Partly allowed

Nagarathnamma v. Hanumantha Reddy

Karnataka HC11 Oct 2022MFA/1043/2014

Case brief

AI extract

What is this about?

Motor Vehicle Accident appeals challenging the Tribunal's apportionment of contributory negligence (70/30 vs 50/50) and quantum of compensation. The High Court set aside the Tribunal's negligence ratio and enhanced compensation for both claims by correcting age assumptions and income calculations.

What did the court decide?

Contributory negligence apportioned 50% each; compensation enhanced to Rs.16,25,300/- and Rs.11,35,800/- with 6% interest.

Nagarathnamma Vs Hanumantha Reddy — Contract and Commercial Disputes | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF OCTOBER, 2022

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BEFORE

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

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M.F.A.NO.1042/2014 (MV-D) C/W. M.F.A.NO.1043/2014 (MV-D)

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IN M.F.A.NO.1042/2014 (MV-D):

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BETWEEN:

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P. SHOBHA @ BHAVYA W/O. LATE YELLAPPA, AGED ABOUT 27 YEARS

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MANOJ KUMAR

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S/O. LATE YELLAPPA AGED ABOUT 4 YEARS,

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NANJUNDAPPA S/O. LATE RAMAIAH AGED ABOUT 57 YEARS,

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JAYAMMA

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W/O. NANJUNDAPPA, AGED ABOUT 52 YEARS,

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ALL ARE RESIDING AT 2^ND CROSS NEAR GOTTIGERE YELLAMMA TEMPLE BANNERGATTA ROAD, BENGALURU.

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5. BHUVANESH

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S/O. LATE YELLAPPA, AGED ABOUT 3 YEARS, R/AT 244, VENUGOPALNAGAR, HULIMAVU, BENGALURU -560 683.

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2^ND AND 5^TH APPELLANTS SINCE MINOR REPRESENTED BY HER MOTHER P. SHOBHA @ BHAVYA. … APPELLANTS

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(BY SRI S.R.SREEPRASAD, ADVOCATE FOR APPELLANT NOS.1, 2 & 5 [APPELLANT NOS.2 & 5 ARE MINORS REPRESENTED BY APPELLANT NO.1])

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AND:

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HANUMANTHA REDDY NO.7, CHOWDESHWARI LAYOUT, 7^TH MAIN, 80 FEET ROAD, SUBBAIHAHNAPALYA, BANASWADI, BENGALURU-560037.

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ROYAL SUNDARAM ALLIANCE INSURANCE CO. LIMITED REGIONAL OFFICE BY ITS REGIONAL MANAGER, NO. 186/7, RAGHAVENDRA COMPLEX, WILSON GARDEN, 1^ST CROSS, HOSUR MAIN ROAD BENGALURU-560 023.

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V.J.M MUNIKRISHNAPPA S/O. SRINIVAS, NO.281, THIRUMAGONDANAHALLI, ANEKAL TALUK-561 201 BENGALURU DISTRICT. ... RESPONDENTS

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(BY SRI C.R.RAVISHANKAR, ADVOCATE FOR SRI K.SURYANARAYANA RAO, ADVOCATE FOR R2; SRI S.BALAN, ADVOCATE FOR R3; VIDE ORDER DATED 13.01.2015, NOTICE TO R1 IS DISPENSED WITH)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.12.2012 PASSED IN MVC NO.4134/2011 ON THE FILE OF THE I ADDL. SCJ & MACT,(SCCH-11), BENGALURU, PARTLY ALLOWING THE

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CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.NO.1043/2014 (MV-D):

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BETWEEN:

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NAGARATHNAMMA W/O. LATE RAMAPPA, AGED ABOUT 49 YEARS,

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R. NARASIMHAMURTHY S/O. LATE RAMAPPA, AGED ABOUT 27 YEARS,

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BOTH ARE RESIDING AT NO.3-329, SRINIVAS IYENGAR STREET, BAGALUR, HOSUR.

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R. HARISH S/O. LATE RAMAPPA, AGED ABOUT 21 YEARS, R/AT NO.3/95, M.G. ROAD, FORT BAGALUR VILLAGE, HOSUR TALUK, KRISHNAGIRI DISTRICT-561201 PRESENTLY RESIDING AT NO.5, 2^ND CROSS, SARJAPUR, BENGALURU. … APPELLANTS

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(BY SRI M.PRAKASHA, ADVOCATE FOR SRI N.R.NAIK, ADVOCATE)

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AND:

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HANUMANTHA REDDY NO.7, CHOWDESHWARI LAYOUT, 7^TH MAIN, 80 FEET ROAD, SUBBAIHAHNAPALYA, BANASWADI, BENGALURU-560037.

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ROYAL SUNDARAM ALLIANCE INSURANCE CO. LIMITED REGIONAL OFFICE BY ITS REGIONAL MANAGER, NO. 186/7, RAGHAVENDRA COMPLEX, WILSON GARDEN, 1^ST CROSS, HOSUR MAIN ROAD BENGALURU-560 023

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3 . V.J.M MUNIKRISHNAPPA S/O. SRINIVAS, NO.281, THIRUMAGONDANAHALLI, ANEKAL TALUK-561201 BENGALURU DISTRICT. ... RESPONDENTS

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(BY SRI C.R.RAVISHANKAR, ADVOCATE FOR SRI K.SURYANARAYANA RAO, ADVOCATE FOR R2; SRI S.BALAN, ADVOCATE FOR R3; NOTICE TO R1 IS DISPENSED WITH VIDE ORDER DATED 13.01.2015)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.12.2012 PASSED IN MVC NO.4136/2011 ON THE FILE OF THE I ADDL. SCJ & MACT, BENGALURU (SCCH-11), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION

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

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J U D G M E N T

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Heard the learned counsel for the appellants and learned

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counsel for the respondents.

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These two appeals are filed by the claimants

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challenging the judgment and award passed in

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M.V.C.Nos.4134/2011 and 4136/2011 dated 21.12.2012 on the file of the Motor Accident Claims Tribunal, Bengaluru, (SCCH-11) questioning the contributory negligence as well as the quantum of compensation awarded by the Tribunal.

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The factual matrix of the case of the claimants before the Tribunal is that on 27.03.2011 at about 6.30 p.m., both the deceased were proceeding in the motorcycle as rider and pillion rider. At that time, rider of the motorcycle bearing No.KA-05-ES-2337 came from behind and dashed against the motorcycle in which the deceased were proceeding. As a result, both of them fell down. At that time, suddenly Mahindra Xylo car bearing registration No.KA-03-MK-7652 came with high speed in a rash and negligent manner and dashed against both of them. As a result, both of them succumbed to the injuries and hence, respective legal heirs have made the claim before the Tribunal.

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It is the claim of the claimants in their respective claim petition that deceased Yellappa was doing Centering work and earning Rs.12,000/- per month and the deceased Ambarish was working as Bar Bender and earning Rs.9,000/- per month.

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On account of untimely death of the deceased, the families have lost their income.

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In order to substantiate the claim of the claimants, they have examined the witnesses as P.Ws.1 and 2 and got marked the documents as Exs.P1 to P15(a). On the other hand, the respondents have examined the witnesses as R.Ws.1 and 2 and no documents are marked by the respondents.

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The Tribunal, after considering both oral and documentary evidence placed on record, allowed the claim petition in part and while awarding compensation apportioned the contributory negligence to the extent of 70% on the rider of the motorcycle and 30% on the driver of the xylo car. Being aggrieved by the apportionment of contributory negligence as well as the quantum of compensation, the present two appeals are filed by the claimants.

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The claimants in M.F.A.No.1043/2014 are the mother and two children of the deceased. It is the contention of the claimants that the Tribunal has committed an error in apportioning the contributory negligence to such an extent and

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the Tribunal has not awarded any compensation towards future prospects. Apart from that, the Tribunal has taken the income at Rs.4,000/- per month. Hence, it requires interference of this Court.

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The claimants in M.F.A.No.1042/2014 are wife, two minor children and the parents of the deceased. It is the contention of the claimants that the Tribunal has not awarded just and reasonable compensation and only Rs.10,000/- is awarded under conventional heads and income was taken only at Rs.4,000/- per month. It is also their contention that the Tribunal committed an error in taking the multiplier of ‘15’ instead of ‘17’. It is also the contention of the claimants in M.V.C.No.4136/2011 that though the deceased was 22 years, the Tribunal, instead of taking the multiplier 18, taken the multiplier as 16. Hence, the Tribunal has committed an error.

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Per contra, learned counsel for the respondents would vehemently contend that the driver of the xylo car cannot expect that two motorcyclist are going to hit each other and driver of the xylo car was also proceeding on the very same direction and unexpectedly, the deceased persons fell down

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hitting each other and the accident has occurred and the Tribunal has considered the said fact into consideration and rightly apportioned the negligence at 30%. Hence, it does not require any interference. The counsel also would submit that, in the absence of documentary evidence, the Tribunal has rightly taken the income at Rs.4,000/- per month and it does not require any interference.

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Having heard the respective counsel and also on perusal of the material available on record in both the appeals, the points that would arise for consideration of this Court are:

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(i) Whether the Tribunal has committed an error in apportioning the contributory negligence at 30% and 70% and whether it requires interference?

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(ii) Whether the Tribunal has committed an error in not awarding just and reasonable compensation in both the claim petition and whether it requires interference?

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(iii) What order?

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Point No.(i)

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Having heard the respective counsel and also on

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perusal of both oral and documentary evidence placed on record,

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it is the contention of the claimants before the Tribunal that both the deceased were proceeding in the motorcycle on 27.03.2011 at 6.30 p.m. on NH-4 of Hosur-Bengaluru Road and at that time, the rider of the offending motorcycle came from behind and dashed against them. As a result, both the victims fell down and at that time, driver of the xylo car, who drove the vehicle in a rash and negligent manner caused accident and ran over both of them. As a result, they succumbed to the injuries.

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In order to prove the contention of the claimants, the first claimants in both the claim petitions have examined themselves as P.Ws.1 and 2 and none of the eye witnesses are examined before the Tribunal. On the other hand, the owner of the motorcycle examined himself as R.W.1 and in his affidavit, he has stated that he was not riding the vehicle and he has not caused the accident and denied the accident. But, in the crossexamination, he admits that the vehicle belongs to him. He also admits that he has no knowledge of the registration of the case against him and there was no policy and in the crossexamination made by the learned counsel for respondent No.2, it is elicited that vehicle belongs to him and he uses the very same

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vehicle regularly and he is having driving license and also at the time of the accident, he was alone. Hence, it is clear that though he denied the accident and he was not riding the vehicle, his admission is very clear that he was riding the motorcycle. Hence, he has given a false evidence before the Court denying the accident that he was not riding the vehicle. He also admits that the police have called him and enquired with regard to the accident. The other witness R.W.2 is the driver of the xylo car and he also disputes the very accident. But, he admits that he has given information to the police and also admits that chargesheet is filed against him. He also admits that he has not challenged the said filing of the chare-sheet against him and that he has not given any complaint.

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Having considered both oral and documentary evidence placed on record, I have already pointed out that the P.Ws.1 and 2 are not eye witnesses but, involvement of three vehicles in the accident is not in dispute. It is also not in dispute that both the victims were proceeding in the motorcycle and other motorcyclist came from behind and hit the victims. As a result, both of them fell down and other ongoing vehicle i.e.,

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xylo car ran over both the victims and as a result, they succumbed to the injuries.

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Having perused the evidence of R.Ws.1 and 2, they

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have not approached the Court with clean hands and they have denied the very accident. But, in the cross-examination of R.W.1, he has categorically admitted that he was riding the motorcycle at the time of the accident and that he was alone. R.W.2, the owner of the xylo car also denies the accident but, categorically admits that charge-sheet is filed against both of them.

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The Tribunal, while apportioning contributory negligence on the part of the rider of the motorcycle as well as the driver of the xylo car, in Para No.29, apart from making discussion with regard to issue No.1, apportioned the contributory negligence to the extent of 70% and 30% and while coming to such a conclusion, the Tribunal has observed that there was rash and negligence on the part of the motorcycle as well as the driver of the xylo car but, while apportioning the contributory negligence, while giving finding comes to the conclusion that the Tribunal can presume that there is negligent

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act on the part of the rider of the motorcycle at 70% and driver of the xylo car at 30%. However, while arriving at such a conclusion, not taken note of the panchanama which is marked as Ex.P3, wherein the details of the blood stains were found on the road has been categorically mentioned. The IMV report which is marked as Ex.P5 also discloses that there are scratch marks on the vehicle KA-03-MK-7652 i.e., xylo car and more damages are caused to the motorcycle as well.

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Having taken note of the panchanama at Ex.P3 and also Exs.P4 and P5 and considering the damages caused to both the vehicle, normally, heavy vehicle would sustain less damages compared to a two wheeler. Both R.Ws.1 and 2 have not deposed anything about contributory negligence and both of them have totally denied the accident. When such being the case, the Tribunal ought to have taken note of the fact that charge-sheet is filed against both of them and involvement of three vehicles in the accident and the damages caused to the vehicles. When they have not come up with the evidence with regard to the negligence on their part, the Tribunal ought to

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have taken note of the filing of the charge-sheet against both the rider of the motorcycle as well as the driver of the xylo car.

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I have already pointed out that both the rider of the motorcycle as well as the driver of the xylo car have contributed to the accident on account of the negligence on their part. When such being the case, the Tribunal, ought to have apportioned the negligence to the extent of 50% each considering the documents of Exs.P3 and P5. Hence, the contributory negligence is apportioned as 50% each. Accordingly, I answer point No.(i) as ‘affirmative’.

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Point No.(ii)

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In respect of the claim is concerned, in the case in M.F.A.No.1042/2014, Ex.P8-PM report discloses the age of the deceased as 30 years and there is no documentary evidence contrary to the document at Ex.P8 and the Tribunal, while taking note of the fact that the deceased was having two children, comes to the conclusion that the deceased is more than 35 years and the said observation is erroneous. In the absence of contra evidence, the Tribunal ought to have taken note of PM report which is marked as Ex.P8 which discloses the age of the

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deceased as 30 years. Hence, relevant multiplier applicable is ‘17’ and not ‘16’ as contended by the learned counsel for the appellants. The accident has occurred in the year 2011 and income taken was only Rs.4,000/- per month. In the absence of documentary evidence, the Tribunal ought to have taken the notional income at Rs.6,500/- per month. The Tribunal has not awarded any compensation towards future prospects and having taken note of the age of the deceased, 40% is to added towards future prospects. If the same is added, the income of the deceased would be Rs.9,100/- and out of the same, 1/4^th has to be deducted towards personal expenses and if the same is deducted, the income of the deceased would be Rs.6,825/- per month and applying the relevant multiplier ‘17’, the loss of dependency works out to Rs.13,92,300/- (6,825 x 12 x 17).

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The claimants in M.F.A.No.1042/2014 are wife, two children as well as the parents. Hence, they are entitled for an amount of Rs.40,000/- each under the conventional heads which comes to Rs.2,00,000/-. Apart from that, they are also entitled for an amount of Rs.33,000/- on the head of loss of estate and funeral expenses. Hence, in all, the claimants are entitled for an

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amount of Rs.16,25,300/- with interest at 6% per annum as against Rs.5,30,000/- awarded by the Tribunal.

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In the case in M.F.A.No.1043/2014, the deceased

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was aged about 22 years and Ex.P14-PM report discloses that he

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was aged about 22 years and he is a bachelor and no contra documentary evidence is produced to prove that he is aged more than 22 years. However, the Tribunal has taken the age as 31 years and applied the multiplier of ‘16’. Hence, considering the age of the deceased, multiplier ‘18’ would be applicable. The Tribunal has taken the income of the deceased at Rs.4,000/- per month. In the absence of any documentary proof, the Tribunal ought to have taken the notional income at Rs.6,500/- per month and 40% is to be added towards future prospects which comes to Rs.9,100/-. Since, the deceased is a bachelor, 50% is to be deducted towards personal expenses. After deducting the same, the notional income of the deceased would be Rs.4,550/per month. Taking the income at Rs.4,550/- per month and applying the relevant multiplier ‘18’, the loss of dependency works out to Rs.9,82,800/- (4,550 x 12 x 18).

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The claimants in M.F.A.No.1043/2014 are the mother

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and two children. In view of the judgment of the Apex Court in

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NATIONAL INSURANCE COMPANY LIMITED VS. BIRENDER

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AND OTHERS reported in (2020) 11 SCC 356 , the claimants are also entitled for an amount of Rs.40,000/- each towards love and affection which comes to Rs.1,20,000/-. Apart from that, the claimants are also entitled for an amount of Rs.33,000/towards funeral expenses and loss of estate. Hence, in all, the claimants are entitled for an amount of Rs.11,35,800/- with interest at 6% per annum as against Rs.4,19,000/- awarded by the Tribunal.

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Point No.(iii)

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeals are allowed in part.

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(ii) The impugned judgment and award of the Tribunal dated 21.12.2012 passed in M.V.C.No.4134/2011, is modified granting compensation of Rs.16,25,300/- as against Rs.5,30,000/- with interest at 6% per annum from the date of petition till deposit.

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(iii) The impugned judgment and award of the Tribunal dated 21.12.2012 passed in M.V.C.No.4136/2011, is modified granting compensation of Rs.11,35,800/- as against Rs.4,19,000/- with interest at 6% per annum from the date of petition till deposit.

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(iv) The contributory negligence is apportioned as 50% each in respect of respondent Nos.2 and 3 and they are directed to pay the compensation amount with interest within six weeks from today.

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(v) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

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(vi) In all other respects, the order of the Tribunal remains undisturbed.

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Sd/JUDGE

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Nagarathnamma v. Hanumantha Reddy

Case brief

What is this about?

What did the court decide?

Nagarathnamma v. Hanumantha Reddy

Case brief

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