Partly allowed

Sri a M Shekharappa v. Mr N Vivek Shetty

Karnataka HC22 Jun 2021MFA/10361/2018

Case brief

AI extract

What is this about?

This High Court disposed of Motor Appeal No.5083/2017, 5084/2017, and 10361/2018 filed against awards passed by the Motor Claims Tribunal. The Court upheld sole negligence of the offending vehicle driver, re-assessed the deceased's income, and reduced the total compensation awarded under conventional heads and dependence heads.

What did the court decide?

Modifications in compensation awarded under MVC Nos. 642/2015 and 774/2015; reduction of amounts; MFA No.10631/2018 dismissed; insurance company directed to deposit revised amount.

Sri a M Shekharappa Vs Mr N Vivek Shetty — Execution and Attachment | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF JUNE, 2021

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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 E.S.INDIRESH

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M.F.A.No.5083/2017 C/w. M.F.A.No.5084/2017 & M.F.A.No.10361/2018 (MV)

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IN MFA No.5083/2017:

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BETWEEN :

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LEGAL MANAERBHARATHI AXA GIC LTD., IST FLOOR, FERNS ICON, SURVEY NO.28,DODDANEKUNDI, K.R.PURAM HOBLI, BANGALORE-560037. ...APPELLANT

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(BY SRI PRADEEP.B, ADV.)

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AND :

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SRI.T.NAGAMURTHI S/O THIPPERUDRAPPA, NOW AGED ABOUT 55 YEARS,

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SMT ERAMMA @ VEERAMMA W/O T.NAGAMRUTHI, NOW AGED ABOUT 50 YEARS,

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N.ASWINI D/O T.NAGAMRUTHI, NOW AGED ABOUT 19 YEARS,

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ALL ARE R/AT THENGINAGOWRA SAMUDRA VILLAGE, ASHOK SIDDAPURA POST,

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MOLAKALMURU TALUK, CHITRADURGA DISTRICT KARNATAKA-567235

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N.VIVEK SHETTY S/O VITHALARAI ARAI SHETTY, No.4401, NARIGUTTU HOUSE, SAJIPAMOODA POST, BANTWAL TALUK, MANGALORE-574211

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A.S SADASHIVA S/O A.M.SHANKARAPPA NOW AGED ABOUT 53 YEARS

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SINCE DEAD REP BY HIS LRS A.M.SHANKARAPPA.D S/O LATE MALLAPPA R/AT ANDENAHALLI VILLAGE, CHIKKANGALA POST, KADUR TALUK, CHIKKAMAGALUR. …RESPONDENTS

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(BY SRI A.SRINIVASAIAH, ADV. FOR R-1 TO R-3; SRI PRADEEP H.S., ADV. FOR R-4; R-5 – SERVED.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 18.03.2017 PASSED IN MVC No.642/2015 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE AND XXVIII ACMM, M.A.C.T., BENGALURU [SCCH-13], AN AWARD AMOUNT OF Rs.25,43,000/- WITH INTEREST AT 6% P.A., FROM THE DATE OF THE PETITION TILL THE DATE OF DEPOSIT.

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IN MFA No.5084/2017:

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BETWEEN :

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LEGAL MANAFGERBHARATHI AXA GIC LTD IST FLOOR, FERNS ICON SURVEY No.28, DODDANEKUNDI K.R.PURAM HOBLI BANGALORE-560037 ...APPELLANT

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(BY SRI PRADEEP.B, ADV.)

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AND :

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A.M.SHEKHARAPPA.D S/O LATE MALLAPPA AGED ABOUT 53 YEARS

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SMT.DRAKSHAYANAMMA W/O SHEKHARAPPA.D AGED ABOUT 48 YEARS

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BOTH ARE R/A ANDENAHALLI VILLAGE CHIKKANGALA POST, KADUR TALUK CHIKKAMAGALUR-577548.

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NANDISH.A.S. S/O SHEKARAPPA AGED ABOUT 28 YEARS R/A No.25, VARADENAHALLI DODDABALLAPURA BANGALORE RURAL-561203

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N.VIVEK SHETTY S/O VITHALARAI ARAI SHETTY No.4401, NARIGUTTU HOUSE SAJIPAMOODA POST BANTWAL TALUK MANGALORE-574211. …RESPONDENTS

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(BY SRI NINGARAJA.M.N., ADV. FOR R-1 TO R-3; R-5 – SERVED.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 18.03.2017 PASSED IN MVC No.774/2015 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE AND XXVIII ACMM, M.A.C.T., BENGALURU [SCCH-13], AN AWARD AMOUNT OF Rs.47,03,000/- WITH INTEREST AT 6% P.A., FROM THE DATE OF THE PETITION TILL THE DATE OF DEPOSIT.

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IN MFA No.10361/2018:

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BETWEEN :

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SRI.A.M.SHEKHARAPPA.D

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S/O. LATE. MALLAPPA, NOW AGED ABOUT 54 YEARS

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SMT.DRAKSHAYANAMMA W/O. SHEKHARAPPA, NOW AGED ABOT 49 YEARS

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BOTH ARE R/AT ANDENAHALLI VILLAGE, CHIKKANGALA POST, KADUR TALUK, CHIKKAMAGALUR 577 548

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SRI.NANDISH.A.S S/O. SHEKHARAPPA, NOW AGED ABOUT 29 YEARS R/AT No.25, VARADENAHALLI, DODDABALLAPURA, BANGALORE RURAL 5601203. ...APPELLANTS

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(BY SRI NINGARAJU.M.N., ADV.)

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AND :

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MR.N.VIVEK SHETTY S/O. VITHALARAI ARAI SHETTY, No.4401, NARIGUTTU HOUSE, SAJIPAMOODA POST, BANTWAL TALUK, MANGALORE 574 211

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THE MANAGER BHARATHI AXA GIC LTD., 1^ST FLOOR, FERN ICON SURVERY No.28, DODDANEKUNDI, K.R.PURAM HOBLI, BANGALORE-560037. …RESPONDENTS

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(BY SRI PRADEEP.B., ADV. FOR R-2;

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NOTICE TO R-1 IS DISPENSED WITH V/O DATED 22.06.2021.)

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CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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J U D G M E N T

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Since the appeals arise out of the same accident, they are clubbed, heard together and disposed of by this common judgment.

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These appeals are directed against the common judgment dated 18.03.2015 passed in MVC Nos.642 and 774/2015 on the file of the Motor Vehicles Accident Claims Tribunal, Bengaluru [SCCH-13] [‘Tribunal’ for short, arising out of the same accident.

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The claimants instituted two separate petitions under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the death of Basavaraju @ Basavaraj and Sadashiva.A.S.

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The gist of the case as pleaded in the claim petitions is as under:

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That on 16.01.2015 at about 12.00 noon., when the deceased N.Basavaraju @ Basavaraj and Sadashiva and others were proceeding in Tata Indica car bearing registration No.KA-51-A-5960 from Electronic City to Silk Board on Hosur – Bengaluru Elevated flyover, the left rear wheel of the car got punctured. It transpires that they parked the car on the right side of the road to attend to the punctured wheel. The owner of the car – Sadashiva was engaged in removing the punctured wheel and N.Basavaraju was standing behind the car and giving signals to the passing motor vehicles. At that time, one Audi car bearing registration No.KA-19-MD6262 [offending vehicle] driven by its driver in a rash and negligent manner has dashed to both the deceased due to which they sustained grievous injuries and succumbed to the said injuries on the way to the hospital.

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In MVC No.642/2015, it was averred that the deceased Sri.N.Basavaraju was earning Rs.15,000/p.m., In MVC No.774/2015, it was contended that the deceased was earning Rs.50,000/- p.m., as the owner of tempo traveler bearing registration No.KA-51-B-2127 and Tata Indica car bearing registration No.KA-51-A5960. In both the cases, it was contended that the claimants were entirely depending on the deceased on their livelihood. Due to the untimely death of the deceased, they are put to great financial hardship besides, loss of love and affection, dependency etc. On these set of grounds, the claimants sought for compensation alleging actionable negligence on the driver of the Audi car [offending vehicle].

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On service of notice, the registered owner

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and the insurer of the offending vehicle appeared through their learned counsel and contested the matter.

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The owner of the vehicle has filed the written

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statement disputing the cause of accident. It was contended that the Tata Indica car was parked in the right side of the road without taking proper measures to the riders of the other vehicles moving on the Hosur – Bengaluru Elevated Flyover which was busy with the heavy traffic. The deceased was standing in the middle of the road. Due to which, the alleged accident has occurred. It was further contended that the sole negligence of both the deceased in parking the vehicle on the right side of the road and standing in the middle of the road was the cause for the accident. The car being insured with the insurer and the policy was in force as on the date of the accident, as such, liability if any, has to be fixed on the insurer.

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The insurer has filed the written statement contending that the alleged accident occurred due to the sole negligence on the part of the driver of the Tata

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Indica car who parked the vehicle on the extreme right side of the road, without taking any precautionary measures. Admitting the issuance of the policy in respect of the offending vehicle, it was contended that the liability is subject to the terms and conditions of the policy inter alia taking the defence that the driver of the offending vehicle had no valid and effective driving licence at the time of the accident.

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On the basis of the pleadings, issues were formulated and answered allowing the petitions in part awarding total compensation of Rs.47,03,000/- in MVC No.774/2015 and Rs.25,43,000/- in MVC No.642/2015 with interest at the rate of 6% p.a., from the date of the petition till its deposit.

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Being aggrieved, the insurer has preferred MFA Nos.5083/2017 and 5084/2017 on the aspect of negligence and the quantum of compensation awarded

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by the Tribunal whereas the claimants in MVC

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No.774/2015 have preferred MFA No.10361/2018.

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Learned counsel appearing for the insurer argued that the Tribunal has failed to appreciate the material evidence on record. The documents on record would establish that the deceased was solely negligent in causing the accident. The driver of the Tata Indica car has parked his vehicle on the right side of the road without giving any signal. Appreciation of this material evidence in a right perspective would have clinched the issue. It is further argued that the Tribunal has committed palpable error in determining the monthly income of the deceased in MVC No.642/2015 Rs.24,000/- and Rs.12,000/- in MVC No.774/2015. In both the cases, the Tribunal has awarded 50% of the determined income towards future prospects. Further, the Tribunal erred in deducting 1/3^rd of the income

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towards personal and living expenses of the bachelors instead of 50%.

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Learned counsel appearing for the claimants in MVC No.774/2015 contended that the deceased owned two vehicles and was giving on hire. The Documentary evidence was placed on record to establish the same. Considering the material evidence on record, the Tribunal has rightly determined the monthly income and awarded 50% towards future prospects which is just and reasonable. MFA No.10361/2018 has been filed by this claimant seeking enhancement of compensation.

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Learned counsel appearing for the claimants in MVC No.642/2015 submitted that the monthly income of the deceased determined at Rs.12,000/- and adding 50% towards future prospects is based on the material evidence and the same does not call for any further reduction.

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However, learned counsel appearing for the

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claimants in both the cases though justified with the income determined by the Tribunal, submitted that the total compensation awarded by the Tribunal under the different heads is meager and the same requires to be enhanced substantially.

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As regards negligence aspect, it was submitted that the Tata Indica car was parked on the right side of the road at about 12.00 noon due to the unavoidable circumstances i.e., to change the punctured wheel which was punctured on the elevator road. There was no other option on the elevated flyover. As such, Sadashiva was attending to the punctured wheel whereas N.Basavaraju was indicating, giving signals to the passing on vehicles. It was mandatory on the part of the driver of the offending vehicle to look out on the road with care and caution. But unfortunately, the driver of the said offending vehicle has driven the

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vehicle with high speed in a rash and negligent manner and dashed to both the victims which resulted in their death. Police records would indicate the negligence of the driver of the offending vehicle. Having considered these material aspects, the Tribunal has rightly held that the accident in question occurred due to the sole negligence of the driver of the offending vehicle. Spot sketch at Ex.P4 and spot mahazar at Ex.P9 were referred to.

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We have given our careful consideration to

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the arguments advanced by the learned counsel for the parties and perused the material on record.

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The points that arise for our consideration

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are:

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1]. Whether the Tribunal is justified in holding that the accident had occurred solely due to the negligence of the driver of the offending vehicle – Audi car?

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2]. Whether the quantum of compensation awarded by the Tribunal is just and proper?

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Re. Negligence:

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It is trite that the sole negligence or contributory negligence for causing the accident has to be averred and proved by leading ample evidence. The entire case of the insurance company is based on Ex.R2 and R3 – sketch and mahazar to prove the factum of negligence of the deceased as alleged. As per the said sketch, Basavaraja was standing by the right side of the road at the place marked as ‘A’ giving signals to the other vehicles. The spot marked ‘B’ is the place where Sadashiva was removing the tyre. The spot ‘C’ was the place where Tata Indica car was stationed. The road was measuring about 25 feet in width. The tyre mark as per the sketch at Ex.P4 would disclose that the Audi car has dashed against Basavaraj and Sadashiva, moving from the left side towards the right side. Admittedly, Sadashiva was removing the punctured wheel whereas

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Basavaraja was giving signals to the other vehicles moving on the road. This act of the victims cannot be construed as negligence since the said vehicle got punctured on the Hosur – Bengaluru Elevated Flyover where no side-lanes are available to move the vehicle. It is unrealistic to expect victims to move the punctured vehicle further except to park it on the right side of the road in order to give way to the vehicles coming from left side. The sketch reveals that the Audi car has gone from

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the left side to the right side and dashed against the victims. In the circumstances, the view of the Tribunal in holding that the accident had occurred due to the sole negligence of the driver of the Audi car cannot be faulted with. Hence, the arguments advanced by the learned counsel for the insurer on this point is negated.

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Re. Quantum:

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MVC.No.642/2015: The Tribunal has

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determined the monthly income of the deceased at

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Rs.12,000/- considering that the profession of the deceased as a driver who was aged about 28 to 29 years at the time of the accident disbelieving the claim of the claimants that he was earning monthly income of Rs.15,000/- for want of material evidence. Relating to the accident of the year 2015, in the absence of cogent evidence to prove the factum of income, we deem it appropriate to re-determine the monthly income of the deceased at Rs.10,000/- and 40% would be the appropriate income to be awarded towards future prospects in terms of the judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others reported in (2017) 16 SCC 680 . Deduction of 1/3^rd of the income towards personal and living expenses of the deceased is not in conformity as per the legal principles set out by the Hon'ble Apex Court in the case of Sarla Verma And Others V/s. Delhi Transport Corporation And Another , reported in [2009] 6 SCC 121 and reiterated

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in Pranay Sethi supra. The Tribunal ought not to have deducted 50% towards the personal and living expenses of the bachelor in the circumstances of the case. Applying the same, the loss of dependency would work out to Rs.14,28,000/- [14,000 x 12 x 17 x ½].

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As regards compensation awarded under the conventional heads, the same calls for our interference in view of the dictum of the Hon'ble Apex Court in Pranay Sethi, supra and New India Assurance Company Limited v/s. Somwati and others reported in (2020) 9 SCC 644 . Accordingly, the total compensation is revised. Accordingly, the claimants are entitled to Rs.1,20,000/towards consortium; Rs.15,000/- towards loss of estate and Rs.15,000/towards funeral expenses.

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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 ofdependency	14,28,000/-
2.	Loss ofconsortium	1,20,000/-
3.	Loss of Estate	15,000/-
4.	Funeralexpenses	15,000/-
	Total	15,78,000/-

¶111

MVC.No.774/2015: The claimants have contended that the deceased possessed driving licence for MCWG, LMV, LMVCAB. The claimants relied on Ex.P15 issued by Janani Tours & Resorts Pvt. Ltd., to prove that vehicle bearing registration No.KA-51-A-5960 owned by the Sadashiva was given on monthly hire, attached to the said company and getting Rs.15,000/p.m. Further, Ex.P16 – six cash vouchers relating to vehicle bearing registration No.KA-51-B-2127 indicates that the said vehicle was attached to M.K.Travels. Ex.P17 the B-Register extract in respect of the vehicle No.KA-51-A-5960 and the vehicle No.KA-51-B-2127 were strongly relied upon. However, no author of the document Ex.P16 was examined. However, Ex.P17 being a document indicating the ownership of the

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deceased with respect to two vehicles, the monthly income was assessed by the Tribunal at Rs.24,000/- in our considered opinion, the said assessment is on a higher side. Merely for the reason of owning two vehicles sans proof of income determining the income at Rs.24,000/- p.m., cannot be countenanced. Having regard to the facts and circumstances of the case, we re-assess the monthly income of the deceased at Rs.15,000/-. The Tribunal erred in awarding 50% of the income towards future prospects. Hence, adding 40% towards future prospects, as per guidelines enunciated by the Hon'ble Apex Court in Pranay Sethi supra, we re-calculate the quantum of compensation deducting 50% towards personal and living expenses of the deceased which would work out to Rs.20,16,000/[Rs.21,000 x 12 x 16 x ½].

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As regards compensation awarded under the

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conventional heads, the same calls for our interference

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in view of the dictum of the Hon'ble Apex Court in Pranay Sethi, supra and New India Assurance Company Limited v/s. Somwati and others reported in (2020) 9 SCC 644 . Accordingly, the total compensation is revised. Thus, the claimants are entitled to Rs.80,000/towards consortium; Rs.15,000/- towards loss of estate and Rs.15,000/towards funeral expenses.

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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 ofdependency	20,16,000/-
2.	Loss ofconsortium	80,000/-
3.	Loss of Estate	15,000/-
4.	Funeralexpenses	15,000/-
	Total	21,26,000/-

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Thus, the claimants in MVC No.642/2015 shall be entitled to total compensation of

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Rs.15,78,000/- as against Rs.25,43,000/- and the claimants in MVC No.774/2015 shall be entitled to total

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compensation of Rs.21,26,000/as against

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Rs.47,03,000/- with interest at the rate of 6% per

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annum 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 filed by the insurance company in MFA No.5083/17 is allowed in part.

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ii) The total compensation awarded by the Tribunal in MVC No.642/2015 is modified and reduced to Rs.15,78,000/- (Rupees Fifteen Lakhs Seventy Eight Thousand only) as against Rs.25,43,000/- with interest at the rate of 6% per annum from the date of the claim petition till its realization.

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iii) The appeal filed by the insurance company in MFA No.5084/17 is allowed in part.

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iv) The total compensation awarded by the Tribunal in MVC No.774/2015 is modified and reduced to Rs.22,06,000/- (Rupees Twenty Two Lakhs Six Thousand only) as against Rs.47,03,000/- with interest at the rate of 6% per annum from the date of the claim petition till its realization.

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

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

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viii) Appeal filed by the claimants in MFA

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No.10631/2018 stands dismissed.

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ix) Draw modified award accordingly.

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x) The Registry shall transfer the amount in deposit along with the original records to the jurisdictional Tribunal forthwith, if found in excess shall be refunded to the insurance company after due identification, in accordance with law.

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xi) In view of disposal of the appeals, pending I.As, if any, stand disposed of.

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Sd/JUDGE

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Sd/JUDGE

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NC.

Sri a M Shekharappa v. Mr N Vivek Shetty

Case brief

What is this about?

What did the court decide?

Sri a M Shekharappa v. Mr N Vivek Shetty

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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