Partly allowed

Smt Parvathamma v. Smt Rama Singh

Karnataka HC16 Aug 2022MFA/997/2018

Case brief

AI extract

What is this about?

This first appeal against a motor vehicle accident compensation award was disposed without delay. The Court modified the Tribunal's 70:30 negligence ratio to 80:20 in favor of the lorry driver, recalculated dependency losses based on a higher notional income, and awarded compensation for the second wife's loss of consortium, granting an enhancement of Rs.5,34,040.

What did the court decide?

Appeal allowed in part; Tribunal judgment modified; additional compensation of Rs.5,34,040 granted along with 6% interest from date of petition.

Smt Parvathamma Vs Smt Rama Singh — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF AUGUST, 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.997 OF 2018 (MV-D)

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BETWEEN :

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1 . SMT PARVATHAMMA W/O LATE KRISHNAPPA, NOW AGED ABOUT 44 YEARS,

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2 . KUMARI SOUMYA @ MAMATHA D/O LATE KRISHNAPPA, NOW AGED ABOUT 27 YEARS,

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3 . KUMARI BHAVITHA D/O LATE KRISHNAPPA, NOW AGED ABOUT 25 YEARS,

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4 . MASTER SUMAN K S/O LATE KRISHNAPPA, NOW AGED ABOUT 23 YEARS,

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5 . SMT. RAMAKKA W/O LATE KRISHNAPPA, NOW AGED ABOUT 35 YEARS,

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6 . MASTER MOUNISH S/O LATE KRISHNAPPA, NOW AGED ABOUT 11 YEARS,

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7 . SMT. MUNIYAMMA W/O LATE MUNIVENKATAPPA NOW AGED ABOUT 72 YEARS,

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6TH MINOR APPELLANT IS REP BY NATURAL GUARDIAN/HIS MOTHER 5TH APPELLANT HEREIN

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ALL ARE R/AT KURUBARAHALLI VILLAGE, MULABAGAL TALUK KOLAR DISTRICT

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...APPELLANTS

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(BY SRI GOPAL KRISHNA, ADVOCATE)

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AND:

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1 . SMT RAMA SINGH W/O SARBAN SINGH, MAJOR IN AGE, R/AT 17, M.C.GHOSH LANE, WEST BENGAL STATE-711101

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2 . SRIRAM GENERAL INSURANCE COMPANY LIMITED NO.5, 2ND FLOOR, MONARCH CHAMBERS, INFANTRY ROAD, BENGALURU-560 001 REP BY ITS MANAGER

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…RESPONDENTS

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(BY SRI A.N.KRISHNASWAMY, ADVOCATE FOR R2 NOTICE TO R1 IS DISPENSED WITH VIDE ORDER DATED 18.11.2019)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:11.07.2017 PASSED IN MVC NO.449/2013 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE & MACT,KOLAR (INTINERATING AT MULBAGAL), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Today matter is listed for admission. With the consent of learned counsel on both sides, appeal is taken up for final disposal on the admission stage.

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This appeal is filed under Section-173(1) of the Motor Vehicles Act 1988, (hereinafter referred to as ‘MV Act’ for brevity) by the appellants-claimants, challenging the Judgment and Award dated 11.07.2017 passed in MVC No.449/2013, on the file of II Additional Senior Civil Judge and MACT., at Kolar, (hereinafter referred to as ‘the Tribunal’ for brevity) seeking enhancement of compensation.

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Brief facts of the case is as follows:

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On 29.09.213, the deceased Krishnappa was going towards his village Kurubarahalli, Mulbagal Taluk from Kolar by driving his Auto Rickshaw bearing No.KA-07-A0881. When he reached in between Kalahasthipura Vadaguru gate on Kolar-Mulbagal NH-75 road at 8.30 p.m., a trailer lorry bearing No.NL-01-D-0765 was parked

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in the middle of the road without any indicators or giving any signals. Since there was no indicator or parking lights, the deceased Krishnappa dashed the Auto rickshaw to the said lorry. Due to impact, the deceased had sustained grievous head injuries and he succumbed to the injuries on the spot. The said accident had occurred due to negligent, carelessness and unmindful parking of the trailer lorry in the middle of the road. The deceased Krishnappa was hale and healthy and he was aged about 40 years at the time of the accident. He owns a passenger Auto Rickshaw who was driving the same as its driver and was earning a sum of Rs.25,000/- p.m. The appellantsclaimants were entirely depending upon his earnings. Due to the death of the deceased Krishnappa, they do not have any source of income. Hence, claimants-appellants have filed the claim petition before the Tribunal.

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The Tribunal on appreciating the materials on record, allowed the claim petition in part and awarded a compensation of Rs.14,46,000/- together with interest @

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6% per annum from the date of petition till realization. However, the Tribunal fastened the liability in the rario of 70:30 between the offending lorry and the deceased Krishnappa respectively.

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Learned counsel for the appellants-claimants submitted that the driver of the trailer lorry alone was responsible for the accident since he has parked the lorry in the middle of the road on the national highway without any parking lights, indicator of the vehicle and no signal lights were put on and also not put stones around the vehicle to give a signal to other vehicles. Therefore, accident was occurred due to the mistake of trailer lorry driver and there is no mistake from the side of the deceased. Hence, he submits that 70:30 ratio between the lorry driver and the deceased respectively in respect of contributory negligence is not correct and prays to allow the appeal. It is further submitted that it is the duty of the driver or any other person of the vehicle to put indicator or parking lights while parking the vehicle on the road as per

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Section 122 of the MV Act and without doing so, he has parked the lorry in the middle of the road and it shows the negligence of the driver of the trailer lorry. Therefore, the Tribunal has wrongly apportioned the contributory negligence in the ratio of 70:30 between the driver of the trailer lorry and the deceased respectively. Therefore, he prays for modification of the Judgment and Award of the Tribunal in this regard.

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Further, learned counsel for the appellants submitted that the quantum of compensation awarded by the Tribunal is on lower side and also Tribunal has not awarded 'loss of future prospects'. Therefore, he prays for enhancement of compensation by allowing the appeal.

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On the other hand, learned counsel for the respondent No.2 submitted that the finding of the Tribunal holding contributory negligence of 70:30 ratio between the driver of the lorry and the deceased respectively is correct on the ground that the deceased Krishnappa instead of driving the auto rickshaw on the another half portion of the

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high way, has driven his vehicle on the left side of the road due to which he has dashed the trailer lorry from the back side. If the deceased Krishnappa has driven the Auto rickshaw on the right side of the road, then he would have avoided the accident, hence, he has also contributed for the accident.

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It is submitted that as per the Complaint, FIR, Charge Sheet, Spot Sketch, Spot Mahazar, it was shown that the trailer lorry was parked on the left side of the road. Therefore, the driver of the trailer lorry was not negligent. If the deceased had driven the Auto rickshaw cautiously on the right side of the road, he would have avoided the accident. Further, he submitted that the quantum of compensation awarded by the Tribunal is just and proper and prays for dismissal of the appeal.

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Having heard the submission of the learned

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counsel on both sides, the points that arise for my consideration is

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(i) Whether the ratio of 70:30 fixed by the Tribunal in respect of contributory negligence between the driver of the lorry and the deceased is correct?

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(ii) Whether the compensation amount granted by the Tribunal to the claimants/appellants is inadequate?

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Point No.1:

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Ex.P2 - copy of the complaint which is lodged by the elder brother of the deceased discloses that the said accident had occurred due to wrongful parking of the offending trailer lorry on Kolar-Mulabagal National Highway road at about 8.30 p.m. on 29.09.2013 without putting any indicator or parking lights. Therefore, it is an undisputed fact that the accident was caused between the trailer lorry and the Auto rickshaw. The accident was caused to the hind side of the trailer lorry and it was hit by the Auto rickshaw while the same was driven by the deceased-Krishnappa. Learned counsel for the appellantsclaimants relied on the judgment of this Court in the case

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of Kum. Jyothi and Others Vs. Mohd, Usman Ali and

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others reported in ILR 2002 KAR 893 and submitted that in the above said case, this Court held that the driver of the lorry had parked the lorry in the middle of the road without any sign or indications for other road users and therefore, it was held that the driver of the lorry was solely responsible for the accident. In the above settled case, the Judgment and Award of the Tribunal regarding negligence in the ratio of 50:50 was challenged before this Court. This Court in the facts and circumstances of the above case has observed that since the lorry was parked on the middle of the road and the motorcyclist hit the lorry from behind and the lorry was parked without any signal, driver of the lorry was solely responsible for the accident. But in the present case, the fact reveals that even though the deceased had driven the Auto rickshaw and hit the hind portion of the trailer lorry but upon perusing Ex.P3Spot Mahazar and Ex.P4 - Spot Sketch which revealed that the trailer lorry was parked on the left side of the road. This makes difference in the facts and circumstances

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of the above said case (Kum. Jyothi and others) and in the present case. Under what circumstances, the deceased - Krishnappa had dashed the trailer lorry from behind is not forthcoming in the evidence. Admittedly, PW1 - Smt. Ramakka is not the eye witness to the incident and also she has not lodged the complaint before the police. The eye witnesses were not examined to prove that under what circumstances the deceased had hit the trailer lorry is not forthcoming. But the fact is that the driver of the trailer lorry had parked the lorry on the left side of the road which can be seen from Ex.P4. The Tribunal by relying on the Judgment of this Court in MFA No.8323/2018 (The Tribunal had not mentioned the date of disposal and parties name in the appeal) had fixed the contributory negligence in the ratio of 70:30. It is further observed by the Tribunal that in MFA No.8323/2018, the offending vehicle was parked on the centre of the road without following traffic rules and therefore, this Court fixed the contributory negligence in the ratio of 70:30. The observation of the Tribunal in this regard is not

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correct. The Tribunal has failed to make distinguish between the facts in the present case and in the case of MFA No.8323/2008. In MFA No.8323/2008, the lorry was parked on the centre of the road without following the Traffic rules but in the present case, the trailer lorry was parked on the left side of the road. This makes difference in the factual matrix between the present case and in MFA No.8323/2008 cited by the Tribunal. Therefore, in the present case, the Tribunal is not correct in holding the ratio of 70:30 negligence between the driver of the trailer lorry and the deceased as the Tribunal has blindly followed the decision without appreciating the facts and evidence on record brought before it. However, as per Section 122 of the MV Act that no person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger/obstruction or undue inconvenience to other users of the public place or to the passengers. Therefore, as per Section 122 of the MV Act,

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in the present case, the driver of the lorry was negligent in parking the trailer lorry without putting any signal or indicator or by putting stones around the vehicle or tying the red colour flag so as to give attention to the other vehicles to notice the parked lorry. Therefore, under these circumstances, the driver of the trailer lorry is found to be more negligent for happening the accident. But at the same time, considering the fact that the trailer lorry was parked on the left side of the road as per Spot Sketch, the accident was occurred at 8.30 p.m. The accident was not occurred in the midnight so that the driver of the Auto rickshaw was constrained to get sleep. Therefore, considering the time of the accident i.e., 8.30 p.m., which is not the midnight and furthermore, the driver of the Auto rickshaw cannot drive the Auto rickshaw in a high speed but the auto had hit the hind side of the lorry. Therefore, considering all these factors, the deceased who was driving the Auto rickshaw was also contributed to the accident. If the deceased had taken some care or consciousness, he could have avoided the accident.

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Therefore, definitely the Tribunal has not applied its mind in fixing the negligence in the ratio of 30 on the part of the deceased. The Tribunal has blindly followed the decision in MFA No.8323/2008. The respondents have not examined the driver of the trailer lorry. Under what circumstance the driver of the trailer lorry has parked the lorry is not forthcoming. Therefore, upon the considering the entire scenario of the accident, 80:20 negligence between the driver of the lorry and the deceased is just and proper. Therefore, Judgment and Award of the Tribunal is liable to be modified. Accordingly, I answer point No.1 in partly negative.

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Point No.2:

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11. The Tribunal has various heads as follows:	awarded compensation under
(A) Loss of dependency	Rs.12,96,000=00
(B) Loss of consortium	Rs. 25,000=00
(C) Loss of estate	Rs. 1,00,000=00
(D) Transportation of dead body and funeral expenses Total	Rs. 25,000=00 Rs.14,46,000=00

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Heard the learned counsels and perused the material on record.

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It is stated that the deceased was owner cum

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driver of the Auto rickshaw and it is stated that there is no proof regarding income of the deceased. Therefore, the notional income is to be taken into consideration. The accident was occurred in the year 2013. The Tribunal has taken lesser notional income at Rs.6,000/-. Therefore, considering the year of accident, the notional income at Rs.8,000/- is to be taken into consideration as per the notional chart prepared by the Karnataka State Legal Services Authority. The Tribunal had added 50% of income towards 'future prospects'. The age of the deceased is found to be 39 years at the time of accident. Therefore, as per the 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.3,200/- (Rs.8,000/- x

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40%). The age of the deceased was 39 years at the time of accident. 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 Corporation and another reported in AIR 2009 SC 3104, is '15'. The deceased died leaving behind claimant Nos.1 to 7 as his legal heirs. Therefore, 1/5th of his income has to be deducted towards his personal expenses. Accordingly, under the head 'loss of dependency' is recalculated as follows:

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Rs.8,000/- + 3,200 (40% of Rs.8,000/-) x 4/5 x 15

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x 12 = Rs.16,12,800/- towards loss of dependency.

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It is stated that there are 7 legal heirs of the deceased. Among them, claimant No.5 - Smt. Ramakka is stated to be the second wife of the deceased. Therefore, learned counsel for the Insurance Company submitted that the second wife is not entitled for compensation under the head 'loss of consortium'. The submission of learned counsel for the Insurance Company is correct that that the

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second wife is not entitled for any share in the property or amount. But the fact remains that the even claimant No.5 is the second wife but fundamentally being the wife of the deceased also. The second wife has lost her husband. As per Hindu Succession Act, second wife is not entitled for any share in the property but that is different aspect. But in the present case, the claimant No.5 even though second wife of the deceased but had lost her husband. Therefore, she is also entitled for 'loss of consortium'. Therefore, as per the judgment of Magma General Insurance Company Lmited Vs. Nanu Ram and others reported in 2018 ACJ 2782 and also in the case of Pranay Sethi , each legal dependents of the deceased are entitled compensation of Rs.40,000/each. Accordingly, compensation of Rs.2,80,000/- is awarded under the head 'loss of consortium'.

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The compensation amount awarded by the Tribunal under the head 'Transportation of the dead body and funeral expenses' at Rs. 25,000/- is found to be just

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and proper and there is no ground for interference. Accordingly, the same is kept intact.

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The Tribunal has awarded compensation of Rs.1 lakh for 'loss of Estate'. Therefore, by following the judgment of Pranay Sethi (supra), compensation of Rs.15,000/- is awarded under the head of 'Loss of Estate'.

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Therefore, the appellants are entitled to the

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enhanced compensation as follows:

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1	Loss of dependency (Rs.8,000+3,200(40% of Rs.8,000/-) x 4/5 x 15x12	Rs.16,12,800/-
2	Transportation of dead body	Rs.25,000/-
3	Loss of Estate	Rs.15,000 /-
4	Towards loss of consortium	Rs.2,80,000/-
	Total	Rs.19,32,800

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Hence, the appellants are entitled for a total compensation of Rs.19,32,800/-. Since the deceasedKrishnappa had also contributed negligence as discussed above in the ratio of 20% for cause of the accident, the appellants-claimants are entitled for total compensation of Rs.15,46,240/[Rs.19,32,800/Rs.3,86,560/=

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Rs.15,46,240/-]. Accordingly, appellants are entitled additional compensation of Rs.5,34,040/- along with interest at 6% interest per annum from the date of petition till its realisation.

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Accordingly, I answer point No.2 partly in the affirmative.

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Hence, the following order:

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(i) Appeal is allowed in part.

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(ii) Judgment and award dated 11.07.2017 passed in MVC No.449/2013 by the Tribunal is modified to the above extent.

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(iii) Appellants are entitled additional compensation of Rs.5,34,040/with interest at 6% per annum from the date of petition till realisation, 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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