Partly allowed

B.N.Manjunath v. H.N.Abishekgowda

Karnataka HC22 Jun 2021MFA/2006/2013

Case brief

AI extract

What is this about?

An appellant challenged an award apportioning 40% negligence to the deceased and granting Rs.4,18,650 compensation. The High Court affirmed the negligence ratio but enhanced compensation to Rs.6,53,489 after correcting income calculation and applying appropriate multiplier.

What did the court decide?

Modified judgment to enhance compensation to Rs.6,53,489 with 6% interest directed to be deposited within 6 weeks.

B.N.Manjunath Vs H.N.Abishekgowda — Contract and Commercial Disputes | 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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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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MFA No.2006 OF 2013 (MV)

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BETWEEN :

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B.N.MANJUNATH

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SINCE DEAD REPRESENTED BY HIS

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LEGAL REPRESENTATIVES,

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1(a) SMT.PREMA W/O LATE B.N.MANJUNATHA AGED ABOUT 35 YEARS

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1(b) MASTER SHREYAS S/O LATE B.N.MANJUNATHA AGED ABOUT 14 YEARS

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1(C) KUMARI CHINCHANA D/O LATE B.N.MANJUNATHA AGED ABOUT 11 YEARS

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(SINCE APPELLANT NOS 1(b) AND 1(c) ARE MINORS ARE REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN APPELLANT NO.1(a)

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ALL ARE R/AT BETTADAMANE VILLAGE MUDIGERE TALUK CHIKMAGALUR DISTRICT-577 132.

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…APPELLANTS

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(BY SRI:M.RAJASHEKAR FOR M R S ASSTS, ADVOCATE)

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AND:

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H.N.ABISHEKGOWDA

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S/O MANJUNATHGOWDA

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AGED ABOUT 30 YEARS R/O MADNAPURA SAKALESHPURA TALUK HASAN DISTRICT-573 134.

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M/S ROYAL SUNDARAM ALLIANCE INS.CO.LTD., # 46, WHITES ROAD CHENNAI-600 014. ...RESPONDENTS

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(BY SRI:ARUN PONNAPPA, ADVOCATE FOR R2; NOTICE TO R1 DISPENSED WITH

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V/O DTD 24/6/2014)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.09.2012 PASSED IN MVC NO.293/2010 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, MEMBER, MACT, CHICKMAGALUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA IS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

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J U D G M E N T

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This appeal is filed by the claimants being aggrieved

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by the impugned judgment and award dated 11.09.2012 passed in MVC No.293 of 2010 by the learned Principal District Judge and MACT, Chikmagalur (for short ‘the Tribunal), in apportioning negligence on the part of deceased to an extent of 40% and awarding 60% compensation to the claimants and also challenging the quantum of compensation.

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The factual matrix of the case is that, on 22.02.2010 at about 10.10 a.m., when the deceased was proceeding in an autorickshaw bearing registration No.KA18/A-3648 at Chinniga village on Mudigere Sakaleshpura road, the accident took place due to rash and negligent driving of driver of Maruti Zen car bearing registration No.KA-03/ME-1992. Due to the impact, the deceased sustained grievous injuries and he was shifted to the hospital. After first aid treatment, he was again admitted to Thejaswini Hospital, Mangaluru. Thereafter, he took treatment in other hospitals. He had spent huge amount on medical expenses. However, during the pendency of the petition, he died on 26.10.2020. It is stated that he was earning Rs.8,000/- per month by driving the autorickshaw.

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Respondent No.1 was placed exparte.

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Respondent No.2 filed its written statement taking a defence that the said accident occurred only due to the

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rash and negligent driving of the autorickshaw by its driver.

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In order to substantiate the claim, the claimants got examined the wife of the deceased as PW1, the doctor as PW2 and one eye witness as PW3 and got marked Exs.P1 to P12. The respondents though took specific defence, have not led any evidence nor got marked any documents in support of their claim. The Tribunal after considering both the oral and documentary evidence came to the conclusion that the driver of autorickshaw has also contributed to the negligence to an extent of 40% and awarded 60% of compensation amount of Rs.4,18,650/- with 6% interest to the claimants. Hence, this appeal by the claimants.

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Heard the learned counsel appearing for both

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the parties and perused the materials placed on record.

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Learned counsel for the appellants contended

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that in the absence of any evidence led by respondent

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No.2, the Tribunal has committed an error in coming to the conclusion that the driver of autorickshaw has contributed to the negligence to an extent of 40% in causing the accident. He further submitted that the Tribunal has committed an error in taking the income of the deceased at Rs.4,500/- per month against the evidence that he was earning Rs.8,000/- per month. He further submitted that the compensation awarded by the Tribunal is very meager under all the heads. Hence, he prays for interference by this Court.

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Per contra, learned counsel for respondent No.2 vehemently contended that the Tribunal has not committed any error in apportioning the negligence on the part of the driver of autorickshaw to an extent of 40% in causing the accident. The Tribunal while considering the material on record, particularly, in paragraph 11 took note of both the oral and documentary evidence i.e., the IMV report, spot mahazar and rightly came to the conclusion that driver of the autorickshaw has contributed to the

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negligence to an extent of 40% in causing the accident. The autorickshaw was capsized. He further contended that the Tribunal has awarded only a sum of Rs.1,00,000/under the head pain and suffering. The deceased had taken treatment for a longer period and he died after eight months due to the injuries caused in the accident. Hence, he prays that no interference is called for.

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Having perused the grounds urged in the appeal and also after hearing the arguments, the points that would arise for my consideration is:

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“1. Whether the Tribunal has committed an error in apportioning the negligence on the part of the driver of autorickshaw to an extent of 40% in causing the accident?

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2. Whether the Tribunal committed an error in not awarding just and reasonable compensation? What Order?”

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Point No.1:-

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Having heard the respective counsels and also

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on perusal of the records, particularly, the evidence of PW3 who is stated to be eye witness to the incident, it is seen that PW3 has re-iterated that the accident was on account of sole negligence on the part of driver of the car in question. PW3 was subjected to cross examination. In the cross examination, it is elicited that he has not been cited as eye witness in a criminal case. He has admitted that he did not carry the injured immediately after the accident in an autorickshaw, but he called an Omni van and sent him in the said car. On perusal of the evidence of PW3, it can be seen that, first of all, he is not eye witness to the incident and he has not been cited as eye witness in the criminal case. He has also not shifted the injured to the hospital. When he was proceeding in an autorickshaw, he need not necessarily call an Omni van and send the injured in the car to the hospital.

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The other aspect that has to be considered by

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this Court is IMV report, which is marked as Ex.P4. On perusal of Ex.P4, it is clear that the Maruthi car was damaged and its rear right body, rear right bumper and right side body has scratched, whereas, the left side of the auto was completely damaged, windshield glass damaged and top roof structure was bent. Hence, having taken note of the damage that had occurred to the Maruti car and auto, the auto was capsized and caused damages to the autorickshaw. All these aspects have been considered by the Tribunal while assessing the negligence on the part of the driver of the autorickshaw also. No doubt, the Insurance Company took specific defence in the written statement that the accident was on account of sole negligence on the part of driver of the autorickshaw but has failed to adduce any evidence to corroborate the same. Even in the absence of any evidence also, considering the material available on record, the Tribunal has come to the conclusion that the driver of the autorickshaw contributed negligence to the extent of 40%.

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In view of the discussion made by the Tribunal and having taken note of the evidence of PW.3 and so also Ex.P4, it is clear that the Tribunal has not committed any error in apportioning the negligence in the ratio of 40:60 and hence, I do not find any force in the contention of the learned counsel for the appellants that the Tribunal has committed an error in apportioning the negligence to the extent of 40% on the part of the driver of the autorickshaw. Accordingly, I answer point No.1 in the negative.

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Point No.2:-

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Insofar as the quantum of compensation is concerned, it is important to note that the accident was taken place in the year 2010 and the deceased was aged about 36 years and his occupation was an auto driver. The Tribunal has taken the income of the claimant at Rs.4,500/- per month and failed to take note of the fact that Ex.P9-the driving licence is also produced in support of the claim of the claimants that the deceased was an

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auto driver. It is also important to note that when he was having the driving licence to drive the autorickshaw, the Tribunal ought to have considered the said the income as well. In the case on hand, the income of the deceased was taken at Rs.4,500/- per month. In the absence of any documentary proof, when the accident has taken place in the year 2010, the notional income to be taken is Rs.5,500/- per month. Ex.P9 also discloses that he was having a special skill of driving and also possessed the valid driving licence.

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The Division Bench of this Court in MFA No.4151/2017 vide order dated 06.02.2020, held that an amount of Rs.1,500/- is to be added to the income of the deceased if he holds a driving licence apart from being the owner of the auto rickshaw. If the same is considered, the income of the claimant would come to Rs.7,000/- per month. Having taken the income of the deceased at Rs.7,000/- per month and age being 36 years, 40% of the income is to be added towards ‘future prospects’. The

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claimants are the wife and children of the deceased and hence, 1/3^rd of the income of the deceased is to be deducted. By applying the relevant multiplier as 15, the loss of dependency is recalculated as hereunder:-

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*Particulars*	*Amount*
Monthly income now taken	Rs.7000/-
Add: future prospects at 40%	Rs.2800/-
Total	Rs.9800/-
Less: 1/3^rdtowards personal expenses	Rs.3267/-
Actual monthly income	Rs.6,533/-
Multiplier	15
65331215=	Rs.10,19,148/-
Loss of dependency	Rs.10,19,148/-
Conventional heads	Rs.70,000/-
Total	Rs.10,89,148/-
Compensation awarded by Tribunal	Rs.4,18,650/-
Total enhancement	Rs.6,70,498/-

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Thus, in all, the claimants are entitled for the compensation to the tune of Rs.10,89,148/- with interest at the rate of 6% per annum from the date of petition till realization.

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After deducting 40% towards negligence, the

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compensation for which the claimants are entitled to is Rs.6,53,489/-.

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In view of the discussion made above, I pass the following:-

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ORDER

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(i) The appeal is allowed in part.

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(ii) The judgment and award of the Tribunal is modified by granting compensation to the tune of Rs.6,53,489/- with interest at the rate of 6% per annum from the date of petition till realization as against Rs.4,18,650/-.

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(iii) The respondent-insurance company is directed

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to deposit the amount within 6 weeks’ from today.

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(iv) Registry to transmit the Trial Court Records to

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the concerned Tribunal, forthwith.

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Sd/JUDGE

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*bgn/PYR

B.N.Manjunath v. H.N.Abishekgowda

Case brief

What is this about?

What did the court decide?

B.N.Manjunath v. H.N.Abishekgowda

Case brief

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What did the court decide?

What the court decided

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