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2023 DIGILAW 406 (KAR)

Sanna Papamma v. B. Basavaraj

2023-03-09

R.DEVDAS, RAJESH RAI K.

body2023
JUDGMENT RAJESH RAI K., J. - This appeal is filed under Sec. 173(1) of Motor Vehicles Act, 1988 (for brevity 'M.V. Act ') by the appellants / claimants calling in question the judgment and Award dtd. 12/10/2012 passed in MVC No.759/2012 on the file of MACT-II, Ballari (for brevity 'Tribunal ') for seeking enhancement of the compensation. 2. Brief facts leading to the case are that on 18/4/2012, at about 3.30 p.m., at Tumkurlahally gate, Molakalmuru taluk, the deceased was proceeding in his TVS XL Moped bearing No.AP-01/E-8039 on left side of the road. While crossing the road near Tumakurlahally gate, Chevrolet Optra Car bearing Regn.No.KA-34/M-9952 driven by first respondent came in a rash and negligent manner with a high speed and dashed to the TVS XL Moped of the deceased, as such the rider of the TVS XL fell down and sustained injuries and he died at the spot. As such, a case was registered against the driver of the Chevrolet Optra Car in Crime No.60/2012 for the offences punishable under Ss. 279, 337, 304-A of IPC. A claim petition was filed by the appellants/claimants under Sec. 166 of MV Act, claiming compensation for the death of deceased Boraiah by 1st appellant i.e. wife of the deceased and appellant Nos.2 to 4 who are children of the deceased. The Tribunal after appreciating the material and evidence on record allowed the claim petition in part and awarded compensation of Rs.2, 59, 500.00 along with interest at the rate of 6% per annum from the date of petition till the date of realization. The Tribunal held respondent Nos.1 to 3 are jointly and severally liable to pay the said compensation to the appellants/claimants. This appeal is filed by the claimants seeking enhancement of the award. 3. Heard the arguments of the learned counsel for appellants/claimants and the learned counsel for respondent-Insurance Company and perused the materials on record. 4. The learned counsel for appellants/claimants contended that the Tribunal passed the impugned judgment and award without looking into the facts and circumstances of the case and also without appreciating the evidence on record which is arbitrary and contrary to the law and facts of the case. 4. The learned counsel for appellants/claimants contended that the Tribunal passed the impugned judgment and award without looking into the facts and circumstances of the case and also without appreciating the evidence on record which is arbitrary and contrary to the law and facts of the case. The learned counsel further contended that the Tribunal erred in holding that the accident was caused due to the contributory negligence of the deceased and thereby the Tribunal has taken negligence of the deceased at 25% to the accident and deducted the same from the compensation awarded to the claimants which is arbitrary and caused miscarriage of justice to the appellants/claimants. The learned counsel further contended that the Tribunal also erred while granting the compensation in different heads. The Tribunal has not properly considered the nature of the avocation of the deceased which assuming the income of the deceased. As such, the learned counsel prays to allow the appeal filed by appellants and prays to enhance the compensation amount by modifying the judgment and award passed by the Tribunal. 5. Per contra, the learned counsel for respondent No.3 i.e. Insurance company would contend that the Tribunal rightly held that the deceased also contributed to the accident by his negligence and on perusal of the complaint and other materials, it clarifies that the driver of the TVS XL Moped, all of a sudden crossed the road in National Highway without following Traffic rules and regulations. As such, he is the main cause for the accident. Apart from that the deceased was not having valid driving license at the time of accident; as such there is a gross negligence on the part of the rider of the TVS XL Moped who is equally responsible to pay for his contributory negligence. Hence, the Tribunal rightly held contributory negligence on the part of the driver and rider of both the vehicles i.e. Chevrolet Optra Car and TVS XL Moped and accordingly reduced the compensation at the rate of 25%. Hence, learned counsel argues that the Tribunal rightly passed the award in respect of contributory negligence part is concerned. He further contends that even otherwise, the Tribunal rightly awarded the compensation on different heads. Accordingly, learned counsel prays to dismiss the appeal. 6. Hence, learned counsel argues that the Tribunal rightly passed the award in respect of contributory negligence part is concerned. He further contends that even otherwise, the Tribunal rightly awarded the compensation on different heads. Accordingly, learned counsel prays to dismiss the appeal. 6. We have bestowed our anxious consideration to the submissions made by both the parties and the evidence and materials available on record including the trial Court records, placed before us. 7. Having heard both the parties and on perusal of the records, there can be no doubt that death of the deceased Boraiah i.e husband of the first appellant and father of appellant Nos.2 to 4 was caused on 18/4/2012 at about 3.30 p.m. in a road accident. However, the point that arises for our consideration is whether the said accident was caused only due to the rash and negligent driving of driver of Chevrolet Optra Car insured with the 3rd respondent-Insurance company or the deceased being rider of TVS XL Moped equally contributed for the accident. Though, the complaint was lodged by one Thippeswamy claiming that the accident was caused due to rash and negligent driving of the driver of the Chevrolet Optra Car bearing Regn.No.KA-34/M-9952, the said complainant is none other than the relative of the deceased. Apart from the complaint, by perusal of the spot panchanama and other documents, it could be seen that the car was proceeding from Challakere towards Ballari, TVS XL Moped was proceeding to Tumkurlahally and accident was occurred when the deceased was proceeding/crossing the National Highway. Moreover, deceased was carrying maize bags in the moped. Admittedly, accident was took place on the National Highway. Hence, Tribunal has rightly held that it is the duty of the rider of the vehicle while crossing the road to observe whether any other vehicle is coming on both the sides of the road by following the traffic rules. 8. In this case, it appears that the deceased without observing traffic rules, without noticing the Chevrolet Optra Car coming towards Ballari from Challakere, suddenly crossed the road without taking any care or caution. Hence, the accident was caused. Moreover, the evidence of PW1 goes to show that the deceased did not posses valid driving license to drive the TVS XL Moped at the time of accident. Hence, the accident was caused. Moreover, the evidence of PW1 goes to show that the deceased did not posses valid driving license to drive the TVS XL Moped at the time of accident. This aspect also once again proves that the deceased drove his vehicle without following the traffic rules and regulations. Hence, in our considered opinion, the accident was occurred due to the contributory negligence on the part of deceased also. In view of the same, the Tribunal has rightly held 25% contributory negligence of the deceased in the accident. 9. As far as the compensation awarded by the Tribunal is concerned, first petitioner is the wife and petitioners Nos.2 to 4 are the children of deceased Boraiah. The relationship of petitioners with the deceased is not in dispute. However, the petitioner Nos.2 to 4 are sons of the deceased who have attained the age of majority and residing separately as admitted by PW.1-wife of the deceased in her cross examination. The Tribunal while awarding compensation held that deceased being an agriculturist, the income of the deceased may be taken at Rs.150.00 per day or Rs.4500.00 per month. However, the learned counsel for claimants has pointed out to the chart maintained by this Court which is prepared at the instance of the Karnataka State Legal Services authority which would guide the notional income to be taken at a particular year. As per the said chart, if accident occurred in the year 2010, the notional income should be taken at Rs.6, 500.00 per month. Therefore, considering the income of the deceased at Rs.4, 500.00 per month is on lower side and it has to be considered at Rs.6, 500.00 per month. The deceased was aged about 59 years and hence future prospectus is taken at 10% and since the wife is the only dependant, the deduction should be 50% and multiplier applicable is 9, which works out to 6500 + 10% (7150/-) X 12 x 9 X 50%=3, 86, 100/- is to be awarded towards loss of dependency and Rs.70, 000.00 is to be awarded under conventional heads and after adding loss of love and affection to children (Rs.40, 000.00X3) Rs.1, 20, 000.0000, total comes to Rs.5, 76, 100.00. After deducting 25% negligence i.e Rs.1, 44, 025.0000 total compensation works out to Rs.4, 32, 075.0000. After deducting 25% negligence i.e Rs.1, 44, 025.0000 total compensation works out to Rs.4, 32, 075.0000. Therefore, in modification of the award of the Tribunal, the appellants/claimants are entitled for total compensation of Rs.4, 32, 075.00 as against Rs.2, 59, 500.00 awarded by the Tribunal. The appellants/claimants are entitled for additional compensation of Rs.1, 72, 575.0000 along with interest at the rate of 6% per annum from the date of petition till realization, in addition to what has been awarded by the Tribunal. 2. Accordingly, we pass the following: ORDER (i) Appeal is allowed in part. (ii) The Judgment and award dtd. 12/10/2012 passed in MVC No.759/2012 by the MACTII, Ballari is modified to the aforesaid extent. (iii) The appellants/claimants are entitled for additional compensation of Rs.1, 72, 575.0000 along with interest at the rate of 6% interest per annum from the date of petition till realization. However, appellants / claimants are not entitled for the interest for delayed period of 160 days out of 260 days delayed period. (iv) Respondent-Insurance Company shall deposit the additional compensation amount before the MACT-II, Ballari in MVC No.759/2012, within eight weeks from the date of receipt of copy of this order. (v) Registry is directed to send back the trial Court records along with certified copy of the order of this Court to trial Court forthwith. (vi) Amount in deposit if any, before this Court be transmitted to trial Court. (vii) No order as to costs.