Partly allowed

Mallesha @ Malleshappa v. Annappa

Karnataka HC1 Apr 2022MFA/2754/2012

Case brief

AI extract

What is this about?

In an appeal against a Motor Accident Claim Tribunal award, the appellate court increased compensation from 2.20 lakhs to 9.41 lakhs. The court set aside finding of 30% contributory negligence to the deceased, held the bus driver entirely negligent, recalculated loss of dependency based on notional income and added loss of consortium.

What did the court decide?

The judgment and award is modified; appellants awarded enhanced compensation of Rs.9,41,600 along with interest; Registry directed to return records.

Mallesha @ Malleshappa Vs Annappa — Insurance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF APRIL, 2022

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BEFORE

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THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO. 2754 /2012 (MV)

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BETWEEN:

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MALLESHA @ MALLESHAPPA S/O MALLAIAH AGED ABOT 47 YEARS COOLIE WORK.

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SMT. NINGAMMA W/O MALLESHA AGED ABOUT 37 YEARS

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BOTH ARE R/O FILTER SHED OPP: NEW TOWN POLICE STATION NEW TOWN BHADRAVATHI-577 301.

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… APPELLANTS

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(BY SRI. R.GOPAL, ADVOCATE (VC))

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AND:

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ANNAPPA S/O BANGARAPPA AGED ABOUT 37 YEARS DRIVER OF THE BUS R/O MAASURU ROAD SHIKARIPURA TOWN SHIKARIPURA-577 427.

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N.MANJUNATHA S/O NAGAPPA AGED ABOUT 47 YEARS R/O RAJALAKSHMI NILAYA MALEERA KERI HALIYUR SHIKARIPURA TOWN SHIKARIPURA-577 427.

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THE UNITED INDIA INSURANCE COMPANY LIMITED P.B.NO.21, J.C.ROAD, SAGAR-577 401 SHIMOGA DISTRICT REPRESENTED BY ITS MANAGER

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… RESPONDENTS

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(APPEAL IS DIMISSED AGAINST R1 V/O DATED: 26.08.2015; R2 SERVED; BY SRI. K.LAKSHMINARASAPPA, ADVOCATE FOR SRI. A.M.VENKATESH, ADVOCATE FOR R3)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 21.12.2011 PASSED IN MVC NO.716/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT ADDITIONAL MACT(11), BHADRAVATHI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS M.F.A. 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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This appeal is filed under Section-173(1) of the Motor Vehicles Act, by the appellants-claimants,

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challenging the judgment and award dated 21.12.2011, passed in MVC No.716/2010, on the file of Fast Track And Additional MACT (11) at Bhadravathi, seeking enhancement.

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Brief facts:

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The appellants – claimants are the father and mother of deceased Raju @ Shivaraju. That on 19.02.2010 at about 4.45 p.m., the deceased Rau was pushing his bike by walking on left side of Anavatti to Shivamogga road near Veeranna Benavalli Cross. At that time, first respondent came driving the bus bearing registration No.KA.15.A.1371, from Shivamogga side in a rash and negligent manner with high speed and dashed against deceased Raju. Due to the impact, Raju sustained grievous injuries on his head and other parts of his body and he died on the way to the hospital.

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Hence, a claim petition was filed by the appellants-claimants under Section-166 of the M.V. Act, claiming compensation. The deceased was a Contract Labour in H.T.S. Department, V.I.S.P. Bhadravathi and

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earning Rs.7,000/- per month. The appellants, who are the parents were depending upon the earning of the deceased. The Tribunal on appreciating the materials on record, allowed the petition in part, and awarded a compensation of Rs.2,20,500/-, along with interest at 6% per annum from the date of petition till realization. The Tribunal held respondent Nos.2 and 3 therein, jointly and severally liable to pay the compensation.

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The learned counsel appearing for the appellants-claimants submitted that the Tribunal has committed an error in holding that the bus driver was negligent of 70% and the deceased was negligent of 30% by applying contributory negligence. The spot sketch produced at Exhibit-R3, shows that the accident has occurred on the right side of the road from Shivamogga to Sagar. The Motor cycle was coming from Sagar to Shivamogga. Therefore, the bus driver had come to the extreme right side of the road and hit motor cycle, which can be clearly seen in the spot sketch. Further, the Police have filed a charge-sheet against the driver of the

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offending bus, that fortified the appellants-claimants’ case. Therefore, the learned counsel submitted that applying contributory negligence is not correct.

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Further, the learned counsel for the appellant submitted that the compensation awarded by the Tribunal under the various heads is not sufficient. Therefore, prays to enhance the compensation on various heads.

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On the other hand, the learned counsel appearing for respondent No.3 – insurance company Sri.K.Lakshmi Narasappa vehemently contended that the deceased, who was the rider of the motor cycle, was riding along with two pillion riders on the motor cycle and he was unable to control the motor cycle. Therefore, the accident has taken place. In this regard, the Tribunal has correctly assessed the contributory negligence on the part of the deceased also at 30%. Therefore, prays to confirm the judgment and award of the Tribunal. Further, submitted that the accident has taken place on middle of the Road as can be seen in the spot sketch at Exhibit-R3. Therefore,

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the Tribunal has rightly observed and held that there is a contributory negligence on the part of the deceased. Further, submitted that the compensation awarded by the Tribunal under various heads are sufficient. Hence, there is no need to enhance the compensation amount. Therefore, prays to dismiss the appeal.

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7. The compensation awarded by the Tribunal

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under various heads are as follows:

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1	Towards Loss of dependency	: Rs.	2,70,000/-
2	Towards funeral and Transportation	: Rs.	15,000/-
3	Towards loss to the Estate	: Rs.	15,000/-
4	Towards Filial Love	: Rs.	15,000/-
	TOTAL	: Rs.	3,15,000/-

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Heard the learned counsels and perused the

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material on record.

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9. The Tribunal has held that the bus driver was

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70% negligent and the rider of the motor cycle was 30% negligent and therefore the theory of contributory negligence is applicable. Upon perusing Exhibit-R3, a copy of the spot sketch produced, it is seen that the bus was

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moving from Shivammogga to Sagara and motor cycle was proceeding from Sagara to Shivammoga, the spot sketch reveals that the place of accident is not middle of the road but it is slightly extreme to the right side of the road from Shivamogga to Sagara. Therefore when it is depicted that the bus was going on the right side of the road of Shivamogga to Sagara, then the bus driver was negligent. The motor cycle rider was on correct side, just because there were two pillion riders that cannot be said that there is contributory negligence on the part of the deceased.

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In this regard, I place reliance on the judgment of this Court reported in KARNATAKA STATE ROAD TRANSPORT CORPORATION Vs. BELLAPPA, reported in ILR 2017 KAR 1292. Therefore by appreciating the material evidence, Exhibit-R3, spot sketch it is proved that the bus had come to the right side of the road towards Shivamogga to Sagara, then the entire negligence is to be attributed on the part of the Bus driver. Therefore, the Tribunal holding the deceased negligent of 30% is not justified. The bus being a heavy vehicle, the driver of the

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bus ought to has driven the bus cautiously, but by going over to the right side of the road from Shivamogga to Sagara dashed the motor cycle. Therefore, the bus driver is found to be entirely rash and negligent. Hence, the finding arrived at by the Tribunal in this regard is not correct, as it is perverse. Accordingly, contributory negligence held by the Tribunal is liable to be set-aside.

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The learned counsel for the appellantsclaimants submitted that the deceased was a contract employee working in H.T.S. Department, V.I.S.P. Bhadravathi and earning Rs.6,750/- per month. In support, the appellants have produced the payslip at Exhibit-P7 and therefore requested to consider the income of the deceased at Rs.6,750/- per month. However, on considering the evidence, it is seen that the Author of the payslip at Exhibit-P7 was not examined. Therefore, the notional income is to be taken into consideration as the deceased as a contract employee and accordingly the notional income as per the Chart of the Karnataka State Legal Services Authority, for the year 2010 is taken at

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Rs.5,500/- per month. Therefore, the compensation awarded by the Tribunal considering the income of the deceased at Rs.3,000/- is not correct. The appropriate multiplier applicable as per the judgment of the Hon’ble Supreme Court, in the case of Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn And Another reported in AIR 2009 SC 3104 , is ‘18’, since the appellant was aged 20 years at the time of accident. Further, the accident has occurred in the year 2010. Therefore, as per the Notional Income Chart preferred by the Karnataka State Legal Service Authority, the notional income of Rs.5,500/- is to be taken into consideration. Further, as per principle of law laid down by the Hon’ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi reported in (2017) 16 SCC 680 , 40% of his monthly income is added towards ‘Loss Of Future Prospects In Life’, i.e., Rs.2,200/- (Rs.5,500/- x 40%). Therefore, the monthly income of the deceased is taken at Rs.7,700/- (Rs.5,500/- + Rs.2,200/-). The deceased was a bachelor. Therefore, 50% of deceased income is deducted towards personal expenses and the contribution

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to the family is taken as Rs.3,850/- per month. Therefore, the compensation under the head ‘Loss Of Dependency’ is recalculated and quantified as follows:

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Rs.7,700 / 2 x 18 x 12 = Rs.8,31,600/-

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Further, the Tribunal has awarded a compensation of Rs.15,000/- towards ‘ Funeral And Transportation Expenses ’, which is found to be correct considering the year of the accident and therefore there is no ground for interference. Accordingly, the same is kept in tact.

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The Tribunal has awarded compensation of Rs.15,000/- towards ‘ Loss Of Estate’. The same is sufficient and kept in tact.

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Further, the compensation of Rs.15,000/- is awarded towards ‘Towards Filial Love / Loss of Consortium’ the same is not sufficient. Since the appellants - claimants are the father and mother of the deceased who have lost their only son. Therefore, as per the principles of law laid down by the Hon’ble Apex Court

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in Pranay Sethi ’s c ase, appellants – claimants who are parents of the deceased are awarded Rs.40,000/- each, under the head ‘Towards Filial Love / Loss of Consortium’.

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Therefore, the appellants are entitled to the enhanced compensation as follows:

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1^{Loss of dependency} ( Rs.7,700 / 2 x 18 x 12= Rs.8,31,600/-)		Rs.8,31,600/-
2^{Transportation of dead body}		Rs.15,000/-
3^{Loss of Estate}		Rs.15,000/-
4^Towards Filial Love/Loss Consortium (Rs.40,000 x 2)	of	Rs.80,000/-
Total		Rs.9,41,600/-

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The appellants-claimants are entitled for a

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total enhanced compensation of Rs.9,41,600/- as against Rs.2,20,500/- awarded by the Tribunal. Hence, the appellants are entitled for an additional Compensation of Rs.7,21,100/- (Rs.9,41,600 - Rs.2,20,500), along with interest at the rate of 6% per annum from the date of petition till the date of realization.

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Accordingly, I pass the following:

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ORDER

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i. Appeal is allowed in part.

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ii. The judgment and award dated 21.12.2011, passed in MVC No.716/2010, on the file of Fast Track And Additional MACT (11) at Bhadravathi is modified to the above extent.

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iii. The appellants are entitled to an enhanced compensation of Rs.7,21,100/- (Rs.9,41,600 - Rs.2,20,500), along with interest at the rate of 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal.

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iv. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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v. Draw award accordingly.

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Sd/JUDGE

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Mallesha @ Malleshappa v. Annappa

Case brief

What is this about?

What did the court decide?

Mallesha @ Malleshappa v. Annappa

Case brief

What is this about?

What did the court decide?

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