Partly allowed

Indumati W/O Late Prabhakar Parit v. the National Insurance Company Ltd.

Karnataka HC7 Jan 2014MFA/30676/2009

Case brief

AI extract

What is this about?

The High Court allowed an appeal partly, enhancing motor vehicle accident compensation. The Court distinguished prior precedents, corrected the contributory negligence deduction to 50% as a default due to lack of proof regarding the lorry driver's fault, and increased the multiplier and future prospects addition.

What did the court decide?

Compensation enhanced to Rs. 6,07,340/- with interest at 6% p.a. from date of petition.

Indumati W/O Late Prabhakar Parit Vs the National… — Motor Accident Claims | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA

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GULBARGA BENCH

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DATED THIS THE 07^TH DAY OF JANUARY 2014

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BEFORE:

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THE HON’BLE MR. JUSTICE A.S. PACHHAPURE

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MFA NO. 30676 OF 2009 (MV)

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BETWEEN:

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Indumati W/o Late Prabhakar Parit, Age: 31 years, Occ: Household

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Sweta D/o Late Prabhakar Parit, Age: 13 years, Minor.

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Sachin S/o Late Prabhakar Parit, Age: 11 years, Minor.

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Shruti D/o Late Prabhakar Parit, Age: 9 years, Minor.

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Sagar S/o Late Prabhakar Parit, Age: 05 years, Minor.

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All Minors are under the guardianship of their real Mother Indumati, Claimant/appellant No.1

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Ramanna S/o Hanmanthappa Parit, Age: 61 years, Occ: Nil

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R/o Humnabad, Now at proper Bhalki.

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… APPELLANTS

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[By Sri. Basavaraj R Math, Advocate)

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AND:

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The National Insurance Company Ltd. Branch Office at Ashio Market Feelkhana, Hyderabad through its Divisional Manager, Division Office, Gulbarga.

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Anil Kumar Bachepalli S/o Yadhavrao Bahepalli, Age: Major, Occ: Business, R/o Talab Katta, INA Hyderabad (AP)

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… RESPONDENTS

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(By Sri Nagaraj Patil, Advcaote for R-1, Notice to R-2 dispensed with)

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THIS APPEAL IS FILED U/S 173(1) OF M.V. ACT AGAINST THE JUDGEMENT AND AWARD DATED 21.01.2009 PASSED IN MVC NO. 19/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN) & JMFC AND ADDL. MACT BHALKI PARTLY ALLOWING THE CLAIM PETITION AND SEEKING ENHANCEMENT.

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THIS MFA COMING FOR DICTATING JUDGEMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGEMENT

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The appellants dissatisfied with the quantum of

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compensation awarded for the death of Prabhakar in the motor vehicle accident have filed this appeal seeking enhancement.

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The facts reveal that on 05.02.2005 at 06.30 p.m. on National Highway No.9 near Hudgi village, a parked lorry bearing registration No. AP.09/U-8540 belonging to the 2^nd respondent was hit by the scooter bearing registration No. KA.39/E-3234 and thereby the rider sustained severe injuries and succumbed to the said injuries on the spot. A complaint under sections 279 and 304-A of IPC and section 187 of MV Act was filed. His wife, children and father have claimed compensation for loss of dependency and other conventional heads.

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During the enquiry 1^st claimant was

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examined as PW 1 and a witness PW 2. In their evidence the documents Ex.P-1 to P-7 were marked.

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On behalf of respondents, RW 1 was examined and Ex.R-1 to R-3 were marked.

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The Tribunal after hearing the counsel and appreciating the material on record, held that there was contributory negligence to an extent of 50% by

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the deceased and therefore, though it arrived at Rs.7,70,000/- the compensation, granted only a sum of Rs.3,85,000/- with interest at 6% per annum.

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Aggrieved by the findings of the Tribunal

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and the compensation awarded, the present appeal is filed.

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I have heard Sri Basavaraj Math, learned counsel for appellants and Sri Manvendra Reddy, learned counsel for respondent. Notice to Respondent No.2 has been dispensed with.

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It is the contention of the learned

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counsel for the appellants that the Tribunal

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committed error in deducting half of the compensation for the contributory negligence on the part of the deceased and therefore, he would submit that the approach of the Tribunal is erroneous and illegal. It is his submission that as the lorry was parked on the left side of the road without parking lights and indicators, the Tribunal ought to have

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held absolute negligence on the part of the lorry driver. It is also his submission that compensation awarded by the Tribunal is on the lower side and it needs enhancement.

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On the other hand the learned counsel for respondent supported the judgment and award of the Tribunal and submits that no grounds have been made out to interfere in the impugned judgment and award.

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Reliance is placed on the decision of this court reported in ILR 2002 KAR 893 (Kumari Jyothi and others .vs. Mohd. Usman Ali and others) wherein the facts reveal that the lorry was parked on the side of the road without parking lights and indicators. A motorcycle hit the vehicle in the night hours. This Court held absolute negligence on the part of the lorry driver for wrong parking and held the owner and insurer of the lorry absolutely liable to pay the compensation.

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But anyhow the complaint was lodged by the brother of the deceased who was not an eyewitness.

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In the complaint it is stated that lorry was parked

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on the left side of the road and the motorcycle is said to have hit the lorry on its hind side, As the complainant is not an eyewitness the contents have no evidentiary value.

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That apart 1^st appellant is examined as PW

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1 who is the wife of the deceased and she is not an eyewitness to the accident. PW 2 who is examined before the Tribunal is an official of the Insurance Company and he is also not an eyewitness to the accident. Therefore, there is no evidence so far as the proof of negligence. In the petition it is averred that while the lorry was proceeding and the driver, abruptly applied the brakes, thereby the deceased who was on his motorcycle on the hind side hit the lorry which was abruptly stopped and caused the accident. It was for the rider of the motorcycle to keep a safe distance, while he was proceeding behind the lorry. So if this material placed on record is perused the negligence of the

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deceased alone cannot be ruled out. Therefore, principles laid down in the decision cited supra are not applicable. Anyhow as the respondents have not challenged the finding of negligence of driver of lorry to an extent of 50% and therefore to that extent, compensation has to be considered.

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As could be seen from Ex.P-7 the copy of the Service book, the deceased was born on 25.10.1965. Therefore, on the date of the accident, he had not completed 40 years. He was 08 months less to attain 40 years. Therefore, multiplier ‘14’ adopted is erroneous and it has to be 15.

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So far as the monthly income, the deceased was conductor in the KSRTC and his gross salary was Rs.6,753/-. A sum of Rs.60/- was deducted towards the professional tax. The Tribunal deducted 1/3^rd towards personal expenses. As the deceased has left more than four dependants the deduction has to be 1/4^th from the said salary.

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Learned Counsel for the appellants placing reliance on the decision of Apex Court in the Sarla Verma’s case (AIR 2009 SC 3104) contended that towards future prospects 50% of the salary has to be added as the deceased was less than 40 years of age. As could be seen from the aforesaid decision, the addition of 50% in case if the person is less than 40 years of age and 30% if he is of the age in between 40 to 50 years. Perusal of para 11 of the judgment reveals that the method adopted aforesaid is general rule and departure therefrom should be made only in a rare and exceptional cases involving the special circumstances.

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Now, in the case on hand, the facts reveal that the claimants did not examine any witnesses who had seen the accident. The documents produced including the FIR and the complaint would reveal that the lorry was parked and the deceased while proceeding on the scooter hit the lorry. As could be seen from the pleadings, the deceased is said to

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have hit the lorry which was moving ahead of the scooter and stopped abruptly. The facts pleaded and the evidence adduced is contrary to the documents produced. In fact, the claimants have not proved the negligence of the lorry driver. It is only for the reason that the respondents have not preferred any appeal against the finding of negligence, the compensation has to be granted. This fact found from the records is a circumstance to deviate from the general rule of adding the salary towards future prospectus. Furthermore, to complete 40 years it was only 8 months that was required and for this reason, the claimants have been extended the benefit of additional multiplier changing it from ‘14’ as held by the Tribunal to ‘15’. As the deceased was

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at the peak of 40 years and as the legal representatives have been granted the benefit aforesaid, I think it is just and proper to add 30% of his salary towards future prospects in the aforesaid exceptional circumstances brought on

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record to deviate from the general rule as held by the Apex Court.

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Thereby, adding 30% of the salary to the

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sum of Rs.6,753/-, the contribution would be Rs.8,701/- deducting 1/4^th towards personal expenses

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of the deceased, net contribution would be Rs.6,526/-. Adopting multiplier of ‘15’, the total loss of dependency would be Rs.6526 x 12 x 15 = 11,74,680/-/. The Tribunal has granted a sum of Rs.20,000/- towards conventional heads and I think it just and proper to grant additional sum of Rs.20,000/-, as generally Rs.40,000/- is granted on all these heads. The net compensation would be Rs.12,14,680/- deducting 1/2 towards contributory negligence of the deceased, the appellants are entitled to a sum of Rs.6,07,340/- with interest @ 6% from the date of petition till its payment.

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Consequently, the appeal is allowed in part. The judgment and award of the Tribunal is modified.

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The appellants are entitled to a total sum of Rs.6,07,340/- with interest @ 6% per annum from the date of petition till its payment. The distribution and deposit of compensation would be as per the formula adopted by the Tribunal and the Tribunal shall pass appropriate orders in this regard.

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Sd/JUDGE

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*MK

Indumati W/O Late Prabhakar Parit v. the National Insurance Company Ltd.

Case brief

What is this about?

What did the court decide?

Indumati W/O Late Prabhakar Parit v. the National Insurance Company Ltd.

Case brief

What is this about?

What did the court decide?

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