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M.F.A No.304/2016 C/W M.F.A No.770/2016
1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2022 PRESENT THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR
AND THE HON’BLE MR. JUSTICE RAJENDRA BADAMIKAR
M.F.A No.304 OF 2016 C/W M.F.A No.770 OF 2016 (MV)
IN MFA No.304 OF 2016
BETWEEN :
SMT. SHAILAJA SHETTY W/O LATE YOGESH SUNDAR SHETTY D/O SHANKARA ADYANTHAYA AGED ABOUT 32 YEARS R/AT "NITHYANANDA NILAYA" UNDAARU VILLAGE, INNANJE POST UDUPI TALUK AND DIST.-576 101 ... APPELLANT
(BY SHRI. A. NATARAJ BALLAL, ADVOCATE)
AND :
GAJANAN D. GADEKAR AGED ABOUT 48 YEARS R/AT 331, VETALDEVI VRKHAND PERNEM, GOA-403 406
THE DIVISIONAL MANAGER THE ORIENTAL INS. CO. LTD., GOUVEJA CHAMBERS, 3RD FLOOR HELIDORO SALGADO ROAD PANAJI, GOA-403 406
M.F.A No.304/2016 C/W M.F.A No.770/2016
2 3. KRISHNA AGED ABOUT 36 YEARS R/AT GEDDAKLAMANI VILLAGE AND POST MUDDEBIHAL TALUK BIJAPURA DIST-586 101 ... RESPONDENTS
(BY SHRI. A.N. KRISHNA SWAMY, ADVOCATE FOR R2 - THROUGH VIDEO CONFERENCE; R1-SERVED; NOTICE TO R3 DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED.14.09.2015 PASSED IN MVC NO.258/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA No.770 OF 2016
BETWEEN :
DIVISIONAL MANAGER ORIENTAL INSURANCE CO. LTD., GOUVEJA CHAMBERS, 3RD FLOOR HELIDORO SALGADO ROAD PANAJI, GOA NOW REPRESENTED BY REGIONAL MANAGER ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE SUMANGALA COMPLEX, II FLOOR LAMINGTON ROAD HUBLI-580 020 ... APPELLANT
(BY SHRI. A.N. KRISHNA SWAMY, ADVOCATE) [THROUGH VIDEO CONFERENCE]
AND :
SMT SHAILAJA YOGESH SHETTY W/O LATE YOGESH SUNDAR SHETTY D/O SHANKARA ADYANTHAYA NOW AGED ABOUT 32 YEARS
M.F.A No.304/2016 C/W M.F.A No.770/2016
3 R/A NITHYANANDA NILAYA UNDAARU VILLAGE, INNANJE POST UDUPI TALUK & DISTRICT
GAJANAN D. GADEKAR MAJOR R/AT 331, VETADEVI VRKHAND PERNEM, GOA
KRISHNA NOW AGED ABOUT 36 YEARS R/A GEDDALAMANI VILLAGE AND POST MUDDEBIHAL TALUK BIJAPURA DISTRICT ... RESPONDENTS
(BY SHRI. A. NATARAJ BALLAL, ADVOCATE FOR R1; R3-SERVED; VIDE ORDER DTD.23.02.2018, NOTICE TO R2 IS DISPENSED WITH) . . . .
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED.14.09.2015 PASSED IN MVC NO.258/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, UDUPI AND ADDITIONAL MACT, UDUPI, AWARDING COMPENSATION OF RS.13,93,000/- WITH INTEREST AT 8% P.A FROM THE DATE OF PETITION TILL THE DEPOSIT.
THESE MFAs, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 09.02.2022 COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, P.S.DINESH KUMAR J, PRONOUNCED THE FOLLOWING:-
M.F.A No.304/2016 C/W M.F.A No.770/2016
4 JUDGMENT These two appeals have been preferred by the claimants and insurer. Hence, they are heard together and disposed of by this common order.
M.F.A. No.304/2016 is by the claimant and M.F.A. No.770/2016 is by the Insurer of the offending vehicle.
For the sake of convenience, parties shall be referred as per their status before the Tribunal.
We have heard Shri. A. Nataraj Ballal, learned Advocate for claimants and Shri. Krishna Swamy, learned Advocate for insurer.
Brief facts of the case are, claimant's husband was travelling in his car from Pernem town towards Patradevi side in Goa State. It dashed against a tipper lorry coming from opposite side. Petitioner's husband Yogesh Sundar Shetty sustained grievous injuries and died on the spot.
M.F.A No.304/2016 C/W M.F.A No.770/2016
On consideration of claim petition, Tribunal has awarded Rs.39,80,000/-. It has held that the driver of the car was negligent to the extent of 65% and awarded Rs.13,93,000/- with 8% interest per annum to the claimant.
Feeling aggrieved, claimant has filed her appeal seeking enhancement and insurer has come up in appeal challenging the findings recorded by the Tribunal both on the aspects of negligence and quantum.
Shri. Nataraj Ballal, learned Advocate contended that: • the complaint has been given by a local police constable. The offending lorry is a local lorry belonging to Goa State. The complaint has been drafted incorrectly to help the driver of the offending lorry; • after the impact, the lorry has pushed the car back by 5.5 meters. This shows that lorry was being driven in a rash and negligent manner. Therefore, the entire liability ought to have been saddled upon the owner of the lorry;
M.F.A No.304/2016 C/W M.F.A No.770/2016
6 • Tribunal has erred in considering the income of petitioner's husband as Rs.30,000/- per month. Though, the Tribunal has taken note of the income tax returns, it has assessed the monthly income arbitrarily.
Shri. Krishnaswamy for the insurer submitted that:
• the accident has taken place on the National Highway at about 3.35 p.m. in broad daylight; • the sketch produced by Shri. Ballal, learned Advocate for the claimant clearly shows that the car was moving completely on the wrong side and the offending lorry was correctly moving on the left side in its lane. Therefore, there is no negligence on the part of the driver of the offending vehicle. Hence, claimant shall not be entitled for any compensation.
We have carefully considered rival contentions and perused the records.
M.F.A No.304/2016 C/W M.F.A No.770/2016
7 11. Undisputed facts of the case are, the accident has taken place in broad daylight at about 3.35 p.m. in the afternoon. Claimant's husband was driving in his Ford Fiesta Car with his family members. Claimant's case is, the offending lorry was coming in a rash and negligent manner from the opposite side and it dashed against the car.
Claimants next contention is, the complaint has been drafted to help the owner of the offending lorry. Therefore, it is necessary to analyze the evidence on record.
On behalf of claimant, P.W.1 and P.W.2 have been examined. P.W.1 is the wife of the deceased Yogesh Shetty. She is not an eye witness. P.W.2 is one Kodavar Shankar Chandu Poojary. He has stated in his evidence that he was travelling on National High Way 17 and is an eye witness to the incident. After returning to his native place, he learnt that Police had registered a false case against claimant's husband. Hence, he had filed a private complaint against the driver of the truck in the Court of JMFC at Pernem, Goa seeking justice.
M.F.A No.304/2016 C/W M.F.A No.770/2016
8 14. In substance, the private complaint by P.W.2 is a counter blast to the FIR filed by R.W.1.
Shri. Ballal, learned Advocate for the claimant submitted that he does not depend upon the evidence of P.W.2.
R.W.1 is the complainant. He has stated in his evidence that he was working in the office of Anti-narcotic Cell, Panaji, Goa. When he was proceeding from Pernem Police Station, to his residence, near Jaitir Devasthan at Kusulam, a white coloured Ford Fiesta over took his two wheeler in high speed. When he reached near Mahadev Temple, he noticed that the Ford car overtook a Maruthi Zen car and dashed against the Truck coming from the opposite side. In the cross-examination it has been suggested to him that he was deposing falsely against the driver of the car as it belonged to Maharashtra State and he has denied the same.
M.F.A No.304/2016 C/W M.F.A No.770/2016
9 17. Shri. Ballal has produced a copy of the FIR and the sketch showing the location of vehicles on the road. Both have been issued by Pernem Police Station. The Truck was moving from Patradevi side to Pernem. The sketch clearly shows that lorry was on the left side of the road and the car has dashed against the lorry head-on. The car ought to have been on its left side, but it has dashed against the lorry coming from opposite in its lane.
Admittedly, complaint has been lodged by a Police Officer. Though a private complaint has been filed by P.W.2, Shri. Ballal has given up the testimony of P.W.2. Therefore, what remains for consideration is the testimony of R.W.1, to appreciate the manner in which the accident has taken place.
R.W.2 has been appointed by the Insurance Company as an investigator. He has stated in his examination-in-chief that he had submitted his investigation
M.F.A No.304/2016 C/W M.F.A No.770/2016
10 report and copies of police documents. Therefore, his evidence is not of much importance.
According to R.W.1, the Ford car dashed against the Truck while overtaking a Maruti Zen Car. This evidence, corroborates the sketch produced by Shri. Ballal.
Shri. Krishnaswamy's argument is, there is no negligence on the part of the Truck driver. Therefore, the owner of the Truck and the insurer are not liable to satisfy the award.
Shri. Ballal has argued in the alternative that the sketch shows that after the impact, the Truck has pushed the car back by 5.5 meters. According to him, the Truck was also being driven in a very rash and negligent manner. Therefore, negligence on the part of the truck driver is largely responsible for the accident.
As recorded hereinabove, the accident has taken place in broad daylight. The driver of the Truck will be
M.F.A No.304/2016 C/W M.F.A No.770/2016
11 sitting at an higher elevation when compared to driver of a Ford car. Therefore, aerial view would be much clear for him. If he were to be a cautious driver, he could have noticed that the driver of Ford car was overtaking the Zen car possibly and avoided the accident. Shri. Ballal has also argued that the strong impact of the accident has pushed the car by 5.5 meters. Therefore, driver of the truck was in high speed and more negligent. But the incontrovertible fact is the car had moved fully in the lane meant for the truck which was coming from opposite side. Even if it is construed that the driver of the lorry was driving at a higher speed, yet the negligence on the part of car driver is comparatively much higher. The Tribunal has considered and fixed the negligence on the part of the car driver at 65%. Keeping in view the overall circumstances of the case, we do not wish to disturb that finding.
The next aspect is with regard to the quantum of compensation. Tribunal has awarded Rs.38,40,000/- towards loss of dependency, by considering the monthly
M.F.A No.304/2016 C/W M.F.A No.770/2016
12 income of the deceased as Rs.30,000/- per month. Claimant has produced the Income tax returns for the assessment years 2009-10, 2010-11, 2011-12 and 2012-13. The accident has taken place on 24.05.2010. Then the last Income tax return could have been for the year ending 31.03.2011 (for the financial year 01.04.2010 to 31.03.2011).
The total income shown for the assessment year 2009-10 is Rs.12,34,530/-. The total income for the assessment year 2010-11 is, Rs.12,58,920/-. The income for the assessment year 2011-12 is, Rs.11,10,420/-. The average of these three years' income works out to Rs.12,01,290/-. A sum of Rs.2,400/- per annum is deductable towards professional tax. Thus, the net income works out to Rs.11,98,890/- per annum.
Shri. Krishnaswamy, has submitted that deceased Yogesh Shetty was a business man and his wife has been continuing the business. Therefore, there will be
M.F.A No.304/2016 C/W M.F.A No.770/2016
13 no loss in the income. This argument is untenable because, the Income tax returns have been filed in the name of Yogesh Sundar Shetty in his individual capacity. There is no evidence on record to support the argument of Shri. Krishnaswamy. Therefore, we consider it appropriate to take the annual income of deceased Yogesh Shetty as Rs.11,98,890/-.
In view of the findings recorded hereinabove, the compensation needs to be recomputed.
Deceased was aged 33 years at the time of death and he was self-employed. He was married and his family consisted of his wife and mother. Therefore, 1/3rd of his income has to be deducted towards his personal expenses. A sum equivalent to 40% of his income will have to be added towards future prospects (See: National Insurance Company Ltd., Vs. Pranay Sethi and others1). The applicable multiplier is 16.
1 (2017)16 SCC 680 (para 59.4)
M.F.A No.304/2016 C/W M.F.A No.770/2016
14 29. Thus, compensation towards loss of dependency is worked as follows: The monthly income works out to Rs.1,39,871/- (Rs.99,908+39,963) [by adding 40% towards future prospects (Rs.99,908*40%=39,963]. After deducting 1/3, it works out to Rs.93,247/- per month (Rs.1,39,871*2/3). The annual
income works out to Rs.11,18,964/- (Rs.93247*12). By applying 16 as multiplier, the loss of dependency works out to Rs.1,79,03,424/- (Rs.11,18,964X16).
The total compensation is recomputed as follows: Sl.No Description Amount a. Loss of dependency
Rs.1,79,03,424 b. ADD: Consortium Rs.40,000 c. ADD: Conventional heads; funeral expenses, etc., Rs.30,000 d. Total (a+b+c) Rs.1,79,73,424 e. LESS: Compensation awarded by the Tribunal (d-e) Rs.39,80,000 Enhanced Compensation Rs.1,39,93,424
The total compensation works out to Rs.1,79,93,424/-.
M.F.A No.304/2016 C/W M.F.A No.770/2016
We have recorded that the contributory negligence assessed by the Tribunal correct. Hence, claimants shall be entitled for 35% of the total compensation and it works out to Rs.62,90,698/- (1,79,73,424*35%)
Shri. Krishnaswamy has also rightly pointed out that this Court has been consistently awarding interest at 6% in all motor vehicle compensation cases. Accordingly, we hold that the compensation amount shall be paid with interest at 6% p.a., throughout.
In the result, the following: ORDER
(a) M.F.A. 304/2016 by the claimant is allowed in part holding that the claimant shall be entitled for a total compensation of Rs.62,90,698/-;
(b) M.F.A. No.770/2016 filed by the Insurer is dismissed; (c) Insurer shall deposit the sum of Rs.62,90,698/- with interest at 6% p.a. through out, excluding the amount if any, paid/deposited already, within six weeks;
M.F.A No.304/2016 C/W M.F.A No.770/2016
16 (d) Registry shall transfer the amount in deposit to the Tribunal forthwith; (e) The Tribunal shall disburse the amount as per its directions in the impugned judgment with regard to apportionment. No costs.
Sd/- JUDGE
Sd/- JUDGE SPS