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MFA 1075/2018 1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2021 BEFORE
THE HON’BLE MR. JUSTICE S.VISHWAJITH SHETTY
MISCELLANEOUS FIRST APPEAL NO.1075/2018 BETWEEN: THE NATIONAL INSURANCE CO. LTD. ADI CHUCHANAGIRI ROAD, KUVEMPU NAGARA, MYSURU. BY NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE, NO.144, SUBHARAM COMPLEX, M.G.ROAD, BANGALORE 560 001. BY IT'S MANAGER … APPELLANT
(BY SRI D.MAHESH, ADV.)
AND:
SMT. B. V. SUDHA,
AGED 23 YRS, W/O LATE VENKATESH B,
SANTHRUPTHI AGED 3 YEARS, D/O LATE VENKATESH B, 2ND RESPONDENT MINOR BY N/G MOTHER 1ST RESPONDENT.
SHANTHAMMA, W/O BOREGOWA, AGED ABOUT 62 YEARS,
BOREGOWDA, AGED 65 YEARS, S/O LATE RAMEGOWDA,
B. SANDYA, AGED 22 YEARS, D/O LATE RAMEGOWDA
ALL ARE R/O HOSA ANANDURU VILLAGE, BELAGOLA HOBLI,
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SRIRANGAPATNA TALUK, MANDYA DISTRICT - 571401.
NANJUNDEGOWDA. M S/O LATE BOREGOWDA, AGED ABOUT 51 YEARS, R/AT MANJUNATHA NILAYA, MANCHEGOWDANA KOPPALU, HINAKAL POST, MYSORE 570 017. … RESPONDENTS
(BY SRI M.Y.SREENIVASAN, ADV. FOR R1 TO R5; R1 IS MINOR, REP. BY R1; SRI G.B.SHARATH GOWDA, ADV. FOR R6)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT AGAINST THE JUDGMENT AND AWARD DATED 20.09.2017 PASSED IN MVC NO.483/2016 ON THE FILE OF THE C/C. PRINCIPAL SENIOR CIVIL JUDGE & MACT, SRIRANGAPATNA, AWARDING COMPENSATION OF RS.35,75,000/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL DEPOSIT IN TRIBUNAL.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
The insurer of the offending vehicle bearing registration No.KA-09/MV-4183 has preferred this appeal challenging the judgment and award dated 20th September 2017 passed by the Principal Senior Civil Judge, M.A.C.T., Srirangapatna (for brevity 'the Tribunal'), in M.V.C.No.483/2016, on the ground of contributory negligence as well as on the quantum of compensation.
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Brief facts of the case as revealed from the records are: On 31.03.2016 at about 10.30 a.m. near Samyuktha Bar, Mysore-KRS Road, when the deceased Venkatesh was proceeding in his motor bike bearing registration No.KA-11/EA-6720 towards Mysore, the offending car bearing registration No.KA- 09/MV-4183, which was driven in a rash and negligent manner by its driver, dashed against the motor bike in which the deceased was travelling and as a result, the deceased sustained multiple injuries on his body and the motor bike was also damaged. Immediately thereafterwards Venkatesh was shifted to Columbia Asia Hospital, Mysore and thereafterwards to NIMHANS at Bangalore wherein he was declared dead. The claimant No.1 and 2 are the wife and daughter of the deceased Venkatesh, while claimant Nos.3 and 4 are the parents and claimant No.5 is his sister. The claimants had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming
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compensation of Rs.99,20,000/- from the respondents towards the death of Venkatesh in the road traffic accident. The Tribunal vide the impugned judgment and award has awarded a compensation of Rs.35,75,000/- with interest @ 9% per annum from the date of filing of petition till the date of deposit of the compensation. Being aggrieved by the same, the insurer of the offending vehicle has preferred this appeal. 3. Learned counsel for the appellant - insurer submitted that the deceased Venkatesh was not wearing helmet and he was talking over his mobile phone while he was riding the motor bike and thereby he was guilty of contributory negligence. He has referred to Ex.P6/IMV report and submitted that the offending vehicle has also suffered serious damages in the accident, which would go to show that the deceased was also riding his bike in a rash and negligent manner. He submitted that there is a delay of one day in filing the complaint and therefore, a
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presumption has to be drawn against the correctness of the sketch prepared by the Investigating Officer. He submits that the sketch does not depict the correct picture of the accident and the accident has taken in the center of the road and therefore, the deceased is also required to be held guilty of contributory negligence. He further submitted that the Tribunal has erred in awarding a compensation of Rs.31,96,032/- towards loss of dependency. He further submitted that the Tribunal has failed to deduct Income Tax as well as Professional Tax from the salary of the deceased and that the Tribunal has further erred in taking into consideration additional 50% of income in the absence of any evidence regarding future prospects. He also submitted that there is no material to show that the medical expenses have not been reimbursed by the employer of the deceased and therefore, the Tribunal was not justified in awarding medical expenses. He also submitted that the Tribunal has awarded excess compensation under
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the conventional heads and that the rate of interest awarded at 9% per annum is on the higher side and he requests to reduce the same to 6%.
Per contra, learned counsel appearing for the claimants/respondent Nos.1 to 5 has argued in support of the impugned judgment and award and submitted that the income of the deceased was within the slab for which the Income Tax would be applicable and therefore, the Tribunal has rightly not deducted any Income Tax. He further submitted that having regard to the judgment of the Hon'ble Supreme Court in the case of Sarla Verma and Others -vs- Delhi Transport Corporation and Another1, the Tribunal has rightly taken into consideration additional 50% income as the deceased was having a permanent employment. He submits that the originals of the medical bills were produced before the Tribunal and therefore, it is very clear that the medical expenses were not reimbursed by the employer of the deceased.
1 (2009) 6 SCC 121
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He submits that even under the conventional heads, the claimants are entitled for a equal sum of Rs.2,70,000/- as awarded by the Tribunal and therefore, there is no necessity to interfere with the compensation awarded by the Tribunal. He also submitted that the Tribunal relying upon various judgments of this Court as well as the Hon'ble Supreme Court has awarded 9% interest per annum on the compensation amount and even the rate of interest cannot be said to be exorbitant and accordingly, prays to dismiss the appeal.
I have carefully considered the rival arguments addressed on both sides and also perused the material evidence available on record.
Though the learned counsel for the appellant has strenuously argued with regard to the contributory negligence on the part of the deceased, there is absolutely no material on record, which would establish that the deceased was guilty of contributing
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to the accident in question. Ex.P4, which is the sketch, would clearly go to show that the accident in question had taken place on the left hand side of the road and the deceased was riding his motor bike on the left hand side of the road. The offending vehicle had dashed against the bike on the wrong side and had caused the accident in question. Further, nothing has been elicited in the evidence of PW-1 and PW-2 with regard to the contributory negligence on the part of the deceased.
The Tribunal taking into consideration this aspect of the matter at para-34 of the judgment while considering the question of contributory negligence has observed as follows: "34. Regarding the contributory negligence even during the cross-examination of P.W.1 nothing has been elicited regarding the fault of the petitioner. On perusal of the spot mahazar and other relevant police records, the accident occurred by the side of the road. In the mahazar it is clearly noted that from the place of accident towards south from the edge of the road is 8 feet. The width of the road is 30 feet. On both sides of the road there is a foot path. By considering this aspect it is crystal clear that the petitoner was proceeded in his bike on the left side of the road due to rash and negligent driving of the offending vehicle the accident occurred. The sketch also reflects the same. By
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considering these aspects it is crystal clear that there is no contributory negligence on the part of the petitioner. In the written statement the 2nd respondent has narrated the contributory negligence of the petitioner but is has not produce any relevant documents. Mere filing the written statement itself is not sufficient to prove the contributory negligence of the petitioner. It must be supported by documentary evidence."
Though the learned counsel for the appellant submitted that the deceased was not wearing a helmet at the time of accident and therefore, he is required to be held guilty for contributory negligence, the said argument is required to be rejected for the simple reason that non-wearing of helmet cannot be said to have contributed to the accident in question. Further, by referring to the IMV report-Ex.P6, it cannot be inferred that the deceased was also guilty of contributory negligence in the absence of any material evidence to the said effect. Though PWs-1 and 2 were cross-examined by the insurer, nothing has been elicited from them with regard to contributory negligence on the part of deceased.
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Further, merely for the reason that there is a day's delay in filing the complaint, it cannot be presumed that the sketch prepared by the Investigating Officer is not correct. PW-2, who is the complainant and the eye-witness to the accident, has clearly stated that the sketch was prepared by the Investigating Officer as per his instructions and therefore, there is no merit in the contention of the learned counsel for the appellant that the sketch cannot be relied upon.
Under the circumstances, I am of the considered view that the appellant has failed to prove that the deceased was guilty of contributory negligence in causing the accident in question.
Insofar as the quantum of compensation awarded by the Tribunal is concerned, admittedly the deceased was gainfully employed and he was a permanent employee in a private Company. Exs.P15 and P16 are the salary certificates of the deceased and
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on the basis of the same, the income of the deceased has been taken at Rs.14,796/- per month. The Tribunal has taken into consideration that the annual income of the deceased is not a taxable income and therefore, has rightly not deducted any Income Tax. The Tribunal has also considered the question of payment of Professional Tax and has held that no Professional Tax was being paid by the deceased. Having regard to the judgment of the Hon'ble Apex Court in Sarla Verma's case (supra), the Tribunal has rightly taken into consideration 50% of the income towards future prospects and thereafterwards by applying the multiplier of '16' has awarded a compensation of Rs.31,96,032/- towards loss of dependency of the claimants, who are the wife, daughter, parents and unmarried sister of the deceased. In my considered view, the amount of Rs.31,96,032/- awarded by the Tribunal towards loss of dependency is just and proper and needs no interference.
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Insofar as the compensation awarded under the conventional heads is concerned, the first claimant being the wife is entitled for loss of consortium of Rs.40,000/- and also Rs.15,000/- each towards funeral expenses and loss of estate. Further, all the claimants are entitled for a sum of Rs.40,000/- each towards filial consortium, in the light of the judgment of the Hon'ble Supreme Court in the case of Magma General Insurance Co.Ltd. -vs- Nanu Ram Alias Chuhru Ram2, thereby they are together entitled for a sum of Rs.2,70,000/- under the conventional heads/traditional heads and therefore, there is no scope for interference with regard to the compensation awarded to the claimants even under this head.
Insofar as the medical expenses is concerned, as rightly contended by the learned counsel for the claimants, the claimants have produced the originals of the medical bills before the Tribunal and considering the same, the Tribunal has awarded the actual amount incurred towards medical
2 (2018) 18 SCC 130
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expenses of the deceased. In the absence of any contrary evidence to the effect that the medical expenses were reimbursed by the employer, no presumption, as such, can be drawn to the effect that employer might have reimbursed the said amount and therefore, no interference is called for, even with regard to awarding of medical expenses to the claimants. However, insofar as the rate of interest is concerned, I am of the considered view that having regard to the substantial reduction in the rate of interest at all levels and also considering that this Court presently has been consistently awarding the rate of interest @ 6% per annum, I am of the considered view that the rate of interest @ 9% per annum awarded by the Tribunal is required to be modified and be reduced to 6% per annum. Accordingly, I pass the following order:
The Miscellaneous First Appeal is partly allowed.
The judgment and award dated 20th September 2017 passed by the Principal Senior Civil Judge,
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M.A.C.T., Srirangapatna in M.V.C.No.483/2016 stands modified. The compensation of Rs.35,74,915/- awarded by the Tribunal, which is rounded off to Rs.35,75,000/- as compensation to the claimants, remains undisturbed. However, the rate of interest awarded by the Tribunal is modified and reduced to 6% per annum instead of 9% per annum from the date of petition till the date of deposit.
All other terms and conditions of the judgment and award passed by the Tribunal remain unaltered. The appellant shall deposit the compensation amount within a period of six weeks from the date of receipt of a certified copy of this order. The amount in deposit before this Court shall be transmitted to the Tribunal for disbursement of the same to the claimants.
Sd/- JUDGE
KNM/-