CHANDRASHEKARAPPA H.B v. SURESH B

CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR) The appellants-claimants being dissatisfied with the judgment and award dated 30th March 2019 passed in MVC No.964/2017 by the Addl. Senior Civil Judge and Addl. MACT, Ranebennur have preferred this appeal seeking enhancement of compensation.

Parties to this appeal are referred as per their rank before the Tribunal.

Claimants filed the claim petition claiming compensation on account of death of Ashok in a road traffic accident that occurred on 7.5.2017 at 9.00 p.m. when he was moving on his motor cycle bearing Regn. No.KA-17-EQ- 9154 towards Honnali side near Arabagatti Village, a Maruthi Omni van bearing Regn. No.KA-52-M-0168 came from his behind and dashed to his motor cycle. The motor cyclist fell down, the said Maruthi Omni Van toppled down - 4 - NC: 2025:KHC-D:3187-DB MFA No. 102228 of 2019 and it was dragged further and collided with Hyundai Car. The rider of motor cycle sustained grievous injuries, though shifted to hospital immediately, but, he died on the way to hospital. He was the only one son to the claimant nos. 1 and 2, claimant no.3 is his wife and claimants 4 and 5 are minor sons of deceased. He was aged 39 years at the time of accident and he was a businessman earning Rs.60,000/- to Rs.70,000/- per month. He was the sole bread earner in the family. All the claimants were completely depending upon the deceased income and because of untimely death; they have lost his love and affection. Claimant no.3 had lost her companion and 4 and 5 have lost love and affection of their father. Therefore, claimed compensation Rs.1,50,00,000/- with interest at 12% p.a. and alleged that all the respondents are liable to pay the compensation amount.

Before the Tribunal, respondent nos.1 and 2 appeared but, respondent no.3 did not appear and was placed exparte. - 5 - NC: 2025:KHC-D:3187-DB MFA No. 102228 of 2019

Respondent nos.1 and 2 have independent objections contending inter alia denying all assertions and allegations made in the claim petition. The claimants are put to strict proof of the nature of the accident alleged, his age, income, dependency etc., So far as respondent no.2 is concerned, it is contended that its liability is subject to the terms and conditions of the policy. The compensation so claimed is on higher side and claimants are not entitled for any interest as claimed. Therefore, it is prayed to dismiss the petition.

Based upon the rival pleadings of both the side learned Tribunal framed three issues and one additional issue.

To prove the claim of the claimants, claimant no.3 was examined as PW.1 and also examined one eye witness by name Chandrappa S/o.Somashekarappa as PW.2 and got marked Ex.P1 to P20 and closed claimants’ evidence. The respondent no.1 has entered the witness box as RW.1 and respondent no.2 has produced the policy. On - 6 - NC: 2025:KHC-D:3187-DB MFA No. 102228 of 2019 behalf of respondent nos. 1 and 2, Ex.R1 and R2 are marked.

The learned Tribunal, on hearing the arguments and on assessment of the evidence held that, the said accident has taken place because of rash and negligent driving of Maruti Omni to the extent of 90% negligence and 10% negligence was attributed on the deceased as he was not possessing driving licence and thus, held that, claimants are entitled for total compensation of Rs.35,77,800/- and deducted 10% towards negligence attributed on deceased with interest at the rate of 7.5% from the date of petition till its realization and also directed the respondent nos.1 to 3 to pay the compensation jointly and severally however, directed respondent no.2 to deposit compensation amount before the Tribunal with deposit, release and apportionment as per the final order.

Being dissatisfied with the said award so passed by the Tribunal, now the claimants have preferred this - 7 - NC: 2025:KHC-D:3187-DB MFA No. 102228 of 2019 appeal with regard to the negligence attributed against the deceased as well as quantum.

The learned Sri Anjeneya M., Advocate appearing for the claimants would submit, that on perusal of the documents as well as panchanama, there is no evidence placed on record to show that, really deceased had contributed his negligence in causing the accident. He would submit that, the income assessed by the Tribunal is on the lower side and as the deceased was a businessman and was an income tax assessee, therefore, the compensation so awarded by the Tribunal is quite on lower side. Hence, he prays to hold that it was the sheer exclusive negligence on the part of the driver of the Maruti Omni in causing the accident and prays to award the compensation as prayed in the claim petition.

As against this submission, the learned counsel for respondent no.2 Sri G.N.Raichur submits that, whatever compensation so awarded is on higher side and there was negligence on the part of the deceased also, therefore, there - 8 - NC: 2025:KHC-D:3187-DB MFA No. 102228 of 2019 is no error committed by the Tribunal. The learned Standing Counsel justifies the compensation awarded by the Tribunal and prays to dismiss the appeal.

We have given our anxious consideration to the arguments of both the side, perused the records. In view of the rival submissions, the points that would arise for our consideration are:

“Whether finding of the Tribunal attributing 10% negligence deceased in causing the accident, sustainable?

2. Whether the claimants are entitled for enhancement in compensation as prayed?”

Sofar as occurrence of accident and death of Ashoka in the said accident on 7.5.2017 is not in dispute. PW.1 being the claimant no.3 has deposed in line with the contents of claim petition with regard to the said accident. Evidently, she is not an eye witness to the said accident. Her evidence has to be accepted to the extent of getting knowledge of accident and death of her husband in the said accident. - 9 - NC: 2025:KHC-D:3187-DB MFA No. 102228 of 2019

PW.2 Chandrappa S/o.Somashekarappa is the eye witness examined by the claimants, wherein he states, that on the day of accident, he was driving the Maruti Omni bearing Regn. No.KA-17-Z-1577 and was shifting the patient to the Manipal Hospital in the said vehicle. According to him at 6.30 p.m. when he reached Arabagatti Cross, he noticed one Hyundai car bearing Regn. No.KA-03-MG/1915 was moving ahead of him and dashed to a motor cycle which was moving ahead of that Hyundai car. Because of that accident, the deceased Ashok, a resident of Honnali sustained grievous injuries and even the inmates of the said car had also sustained injuries. As this PW.2 was in hurry to go to Manipal Hospital who was carrying the patient, went to the hospital. This PW.2 was cross-examined by Respondent no.1. Except denial, nothing worth is elicited from his mouth. So also, he was cross-examined by respondent nos.2’s counsel. He admits that, a charge sheet was filed against the driver of the Maruti Car but, according to him, his name is not appearing in the charge sheet. He has denied all the suggestions directed to him. - 10 - NC: 2025:KHC-D:3187-DB MFA No. 102228 of 2019

To prove the factum of accident, claimants have produced the copy of the FIR, complaint, panchanama, PM report, and copy of the charge sheet as per Ex.P1 to P5 respectively. The respondents have not lead any evidence to prove the contributory negligence on the part of the deceased. On scrupulous reading of the spot panchanama marked at Ex.P3 shows that, the said accident has taken place on Honnali-Nyamathi Road and the road is running from north to south and it was a tar road, having a width of 20 ft. On either side of the tar road there exists 10 ft. width of kachcha road and the said accident has taken place at the western edge of the road. That means, the said rider of the motor bike Ashok was moving on the left side of the road, at the time, the said accident has taken place. If that is so, the driver of the offending Hyundai car had sufficient place towards the right side of the road and he could have avoided the accident by taking his vehicle towards his right side, but, he has not done so. Merely because, the rider of the motor bike was not holding the driving licence, it cannot be stated that, he has contributed 10% negligence. Ex.P7 is - 11 - NC: 2025:KHC-D:3187-DB MFA No. 102228 of 2019 produced by the claimants to show that, deceased Ashok had driving licence to drive the two-wheeler and this fact is not denied by the respondents. Therefore, the finding of the Tribunal that, there is 10% negligence on the part deceased is quite incorrect and without appreciating the evidence in proper manner such a finding is given by the Tribunal. From the evidence of PW.2, as well as the documentary evidence narrated above, it is proved that, the said accident has taken place because of rash and negligent driving of the Hyundai car by its driver. There is no explanation offered by respondent no.1 though lead the evidence. Hence, it can be stated that, the said accident has taken place because of 100% negligence on the part of the driver of offending Hyundai car. Accordingly, the aforesaid point is answered in favour of the claimants.

So far as award of compensation is concerned, while calculating the income of the deceased, Tribunal assessed the income of the deceased at Rs.18,559.16 and deducted 10% of it towards income tax i.e., Rs.1856/-. Monthly income after deduction comes to Rs.16,704/- and - 12 - NC: 2025:KHC-D:3187-DB MFA No. 102228 of 2019 Deducted 1/4th of his income towards personal and living expenses and arrived at a notional income at Rs.12,528/-. As his age was 39 years, added 40% of the income towards future prospects and thus, have come to the conclusion that, the income of the deceased was Rs.19,210/- and applied multiplier `15’ as per the judgment in Sarla Verma and Ors. V/s. Delhi Transport Corporation and Anr1,. Thus, calculated the loss of dependency at Rs.34,57,800/-.

To prove the dependency on the deceased and his income, the claimants have produced the genealogical tree issued by the Deputy Tashildar as per Ex.P6 wherein it shows that, these claimants are dependents of deceased. Ex.P8 ration card standing in the name of claimant no.1. To that, deceased was doing the business, VAT Registration certificate is produced by the claimants and it is a photocopy. Form No.20 is produced as per Ex.P9 and it show that, deceased was a Proprietor of Sri Lakshmi Medicals and General Stores. Form No.21 is produced being the licence to run the medical stores. He was an income tax 1 AIR 2009 SC 3104 - 13 - NC: 2025:KHC-D:3187-DB MFA No. 102228 of 2019 assessee and acknowledgement for having submitted the income tax returns for the relevant assessment year are produced as per Ex.P11 to P20.

Though claimants produced acknowledgement for having submitted the income tax returns from Ex.P11 to P20 but, to arrive at a proper income of the deceased, three years’ average gross income prior to his accident has to be taken into consideration. The accident is of the year 2017, three years’ previous to the said year has to be taken into consideration viz., for the years 2014-15, 2015-16, 2016-17 is to be taken. As per the records, the income the year 2014-15 is shown as Rs.2,68,498/-, for the year 2015-16 – Rs.1,81,943 and for the year 2016-17 Rs.2,22,711/- totaling to Rs.6,73,152/- the average of which would be Rs.2,24,384/-. To this income, 40% is to be added towards future prospects as per the judgment in National insurance Co. Ltd., V/s. Pranay Sethi2 i.e., Rs.89,754/- i.e., Rs.3,14,138/-(Rs.2,24,384+ Rs.89,754/-). As the deceased had five dependents, 1/4th of 2 (2017) 16 SCC 680 - 14 - NC: 2025:KHC-D:3187-DB MFA No. 102228 of 2019 Rs.3,14,138/-is to be deducted towards his personal and living expenses which comes to Rs.78,535/-. i.e., Rs.2,35,603 (Rs.3,14,138– Rs.78,535). It is to be multiplied with appropriate multiplier i.e. `15’. It comes Rs.35,34,045/-. For these years, there was no taxable income earned by the deceased as his income was less than the taxable limit for the aforesaid years. Therefore, no income tax is deducted. Thus, the loss of dependency would be Rs.35,34,045/- (Rs.2,35,603 x 15).

Claimant nos. 1 and 2 are the parents of deceased and have lost the love and affection of their son, therefore, Rs.40,000/- each is to be awarded towards parental consortium. Claimant no.3 is the wife and lost her conjugal happiness as she is just 30 years of age and hence, towards loss of consortium, she is entitled to compensation at Rs.40,000/-. Claimant nos. 4 and 5 are the minor children of deceased of tender age have lost their father and hence they are entitled for Rs.40,000/- towards filial consortium. Totally under the head of `loss of consortium’, - 15 - NC: 2025:KHC-D:3187-DB MFA No. 102228 of 2019 the claimants are held entitled to Rs.2,00,000/- with 10% escalation i.e., Rs.2,20,000/-.

Under the conventional heads like loss of estate, transportation of dead body and funeral expenses, the claimants are held entitled for Rs.15,000/- each with 10% hike. i.e., Rs.16,500/- each. Hence, the claimants are held entitled for compensation as under: Sl. No. 1.

3. 4. Particulars Loss dependency Loss consortium Loss of Estate Funeral expenses Transportation of Dead Body. Amount In Rs. 35,34,045/- 2,20,000/- 16,500/- 16,500/- TOTAL 37,87,045/- rounded off to Rs.37,87,000/-

In view of our findings with regard contributory negligence as discussed above, the Tribunal has committed error in deducting 10% of income towards - 16 - NC: 2025:KHC-D:3187-DB MFA No. 102228 of 2019 his negligence. Hence, no deduction of 10% towards negligence is required to be made.