Partly allowed

Smt Puttamma v. Swaminathan P

Karnataka HC24 Jan 2023MFA/10348/2018

Case brief

AI extract

What is this about?

High Court allowed a first appeal by legal heirs of a motor accident victim, setting aside the Tribunal's dismissal. The Court apportioned 60% negligence to the deceased and 40% to the respondent, awarding 40% of the total calculated compensation as relief.

What did the court decide?

Claimants entitled to Rs.4,57,665 (40% of total calculated compensation) with interest from the date of petition.

Smt Puttamma Vs Swaminathan P — Motor Accident Claims | Karnataka HC (2023)

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MFA No. 10348 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 10348 OF 2018 (MV-D)

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BETWEEN:

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SMT.PUTTAMMA,

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W/O LATE B.H.BHEEMAIAH,

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AGED ABOUT 52 YEARS,

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HOUSE WIFE.

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THIPPESWAMY,

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S/O LATE B.H.BHEEMAIAH, AGED ABOUT 32 YEARS,

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Digitally signed by JAI JYOTHI J Location: HIGH COURT OF KARNATAKA

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COOLIE WORK.

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BHAGYAMMA,

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D/O LATE B.H.BHEEMAIAH,

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AGED ABOUT 29 YEARS,

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COOLIE WORK,

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VENKATESHA,

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S/O LATE B.H.BHEEMAIAH,

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AGED ABOUT 26 YEARS,

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COOLIE WORK.

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ALL THE APPELLANTS ARE

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RESIDENTS OF BELAGATTA VILLAGE, HIRIYUR TALUK, CHITRADURGA DISTRICT.

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…APPELLANTS

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(BY SRI. SPOORTHY HEGDE N., ADVOCATE)

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MFA No. 10348 of 2018

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AND:

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SWAMINATHAN.P, S/O PALANIYAPPA THEVAR, MAJOR, OWNER OF THE T.V.S. VICTOR GX-MOTORE BIKE BEARING NO.KA-16/L-9560, RESIDING AT ARANAKATTE VILLAGE, HIRIYUR TALUK, CHITRADRUGA DISTRICT - 577 001.

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S.MOHAN,

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S/O SWAMINATHAN, AGED ABOUT 34 YEARS,

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DRIVER OF THE T.V.S. VICTOR GX-MOTORE BIKE BEARING NO.KA-16/L-9560, RESIDING AT ARANAKATTE VILLAGE, HIRIYUR TALUK, CHITRADRUGA DISTRICT - 577 001.

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…RESPONDENTS

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(BY SRI.PATEL D.KAREGOWDA, ADVOCATE FOR R1 AND R2)

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THIS MFA IS FILED U/S. 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.04.2018 PASSED IN MVC NO.2/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, JMFC, HIRIYUR, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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

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MFA No. 10348 of 2018

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JUDGMENT

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The appeal is filed by the claimants challenging the

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judgment and award passed by the Tribunal in dismissing the claim petition.

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The brief facts of the case are that on 28.05.2013, the deceased Bheemaiah was proceeding in a

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TVS XL Moped bearing No.KA-16-L-7044 along with one pillion rider, when he reached near Bharmagiri cross on V.V.Pura - Hiriyur Road, at that time, the driver of the motorbike bearing No.KA-16-L-9560 came from opposite side in a rash and negligent manner and dashed against the TVS XL moped. Due to the impact, the deceased Bheemaiah succumbed to the injuries on 07.06.2013 while he was in treatment at C.J.Hospital, Davanagere. Therefore, the legal heirs of the deceased filed claim petition under Section 166 of MV Act, seeking compensation.

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MFA No. 10348 of 2018

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Heard the arguments on both sides and perused

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the records.

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The Tribunal has dismissed the claim petition on

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the ground that as per spot sketch, the deceased has ridden the TVS XL Moped on the wrong side of the road. Therefore, the claim petition came to be dismissed.

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The accident road is leading from Hiriyur to Vanivilasapura. The deceased was riding his TVS XL Moped bearing No.KA-16-L-7044 from Hiriyur to Vanivilasapura. Respondent No.2 was riding the TVS Victor motor bike bearing No.KA-16-L-9560 from Vanivilasapura to Hiriyur. As per the spot sketch and spot mahazer, the width of the road is 18 feet. Upon perusing Ex.P2-Spot Mahazer and Ex.R3-Spot Sketch, both the vehicles are shown on the slightly middle of the road towards north from Hiriyur to Vanivilasapura. The accident was not shown exactly on the middle or on the extreme left side of the road from Vanivilasapura to Hiriyur. The Tribunal has dismissed the

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MFA No. 10348 of 2018

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claim petition on the ground that the driver of the TVS victor motor bike was acquitted in the criminal case and therefore, dismissed the claim petition and also had come to the conclusion that the deceased has committed wrong.

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Hence, the claim petition is dismissed.

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Upon re-appreciating the evidence on record produced before the Tribunal, it is an undisputed fact that the deceased was riding a TVS XL moped along with one pillion rider, and admittedly, the cubic capacity of the TVS XL moped is less. The TVS Victor motorbike is having more cubic capacity. Therefore, the speed of TVS Victor bike is more. Where two persons were riding on the TVX XL moped, obviously, the speed of the TVS moped became slow. Therefore, even though the deceased had come to the wrong side of the road, it was only a minor deviation, crossing the middle of the road, but at the same time, respondent No. 2 was riding the TVS Victor motorcycle, which obviously has a high capacity, and it came at high

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MFA No. 10348 of 2018

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speed and dashed against the TVS XL Moped. Therefore, the entire case is visualised in this regard. Therefore, both the deceased and respondent No. 2 have contributed their negligence to the accident. On the part of the deceased, it

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can be said that it is only negligent, but respondent No.2 is found to be both rash and negligent. Therefore, even though respondent No. 2 was on the correct side of the road, he could have avoided the accident by slowing down the motorcycle, but he is also responsible for the accident because he did not take care and be cautious to avoid the accident. It is proved that the deceased also crossed the middle of the road to some extent by coming on the left

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side of the road from Vanivilasapura to Hiriyur and under these circumstances, the accident was caused. Therefore, both the deceased and respondent No.2 have contributed their negligence to the accident. Therefore, upon considering the entire case regarding the factum of the accident, the deceased has contributed 60% of negligence

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MFA No. 10348 of 2018

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to the accident and respondent No.2 has contributed 40% of negligence to the accident.

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The Tribunal has committed an error in placing

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reliance on the depositions in the criminal case and also observing that in the criminal case, respondent No.2 was acquitted. Therefore, the claim petition is dismissed. This observation of the Tribunal is not correct. Where the evidence is produced before the Tribunal, the Tribunal is independent of result of criminal case so as to appreciate and evaluate the evidence on record. The material in criminal case can only be taken for corroborative purposes. Therefore, in this regard, the Tribunal has committed an error in dismissing the claim petition. As a result, the deceased is held to have contributed 60% of the negligence to the accident, while respondent No. 2 is held to have contributed 40% of the negligence. Accordingly, the finding on issue No.1 is set aside and is held partly affirmative, as discussed above.

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MFA No. 10348 of 2018

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REGARDING QUANTUM :

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The deceased was working as labourer of aged

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52 years and died in the accident that occurred on 28.05.2013. The notional income would be Rs.8,000/p.m. as recognized by the Karnataka State Legal Services Authority. The appropriate multiplier applicable is '11'. There are four legal dependents. Hence, 1/4th amount is to be deducted towards personal and living expenses of the deceased and remaining amount is contributed to the family. 10% income is to be added towards 'loss of future prospects in life' as per the dictum of the Hon'ble Supreme Court in the case of National Insurance Company Ltd.,

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Vs. Pranay Sethi and others reported in (2017)16 SCC 680 . Therefore, the loss of dependency is hereby assessed and quantified as under:

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Rs.8,000 + Rs.800 (10% of Rs.8,000/-) = Rs.8,800/Rs.8,800 x 3/4 x 11 x 12 = Rs.8,71,200/-

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MFA No. 10348 of 2018

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Accordingly, a sum of Rs.8,71,200/- is awarded under the head 'loss of future prospects in life'.

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There are four legal dependents. Hence, they are entitled for Rs.40,000/- each under the head 'loss of consortium' as per Magma General Insurance Company Limited v. Nanu Ram and Others, reported in 2018 ACJ 2782 . Accordingly, a sum of Rs.1,60,000/- is awarded under the said head.

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For 'transportation & funeral expenses' and 'loss

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of estate', a sum of Rs.15,000/- each under the said heads is awarded.

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Exs.P7 to P30 are the medical bills produced by the claimants for having spent a sum of Rs.82,963/towards medical expenses is to be compensated. Accordingly, awarded.

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Thus, in all, the claimants are entitled for the following sums:

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10 - MFA No. 10348 of 2018

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Sl. No.	Particulars	Compensation awarded (in Rs.)
1.	Loss of dependency	8,71,200.00
2.	Transportation and funeral expenses	15,000.00
3.	Loss of estate	15,000.00
3.	Loss of consortium including loss of love and affection	1,60,000.00
4.	Medical expenses	82,963.00
	TOTAL	11,44,163.00

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As above discussed, the deceased has contributed 60% negligence to the accident. Therefore, 60% amount would be deducted from the above determined compensation and the claimants are entitled for remaining 40% of the compensation amount from respondent No.1.

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Accordingly, I proceed to pass the following:

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ORDER

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i. The appeal is allowed-in-part .

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11 -

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MFA No. 10348 of 2018

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ii. The judgment and award passed by the Tribunal in MVC No.2/2014 is hereby set-aside and the claimants are entitled for compensation of Rs.4,57,665 (40% of Rs.11,44,163/-) with interest @ 6% p.a., from the date of petition till its realization from respondent No.1.

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iii. The appellants/claimants are not entitled for interest for the delayed period o 154 days in filing the appeal.

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iv. Costs made easy.

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

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vi. Draw award accordingly.

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Sd/JUDGE

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Smt Puttamma v. Swaminathan P

Case brief

What is this about?

What did the court decide?

Smt Puttamma v. Swaminathan P

Case brief

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