Partly allowed

Bhimanayaka @ Beemanaik S/O Basyanaik, v. Shambhu R K S/O Rajashekhaarappa

Karnataka HC9 Jan 2024MFA/104032/2016

Case brief

AI extract

What is this about?

Motor accident death claim appeal seeking enhancement of compensation and challenging 50% contributory negligence fixed on the deceased. The court raised notional income to Rs.7,500 with 40% future prospects, awarded conventional heads per precedent, set aside the contributory negligence finding after finding the deceased was a pillion rider, and enhanced compensation to Rs.12,44,000.

What did the court decide?

Compensation enhanced to Rs.12,44,000 with 6% interest; contributory negligence apportionment set aside; insurer to deposit within six weeks.

Bhimanayaka @ Beemanaik S/O Basyanaik, Vs Shambhu R K S/O… — Insurance | Karnataka HC (2024)

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NC: 2024:KHC-D:479-DB MFA No. 104032 of 2016

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 9^TH DAY OF JANUARY, 2024

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PRESENT

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THE HON'BLE MR JUSTICE S G PANDIT

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AND

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THE HON'BLE MR JUSTICE K V ARAVIND MISCELLANEOUS FIRST APPEAL NO. 104032 OF 2016 (MV-D)

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BETWEEN:

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BHIMANAYAKA @ BEEMANAIK, S/O. BASYANAIK, AGE: 44 YEARS, OCC: COOLIE WORK.

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VINODIBAI, W/O. BHIMANAYAKA @ BEEMANAIK, AGE: 40 YEARS, OCC: HOUSEHOLD WORK.

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KIRAN, S/O. BHIMANAYAKA @ BEEMANAIK, AGE: 24 YEARS, OCC: STUDENT.

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CHANDRASHEKAR LAXMAN KATTIMANI Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Date: 2024.01.22 17:20:49 +0530

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SUNIL S/O. BHIMANAYAKA @ BEEMANAIK, AGE: 22 YEARS, OCC: HOUSEHOLD WORK,

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ALL ARE R/O: RANGIKOPPA THANDA, TQ: SHIKARIPUR, NOW AT MARUTHI NAGAR, RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI-581115.

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…APPELLANTS

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(BY SRI. G. S. HULMANI, ADVOCATE)

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AND:

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SHAMBHU R. K, S/O. RAJASHEKHAARAPPA,

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AGE: MAJOR, OCC: BUSINESS, R/O: H.NO.41, MULAKOPPA, POST: BILIKI, TQ: SHIKARIPUR, DIST: SHIMOGA-577450.

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THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD, OPP. P .B. ROAD, NEAR BASAVA VANA, HUBBALLI-580020.

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LAKSHAMANA NAIK D. B, S/O DEVENDRA NAIK, AGE: MAJOR, OCC: BUSINESS, R/O: NO. 39, RAGIKOPPA THANDA, TQ: SHIKARPUR, DIST: SHIVAMOGGA-577427.

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THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD, OPP. P. B. ROAD, NEAR BASAVA VANA, HUBBALLI-580020.

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…RESPONDENTS

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(BY SRI. C. V. ANGADI, ADVOCATE FOR RESPONDENT NO.2 & 4; NOTICE TO RESPONDENT NO.1 AND 3 ARE SERVED)

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THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO CALL FOR RECORDS FROM THE PRL. SENIOR CIVIL JUDGE AND AMACT, RANEBENNUR AND MODIFY THE JUDGMENT AND AWARD PASSED BY THE LEARNED JUDGE, M.V.C NO.612/2014 DTD: 28^TH SEPTEMBER 2016 BY SETTING ASIDE DEDUCTION MADE TOWARDS CONTRIBUTORY NEGLIGENCE; B) ENHANCE THE COMPENSATION AS PRAYED FOR; C) COST OF THE APPEAL.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, K V ARAVIND, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Though this appeal is listed for admission, it is taken up for final disposal, with the consent of learned counsel for both the parties.

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2. The appellants-claimants are before this Court dissatisfied with the quantum of compensation awarded under judgment and award dated 28.09.2016 in M.V.C. No.612/2014 on the file of learned Principal Senior Civil Judge and J.M.F.C., Ranebennur (for short, ‘Tribunal’), praying for enhancement of compensation.

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3. The claimants are father, mother and brothers of deceased Anil B.B. The claimants filed claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the accidental death of deceased Anil B.B. that occurred on 25.02.2014 involving motorcycles bearing registration No.KA-15/TR-9107 and KA-15/U-8076. The claimants contended that the deceased was aged 18 years and was doing mason work earning Rs.10,000/- per month and claimed compensation of Rs.30,00,000/-.

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4. On issuance of notice, respondents No.1, 2 and 4 appeared through their respective counsels. Respondent No.3 failed to appear though served and placed ex-parte . Respondent No.1 is owner of motorcycle bearing No.KA15/U-8076 and respondent No.2 is its insurer. Respondent No.3 is owner of motorcycle bearing No.KA-15/TR-9107 and respondent No.4 is its insurer.

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5. The 1^st respondent in his objection denied the factum of accident, date, time, place and the mode in which the accident has occurred. The 2^nd respondent disputed the relationship of claimants with the deceased, validity of the driving licence and involvement of the vehicle. The 4^th respondent in its objection has contended that deceased was rider of the motorcycle and accident was due to rash and negligent driving of the deceased himself. On the above contentions, respondent Nos.2 and 4 prayed for dismissal of the claim petition.

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6. Before the Tribunal, claimant No.1-father of the deceased examined himself as PW1 and got marked the documents as Exs.P1 to P26. PW2 and PW3 were examined

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in support of the case of the claimants. PW2 is the Doctor, who treated the deceased and PW3 is the Doctor, who conducted postmortem. The Tribunal based on material evidence on record awarded total compensation of Rs.7,27,371/- with interest at 7% per annum on the following heads:

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Towards loss of dependency Rs.6,48,000/Towards transportation of dead body and funeral expenses Rs. 10,000/Medical expenses Rs. 19,371/Towards loss of estate Rs. 10,000/Towards love and affection Rs. 40,000/- Total Rs.7,27,371/-

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7. The Tribunal while awarding the above compensation, assessed notional income of the deceased at Rs.6,000/- per month, deducted 50% of the same towards personal and living expenses of the deceased and applied multiplier of ‘18’. The claimants not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court praying for enhancement of compensation.

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8. Heard learned counsel Sri G.S.Hulmani for the appellants-claimants and Sri C.V.Angadi, learned counsel for

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respondent Nos.2 and 4-Insurance Company, respondent Nos.1 and 3 are served and unrepresented. Perused the appeal papers along with original records.

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9. Learned counsel for the appellants would contend

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that the Tribunal committed an error in assessing the notional income of the deceased at Rs.6,000/- when the deceased was a mason and earning Rs.10,000/- per month. It is submitted that the notional income adopted at Rs.6,000/- per month is on the lower side. It is further submitted that the parents and the brothers were depending on the earning of the deceased, deduction of 50% towards personal expenses is on the higher side. It is further submitted that the compensation awarded under the conventional heads is on the lower side in view of the law laid down by the Hon’ble Apex Court in the case of National

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Insurance Company Limited V/s Pranay Sethi and others¹ .

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1 AIR 2017 SC 5157

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10. It is submitted that the Tribunal quantified the contributory negligence of the deceased at 50% and entitled compensation was determined at Rs.3,63,685.5 (50% of Rs.7,27,371). Learned counsel submits that the deceased was a pillion rider. The Tribunal merely on the basis of the entry in the MLC report at Ex.P22 mentioning Nagaraj Naik as a pillion rider, committed an error in arriving at a conclusion that the deceased was a rider and Nagaraj Naik was a pillion rider without considering the evidence of PW1Doctor, who registered the MLC and also the complaint, FIR and charge sheet.

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11. Per contra , Sri. C.V.Angadi, learned counsel for respondent Nos.2 and 4-Insurance Company submits that the compensation awarded by the Tribunal is just compensation. Learned counsel further relying on Ex.P22 would contend that Nagaraj Naik was recorded as pillion rider and would establish that the deceased was rider of the vehicle. Further contends that Ex.P24-postmortem report would also record that victim i.e. deceased was driving a two wheeler and hence Tribunal rightly quantified contributory

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negligence at 50%. Learned counsel further submits that the notional income, future prospects and compensation on other conventional heads is just and proper. Therefore, prays for dismissal of the appeal.

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12. Having heard the learned counsel for the parties and on perusal of the appeal papers along with original records, the points that would fall for consideration in this appeal are as follows:

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i. Whether the Tribunal is justified in assessing notional income of the deceased at Rs.6,000/- per month?

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ii. Whether the Tribunal is justified in determining the contributory negligence of the deceased at 50%?

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iii. Whether the award of compensation on conventional heads requires modification?

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13. Answer to the Points (i) and (ii) would be ‘in the negative’ and (iii) in the affirmative for the following reasons.

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14. The occurrence of accident on 25.02.2014 and the death of Anil B.B. due to the accident is not in dispute.

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The appellants are before this Court praying for enhancement of compensation and also disputing the deduction of 50% towards contributory negligence.

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15. The Tribunal was right in rejecting the income of the deceased at Rs.10,000/- as no documentary evidence was produced to prove the actual source of income. In the absence of any evidence regarding income, notional income of the deceased was assessed at Rs.6,000/- per month. The year of accident is of 2014 and the notional income in terms of chart prepared by Karnataka State Legal Services Authority is Rs.7,500/- per month. To the above extent, the Tribunal has committed an error in adopting notional income at Rs.6,000/- as against applicable notional income of Rs.7,500/- per month. The Tribunal considering the age of the deceased as 18, has rightly applied multiplier ‘18’. The Tribunal has deducted 50% of the notional income towards personal expenses as per the law laid down by the Hon’ble Apex Court in the case of Sarla Verma & Others V/s Delhi Transport Corporation and Another² . As the deceased

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2 (2009) 6 SCC 121

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was a bachelor and 1^st and 2^nd claimants being father and mother are the dependents, deduction at 50% is justified. Claimant Nos.3 and 4 being majors and considering the age of the deceased and claimant Nos.3 and 4, it cannot be considered that claimant Nos.3 and 4 were dependents on the deceased. Hence, deduction at 50% is justified. The Tribunal has committed an error in not awarding future prospects as per the law laid down by the Hon’ble Apex Court in Pranay Sethi (supra). The deceased was not in permanent job and considering the age of the deceased, future prospects is to be awarded at 40%. Thus, under the head ‘loss of dependency’, the claimants are entitled to a sum of Rs.11,34,000/- [Rs.7,500 + Rs.3,000 (40% future prospects) = Rs.10,500 less Rs.5,250/- (50% deduction) = Rs.5,250/- x 12 (months) x 18 (multiplier)].

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16. The Tribunal committed an error in awarding Rs.10,000/- towards loss of estate and Rs.10,000/- each to the claimants under the head of loss of love and affection and Rs.10,000/- towards transportation of dead body and funeral expenses. In view of the decision of the Hon’ble Apex

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Court in Pranay Sethi (supra), the 2^nd claimant-mother of the deceased would be entitled to a sum of Rs.70,000/- on the conventional heads including consortium, loss of estate and transportation of dead body and funeral expenses. The 2^nd claimant-father would be entitled to a sum of Rs.40,000/- on the head of loss of consortium in terms of law laid down by the Hon’ble Apex Court in the case of

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Magma General Insurance Company Ltd. V/s Nanu

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Ramu and others³ . Thus, the claimants would be entitled

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for modified compensation on the following heads:

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Sl.	Particulars	Amount
No.
1	Loss of dependency	Rs. 11,34,000/-
2	Towards conventional heads	Rs. 70,000/-
3	Loss of consortium	Rs. 40,000/-
	Total	Rs.12,44,000/-

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17. Thus, the claimants would be entitled to total

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compensation of Rs.12,44,000/- as against Rs.3,63,686/awarded by the Tribunal.

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18. The Tribunal committed an error in apportioning the contributory negligence of 50% to the deceased. The

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3 2018 ACJ 2782

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Tribunal on the basis of Exs.P22 and P26-MLC extract and Ex.P24-postmortem report arrived at a conclusion that the deceased was rider of two wheeler. The oral evidence of PW2, author of Ex.P22 and PW3-author of Ex.P24postmortem report is not considered by the Tribunal. Though PW2 in Ex.P22 has recorded that Nagaraj Naik was a pillion rider, subsequently corrections have been carried out to record that Nagaraj Naik was rider and Anil B.B. was pillion rider. The reason for correction has been stated by PW2 in his evidence and in cross-examination nothing contrary is proved. PW2 has clearly stated that at a time four injured persons were brought to the hospital and he was concentrating on treating the injured. Due to oversight, Nagaraj Naik was recorded as rider. PW2 has further deposed that the deceased was not conscious when he was brought to the hospital.

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19. The claimants have examined PW3, the doctor who conducted postmortem and issued Ex.P24-postmortem report. He has stated that mentioning of the deceased was driving two wheeler was due to oversight and he conducted

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postmortem only on the basis of request of the police as per Ex.P25. The Tribunal has failed to appreciate that PWs.2 and 3 are not competent to determine as to whether the deceased was pillion rider or otherwise. The entry made in Exs.P22 and 24 has been clarified in their evidence as PWs.2 and 3 and no contrary evidence has been either produced or elicited by respondent Nos.2 to 4 in cross-examination. Further, the complaint at Ex.P2 reflects that Sri Naganagouda and Nagaraj Naik were riding the two wheelers involved in the accident. Ex.P5-charge sheet also reveals that Nagaraj Naik was rider and the deceased Anil B.B. was pillion rider. In view of Ex.P2-complaint, it is clear that the deceased was a pillion rider. Ex.P5-charge sheet has been filed by the police after detailed investigation and examination of witnesses regarding the accident and concluded that the deceased was the pillion rider. In the circumstances, Exs.P22 and 24 are without any basis and cannot be considered as a conclusive evidence when Ex.P5charge sheet has been filed after due investigation by the

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competent authorities. Evidence of PW2, PW3 and Ex.P5 are to be preferred and considered against Ex.P22 and 24.

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20. For the above reasons, the Tribunal committed an error in determining the negligence at 50% on the deceased and restricting the compensation awarded to 50%.

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21. In the result, we proceed to pass the following:

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ORDER

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a) The above appeal is allowed in part .

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b) The impugned judgment and award of the Tribunal is modified. The finding insofar as the apportionment of contributory negligence of the deceased is hereby set aside. The claimants are entitled to total compensation of Rs.12,44,000/- as against Rs.3,63,686/- awarded by Tribunal.

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