IN THE HIGH COURT OF KARNATAKA AT BENGALURU BEFORE THE HON BLE MR.JUSTICE RAM MOHAN REDDY

Transcription

1 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22 ND DAY OF APRIL, 2016 BEFORE THE HON BLE MR.JUSTICE RAM MOHAN REDDY M.F.A. No.3847 OF 2013 C/W M.F.A.NOs.3848, 3195 & 3196 OF 2013(MV) IN MFA NO.3847/2013: BETWEEN: 1. V. SUMA DEVI, 24 YEARS, W/O LATE ANANDA KUMAR, 2. MASTER BHARATH. A, 8 YARS, S/O LATE ANAND KUMAR, BOTH ARE RESIDING AT IDGA ROAD, VARTHUR, BANGALORE SINCE THE SECOND APPELLANT IS MINOR REP. BY HIS NATURAL GUARDIAN AND MOTHER V.SUMA DEVI. APPELLANTS (BY SRI.R. CHANDRASHEKHAR, ADV) AND: 1. MOHAMMED NASEERUDDIN, MAJOR, S/O MOHAMMED NOORUDDIN, RESIDING AT NO.10, 3 RD MAIN, NEW TARAGUPET, BANGALORE

2 2 2. THE BRANCH MANAGER THE NEW INDIA ASSURANCE CO.LTD., INDOCEM HOUSE, II FLOOR, NO.327/5, MYSORE ROAD, BANGALORE MUNIYAPPA 59 YEARS, S/O LATE ABBIAHAPPA, 4. TULASAMMA, 54 YEARS, W/O MUNIYAPPA, RESPONDENT NOs.3 & 4 ARE RESIDING AT VARHUR VILLAGE, BANGALORE EAST TALUK RESPONDENTS (BY SRI. R.JAIPRAKASH, ADV. FOR R2 SMT.K.G.NALINA KUMARI, ADV. FOR R3 & R4. NOTICE TO R1 DISPENSED WITH VIDE ORDER DATED 22/4/2016.) MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: PASSED IN MVC NO.2720/2009 ON THE FILE OF THE XI ADDL. JUDGE & MACT, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. IN MFA NO.3848/2013: BETWEEN 1. BHARATHI 26 YEARS, W/O LATE RAVI KUMAR 2. R.SWETHA, 10 YEARS, D/O LATE RAVI KUMAR,

3 3 3. BABY KAVYA, 6 1/2 YEARS, D/O LATE RAVI KUMAR, 4. BABY AISHWARYA 5 YEARS, D/O LATE RAVI KUMAR, THE APPELLANT NOs.2 TO 4 ARE MINORS, REPRESENTED BY HER MOTHER AS NATURAL GUARDIAN ALL ARE RESIDING AT: IDGA ROAD, BEHIND GOVERNMENT JUNIOR COLLEGE, VARTHUR, BANGALORE APPELLANTS (BY SRI. R. CHANDRASHEKHAR, ADV.) AND: 1. MOHAMMED NASEERUDDIN MAJOR, S/O MOHAMMED NORRUDDIN, REDSIDING AT NO.10, 3 RD MAIN, NEW TARAGUPET, BANGALORE THE BRANCH MANAGER, THE NEW INDIA ASSURANCE CO. LTD., INDOCEM HOUSE, II FLOOR, NO.327/5, MYSORE ROAD, BANGALORE NAGARAJ, 59 YEARS, S/O MUNISWAMAPPA, 4. SLAKSHMAMMA 54 YEARS, W/O NAGARAJ, TH ERESPONDENT NOs.3 & 4 ARE RESIDING AT: TIGALARA BEEDI, VARTHUR VILLAGE, BANGALORE EAST TALUK RESPONDENTS

4 4 (NOTICE TO R1 IS DISPENSED WITH VIDE ORDER DATED 22/4/2016. BY SRI.R. JAI PRAKASH, ADV. FOR R2 SMT.K.G.NALINAKUMRI, ADV. FOR R3 AND R4) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: PASSED IN MVC NO.2721/2009 ON THE FILE OF THE XI ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BANGALORE CITY PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. IN MFA NO.3195/2013: BETWEEN: NEW INDIA INSURANCE CO. LTD., REP. BY BRANCH MANAGER INDOCEM HOUSE, 2 ND FLOOR, NO.327/5,MYSORE ROAD, BANGALORE ,REPRESENTED BY NEW INDIA ASSURANCE CI.LTD. M. G. ROAD, BANGALORE BY MANAGER.... APPELLANT (BY SRI. R. JAI PRAKASH, ADV.) AND: 1. SRI. MOHAMMAD NASEERUDDIN S/O MOHAMMAD NURUDDIN MAJOR IN AGE, NO.10,3 RD MAIN ROAD, NEW THARAGUPET, BANGALORE

5 5 2. SRI. MUNIYAPPA S/O LATE ABBIAHAPPA AGED ABOUT 59 YEARS, 3. SMT. TULASAMMA AGED ABOUT 54 YEARS, SL NO.2 & 3 ARE R/AT VARTHUR VILLAGE, BANGALORE EAST TALUK BANGALORE SMT. SUMADEVI W/O LATE ANANDA KUMAR, AGED ABOUT 24 YEARS, 5. MASTER BHARATH A S/O LATE ANANDAKUMAR, AGED ABOUT 8 YEARS, SINCE MINOR REPRSENTED BY 4 TH RESPONDENT, SL.NO.4 & 5 ARE R/AT EDGA ROAD, VARTHUR, BANGALORE RESPONDENTS (R1-SERVED & UNREPRESENTED. SMT. K.G.NALINA KUMARI, ADV. FOR R2 AND R3 SRI.R.CHANDRASHEKHAR, ADV. FOR R4 AND R5. (R5 IS MINOR REPRESENTED BY R4) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: PASSED IN MVC NO.2720/2009 ON THE FILE OF THE 11TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.10,07,000/- WITH 6% P.A FROM THE DATE OF THIS PETITION TILL THE DATE OF REALIZATION.

6 6 IN MFA NO.3196/2013: BETWEEN: NEW INDIA ASSURANCE CO. LTD., REP. BY BRANCH MANAGER INDOCEM HOUSE, 2 ND FLOOR, NO.327/5,MYSORE ROAD, BANGALORE ,REPRESENTED BY NEW INDIA ASSURANCE CI.LTD. M. G. ROAD, BANGALORE BY MANAGER.... APPELLANT (BY SRI. R. JAI PRAKASH, ADV.) AND: 1. SRI. MOHAMMAD NASEERUDDIN S/O MOHAMMAD NURUDDIN MAJOR IN AGE, NO.10, 3 RD MAIN ROAD, NEW THARAGUPET, BANGALORE SMT BHARATHI AGED ABOUT 26 YEARS, 3. KUM. SWETHA AGED ABOUT 10 YEARS, 4. BABY KAVYA AGED ABOUT 6 1/2 YEARS, 5. BABY AISHWARYA AGED ABOUT 5 YEARS, SL.NO.2 I WIFE & 3 TO 5 ARE CHILDREN OF V. N. RAVIKUMAR, SINCE 3 TO 5 ARE MINORS REP. BY SL NO.2, ALL ARE R/AT EDGAR BEHIND GOVT.JR.COLLEGE, VARTHUR, BANGALORE

7 7 6. SMT. NAGARAJ AGED ABOUT 59 YEARS, 7. SM.T S. LAKSHMAMMA AGED ABOUT 54 YEARS, SL.NO.6 & 7 ARE R/AT THIGALARA BEEDHI, VARTHUR VILLAGE, BANGALORE EAST TALUK RESPONDENTS (R1- SERVED & UNREPRESSENTED. SRI.R.CHANDRASHEKHAR, ADV. FOR R2 TO R5. (R3 TO R5 ARE MINORS REPRESENTED BY R2 SMT. K.G.NALINAKUMARI, ADV. FOR R6 & R7) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: PASSED IN MVC NO.2721/2009 ON THE FILE OF THE XI ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BANGALORE, AWARDING A COMPENSATION OF Rs.6,47,000/- WITH 6% P..A FROM THE DATE OF PETITION TILL REALIZATION. THESE MFAs COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING: J U D G M E N T MFA 3847/2013 and MFA 3848/2013 are instituted by the claimants in MVC 2720/2009 and MVC 2721/2009, respectively, aggrieved by the finding attributing contributory negligence to the rider of the motorcycle and dissatisfied with the quantum of

8 8 compensation by common Judgment and award dated of the Court of Small Causes, Bangalore City, (SCCH-12, for short MACT. MFA 3195/2013 and MFA 3196/2013 are preferred by the insurer of the lorry calling in question the very same Judgment and award. The appeals are clubbed together, finally heard and disposed of by this order. 2. Facts briefly stated leading to the filing of claim petitions invoking Section 166 of the Motor Vehicles Act, 1988, for short Act are:- one Anand Kumar, aged 25, allegedly working in Government Pre-University college, as Tutor, and earning `10,000/- p.m., and another Ravikumar, aged 26, a tailor by occupation said to be earning `6,000/- p.m., while on a motorcycle bearing certificate of registration No.KA-53-E-9857, on at 12 midnight, dashed against the hind side of the lorry bearing certificate of registration No.KA-01- B6411, on Bangalore-Kolar National Highway, near

9 9 Kolathur gate, parked in the middle of the road since its tyre was punctured, whence the rider Anand Kumar succumbed to grievous injuries on the spot and the pillion rider Ravikumar succumbed to grievous injury in the hospital. On the allegation that the lorry was parked in the centre of the road without an indication by switching on the hazard lights/parking lights or any signal that the vehicle was parked, more so since at a curve in the road, not the place for parking of the lorry, a negligent act of the driver of the lorry, the widow and children the legal representative of the deceased filed claim petitions for compensation, invoking Section 146 of the Motor Vehicles Act, 1988, for short Act. The insurer of the lorry was arraigned as 2 nd respondent and the insured as the 1 st respondent in both the petitions, while the parents of the deceased were arraigned as respondents 3 and 4 in both the petitions.

10 10 3. Petitions were not opposed by the insured though the insurer filed objections and denied the assertions in the claim petitions. A plea was advanced that it was due to the rash and negligent riding of the rider of the motorcycle the cause of the accident and that the police had justifiably registered a criminal case against the deceased rider. In addition, it was pleaded that the lorry was parked on the foot-path since one of the tyres was punctured, with parking lights cautioning drivers of vehicles. The insurer admitted the policy of insurance valid from to , while the accident occurred on at 12 midnight. 4. In the premise of pleadings of parties, the MACT framed the following issues: 1. Does the petitioners in both the cases prove that death caused in the accident arising out of rash and negligent driving of the driver of the lorry bearing No.KA-01-B-6411 as alleged?

11 11 2. Whether the petitioners are entitled for compensation? If so, how much and from whom? 3. What order or award? 5. Before the MACT, the widows of the two deceased were examined as PWs 1 and 2, and a person claiming to be an eye witness, by name S.Nagaraja was examined as PW-3 and marked 23 documents as Exs.P1 to P23, while for the respondent, one officer of the insurer was examined as RW-1 and marked documents as Exs.R1 to R The MACT clubbed the claim petitions, conducted a common trial, and regard to the material on record and the evidence, both oral and documentary, returned findings partly in the affirmative over issues one and two attributing contributory negligence in equal proportions to the rider of the motorcycle, as well as the driver of the offending lorry to award `10,07,000/- and `6,47,000/- respectively, in each of the claim petitions

12 12 with interest at 6% p.a. to fasten the liability in equal proportions in MVC 2721/2009 and in entirely on the insurer of the lorry in MVC 2720/2009 by the Judgment and award impugned. 7. An examination of the Judgment and award, the evidence both oral and documentary marshaled in the trial, what is apparent is that there was no plea of contributory negligence advanced by the insurer of the lorry. It is well settled law that in the absence of a plea, no amount of evidence would be of any consequence, more so, in the absence of an issue over contributory negligence on the rider of the motorcycle. Reference may be made to the decision of the Division Bench of which RMRJ speaking to the bench in General Manager, ICICI Lombard Gen. Ins., Co. Ltd., -v- Rajendra Singh and others in MFA 31686/2013 along with connected Appeals DD , at Kalburgi Bench of the High Court. Thus in the absence of a plea

13 13 followed by framing of an issue and a trial on that issue, the MACT recorded a perverse finding attributing contributory negligence on the rider of the motorcycle, calling for interference. Sequentially the fastening of the liability equally on the rider of the motorcycle as well as the insurer of the offending lorry is unsustainable. 8. A further examination of the material on record discloses that PW-3, an independent witness examined by the claimants testified to the fact that, after the accident, when he visited the spot, noticed that the lorry was parked in the middle of the highway without any indication by way of signal/hazard light that it was stationed/parked, nor was there any indication that the vehicle was parked since a tyre was punctured. Section 117 and 122 of the Act provides for parking places and halting stations and leaving the vehicles in a dangerous position wherein it is for the State Government or any

14 14 authority authorized in that behalf to determine places where the vehicles may station either indefinitely or for a specified period of time and no person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place. Rule 109 of the Central Motor Vehicle Rules provides for parking lights requiring every motor vehicle to have its front and rear parking lights to be lit when the vehicle is kept stationary on the road. 9. In the light of the aforesaid statutory provisions, the offending lorry when not parked at a notified parking place or halting station and the driver having abandoned the vehicle in a dangerous position in the centre of the Highway, likely to cause danger or inconvenience to the other users of the public, coupled

15 15 with the fact, that parking lights were not lit when the vehicle was stationary on the road, a mandate of Rule 109 of the Rules there can be no more doubt that the driver of the offending vehicle i.e., lorry was negligent in parking the lorry on the road put to use by other motor vehicles, the cause of accident. 10. Useful reference also may be made to the decision of the Division Bench in M.N.Rajan and others vs. Konnali Khalid Haji and another 1, following the observations of the Madras High Court in Pandian Roadways Corporation, Madurai vs. Karunanithi and another(air 1982 Mad 104: 1982 ACJ 186: 1982 TAC 356); as also a decision of Rajasthan High Court in M/s Yatayat Nigam, Udaipur vs. Union of India(AIR 1983 Rj 17: 1983 ACJ 312; 1983 TAC 480); and the decisions in General Manager, Bangalore Transport Service vs. 1 MFA No.5673/2001 DD

16 16 N.Narasimhiah and others 2 ; Sharada Bai vs. Karnataka State Road Transport Corporation 3 ; Pramodkumar Rasikbhai Jhaveri vs. Karmasey Kunvargi Tak and others 4 Pramodkumar Rasikbhai Jhaveri vs. Karmasey Kunvargi Tak and others 5 in which at paragraph 10 reference was made to the decision in Swadling vs. Cooper 6 AC at p.9 Lord Hailsham said: (All ER p.260 D-E); and in Municipal Corporation of Greater Bombay vs. Laxman Iyer and another It may be that RW-1, an officer of the insurer spoke to the police records in which the jurisdictional police for reasons unknown registered a criminal case against the deceased rider of the motorcycle alleging commission of cognizable offence under the IPC, which by itself and nothing more is not conclusive evidence of ACJ ILR 1987 KAR (2002)6 SCC (2002)6 SCC AC 1 7 (2003)8 SCC 731

17 17 contributory negligence of the rider of the motorcycle. Less said the better of the police constabulary in the State of Karnataka. Police have no wherewithal to understand the laws. The foisting of a criminal case against the rider of the motorcycle, in the present case, who, though, followed the rule of law while it is driver of the offending lorry who violated the rule of law and was required to be prosecuted. Less said the better about the investigation. 12. The finding of the MACT that there was contribution of negligence by the rider of the motorcycle is perverse. 13. There is force in the submission of the learned counsel for the insurer that in the absence of relevant material constituting substantial legal evidence of the fact that the rider of the motorcycle was employed as a Tutor in a Pre-university college, drawing `10,000/- p.m., MACT was not justified in reckoning `6,000/- as

18 18 monthly income of the deceased during the year In the Lok-adalat it is recognized that an able bodied unskilled young man would earned at least 4,000/- p.m. during the year Having regard to the fact that the claimants were unable to place relevant material to substantiate the fact that deceased was a Tutor except to produce and place on record the marks sheets of his SSLC examination as also that of the diploma the MACT was not justified in reckoning `6,000/- as monthly income of the deceased. In that view of the matter, reckoning `4,500/- as monthly income of the deceased and deducting 1/4 th as has been done by the MACT since parents of the deceased were arraigned as respondents 3 and 4 and there were four dependents, the monthly loss of dependency is `3375/- and to the annual loss applying multiplier 18 as applicable to age 25 of the deceased, the loss of dependency is `7,29,000/- as against `9,72,000/- awarded by the MACT.

19 MACT failed to award reasonable compensation towards loss of consortium as well as loss of care and guidance to the minor child. Enhancing the compensation from `10,000/- to `1,00,000/- each, is just and reasonable. The award of `10,000/- towards loss to estate does not call for interference, however addition of `10,000/- towards transportation and funeral expenses of `5,000/- is just and reasonable. 15. In the circumstances, the claimants in MVC 2720/2009 are entitled to `9,54,000/- with interest at 6% p.a. as against `10,70,000/- awarded by the MACT. 16. The MACT reckoned `4,000/- p.m. as the income of the deceased pillion rider, said to be a tailor by avocation, however there is no material to establish either avocation or income of the deceased. Regard being had to the fact that accident occurred in the year 2007 and a unskilled labour would have earned

20 20 `4,000/- p.m., no exception can be taken to the award of `6,12,000/- as compensation towards loss of dependency. The award of 10,000/- each towards loss of consortium and loss of love and affection, in the circumstances, is not fair and just, enhancing it to 1,00,000/- each is just and reasonable. The award of `10,000/- towards loss to estate does not call for interference. The award of `5,000/- towards funeral and obsequies ceremony if enhanced to 15,000/- is just and reasonable. In the circumstances, claimants in MVC 2721/2009 are entitled to `8,32,000/with interest at 6% p.a. In the result, the appeals of the insurer insofar as it relates to quantum of compensation in MVC 2720/2009 is allowed in part and in respect of MVC 2721/2009 is dismissed. Appeals by the claimants are allowed in part. The Judgment and award impugned is modified fastening the liability to pay compensation on

21 21 the insurer, in the aforesaid terms and in all other respects remains unaltered. The amounts, in deposit, are directed to be transmitted to the MACT concerned, forthwith. ln Sd/- JUDGE