Smt Nagarathna Vs Mr Mujib Peera

MR MUJIB PEERA S/O DADA PEERA MAJOR IN AGE R/AT VOKKALERI VILLAGE & POST KOLAR TALUK & DISTRICT (R C OWNER OF ASHOK LEYLAND LORRY BEARING REG No.KA-07-O-5224)

¶17

THE MANAGER THE NEW INDIA ASSURANCE CO LTD NO.10-1/8-G, PRAKASHAM HIGH ROAD, OPP DISTRICT COURT CHITTOR-517001 (INSURER OF THE ASHOK LEYLAND LORRY BEARING REG No.KA-07-O-5224)

¶18

2 -

¶19

NC: 2025:KHC:6171-DB MFA No. 4438/2014

¶20

POLICY NO. 61270131090100002695 VALID FROM 10.08.2009 TO 09.08.2010

¶21

…RESPONDENTS

¶22

(BY SRI. K N SRINIVASA, ADVOCATE FOR R2 NOTICE TO R1 IS DISPENSED WITH V/O DTD 20.01.2015)

¶23

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.8.2013 PASSED IN MVC NO.3678/2011 ON THE FILE OF THE 5^TH ADDITIONAL SMALL CAUSES JUDGE, 24TH ACMM, MEMBER, MACT, COURT OF SMALL CAUSES, MAYOHALL UNIT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

¶24

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

¶25

CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL and

¶26

HON'BLE MR JUSTICE C.M. POONACHA

¶27

ORAL JUDGMENT

¶28

(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

¶29

This appeal is preferred by the claimant challenging the judgment and award in MVC No.3678/2011 on the file of the Motor Accidents Claims Tribunal and V Additional Small Causes Judge & XXIV ACMM, Court of Small Causes, Mayohall Unit, Bengaluru.

¶30

Appellants were claimant Nos.1 and 2 and respondent Nos.1 and 2 were respondent Nos.1 and 2 in MVC No. 3678/2011. For the purpose of convenience, henceforth

¶31

3 - NC: 2025:KHC:6171-DB MFA No. 4438/2014

¶32

the parties are referred according to their ranks before the Tribunal.

¶33

Claimant No.1 is the wife and claimant No.2 is the mother of deceased-Bhaskar. On 26.06.2010 at 00.40 a.m., when Bhaskar was driving car bearing registration No.KA-03ME-7224 near Gambhiranahalli Village, Jangamakote Hobli, Sidlaghatta Taluk, Ashok Leyland lorry bearing registration No.KA-07-O-5224 which was driven by RW.1–S.A Rajavalli, was proceeding in front of the car and that suddenly stopped. Resultantly, Bhaskar could not control the vehicle and dashed against the lorry from hind side. In the accident, Bhaskar and one Munegowda suffered grievous injuries and died and other inmates of the car suffered injuries. At the time of the accident, respondent Nos.1 and 2 were the registered owner and insurer of lorry bearing registration No.KA-07-O-5224 respectively.

¶34

The claimants filed MVC No.3678/2011 against the respondents contending that Bhaskar was driving the car following all traffic rules, but the driver of the lorry was driving the same in high speed and suddenly without any indication applied the brake and stopped the lorry, resultantly, the car of Bhaskar rammed into the hind portion of the lorry. They

¶35

4 - NC: 2025:KHC:6171-DB MFA No. 4438/2014

¶36

contended that the accident and death of Bhaskar occurred due to the actionable negligence on the part of the driver of the lorry. They further contended that deceased was a practicing Advocate, earning 50,000/- per month and both of them were solely dependant on his income. They further claimed that due to his death they suffered pecuniary and non pecuniary loss, amounting to 30 lakhs and respondents are liable to compensate the same.

¶37

Respondent No.1 did not contest the petition, though he tendered his evidence as RW.1. Respondent No.2 – insurer contested the petition denying the actionable negligence on the part of the driver of the lorry/RW1 and contended that Bhaskar himself was driving the car in rash and negligent manner and was solely responsible for the accident. Respondent No.2 further denied the age, occupation, income of the deceased and its liability to pay the compensation.

¶38

Before the Tribunal, claimant No.1 was examined as PW.1 and on behalf of the claimants Exs.P1 to P21 were marked. On behalf of respondent No.2, got examined RW.1 - the driver of the lorry and its Administrative Officer as RW.2 and Exs.R1 and R2 were marked.

¶39

5 -

¶40

NC: 2025:KHC:6171-DB MFA No. 4438/2014

¶41

The Tribunal on hearing the parties, by the impugned judgment and award held that the deceased Bhaskar and RW.1 contributed 50% negligence each in occurrence of the accident. The Tribunal considered the age of the deceased as 45 years, notionally assessed his income at 20,000/- per month, deducted 1/3<sup>rd</sup> from the same for his personal expenses, applied 13 multiplier and assessed the compensation at 20,80,104/- on the head of loss of dependency. The Tribunal, in all, assessed damages on different heads as

¶42

follows:

¶43

Particulars / Heads	Amount
Loss dependency	`20,80,104.00
Loss of love and affection	`40,000.00
Funeral and obsequies	`10,000.00
Loss of estate	`10,000.00
Loss of consortium	`25,000.00
Total	21,65,104.00

¶44

Tribunal ordered that respondent No.2 shall pay the same on deducting 50% towards the negligence of the deceased.

¶45

The claimants have challenged the said award in

¶46

the above appeal questioning the finding regarding contributory negligence and quantum of compensation awarded.

¶47

6 - NC: 2025:KHC:6171-DB MFA No. 4438/2014

¶48

Submissions of Sri Vijay Kumar, learned counsel for the claimants :

¶49

On the complaint of Sri Srinivasaiah, Sidlaghatta Rural Police Station, Chickballapur on thorough investigation, filed the charge sheet as per Ex.P2 against the driver of the lorry/RW.1. Further, PW.1 herself was inmate of the car and injured eye-witness, she has also spoken about the negligence of RW.1 in driving the lorry. RW.1 in his cross examination has given sweeping admissions showing his absolute negligence in the occurrence of the accident. The Tribunal without properly appreciating the evidence on record has imputed 50% negligence on the deceased himself which is thoroughly erroneous. The deceased was a practicing Advocate, aged 45 years. Therefore, the notional income considered by the Tribunal is on the lower side. Compensation awarded by the Tribunal on other heads is also on the lower side. The Tribunal committed error in not awarding future prospects on the income of the deceased.

¶50

Submissions of Sri K.N. Srinivasa, learned counsel for respondent No.2;

¶51

The charge sheet is not a conclusive proof of negligence. Except PW.1 no other eye witness was examined by

¶52

7 -

¶53

NC: 2025:KHC:6171-DB MFA No. 4438/2014

¶54

the claimants. The evidence on record shows that the deceased had not maintained respectable distance and he was also rash and negligent in driving the car. The evidence of RW.1 shows that there were speed breakers. Therefore, RW.1 could not have driven the lorry in high speed, soon after crossing those road humps. The finding of the Tribunal regarding negligence is based on the material on record which does not warrant any interference. There was no proof of annual income of the deceased. Therefore, notional income considered by the Tribunal is just one. Hence, the appeal is liable to be dismissed.

¶55

On considering the submissions of both side and on examining the records, the questions that arise for consideration are:

¶56

i. Whether the finding of the Tribunal that the accident between the car bearing registration No.KA 03 ME 7224 and lorry bearing registration No.KA-07-O-5224 occurred due to 50% contributory negligence of deceased Bhaskar and RW.1 – the driver of the lorry is sustainable?

¶57

8 - NC: 2025:KHC:6171-DB MFA No. 4438/2014

¶58

ii. Whether the compensation awarded by the Tribunal is just one?

¶59

ANALYSIS

¶60

Reg: Question No.(i) (Negligence)

¶61

None of the parties dispute that on 26.06.2010 at 00.40 hours near Gambhiranahalli Village, Jangamakote Hobli, Sidlaghatta taluk, when Bhaskar was driving car bearing registration No.KA-03-ME-7224 and RW1 was driving the Ashok Leyland lorry bearing registration No.KA-07-O-5224, the car hit the lorry from hind side. It is not disputed that in the accident, Bhaskar and Munegowda died and the other inmates of the car including claimant No.1/PW.1 sustained injuries. It is not disputed that regarding the accident, on the complaint of one Srinivasaiah, Sidlaghatta Rural Police Station registered FIR in Crime No.162/2010 against RW.1 - the driver of the lorry and on investigation, the charge sheet as per Ex.P2 was filed against RW.1 for the offences punishable under Sections 279, 337, 304A and 338 of IPC.

¶62

The contention of the claimants is that RW.1 was driving the lorry rashly and negligently in high speed and

¶63

9 - NC: 2025:KHC:6171-DB MFA No. 4438/2014

¶64

without any indicator, suddenly stopped the lorry, due to which Bhaskar was unable to control the car bearing registration No.KA-03-ME-7224 and hit the lorry from hind side leading to accident and deaths. It is the settled position of law that the proceedings under Section 166 of Motor Vehicles Act, 1988 are summary proceedings and the principles of proof beyond reasonable doubt is not applicable and the evidence has to be appreciated on the principles of preponderance of probability. It is no doubt true that the charge sheet is not the conclusive proof of the facts stated therein, but that has a presumptive value under Section 114 (e) of the Indian evidence Act, 1872. Coupled with the charge sheet, PW.1/the wife of deceased, the injured inmate of the car, in her chief examination spoke about the rash and negligent act of RW.1 which led to the occurrence of the accident. In her cross examination, she denied the suggestion that her husband was responsible for the accident and not RW.1.

¶65

Though RW.1 in his chief examination claimed that he was driving the lorry slowly, following traffic rules and on seeing the speed breakers, he slowed down the lorry, the victim himself came in high speed and dashed his vehicle from

¶66

10 - NC: 2025:KHC:6171-DB MFA No. 4438/2014

¶67

the hind side. In the cross examination, he says that speed breakers were beyond his notice. The Tribunal itself points out the admissions of RW.1 that the lorry had no indicator lights. He admitted that the accident occurred between 12.00 mid night and 1.00 a.m., i.e., dark hours of night. He says that he gave signal to the vehicles which were coming behind him by waving his right hand. To the question that during such night hours such hand signals would not be visible to the persons who are coming behind his vehicle, he pleaded his ignorance. Even assuming that the speed breakers were behind his vehicle, then there is no possibility for the victim to drive his car in a high speed. Nothing could be brought out in the evidence of RW.1 to impeach the prima-facie evidentiary value of the charge sheet which was corroborated by the evidence of PW.1. The said evidence was not rebutted.

¶68

Despite such being the things, the Tribunal says that the driver of the car should have maintained respectable distance and if he was driving slowly, the accident could not have occurred. The above referred evidence shows that when there were road humps, Bhaskar could not have driven the car in high speed, rashly and negligently and he could not have

¶69

11 - NC: 2025:KHC:6171-DB MFA No. 4438/2014

¶70

seen the lorry which suddenly stopped without any indicator lights during such dark hours. Therefore, the conclusion of the Tribunal that Bhaskar who was driving the car also contributed for the accident is contrary to the evidence and unsustainable. The entire negligence has to be imputed on RW.1 -the driver of the lorry.

¶71

Reg: question No.(ii): (Quantum)

¶72

The claimants contended that the deceased was an advocate and earning 50,000/- per month from his profession. It is proved that he was a practicing Advocate but his income of 50,000/- per month was not established. If he was earning 50,000/- per month certainly he would have submitted Income Tax returns. But it was not the case of the claimant that the deceased is income tax assessee and paying the income tax. Exs.P17 and P18, the statement of bank account and bank passbook respectively do not indicate that he had income of 50,000/- as alleged. Therefore, the Tribunal was justified in assessing his income notionally at `20,000/- p.m.

¶73

In the light of the ratio in the judgment of Hon’ble Supreme Court in National Insurance Company Ltd. vs.

¶74

12 -

¶75

NC: 2025:KHC:6171-DB MFA No. 4438/2014

¶76

Pranay Sethi & Ors.¹ and having regard to the age and occupation of the deceased, the Tribunal ought to have awarded future prospects on the income of the deceased at 25%. Since the deceased had two dependents, as per the judgment of the Hon’ble Supreme Court in Sarla Verma & Ors. vs. Delhi Transport Corporation & another² , 1/3^rd has to be deducted out of the income of the deceased for his personal expenses. For his age applicable multiplier is ‘14’. Hence, the contribution of the deceased to his family per month would be [20,000 – 6,666/- (1/3^rd )= 13,334/- + 3,333.25 (25%)] 16,667/- and the compensation payable on the head of loss of dependency would be (16,667 x 12 x 14) `28,00,056/-.

¶77

As per the judgments of Hon’ble Supreme Court in Pranay Sethi (supra) and Magma General Insurance Company Ltd. v. Nanu Ram³ compensation of 40,000/- on the head of loss of consortium with escalation at 10% is payable to claimant Nos.1 and 2 each. Similarly, on the conventional heads of loss of estate and funeral expenses, they are entitled for the compensation of 15,000/- + `15,000/-

¶78

1 AIR 2017 SC 5157

¶79

2 2009 (6) SCC 121

¶80

3 2018 (18) SCC 130

¶81

13 - NC: 2025:KHC:6171-DB MFA No. 4438/2014

¶82

with escalation at 10%. Therefore, just compensation is

¶83

payable is as follows:

¶84

Sl. No.	Heads	Amount awarded by this Court (`)
1.	Loss of dependency	28,00,056.00
2.	Loss of love and affection and consortium	88,000.00
3.	Funeral and obsequies	16,500.00
4.	Loss of estate	16,500.00
	Total	29,21,056.00

¶85

There is no dispute that the lorry was covered by insurance policy issued by Respondent No.2. Therefore, Respondent No.2 is liable to deposit the compensation with interest at 6% per annum. Hence, the following:

¶86

ORDER

¶87

The appeal is allowed in part.

¶88

i) The impugned award in MVC No.3678/2011 passed by the V Additional Small Causes Judge & XXIV ACMM, MACT, Court of Small Causes, Mayohall Unit, Bengaluru is modified as follows:

¶89

a) The claimants are entitled to compensation of

¶90

`29,21,056/- with interest thereon at 6% per annum from the date of petition till realisation excluding 169 days i.e., the period of delay in filing the appeal.

¶91

14 -

¶92

NC: 2025:KHC:6171-DB MFA No. 4438/2014

¶93

b) Respondent No.2 – insurer shall deposit the aforesaid compensation before the Tribunal within four weeks from the date of receipt of a copy of this judgment.

¶94

c) Claimant Nos.1 and 2 are entitled to compensation in the ratio of 70% and 30% respectively.

¶95

d) On deposit of the amount, Tribunal shall digitally release 50% of the share of claimant No.1 to her and invest the balance amount of her share in Fixed Deposit in any Nationalized/Scheduled bank of her choice for a period of three years.

¶96

e) 75% out of the share of claimant No.2 shall be digitally released to her and 25% of her share shall be invested in Fixed Deposit in any Nationalized/Scheduled Bank of her choice for a period of one year.

¶97

f) Transmit the Trial Court Records to the Tribunal

¶98

forthwith.

¶99

Sd/(K.S.MUDAGAL) JUDGE

¶100

Sd/(C.M. POONACHA) JUDGE

¶101

List No.: 1 Sl No.: 41

¶102

BS

Smt Nagarathna v. Mr Mujib Peera

Case brief

What is this about?

What did the court decide?

Smt Nagarathna v. Mr Mujib Peera

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Smt. Ayesha Sulthana Vs Reliance General Insurance Co. Ltd.

M Mohan Kumar Vs M.N.Kempe Gowda

Mrs Roshella D Costa Vs Mr Joe Ashwin Correa

Smt Navya T v Vs Smt Padma N

Sri Pavan Kumar Reddy Vs Smt Sindhura Rajagopal

Sri. Settu. G Vs Smt. Kavitha K R