Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1329 (KAR)

Pratibha v. Mudukappa

2019-06-18

B.A.PATIL, BELLUNKE A.S.

body2019
JUDGMENT : B.A. PATIL, J. 1. The present appeal has been preferred by the appellant/claimants challenging the judgment and award passed by IX Addl. District and Sessions Judge & Addl. M.A.C.T., Belagavi in M.V.C.No.1984/2015, dated 04.04.2017. 2. We have heard learned counsel for the appellant/claimants as well as learned counsel for the respondent/ insurer. 3. The brief facts of the case are that on 01.09.2015, at about 10.00 p.m. the husband of first claimant namely Prashant was proceeding on his motorcycle bearing registration No.MH-10/BU- 5445. At that time, a truck bearing registration No.KA-24/A-6489 came rashly and negligently endangering the human life and dashed to the motorcycle on which the said Prashant was proceeding. As a result of the same, Prashant died on the spot. It is the contention of the claimants that the deceased was aged about 29 years and he was earning Rs.18,000/- p.m. by working as Advisor and Supervisor in Honda Motorcycle and Scooters India Private Ltd., Miraj. He was also earning Rs.15,000/- p.m. by working as a Reporter in Pudhari newspaper and was also earning Rs.2,00,000/- p.a. by way of agriculture. On that basis, a claim petition was filed seeking compensation. 4. In order to prove the case of the claimants, claimant No.1 wife of the deceased got examined herself as PW-1 and got marked Exs.P-1 to P-13(a). Respondents have not examined any witnesses, however, got marked the insurance pol icy with consent. 5. After hearing learned counsel for the parties, the Tribunal passed the award granting compensation of Rs.13,49,000/- with interest at 6% p.a. fixing 25% of negligence on the deceased and 75% on the insurer. Challenging the same, the appellant/claimants are before this Court. 6. It is the submission of the learned counsel for the appellants that the Tribunal has not properly assessed the income of the deceased though he was working as an Advisor and Supervisor and was earning Rs.18,000/- p.m. and he was also a Reporter in Pudari newspaper and was earning Rs.15,000/- and he was also having agricultural income to the extent of Rs.2,00,000/- p.a. He further submitted that the RTC extracts and other documents are produced in this behalf. It is his further submission that though there was no evidence to show that the deceased has contributed to the alleged accident, Tribunal has wrongly come to the conclusion that the deceased contributed 25% negligence to the accident and has awarded compensation to be paid by respondent/insurer to the extent of 75% which is not sustainable in law. It is his further submission that the Tribunal has also not awarded the future prospects, as the deceased was aged about 29 years at the time of his death and he was having sufficient income. On all these grounds, he prayed to allow the appeal by enhancing the compensation which has been granted by the Tribunal. 7. Per contra, learned counsel appearing on behalf of insurer vehemently argued by justifying the judgment that in the absence of material, Tribunal has taken the notional income at the rate of Rs.8,000/- p.m. and after deducting 1/4th towards personal expenses and applying multiplier of 17, has awarded just compensation. He further submitted that the records clearly go to show that the deceased was not an income tax assessee to which the claimants fairly contend that the Tribunal has come to a wrong conclusion that too only because the licence is not there and the deceased contributed to the accident to the extent of 25%. On all these grounds, he prayed to dismiss the present appeal. 8. We have carefully gone through the submissions and perused the records. 9. The accident in question is not in dispute. So also the involvement of the offending vehicle insured with the respondent/insurer. As could be seen from the records, the Tribunal has come to the conclusion that there is negligence on the part of the driver of the truck by noticing the fact that no driving licence has been produced in respect of the deceased. Under such circumstances, it has come to the conclusion that the deceased has also contributed the negligence to some extent and held that 25% of the contribution is there on the part of the deceased. But the said finding is not justifiable in view of the decision of the Hon'ble Apex Court in the case of Saraswathi Palariya and others and others vs. New India Assurance Co. Ltd. and others, 2019 ACJ 42. At paragraph 5, it has been observed as under: "5. But the said finding is not justifiable in view of the decision of the Hon'ble Apex Court in the case of Saraswathi Palariya and others and others vs. New India Assurance Co. Ltd. and others, 2019 ACJ 42. At paragraph 5, it has been observed as under: "5. The finding of the High Court of contributory negligence on the ground that the deceased was driving the vehicle without a driving licence is equally unsustainable. Driving without a valid driving licence may expose the claimant(s) to other liabilities but no inference of contributory negligence can be arrived at on that basis." 10. It is well settled preposition of law that merely because the driver of the vehicle was driving the vehicle without there being any licence then under such circumstances, it cannot be inferred that he has contributed negligence to the alleged accident. In that light, 25% negligence attributed to the deceased is not acceptable and the same is set aside. 11. As could be seen from the records, the claimants have produced Ex.P-9, the sketch of scene of offence. Even other criminal records go to show that the said truck came on the wrong side of the road and hit to the motorcycle and the rider of the motorcycle died on the spot. In that light also, 100% contribution is there on the part of the driver of the truck. The finding given by the Tribunal in this behalf is not acceptable and the same is set aside. 12. In order to establish the income of the deceased, claimants have produced Ex.P-10(a) Village Model No.8 Khata extract pertaining to land to the extent of 1 acre 32 guntas and they have also produced the salary certificate issued by Honda company dated 28.05.2016. It is the contention of the claimants that the deceased was also working as a Reporter in Pudhari newspaper and earning Rs.15,000/- p.m. He was also getting agricultural income of Rs.2,00,000/- p.a. As could be seen from Exs.P-10 and P-10(a), the deceased was joint holder in 1 acre 32 guntas of agricultural land. No documents have been produced to show the income from the agricultural land. Though the salary certificate issued by Honda Company is produced, signature of the employer or the Manager of the said company has not been examined. No documents have been produced to show the income from the agricultural land. Though the salary certificate issued by Honda Company is produced, signature of the employer or the Manager of the said company has not been examined. Even what was his actual salary which he used to draw, when he has been appointed and how long he has worked in the company has also not been forthcoming from the records. So also that he was earning Rs.15,000/- p.m. as a Reporter in Pudhari newspaper. If really he was getting so much income, the deceased ought to have paid the income tax. Admittedly, he was not an income tax assessee. In the said facts and circumstances, the Tribunal by taking notional income at the rate of Rs.8,000/- p.m. and after deducting 1/4th and applying multiplier of 17 has awarded Rs.12,24,000/- towards loss of dependency. In the light of the discussion held by us, we do not find different opinion with regard to income so which has been taken by the Tribunal. 13. It is the contention of the learned counsel for the claimants that the Tribunal has not taken the future prospects as the deceased was aged about 29 years. But the Hon'ble Apex Court in the case of National Insurance Co. Ltd., Vs. Pranay Sethi and others, (2017) ACJ 2700 wherein it has been observed that in order to take future prospects, the deceased must have a settled or fixed income. In the instant case, neither ledger nor the employer has been examined and even the income certificate which has been produced is only one certificate mentioned the salary. Under such facts and circumstances, we are not incl ined to take the future prospects, as the deceased was not having any settled income and it is also not substantiated by any material. Under the said facts and circumstances, we feel that the income which has been taken by the Tribunal appears to be just and proper. 14. Taking into consideration, the above said facts and circumstances that the compensation awarded by the Tribunal towards loss of dependency appears to be just and proper and it does not require any interference by this Court. 15. Insofar as the compensation awarded under the conventional head is concerned, it requires to be modified as under: Sl. No. Heads Compensation in Rs. 1. Towards loss of dependency 12,24,000/- 2. 15. Insofar as the compensation awarded under the conventional head is concerned, it requires to be modified as under: Sl. No. Heads Compensation in Rs. 1. Towards loss of dependency 12,24,000/- 2. Towards love and affection 1,20,000/- 3. Towards loss of consortium 40,000/- 4. Towards transportation of dead body. 15,000/- 5. Towards loss of estate. 15,000/- TOTAL 14,14,000/- 16. Keeping in view the above said facts and circumstances, the claimants are entitled to a total compensation of Rs.14,14,000/- as against Rs.13,49,000/- awarded by the Tribunal and the respondent insurer is liable to pay the entire compensation, since the entire liability is fixed on the insurer as this court has come to the conclusion that the deceased has not contributed to the extent of 25%. 17. In the light of the discussion held by us, the appeal is allowed in part. The judgment and award passed by the IX Additional District and Sessions Judge and Additional MACT, Belagavi in MVC.No.1984/2015 dated 04.04.2017 is modified as indicated above. 25% liability fixed on the deceased is set aside and accordingly entire liability is fixed on the insurance company. 18. The respondent insurer is directed to deposit the enhanced compensation along with interest as ordered by the Tribunal within four weeks from the date of receipt of a certified copy of the order. 19. Apportionment and disbursement of compensation is as per the order of the Tribunal. 20. The amount awarded to minor children may be kept in fixed deposit in any nationalized bank, till they attain the age of majority and claimant No.4 is entitled to withdrawn the periodical interest. 21. The registry is directed to draw award accordingly.