Sri Muniyappa Vs Sri Rajanna

SMT. PAPAMMA W/O MUNIYAPPA, AGED ABOUT 53 YEARS, BOTH THE APPELLANTS ARE RESIDING AT NO.40, NEELAKANTAPPA NILAYA, 3^RD CROSS, DEVASANDRA, K R PURAM, BANGALORE-36.

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…APPELLANTS

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(BY SMT. SUSHMITH GOPALKRISHNA, ADVOCATE FOR SRI. GOPALKRISHNA N.,ADVOCATE)

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Digitally signed by KORLAHALLI BHARATHIDEVIKRISHNACHARYA Location: HIGH COURT OF KARNATAKA

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AND:

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SRI. RAJANNA S/O PAPANNA, MAJOR IN AGE, RESIDING AT PATALAMMA EXTENSION, MALUR TOWN, KOLAR DISTRICT- 563 101.

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IFFCO TOKIO GENERAL INSURANCE COMPANY LTD., NO.41,2^ND FLOOR,

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HC-KAR

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CHRISTU COMPLEX, LAVELLE ROAD, BANGALORE-560 001. REP: BY ITS MANAGER.

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…RESPONDENTS

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(BY SRI. D.S. SRIDHAR, ADVOCATE FOR R2, R1 IS SERVED AND UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:3.2.2014 PASSED IN MVC NO.8307/2011 ON THE FILE OF THE XXII ADDL.SMALL CAUSES JUDGE & MEMBER MACT, COURT OF SMALL CAUSES, BANGALORE, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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THIS APPEAL, COMING ON FOR FINAL HEARING, 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 3^rd February 2014, passed by the XXII Addl.Small Causes Judge and M.A.C.T., Bengaluru, (for short `Tribunal'), in MVC No.8307/2011.

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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 were that :

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HC-KAR

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On 21.03.2010, the deceased, M. Arun Kumar, was travelling as a pillion rider on a motorcycle bearing registration No. KA-08-J-6662, which was being ridden by his friend Prashant. They were going from Vokkaleri village to Malur town and Prashant was riding the motorcycle in a rash and negligent manner. At around 6.45 p.m., when they reached near JSS College, Malur Town, an autorickshaw bearing registration No.KA-03-B-1278, driven by its driver in a rash and negligent manner, came from the opposite direction and hit the motorcycle. As a result, pillion rider M.Arun Kumar fell from motor cycle; he suffered grievous injuries and died at the spot.

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It is the further case of the claimants that the deceased was aged 25 years and earning Rs.10,000/- by working as an Animation Technician in Bluegrass Studios at RMV 2^nd Stage, Bengaluru. He was contributing his earnings to the family. Claimants are parents of the deceased. With these reasons, they prayed to award compensation of Rs.15 lakhs.

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HC-KAR

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Respondent No.1 is the owner and respondent No.2 is the insurer of the offending motorcycle in which the deceased was travelling. Respondent No.1 remained ex parte before the Tribunal.

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The respondent No.2-insurer filed its written statement, denying the contentions of the claim petitioners. It denied its liability to pay the compensation on the ground that accident occurred due to the negligence of driver of the autorickshaw. With these reasons, prayed to dismiss the claim petition.

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From 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 two witnesses as PW-1 and PW-2 and marked 10 documents, as per Exs.P-1 to P-10. Respondent No.2 has examined one witness as RW-1 and marked Ex.R-1.

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The Tribunal after hearing both parties held that, accident occurred due to rash and negligent driving of the autorickshaw by its driver. He is not a party to the

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proceedings. Therefore, claim petition is not

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maintainable. Hence, prayed to dismiss the claim petition. Same is challenged by the claimants in the present appeal.

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I have heard the arguments of learned counsel for the appellants and learned counsel for the insurer.

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The learned counsel for the appellants/claimants vehemently contended that, as per the pleadings of the claimants, accident occurred due to rash and negligent driving of both the drivers of the vehicles. Even in the evidence of PW-2, said fact was reiterated. The Tribunal on the basis of contents of the charge sheet, held that the accident occurred solely due to the negligence of driver of the autorickshaw, which is erroneous. He further contended that the deceased was qualified and he working as an Animator, earning Rs.10,000/- per month. His salary certificate and qualification certificate have been produced before the Court. However, they were not at all

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considered by the Tribunal. Therefore, the findings of the

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Tribunal is erroneous.

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I have anxiously perused the materials on record.

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Undisputedly, there was a collision occurred between an autorickshaw and a motorcycle. The deceased being a pillion rider on the motorcycle. This fact is clearly reflected in the FIR and the complaint. The spot mahazar and the spot map have been produced as Exhibits P-3 and P-9, respectively. The inquest mahazar conducted on the deceased's body and the post-mortem report are marked as Exhibits P-4 and P-5. Upon examining the contents of Exhibits P-3 and P-9, it is evident that the collision was head-on, and both vehicles were more or less positioned in the middle of the road. According to Exhibit P-9, the width of the road at the accident site was 18 feet. It is not the case of the respondents that there was heavy traffic at the location at the time of the accident. When sufficient road space was available, there was no justification for the motorcycle rider to move toward the center of the road.

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HC-KAR

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Likewise, the autorickshaw driver could also have taken measures to avoid the collision. Therefore, due to the composite negligence of both the motorcycle rider and the autorickshaw driver, an unfortunate accident occurred, resulting in the death of the pillion rider.

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The Tribunal appears to have been carried away merely by the filing of the charge sheet against the driver of the autorickshaw. PW-2 who is an eye witness to the incident, specifically stated that drivers of both the vehicles were negligent in driving their respective vehicles. There is nothing brought out in his crossexamination to disbelieve his evidence. The said evidence is corroborated by Exs.P-1 and P-9. Therefore, without any hesitation, it can be concluded that accident occurred due to composite negligence of drivers of both the vehicles.

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The Hon'ble Apex Court in the case of Khenyei -vs- New India Assurance Company Limited

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and others,¹ held that, in case of composite negligence, the claimants can recover the compensation from either of the joint tortfeasors.

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In the present case, one of the joint tortfeasor is made as a party. Therefore, claimants are entitled to recover the compensation from one of the joint tortfeasor; and c laim petition is maintainable. However, the Tribunal erroneously held that, in the absence of driver or owner of the autorickshaw, claim petition is not maintainable.

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The Tribunal has relied upon previous statement made by PW-1 before the police at the time of inquest mahazar that she was not an eye witness to the incident. Hence, whatever the police recorded in her alleged statement at the time of drawing up of inquest mahazar, is not conclusive.

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The Tribunal has not assessed the compensation since the claim petition was dismissed as not

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1 (2015) 9 SCC 273

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maintainable. Since all relevant materials are already available on record, and considering that the matter dates back to the year 2011, this Court, as the First Appellate Court, can proceed to determine the amount of compensation instead to remand the case to the Tribunal which may lead to further delay in disposal.

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As per the contentions of the claimants, the deceased was aged about 25 years at the time of the accident. His birth certificate has not been produced by the claimants though he was an educated person. Therefore, on the basis of age mentioned in the post mortem report (Ex.P-5), his age is determined as 27 years at the time of the accident.

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Claimants contended that the deceased was earning Rs.10,000/per month. His qualification certificate is produced at Ex.P-10. He studied engineering course, but was not successful in completing the course and he failed in the said exams. His salary certificate is placed on record as per Ex.P-6, which shows that he was

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earning Rs.10,000/- per month. The author of the said document was not examined. Even the supporting materials, such as, appointment letter, terms of the employment, are not placed on record. Therefore, Ex.P-6 is not proved. As such, taking the notional income chart prepared by the Karnataka State Legal Services Authority, his notional income is taken as Rs.5,500/- per month. The suitable multiplier applicable in this case is `17'. He was unmarried, therefore, 50% of his income has to be deducted towards personal expenses. Since he was aged about 27 years at the time of the accident, 40% of his income has to be added towards future prospects. On the basis of the above, loss of dependency is assessed.

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The compensation under conventional heads is assessed based on the law laid down by the Hon'ble Apex Court in the case of National Insurance Co. Ltd., -vsPranay Sethi² . Accordingly, Claimants are entitled to following compensation:

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2 (2017) 16 SCC 680

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Particulars	Amount in Rs.
Loss of dependency	7,85,400/-
(Rs.5,500/- +40% x 12 x 17÷ 2)
Loss of consortium	80,000/-
(40,000 x 2)
Funeral expenses	15,000/-
Loss of estate	15,000/-
Total -	8,95,400/-
Rounded off to -	*8,96,000/-*

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The claimants are also entitled to interest at the rate

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of 6% p.a. from the date of petition till its realization.

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It is not in dispute that respondent No.1 is the owner and respondent No.2 is the insurer of the offending motorcycle. Both are jointly and severally liable to pay the said amount of compensation. The respondent No.2 being the insurer, shall deposit the said amount of compensation.

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The driver of autorickshaw and motorcycle are joint tortfeasors and claimant can recover the compensation from any one of the joint tortfeasors.

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HC-KAR

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The owner and insurer, if any, of autorickshaw are not parties in the present petition. Hence, respondents are liable to pay entire amount of compensation to the claimants.

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For the aforesaid discussions, 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 3^rd February 2014 , passed in MVC.No.8307/2011, by the XXII Addl.Small Causes Judge and M.A.C.T., Bengaluru, is set aside.

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(iii) The claim petition in MVC.No.8307/2011 is allowed in-part.

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(iv) The claimants are entitled to compensation of Rs.8,96,000/-, with interest at the rate of 6% p.a., from the date of petition till its realization.

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(v) The respondent No.2-insurer shall deposit the amount within a period of six weeks from the date of award.

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(vi) Both the claimants are parents of deceased and both are entitled to equal apportionment. Both claimants appeared to be aged about 55 years and 50 years, respectively, at the time of filing the claim petition. Therefore, as of now, both of them are senior citizens. Keeping a portion of the compensation amount in Fixed Deposit account may not be helpful to them. Therefore, entire amount of compensation shall be released to the respective claimants on due identification.

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(vii) Draw award accordingly.

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Registry is directed to send back the records along

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with a copy of this judgment to the concerned Tribunal.

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Sd/-

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(UMESH M ADIGA) JUDGE

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bk/