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2014 DIGILAW 903 (KAR)

B. C. Umapathy v. K. Selvakumar

2014-10-15

K.L.MANJUNATH, RAVI MALIMATH

body2014
Judgment : 1. Though the matter is listed for admission, by consent of the parties, the appeal is heard finally on merits. 2. The appellants, being not satisfied with the compensation awarded to them by the Additional Motor Accident Claims Tribunal, Davangere in MVC No 190 of 2006 in terms of the judgment and award dated 18-4-2009, have filed this appeal. 3. Admitted facts in this case are that: On 19-6-2005 claimants' son by name B U Rajashekhara was driving car bearing registration No KA-17 M-5888, owned by the third respondent and insured with the fourth respondent, on Hubli-Dharwad by-pass road at about 3.30 pm, truck bearing registration No KA-01 AB-7570, owned by the first respondent and insured with the second respondent, was coming from the opposite direction at a great speed and negligent manner and dashed against the car, which was being driven by the claimants' son Rajashekhara. On account of the impact, Rajashekhara and another son of claimants by name Praveen and other two persons by name B C Manohar and Harsha died. Only one person by name Prithviraj survived in the accident with injuries. 4. On the unfortunate day, the aforesaid persons were travelling in the car to attend the betrothal ceremony of Rajashekhara, who was driving the car. The deceased was aged about 28 years and was partner of a textile business of the family known as B S Channabasappa & Sons at Davangere. Therefore, seeking compensation, the claimants filed the claim petition before the tribunal. 5. The owner and the insurer of the lorry contested the matter, on the ground that the accident did not occur due to rash and negligent driving of the lorry by its driver and that Rajashekhara, who was driving the car in a rash and negligent manner, crossed the road median and took his car suddenly to the extreme right side and dashed against the on-coming lorry and therefore, the driver of the lorry is no way responsible for the cause of accident. 6. To prove their contentions, on behalf of the claimants, the first claimant B C Umapathi was examined as PW1 and he relied on the documentary evidence produced before the tribunal as ExP1 to P109, more particularly income tax returns of the deceased to show that he was getting an annual income of more than Rs 65,00,000/-as a partner of the firm. On behalf of the respondents, the driver of the lorry was examined as RW2 and also relied on ExR1 to R63. The tribunal, after considering the evidence let in by the parties, held that the accident occurred due to the contributory negligence on the part of the drivers of the car and the lorry and it apportioned the contributory negligence in the ratio at 75:25 between the driver of the car and the driver of the lorry respectively. The tribunal awarded a sum of 11,95,000/- as compensation, considering the income of the deceased at Rs 15,000/-per month and out of which 75% is deducted towards contributory negligence of the deceased and ordered to pay the balance 25% of the total compensation awarded by the owner and the insurer of the lorry. Challenging the same, the claimants have filed this appeal. 7. We have heard the learned counsel for the parties. 8. According to the learned counsel for the appellants-claimants, the accident did not occur due to contributory negligence on the part of the deceased. According to him, the lorry was coming from the opposite direction and on account of heavy load, the driver of the lorry lost control of the vehicle and it was proceeding in a zig-zag manner and accordingly the accident occurred. He further contends that even if it is held that the accident occurred due to any contributory negligence on the part of the drivers of both vehicles, fixing 75% thereof on the driver of the car is to be reduced. According to him, even if the deceased had crossed road median and taken his vehicle two feet away from the central portion of the road, since there was ample opportunity for the driver of the lorry to avoid the accident, as the width of the asphalted road was more than 34 feet, excluding the mud portion, as it is a national highway, and as no attempt was made by the driver of the lorry to avoid the accident, the tribunal is not justified in apportioning the negligence in the ratio of 75:25. 9. Learned counsel for the appellants-claimants further submits that the tribunal did not consider the income tax return of the deceased, though he was assessed to tax showing his income as Rs 65 to 70 lakh. 9. Learned counsel for the appellants-claimants further submits that the tribunal did not consider the income tax return of the deceased, though he was assessed to tax showing his income as Rs 65 to 70 lakh. According to him, the reasoning of the tribunal in not accepting the income tax returns is liable to be set aside. 10. He lastly contended that even if the tribunal had come to the conclusion that the partnership business of the deceased is being transferred to his mother, since the deceased was a B Com graduate and that he was actively participating in the textile business, the personal attention of the deceased was required to be taken into account. Therefore, he requests the court to allow the appeal. 11. Per contra, learned counsel for the respondent-insurance company Sri A N Krishna Swamy, contends that the finding of the tribunal on the question of contributory negligence does not call for interference. According to him, the insurance company has also filed a separate appeal, wherein the fixing of the negligence on the part of the driver of the lorry at 25% is challenged, since the accident occurred solely due to the negligence of the deceased and that the liability on the insurance company and the owner of the lorry has to be set aside. He further contends that the finding of the tribunal on the question of quantum of compensation also does not call for any interference. 12. Having heard the learned counsel for the parties, we have to consider the following points in this appeal: i) Whether the finding of the tribunal on the question of contributory negligence requires to be interfered with? ii) Whether the quantum of compensation awarded by the tribunal is on the lower side? 13. In so far as first point is concerned, on a perusal of the entire evidence of the driver of the lorry, who has been examined as RW2, and the sketch prepared by the police during the course of the investigation - ExR1, we have no hesitation to hold that the driver of the car had crossed the centre portion of the road. On a perusal of the sketch, it is seen that the width of the asphalted portion of the road at the place of accident measures 34 feet and thereafter on both sides of the road, there was katcha road of five feet each. On a perusal of the sketch, it is seen that the width of the asphalted portion of the road at the place of accident measures 34 feet and thereafter on both sides of the road, there was katcha road of five feet each. In other words, the entire road is measuring about 44 feet inclusive of the katcha road. On a perusal of ExR1, it is seen that from the place of accident, the deceased had crossed the centre portion of the road and moved his vehicle further on the right side for an extent of two feet. Still, there was possibility of the driver of the lorry to avoid the accident, provided he had taken a little care to take his vehicle to the left side, because, according to RW2 driver of the lorry, at the place of the impact, the lorry was coming in an up-gradient and it was moving in a moderate speed. If it is so, there was no difficulty for him to take his vehicle to further left, as sufficient space is available towards left. Such a caution has not been taken by the driver of the lorry. In the circumstance, we are of the view that the apportionment of the contributory negligence on drivers of both vehicles has to be modified, holding that the accident occurred due to the contributory negligence of drivers of both vehicles and the same is assessed at 50% each. Our view is also supported in view of filing of charge sheet against the driver of the lorry by the police. Accordingly, we answer the first point. 14. In regard to second point, the deceased was unmarried. On the date of accident, he was proceeding to Dharwad in order to participate his betrothal ceremony. He was a B Com graduate and was a partner of the firm known as Channabasappa & Sons, which is a family concern. It is, no doubt, true that the claimants might have produced the income tax returns based on the income of the firm. There is nothing on record to show that Rs 65,00,000/- was assessed to income tax in the name of deceased only on account of his personal earning. After his death, the share of the deceased in the partnership business has been transferred to his mother. There is nothing on record to show that Rs 65,00,000/- was assessed to income tax in the name of deceased only on account of his personal earning. After his death, the share of the deceased in the partnership business has been transferred to his mother. Therefore, we are of the view that since the deceased was getting income as partner of the firm, the same cannot be considered as his individual income and based on the same the loss of dependency cannot be assessed. 15. Having heard so, we are required to look into what would be the notional income of the deceased? Admittedly, he was not getting any salary from the firm. No positive evidence is let in to show that he was actually participating in the business of the firm and on his active participation and conducting the business, the firm was earning so much of income. Considering the date of accident and the qualification of the deceased and his family status, we are inclined to consider his income as Rs 25,000/- per month or Rs 3,00,000/- per annum. 16. Considering the age of the mother of the deceased, we have to apply the multiplier of 13. Therefore, the loss of dependency is assessed at Rs 19,50,000/-. In addition to this, we also incline to award a sum of Rs 1,50,000/-towards transportation of dead body, funeral expenses, loss of love and affection and loss to the estate. Thus, in all, the claimants are entitled for a total compensation of Rs 21,00,000/-, out of which, 50% is to be deducted towards contributory negligence of the deceased and having deducted so, the appellants-claimants are entitled for a sum of Rs 10,50,000/- with interest at the rate of 6% p.a. from the date of claim petition till date of payment. 17. In the result, appeal is allowed in part. The appellants-claimants are entitled for a sum of Rs 10,50,000/- with interest at the rate of 6% p.a. from the date of claim petition till date of payment. The liability is fixed on the owner and the insurer of the lorry, who are respondents 1 and 2 in this appeal.