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2020 DIGILAW 1203 (KAR)

Abbass M I v. Imthiyaz

2020-06-24

ALOK ARADHE, M.NAGAPRASANNA

body2020
JUDGMENT M Nagaprasanna, J. - This appeal, though listed for admission, is taken up for final disposal with the consent of the learned counsel appearing for the parties. 2. This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimants being aggrieved by the judgment dated 21.12.2015 passed by the Principal Senior Civil Judge and Additional Motor Accident Claims Tribunal, Udupi, in M.V.C. No.365/2014. 3. Facts giving rise to the filing of the appeal briefly stated are that on 5.3.2014 at about 12.00 a.m., the deceased, son of the claimants, was riding motor bike bearing registration No.KA-20-EE-2429 and proceeding to Kundapura from Udupi. At Brahmavara, near SMS Church, one Maruti Eco car bearing registration No.KA-20-C-785 which was being driven by its driver in a rash and negligent manner, coming from the opposite direction dashed against the motor bike of the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the same at KMC Hospital, Manipal. 4. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 19 years at the time of accident and was doing his Diploma course, as a bright student and had bright future as he was involved in many extra curricular sporting activities. The claimants had the hope that the deceased would have a good future and take care of them as well. On loss of such hope inter alia on these grounds the claimants claimed compensation to the tune of Rs. .44,68,500/- along with interest. 5. On service of notice, respondent No.1 remained absent and hence, placed ex-parte. Respondent No.2- insurance company appeared and filed separate statement of objections contending that the accident had taken place on account of negligence on the part of the deceased as well and denied the fact that the claimants were the legal representatives of the deceased. 6. On the basis of the pleadings of the parties, the Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.1 was examined as P.W.1 and got exhibited 19 documents namely, Ex.P1 to Ex.P.19. The respondents neither examined any witnesses nor placed any documents. 6. On the basis of the pleadings of the parties, the Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.1 was examined as P.W.1 and got exhibited 19 documents namely, Ex.P1 to Ex.P.19. The respondents neither examined any witnesses nor placed any documents. The Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the Maruthi Eco car by its driver, but saddled 5% liability on the deceased on account of his contributory negligence due to negligence of the deceased. The Tribunal further held that the claimants are entitled to a compensation of Rs. .13,87,000/- along with interest at the rate of 8% p.a., taking the income of the deceased at Rs. .4,000/- per month for two years, which was the remaining period of his Diploma course and Rs. .9,000/- per month for the remaining years. Being aggrieved by the judgment of the Tribunal with regard to deduction of income of the deceased for two years and the finding on contributory negligence and saddling 5% liability on the deceased, this appeal has been filed by the claimants for enhancement of compensation. 7. We have Sri Pratheep K.C. learned counsel appearing for the appellants, through video conference. 8. Learned counsel for the appellants submitted that the Tribunal has erred in taking Rs. .4,000/- per month as income of the deceased for two years and for the remaining period, at Rs. .9,000/- per month. The income ought to have bee taken through out, instead of splitting it. Learned Counsel for the appellants would further contend that the finding of contributory negligence by the Tribunal is without evidence and saddling 5% liability on account of that, could not have been directed. The respondents though served are unrepresented. 9. We have considered the submissions made by the learned counsel for the appellants and have perused the record. 10. The deceased was a student doing his Diploma course at the time of the accident. Though there is no evidence produced with regard to the avocation of the deceased during the period of his studies, it needs to be noticed that a probable good future is lost due to the death of their son in the accident. Thus, the Tribunal was not right in taking the income of the deceased at Rs. Though there is no evidence produced with regard to the avocation of the deceased during the period of his studies, it needs to be noticed that a probable good future is lost due to the death of their son in the accident. Thus, the Tribunal was not right in taking the income of the deceased at Rs. 4,000/- per month for two years and Rs. 9,000/- per month for the remaining years. Therefore, we deem it appropriate to consider the income of the deceased at Rs. 9,000/- per month for all the years and assess the compensation towards loss of dependency. Since the deceased was a bachelor, 50% of the income has to be deducted towards his personal expenses and 40% will have to be added in terms of the judgment of the Constitution Bench of the Supreme Court in ' NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS, (2017) AIR SC 5157 . Thus, the monthly income of the deceased would be Rs. 4500/- + Rs. 1800/- = Rs. 6,300/-. Since the deceased was aged 19 years, the applicable multiplier would be 18. Thus, the total compensation towards loss of dependency is assessed at Rs. 13,60,800/- (Rs. 6,300 x 12 x 18). Insofar as the award of compensation towards funeral expenses by the Tribunal at Rs. 15,000/- is concerned, we deem it appropriate to increase it by another Rs. 15,000/-. In all, the claimants would be entitled to Rs. 30,000/- towards funeral expenses. 11. The Tribunal has held that the accident has taken place on account of contributory negligence of the deceased. At paragraph 11 of the judgment, the Tribunal has recorded that the respondents have not examined any witness to corroborate that the accident had taken place on account of negligence of the deceased as well. Without any evidence, the Tribunal could not have fastened 5% liability on the deceased on contributory negligence. Therefore, the finding of Tribunal for recovery of 5% liability from the amount payable as compensation, is set aside. 12. Thus, the claimants shall be entitled to the entire amount of compensation, which is as follows: 1 Loss of dependency Rs. 13,60,800-00 2 Medical expenses Rs. 32,000-00 3 Loss of love and affection Rs. 2,00,000-00 4 Funeral expenses Rs. 30,000-00 Total Rs. 16,22,800-00 13. Thus, the claimants are entitled to total compensation of Rs. 16,22,800/-. 12. Thus, the claimants shall be entitled to the entire amount of compensation, which is as follows: 1 Loss of dependency Rs. 13,60,800-00 2 Medical expenses Rs. 32,000-00 3 Loss of love and affection Rs. 2,00,000-00 4 Funeral expenses Rs. 30,000-00 Total Rs. 16,22,800-00 13. Thus, the claimants are entitled to total compensation of Rs. 16,22,800/-. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made. To the aforesaid extent, the judgment of the Tribunal is modified. Accordingly, the appeal is disposed of.