Smt Surekha Vs Sri Ravindra P

TATA AIG GENERAL INSURANCE COMPANY LIMITED, 2^ND FLOOR, J.P. AND DEVI, CHEMBUKESHAV ARCADE, NO.69, MILLERS ROAD, BENGALURU-560 057, BY ITS MANAGER, (OWNER OF WATER TANKER BEARING NO.KA-07-5914)

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…RESPONDENTS

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(BY SRI R RANGASWAMY, ADVOCATE FOR R-1; V/O DATED 09.07.2024, SRI JANARDHANA REDDY, ADVOCATE FOR R-2)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.10.18 PASSED IN MVC NO. 7177/16 ON THE FILE OF THE MEMBER, MACT, XVI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU, 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:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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This appeal is filed challenging the judgment and

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award dated 20.10.2018 passed in MVC No.7177 of 2016 by the M.A.C.T., Bangalore (SCCH-14) (for short ‘the Tribunal’).

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HC-KAR

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Sri.Girish.A.S., learned counsel appearing for the appellants, submits that the Tribunal, without any evidence before it, proceeded to record findings with regard to contributory negligence and came to the conclusion that the deceased was negligent to the extent of 15%, and apportioned the liability accordingly. It is submitted that, though the claimant examined PW3 – employer and produced Ex.P17 and Ex.P18, the balance sheet indicates that the deceased was drawing Rs.15,000/- per month. However, the Tribunal incorrectly assessed the income at Rs.10,000/- per month. It is further submitted that the compensation awarded by the Tribunal under the conventional heads is also on the lower side and requires to be re-assessed appropriately.

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Per contra , Sri.Janardhana Reddy, learned counsel appearing for respondent No.2, supports the impugned judgment and award of the Tribunal and submits that, insofar as contributory negligence is concerned, the Tribunal has taken note of the fact that the deceased

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HC-KAR

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ought to have reduced his speed. When the lorry was about to take a left turn, he ought not to have proceeded further, which resulted in the accident. The same has been noticed by the Tribunal, which has come to the conclusion that the deceased contributed to the accident. It is submitted that, insofar as income is concerned, the claimants ought to have produced income tax returns to clearly show that the deceased was drawing ₹15,000/- per month. In the absence of such evidence, the Tribunal was justified in assessing the income and awarding just compensation, and there is no scope for enhancement. He therefore seeks dismissal of the appeal.

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I have heard the arguments of learned counsel for

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the appellants and learned counsel for respondents and meticulously perused the material available on record.

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The wife, children, and parents of the deceased

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filed a claim petition seeking compensation. It is averred that the deceased met with a road accident on 20.10.2016

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HC-KAR

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and was earning Rs.15,000/- per month while working as an accountant and writer at Vikas Pipes, Bangalore. The Tribunal, after considering the evidence on record, awarded compensation of Rs.18,80,200/-, being 85% of the total compensation, by attributing 15% contributory negligence to the deceased.

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Insofar as the contention with regard to the contributory negligence of the deceased is concerned, it is to be noticed that the claimant has examined PW1 to PW3 and got marked Ex.P1 to Ex.P17. The respondent– Insurance Company did not produce any evidence. The charge sheet clearly indicates that the accident was caused due to the actionable wrong of the driver of the water tanker. It is further to be noticed that the Tribunal, in paragraph 15 of the judgment, recorded a finding that the rider of the motorcycle took his vehicle towards the left side and could have avoided the occurrence of the alleged accident. Based on such a finding, the Tribunal proceeded to apportion the negligence. In my considered

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HC-KAR

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view, the said finding of the Tribunal is without any evidence on record.

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It is to be noticed that the respondents have not produced any evidence with regard to contributory negligence, either by examining the driver of the tanker or any independent witness. In the absence of any such evidence before the Tribunal and also keeping in mind the fact that the police have filed a charge sheet against the driver of the offending water tanker, in my considered view, contributory negligence as well as liability cannot be apportioned. Hence the same is required to be set aside. Accordingly, it is set aside.

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Insofar as the quantum of compensation is concerned, it is averred that the deceased was working as an accountant and writer at Vikas Pipes, Bangalore, and was earning Rs.15,000/per month. In order to substantiate the said claim, the claimants examined Sri Pankaj Kumar as PW3, who is the employer of the

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HC-KAR

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deceased, and produced several documents, including the partnership deed, balance sheet, salary account ledger, and individual salary slips.

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On perusal of the oral evidence of PW3, corroborated by the aforesaid exhibits, I am of the considered view, that the claimants have proved that the deceased was drawing Rs.15,000/- per month. The deceased was aged about 26 years and was married, having a wife, children, and parents as dependents.

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Hence, there should be an addition of 40% of the assessed income that is required to be made towards loss of future prospects and ¼ is required to be deducted towards personal expenses. The claimants are four in number, hence they would be entitled to consortium at the rate of Rs.40,000/- each with 10% escalation that would be 44,000 × 4. Hence, compensation is re-assessed as under;

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HC-KAR

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HEADS		AMOUNT (in Rs.)
Loss of dependency (Rs.15,000+40% x 12 x 17-1/4)		32,13,000.00
A loss of consortium (Rs.44,000 x 4)		1,76,000.00
Loss of estate (Rs.15,000+10% escalation)		16,500.00
Towards funeral expenses transportation dead body (Rs.15,000+10%) Total	and	16,500.00 34,22,000.00

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Thus, the appellant-claimant shall be entitled to a

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total compensation of Rs.34,22,000/- as against

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Rs.22,12,000/- awarded by the Tribunal.

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In the result, this Court proceeds to pass the following:

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ORDER

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a) The appeal is allowed in part .

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b) The impugned judgment and award dated 20.10.2028 passed by the Tribunal in M.V.C.No.7177/2016 is modified to an extent that the appellant-claimant would be entitled to total compensation of Rs.34,22,000/- as

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NC: 2026:KHC:23158 MFA No. 3500 of 2019

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HC-KAR

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against Rs.22,12,000/awarded by the Tribunal.

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c) The enhanced compensation shall carry interest at the rate of 6% p.a. from the date of petition till realisation.

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d) The respondent-Insurance Company shall deposit the enhanced compensation amount with accrued interest before the Tribunal within a period of six weeks from the date of receipt of the certified copy of this judgment.

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e) The rest of the judgment and award of the Tribunal with respect to apportionment, deposit and release shall remain unaltered.

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f) Registry to transmit the records back to the Tribunal.

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g) Draw modified award accordingly.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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SR

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List No.: 1 Sl No.: 3

Smt Surekha v. Sri Ravindra P

Case brief

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Smt Surekha v. Sri Ravindra P

Case brief

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