Loading judgment…
No AI summary yet for this case.
1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MARCH 2021
PRESENT
THE HON’BLE MR.JUSTICE ALOK ARADHE AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD MFA NO. 202 OF 2015 (MV) C/W MFA CROB NO.50 OF 2015 (MV)
IN MFA NO.202/2015 BETWEEN:
Legal Manager Reliance General Insurance Co Ltd., Regional Office, East-Wing 5th Floor, Centenary Building, No.28, M G Road, Bangalore ...Appellant (By Sri.B.Pradeep, Advocate)
AND: 1. Chinnadurai N
S/o Narayanaswamy M
Now Aged About 65 Years
2 2. Seethalakshmi C
W/o Chinnadurai N
Now Aged About 58 Years
Sugandhi C
D/o Chinnadurai,
Now Aged About 31 Years,
All are R/at no.41,
Thandalam, Visaloor,
Kumbhakonam Taluk,
Tanjore District,
Tamilnadu-612402
Narayanaswamy
S/o Chinnappa,
Aged Major,
No.37,Arehalli, Uttarahalli Hobli,
Bangalore ...Respondents (By Sri.K.V.Naik, Advocate for R1-3; Vide Court Order dt:29/01/2021 R4 notice dispensed with)
This MFA is filed under section 173(1) of MV Act against the judgment and award dated: 31.10.2014 passed in MVC No.7648/2010 on the file of the XIX Additional Small Cause Judge, Mact, Bangalore, awarding compensation of Rs.31,32,856/- with interest @ 6% p.a. from the date of petition till realization.
IN MFA CROB NO.50/2015 BETWEEN:
Sri Chinnadurai N
S/o Sri. Narayanaswamy.N
Aged About 65 Years
Smt. Seethalakshmi.C
W/o Chinnadurai.N
Aged About 58 Years
Miss. Sugandhi.C
D/o Chinnadurai.N
Aged About 31 Years
All are Residing At No.41,
Thandalam, Visaloor,
Kumbhakonam Taluk,
Tanjore District,
Tamil Nadu-612 402. ...Cross Objectors (By Sri.K V Naik, Advocate)
AND: 1. Reliance General Insurance
Company Limited,
No.28, East Wing, 5th Floor,
Century Building, M.G. Road,
Bangalore-01.
Mr. Narayanaswamy
S/o Chinnappa
Aged In Major,
No.37, Arehalli,
Uttarahalli Hobli,
Bangalore-62. ...Respondents (By Sri.B.Pradeep, Advocate for R1; Vide Court Order dt:22/06/2020 R2 notice dispensed with)
This MFA Crob in MFA No.202/2015 is filed under order 41 Rule 22 of CPC, against the judgment and award dated:31.10.2014 passed in MVC No.7648/2010 on the file of the 19th Additional Small Causes Judge, Mact,
4 Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These MFA and MFA Crob Coming on for admission, this day, H.T. Narendra Prasad J., delivered the following: JUDGMENT MFA No.202/2015 is filed by the insurance company under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) whereas MFA Crob No.50/2015 is filed by the claimants under Order 41 Rule 22 of CPC being aggrieved by the judgment dated 31.10.2014 passed by the Motor Accident Claims Tribunal. Since, both, the appeal and the cross-objection arise out of the same accident as well as a common judgment, they were heard together and are being decided by this common judgment. 2. Facts giving rise to the filing of the appeal and cross objection briefly stated are that on 11.07.2010 at about 12.45 a.m. the deceased
5 Venkatesh was proceeding in a motorcycle bearing registration No.KA-51/K-3533 on B.E.T.L. Elevated Highway. At that time, a tempo bearing registration No.KA-06/A-7811 was parked without any parking light, signal, indicator for parking the vehicle on the elevated highway. The deceased who was proceeding in the motorcycle dashed on the back of the said tempo. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries on the way to the hospital. 3. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 29 years at the time of accident and was working at American Power Conversion as Field Service Engineer and was earning Rs.35,000/- per month. The claimants claimed compensation. 4. On service of notice, the respondent No.1 filed written statement in which the averments made in the
6 petition were denied. The age, avocation and income of the claimant and the medical expenses are denied. It was pleaded that the accident was due to the rash and negligent riding of the vehicle by the deceased himself. It was further pleaded that the tempo was parked on the extreme left side of the road and there was lot of space available to the extent of 25 feet to the vehicles and it is the deceased who negligently dashed to the parked tempo on the back side. It was further pleaded that as per the petition version it is head on collusion between 2 vehicles and hence, there is negligence on the part of the rider of the motorcycle, i.e., the deceased. Hence, he sought for dismissal of the petition. The respondent No.2 did not appear before the Tribunal inspite of service of notice and was placed ex-parte.
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, employer of the deceased as PW-2 and one employee of HSBC Bank as PW-3 and got exhibited 27 documents namely Ex.P1 to Ex.P27. On behalf of respondents, official of the Insurance Company was examined as RW-1 and I.O. as RW-2 and got marked the policy as Ex.R1. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident has occurred on account of negligence of the driver of the offending tempo and also the rider of the motorcycle, i.e., deceased at 75% and 25%, respectively. The Tribunal further held that the claimants are entitled to a compensation of Rs.31,32,856/- along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit
8 75% of the compensation amount along with interest. Being aggrieved, these appeal and cross objection have been filed.
The learned counsel for the Insurance Company has raised the following contentions: Firstly, the accident occurred due to negligence of the rider of the motorcycle, i.e., the deceased himself. Secondly, the offending vehicle was parked on the side of the road. Even though it is mid night, street light was on and the parking of the tempo was clearly visible to the rider of the motorcycle. Since the deceased was riding the motorcycle at a high speed, he was not maintaining proper distance, he was not wearing helmet and due to his negligence the accident has occurred. The Tribunal is not justified in holding that the driver of the tempo has contributed 75% to the accident. In support of his claim, he relied
9 on the judgment of the Hon’ble Apex Court in the case of NISHAN SINGH AND OTHERS vs. ORIENTAL INSURANCE COMPANY LTD. reported in AIR 2018 SC 2118. Thirdly, the Tribunal taking into consideration Form No.16 as per Ex.P22 and Ex.P23 has rightly assessed the monthly income but while considering addition of future prospects the Tribunal has wrongly considered addition of 50% instead of 40%. The same is contrary to the judgment of the Hon’ble Apex Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157. Fourthly, the compensation awarded by the Tribunal for ‘funeral expenses’ at Rs.25,000/- is contrary to the judgment of the Hon’ble Apex Court in the case of PRANAY SETHI (supra). Hence, he sought for allowing the appeal filed by the Insurance
10 Company and dismissal of the appeal filed by the claimants.
On the other hand, learned counsel for the claimants has raised the following contentions: Firstly, the accident occurred due to the negligence of the driver of the tempo. The driver of the tempo has parked the vehicle in the middle of the road without any indication. Since it was mid night, the deceased who was the rider of the motorcycle was unable to see the tempo and caused the accident. The Tribunal is not justified in holding that the rider of the motorcycle, i.e., the deceased has contributed 25% to the accident. In support of his contention he relied on the judgment of the Hon’ble Apex Court in the case of ARCHIT SAINI AND ANOTHER vs. THE ORIENTAL INSURANCE COMPANY LIMITED AND OTHERS reported in (2018) 3 SCC 365.
11 Secondly, as per the salary certificate at Ex.P25 the monthly income of the deceased was Rs.30,912/-, the Tribunal is not justified in taking the monthly income of the deceased as Rs.20,019/-. Thirdly, as per the judgment of the Hon’ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. –V- NANU RAM reported in 2018 ACJ 2782, each of the claimants are entitled for compensation under the head of ‘loss of love and affection and consortium’. Hence, he prays for allowing the cross objection filed by the claimants and dismissing the appeal filed by the Insurance Company.
We have considered the submissions made by the learned counsel for the parties and have perused the records.
The case of the claimants is that on 11.07.2010 at 12.45 a.m. the deceased Venkatesh
12 was proceeding on a motorcycle on B.E.T.L. Elevated Highway. At that time, the tempo was parked without parking lights or signal. The deceased who was proceeding on motorcycle dashed at the backside of the tempo, sustained grievous injuries and immediately he was shifted to the hospital where he succumbed to the injuries. To prove the case claimants have examined claimant No.1 as PW1 and examined other two witnesses and marked 27 documents.
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: SALAMOND ON THE LAW OF TORTS, TWELFTH EDITION 1957 PAGE 439-441]. The
13 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
14 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
15 MOHAPATRA’, (2013) 10 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.
In the aforesaid background, we have examined the case. PW-1 has reiterated the statement made in the claim petition. He has categorically stated that the accident occurred due to negligent parking of the tempo by its driver. Immediately after the accident complaint has been lodged as per Ex.P12 and FIR has been registered against the driver of the tempo as per Ex.P11. After thorough investigation police have filed charge sheet against the driver of the tempo. The police have drawn the sketch as per
16 Ex.P14. As per the sketch and mahazar the accident occurred on Bangalore – Chennai Elevated Flyover. The tempo was parked on the left side of the road, the width of the road is 30 ft. the road was straight at the place of the accident and there are street lights. It is very clear from the evidence of the parties that the tempo was parked without parking lights or indicator. The respondent has examined the investigation officer as RW-2. In the examination-in-chief, he has stated that the deceased was not wearing helmet. It is also elicited in the evidence of RW-2 that there are street lights at the place of the accident.
The judgment relied on by the learned counsel for the Insurance Company in the case of NISHAN SINGH (supra) is not applicable to the facts of the present case. In the said judgment, the driver of the truck which was moving ahead applied sudden brake and the driver of the car which was
17 coming behind was not maintaining distance from the truck. But, in the case on hand, the offending vehicle was not moving but it was parked on the side of the road. 14. In the case relied upon by the learned counsel for the claimants in ARCHIT SAINI (supra), the tanker was parked in the middle of the elevated highway in a negligent manner without indicator or parking lights. In the case on hand, the driver of the offending vehicle parked the tempo by the side of the road without indicator or parking lights and therefore the driver of the tempo is also negligent.
The sketch – Ex.P14 shows that there are street lights in the elevated highway on which the accident occurred. It was mid night 12.45 a.m. and the rider of the motorcycle, the deceased, was coming at a high speed. If he was riding the vehicle in a moderate speed, he could have avoided hitting the
18 parked tempo. On perusal of the evidence of the parties and the materials available on record it is clear that the rider of the motorcycle is also negligent and he has also contributed to the occurrence of the accident.
In view of the aforesaid circumstances, considering the evidence of the parties and the materials available on record, we are of the opinion that the Tribunal has rightly held that both the driver of the tempo as well as the rider of the motorcycle have contributed to the occurrence of the accident at 75% and 25%, respectively.
Re.quantum: 16. Even though the claimants have claimed that deceased was earning Rs.30,912/- per month as per the salary certificate at Ex.P25. But as per Form No.16 at Exs.P22 and P23 the gross annual income is
19 Rs.3,73,488/-, out of which, we deem it appropriate to deduct income tax amounting to Rs.22,178/- and professional tax at Rs.2,400/-. The net annual income comes to Rs.3,48,910/-. To the aforesaid amount, 40% 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 ‘PRANAY SETHI’ (supra). Thus, the annual income comes to Rs.4,88,474/-, out of which, we deem it appropriate to deduct 50% towards personal expenses and therefore, the annual income comes to Rs.2,44,237/-. The deceased was aged about 29 years at the time of the accident and multiplier applicable to his age group is ‘17’. Thus, the claimants are entitled to compensation of Rs.41,52,029/- (Rs.2,44,237*17) on account of ‘loss of dependency’. In view of the law laid down by the Supreme Court in ‘MAGMA GENERAL INSURANCE’, claimant
20 No.1, claimant Nos.1 and 2, parents of the deceased are entitled for compensation of Rs.40,000/- each under the head ‘loss of filial consortium’ and claimant No.3 sister of the deceased is entitled to Rs.40,000/- under the head ‘loss of love and affection’. In addition, the claimants are entitled to Rs.15,000/- on account of ‘loss of estate’ and Rs.15,000/- on account of ‘funeral expenses’.
Thus, the claimants are entitled to the following compensation:
Compensation under different Heads
Amount in (Rs.) Loss of dependency 41,52,029 Funeral expenses 15,000 Loss of estate 15,000 Loss of Filial consortium 80,000 Loss of love and affection 40,000 Total 43,02,029
The claimants are entitled to a total compensation of Rs.43,02,029/-. The Insurance
21 Company is directed to deposit 75% of the total compensation amount along with interest @ 6% p.a. from the date of petition till the date of payment, 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. Accordingly, the appeals are disposed of. The amount in deposit before this Court is ordered to be transferred to the Tribunal forthwith.
Sd/- JUDGE
Sd/- JUDGE
Cm/-