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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2017 BEFORE
THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA
MFA NO.369/2013 (MV)
BETWEEN:
KANCHANA KUMARI D/O LATE ERANNA AGED ABOUT 21 YEARS
KAVYA D/O LATE B. ERANNA AGED ABOUT 17 YEARS
E. SHIVAKUMAR S/O LATE B. ERANNA AGED ABOUT 15 YEARS
HANUMAKKA W/O LATE BORAIAH, AGED ABOUT 77 YEARS HOUSE HOLD WORK,
ALL ARE R/O PURELEHALLI VILLAGE, CHALLAKERE TALUK, CHITRADURGA DISTRICT, NOW R/O JOGIMMATTI ROAD, 3RD CROSS, CHITRADURGA 577001 ... APPELLANTS (BY SRI. R SHASHIDHARA, ADV.)
2 AND
VASANTHA S/O MYLARAPPA AGE MAJOR, OWNER OF THE LORRY BEARING NO.KA-17/8714 R/O Y.N. HOSKOTE, PAVAGADA TALUK, TUMKUR DISTRICT 577326
THE MANAGER ICICI LAMBARD GENERAL INSURANCE COMPANY LTD., MAYURA COMPLEX, DOUBLE ROAD, BELLARY 577462 ... RESPONDENTS (BY SRI. A M VENKATESH FOR R2 NOTICE TO R1 IS DISPENSED WITH)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:21.8.2012 PASSED IN MVC NO.374/2011 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, MACT-5, CHITRADURGA, 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 filed by the claimants challenging the judgment and award passed by the Tribunal on the
3 ground of negligence as well as quantum of compensation awarded by the Tribunal.
Heard the learned counsel appearing for the parties and perused the judgment and award passed by the Tribunal including the records.
For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.
As there is no dispute regarding death of one Eranna in a road traffic accident occurred on 15.3.2011 by involvement of a motorcycle bearing Registration NO.KA-16-Q-8443 and a Mini Lorry bearing Registration No.KA-17-8714, the points that arise for consideration in this appeal are: a) Whether the finding of the Tribunal on negligence in holding that the
4 accident occurred due to contributory negligence at the ratio 25% on the part of the deceased in riding his motorcycle and 75% on the part of the driver of the mini lorry, is sustainable in law? b) Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?
Sri.Shashidhar, learned counsel appearing for the claimants submits that though deceased was riding his motorcycle on the left side of the road slowly and cautiously, accident occurred due to rash and negligent driving of mini lorry by its driver and it is corroborated by the fact that the charge sheet is filed against the driver of the lorry. The Tribunal without considering this has committed an error in holding that the accident occurred due to contributory negligence of 25% on the part of deceased in riding his motor cycle and 75% on the part of the driver of mini lorry. Regarding quantum, he submits that
5 income of the deceased assessed by the Tribunal is on the lower side and consequently, the compensation awarded by the Tribunal is not just and reasonable. Therefore, he prays for allowing the appeal.
Sri.A.M.Venkatesth, learned counsel for the insurer submits that the deceased/rider of the motorcycle had no licence to ride his motorcycle. Therefore, the Tribunal considering the same was justified in holding that the accident occurred due to contributory negligence at the ratio of 25% on the part of the deceased/rider of the motorcycle and 75% on the part of the driver of the mini lorry. The said finding of the Tribunal does not call for interference and therefore, he prays for dismissal of appeal.
The claimants in support of their contentions that the accident occurred due to sole rash and negligent driving of the lorry by its driver have examined the
6 daughter of deceased as PW-1 and have produced copy of complaint, FIR, inquest panchanama, PM Report, IMV report at Exs.P-1 to 6. The insurer of offending mini lorry have examined the owner of the lorry as RW-1 and have produced RC book, Tax Card, DL extract, Policy copy at Exs.R-1 to 4. Neither PW-1 nor RW-1 are the eye witnesses to the accident and hence their evidence is of no use for deciding the issue on negligence. Both the parties have not examined any of the eye witnesses to the accident. Therefore, the issue regarding negligence has to be decided based on the police records. Even the spot sketch is not produced. It has come in evidence that deceased did not possess licence to drive motorcycle. It is not known whether deceased knew riding of motorcycle.
Considering the fact that the complaint is filed against the driver of the mini lorry and police after investigating the case have filed charge sheet against
7 the driver of the mini lorry and the said driver is not examined by the insurer and considering the sizes of the vehicles involved in the accident, it has to be held that negligence contributed by the deceased is very less compared to that of the negligence contributed by the driver of the mini lorry. Hence, the finding of the Tribunal on negligence is modified holding that accident occurred due to contributory negligence at the ratio of 15% on the part of deceased/rider of the motorcycle and 85% on the part of the driver of mini lorry. Point No.1 is answered accordingly.
Regarding quantum: The claimants in support of their contention that the deceased by doing contract work was earning Rs.15,000/- per month except examining the daughter of deceased as PW-1 have not produced any licence of deceased to show that he was carrying on contract work or income tax returns or Bank pass book of the
8 deceased to show that he was earning the said amount. RTC extracts produced would only show that deceased hailed from agricultural family. A xerox copy of the contractor’s licence produced by the claimants cannot be relied upon. In the absence of proof of income, considering the age of deceased as 56 years, year of accident as 2011 and his avocation as agriculturist, his income can be assessed at Rs.6,500/- p.m. Since deceased did not have regular income or established income, nothing can be added to his income towards future prospects. Claimants are 3 minor daughters and mother of deceased, and therefore there are four dependent claimants. Therefore, 1/4th of the income of deceased is to be deducted towards his personal expenses and remaining 3/4th of his income is to be taken as his contribution to family. Multiplier of ‘9’ has to be applied based on his age. Therefore, ‘loss of dependency’ works out to Rs.5,26,500/- (6,500 x 3/4 x 9 x 12) and it is awarded as against Rs.4,05,000/- awarded by the Tribunal.
The claimants contended that they have spent Rs.3,00,000/- towards medical expenses of the deceased. The medical bills produced by the claimants at Ex.P-65 to 193 are corroborated by the prescriptions at Ex.P-11-64. Perusal of the medical bills along with prescriptions would go to show that the claimants have spent Rs.2,46,000/- towards medical expenses. Deceased was treated as inpatient for a period of one month in Govt. Hospital, Challakere. Considering the medicals bills produced and duration of treatment, a sum of Rs.2,60,000/- is awarded towards ‘medical and incidental expenses’
A sum of Rs.15,000/- is awarded towards ‘loss of estate’ and Rs.15,000/- is awarded towards ‘transportation of dead body and funeral expenses’.
10 12. Thus, the compensation awarded by the Tribunal is re-assessed as under:-
PARTICULARS Rs. 1 Loss of Dependency 5,26,500 2 Medical and incidental expenses 2,60,000 3 Conventional Heads 30,000
TOTAL 8,16,500
LESS: 15% negligence on the part of the deceased 1,22,475
BALANCE 6,94,025
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 modified and it is held that the accident had occurred due to contributory negligence of 15% on the part of the
11 deceased in riding his motorcycle and 85% on the part of driver of mini lorry.
c) The claimants are entitled for total compensation of 85% of Rs.6,94,025/- amounting to Rs.5,89,922/- with interest at 6% p.a. from the date of claim petition till the date of realization after deducting 15% towards negligence contributed by the deceased in riding his motorcycle.
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 disbursement, apportionment, deposit and release of award 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