Research › Search › Judgment

Karnataka High Court · body

2011 DIGILAW 1147 (KAR)

S. Mary Kutty v. Nazeer Ahmed

2011-11-29

N.K.PATIL, V.SURI APPA RAO

body2011
Judgment :- 1. This appeal by the claimants is directed against the common judgment and award dated 20.6.2006 passed in MVC No.564/02 on the file of the VII Addl. Judge, Member MACT-3, Court of Small Causes, Bangalore (for short, ‘Tribunal’). The Tribunal by its impugned judgment and award, awarded compensation of Rs.6,65,096/- with interest at 6% p.a. from the date of petition till the date of realization, fixing 50% contributory negligence on the part of deceased Kunjachan, on account of his death in a read traffic accident. The claimants have presented this appeal on the ground that the quantum of compensation awarded by the Tribunal as inadequate and fixing contributory negligence on the part of the deceased is higher side and therefore the judgment and award passed by the Tribunal is liable to be modified. 2. Appellant No.1 is the wife and appellant Nos.2, 3 and 4 are the daughters of deceased Kunjachan. They have filed a claim petition under Section 156 of M.V.Act claiming compensation on account of death of deceased Kunjachan in a road traffic accident that occurred on 11.8.2001 at 3.20 p.m., wherein the deceased was coming on his motor cycle bearing No.KA 02 ED 1733 and at that point of time, the driver of the bus bearing registration No.KA 16 2323 came in a rash and negligent manner from West to East and dashed against the motor cycle of deceased Kunjachan. Due to the impact, deceased fell down and lost his conscious due to the injuries sustained and immediately he was shifted to Victoria hospital and inspite of best medication, the claimants could not save the deceased and be succumbed to the injuries. 3. It is the case of the appellants-claimants that the deceased was the sole bred earner of the family and he was a permanent employee, working as an Engineer in KPTCL and was drawing gross salary of Rs.12,598/- p.m. and was aged about 49 years at the time of accident. They contended that due to the untimely death of the deceased, they have lost their social and economic security and their life ahs been jeopardised. Therefore, they are constrained to file the claim petition against the respondents-owner, driver and insurer of the offending vehicle. The said matter had come up for consideration before the Tribunal. They contended that due to the untimely death of the deceased, they have lost their social and economic security and their life ahs been jeopardised. Therefore, they are constrained to file the claim petition against the respondents-owner, driver and insurer of the offending vehicle. The said matter had come up for consideration before the Tribunal. The Tribunal, after assessing the oral and documentary evidence and other material, taking into consideration the avocation of the deceased, has allowed the claim petition in part, fixing 50% contributory negligence on the part of the rider of the motor cycle (deceased) and 50% on the part of driver of the bus. Being dissatisfied with the common judgment and award passed by the Tribunal, the appellants have presented this appeal seeking enhancement & to set-aside the contributory negligence. 4. The submission of the learned counsel appearing for the appellants a that the Tribunal has committed grave error and material irregularity in fixing 50% contributory negligence on the part of rider of the motor cycle i.e., on the deceased, on the ground that the vehicle driven by the deceased is a small motor cycle, whereas, the offending vehicle involved in the accident is a bus, which is a heavy vehicle. The tribunal ought to have taken this aspect of the matter at the time of fixing 50% contributory negligence on the part of the deceased & it is on the higher side and is liable to be modified. He also further submits that in view of the judgment of the Apex Court in the case of SARLA VERMA & OTHERS Vs. DELHI TRANSPORT CORPORATION & ANOTHER reported in 2009 ACJ 1298 , as the deceased was aged 49 years, 30% towards prospective income is to be added to the gross salary of the deceased and by applying appropriate multiplier of “13” the compensation awarded under the head “loss of dependency” ought to be re-determined and the judgment and award passed by the Tribunal needs to be modified. 5. As against his, learned counsel appearing for the first respondent insurer interalia substantiated the judgment and award passed by the Tribunal by contending that the Tribunal after appreciating the oral and documentary evidence and other material on the file, specifically the mahazer and the sketch, is justified in fixing contributory negligence at 50% each on the rider of the motor cycle and the driver of the bus. The learned counsel does not dispute the fact that the bus involved in the accident is a heavy vehicle and the motor cycle is a light vehicle and this aspect ought to have been taken note of by the Tribunal. He further concedes with the judgment of the Apex Court in Sarla Verma’s case that towards future prospects of the deceased at 30% is to be added to his gross income for calculating loss of dependency. 6. After careful consideration of submissions of both the parties and after perusal of the impugned judgment and award passed by the Tribunal and after critical valuation of the oral and documentary evidence, the points that arise for consideration in the instant appeal are as follows:- 1. Whether the contributory negligence fixed at 50% each on the rider of the motor cycle and the driver of the bus is on the higher side? 2. Whether the quantum of compensation is just and reasonable? Re-point No.1 The undisputed facts of the case are that occurrence of accident & the resultant death of the deceased. Appellant No.1 has examined herself as PW-1, PW-2 is examined as an eye-witness,. He has supported in the Chief examination about the rashness on the part of the bus driver. As per spot sketch Ex-P5, the bus was moving towards left side and the motor cycle of the deceased was coming from right side and instead of allowing the bus to take turn to its left side, the rider of the motor cycle tried to take immediate curve to his right side without waiting for passing of the opposite coming vehicle, which was about to take turn to its left side and without following the traffic rules, suddenly, he has taken turn without giving way to the bus, which was completely on the left sides. Therefore, there is negligence on the part of the deceased and fixing 50% contributory negligence each is little on the higher side for the reason that the driver of the bus is driving a heavy vehicle, whereas the motor cycle driven by the deceased is a light vehicle. If the driver of the bus was cautious and applied the brake, he might have avoided the accident. It is crystal clear from the sketch that if the driver of the motor cycle had put a brake to the vehicle, he might also have avoided the accident. If the driver of the bus was cautious and applied the brake, he might have avoided the accident. It is crystal clear from the sketch that if the driver of the motor cycle had put a brake to the vehicle, he might also have avoided the accident. Due to the negligence on the part of the rider of the motor cycle and the driver of the bus, the accident has taken place and the deceased succumbed to the injuries. Having regard to this aspect of the matter, we can safely fix the contributory negligence of 40% on the part of the deceased who was rider of the motor cycle and 60% contributory negligence on the part of driver of the bus. The same would be just and reasonable and it will meet the ends of justice and safeguard the interest of the applicants and the insurer. Accordingly, we modify the impugned common judgment and award passed by the Tribunal fixing contributory negligence in the ratio of 40-60 on the part of the deceased and the driver of the bus respectively. Re-point No.2 It is not in dispute that the deceased was aged about 49 years at the time of accident and was an Engineer working in Karnataka Power Transport Corporation Limited, drawing salary of Rs.12,598/- per month, Rs.100/- is to be deducted towards professional tax of the deceased and remaining amount would be Rs.12,498/-. In the light of the judgment of the Apex Court, as rightly pointed out by the learned counsel for the appellants, as per Sarla Verma’s case, 30% towards future prospects should be added to the gross salary of the deceased, which would be Rs.3,749/-, totally amounting to Rs.16,247/-. Out of the same, 1/3rd has to be deducted towards personal expenses of the deceased, which comes to Rs.5,415/-. Remaining net income would be Rs.10,832/-. Since the deceased was aged about 49 years, the proper multiplier applicable is “13”. Accordingly, we re-determine the compensation under the head “loss of dependency” at Rs.16,89,792/-. 7. Having regard to the facts and circumstances of the case, we deem it fit to award Rs.45,000/- under the conventional heads viz., “loss of consortium”, “loss of love and affection”, “loss of estate” and “Transportation & Funeral expenses”. Accordingly, we re-determine the compensation under the head “loss of dependency” at Rs.16,89,792/-. 7. Having regard to the facts and circumstances of the case, we deem it fit to award Rs.45,000/- under the conventional heads viz., “loss of consortium”, “loss of love and affection”, “loss of estate” and “Transportation & Funeral expenses”. In All, the appellants are entitled to total compensation of Rs.17,34,792/-, out of which, 40% is to be deducted towards contributory negligence on the part of rider of the motor cycle, which comes to Rs.6,93,916/-. Remaining amount comes to Rs.10,40,876/-. 8. In the light of facts and circumstances of the case and legal aspects as referred above, the instant appeal field by the appellants is allowed-in-part. The impugned common judgment and award passed in MVC No.564/2002 dated 20.6.2006 by the MACT, Court of Small Causes, Bangalore is hereby modified, awarding a sum of Rs.10,40,876/- as against Rs.6.65,096/- awarded by the Tribunal. There will be enhancement of Rs.3,75,780/- with interest at 6%p.a. from the date of petition till the date of realization. Second respondent Insurer is directed to deposit the enhanced compensation within three weeks from the date of receipt of copy of the judgment and award. Out of the enhanced compensation of Rs.3,75,730/- a sum of Rs.2,50,000/- with proportionate interest shall be invested in any Nationalised or Schedule Bank in the name of the first appellant for a period of 10 years renewable by five years. Appellant No.1 is also entitled to interest periodically. Remaining amount of Rs.1,25,780/- shall be released in equal proportion in favour of appellant Nos.1 to 4 forthwith. Office to draw award, accordingly.