Partly allowed

V. Mohan Narayan v. Mr. Rakesh Choudhary

Karnataka HC20 Nov 2020MFA/1252/2016

Case brief

AI extract

What is this about?

The High Bench held that the Tribunal correctly attributed 50% contributory negligence to the deceased for traveling on the roof in an intoxicated condition. However, it found the quantum of compensation inadequate under Apex Court guidelines. It enhanced compensation by re-assessing loss to estate at Rs. 30,24,000 and conventional heads totaling Rs. 31,19,000, resulting in a final enhanced award

What did the court decide?

The appeal is allowed in part; compensation enhanced to Rs. 15,59,500 with interest at 6% p.a. on the enhanced amount from the date of claim petition.

V. Mohan Narayan Vs Mr. Rakesh Choudhary — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF NOVEMBER, 2020

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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M.F.A.No.1252/2016 (MV)

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BETWEEN :

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1 . V.MOHAN NARAYAN S/O R.N.VENKY, AGED ABOUT 61 YEARS

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2 . Mrs. RADHA NARAYAN W/O V.MOHAN NARAYAN, AGED ABOUT 54 YEARS

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3 . SAMARTH NARAYAN MINOR AT THE TIME OF FILING, CLAIM PETITION, NOW ATTAINED MAJORITY, AGED ABOUT 22 YEARS

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ALL ARE EARLIER R/AT NO.210, "SAMACHAR APARTMENT", MAYUR VIHAR, PHASE-I EXTENSION, DELHI-110 091. ...APPELLANTS

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(BY SRI N.SHANKAR RANGAREJI, ADV.)

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AND :

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1 . Mr. RAKESH CHOUDHARY H.NO.1974, SECTOR-4, GURGAON, ALSO AT PLOT NO.1045, APNAVILLA,

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APARTMENT, H.NO.23, SECTOR-10, DWARAKA, NEW DELHI.

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2 . THE ORIENTAL INSURANCE CO. LTD., NO.101, L.S.C. 1^ST FLOOR, HOSPITAL BLOCK MARKET, VIKAS PURI, DELHI-110 018, REP BY ITS REGIONAL MANAGER, REGIONAL OFFICE, NO.45/46, LEO SHOPPING COMPLEX, M.G.ROAD, BENGALURU-560 001.

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3 . HARSHA CHOUDHARY S/O RAKESH CHOUDHARY, R/AT F-1-06, SRIKRISHNA HOYSALA APARTMENT, SANJAYNAGAR, BENGALURU-560 001. …RESPONDENTS

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(BY SRI K.SURESH, ADV. FOR R-2;

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VIDE COURT ORDER DATED 27.11.2019 NOTICE TO R-1 & R-3 ARE HELD SUFFICIENT.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 13.07.2015 PASSED IN MVC No.1013/2012 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSES JUDGE AND MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR HEARING, THIS DAY, S. SUJATHA, J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is directed against the judgment and

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award dated 13.07.2015 passed in MVC No.1013/2012 by the XIII Additional Small Causes Judge and Member,

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Motor Accident Claims Tribunal, Bengaluru (‘Tribunal’ for short).

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The claimants filed petition under Section 166 of the Motor Vehicles Act, 1988 (‘Act’ for short) claiming compensation for the death of

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Sri. Siddharth Narayan in the road traffic accident that occurred on 31.07.2011.

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It was averred in the claim petition that on

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31.07.2011 at about 5.00 p.m., the deceased – Siddharth Narayan was traveling from Bengaluru to Devanahalli and Devanahalli to Doddaballapur in the Scorpio car bearing registration No.HR-26-AL-3592 (offending vehicle). When the car came near Moperahalli village, the driver of the said car drove it with high speed in a rash and negligent manner and abruptly applied the brake. Due to the impact, the deceased who was an occupant of the said car fell down on road and

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sustained grievous injuries and succumbed to the same while shifting to the hospital.

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It was contended that the deceased had completed his Engineering in Electricals and Electronics; he was aged about 21 years and was selected by the United Breweries Ltd., (U.B.L) in the campus selection and was working on probation. He had just completed his 12 days of work and his monthly salary was Rs.35,000/-.

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In response to the notice issued by the Tribunal, the owner – respondent No.1 and driver of the offending vehicle – respondent No.3 appeared through their counsel and filed common statement of objections. Insurer was represented by its counsel and statement of objections was filed denying the petition averments.

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The main defence of the respondent Nos.1 and 3 was that they were oblivious of the fact that the deceased was sitting on the top of the car at the time of accident.

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To avoid the head on collusion with the vehicle coming from opposite direction, respondent No.3 took the vehicle to the right side. By that time, the deceased who was on the top of the car fell down. Immediately, he was given the first-aid treatment and thereafter shifted to hospital at Doddaballapur, where the doctor declared that the deceased was brought dead. The accident, if any is only because of the negligent act of the deceased and there was no fault on the part of the respondent No.3. Further the offending vehicle was duly insured with the respondent No.2 and the respondent No.3 had valid driving licence and policy was in force.

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The insurer had admitted the coverage of the policy and contended that the liability if any is subject to the terms and conditions of the policy. The specific defence set up was that as per the police records, all the occupants of the car including the driver were under the influence of alcohol, as such there is breach of policy

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conditions and the insurer is not liable to indemnify the owner.

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On the basis of the pleadings, issues were framed and answered apportioning the contributory negligence of 50% on the deceased, awarding total compensation of Rs.11,35,000/- with interest at the rate of 8% per annum from the date of the petition till realisation saddling the liability on the insurer.

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Being aggrieved, the claimants are in appeal challenging the contributory negligence fixed on the deceased and seeking enhancement of compensation.

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Learned counsel for the claimants submitted

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that the Tribunal has fixed 50% of contributory negligence on the deceased wrongfully holding that the deceased was traveling on the roof top of the offending vehicle. The Tribunal has erred in departing from adopting the multiplier method and failed to assess

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compensation under the head of ‘loss of dependency’. The deceased was employed with the United Breweries Limited, Bengaluru and drawing the monthly salary of Rs.31,771/-. He was a B.E. graduate and had a bright future; hike in salary was certain. Hence, the compensation awarded by the Tribunal deserves to be enhanced substantially considering the dependency of the parents and the minor brother of the deceased.

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Learned counsel for the insurer submitted that the accident had occurred due to the sole negligent act of the deceased himself. The Tribunal fixed the contributory negligence only to an extent of 50%. In the cross-examination of PW.1, it was clearly admitted that both the parents were employed and they have not disclosed their salary. Indeed, the parents were not dependent on the deceased and hence no loss of dependency could be computed. The Tribunal awarded

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compensation only for loss of love and affection and loss

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of estate and the same requires to be confirmed.

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submissions of the learned counsel for the parties and

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perused the original records.

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12. The police records would disclose that the

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deceased was traveling on the roof top of the offending vehicle. Though it was pleaded by the respondent No.3 that in order to avoid the head on collusion with the vehicle coming from opposite direction, he took the vehicle to the right side of the road, the same is not corroborated by substantial evidence. Charge-sheet though has been filed against the driver of the offending vehicle, traveling on the roof top of the vehicle is nothing but negligence besides violation of the provisions of the Act and Rules. The contributory negligence on the part of the deceased is ex-facie apparent. Traveling on the top of the car in an intoxicated condition itself is suffice

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to hold that there was contributory negligence on the

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part of the deceased. Having analyzed the oral and documentary evidence, the Tribunal has rightly fixed 50% of contributory negligence on the deceased apportioning equal negligence on the driver of the offending vehicle. The finding of the Tribunal do not suffer from any infirmity or illegality in this regard.

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As could be seen from the records, the

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deceased was aged about 21 years and was working with the United Breweries Ltd., at the time of the accident. The appointment letter at Ex.P22 would indicate that the deceased was appointed as Trainee Engineer with the United Breweries Limited, Nelamangala. The training period was for a duration of 10 months from the date of joining. On successful completion of the training, permanent employment either by the said Company or any of its Associates in

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India would have been offered. In the backdrop of the said established facts, the Tribunal determined the monthly income of the deceased at Rs.30,000/- which in our opinion is justifiable. Further, the Tribunal reckoned the loss of estate denying loss of dependency since both the parents of the deceased were working and had their own independent income. The testimony of PW-1-1^st claimant would indicate that her husband was to retire from service by June 2014 and she had tax free income, but she deposed that she does not wish to give her salary details. The deceased had worked for just 14 days. Hence, it cannot be held that the earning parents were dependent on the deceased who was aged about 21 years and had worked for 14 days. The finding of the Tribunal on this aspect being in consonance with the evidence on record, we do not incline to interfere with the reasoning of the Tribunal in awarding loss to estate denying loss of dependency. However, the quantum of compensation towards loss of estate

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determined by the Tribunal at Rs.12,00,000/- and towards loss of love and affection at Rs.10,50,000/- as well as towards funeral expenses at Rs.20,000/certainly calls for interference in view of the latest judgments of the Hon'ble Apex Court wherein guidelines are enunciated for awarding compensation in motor vehicle accidents.

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The Division bench of this court in

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A.Manavalagan vs A. Krishnamurthy and Others reported in ILR 2004 KAR 3268 has categorically held that where the claim by the legal representatives of the deceased who were not dependants of the deceased, then the basis for award of compensation is the loss to the estate, that is the loss of savings by the deceased. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes multiplicand in the case of loss to estate. The method of

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selection of multiplier is however the same in both cases. Having regard to the income of the deceased and his qualification to secure the job, though he has worked only for 14 days, we deem it appropriate to consider 1/3^rd of his come towards savings which would have been the estate to the claimants. However, the compensation towards future prospects to the extent of 40% requires to be added to proceed further in determining the loss of estate. By adding so, the income would be Rs.42,000/-. If 1/3^rd is considered towards savings, applying the multiplier of 18, loss to estate would be Rs.30,24,000/- (Rs.14,000 x 12 x 18).

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In terms of the ruling of the Hon'ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others reported in (2017) 16 SCC 680 and New India Assurance Company Limited V/s. Somwati and Others reported in 2020 SCC ONLINE SC 720, the claimants are entitled to compensation of Rs.95,000/under the conventional heads viz.,

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Rs.80,000/towards loss of filial consortium

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(Rs.40,000/- to each parent) and Rs.15,000/- towards funeral expenses. Thus, total compensation would be Rs.31,19,000/-.

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In view of contributory negligence of 50% fixed on the deceased, the claimants shall be entitled to total compensation of Rs.15,59,500/as against Rs.11,35,000/- with interest @ 6% per annum on the enhanced compensation from the date of petition till realization.

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For the reasons aforesaid, the total

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compensation awarded by the Tribunal is re-assessed as under:

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Sl.No.	Particulars	Amount[in Rs.]
1.	Loss to estate	30,24,000/-
2.	Loss of Filial Consortium (Rs.40,000/- to each parent)	80,000/-
3.	Funeralexpenses	15,000/-
	Total	31,19,000/- 2
Less:Cont	ributorynegligence of50%	15,59,500/-
Less: Com	pensation awarded by the Tribunal	11,35,000/-
E	nhanced amount	4,24,500/-

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Thus, the claimants shall be entitled to total compensation of Rs.15,59,500/as against Rs.11,35,000/- with interest at the rate of 6% per annum on the enhanced compensation amount of Rs.4,24,500/- (15,59,500 – 11,35,000) from the date of the claim petition till the date of realization.

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Hence, the following

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ORDER

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i) The appeal is allowed in part.

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ii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.15,59,500/- (Rupees Fifteen lakhs fifty nine thousand five hundred only) as against Rs.11,35,000/- with interest at the rate of 6% per annum on the enhanced compensation amount from the date of the claim petition till its realization.

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iii) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact.

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iv) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.

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v) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.

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vi) Draw modified award accordingly.

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vii) The Registry shall transfer the original records to the jurisdictional Tribunal forthwith.

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viii) All pending I.As. stand disposed of.

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SD/-

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JUDGE