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etween:
1.
" '(.33
IN THE HIGH COURT or' KARNATAKA AT BANGALORE
DATED mas THE: 4pm DAY OF OCTOBER, 2o14Q e.._ *._V_
:PRESENT:
TI-IE HON'BLE MR.JUsT1(;;«; N.K.pm:iL., V
THE HON'BLE Ma.JUs*r_1__cE
M.F.A. N0. 1 of 2065 .{'M'vj
Laxmamma @ La3crnaV_<ja, '
W/0. Aj}a1ara._Mahac1.eVappa_.
Aged ab0ut3é_i'3Iea;ijs, I
Househo1Vd,VW{5:*}:. , V
Manju1a,», ..
D /r;'."Ajj'a1éira Ni;ahaid,evappa;'~~--
Aged a._bou't'-"1 9.. years - _ '
Household '
. Nagaraj~ . _
0. 'Aj j a1aL'ra._VMaha.devappa,
"AgeI:i:a1;~Qut 14' years,
' » 8"? .Stan dard Student.
.' Dlllepfra,
...S/o.v.Ajja;.1ara Mahadevappa,
Aged about 12 years,
A 7th Std. Student.
11$:-'Iampamma,
W/0. Late Dilleppa,
Aged about 70 years,
%"""""'---*"*"'"""
3%
(By Sri. N.K. S1ddeswara,AdV'oc'a.§e}
[0
Household worker.
Appellants 3 8: 4 are minors,
Represented by natural guardian
Mother 15¢ appellant and all are
R/o. Kunchur Village,
Harapanahalli Taluk,
Davanagere District.
And:
1.
Manjunath.
S/o.Veeram1a, .
Aged about 36__years, _ '
Gangamath_a.Cas_te, V
Driver of Han11;irian.Ei--us1;
N0. KA«1.~"f'/'B9363, ' '
R/0. H.c._oa11i;;_ " _
Jubali~~BaVi'l.R0ad,..»_ ._ v
D.N.0. 388/£35, _Davanag_ re-2-.
Manoharsa ¢_ "
S / o. Lav: Nagoosa' .Ladvi_ra.
Owner of Hanu.maI1'3B1i's Reg.
D19. KA 17/B9363, V
"R/'o'I;..adwa Street," '
* Harihar Town and Taluk,
V Davanagere District.
' The Neiveililnclia Assurance Co., Ltd.,
Waliv'..C0m§3lex, Shimoga Road,
Harihar Town and Taluk,
as ,Repfesentecl by its
" _ Branch Manager.
{By Smt. Harini Shivanarada, Advocate for R3;
__W_#__W_,M_,,._..
XI/,.
. J. . . . .Appella,11ts ''
....Respondents
-~v-Notice to R1 & R2 dis ed with We. dated 19/12/2008}
*=E¢3l=**
This MFA is filed U/s. 173(1) of M.V. Act, against the
Judgment and Award dated: 30/08/2005 passed in MVC No.
71/2004 on the file of the Civil Judge(SI’.Dn] and MACT,
Harihar, partly allowing the claim petition for compenlsation
and seeking enhancement of compensation. l’ V V
This M.F.A. coming on for Hearing«l:__lltl1:is.:
N .K. PATIL J, delivered the following;
:J u D G M EN ii
This appeal by the appellants lisgldirectedl’ ‘agailnstg the
impugned judgment and award _30,/ passed in
MVC No. 71/2004 by’ the c.1_’ir:1:_ l;;tig«;1_g§’~1:sr.Dn}Al and Motor
Accidents Claims ‘i’ribunHalv,’l’ -‘(hereinafter referred to
as ‘ Tribunal’ frat =i
2.. “”” its”-judgment and award has
awarded a ‘l–, after deducting 50%
towards the_Vlcont1*ibu.t’or§5t’ negligence on the part of the
with””int.erest at 6% p.a.. from the date of
p’petitiQriv..tilll_lit:sT’realisation as against the claim made by
for a sum of ?27,10,000/– on account of
lgthe death of the deceased Sri. Mahadevappa, in the road
” l’tra:fil’c_« accident.
3. In brief, the %0f the case are:
{ WMMM
The appellant No.1 is the wife, appellant Nos. 2 to 4
are the minor children and appellant No.5 is the mother of
the deceased Sri. Mahadevappa and they have filed a–“e.1_airn
petition before the Tribunal under section 166 of
claiming compensation of ?27,10,000/~. on acoountilgiotl 0′
death of the deceased in the road tIfaffic–a.ccitjlentt
that, on 19.1.2004 at about 8.30
was travelling in Motor cyclelbeazring from ” 0
Halavagalu to Kunchur village_..a.long”-withlpillionvrider, at
that time, the driver ollthe. 1/;us–,’beari’i1g’lN_o.KA.17.B.9363
drove the same in-a rasl”1″anci” ne’glige11t’. manner and dashed
against: the deceased. due to Which. he
died at spot rider sustained grievous injuries
and thereafter to the injuries in the hospital.
.0 0. “It&is”the3fi1rther caselofl the appellants that. the deceased was
it hale and healthy, running Flour Mill
and.__earningi’~ per day and looking after the welfare of
faII3i,lvT~ and due to his untimely death they suffered lot.
claim petition had come up for consideration before
the Tribunal. The Tribunal after appreciating the oral and
aéts,
5
documentary evidence and other material available» on
file, has allowed the claim petition in part 3
a sum of ?l,59,000/- after deducting
contributory negligence on the p;tr£¢1′
interest at 6% p.a., from the date of peti:t.i;-fin” till
realisation. Being aggrievedhby» the ._V1frn”d1in’gyolf’ the
Tribunal that there negligence on
the part of the deceased.__ with the
quantum of” have
presented reliefs.
counsel appearing
for the” appellaiitislp’-9laiidg”learned counsel for third
respogndent–lnsurance Company.
counsel appearing for the appellants at
I that, the Tribunal has committed
V _ grave eiirorwof law and mis–carriage of justice in fixing
Lthedatconvtributory negligence at 50% on the part of the
ldelcleased contrary to the evidence available on record.
T “;’t”o substantiate the said submission, he has taken us
as
6
through EX.P2–spot rnahazar, Ex.P3 IMV Report, P4-
P.M. Report, Ex.P5 police notice, Ex.P6 mcopji
charge sheet and Ex.P7~ sketch of the accident
submitted that, from the contentsdlcsf thepse,
it is crystal clear that due to the rash
driving by the driver of the the s–a_i_d’- has
taken place. Further; he ‘the”‘l’ribunaI
has erred in assessing?’ deceased at
i’3,200/- Std towards the
personal Muitiplier of ‘ 15′ for
it and it needs to be
modified’in”vilew.,ot down by the Apex Court
in Sa,r1apAVe’fVmaA’s’wcase. diiurther he submitted that the
d aizifarded by the Tribunal towards
deon;venti.Vo~nVaE he-ads is inadequate and it is liable to be
V V’ modified} ‘ -.
.. against this, learned counsel for third
,.”re_spondent–insurer, inter-alia contended and supported
the impugned judgment and award passed by the
AM
Tribunal. Further she submitted that, the Tribunal after
considering the relevant material available on file”—.has
awarded just and reasonable compensation”
contributory negligence at 50% on _& it
deceased and therefore, it does for
7. After consideringthe sublmissionsddnadejAdbyldfi
learned counsel for both the’i’t»;;3._arties Vand’tafte’rE careful
perusal of the material on ‘”record at
threadbare, including__ and
award passed” “paints that arise for
our ‘ r
{i)”” u the./Qcoritributory negligence fixed by
T1′.ibuna,1_at 50% on the part of the
deceased is sustainable in law’?
A4′[ii’)”i:’ V’jV’!hetherW’the quantum of compensation
by the Tribunal is just and
” .V ‘reaso’nable?
‘ A Ref; Point N0. 1:
The occurrence of the accident and the death
A deceased in the sfid accident are not in dispute.
I/I “–MMwm-W”-“M”
It is the case of the appeliants that, due to the rash and
negiigent driving by the driver of the offending vehicle
the said accident has taken piace. After evaluation;_of
the original records at threadbare, it is _
from the contents of Ex.P7~ sketchmpreparedi ‘*
that, the bus is coming form H2§i1a..V;aga.i_i1~.’ “tiff
Kunchur and Whereas the’d_decease.d was_fi”om –. L’
Kunchur to Haiavagaiu to..’theV._’praish and
negligent driving by’ bus, the said
accident has taken pia¢e.~ not in dispute
that the beenvfiled against the driver
of the offei*1ding.V_.Ve}1icieidhand not against the deceased
MahadveVappa..,vand” itis Ta conciusive proof of evidence.
fclinchingdevidence availabie on file have not
‘been ivooked.A’.i’-‘into or considered or appreciated or
recorded’ ‘a~n:jrAfinding of fact by the Tribunai fixing the
Jentire iiahility on the part of the driver of the offending
t.__’veVhicie. Therefore, we are of the considered View that
it “‘the contributory negI e fixed by the Tribunal at
“NM_#__W_H_,,.,i.,…
9
50% on the part of the deceased cannot be sustained
and it is liable to be set aside and accordingly, it is set
aside.
Regarding point No.2:
9. The Tribunal has erred in assess_i.:1__,§;’t1.ieiincortiet D
of the deceased at ?2,400/– per
lower side and therefore, it needs to*b_e”-modisfierli It the
case of the appellants that deceased dpagedziabout 35
years, running a flo’ur”‘~mi1l:Atan’d” the income of
?’300/– per day.__But not produced
any same. Taking into
consideration the’ha’ge;’–~occu’pation of the deceased and
since-the accident»”Was occurred in the year 2004, we re-
. d””ElS$€éShisui11C0II1e”‘a’t’?4,0O0/- per month. In Vi€W of the
the Apex Court in the case of Sarla
Vetzna others Vs. Delhi Transport Corporation
another reported in 2009 ACJ 1298, the
‘appropriate deduction towards the personal expenses
the deceased would be 1/4″] since there are five
E0
dependants and the appropriate multiplier wou1d…___be
’16’ instead of ‘I5′ adopted by the Tribunal.
we 1’e.-determine the loss of dependency at V’
(?3,00{)/– X 12 X 16] and accordingfljflit
3.0. The Tribunal has awarded
towards conventional heads sarnezis inazietzppiate and
it needs to be enhanced.__’Havin’g:’.rejg¥ard._to the” facts and
circumstances of the case No.3. has
lost her husbaziet .agpe11ant No.2 to 4
have lost No.5 has lost her
son, We ~ towards ioss of
consortiVnrn,’- loss of estate, ‘€20,000/~
towards losséylovéz anddaffection at the rate of ?4,000/-
it to ‘of the appellants 1 to 5 and a sum of €10,000/~
A’toixrardsfiansportation and funeral expenses.
A 3.3,; Having regard to the facts and circumstances
the as stated above, the impugned judgment and
.»—-»*'”””””_'””’M'”‘
passed by the na1 is liable to be modified.
ll
The total Compensation payable comes to ?6,26,0_.QO/–
and the break» up is as follows:
Towards Loss of dependency it ‘ 5,”’76;C’i.t)’OT;’_-
Towards loss of Consortium
Towards loss of love and affeotign . 2(l)v,0(}_0’/»–…
?
. K’
Towards loss of estate , 101300 *-
“e
?
Towards — funeral
transportation expenses V -.W-w.W;.LA
s Total T .?~s.2e.ooo/-
‘ 10.000/-
12. Aceiordijngly, the appellants is
allowed in 1:’ ‘V T T T
by the Tribunal at
50% on the partof is hereby set aside.
The irnpngiqed jdtidgnient and award passed by the
is hereby modified, awarding
A.soff?’6,26,O00/w with interest at 6% p.a., from
thedate voflpetition till its realisation.
third respondent– Insurer is directed to deposit
L1;hVéTe’ompensation of ?6,26£O0/- with interest within four
wM_w__M__#,_,,_…
e ieeop,oo0,/;”M;:# 7
weeks from the date of receipt of a. copy of this judgment
and award.
Out of the compensation of ?6,26.000/
i’2,00,000/«with proportionate interest shall. ‘be”inVes’tedAVi13.o: it ‘*
the Fixed Deposit in any Nationaiized or ‘Se’}1.edi1let§.i_’
Bank, in the name of the aplpe-1lantlllNo.1.for,:vlaA~»{period of
five years and renewable for ‘fiye liberty
to her to withdraw the interest periodically.
A sum of interest shall
be invested. Nationalized or
Scheduled. each of the appellant
Nos. 2::”tQ years and renewable for
another fiye–«.VWith’«.t.lliberty to them and a sum of
pro’port.ionate interest shall be released in
tagger of the appellant Nos. 2 to 4.
at 350,000/–with proportionate interest shall
lgbe invested in the Fixed Deposit in any Nationalized or
lfifietietiuled Bank, in the name of appellant No.5 for a
V. period of three years and renewabte for another three years
%v,W
J
with liberty to her to withdraw the interest accrued on it,
periodically.
The remaining sum of $76,000/~ with .
interest shall be released in favour hpfhthe ap}deii’airit.’VN0vs.V 1.,’
and 5 in equal proportion. immediate1y:’,”eoi1
insurer.
Office is directed» to <:1ra\y4_i:i'V;'i-'3;:€_: aware}; «aeeorctingly.
Sd/1
r Iudqe
Sd/-
Judge
tsn*