been filed by the claimants seeking enhancement of the amount of compensation, whereas, M.F.A.No.26/2015 has been filed by the insurance company under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) against the judgment dated 10.10.2014 passed by the Motor Accident Claims Tribunal. Since, both the appeals arise out of the same accident and from the same judgment, they were heard together and are being decided by this common judgment. 2. Facts giving rise to the filing of the appeal briefly stated are that on 10.01.2012, the deceased SN Sathyanarayana was riding a moped bearing registration
5 no.KA-05-HB-1193 on Nayandanahalli Ring Road, near Pantharapalya, Bangalore. At that time, a lorry (hereinafter referred to as 'the offending vehicle' for short) bearing Registration No. MP-09-HG-0340, which was being driven by its driver in a rash and negligent manner, came from the hind side and dashed against the moped of the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the same. 3. The claimants thereupon filed a petition under Section 166 of the Act claiming compensation on the ground that the deceased was aged about 55 years at the time of accident and was employed as a Relationship Manager at ING Vyasya Bank, Sadashivanagara and was earning a sum of Rs.10,27,620/- per annum. It was further pleaded that accident took place solely on account of rash and negligent driving of the offending vehicle by its driver. The claimants claimed compensation to the tune of Rs.5,00,00,000/- along with interest. 4. The insurance company filed written statement, in which the mode and manner of the accident was denied. It
6 was further pleaded that the accident occurred on account of negligence of the deceased himself. It was also pleaded that the driver of the offending vehicle did not hold a valid and effective driving license at the time of accident and that the liability of the insurance company, if any, would be subject to the terms and conditions of the insurance policy. The age, avocation and income of the deceased was also denied and it was pleaded that the claim of the claimants is exorbitant and excessive. 5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant No.1 examined herself as PW-1, Reddappa Setty (PW2), V. Sundaran (PW3) and got exhibited documents namely Ex.P1 to Ex.P23. The respondents examined Padmanabban R (RW1), Girija DP (RW2), T Mallesh (RW3), CK Surya Prakash and got exhibited documents viz., Ex.R1 to Ex.R14(a). The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver. It was further held, that as a result of aforesaid
7 accident, the deceased sustained injuries and succumbed to the same. The Tribunal further held that the claimants are entitled to a compensation of Rs.47,38,664/- along with interest at the rate of 6% per annum. Being aggrieved, these appeals have been filed. 6. Learned counsel for the insurance company submitted that the Tribunal erred in not assigning contributory negligence on the part of the deceased when the evidence of RW3 T Mallesh as well as Ex.P5 IMV report, Ex.R4 Sketch and Ex.R9 Spot Sketch clearly disclose that the deceased contributed to the occurrence of the accident. It is further submitted that the place of accident is a busy road and that there would not have been any occasion for driver of the offending vehicle to drive the same in a rash and negligent manner. It is also submitted that the amount of compensation assessed by the Tribunal is just and proper and no interference is called for in this regard. On the other hand, learned counsel for the claimants has invited our attention to paragraph 22 of the judgment of the Tribunal and submitted that the Tribunal on meticulous appreciation
8 of evidence on record has rightly held that the accident occurred on account of negligence of the driver of the offending vehicle. It is further submitted that the Tribunal erred in deducting income tax to the extent of 20% from the annual income of the deceased. It is further submitted that the sums awarded under the heads ‘loss of consortium’ and ‘funeral expenses’ are on the lower side and deserves to be enhanced suitably. 7. We have considered the submissions made by learned counsel for the parties and have perused the record. The Supreme Court in ‘MANGALA RAM VS. ORIENTAL INSURANCE CO.’, (2018) 5 SCC 656 has held that the proceeding under the Act has to be decided on the basis of preponderance of probabilities and claimant is not required to prove the accident beyond reasonable doubt. It is well settled in law that when an accident happens through the combined negligence of two persons, he alone is liable to the other who had the last opportunity of avoiding the accident by reasonable care, and who then knew or ought to have known of the danger caused by the other’s negligence. [See:
9 SALAMOND ON THE LAW OF TORTS, TWELFTH EDITION 1957 PAGE 439-441]. The 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. 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 of contributory negligence is whether either party could by reasonable care, have avoided the consequences of other’s negligence. 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 SCC 695 AND ‘SARALA DEVI VS. ROYAL SUNDARAM ALLIANCE
10 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. [SEE: ‘USHA RAJ KHOWA VS. PARAMOUNT INDUSTRIES’, (2009) 14 SCC 71]. 8. From perusal of the record it is evident that PW1 viz., the wife of the deceased is not an eye witness. Ex.P1 FIR and Ex.P2 Complaint have been filed against the driver of the offending vehicle. Ex.P3 Spot mazhar indicates that the accident occurred 5 feet away from the barricade raised in the middle of the road for the construction of metro pillars. Ex.P4 Spot Sketch, Ex.R9 Spot Sketch as well as Ex.P14 Spot Sketch disclose that the moped of the deceased was located towards the left side of the lorry. Ex.P5 IMV Report discloses that the right portion of the moped was damaged while the lorry sustained no visible damage. All the aforestated material, probabilise the version of manner of accident as put forth by the claimants. It is pertinent to note here that the insurance company has failed to examine the driver of the
11 offending vehicle or any other independent witness to prove its version of the manner of accident. The Tribunal, therefore, on the basis of meticulous appreciation of evidence on record as well as on the basis of preponderance of probabilities has recorded a finding that the driver of the offending lorry was negligent in driving the lorry, as a result of which the accident took place in which the deceased sustained injuries and succumbed to the same. For the aforementioned reasons, we affirm the finding recorded by the Claims Tribunal with regard to negligence. 9. Now we may advert to the quantum of compensation. Ex.P19 are the income tax returns of the deceased. Ex.P17 is the pay slip of the deceased for the month of December 2011 which is duly proved by the evidence of the employer Ex.PW2 Reddappa Setty. No reliance can be placed upon Ex.P19 Income Tax return for the Assessment Year 2011-12, as it has been filed on 01.04.2011 which is much prior to the date of accident, where as Ex.P17 is more reliable as it would disclose the income of the deceased as on the date of accident viz., ten
12 days prior to the accident. Therefore, the income of the deceased is assessed at Rs.73,153/- per month (Rs.81652 - Rs.200 - Rs.8299) after deducting Rs.200/- per month and Rs.8299/- per month towards professional tax and income tax respectively. 10. In view of the law laid down by the Constitution Bench of the Supreme Court in ‘NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS’ AIR 2017 SC 5157, 10% of the amount has to be added on account of future prospects as the deceased was employed in a private bank where there is tenure of the job is not assured. Thus, the monthly income comes to Rs.80,468/-. Since, the number of dependents is 4, therefore, 1/4th of the amount has to be deducted towards personal expenses and therefore, the monthly dependency comes to Rs.60,351/-. Taking into account the age of the deceased which was 57 years at the time of accident, the multiplier of ‘9’ has to be adopted. Therefore, the claimants are held entitled to (Rs.60,351x12x9) i.e., Rs.65,17,908/- on account of loss of dependency.
13 11. In view of laid down by the Supreme Court in ‘MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM & ORS.’ (2018) 18 SCC 130, which has been subsequently clarified by the Supreme Court in ‘UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.’ IN CIVIL APPEAL NO.2705/2020 DECIDED ON 30.06.2020 each of the claimant’s are entitled to a sum of Rs.40,000/- on account of loss of consortium and loss love and affection. Thus, the claimants are held entitled to Rs.1,60,000/-. In addition, claimants are held entitled to Rs.30,000/- on account of loss of estate and funeral expenses. Thus, in all, the claimants are held entitled to a total compensation of Rs.67,07,908/-. Needless to state that the aforesaid compensation shall carry interest at the rate of 6% per annum from the date of filing of the petition till the payment is made. To the aforesaid extent, the judgment passed by the Claims Tribunal is modified. The amount in deposit, if any, shall be transmitted to the Tribunal.
14 Accordingly, the appeals are disposed of. Sd/- JUDGE Sd/- JUDGE RV