Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1379 (KAR)

Geeta v. Hanamanth

2020-07-09

S.G.PANDIT, V.SRISHANANDA

body2020
JUDGMENT S.G. Pandit, J. - The claimants are in appeal dissatisfied with the quantum of compensation and aggrieved by saddling of 50% contributory negligence on the deceased under the judgment and award dated 22.01.2016 in MVC No.479/2014 on the file of the Prl. Senior Civil Judge, Member, MACT-V, Jamkhandi. 2. The claimants are wife, daughter and mother of deceased Kusha @ Kushal. A claim petition under Section 166 of the Motor Vehicles Act (for short, 'the Act') was filed claiming compensation for the accidental death of Kusha @ Kushal in a road traffic accident. It is stated that on 08.10.2014 the deceased as a pillion rider along with one Raghavendra were proceeding on motorcycle bearing No.KA-48/J-2279 and at that time tipper bearing No.KA-29/A-1595 came in a rash and negligent manner with high speed from opposite direction and dashed the motorcycle in which the deceased was proceeding, due to which both the rider and pillion rider fell down on the road and sustained grievous injuries. The pillion rider of the motorcycle Kusha @ Kushal succumbed to the injuries subsequently. It is stated that the deceased was aged 26 years and was earning Rs.20,000/- p.m. by doing agricultural work. 3. On issuance of notice, respondent No.1- owner remained absent and was placed exparte. Respondent No.2-insurer appeared and filed its objection statement. Respondent No.2 in its objection statement denied the entire claim petition averments. Further, it also contended that the driver of the offending vehicle had no valid and effective driving license to drive the said vehicle. Owner of the tipper had violated the provisions of the Act. It also contended that the accident occurred due to the negligent riding of the motorcycle and at the time of the accident three persons were proceeding on the motorcycle. Thus, prayed to dismiss the claim petition. 4. Before the Tribunal, both the rider and pillion rider filed claim petitions which were clubbed together and common evidence was let in. The claimants examined two witnesses as PWs.1 and 2 apart from marking Exs.P.1 to P.7. Respondents examined RW.1 and marked Ex.R.1-insurance policy. 5. The Tribunal on scrutiny of the material placed before it, awarded total compensation of Rs.3,70,000/- with interest at the rate of 9% p.a. from the date of filing the petition till the date of payment. The claimants examined two witnesses as PWs.1 and 2 apart from marking Exs.P.1 to P.7. Respondents examined RW.1 and marked Ex.R.1-insurance policy. 5. The Tribunal on scrutiny of the material placed before it, awarded total compensation of Rs.3,70,000/- with interest at the rate of 9% p.a. from the date of filing the petition till the date of payment. While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.5,000/- p.m. and applied multiplier of 17, deducting 1/3rd towards personal and living expenses of the deceased. Further, the Tribunal saddled contributory negligence on the deceased at 50%. The claimants aggrieved by the said judgment and award are before this Court in this appeal. 6. Heard the learned counsel for the appellants and the learned counsel for the respondent-Insurance Company. Perused the trial Court records. 7. The learned counsel for the appellants would submit that the Tribunal committed a grave error in saddling 50% contributory negligence on the deceased solely on the ground that three persons were proceeding on the motorcycle at the time of the accident. The learned counsel would submit that there is no evidence to come to the conclusion that there was 50% contributory negligence on the part of the pillion rider of the motorcycle i.e. deceased. In the absence of material or evidence to come to the said conclusion, only on the ground of triple riding, the Tribunal could not have saddled 50% contributory negligence on the deceasedpillion rider of the motorcycle. He invites attention of this Court to sketch which is annexed to charge sheet Ex.P.3. Further, he also submits that there is no contra evidence on record to come to the conclusion that the pillion rider of the motorcycle contributed his negligence towards occurrence of the accident. In that circumstance, he prays for setting aside the portion of the finding saddling contributory negligence to an extent of 50% on the deceased. 8. With regard to the quantum of compensation, the learned counsel for the appellants would submit that the income assessed by the Tribunal at Rs.5,000/- p.m. is on the lower side. It is his submission that the deceased was doing agricultural work and he was earning Rs.20,000/- p.m. As such, the income assessed by the Tribunal requires to be enhanced. 8. With regard to the quantum of compensation, the learned counsel for the appellants would submit that the income assessed by the Tribunal at Rs.5,000/- p.m. is on the lower side. It is his submission that the deceased was doing agricultural work and he was earning Rs.20,000/- p.m. As such, the income assessed by the Tribunal requires to be enhanced. Further, it is also his submission that the Tribunal committed an error in not awarding any compensation on the head of 'future prospects' since the deceased was aged 26 years. The claimants would be entitled for adding 40% of the assessed income towards future prospects. The claimant No.2 is the daughter of the deceased, who has lost parental love, guidance, discipline, training and protection of her father at an early age. Thus, she would be entitled for Rs.40,000/- on the head of parental consortium. Claimant No.3 is mother of the deceased, who has lost her son at the evening of her life. She has lost love and affection of her son. Hence, she would be entitled for Rs.40,000/- on the head of filial consortium. Hence, he prays for allowing the appeal. 9. Per contra, the learned counsel for the respondent-Insurance Company submits that the Tribunal is justified in saddling contributory negligence to an extent of 50%. It is his submission that there is no dispute with regard to the triple riding at the time of the accident and as such there is violation of Section 128 of the Act. Therefore, the Tribunal is perfectly justified in saddling 50% contributory negligence. Further, with regard to the quantum of compensation, he submits that in the absence of any material to establish the avocation and income of the deceased, the Tribunal is justified in assessing the monthly income of the deceased at Rs.5,000/- p.m. Thus, he prays for dismissal of the appeal. 10. On hearing the learned counsels for the parties and on consideration of the rival contentions, the following points would arise for consideration: 1. Whether saddling of 50% contributory negligence on the deceased is justified? 2. Whether the income assessed by the Tribunal at Rs.5,000/- p.m. is proper and correct? 3. Whether the claimants would be entitled for enhanced compensation? 11. The answer to the above points No.1 and 2 would be in the negative and point No.3 in the affirmative for the following reasons: 12. 2. Whether the income assessed by the Tribunal at Rs.5,000/- p.m. is proper and correct? 3. Whether the claimants would be entitled for enhanced compensation? 11. The answer to the above points No.1 and 2 would be in the negative and point No.3 in the affirmative for the following reasons: 12. The accident that had taken place on 08.10.2014 involving motorcycle bearing No.KA-48/J- 2279 and tipper bearing No.KA-29/A-1595 and the accidental death of one Kusha @ Kushal in the said accident is not in dispute in this appeal. The claimants are before this Court praying for setting aside saddling of 50% contributory negligence and praying for enhancement of compensation. In MFA No.103382/2016 decided on 09.07.2020 which had arisen out of the same accident i.e. LR's of deceased rider of motorcycle, this Court on re-appreciating the evidence reduced the contributory negligence from 50% to 20%. But, in the present case, the deceased was pillion rider. No contributory negligence could be attributed to the pillion rider in the facts and circumstances of the case. Hence, saddling of contributory negligence of 50% on the deceased is set aside. 13. The learned counsel for the appellants contended that the income assessed by the Tribunal at Rs.5,000/- p.m. of the deceased is on the lower side. The accident is of the year 2014. It is contended that the deceased was doing agricultural work. To prove the income, no material is placed on record. In the absence of any material to establish the income, it is for the Tribunal to assess the income notionally. But, the notional income assessed by the Tribunal at Rs.5,000/- p.m. is on the lower side. This Court and the Lok- Adalath while settling the accidental claims of the year 2014 would normally assess the notional income at Rs.7,500/- p.m. In the instant case also in the absence of any material to establish the income, we deem it appropriate to assess the notional income of the deceased at Rs.7,500/- p.m. 14. Further, the learned counsel for the appellants would contend that the Tribunal committed an error in not granting compensation on the head of future prospects. Further, the learned counsel for the appellants would contend that the Tribunal committed an error in not granting compensation on the head of future prospects. The Hon'ble Apex Court in the case of National Insurance Company Ltd vs. Pranay Sethi and others, (2017) AIR SC 5157 , has held that the claimants would be entitled for addition of 40% of the assessed income towards future prospects wherever the deceased was aged below 40 years. In the instant case also since the deceased was below 40 years, the claimants would be entitled for addition of 40% of the assessed income towards future prospects. 15. The claimant No.2 is the minor daughter of the deceased, who has lost parental love, guidance, discipline, training and protection of her father at an early age. Claimant No.3 is the mother of the deceased, who has lost her son aged about 26 years. She has lost love, affection and care of her son. Thus, both claimants No.2 and 3 would be entitled for Rs.40,000/- each on the head of parental and filial consortium apart from Rs.70,000/- on conventional head. Thus, the claimants would be entitled for the following modified compensation: 1. Loss of dependency Including future prospects 7,500+3,000 (40% of 7,500) =10,500-3,500 (1/3rd of 10,500) =7,000 x 12 x 17 =14,28,000/- :Rs.14,28,000 2. Conventional head : Rs. 70,000 3. Parental and Filial consortium : Rs. 80,000 Total :Rs.15,78,000 16. Thus, the claimants would be entitled for total compensation of Rs.15,78,000/- as against Rs.3,70,000/- awarded by the Tribunal with interest at the rate of 9% p.a. from the date of petition till realization. 17. The appeal is allowed. Saddling of 50% contributory negligence on the deceased is set aside. The impugned judgment and award passed by the Tribunal is modified to the above extent. 18. Respondent No.2-Insurance Company is directed to deposit the compensation amount with accrued interest within six weeks from the date of receipt of a certified copy of this judgment. 19. The deposit and apportionment of the compensation shall hold good as per the order of the Tribunal. 20. Draw the modified award accordingly.