Partly allowed

Mani. a v. M/S. Hariharan Logistics Parthiban

Karnataka HC21 Sept 2024MFA/5663/2019

Case brief

AI extract

What is this about?

In an appeal against a motor accident compensation award, the High Court set aside the Tribunal's finding of 30% contributory negligence. The court held the driver alone was negligent and enhanced the compensation to Rs. 18,55,000, awarding full head of filial consortium and adjusting interest rates.

What did the court decide?

The appeal allowed in part; compensation enhanced to Rs. 18,55,000; interest rate reduced to 6% p.a.; insurer directed to deposit full amount within six weeks.

Mani. a Vs M/S. Hariharan Logistics Parthiban — Money Laundering | Karnataka HC (2024)

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1 - NC: 2024:KHC:39012 MFA No. 5663 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO. 5663 OF 2019 (MV)

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BETWEEN:

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MANI. A S/O LATE M NATESHAN AGED ABOUT 56 YEARS

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ANITHA M W/O KARTHIK N D/O MANI M AGED ABOUT 32 YEARS BOTH ARE RESIDING AT NO.30 B SECTOR, RAMAIAH REDDY COLONY BASAVANAGAR, NEAR INDIAN PUBLIC SCHOOL MARATHALLI, BENGALURU-560 069.

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…APPELLANTS

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(BY SRI. GURUDEV PRASAD K T.,ADVOCATE)

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AND:

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Digitally signed by HEMALATHA A Location: HIGH COURT OF KARNATAKA

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M/S. HARIHARAN LOGISTICS PARTHIBAN, OLD NO.6, NEW NO.1 1ST FLOOR, POST OFFICE STREET MANNADI, CHENNAI.

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BHARATI AXA GIC LTD., FERNS ICON,SITE NO.28 1ST FLOOR, DODDANAKKUNDHI BENGALURU-560 037 REPRESENTED BY ITS MANAGER

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…RESPONDENTS

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(BY SRI.B.PRADEEP., ADVOCATE FOR R2: NOTICE TO R1 IS DISPENSED WITH V/O DATED: 04.08.2023)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:23.01.2019 PASSED IN MVC NO.1306/2018 ON THE FILE OF THE V ADDITIONAL SMALL CAUSES JUDGE AND XXIV A.C.M.M., MEMBER, M.A.C.T., MAYO HALL UNIT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD

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ORAL JUDGMENT

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This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) has been filed by the claimants challenging the judgment and award dated 23.01.2019 passed by the MACT, Bengaluru in MVC No.1306/2018.

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Facts giving rise to the filing of the appeal briefly stated are that on 21.01.2018, when the deceased Santhosh Kumar was riding Suzuki Access bearing registration No.KA-03-HZ-2131 on Kasthurinagar, near Railway Pallar Road, at that time, a lorry bearing

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registration No.TN-04-AC-0987 was parked in a rash and negligent manner without any indication in the middle of the road, due to which, the deceased dashed to the lorry from behind. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries.

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The claimants filed a petition under Section 166 of the Act seeking compensation for the death of the deceased along with interest.

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Upon service of notice, the respondent No.2 appeared through counsel and filed written statement denying the averments made in the claim petition. The respondent No.1, despite service of notice, did not appear before the Tribunal and was placed ex-parte.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter, recorded the evidence. The Tribunal, by impugned judgment and

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award has partly allowed the claim petition and held that the claimants are entitled to a compensation of Rs.13,15,200/- along with interest at the rate of 9% p.a. and directed the Insurance Company to deposit 70% of the compensation amount along with interest. Being aggrieved, the present appeal has been filed.

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The learned counsel for the claimants has raised the following contentions:

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NEGLIGENCE:

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Even though the Tribunal has answered issue No.1 in the affirmative, but it has erred in holding that the deceased has contributed to the accident to the extent of 30% only on the ground that the police have filed abated charge sheet against the deceased that the deceased was not holding valid driving licence as on the date of accident. The said finding of the Tribunal is contrary to the materials available on record. The driver of the offending vehicle alone is negligent in causing the accident.

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QUANTUM OF COMPENSATION

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a) Firstly, the claimants assert that the deceased was aged about 30 years at the time of the accident and had a monthly income of Rs.30,000/- by doing Chicken business. However, the assessment of monthly income of the deceased at Rs.9,000/- by the Tribunal is unjustified and erroneous.

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b) Secondly, as per the law laid down by the Hon’ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], in cases, where the deceased was selfemployed or received a fixed salary, an addition of 40% of the established income towards ‘future prospects’ is warranted when the deceased was below the age of 40 years. The said principle has been rightly applied by the Tribunal to the present case.

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c) Thirdly, as per the law laid down by the Hon’ble Supreme Court in the case of PRANAY SETHI (supra), the claimants are entitled for Rs.15,000/- towards ‘loss of estate’ and Rs.15,000/- towards ‘funeral expenses’.

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d) Fourthly, as per the judgment of the Hon’ble Supreme Court in the case of MAGMA GENERAL

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INSURANCE CO. LTD. –V- NANU RAM [2018 ACJ 2782] , each of the claimants is entitled to compensation of Rs.40,000/- under the head of ‘loss of love and affection and consortium’.

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e) Lastly, considering the age and avocation of the deceased, the overall compensation awarded by the Tribunal is inadequate and on the lower side.

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With the above contentions, the learned counsel sought to allow the appeal.

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On the other hand, the learned counsel for the Insurance Company has raised the following countercontentions:

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NEGLIGENCE:

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At the time of the accident, the deceased/rider of the motorcycle was not holding valid driving licence. The police have filed abated charge sheet against the

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deceased. Therefore, the Tribunal has rightly held that deceased has contributed to the accident to the extent of 30%.

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QUANTUM OF COMPENSATION:

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a) Firstly, although the claimants claim that the deceased was earning Rs.30,000/- per month, they have failed to substantiate their claim with supporting documents. Consequently, the Tribunal has correctly assessed the income of the deceased notionally.

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b) Secondly, since the claimants have not established

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the income of the deceased, they are not entitled for compensation towards ‘future prospects’.

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c) Thirdly, on appreciation of oral and documentary evidence and considering the age and avocation of the deceased, the overall compensation awarded by the Tribunal is just and reasonable.

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d) Lastly, in light of the Division Bench decision of this Court in the case of MS.JOYEETA BOSE AND OTHERS –

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V- VENKATESHAN.V AND OTHERS (MFA 5896/2018

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AND CONNECTED MATTERS DISPOSED OF ON

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24.8.2020), the rate of interest awarded by the Tribunal at 9% p.a. on the compensation amount is on the higher side.

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With the above contentions, the learned counsel sought to dismiss the appeal.

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Heard the learned counsel for the parties and perused the judgment and award of the Tribunal.

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RE: NEGLIGENCE:

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The specific case of the claimant is that on 21.01.2018, when the deceased Santhosh Kumar was riding Suzuki Access bearing registration No.KA-03-HZ2131 on Kasthurinagar, near Railway Pallar Road, at that time, a lorry bearing registration No.TN-04-AC-0987 was parked in a rash and negligent manner without any indication in the middle of the road. Since it was early morning, without noticing the parked lorry, the deceased

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dashed to the lorry from behind. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries.

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On the basis of the pleadings of the parties, the Tribunal has framed issues. Issue No.1 reads thus:

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“1. Whether the petitioner proves that on 21.01.2018 at about 04:00 AM, the deceased (Santhosh Kumar.M) was riding Suzuki Access bearing Reg.No.KA-03-HZ-213, Kasthurinagar 1^st Main Road, Bangalore, at that time, one lorry bearing Reg. No.TN-04-AC-0987 came in a rash and negligent manner and dashed to the deceased vehicle, due to which, the deceased succumbed to the accidental injuries while he was on the way to the hospital?”

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On appreciation of the evidence of the parties and materials available on record, the Tribunal has answered the said issue in affirmative holding that the driver of the lorry alone was negligent in causing the accident. But, however, it has erred in holding that deceased has contributed to the accident to the extent of 30% on the

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ground that the police have filed abated charge sheet against the deceased that deceased was not holding valid driving licence as on the date of accident. Without there being any finding by the Tribunal that the deceased has contributed to the accident, the Tribunal ought not to have attributed any negligence on the part of the deceased.

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The Apex Court in the case of Dinesh Kumar J. @ Dinesh J, Vs. National Insurance Co. Ltd. reported in (2018) 1 SCC 750 in paragraphs 7 and 8 has held as follows:

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“7. Insofar as the judgment of the High Court is concerned, the Division Bench has placed a considerable degree of importance on the fact that there was no visible damage to the lorry but that it was the motor cycle which had suffered damage and that there was no eye-witness. We are in agreement with the submission which has been urged on behalf of the appellant that plea of contributory negligence was accepted purely on the basis of conjecture and without any evidence. Once the finding that there was contributory negligence on 1 (2008) 12 SCC

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436 the part of the appellant is held to be without any basis, the second aspect which weighed both with the tribunal and the High Court, that the appellant had not produced the driving licence, would be of no relevance. This aspect has been considered in a judgment of this Court in Sudhir Kumar (2008) 12 SCC 436 where it was held as follows :

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“9.If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini truck who was driving rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence.

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10. The matter might have been different if by reason of his rash and negligent driving, the accident had taken place.”

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8. In view of the above position, we are of the view that the deduction of forty per cent which was made on the ground of contributory negligence is without any basis. Accordingly, we direct that the appellant shall be entitled to an additional amount of Rs.4.60 lakhs which was wrongly disallowed.”

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In view of the above judgment of the Apex Court, it is very clear that unless the deceased has contributed to the accident, it cannot be held that the deceased has contributed to the accident only on the ground that deceased was not holding valid driving licence as on the date of accident.

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Therefore, the finding of the Tribunal on negligence that the deceased has contributed to the accident to the extent of 30% on the ground that the deceased was not having valid driving licence as on the date of accident, is contrary to the provisions of MV Act and materials available on record. Hence, the said finding of the Tribunal is set aside. It is held that the driver of the offending lorry alone is negligent in causing the accident and the insurer

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of the lorry is liable to pay the entire compensation to the claimants.

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QUANTUM OF COMPENSATION:

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The claimants claim that deceased was earning Rs.30,000/- per month, but failed to produce supporting documents to substantiate their claim. In the absence of proof of income, the notional income has to be assessed. According to the guidelines issued by the Karnataka State Legal Services Authority, for accidents occurred in the year 2018, the notional income of the deceased shall be taken at Rs.12,500/- p.m. To the aforesaid income, 40% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in ‘PRANAY SETHI’ (supra). Thus, the monthly income comes to Rs.17,500/-. Since the deceased was a bachelor, it is appropriate to deduct 50% of the income of the deceased towards personal expenses and remaining amount has to be taken as his contribution to the family. The deceased was aged about 30 years at the time of the accident and multiplier applicable to his age group is ‘17’.

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Thus, the claimants are entitled to compensation of Rs.17,85,000/- (Rs.17,5001217*50%) on account of ‘loss of dependency’.

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In addition, the claimants are entitled to compensation of Rs.15,000/- on account of ‘loss of estate’ and compensation of Rs.15,000/- on account of ‘funeral expenses’.

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In view of the law laid down by the Supreme Court in the case of ‘MAGMA GENERAL INSURANCE’ (supra), claimant No.1, mother of the deceased is entitled for compensation of Rs.40,000/- under the head of ‘loss of filial consortium’.

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Thus, the claimants are entitled to the following compensation:

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Compensation under different Heads	Amount in (Rs.)
Loss of dependency	17,85,000
Funeral expenses	15,000

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Loss of estate	15,000
Loss of Filial consortium	40,000
Total	18,55,000

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In the result, the following order is passed:

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ORDER

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a) The appeal is allowed in part .

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b) The judgment of the Claims Tribunal is modified. c) The claimants are entitled to a total compensation of Rs.18,55,000/- .

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d) Following the judgment of the Division Bench of this Court in the case of ‘MS.JOYEETA BOSE’ (supra) , the enhanced compensation shall carry interest at

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6% p.a.

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e) The Insurance Company is directed to deposit the entire compensation amount along with interest from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of a copy of this judgment.

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