Karnataka High Court
Smt. Neelamma W/O Jagannath And Ors vs Sri. Hanumesh Kuri And Anr on 26 July, 2024
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NC: 2024:KHC-K:5398
MFA No. 200156 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MISCL. FIRST APPEAL NO. 200156 OF 2020 (MV-D)
BETWEEN:
1. SMT. NEELAMMA W/O JAGANNATH
AGE: 29 YEARS, OCC: HOUSEHOLD WORK
2. BINDU D/O LATE JAGANNATH
AGE: 10 YEARS, MINOR
3. LAXMIBAI D/O LATE JAGANNATH
AGE: 8 YEARS, MINOR
4. SRI. SRIKANTH S/O LATE JAGANNATH
AGE: 5 YEARS, MINOR
Digitally signed
by KHAJAAMEEN 5. SRI. MAHESH S/O LATE JAGANNATH
L MALAGHAN AGE: 3 YEARS, MINOR,
Location: HIGH SINCE APPELLANT NO. 2 TO 5 ARE MINORS,
COURT OF
KARNATAKA REPRESENTED BY THEIR NATURAL MOTHER,
GUARDIAN SMT. NEELAMMA APPELLANT NO-1.
6. SMT. LAXMI
W/O LATE HULYA @ HULIAPPA
AGE: 62 YEARS, OCC: HOUSEHOLD AND COOLIE
WORK,
7. SRI. HULYA @ HULIAPPA S/O THAKREY
AGE: 66 YEARS, OCC: COOLIE.
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NC: 2024:KHC-K:5398
MFA No. 200156 of 2020
ALL ARE R/O. BETTADUR TANDA,
TQ. MANVI, RAICHUR-584101,
PRESENTLY RESIDENT AT SINGANODI TANDA
...APPELLANTS
(BY SRI BABU H. METAGUDDA, ADVOCATE)
AND:
1. SRI. HANUMESH KURI S/O YAMANAPPA KURI
AGE: 32 YEARS OCC: DRIVER,
R/O. 4TH WARD S.B. COLONY,
BASAPATTANA TQ. GANGAVATHI,
DIST. KOPPAL-584101.
2. SRI. JAGADISH S/O YAMANAPPA
AGE: MAJOR OCC: BUSINESS &,
OWNER OF LORRY NO.KA-35/J-7127,
R/O 28TH WARD 100 BED HOSPITAL ROAD,
CHAPPARABADAHALLI TQ. HOSPET,
DIST. BELLARY-584101.
3. THE BRANCH MANGER
NATIONAL INSURANCE CO. LTD,
NEAR SURAKSHA HOSPITAL, RAICHUR,
TQ. & DIST. RAICHUR-584101.
...RESPONDENTS
(BY SRI DEEPAK V BARAD, ADVOCATE FOR R3;
VIDE ORDER DATED 07.01.2021, NOTICE TO R1 AND R2
DISPENSED WITH)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
A) CALL FOR THE RECORDS IN MVC NO.184/2018 ON THE FILE
OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, RAICHUR. B)
ALLOW THIS APPEAL AND MODIFY THE JUDGMENT AND
AWARD DATED 28.06.2019 PASSED IN MVC NO.184/2018 BY
THE MOTOR ACCIDENT CLAIMS TRIBUNAL AND PRINCIPAL
DISTRICT AND SESSIONS JUDGE AT- RAICHUR AND
ENHANCING THE COMPENSATION FROM RS.6,61,900/- WITH
6% INTEREST TO RS.16,70,000/- WITH 12% INTEREST.
C).ALLOW THIS APPEAL AND DIRECT THE 3RD
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NC: 2024:KHC-K:5398
MFA No. 200156 of 2020
RESPONDENT/INSURANCE COMPANY TO PAY THE ENTIRE
COMPENSATION TO THE CLAIMANTS/APPELLANTS. AND ETC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE UMESH M ADIGA) This is a claimants' appeal for enhancement of compensation awarded by the Tribunal in M.V.C.No.184 of 2018 dated 28.06.2019 on the file of the M.A.C.T., Raichur.
2. I refer the parties as per their rank before the Tribunal.
3. Brief facts of the case are that on 28.01.2018, the deceased Jagannath and Shankar were going on motorcycle bearing Registration No.KA-36/EJ-3592 on Raichur-Manvi main road. Deceased Jagannath was rider and Shankar was pillion-rider. The driver of the lorry bearing Registration No.KA-35/B-7127 had parked his lorry on the middle of the road without putting on proper -4- NC: 2024:KHC-K:5398 MFA No. 200156 of 2020 indicator lights and parking lights. Due to glare of headlights of on coming vehicles, rider of the motorcycle, i.e., Jagannath could not make out the parked lorry, dashed against the rear side of the same. As a result of which, rider of the motorcycle sustained grievous injuries. The deceased Jagannath sustained head injuries and died at the spot. A complaint was given to the concerned police station and they have registered the FIR, investigated the case and submitted the charge-sheet against both rider of the motorcycle as well as driver of the lorry.
4. It is the further case of the claimants that claimant No.1 is his wife; claimant Nos.2 to 5 are children and claimant Nos.6 and 7 are parents of the deceased Jagannath. Deceased Jagannath was aged about 31 years at the time of the accident and he was earning Rs.15,000/- per month by working as a Mason and maintaining entire family. Due to the death of the said Jagannath, his family members are suffering. With these reasons, prayed to award compensation. -5-
NC: 2024:KHC-K:5398 MFA No. 200156 of 2020
5. Respondent Nos.1 and 2 are driver and owner of the lorry. Respondent No.3 is the Insurer of the said lorry.
6. Respondent No.2 denied the contents of the claim petition and he has further stated that accident had taken place due to rash and negligent riding of the motorcycle by the deceased. The claim petition is bad for non-joinder of necessary parties. The said lorry was insured with the Respondent No.3 and in the event, if compensation is awarded, Respondent No.3 is liable to pay the same. With these reasons, he prayed to dismiss the claim petition.
7. Respondent No.3 has also denied the contents of the claim petition and it has further stated that accident had taken place due to negligence of the deceased and the driver of the lorry was not at all responsible for the same. The liability of the Respondent No.3 is restricted to terms and conditions of the policy of insurance and holding of valid and effective license by driver of the lorry. With these reasons, prayed to dismiss the claim petition. -6-
NC: 2024:KHC-K:5398 MFA No. 200156 of 2020
8. The Tribunal had framed necessary issues.
9. Claimants examined PWs-1 and 2 and got marked Exs.P1 to P6 and closed their evidence.
The respondents have examined one witness as RW- 1 and got marked Exs.R1 to R7 and closed their evidence.
10. The Tribunal, after hearing both the parties and on appreciating the materials on record held that the accident had taken place due to contributory negligence of rider of the motorcycle as well as driver of the lorry and apportioned it at the ratio of 50:50.
The Tribunal, while awarding the compensation assessed the age of the deceased as 31 years; his earning as Rs.6,400/- per month; applied multiplier as '16'; deducted 1/5th of income towards personal expenses and assessed the compensation under the head loss of dependency. The Tribunal has also awarded compensation under the conventional head and awarded the following amount of compensation:
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NC: 2024:KHC-K:5398 MFA No. 200156 of 2020 Sl. Heads of Compensation Amount No. (in Rs.) 1 Loss of dependency 12,28,800 2 Loss of consortium 25,000 3 Loss of love and affection 25,000 4 Loss of estate 25,000 5 Transportation of dead 20,000 body and funeral Total 13,23,800
11. The Tribunal deducted 50% of the said compensation on the ground that rider of the motorcycle was responsible for the accident and directed Respondent Nos.2 and 3 to pay 50% of the compensation by the impugned judgment and award.
12. I have heard the arguments of the learned Advocate for the Appellant and Respondent No.3.
13. The learned Advocate for the Appellant would submit that undisputedly, the lorry was parked on the road. The driver of the lorry did not take any precaution to indicate that it was parked and there was no parking light or any guard-stones behind the said vehicle. The accident had taken place during night. Deceased was riding the motorcycle. In view of the darkness, so also, -8- NC: 2024:KHC-K:5398 MFA No. 200156 of 2020 without taking any precautionary measures, driver of the lorry had parked the vehicle, because of which, deceased rider of the motorcycle could not see the same and banged against back side of the lorry, as a result of which, he sustained severe head injuries and died.
The learned Advocate for the appellant would further submit that unfortunately, the Investigation Officer charge-sheeted the deceased rider of the motorcycle though he was not negligent in riding the vehicle. The driver of the lorry had committed an offence under Section 122 of the Motor Vehicles Act. In addition to that, he pleaded guilty before the concerned Criminal Court and paid fine. These facts clearly indicate that he was responsible for the accident in question.
Learned Advocate for Appellant would further submit that the Co-ordinate Bench of this Court in M.F.A. No.200227 of 2020 (MV-I) dated 03.10.2023 held that when vehicle was parked on the main road without taking precautionary measures, the driver of such vehicle was solely responsible for the accident in question, if any -9- NC: 2024:KHC-K:5398 MFA No. 200156 of 2020 person dashed against the parked vehicle during the night. He has relied on the judgment of the Hon'ble Apex Court in the case of Archit Saini and another Vs. The Oriental Insurance Company Limited and others 1. With these reasons, prayed for setting aside the impugned judgment and allow the appeal by enhancing the compensation amount awarded by the Tribunal, as well as directing the respondents to pay entire amount of compensation.
14. The learned Advocate for Respondent No.3 vehemently contended that charge-sheet was filed against rider of the motorcycle as well as the driver of the lorry. PW-2 who is an eye-witness to the accident and pillion- rider of the motorcycle, in his cross-examination, admits that portion of the lorry was parked on the tar road and remaining portion was parked on the mud-road and there was space of about 25 feet towards right side of the lorry. The rider of the motorcycle could easily pass through from the right side of the lorry. The said admission of an eye- 1 2018 Kant M.A.C.346(SC)
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NC: 2024:KHC-K:5398 MFA No. 200156 of 2020 witness is sufficient to show that it was negligence of rider of the motorcycle.
He would further submit that the motorcycle had also headlight, by the same, he could have seen the parked lorry. Even though for the sake of discussion, it is accepted that the driver of the lorry had not taken any precautionary measures, the rider of the motorcycle could have reduced the speed of the motorcycle or stopped his motorcycle. It indicates that rider of the motorcycle had no control over his vehicle.
15. The learned Advocate for Respondent No.3 would further submit that the Tribunal in the impugned judgment discussed in detail about the evidence of both the parties. The Respondent examined RW-1 who was driver of the lorry. In his cross-examination by the petitioners, even it was not suggested that he did not take care of putting the indicator light or keeping the guard- stones behind the lorry to indicate that it was parked. These facts indicate that the accident had taken place due to the negligence of the deceased. The Tribunal rightly
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NC: 2024:KHC-K:5398 MFA No. 200156 of 2020 held the same and there is no reason to interfere with the impugned judgment.
16. The learned Advocate for Respondent No.3 would further submit that whatever the amount of compensation awarded by the Tribunal is just and reasonable and claimant is not entitled for any enhancement of the same.
17. The fact of accident and the manner in which the accident had taken place and death of Jagannath are not in dispute. It is not in dispute that place of accident is Raichur-Manvi main road and lorry was parked at the time of the accident. As per the case of the claimants, said lorry was parked on the middle of the road. The spot mahazar and map of the place of accident would also indicate that the lorry was parked on the tar road. However, PW-2 in his cross-examination has stated that portion of the lorry was on the mud-road and remaining five to six feet portion was on the main road. He has also stated that there was lot of space of around 25 feet towards the right side of the lorry. He denies the
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NC: 2024:KHC-K:5398 MFA No. 200156 of 2020 suggestions of the Insurer that driver of the lorry has taken precautionary measure of switching on the indicator lights.
18. The driver of the lorry was examined by Respondent as RW-1. In his evidence, he has stated that due to some mechanical defects, he was forced to park the vehicle on the tar road. He was cross-examined by the Advocate for the petitioner and he denied suggestion that due to negligent parking of the lorry, without following the safety measures, accident had taken place. In the cross- examination of the Insurer, he has stated that the vehicle was parked at the extreme left side of the road. The vehicle required repairs, therefore, he parked it and went to call a Mechanic. He switched on the parking lights and kept the guard-stones on the back side of the lorry.
In the cross-examination, petitioner has not elaborately questioned him regarding the place of the parking or width of the road, etc., he might be the competent person because being a driver of the vehicle, he could have answered such relevant questions.
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NC: 2024:KHC-K:5398 MFA No. 200156 of 2020 Whatever he has stated in the cross-examination of the Insurer regarding taking of safety measures such as putting on the parking lights or keeping the guard-stones, etc., were not denied.
19. Considering the evidence of PW-2 and RW-1, it could be safely held that there is contributory negligence by the deceased also for causing accident in question.
20. As rightly submitted by the learned counsel for the appellant, the contributory negligence of deceased taken by the Tribunal is on the higher side, probably, based on the charge-sheet filed against him by the concerned police along with the driver of lorry. Either of the parties should have examined the Investigation Officer to analyze the parking of the lorry and use of the parking lights, etc., because both PW-2 as well as RW-1 are interested witnesses. On the basis of the available materials and evidence of the witnesses, the contributory negligence of the rider of the motorcycle, deceased Jagannath and driver of the lorry is assessed as 25:75.
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NC: 2024:KHC-K:5398 MFA No. 200156 of 2020 Rider of the motorcycle has contributed to an extent of 25% for the cause of the accident.
21. Deceased was rider of the motorcycle and is said to be the owner of the said motorcycle. Since he was a joint tort-feasor, his legal heirs are on record and in their presence, the contributory negligence can be apportioned.
22. Considering the amount of compensation awarded by the Tribunal, reassessment/recalculation of the same is required. The Tribunal has taken income of the deceased as Rs.6,500/- per month. The accident had taken place during the year 2018. If the Chart of notional income prepared by the Karnataka State Legal Services Authority is taken into account, the notional income of the deceased could be taken as Rs.11,750/- per month. Admittedly, he was aged about 31 years. Therefore, 40% of his income has to be added towards future prospects. The multiplier applicable to the case in hand is '16'. Deceased had to maintain in all seven dependants. Therefore, deduction towards personal expenses is taken as 1/5th; on the basis of the said figures, compensation
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NC: 2024:KHC-K:5398 MFA No. 200156 of 2020 under the head 'loss of dependency' is assessed. The Tribunal has not awarded the compensation under the conventional heads as per the law laid down in the case of National Insurance Company Limited Vs. Pranay Shethi and others2 and Magma General Insurance Company Limited Vs. Nanu Ram Alias Chuhru Ram and others 3.
23. For the aforesaid discussion, following amount of compensation is awarded:
Sl. Heads of Compensation Amount
No. (in Rs.)
1 Loss of dependency 25,26,720
Rs.11750+40%X12X16X4/5
2 Loss of consortium 2,80,000
3 Loss of estate 15,000
4 Funeral expenses 15,000
Total 28,36,720
25% contribution 7,09,180
21,27,540
Awarded by Tribunal 6,61,900
TOTAL 14,65,640
Respondent No.3 is liable to pay the same with interest @ 6% per annum from the date of petition. 2 (2017) 16 SCC 680 3 (2018) 18 SCC 130
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24. For the aforesaid discussion, I proceed to pass the following:
ORDER i. The appeal is allowed in part.
ii. The impugned judgment and award passed by the Motor Accident Claims Tribunal, Raichur in M.V.C.No.184 of 2018 dated 28.06.2019 is modified;
(a) The claimant is entitled for enhancement of Rs.14,65,640/- (Rupees Fourteen Thousand Sixty Five Thousand Six Hundred and Forty only) with interest at the rate of 6% per annum from the date of the petition till its realization.
iii. The Respondent No.3 is liable to pay the said amount with interest and it shall deposit the same within a period of Six weeks from the date of release of this order.
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NC: 2024:KHC-K:5398 MFA No. 200156 of 2020 iv. Apportionment, Deposit and Release of the compensation amount is as ordered by the Tribunal.
The Registry is directed to send back the Trial Court records with copy of this judgment.
Sd/-
JUDGE DH List No.: 1 Sl No.: 8 CT:PK