Rajanna H C Vs the Manager

THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT.27.09.2019 PASSED IN MVC NO.2975/2018 ON THE FILE OF THE MEMBER, PRL. MACT, BENGALURU (SCCH-1), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR. JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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The claimants, being dissatisfied with the compensation, are before this Court seeking enhancement of compensation.

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It is not in dispute that, as a result of the motor vehicle accident which occurred on 14.05.2018,

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Sri Jathin R., a 21 year old died.

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It is not in dispute that the offending vehicle was insured with respondent No.1-Insurance Company.

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HC-KAR

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The Tribunal, on assessment of the evidence adduced before it, has come to the conclusion that the driver of the offending vehicle was responsible for the accident, which has resulted in the death of Jathin R. The Tribunal has thereafter proceeded to award the following sums as

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compensation:

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Sl. No.	Particulars	Amount in(Rs.)
1.	Loss of Dependency	15,12,000
2.	Loss of Estate	15,000
3.	Funeral and ritual expenses	15,000
4.	Filial consortium (40,000 x 2)	80,000
5.	Expenses incurred for treatment of deceased prior to accident	2,72,499
	Total	18,94,499
	Less: 40% towards contributory negligence of the deceased	7,57,699.60
	Compensation amount to which the petitioners are entitled to	11,36,699.40 rounded off to 11,37,000

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It is the primary contention of learned counsel for

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the appellants that the Tribunal has erred while fixing the negligence on the part of deceased at 40%. According to him,

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HC-KAR

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as per Ex.P4-sketch, the driver of the offending vehicle-truck suddenly took U-turn in a non permitted junction, as such, the accident occurred. The sketch further depicts that the deceased was riding motorcycle on the right direction in a National Highway one way road. Further, the Insurance Company has also failed to examine the driver of the offending vehicle. The jurisdictional Police also laid charge sheet against the driver of the offending vehicle. He further contended that the Tribunal has also erred in considering the age, avocation and income and awarded meager compensation, which requires interference by this Court. With these submissions, he prays to allow the appeal.

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Per contra , learned counsel for the Insurance Company submits that the Tribunal on assessment of oral and documentary evidence, rightly attributed 40% negligence on the part of deceased. According to him, the accident had caused in a permitted U-turn. In the said U-turn, it is the duty of the deceased to ride his motorcycle in a care and cautious manner, since due to the rash and negligence riding of the deceased, he failed to control the vehicle while truck was taking U-turn in a permitted place and he dashed the truck. In such

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HC-KAR

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circumstance, he equally contributed the negligence to the occurrence of the accident. As such, the Tribunal was justified in attributed the negligence on the deceased. He further contended that the Tribunal upon examination of age and avocation of the deceased so also considering the other aspects of the matter, awarded just compensation, which does not call for any interference at the hands of this Court. Accordingly, he prays to dismiss the appeal.

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Heard learned counsel for the respective parties and

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perused the impugned judgment and other documents made available before this court.

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As could be gathered from records, the accident in question and coverage of insurance policy to the offending vehicle are not in dispute. The Tribunal, on assessment of evidence placed before it, held that the deceased also contributed 40% negligence for the occurrence of the accident. On careful examination of Ex.P4-sketch, the accident had caused in a National Highway one way road while both the vehicles were traveling from Tumkur towards Bengaluru. The spot of accident was junction and U-turn was permitted in the

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HC-KAR

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said junction. The offending vehicle proceeded from left side of the road and suddenly took U-turn, at the same time, the deceased was proceeding on the same direction, dashed the truck. While taking U-turn, it is bounded duty of the driver of offending vehicle to view the road carefully and thereafter to take U-turn slowly. By perusal of sketch, it could be easily presumed that the driver of offending vehicle suddenly took U- turn, as such, the accident caused. No doubt, deceased also not took much care and must have rode his motorcycle in a rash and negligent manner and he also contributed negligence for the accident, however, the same could not be 40%, as assessed by the Tribunal.

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Nevertheless, the Insurance Company has not

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examined the driver of the offending vehicle in order to substantiate the claim of the Insurance Company that the deceased equally contributed the negligence. Admittedly, FIR was registered against the driver of the offending vehicle and subsequently the Police laid charge sheet against him. The said charge sheet was also not challenged by the Insurance Company. In such circumstance, I am of the considered view that the deceased contributed 20% negligence for the

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HC-KAR

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occurrence of the accident. As such, the said finding of the Tribunal in respect of contributory negligence is modified to 20% in respect of deceased and 80% in respect of the driver of the offending vehicle.

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As far as the compensation awarded by the Tribunal is concerned, in order to arrive at the loss of dependency, the Tribunal has determined the monthly income, notionally at Rs.10,000/-. As there is no credible evidence to ascertain the actual monthly income, it would be appropriate and prudent to adopt the monthly income determined by Karnataka State Legal Services Authority, which, for the accident of the year 2018, would be Rs.12,500/- .

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Since the deceased was aged about 21 years, appropriate multiplier would be '18' and 40% future prospects requires to be added and as he was a bachelor, 50% requires to be deducted towards his personal expenses. Thus, the claimants would be entitled to Rs.18,90,000/- (12,500 + 40% - 50% X 12 X 18) towards 'loss of dependency' as against Rs.15,12,000/- awarded by the Tribunal.

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HC-KAR

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The sum of Rs.2,72,499/- awarded by the Tribunal towards 'medical expenses' , being based on

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documentary evidence, is affirmed

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The claimants, being the parents of the deceased,

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they would each be entitled to a sum of Rs.48,400/- towards “loss of consortium” i.e., in all Rs.96,800/- (48,400 x 2) and they would also be entitled to a sum of Rs.36,300/- under the “conventional heads” .

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Thus, the claimants, in modification of the impugned award, would be entitled to the following sums:

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Sl. No.	Compensation under different Heads	(Rs.)
1.	Loss of Dependency	18,90,000
2.	Medical expenses	2,72,499
3.	Loss of consortium	96,800
4.	Conventional heads	36,300
	(-) 20% towards contributory negligence of the deceased	4,59,120
	Total	18,36,479