Partly allowed

Smt Laxmi Purushothama v. Mohammed Souban

Karnataka HC6 Nov 2020MFA/4651/2016

Case brief

AI extract

What is this about?

The High Court modified an award for motor accident compensation. It upheld the 20% contributory negligence apportionment against the deceased. However, it found the Tribunal erred in deducting only one-third for personal expenses for a bachelor and in not adding sufficient amount for future prospects, adjusting the final compensation quantum.

What did the court decide?

The total compensation is reduced to Rs.15,82,000 but further reduced to Rs.12,65,600 after applying 20% contributory negligence, to be deposited by the insurance company within 90 days.

Smt Laxmi Purushothama Vs Mohammed Souban — Motor Accident Claims | Karnataka HC (2020)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 6^TH DAY OF NOVEMBER, 2020

¶3

PRESENT

¶4

THE HON’BLE MRS.JUSTICE S.SUJATHA

¶5

AND

¶6

THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

¶7

M.F.A.No.5734/2016 c/w M.F.A.No.4651/2016 (MV)

¶8

IN M.F.A.No.5734/2016:

¶9

BETWEEN :

¶10

NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE: SHANKAR BUILDING, MASJID ROAD, UDUPI, BY ITS BRANCH MANAGER, REP BY REGIONAL OFFICE, M.G.ROAD, BANGALORE BY ITS REGIONAL MANAGER

¶11

...APPELLANT

¶12

(BY SMT.H.R.RENUKA, ADV.)

¶13

AND :

¶14

1 . LAXMI PURUSHOTHAM NAIKAR W/O LATE PURUSHOTHAMA NAIKAR, AGED ABOUT 58 YEARS

¶15

2 . KUMARI PADMAVATHI D/O LATE PURUSHOTHAMA NAIKAR, AGED ABOUT 28 YEARS

¶16

- 2 -

¶17

3 . KUMARI SUVARNA D/O LATE PURUSHOTHAMA NAIKAR, AGED ABOUT 26 YEARS

¶18

4 . YOGENDRA S/O LATE PURUSHOTHAMA NAIKAR, AGED ABOUT 30 YEARS

¶19

5 . MAHENDRA S/O LATE PURUSHOTHAMA NAIKAR, AGED ABOUT 32 YEARS ALL ARE R/O ALIVEKODI SHIRUR POST & VILLAGE, KUNDAPURA TALUK-576227

¶20

6 . MOHAMMED SOUBAN S/O JAMEL HUSSAIN DAMDA ABU, ADULT, R/O H.NO.5, JAMIA STREET, SOOSAGADI WARD-16, BHATKAL TALUK U.K.DISTRICT-581254 …RESPONDENTS

¶21

(BY SRI NAGARAJ, ADV. FOR R-1 TO R-5; R-6 SERVED.)

¶22

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 17.02.2016 PASSED IN MVC No.929/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL MACT, KUNDAPURA, AWARDING A COMPENSATION OF Rs.17,84,000/(i.e., 80% OF 22,30,000/-) WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT WITH THE TRIBUNAL.

¶23

IN M.F.A.No.4651/2016:

¶24

BETWEEN :

¶25

1 . SMT.LAXMI PURUSHOTTAMA W/O LATE PURUSHOTTAMA NAIKAR, AGED ABOUT 58 YEARS

¶26

- 3 -

¶27

2 . KUMARI PADMAVATHI D/O LATE PURUSHOTTAMA NAIKAR, AGED ABOUT 28 YEARS 3 . KUMARI SUVARNA D/O LATE PURUSHOTTAMA NAIKAR, AGED ABOUT 26 YEARS 4 . SRI YOGENDRA S/O LATE PURUSHOTTAMA NAIKAR, AGED ABOUT 30 YEARS 5 . SRI MAHENDRA S/O LATE PURUSHOTTAMA NAIKAR, AGED ABOUT 32 YEARS ALL ARE R/AT ALIVEKODI SHIRUR POST & VILLAGE, KUNDAPURA TALUK-576227 ...APPELLANTS

¶28

(BY SRI NAGARAJA HEGDE, ADV.)

¶29

AND :

¶30

1 . MOHAMMED SOUBAN S/O JAMEEL HUSSIAN DAMDA ABU, MAJOR, R/AT H.NO.05, JAMIA STREET, SOOSAGADI, WARD-16, BHATKAL TALUK, U.K.DISTRICT-582103. 2 . THE NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, SHANKAR BUILDING, MASJID ROAD, UDUPI-576101, REP. BY ITS DIVISIONAL MANAGER. …RESPONDENTS

¶31

(BY SMT.H.R.RENUKA, ADV. FOR R-1; R-1 SERVED.)

¶32

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 17.02.2016 PASSED IN MVC No.929/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE & MEMBER, MACT, KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶33

¶34

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

¶35

J U D G M E N T

¶36

The Insurance Company and the claimants are in

¶37

appeal challenging the judgment and award passed in MVC No.929/2013 by the Senior Civil Judge and Addl. MACT, Kundapura (‘Tribunal’ for short).

¶38

The claimants preferred petition under Section 166 of the Motor Vehicles Act, 1988 ['Act' for short] claiming compensation for the death of Sudhindra Purushottama Naikar in a road traffic accident which occurred on 27.08.2013.

¶39

It was averred in the claim petition that on

¶40

27.8.2013 at about 19.30 hours, while the deceased Sudhindra Purushottama Naikar was riding the motor cycle bearing Reg. No.KA-47-K-6893 from Bhatkala side to Shirali side, near Kargadde cross, Bhatkala, a motor cycle bearing Reg. No.KA-47-K-2910 (offending vehicle)

¶41

¶42

came in a rash and negligent manner and dashed to the motor cycle ridden by the deceased Sudhindra Purushottama Naikar. Due to the said impact, the deceased Sudhindra Purushottama Naikar sustained fatal injuries and he was shifted to Government hospital, Bhatkala, wherein he was declared as dead.

¶43

It was contended by the claimants that the

¶44

deceased was a brilliant student and a Bharatanatyam teacher in Sri. Marikamba Dance School, Shirali and he was awarded prizes by the various institutions and getting Rs.25,000/per month by presenting Bharatanatyam performances. Due to the untimely death of the deceased, the claimants viz., mother and siblings of the deceased Sudhindra Purushottama Naikar have suffered great shock and mental agony. In these set of facts, compensation was sought by the claimants.

¶45

¶46

In response to the notice issued by the

¶47

Tribunal, the insurer as well as the owner of the offending vehicle appeared and contested the claim. The appellant-insurer has denied the petition averments and contended that the rider of the motor cycle bearing Reg.No.KA-47-K-2910 had no valid and effective Driving Licence, as such the insurer is not liable to pay the compensation. However, coverage of the insurance policy in respect of the offending vehicle was admitted and asserted that the liability is subject to the terms and conditions of the policy. It was specifically contended that the accident took place due to the negligence of the deceased.

¶48

The claimant, one of the legal representative

¶49

of the deceased Sudhindra Purushottama Naikar had filed MVC No.424/2014 claiming compensation for the damages caused to the motor cycle bearing Reg. No.KA47-K-6893 in the accident in question. Both the matters

¶50

¶51

were clubbed, heard together and disposed of by a common judgment.

¶52

On the basis of the pleadings, issues were

¶53

framed and answered as per the reasons recorded in the impugned judgment. MVC No.929/2013, the subject matter of the present appeal was partly allowed by the Tribunal determining the total compensation at Rs.22,30,000/- with interest @ 6% p.a. from the date of petition till the date of deposit.

¶54

The Tribunal attributed 20% contributory negligence on the part of the deceased. Accordingly, the appellant-insurer has been directed to pay 80% of the compensation amount of Rs.22,33,000/-, i.e., Rs.17,84,000/- with interest as aforesaid.

¶55

Being aggrieved, the appellant-insurer is in

¶56

appeal challenging the apportionment of negligence as well as the quantum of compensation awarded, whereas

¶57

¶58

the claimants are in appeal seeking for enhancement of

¶59

compensation.

¶60

Learned counsel for the appellant-insurer

¶61

argued that the rider of the motor cycle (deceased) did not possess the Driving Licence and the same has been admitted by the mother of the deceased during the course of cross examination. Hence, the Tribunal ought to have fixed the negligence on the deceased in its entirety. As regards the quantum, it was argued that the income of the deceased determined by the Tribunal at Rs.15,000/- per month is not based on valid evidence. No cogent or corroborative evidence was placed by the claimants to substantiate the factum of income. The Tribunal erred in deducting 1/3^rd of the income of the deceased towards personal expenses. As the deceased was a bachelor, deduction of 50% of the income ought to have been made towards personal expenses of the

¶62

¶63

deceased. Accordingly, learned counsel sought for allowing the appeal on these grounds.

¶64

Learned counsel for the claimants submitted

¶65

that the Tribunal failed to consider the vital aspects in determining the monthly income of the deceased. The deceased was a brilliant scholar at the young age of 19 years. He has excelled himself as a bright student and an artist of Bharatanatyam. He was teaching Bharatanatyam dance and earning Rs.25,000/- per month. He was a skilled artist and had given Bharatanatyam presentation across the State and was awarded with number of prizes. Substantial evidence was placed on record to establish the same. Despite the cogent evidence made available on record, the Tribunal has determined the monthly income of the deceased at Rs.15,000/-. It was submitted that the Tribunal on analyzing the material evidence, has deducted 1/3^rd

¶66

10 -

¶67

towards the personal expenses of the deceased and the same requires to be confirmed.

¶68

It was further argued that the accident in

¶69

question took place due to the sole negligence of the driver of the offending vehicle. The Tribunal failed to appreciate the crucial document Ex.P2 in a right perspective. Fixing 20% contributory negligence on the part of the deceased is not reasonable and the same requires to be modified saddling the entire liability on the appellant-insurer considering the sole negligence of the driver of the offending vehicle for causing the accident.

¶70

We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the original records.

¶71

As regards the negligence, it is discernable that the accident in question has taken place near

¶72

- 11 -

¶73

Kargadde cross. The topography of spot of accident available as per Ex.P2 indicates that the accident has occurred 2 feet towards western side from the road divider, whereas the width of the road was 24 feet. This document would be crucial to determine the negligence aspect supported by the evidence of PW.2, an eyewitness. No rebuttal evidence is let in by the insurer to discard the same. Analyzing the oral and the documentary evidence, the Tribunal has rightly attributed negligence to the extent of 20% on the deceased which do not call for any interference by this court.

¶74

As regards the quantum of compensation, it is perspicuous to note that the deceased was aged about 19 years and he has completed Bharatanatyam junior grade course and was working as a dance teacher. Voluminous number of certificates and photographs are produced by the claimants to demonstrate that the deceased was a Bharatanatyam artist and has given several

¶75

12 -

¶76

presentations. Ex.P6, the certificate issued by the Marikamba Dance School, Shirali, fortifies the claim of the claimants. Considering the talent and the merit of the deceased as an artist and a bright student, the Tribunal has notionally determined the monthly income at Rs.10,000/-. Though we do not find any reason to interfere with the monthly income determined notionally by the Tribunal, adding 50% towards the future prospects certainly warrants interference by this court. Further, the Tribunal has deducted 1/3^rd of the income towards personal expenses of the deceased. It is well settled principle of law that 50% of the income requires to be deducted towards personal expenses of the deceased in the case of a bacherlor in terms of the judgment of the Hon'ble Apex Court in Sarla Varma and others vs. Delhi Transport Corporation and another reported in 2009 ACJ 1298 reiterated in National Insurance Company Limited Vs. Pranay

¶77

Sethi and others ((2017)16 SCC 680.)

¶78

- 13 -

¶79

Applying the guidelines enunciated by the

¶80

Hon'ble Apex Court in Pranay Sethi, supra, 40% of the income requires to be added towards future prospects. Applying the multiplier of 18, deducting 50% towards personal expenses of the deceased, loss of dependency would work out to Rs.15,12,000/- (Rs.10,000/- + Rs.4,000/- x 12 x 18 x ½).

¶81

The claimants are entitled to Rs.70,000/-

¶82

towards the conventional heads in terms of Pranay

¶83

Sethi , supra.

¶84

Sl.No.	Particulars	Amount [in Rs.]
1.	Loss ofdependency	15,12,000
2.	Loss of filial Consortium	40,000
3.	Loss of Estate	15,000
4.	Funeralexpenses	15,000
	Total	15,82,000

¶85

The claimants are entitled to total compensation of Rs.15,82,000/-. However, in view of 20% of

¶86

contributory negligence apportioned on the deceased, claimants shall be entitled to 80% of the total

¶87

14 -

¶88

compensation of Rs.15,82,000/- which would work out to Rs.12,65,600/-.

¶89

Thus, the claimants shall be entitled to Rs.12,65,000/- with interest @ 6% p.a. from the date of petition till its realization.

¶90

Hence, the following:

¶91

ORDER

¶92

i) The appeal filed by the Insurance Company in MFA.No.5734/2016 is allowed in part and the appeal filed by the claimants in MFA.No.4651/2016 is dismissed.

¶93

ii) The total compensation awarded by the Tribunal is modified and reduced to Rs.15,82,000/- as against Rs.22,30,000/-. However, in view of 20% contributory negligence apportioned on the part of the deceased, the claimants shall be entitled to total compensation of Rs.12,65,600/- with interest at the rate of 6% per annum from the date of the claim petition till its realization.

¶94

15 -

¶95

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

¶96

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.

¶97

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

¶98

vi) Draw modified award accordingly.

¶99

vii) The Registry shall transfer the amount in deposit with original records to the jurisdictional Tribunal forthwith.

¶100

Sd/JUDGE

¶101

Sd/JUDGE

¶102

Dvr:

Smt Laxmi Purushothama v. Mohammed Souban

Case brief

What is this about?

What did the court decide?

Smt Laxmi Purushothama v. Mohammed Souban

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The Branch Manager Vs M Vasanthi

Smt. Uma L Vs the Divisional Controller

Shriram General Insurance Company Ltd. Vs Kubendra

Mr. Thomas V.V Vs the Managing Director

The Legal Executive Vs Smt Sharmila

Sharmila Vs Basavaraju