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Kusuma Bhat vs The United India Insurance … on 15 September, 2010

Karnataka High Court
Kusuma Bhat vs The United India Insurance … on 15 September, 2010
Author: N.K.Patil And K.Govindarajulu
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

12

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

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