Smt. Jayalakshmi Vs Mahesh v

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.02.2020 PASSED IN MVC NO. 572/2018 ON THE FILE OF THE JUDGE, PRINCIPAL COURT OF SMALL CAUSES, MYSURU, AS A PRESIDING OFFICER, MOTOR ACCIDENTS CLAIMS TRIBUNAL, MYSURU, 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: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This appeal is filed by the claimants against the judgment and award dated 03.02.2020 in MVC No.572/2018 passed by the Motor Accidents Claims Tribunal Mysuru (for short 'Tribunal'), seeking

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HC-KAR

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enhancement of compensation and also questioning the liability of respondent No.2.

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Though appeal is slated for admission, with the consent of learned advocates appearing for both the sides, it is taken up for final disposal.

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For the sake of convenience, the parties are referred to as per their rankings before the Tribunal.

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The brief facts of the case of both the parties before the Tribunal are as follows:

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On 08.04.2018, at about 3.00 p.m., deceased Lokesh D, met with an accident due to rash and negligent driving of a Maxicab bearing registration No.KA-09/C-8100, on Hunsur to K R Nagar road near Shanidevara Temple, Kalkunike, within the limits of Hunsur town. As a result of the impact, Lokesh D sustained grievous injuries and succumbed to the same on spot. The claimants, being his wife, children and mother, who were dependent on the

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income of the deceased, prayed for awarding

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compensation.

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Respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle. Respondent No.1 appeared, but did not file objections to the claim petition.

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The respondent No.2-insurer filed its written statement, denying the averments of the claim petition. It denied its liability to pay the compensation on the ground that accident occurred due to the negligence of deceased himself. With these reasons, prayed to dismissal of the claim petition.

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On the basis of the rival contentions of the parties, the tribunal framed necessary issues, for its determination.

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The claimants to prove their case examined

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two witnesses as PWs-1 and 2 and marked documents as per Exs.P1 to P15. Respondents did not lead any oral

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evidence, however, respondent No.2 produced two

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documents marked as Exs.R1 and 2.

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The tribunal after hearing both parties held that the accident occurred due to rash and negligent driving of deceased as well as the driver of the Maxicab, and apportioned the contributory negligence in the ratio of 30:70. The Tribunal assessed the income of the deceased at Rs. 7,500/- per month, added 25% of income towards future prospects, deducted one-third towards personal expenses, applied the multiplier of '14', and awarded the following amount of compensation.

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1	Towards loss of financial dependency	10,50,000-00
2	Towards loss of love and affection	40,000-00
3	Towards estate	15,000-00
4	Towards funeral expenses and transportation of body	15,000-00
5	Towards loss of consortium	40,000-00
	*Total*	*11,60,000-00*

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HC-KAR

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Heard the arguments of the learned counsel appearing for both side parties.

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Fact of accident and the death of Lokesh D in the said accident are not seriously disputed. The main contention of the appellants is that the deceased was not at all responsible for the accident, rather, the driver of the offending vehicle went to the wrong side of the road and hit the motorcycle on which the deceased was traveling. Relying on the law laid down in the case of Dr.Mahadeva Deshi and another Vs. M/s. Cholamandala M.S. General Insu. Co. Ltd., and another¹ , Tribunal held that deceased also contributed to the accident in question since he was driving the vehicle without holding a valid driving license. On this ground, the tribunal held that deceased has contributed negligence to an extent of 30%.

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1 2016(1) AKR 553

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Learned counsel for respondent No.1 contended that the tribunal on verification of the material available on record, has properly appreciated the evidence and awarded just and reasonable amount of compensation, which does not call for any interference by this court.

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The concept of contributory negligence has to be decided based on the facts and circumstances of each and not blindly following the law laid down in some other judgment. PW-1 is not an eyewitness, she is the wife of the deceased. In her cross examination, she gave certain statements favourable to the insurer, but they cannot be relied upon, as she is not a relevant witness to speak about the manner in which accident occurred. PW-2, on the other hand, is an eyewitness to the incident. In his examination-in-chief, he clearly stated the manner in which accident had occurred. In his cross-examination, he denied the suggestions that he had not witnessed the accident. His name is mentioned in the charge sheet as an eyewitness to the accident, cited as CW-3 in Ex.P8.

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The tribunal considered the spot mahazar and

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spot sketch produced at Exs.P3 and 4, which show that the driver of the offending vehicle went to the wrong side of the road, probably towards the Kalkunike side and hit the motorcycle. Even Ex.P5 shows that most of the damage was on the left side of the offending vehicle. If the driver was moving properly on the left side of the road, the collision would not have occurred on the right side. Since the accident was head-on collision, these facts reveal that the accident occurred due to the negligence of the driver of the offending vehicle.

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The tribunal, without assigning proper reasons,

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held that the deceased contributed to the accident merely on the ground that he did not possess a driving license. In the case of Sudhir Kumar Rana Vs Surinder Singh and others² , the Hon'ble Supreme Court held that mere absence of driving license is not ground to hold that such

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2 2008 (12) SCC 436

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driver is liable to contributory negligence. Paragraph 8 of

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the said judgment reads as under.

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"f 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 minitruck which was being driven 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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The Law laid down in the aforementioned

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judgment is applicable to the facts of present case. Therefore, the finding of the tribunal in this aspect is liable

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to be set aside.

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Learned counsel for the appellants submit that

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the deceased was owning agricultural land to an extent of 3 acres and to substantiate the same, the RTC extracts

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has been produced as Ex.P14. It is further submitted that deceased was also participating in the purchase of tobacco

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through auction conducted by the Tobacco Board and in support thereof, records have been produced as Exs.P12 and 13. These documents corroborates the evidence of PW-1 that the deceased was earning more than Rs.15,000/- p.m., from agriculture as well as tobacco business.

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Except producing RTC extracts and the said documents, there is no other material available on record to accurately assess the income derived from agriculture and tobacco business. Even from the evidence of PW-1, it is clear that after the death of Lokesh D, she neither stopped cultivation nor sold the agriculture land. On the contrary, Ex.P.11 shows that she continued the tobacco business by participating in the auction conducted by the competent authority. Therefore, income derived from agriculture land and the tobacco business cannot be said to have been completely lost, at the most, the claimants might have engaged labourers for cultivation of the agricultural land.

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The tribunal has taken the loss of income of the

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deceased at Rs.7,500/- p.m., comparing to the chart prepared by the Karnataka State Legal Services Authority, income of the deceased taken by the tribunal is on the lower side. By following the said chart, as the accident is of the year 2018, income of deceased is taken at Rs.12,500/- P.M., The deceased was aged about 45 years, at the time of accident and this fact is supported by his school leaving certificate. As per the law laid down in the case of National Insurance Company Ltd v. Pranay Sethi³ which has also been referred to by the tribunal, 25% of the income is to be added towards future prospects. The appropriate multiplier applicable for the age of 45 years is '14'. Since the deceased had four dependants, 1/4 of the income has to be deducted towards personal expenses. On these factors loss of dependency is recalculated.

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3 (2017) 16 SCC 680

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20. Learned counsel for the appellant further

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submits that the compensation awarded by the tribunal under the heads loss of consortium and loss of love and affection is on lower side. Relying upon the law laid down

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in Magma Insurance General Co.Ltd., Vs Nanu Rama Alian Chuhru Ram and others,⁴ the claimants are

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entitled for enhanced compensation same is tenable.

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For the above mentioned discussion the claimants are entitled to following compensation.

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1	Loss of dependency 12,500 + 25% X 12 X 14 X 3/4	19,68,750/-
2	Loss of consortium 40,000 X 4=1,60,000/-	1,60,000/-
3	Towards estate	15,000/-
4	Funeral Expenses	15,000/-
	Total	21,58,750/-
	Amount awarded by the tribunal (after deducting 30% of the contributory negligence)	8,12,000/-
	Enhanced amount	13,46,750/-
	Rounded off	13,47,000/-

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4 (2018) 18 SCC 130

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The claimants are entitled to interest at the rate

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6% p.a. on the amount of compensation from the date of

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petition till its realization. Undisputedly respondents are liable to pay the same.

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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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II. The judgment and award dated 03.02.2020 in MVC No.572/2018 passed by Motor Accidents Claims Tribunal Mysuru, is modified.

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III. The claimants are entitled to enhanced compensation of Rs.13,47,000/with interest at the rate of 6% p.a. on the enhanced amount, from the date of petition till its realization.

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