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2017 DIGILAW 22 (KAR)

Srivalli Bhogaraju v. Mamatha Manjunath

2017-01-03

ANAND BYRAREDDY, B.A.PATIL

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JUDGMENT : In the appeal in MFA 10086/2013, the appellants were the claimants before the Motor Accidents Claims Tribunal, and in the appeal in MFA 10401/2013, the appellant is the respondent insurer in the same claim proceedings. The claimants are the parents of Adithya B., who is said to have been the victim of a motor accident. 2. The facts are as follows. On 17-11-2010, at about 4-00 AM, Aditya and his friends were said to be travelling in a car on Yamalur-Bellandur road, and that when they reached a spot near Bellandur lake, the driver of the car is said to have lost control of the car and the car is said to have turned turtle and landed in the Bellandur lake. As a result of the accident, Aditya is said to have died on the spot with grievous injuries. At the time of his death, he was said to be working as a partner in a software firm and earning about Rs.1.25 lakh per month and also earning a sum of Rs.75000/- per month as a consultant. It was on the basis that the claimants were dependant on their son's earnings that the claim petition was lodged. The insurer of the vehicle contested the claim. While admitting the issuance of the insurance policy, it was contended that the driver of the car and the deceased were drunk at the time of the accident. That the driver of the car did not possess a valid driving licence at the time of the accident. It was also contended that the age of the deceased and his earnings were not established. 3. It is contended on behalf of the claimant -appellants that the Tribunal has committed an error in assuming the income of the deceased as being only Rs.25000/-, when material evidence was available to indicate that his average monthly income was in excess of Rs.1.26 lakh. It was also contended that in computing the loss of dependency the Tribunal ought to have added 50% of the income towards future prospects and not 30%, having regard to the settled legal position. It was also contended that in computing the loss of dependency the Tribunal ought to have added 50% of the income towards future prospects and not 30%, having regard to the settled legal position. Further, the multiplier applied by the Tribunal in computing the compensation is with reference to the age of the younger of the parents whereas it ought to have been with reference to the age of the deceased, who was 25 at the time of his death and the appropriate multiplier was 18. The learned counsel also seeks enhanced compensation under other conventional heads as well. 4. On the other hand, the learned counsel for the insurer of the car involved in the accident, urging the grounds raised in the appeal which is filed by the Insurer as well, in respect of the very award would contend, that the Tribunal has completely skirted the issue of the cause of death of the victim. It is emphasized that there is no finding by the Tribunal on the question of negligence though a specific issue was raised in that regard. It is urged that the Tribunal has chosen to find that the accident stood proved, while choosing to ignore the negligence alleged which had led to the mishap. It is pointed out that none of the occupants of the car were examined though they would have been the best eye witnesses to the accident. Further, it was significant that none of them were found to have been injured and the unfortunate death of the victim, was obviously his own making as he was said to be travelling on the roof of the car in a drunken state, which is a circumstance stated by his friends, who were travelling in the car and as recorded by the investigating officer, at the earliest point of time. It is contended that the Tribunal having held that the income of the deceased was not proved, could not have adopted an arbitrary sum of Rs.25000/- as the monthly income of the deceased without any acceptable evidence. This has been compounded by adding a further 30% towards alleged future prospects. Hence, the learned Counsel for the insurer seeks that the appeal of the insurer be allowed and the judgment and award of the Tribunal be set aside. 5. This has been compounded by adding a further 30% towards alleged future prospects. Hence, the learned Counsel for the insurer seeks that the appeal of the insurer be allowed and the judgment and award of the Tribunal be set aside. 5. On a consideration of the rival contentions and on a perusal of the record, it is seen that the Tribunal had framed for its consideration the following issues :- “1. Do the petitioners prove that Adithya Bhogaraju died in an accident arising out of rashness/negligence of the driver of the Car bearing registration No.KA-01-MF-9038 as alleged in the petition? 2. Whether the petitioners prove that they are LRs of the deceased Adithya Bhogaraju? 3. Whether the petitioners are entitled for compensation? If so, how much and from whom?” Apparently, the Tribunal had not framed Issues which directly arose on the specific pleadings of the insurer. There was also prima facie material available to indicate that the deceased as well as the driver of the car who were said to have been drunk, were indeed responsible for the mishap. There was no issue on this aspect. The issue otherwise framed -as to whether the deceased had died in the accident on account of a rash and negligent act of the driver, is hardly with reference to the specific defence set up by the insurer. There is no discussion as to the manner in which the accident may have occurred. The observations and findings are vague and ambiguous. On the issue framed as to whether the claimants were entitled to compensation, the Tribunal has not entered upon the question whether they had pleaded and proved their dependency. On the other hand, it is seen from the evidence of on behalf of the claimants, there is not even a mention of the avocation of either of the parents, there is no indication that they were without any source of livelihood and were dependant on the income of the deceased. The quantum of compensation and the basis thereof would be relevant only if the claimants could surmount the defence set up as to the accident having been on account of voluntary acts of the deceased and the vehicle having been driven by a drunken driver without a valid licence, who had permitted the deceased to travel on the roof of the car. Accordingly, the appeal in MFA 10086/2013 by the claimants seeking enhancement of compensation is dismissed and the appeal by the Insurer, in MFA 10401/2013 is allowed and the judgment and award of the Tribunal, under challenge is set aside and the matter is remanded for a fresh enquiry after appropriate issues are framed by the Tribunal with reference to the pleadings, with reference to the aspects noticed above. The amount in deposit be refunded to the Insurer.