IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 15%' DAY OF SEPTEMBER, 2010,
: PRESENT :
TI-IE I-ION'BLE mm. JUSTICE N.K. PA';.FIIJ,'[: A.
AND
THE I~§ON'BLE MR. JUsTIc1z;;i{}G0v1'1szfDA1i5JI;LIi'~' L'
M.F.A.NO. 2810 OF:42_0'O5z{MV}.'v_*v_l' - = " "
Between:
1. Smt. Kusuma Bhat," " ll
W/0. Late K. Jayarama _B11at:{f ;
Aged about 42 years.
2. Kum. K. Pa11A'va§1;.l'71_:i.; V __ j'
D/o. Lat_e?.K. .}ayaraina;.l3hat., l
Aged abolifi-"1 8._ ~
3. Smt: Pararafihi. 4'
W/0. Late Eshwara Bhat,
about years.
V" "A11 fie :l?{e_siding"a£
V' " =NA0',.,965;l. lli -Block,
I11 ge. .'We'st of Chord Road,
. "Basav'es_hx:varanagar,
"-«.._Bax_1'g'ale1*e--560 07 8.
A--3...Is Dead, Hence,
x 'l «Represented by
" Appellants 1 8: 2, above
Appellants
{By Sri. N. Shankar Narayana Bhat, Advocate}
AM
I
\""f
3-.e..
ELIE
1. The United India Insurance
Company Limited,
Post Box No.75,
Chitradurga~577 501,
Represented by its
Manager.
2. The New India Assurance
Company Limited,
Divisional Office-VIEI,
671600, No. 47, I Floor, _ _
Gopai Complex, Bazar Street', . "
Yashwanthapura, v _ " ~
Banga1ore--22 C C _
Represented by its Manager, .,
3. Sri. M.V.'rmp;pes~Namy, _
S/o. S111;"1'Ji...__Vive:}:andai'ah,
Major, Prop:_.M/sd.' at '
ThippesWa,rny*Ifrar:sport Semgres.
III Cross, wJ;VC.R,i. 'Extension, .
Chitra~:iurga;7f'-.,AV' ' '
4. J. Venk.atesnn3,_nurt.P1}'.:'a"_;~ 4
s__/mo. Yelakaiahg
, Major, " A V
- .,._Driver, 4; 160, 8'fi'1"Main,
.. RBI Colony, Srirarnapuram,
V _ Bangajore,
._ " Respondents
[By Sri._P.B–,V_ Raj u, Advocate for R1;
Srnt. Harini Shivananda, Advocate for R2;
* Served but unrepresented;
as , R44 — notice is dispensed with v/ o dated 31.01.08)
=l¢*=lH!=**
3
This MFA is filed U/S 173(1) of MV act against the
Judgment and Award dated: 22/11/2004 passed in MVC
No.3985/ 1998 on the file of the XIX Additional SCJ and
MACT, Bangalore, {SCCH–17), partly allowing the claim
petition for compensation and seeking enhancement of
compensation. V
This MFA coming on for Hearing,.{_
N.K. PATIL. J ., delivered the foliowing: _
J U D G 1yi_c§_1g\i T ~ ”
This appeal by the c1aiIr1ants’_”is:’
the judgment and award”dated Q25?
passed in M.V.C.N0..3985/ on thhefilep the XIX
Additional SCJ and “Motor _1ié;¢¢;ii£I’¢iiiu,’pf Claims Tribunal,
Bangalore’ short, “I’ribuna1′ ] for
enhancenient oi’c’o;r1pe:r.;sation on the ground that, the
, g_ coni.pensation”of Rs_,3,22,000/» awarded in favour of the
‘ c1aiInarit~s;’as”against their ciaim for Rs.19.85 Lakhs, is
inadequate.
if .. The facts in brief are that, the third appellant
dd’ more and she is represented by appellants 1 and 2
A who are the wife and daughter of deceased K. Jayarain
Ag”
1;
Bhat. They filed the claim petition under Section__._I_’66 of
the Motor Vehicles Act, contending that at ab’o’Le£t”g*«
AM, on 19-03-1998, the deceased was tret§2e11if;gir;~e:5n
Bangalore to Chitradurga in his””own’ it
bearing No.KA–20/M4091 V and it driveir ‘ u
said car was driving s1ow1yg”a.nd cautioiisly; when it’
reached near C.B. Kaiiainbella, Sira
Taluk, Tumkur District,-.’a No.KA–16/A-
4849, being §di’iyeZi1 at speed, in a rash
and the Car. Due to
the injuries and died.
He washale “prior to the date of accident,
which Lg:-estjited death. It is the case of the
appeI1a”dntsd’e.that, deceased was a business man,
of Maheswara Agro Chemicals and
aged abovt7ti3 years, earning a sum of Rs.10,000/«v per
3 mo_nth”and was an income tax assessee. In View of his
“Lir”1’tir:r1e1y death, the family has become haywire and
%,,,e_i»
K
K.
they are in great financial distress. Therefore, they have
to be compensated adequately.
3. On account of the death of the
appellants filed the claim petition»-befc-‘_re’Dthie,
seeking compensation of a
against the respondents.’ had’
come up for considei-a.tion.Al’befoi’eVf’th’e Tribunal on 22nd
November 2004. TI’ ‘considering the
relevant material_’ -ava-__ilab}.e’i on fil.e. after appreciation
of thevohral allowed the claim
petition a sum of Rs.3,22,000/– under
different interest per annum. from the
l date dffpe’ti,tion date of payment, after deducting
toWa_rds..’eontributory negligence on the part of the
driver..__”ol’-the deceased. Being dissatisfied with the
i.q?.1_antuI¢n of compensation awarded by the Tribunal and
contributory negligence of 50% fixed by Tribunal,
‘ V’ “the appellants are in appeal before this Court, seeking
enhancement of compensation and also to set aside the
contributory negligence.
4. We have heard learned counseliorappellantg
and learned counsel for first
Insurance Companies for,*consid’e_ra’ble l.erigi.h of :’;ti.1*ne_.’,
Respondent No.3 is served unrepresented. Notice
to fourth responden*t–..is vide order dated
3151 January 2008. it
counsel for the parties,
after careful judgment and award passed
by 5 the andlwafter going through the original
made available, it is seen that the occurrence of
A : resultant death of the deceased are not
int di.s’p’u,te. The deceased was a businessman in
nC.hemicals and Fertilizers and has been filing his
returns regularly. The Income tax returns for the years
1990-91 till the date of accident has been placed before
4._._……
X
5′
the Court. The Advance income tax paid receipts and
the Income Tax clearance Certificates are also
before us. It shows that the deceased
income of around Rs.1,4O,OO:G/1.’–,Th’e tis:i.«u;;a:..,.ha.s it
grossly erred in arriving at —
income of the deceased ‘loss of’
dependency. Having~.regard”‘to..’theincorne’ returns
for three years just accident, and
other aspects, ‘–an,d__V:V.fappr0priate to re-
assess “per month. From the
said towards his personal
and net monthly income comes to
Rs.;4,=866/u–.’. “Since the deceased was 43 years, the
” iinnltiplierviiasé per the decision of the Hon’bie Apex
I Verma’s case (2009 ACJ 1298) is ’14’
and a-sioptithe same as against ’12’ adopted by Tribunal.
Accordingly, we re–determine compensation payable
i”-towiards loss of dependency at Rs.’/,83,888/– [i.e.
K/,f_M_,,,,…J
Rs.4,666/– x 12 X ‘l4’) as against Rs.6,24.,_QO0/-
awarded by Tribunal.
6. Further, the Tribunal also crred-
awarding any compensation toWa1’ds loss. o’f’._1oVeCar1d 9
affection and loss of estate.
behind his wife and daughterV:”~-iTherefore,
to the facts and circi1:1_i_sta1*1c’e’sVe.: caslefwye award a
sum of Rs.l0,000/– and affection
and a sum .1.osslVof estate.
7. *Rs.1o,oo0/- towards
funeral expenses and
a suin’ of “towards loss of consortium
awarded V-Tlfribiinal just and proper and does not
by ” call for interference.
as rightly pointed out by learned
cou-nse’l’ap’pearing for appellants, fixing of 50% liability
on_.the'”ch’iver of the Car of the deceased is on the higher
“side: and needs to be modified. In support of his
“submission, he has tfin us through paragraph 10 of
f’A’_–_'”__,._u-‘
the order passed by Tribunal and,’ wherein it is_..stated
that PWS. 2 and 3 are the witnesses to spot”:Mahazar
Ex.P2 and they have stated in their evidelncethatl
accident occurred due to rash:-and’«negligent;drivirigxnof l
Tanker vehicle. PW3 has statedalinllhgis V’
statement has been recorded thefslnkjestigatingl
Officer. The Spot accident
occurred on a 23 way running
from North to’ also reveals that
the it left side of the road
reveals that there is a
mud Vof “either side of the tar road.
Thereforeqathyere’Was still space for the Tanker on the
Left ciflthe to avoid the accident. Having
I .’regard:v4t0.,.lVthA’eevidence of PWs. 2 and 3 and the fact that
Tanker’ lisjla large vehicle compared to the Car, the
held that the accident has occurred due to the
“‘v.cc1n’posite negligence of Car and Tanker in the ratio of
i it ” 50:50. It is not disputed that due to rash and negligent
%M.
10
driving by the driver of Tanker, it has hit the
Ambassador Car and the deceased has
the injuries. Admittedly. the Engine of
more horsepower than the Engine’ of a Car,” ‘”i5hisV’ asfpect ‘
of the matter has not been deaii-ti .a.
perspective. The Tribunal i–1as..,a1soV’ not as_£;igxned”CogentV’
and convincing reasons to;c’oiri_:e:’ the conclusion that
the driver of the in _t_h:eA_’.:Vvdeceased was an
inmate had. that 50% to the
accident. the oral evidence of
PWs. thevduritnesses to the spot
evidence at EX.P2\
spot’Mahaaar,V’it”‘is.’crvsta1 clear that the driver of the
haveti avoided the accident had he been
caiLitio”ds’«cortipiared to the driver of the Car. Therefore,
taking..jthe”‘ aforesaid aspects into consideration, we
3 deem it tit and proper to set aside the 50% contributory
“negligence fixed by Tribunal and re–fiX the contributory
tduiiiiegligence / liability in the ratio of 75:25, Le. 75% on
7éi,,e/
ll
the driver of the Tanker and 25% on the driver.–of the
Car, to meet the ends of justice.
9. In the light of the facts and
the case, as stated above, the a.p’p’ea1.fi1’tad.byV’appe–1ants
is allowed in part. The impugned and
dated 221301 November
/ 1998, on the file of Motor
Accident Claims {SCCH–1’7], is
hereby modifiedi.’ Rs.8,23,888/- as
against by the Tribunal, with
interezjistmat: enhanced sum, from
the ofthe date of realization. The
break»-up is as fol’loW’s:
of Debendency
Rs. 7,83,888/–
_’§oW’ard.sA’L.o;§s of love and affection Rs. 10,000/–
9″Ton/ards””~.Los:st””of estate / loss of Rs. 10,000/–
expectancy *
Towards loss of consortium Rs. 10,000 / —
‘*.Towai*dsi- transportation of dead Rs. 10,000/–
it body and funeral expenses
TOTAL Rs. 8.23.888/–
;4W..a
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Out of Rs.8,23,888/~, if 25% is deducted towards
contributory negligence on the part of the driest”-..of:.the
offending Car, the net compensation
appellants comes to Rs.6;’1A’?,’9’l6;’:’,-
Rs.3,22,000/–. The enhanced
Rs.2,95,916/-.
The first Company is
directed to ” compensation of
Rs.2,95,9i14B;’}y at 6% per annum,
within Adateflfof receipt of copy of ‘the
judgrnent and < .. . .
Iznjnnyediatlely——oil such deposit by the Insurance
of the enhanced compensation of
r'<s;2;95_;9si'i;3)*i~, a sum of Rs.2,00,000/- with
proportionate interest, shall be invested in Fixed
"_ADepA'osit, in any.Nationa1ized or Scheduled Bank, in the
…_"1pp"1_"_i_arr1e of the first appellant, for a period of five years,
%v..W.s
13
renewable by another five years, with liberty reserved to
her to withdraw the interest periodically.
The remaining sum of _ Rs7–95,9:I_8/
proportionate interest shall be ‘ii11_di’a:\:fo1iViVt}1}e
appellants 1 and 2 in equaipiiopolttion,
Office to draw Vasyard,aeeoifdiiigly. it
