Partly allowed

Mallappa S/O Shiddappa Kajagar v. Mehabubshah R Makandar

Karnataka HC18 Aug 2017MFA/22548/2010

Case brief

AI extract

What is this about?

In a miscellaneous first appeal under the Motor Vehicles Act, 1988 against a Motor Accidents Claims Tribunal award, the High Court enhanced the compensation awarded for the death of the appellant's son. The court also awarded compensation for loss of estate while rejecting the challenge to the finding of contributory negligence.

What did the court decide?

Compensation enhanced from Rs. 3,39,000 to a total of Rs. 4,87,000 by adding Rs. 1,48,000; finding on contributory negligence left unaltered.

Mallappa S/O Shiddappa Kajagar Vs Mehabubshah R… — Motor Accident Claims | Karnataka HC (2017)

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M.F.A.No.22548/2010

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 18^TH DAY OF AUGUST, 2017

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BEFORE

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THE HON’BLE DR.JUSTICE H.B.PRABHAKARA SASTRY

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MISCELLANEOUS FIRST APPEAL NO.22548/2010 (MV)

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BETWEEN:

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MALLAPPA S/O SHIDDAPPA KAJAGAR, AGE: 40 YEARS, OCC: SERVICE IN HESCOM, R/O. BAGALKOT, TAL & DIST: BAGALKOT.

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... APPELLANT

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(BY SRI.SRINIVAS K. NADAMANI FOR SRI.R.D.DESAI, ADV)

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AND:

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MEHABUBSHAH R. MAKANDAR,

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AGE: MAJOR, OCC: BUSINESS, (OWNER OF TRUCK BEARING REG. NO.KA.28/A.1678) R/O SHOP NO.2, GOVSHALLA MARKET,

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OPP: ALAMATTI ROAD, NIDAGUNDI,

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TAL: B.BAGEWADI.

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THE NEW INDIA INSURANCE COMPANY LIMITED, BY ITS BRANCH MANAGER, BR.BIJAPUR.

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... RESPONDENTS

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(BY SRI.G.N.RAICHUR, ADV. FOR R2)

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THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 05.06.2009, PASSED IN MVC NO.1012/2007, ON THE FILE OF THE MEMBER, MACT NO.II, BAGALKOT, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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M.F.A.No.22548/2010

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The present appellant was the claimant before the Member, Motor Accidents Claims Tribunal No.II, Bagalkote (hereafter referred to as the ‘Tribunal’ for brevity), whose claim petition was allowed in part entitling the claimant for a compensation of a sum of `3,39,000/- for the death of his son, however, directing the respondent No.2Insurance Company to pay 50% of the said amount by fastening the remaining 50% of the liability upon the deceased himself.

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In his memorandum of appeal, the claimant has stated that the quantum of compensation awarded by the Tribunal below under various heads is on the meager side and the income of the deceased taken by the Tribunal below in calculating the loss of dependency is also on the lower side. Further stating that the Tribunal below ought not to have fastened liability of 50% as contributory

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M.F.A.No.22548/2010

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negligence on the part of the deceased himself, the appellant has prayed for enhancement of compensation as well setting aside the finding of the Tribunal below regarding contributory negligence of the deceased.

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The records summoned from the Tribunal below and received by this Court are placed before me. Perused the records and heard both sides.

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The present appeal being the claimant’s appeal and the respondents having not preferred either crossobjection or counter appeal, the question of occurrence of accident on the date, time and place alleged by the claimant is not in dispute. Therefore, the question of occurrence of the accident and the death of deceased son of the claimant in the accident need not be re-analysed

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again. The only questions that remain to be considered are about the quantum of compensation awarded by the Tribunal below and the alleged fastening of 50% liability as contributory negligence upon the deceased himself.

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M.F.A.No.22548/2010

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The Tribunal below has awarded the

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compensation under the following heads and with the

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sums shown against them:

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Amount( ` )

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Towards Loss of dependency	3,24,000.00
Towards Funeral expenses & Transportation of dead body	10,000.00
Loss of love and affection	5,000.00
Total	3,39,000.00

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The main contention of the appellant as well the

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argument of the learned counsel for the appellant is that,

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the deceased, who was the son of the claimant, was studying in B.Com and also doing computer repair work and thus earning a sum of `5,000/- p.m. The evidence of PW.1 in this regard was not properly appreciated by the Tribunal below which has led to confining the income of

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the deceased at `3,000/- p.m. only. The claimant got himself examined as PW1, wherein he reiterated the petition averments that his son who was aged about 21 years was studying B.com graduation and was also doing

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M.F.A.No.22548/2010

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computer repair work, thereby earning a sum of 5,000/per month. In support of his evidence, he also got marked a letter shown to have been given by Computer Needs shop and got it marked as Ex.P8, which shows that the deceased was working in their organization as a part time employee and was drawing a salary on daily basis about 350/- per day. The Tribunal below observing that Ex.P8 was not proved since its author was not examined, has confined the income of the deceased at 100/- per day, which comes to 3,000/- per month. However, by a perusal of the evidence of PW1 in its entirety, it can be seen that, except making general denial suggestions, no specific denial has been made with respect to the document at Ex.P8. However, it also cannot be ignored that Ex.P8 only shows that the deceased was working on daily wage basis, but it does not show that the deceased was getting work on everyday in the month. As such, the income as alleged at `5,000/-per month though cannot be accepted, but at the same time, it cannot be minimized and confined to

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M.F.A.No.22548/2010

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`3,000/- per month. In such a situation, the notional

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income as prevailing in the relevant year is required to be considered. The Coordinate Benches of this Court are taking the notional income of a person under similar circumstances in the relevant year 2007 at 4,000/- per month. Since the claimant being the father of the deceased and the only alleged dependent of the deceased, the Tribunal below has rightly deducted 50% of the income of the deceased towards his personal expenses. Thus, after deducting 2,000/- per month towards the personal expenses of the deceased, his contribution to the family would come to 2,000/- per month, which is 24,000/- per annum. The undisputed age of the deceased as could be gathered from his birth certificate at Ex.P9 is 20 years 6 months as on the date of accident.

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The Tribunal below has taken the same at 21 years, for which the appropriate multiplier applicable is 18. Thus, towards ‘loss of dependency’, the claimant is entitled for a compensation of a sum of 24,000 x 18 = 4,32,000/-.

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M.F.A.No.22548/2010

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After deducting a sum of 3,24,000/- awarded by the Tribunal below under the said head, the difference amount would be ** 1,08,000/-,** for which enhancement under the head of ‘loss of dependency’ the claimant/appellant is entitled to.

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Towards ‘Funeral expenses’, the Tribunal below has awarded a compensation of 10,000/-. However, considering the circumstances of the case, I find it appropriate to enhance it by a sum of ** 5,000/-.**

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A sum of 5,000/- was awarded by the Tribunal below towards ‘loss of love and affection’. Considering that the claimant has lost his grown up son and the circumstances of the case, it is reasonable to enhance the said compensation by a sum of ** 20,000/-** .

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In the circumstances of the case, it is also felt necessary to award a compensation under the head of ‘loss of estate’ by considering the fact that the deceased was an earning person. Thus, awarding a sum of

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M.F.A.No.22548/2010

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` 15,000/- under the head ‘loss of estate’ would be reasonable.

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Barring this, the claimant/appellant is not

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entitled for compensation under any other heads.

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Thus, in total, the claimant/appellant is entitled

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for an enhanced compensation of a sum of **1 ,48,000/-** which is in addition to a sum of 3,39,000/- awarded by the Tribunal below in the impugned judgment and award.

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The next question is regarding the finding of the Tribunal below on the point of contributory negligence, by which it has fastened the liability of 50% upon the deceased rider of the motorcycle.

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The proven fact in the Tribunal below

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regarding the manner and occurrence of the accident is that, on the date 01.11.2007 at about 10.30 pm, on Bagalkote Kamatagi road near Sangam cross, the deceased Pramod who was riding his motorcycle bearing

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M.F.A.No.22548/2010

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registration No.KA-29/L.9779, along with a pillion rider, dashed to a parked lorry bearing registration No.KA28/A.1678 and in the said accident sustained grievous injuries and died on the spot. The Tribunal below by observing that there is contributory negligence on the part of the deceased rider also, apportioned the liability at 50:50 between the driver of the lorry and the deceased.

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It is the argument of the learned counsel for the appellant that the lorry was parked in the middle of the road without any indicators or parking lights and the accident has occurred in the night at 10.30 pm. As such, the driver of the truck is solely responsible for the accident which has resulted in the death of the rider of the motorcycle.

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On the other hand, it was the argument of the learned counsel for the respondent – Insurance Company that, admittedly PW1 is not an eyewitness and except PW1, none other was examined on the side of the

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M.F.A.No.22548/2010

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claimant. The police who investigated the matter have filed charge sheet against both the deceased as well as the driver of the lorry. According to the learned counsel, observing this point, the Tribunal below has rightly held both the parties equally liable at 50:50.

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Admittedly, PW1 is not an eyewitness to the alleged incident. Regarding occurrence of the accident, what all he has stated are only based upon the information received by him and relying upon the documents at Exs.P1, P2 and P5. No eyewitnesses were examined in the matter from the either side. Ex.P1 is a copy of FIR, Ex.P2 is a copy of complaint and Ex.P5 is a copy of the charge sheet filed by the police in the criminal case pertaining to the accident in question. In Ex.P2, the complaint, one Nagaraj has stated that the lorry in question was parked on the road in a negligent manner by its driver without putting the parking light on. Further, he has stated that the deceased Pramod also has ridden

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the vehicle in a high speed and in a rash and negligent manner and dashed to the said parked lorry. Thus, at the very first instance, the person who lodged the complaint before the police has attributed negligence on the part of both the driver of the lorry as well as the rider of the motorcycle. The police after conducting investigation in the matter, have filed charge sheet as could be seen at Ex.P5, wherein they have charge sheeted both the driver of the lorry as well the rider of the motorcycle as accused Nos.1 and 2 and accused that both of them were guilty.

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The offences accused in the charge sheet are punishable under Sections 279, 337, 338 and 304A of the IPC. Since these documents have been produced and relied upon by none else than the claimant himself, the reliance upon those documents by the claimant is in toto, until a specific portion of it is denied by him. The claimant has not denied any portion of the finding in the charge sheet at Ex.P5. Interestingly, the claimant has not produced a copy of scene of offence (spot panchanama) which would

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M.F.A.No.22548/2010

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be drawn by the police in the motor vehicle accident criminal case. Had the document been produced, that would have thrown some light. However, the charge sheet being a final report filed by the police, accusing both the driver of the lorry and the rider of the motorcycle involved in the accident equally and also considering the allegation made in the complaint as well in the charge sheet that the deceased rider of the motorcycle was negligent and was riding his motorcycle in a high speed and in a rash and negligent manner, the Tribunal below has rightly arrived at a conclusion observing that there is contributory negligence on the part of the rider of the motorcycle also. It has apportioned the liability at 50:50 between the deceased and the owner/insurer of the lorry. I do not find any reason to interfere in the said finding.

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Accordingly, I proceed to pass the following

order:

M.F.A.No.22548/2010

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ORDER

The appeal is allowed in part.

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The judgment and award passed by the Member, Motor Accidents Claims Tribunal-III, Bagalkote in MVC No.1012/2007 dated 05.06.2009 is modified to the extent

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that the compensation awarded at 3,39,000/- is enhanced by a sum of 1,48,000/-, thus making the total compensation at ` 4,87,000/- (Rupees Four Lakh Eighty

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Seven Thousand Only) .

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The rest of the finding of the Tribunal below with respect to apportionment of the liability at 50:50 and awarding interest, its rate and the terms regarding release/deposit of the amount shall all remain unaltered.

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Draw modified award accordingly.

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Sd/-

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JUDGE

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gab

Mallappa S/O Shiddappa Kajagar v. Mehabubshah R Makandar

Case brief

What is this about?

What did the court decide?

Mallappa S/O Shiddappa Kajagar v. Mehabubshah R Makandar

Case brief

What is this about?

What did the court decide?

What the court decided

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