Kempamma Vs Gopala

THIS MFA IS FILED U/S 173 (1) OF MV ACT, PRAYING TO CALL FOR RECORDS AND JUDGMENT AND AWARD DATED 12.07.2019 PASSED IN MVC NO.771/2018 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE & CJM & MACT, MANDYA AND TO MODIFY THE AWARD, GRANTING THE AMOUNT OF COMPENSATION CLAIMED BY THE APPELLANT IN THE CLAIM PETITION AND FOR ALL CONSEQUENTIAL RELIEFS, IN THE INTERST OF JUSTICE AND EQUITY.

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

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CORAM: HON'BLE MR. JUSTICE T.M.NADAF

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ORAL JUDGMENT

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This appeal is by the appellant – claimant No.2 against the judgment and award dated 12.07.2019, in MVC No.771/2018, passed by the I Additional Senior Civil Judge and CJM, Manday, seeking enhancement of compensation and also seeking to set aside 50% contributory negligence on the deceased.

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The parties shall be referred to as per their ranking before the Tribunal for easy reference.

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The appellant / claimant No.2 along with one H.L. Ningegowda, who died during the pendency of the petition before the Tribunal, have filed a petition under

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HC-KAR

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Section – 166 of the MV Act seeking total compensation of Rs.19,10,000/- along with interest for the death of H.L. Siddaraju, who died in a road traffic accident which occurred on 11.12.2016.

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The date of accident, involvement of the

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vehicle, death of H.L. Siddaraju and liability of the insurance company to pay the compensation are not in dispute. The only dispute is with regard to the quantum of compensation awarded and contributory negligence fastened by the Tribunal in the impugned award.

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Heard Mrs. Bhusani Kumar, learned counsel for the appellant and Sri.P.B. Raju, learned counsel for respondent No.2 – Insurance Company and perused the records.

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Mrs. Bhusani Kumar taking this Court through the judgment and award vehemently contend that in respect of contributory negligence, the Tribunal is not justified fastening contributory negligence to the extent of

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HC-KAR

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50% on the ground that the charge-sheet was filed against the deceased. To prove that there was no contributory negligence on the part of deceased, the appellants have examined P.W.2, who is the complainant and also an eyewitness to the accident, has stated that the offending Auto was driven by its driver in a rash and negligent manner and same was stopped without giving a proper signal, as such the deceased could not control the vehicle and same was collided with the Auto which was moving ahead of deceased. This aspect of the matter has not been considered by the Tribunal and the Tribunal erred in saddling 50% on the deceased as contributory negligence.

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Insofar as enhancement of quantum of compensation, Mrs. Bhusani Kumar submits that the date of accident was of the year 2016 and as per the chart prepared by the Karnataka State Legal Services Authority (for short ‘KSLSA’), the notional income is fixed at Rs.9,500/- p.m., whereas the Tribunal has taken the income of deceased at Rs.8,000/- per month and deducted

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HC-KAR

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50% of compensation towards contributory negligence on the deceased and sought to allow the appeal, thereby enhance the compensation setting aside the finding of saddling of 50% contributory negligence on the deceased.

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Per contra , Sri. P.B. Raju vehemently submitted that the Tribunal has properly considered the case of the claimants on the available police records, especially the spot sketch and the spot mahazar and the Tribunal has rightly come to the conclusion that deceased was negligent while riding his motorcycle and contributed 50% towards the accident.

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So far as income of deceased, the Tribunal in the absence of proof of income, considered the income at Rs.8,000/- p.m. and added 40% towards future prospects, considering the age of the deceased as 34 years, properly applied multiplier of ‘16' and awarded just and proper compensation and same does not call for interference or modification at the hands of this Court.

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HC-KAR

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Having heard the learned counsel for the

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parties, perused the entire appeal papers, the points that

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arise for consideration of this Court are:

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1. Whether the Tribunal is right in holding that deceased contributed 50% negligence in causing the accident?

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1. Whether the compensation awarded by the Tribunal befit in the concept of just compensation?

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My answer to the above points are as under:

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Point No.1: In Negative

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Point No.2: Partly in Affirmative for the following:

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REASONS

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Point No.2 : Before the dwelling on point No.1,

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it is feasible to decide point No.2 i.e., whether the compensation awarded by the Tribunal befit within the expression just compensation. As per the income fixed for

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an unskilled labour for the year 2016 by the Karnataka

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HC-KAR

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State Legal Services Authority, within the jurisdiction of Principal Bench, is at Rs.9,500/- p.m. In the absence of any documentary proof, the Tribunal ought to have considered the income at the rate of Rs.9,500/- p.m. instead of Rs.8,000/- p.m. Further, the Tribunal has committed an error in deducting 1/3^rd towards personal expenses instead of 50% as held by the Hon’ble Apex Court in the case of SARLA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANOTHER¹

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as the deceased being bachelor at the relevant point of time. Considering the same, the compensation under the head ‘loss of dependency’ requires re-consideration and re-determination.

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On redetermination, the compensation works out as follows:

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(Rs.9,500 + 40%) - 50% x 12 x 16 =

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Rs.12,76,800/-

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1 2009 ACJ 1298

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HC-KAR

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So far as compensation under the conventional

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heads, the Tribunal has properly awarded the compensation and same does not call for any interference. However, in view of the judgment of the Hon’ble Apex Court in the case

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of RASMITA BISWAL & OTHERS VS. DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED

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AND ANOTHER² , there shall be an enhancement of 10% on the conventional heads for every three years from 2017. In the case on hand, till the year 2025 from 2017, two terms of three years required to be taken for awarding 10% compensation on the conventional heads.

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Thus, in all the appellants/claimants are entitled

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for enhanced compensation as follows:

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Heads of compensation		Amount
Loss of Dependency	: Rs.	12,76,800/-
Loss of Estate	: Rs.	15,000/-
Loss of Funeral Expenses	: Rs.	15,000/-

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2 (2022) 2 SC 767

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Loss of Filial Consortium	:	Rs.	80,000/-
(Rs.40,000 x 2)
10% escalation for three completed years	:	Rs.	22,000/-
[Rs.1,10,000 x 10% x 2 (3 years + 3 years)]
TOTAL	:	Rs.	14,08,800/-

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The total compensation re-determined by this Court works out to Rs.14,08,800/as against Rs.8,74,264/- awarded by the Tribunal. The appellants – claimants are entitled for an additional compensation of Rs.5,34,536/- (Rs.14,08,800 – Rs.8,74,264) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal. Accordingly, point No.2 is answered partly in affirmative.

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Point No.1: Insofar as contributory negligence is concerned, as could be seen from the record, initial report before the Police was registered against the driver

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HC-KAR

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of Goods Auto bearing Registration No.KA-09/4513. Further, as could be seen from the complaint averments, the Goods Auto which was proceeding ahead of motorcycle which the deceased was riding, met with an accident as

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the driver of the Goods Auto suddenly applied break without giving any signal. In view of sudden application of break by the driver of Goods Auto, the rider of the motorcycle, before he could take any action, collided against the Goods Auto, causing severe injuries to deceased resulting in his death. The Tribunal, on the basis of abated charge-sheet filed against the rider of the motorcycle on the premise that the rider of the motorcycle caused the accident to a stationed Autorickshaw in a rash and negligent manner, the said charge-sheet goes against the statement made in the complaint. The insurance company has not examined any of the witness i.e., the investigation officer to prove the contents of the chargesheet. The only witness who has been examined on behalf of the insurance company is the officer of the insurance

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HC-KAR

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company who was admittedly not present at the time of the accident and he has filed his affidavit evidence only on the basis of charge-sheet material. However, the insurance company has not taken any pain to examine the investigation officer to substantiate abated charge-sheet filed against the deceased.

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As could be seen from the initial report, it clearly depict that it is the Auto driver who was moving ahead, applied break which resulted in motor cycle dashing against the Auto resulting in sever injuries to the deceased resulting in his death. Under these circumstances, this Court is of the opinion that, in the absence of proper evidence, the deceased was not the reason for the accident. It is pertinent to mention here

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that the Tribunal at para No.12 of the judgment also observed that in the mahazar or in the charge sheet, nowhere it is stated that Goods Auto was parked in a parking area in front of the Engineer’s Office, but rough sketch does not display any parking area nor it is stated in

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the charge-sheet that Auto was parked at a place designated for parking and found that the mahazar, rough sketch and charge-sheet are inconsistent with each other. The claimants have examined eyewitness Sri T.S. Mahendra Kumar, the complainant who set the criminal law into motion, has stated in an unequivocal terms that it is the Auto which was moving ahead and its driver applied sudden break, reason for the rider following to collide with Auto. The incident even as per Ex.P.1 – FIR, had happened on 11.12.2016 at about 4.30 p.m. The FIR was lodged on the very same day at 10.00 p.m. Looking to the injuries which are resulted in death, there is nothing to

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show that the complaint is lodged by creating a false story. P.W.2 with-stood the cross-examination. Nothing worthwhile has been elicited in his cross-examination to discredit the version of the eyewitness. Under these circumstances, the findings of the Tribunal that the deceased was reason for the accident and fastening 50% liability on the deceased is uncalled for and accordingly the

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HC-KAR

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Issue No.1 is answered in affirmative instead of partly affirmative and the point for consideration raised in this appeal is answered in Negative, thereby setting aside the finding of the Tribunal saddling 50% towards contributory negligence on the deceased.

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For the foregoing reasons, this Court proceeds to pass the following:

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ORDER

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i) The appeal is Allowed-In-Part ;

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ii) The judgment and award dated 12.07.2019, in MVC No.771/2018, passed by the I Additional Senior Civil Judge and CJM, Mandya is modified;

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iii) The appellants – claimants are entitled for redetermined compensation of

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Rs.14,08,800 along with interest at 6% per annum from the date of filing of the petition till realization;

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iv) The respondent No.2 – Insurance company shall deposit the entire re-determined compensation amount along with interest, at 6% P.A., stated Supra before the Tribunal, within Six weeks from the date of receipt of a copy of this order after deducting the compensation already deposited;

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v) Other directions regarding release and deposit is as per the order of the tribunal.

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vi) No order as to cost.

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Sd/(T.M.NADAF) JUDGE

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BL

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List No.: 1 Sl No.: 53

Kempamma v. Gopala

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Kempamma v. Gopala

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