Partly allowed

Lakshmamma v. Mohd Rishad

Karnataka HC27 Sept 2024MFA/1014/2022

Case brief

AI extract

What is this about?

Claimants sought enhancement of motor accident compensation. The court set aside the 15% contributory negligence for non-wearing of helmet for want of evidence, retained 25%, took notional income at Rs.12,500 per month applying Sarla Verma and Pranay Sethi, enhanced compensation from Rs.10,14,240 to Rs.13,91,250 with 6% interest.

What did the court decide?

Compensation enhanced from Rs.10,14,240/- to Rs.13,91,250/- with 6% interest, payable to the first appellant (mother), deposit within eight weeks.

Lakshmamma Vs Mohd Rishad — Insurance | Karnataka HC (2024)

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1 - NC: 2024:KHC:40321 MFA No. 1014 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA MISCELLANEOUS FIRST APPEAL NO. 1014 OF 2022 (MV-D)

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BETWEEN:

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LAKSHMAMMA,

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W/O MARANKASHETTY, AGED ABOUT 58 YEARS, R/AT HEGGADAHALLI VILLAGE, NANJANGUD TQ, MYSORE DISTRICT - 571 302.

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MAHADEVAMMA, W/O NINGAPPA, AGED ABOUT 43 YEARS, R/AT BEVINAKERI BEEDI, CHAMALAPURADA HUNDI, NANJANGUD TOWN, MYSORE DISTRICT - 571 301.

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Digitally signed by AASEEFA PARVEEN Location: HIGH COURT OF KARNATAKA

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LAKSSHMAMMA,

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W/O NAGARAJASHETTY, AGED ABOUT 41 YEARS, R/AT KATTEHUNSURU VILLAGE, SARAGURU HOBLI, H.D. KOTE TALUK, MYSORE DISTRICT - 571 309.

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SARASWATHI,

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W/O HOOSHETTY, AGED ABOUT 39 YEARS, R/AT VADDANA HOSAHALLI VILLAGE, (PUTHANAPURA), GUNDLUPET TQ, CHAMARAJANAGAR DISTRICT - 571 442.

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MAHADEVASWAMY H.M, S/O MARANAKASHETTY, AGED ABOUT 37 YEARS,

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NANDINI, W/O HEMANT KUMAR P.B, AGED ABOUT 37 YEARS,

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BOTH ARE R/AT HEGGADAHALLI VILLAGE, NANJANGUD TALUK, MYSORE DISTRICT - 571 302.

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…APPELLANTS

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(BY SRI. SREENIVASAN M.Y, ADVOCATE)

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AND:

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MOHD RISHAD, S/O P.T. ABU, MAJOR, R/AT NO.179, RATHNAPURI VILLAGE, HUNSURU TALUK, MYSORE DISTRICT - 570 031.

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THE DIVISIONAL MANAGER, UNITED INSURANCE CO. LTD., DO-2, NO.2912, SRI. VENKATESHWARA PLAZA, 1ST MAIN, SARASWATHIPURAM, MYSORE - 570 005.

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…RESPONDENTS

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(BY SRI. S.V. HEGDE MULKHAND, ADVOCATE FOR R2)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.02.2020 PASSED IN MVC NO. 1715/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND M.A.C.T., NANJANGUD, PARTLY ALLOWING THE CLAIM

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3 - NC: 2024:KHC:40321 MFA No. 1014 of 2022

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PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA

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ORAL JUDGMENT

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Heard Sri.Sreenivasan.M.Y, learned counsel for the appellants who appears physically before this Court. Also heard Sri.S.V.Hegde Mulkhand, learned counsel for respondent No.2 who appears through video conference.

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Aggrieved by the sum that is awarded as compensation by the Motor Accidents Claims Tribunal, Nanjangud through orders in M.V.C. No.1715/2018 dated 03.02.2020, the claimants are before this Court through this appeal.

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Making his submission with regard to the merits of the matter, Sri.Sreenivasan.M.Y contends that the appeal is filed basically on two grounds. Firstly, that the contributory negligence attributed on part of the deceased

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4 - NC: 2024:KHC:40321 MFA No. 1014 of 2022

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Mahesh (herein after referred to as 'deceased' for brevity) is unjustifiable. Secondly, the amount awarded as compensation is grossly low.

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Arguing on the first ground, Sri.Sreenivasan.M.Y contends that the tribunal held that the deceased contributed for the accident to occur and contributory negligence was fixed as 25%. Again on the ground that he was not wearing the helmet while driving the vehicle i.e., the two wheeler, contributory negligence in that regard was fixed as 15%. Thus, out of the compensation awarded, 40% in total was deducted, which is unjustifiable. Learned counsel thereby seeks to pass orders, ordering the respondents to pay entire amount which the appellants are entitled to receive as compensation.

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Sri.S.V.Hegde Mulkhand arguing the matter, contends that the observations made by the tribunal with regard to fixing of 40% as contributory negligence on part of the deceased is on proper lines.

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5 - NC: 2024:KHC:40321 MFA No. 1014 of 2022

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The manner of happening of accident as projected by the appellants before the tribunal is that on 24.06.2018 while the deceased was proceeding on a Bajaj Discover motorcycle bearing registration No.KA-09-HB-7992 near Sapthagiri Petrol Bunk, a Chevrolet Car bearing registration No.KA-03-MC-7490 driven by its driver at a high speed and in a rash and negligent manner, dashed from the hind side. Due to which, the deceased sustained grievous injuries and died due to the injuries sustanined.

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The version of the respondent No.2 is that the deceased was at fault.

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Discussing the merits of the matter, the tribunal at

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para Nos.11 and 12 of the impugned order held as follows:-

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"The Ex.P4 is the rough sketch of the spot of accident, prepared by the investigating officer in Cr. No.90/2018 of Nanjangud Traffic Police Station. The spot of accident is shown to be on a four lane high way having road divider. The said high way is shown to have 6 ft wide footpath on

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either sides. Two each lanes are shown to be separated by road divider. The spot of accident is shown to be near a 'U' turn provision made in the road divider. In other words, the spot of accident is shown to be 10 ft away from the road divider while it is 17 ft away from the left side edge of the road leading towards Mysore.

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As mentioned above in the FIS, the first informant and the said Mahesh were intending to go towards Nanjangud side, after filling petrol to the bike. If that is so, they had to cross the road-divider in the 'U' turn provision made on the highway. For crossing the road-divider, they had to first cross the two lane road leading towards Mysore. As per Ex.P4, the bike had passed about 17 ft distance from the edge of road leading towards Mysore, while only 10 ft remained to reach the 'U' turn space on the road, when the accident occurred".

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There is no denial of the fact that when the

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deceased attempted to cross the road, the accident occurred. Having considered the merits of the matter as discussed by the tribunal, this Court is of the view that

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contributory negligence to the extent of 25% fixed upon the deceased needs no interference. However, there is no material on record to show that the deceased was riding the motorcycle without wearing the helmet. The tribunal basing on the contents of the spot mahazar where recovery of damaged helmet or pieces of helmet is not noted, presumed that the deceased was not wearing helmet at the relevant time.

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Learned counsel Sri.S.V.Hegde Mulkhand did not bring any piece of evidence to the notice of this Court which convincingly show that the deceased was not wearing helmet at the relevant time. Therefore, contributory negligence fixed to the extent of 15% on the ground that the deceased was not wearing helmet is required to be set aside. Thus, the total negligence on part of the deceased which he contributed for the accident to occur is fixed as 25%.

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Coming to the sum that is awarded as compensation, the tribunal through the impugned order

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awarded a sum of Rs.16,90,400/- as compensation divided

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under following heads:-

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Heads	Amount in Rs.
Loss of dependency	16,18,400-00
Loss of consortium	40,000-00
Loss of estate	15,000-00
Funeral expenses	15,000-00
Conveyance	2,000-00
Total	16,90,400-00

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Learned counsel Sri.Sreenivasan.M.Y submits

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that the deceased was working as a Mason by the date of accident and was earning Rs.15,000/-per month. However there is no substantive proof to that effect. Learned counsel Sri.Sreenivasan.M.Y however states that the accident occurred in the year 2018 and for the relevant period, the Karnataka State Legal Services Authority is taking the notional income as Rs.12,500/- per month and atleast the said figure should have been adopted by the tribunal.

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Sri.S.V.Hegde Mulkhand did not raise any

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objection to take the notional income of the deceased at

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Rs.12,500/- per month as prayed for. Also the request made is justifiable.

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Therefore, the notional income of the deceased is taken as Rs.12,500/- per month. Undoubtedly the deceased died as Bachelor. Therefore as rightly projected by both the learned counsel, the tribunal went wrong in deducting 1/3^rd of the income towards personal and living expenses. As the deceased died as bachelor, as per the decision of the Hon'ble Apex Court in Sarla Verma and Others vs. Delhi Transport Corporation and Another reported in 2009 SAR (Civ) 592 case, 50% of the earnings are required to be deducted towards personal and living expenses which the deceased would have incurred for himself had he been alive. Also the appropriate multiplier to be applied as per the aforementioned decision is '17'. Further as the deceased was aged about 28 years by the date of accident, 40% of the earnings are required to be added towards future prospects as per the decision of the Hon'ble Apex Court in National Insurance Company

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Limited vs. Pranay Sethi and Others reported in (2017) 16 SCC 680 case. Therefore, the compensation which the appellants are entitled to under the head loss of dependency is as under:-

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Heads	Amount in Rs.
Notional monthly income	12,500-00
Annual income	1,50,000-00
Add 40% towards future prospects	2,10,000-00
Deduct 50% towards	1,05,000-00
personal and living
expenses
Apply appropriate multiplier 17	17,85,000-00

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Thus, the amount which the appellants are entitled to under the head loss of dependency is Rs.17,85,000/-. Together with the said sum, the appellants are entitled to Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate. The 1^st appellant being the mother of the deceased is entitled to Rs.40,000/- towards loss of filial consortium.

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Thus, the total sum which the appellants are

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entitled to as compensation is as under:-

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Heads	Amount in Rs.
Loss of dependency	17,85,000-00
Funeral expenses	15,000-00
Loss of estate	15,000-00
Loss of filial consortium	40,000-00
Total	18,55,000-00

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In the light of the discussion that went on with regard to the contributory negligence and as 25% is fixed towards the contributory negligence on part of the deceased, the amount which the respondents are liable to pay as compensation is Rs.13,91,250/- (Rs.18,55,000 - 25%).

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