Karnataka High Court

The Manager vs Somappa S/O Nagappa Shigihalli on 25 February, 2021

Author: N.S.Sanjay Gowda

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 25TH DAY OF FEBRUARY 2021

                           BEFORE

      THE HON'BLE MR.JUSTICE N.S. SANJAY GOWDA

                 MFA NO.103678/2016
                        C/W
           MFA NOS.21966/2013, 21971/2013
          & MFA CROB NO.100142/2017 (MV-D)

IN MFA NO.103678 OF 2016

BETWEEN

THE MANAGER,
IFFCO-TOKIO GENERAL INSURANCE CO. LTD.,
NO.127A, BHAVANI ARCADE,
III FLOOR, 306-308, NEAR OLD BUS STAND,
OPP. BASAVA VANA, NEW COTTON MARKET,
HUBBALLI-29, DIST: DHARWAD.
NOW REPRESENTED BY ITS
AUTHORIZED SIGNATORY,
IFFCO-TOKIO GENERAL INSURANCE COMPANY,
CUSTOMER SERVICE CENTER,
SHRI.SHANTI TOWERS,
5TH FLOOR, 3RD MAIN, 141,
EAST OF ON.G.E.F. LAYOUT,
KASTURINAGAR, BANGALORE-560043.
                                            ...APPELLANT

(BY SRI.S K KAYAKAMATH, ADVOCATE)

AND

1.    SMT.RATNAVVA W/O ANANTAGOUDA PATIL,
      AGE: 25 YEARS, OCC: HOUSEHOLD WORK,
      R/O: SALAHALLI, TALUK: RAMDURG,
      DIST: BELAGAVI.
                           2


2.   KUMAR.SHRISHAIL S/O ANANTAGOUDA PATIL
     AGE: 7 YEARS, OCC: NIL,
     R/O: SALAHALLI, TQ: RAMDURG,
     DIST: BELAGAVI.

3.   KUMAR.SHRIDHAR S/O ANANTAGOUDA PATIL
     AGE: 5 YEARS, OCC: NIL,
     R/O: SALAHALLI, TQ: RAMDURG,
     DIST: BELAGAVI

     (RESPONDENTS NO.2 AND 3 ARE
     MINORS REP. BY NEXT FRIEND,
     NATURAL MOTHER RESP.NO.1)

4.   SRI.BASANAGOUDA S/O DUNDANAGOUDA PATIL
     AGE: 69 YEARS, OCC: OLD AGE, NIL,
     R/O: SALAHALLI, TQ: RAMDURG,
     DIST: BELAGAVI.

     RESPONDENT NO.4 DECEASED
     THE RESPONDENT NOS.1 TO 3 AND 5
     ARE THE LR'S OF DECEASED RESPONDENT NO.4

5.   SMT.BALAWWA W/O BASANAGOUDA PATIL
     AGE: 64 YEARS, OCC: HOUSEHOLD WORK,
     R/O: SALAHALLI, TQ: RAMDURG,
     DIST: BELAGAVI.

6.   SRI.RAMZAN ABDULSAB JAMADAR
     AGE: 32 YEARS, OCC: DRIVER,
     R/O: PENDARI GALLI,
     COURT ROAD, RAMDURG,
     TQ: RAMDURGA, DIST: BELAGAVI,
     (OWNER OF THE AUTO RICKSHAW
     BEARING REGN.NO.KA-24/6753)

                                        ...RESPONDENTS
(BY SRI.H M DHARIGOND, ADVOCATE FOR R1-R3 AND R5,
 R1 TO 3 & 5 RE LRS OF DECEASED R4,
 R6-SERVED)

      THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
1988 AGAINST THE JUDGMENT AND AWARD DATED 21.06.2016
                            3


PASSED IN MVC NO.2240/2012 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND MEMBER, ADDITIONAL MACT, RAMDURG,
AWARDING     COMPENSATION   OF   RS.12,00,000/-  WITH
INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL ITS
REALIZATION.

IN MFA NO.21966 OF 2013

BETWEEN

THE MANAGER
IFFCO-TOKIO INSURANCE CO.LTD.,
NO.127A, BHAVANI ARCADE, III FLOOR,
306-308, NEAR OLD BUS STAND,
OPP. BASAVANA HUBLI,
NOW REPRESENTED BY ITS
AUTHORIZED SIGNATORY, IFFCO-TOKIO GENERAL
INSUARANCE CO.,
CUSTOMER SERVICE CENTER, SHRI SHANTI TOWERS,
5TH FLOOR, 3RD MAIN,
141, EAST OF N.F.E.F., LAYOUT,
KASTURINAGAR, BANGALORE.560043
                                          ...APPELLANT
(BY SRI.S K KAYAKAMATH, ADVOCATE)

AND

1.    SRI.PRAVEENKUMAR
      S/O VIRUPAXAPPA SHETTAR,
      AGE: 29 YEARS, OCC: LECTURER,
      AND AGRICULTURITST,
      R/O: BADAMI, TQ: BADAMI, DIST: BAGALKOT.

2.    SRI.RAMZAN ABDULSAB JAMADAR
      AGE: 29 YEARS, OCC: DRIVER,
      R/O PENDARI GALLI,
      COURT ROAD, RAMADURG,
      TQ: RAMDURGA, DIST: BELGAUM,
      (OWNER OF THE AUTO RICKSHAW BEARING
      REGN.NO.KA-24/6753)

3.    SRI.BASANAGOUDA S/O DUNDAPPAGOUDA PATIL
                            4


      AGE: 61 YEARS, OCC: AGRICULTURE,
      R/O: BUDANUR, TQ: RAMADURGA DIST: BELGAUM,
      (OWNER OF HERO HONDA M/C,
      BEARING REGN.NO.KA-28/E-2170)
                                         ...RESPONDENTS
(BY SRI.SHIVARAJ S BALLOLLI, ADVOCATE FOR R1,
 SRI.B.S.KUKANAGOUDAR, ADVOCATE FOR R2,
 SRI.R.K.KULKARNI, ADVOCATE FOR R3)

     THIS MFA IS FILED U/S 173(1) OF MV ACT 1988,
AGAINST THE JUDGMENT AND AWARD DATED:18-01-2013
PASSED IN MVC NO.1371/2012 ON THE FILE OF SENIOR CIVIL
JUDGE AND MEMBER ADDL.MACT, RAMDURG, AWARDING THE
COMPENSATION OF RS.5,42,000/- WITH INTEREST AT THE
RATE OF 9% P.A., FROM THE DATE OF PETITION TILL
REALISATION.


IN MFA NO.21971 OF 2013

BETWEEN

THE MANAGER
IFFCO-TOKIO INSURANCE CO.LTD.,
NO.127A, BHAVANI ARCADE, III FLOOR, 306-308,
NEAR OLD BUS STAND,
OPP. BASAVA VANA, HUBLI, NOW REP.
BY ITS AUTHORIZED SIGNATORY,
IFFCO-TOKIO GENERAL INSURANCE COMPANY
CUSTOMER SERVICE CENTER, SHRI SHANTI TOWERS,
5TH FLOOR, 3RD MAIN, 141,
EAST OF N.G.E.F. LAYOUT,
KASTURINAGAR, BANGALORE-560043
                                             ...APPELLANT
(BY SRI.S K KAYAKAMATH, ADVOCATE)

AND

1.    SRI.SOMAPPA S/O NAGAPPA SHIGIHALLI
      AGE: 53 YEARS, OCC: PRIMARY SCHOOL TEACHER,
      R/O: SANGAL, TQ: RAMADURGA,
      DIST: BELGAUM.
                            5


2.   SRI.RAMZAN ABDULSAB JAMADAR
     AGE: 29 YEARS, OCC: DRIVER,
     R/O: PENDARI GALLI,
     COURT ROAD, RAMDURG
     TQ: RAMDURGA, DIST: BELGAUM.
     (OWNER OF THE AUTO RICKSHAW
     BEARING REGN.NO.KA-24/6753)

3.    SRI.BASANAGOUDA S/O DUNDAPPAGOUDA PATIL
      AGE: 61 YEARS, OCC: AGRICULTURE,
      R/O:BUDANUR, TQ: RAMADURGA,
      DIST: BELGAUM
      (OWNER OF HERO HONDA M/C
      BEARING REGN NO.KA-28/E-2170)
                                         ...RESPONDENTS
(BY SRI.SHIVARAJ S BALLOLLI, ADVOCATE FOR R1,
 SRI.B.S.KUKANAGOUDAR, ADVOCATE FOR R2,
 SRI.R.K.KULKARNI, ADVOCATE FOR R3)

     THIS MFA FILED U/S 173(1) OF MV ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DATED:18-01-2013 PASSED IN
MVC NO.1368/2012 ON THE FILE OF SENIOR CIVIL JUDGE AND
MEMBER,   ADDL.   MACT,    RAMDURG,    AWARDING     THE
COMPENSATION OF RS.3,60,000/- WITH INTEREST AT THE
RATE OF 9% P.A., FROM THE DATE OF PETITION TILL
REALISATION.

IN MFA.CROB NO.100142 OF 2017

BETWEEN

1.   SMT. RATNAVVA W/O ANANTAGOUDA PATIL
     AGE:26 YEARS OCC. HOUSEHOLD WORK
     R/O SALAGALLI , TALUK. RAMDURG
     DISTRICT.BELAGAVI

2.   KUMAR SHRISHAIL S/O ANANTGOUDA PATIL
     AGE:8 YEARS, OCC.STUDENT
     R/O SALAGALLI, TALUK. RAMDURG
     DISTRICT.BELAGAVI

3.   KUMAR SHRIDHAR S/O ANANTHGOUDA PATIL
                            6


      AGE:6 YEARS, OCC.STUDENT
      R/O SALAGALLI , TALUK. RAMDURG
      DISTRICT.BELAGAVI

      NOTE CROSS OBJECTOR NO.2 AND 3 ARE MINORS
      AND HENCE THEY ARE REPRESENTED BY THEIR
      NATURAL MINOR GUARDIAN APPELLANT NO.1

4.    SMT. BALAWWA W/O BASANAGOUDA PATIL
      AGE:65 YEARS, OCC. HOUSEHOLD WORK
      R/O SALAGALLI, TALUK. RAMDURG
      DISTRICT.BELAGAVI
                                    ...CROSS OBJECTORS
(BY SRI.H M DHARIGOND, ADVOCATE)

AND

1.    SRI. RAMZAN ABDULSAB JAMADAR
      AGE:33 MAJOR, OCC. DRIVER
      R/O PENDARGALLI COURT ROAD
      RAMDURG, TQ. RAMDURG
      DISTRICT. BELAGAVI

2.    IFFCO-TOKO GENERAL INSURANCE COMPANY LTD,
      127A, BHAVANI ARCADE
      3RD FLOOR, 306-308, NEAR OLD BUS STAND
      OPP. BASAVA VANA, NEW COTTON MARKET
      HUBBALLI-DHARWAD, DHARWAD
                                         ...RESPONDENTS
(NOTICE TO R1-DISPENSED WITH,
 SRI.S.K.KAYAKAMATH, ADVOCATE FOR R2)

      THIS MFA CROSS OBJECTION IS FILED UNDER ORDER
41 RULE 22 OF CPC READ WITH SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 21.06.2016
PASSED IN MVC NO.2240/2012 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND ADDITIONAL MACT, RAMDURG, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THESE APPEALS AND CROSS OBJECTION COMING ON
FOR ADMISSION, THIS DAY, THE COURT, DELIVERED THE
FOLLOWING:
                                7


                       JUDGEMENT

MFA Nos.103678/2016, 21966/2013 and

21971/2013 is by the insurer.

2. MFA crob.No.100142/2017 is by the claimant.

3. An accident occurred on 24.12.2011 between a

Tomtom auto rickshaw and motorcycle. As a result of

this impact, the rider of the motor cycle was killed and

the pillion rider of the motorcycle suffered injuries. This

resulted in claim petitions being filed by the legal

representative of the rider of the motor cycle and also by

other inmates.

4. The Tribunal after analyzing the evidence has

recorded a finding that the accident did occur and the

driver of the Auto rickshaw was responsible for the

accident. The Tribunal thereafter proceeded to

determine the following compensation payable to the

victims.

IN MFA NO.103678/2016

Sl.No. Particulars Amount(Rs.) 1 Loss of dependency 7,65,000-00 2 Funeral expenses and transport 20,000-00 ion of dead body 3 Loss of Consortium to Ptr.NO.1 1,00,000-00 4 Loss of love and affection to the 1,50,000-00

5 Loss of Estate 1,00,000-00 6 Pain and sufferings 10,000-00 7 Medical Expenses 54,943-00 Total 11,99,943-00

IN MFA NO.21966/2013

Sl.No. Particulars Amount(Rs.) 1 Pain and sufferings 60,000-00 2 Medical expenses 1,54,000-00 3 Mental agony & depression 25,000-00 4 Loss of earning during laid up 30,000-00 period 5 Conveyance, attendant charges 45,000-00 and special diet 6 Future loss of earnings 1,53,000-00 7 Loss of amenities 75,000-00 Total 5,42,000-00

IN MFA 21971/2013

Sl.No. Particulars Amount(Rs.) 1 Pain and sufferings 50,000-00 2 Medical expenses 1,38,500-00 3 Mental agony & depression 15,000-00 4 Loss of earning during laid up 61,100-00

period 5 Conveyance, attendant charges 45,000-00 and special diet 6 Future loss of earnings - 7 Loss of amenities 50,000-00 Total 3,60,000-00

5. The learned counsel for the insurer contended that

the evidence on record, especially the Police record

indicated that the rider of the motorcycle was principally

responsible for the accident. He submitted that both the

rider as well as driver of the auto rickshaw were charge

sheeted and this by itself indicated that both of them had

contributed to the accident and as a consequence,

saddling of the liability only on the driver of the auto

rickshaw was incorrect.

6. Learned counsel for the legal representatives of the

deceased/rider contended that the amount awarded

towards loss of dependency by the Tribunal was incorrect

since notional income taken by the Tribunal was on the

lower side and future prospects had not been granted.

7. The Tribunal after analyzing the evidence has come

to the conclusion that the accident took place due to the

fault of the driver of the auto rickshaw and it was noticed

by the Tribunal that the owner of the auto rickshaw

though appeared in person did not contest the plea put

forth by the claimants. The Tribunal therefore took the

view that the driver of the Auto rickshaw was responsible

for the accident. The Tribunal also noticed that the

charge sheet was laid only against the driver of the auto

rickshaw.

8. The learned counsel for the insurer contended that

the statements made in the complaint and the criminal

proceedings by themselves indicated that both the riders

were responsible. He relied upon the assertion made by

the inmate of the auto rickshaw who had contended that

rider of the motorcycle was negligent.

9. In the present case, the IMV report has been

produced as Ex.P.6. This, indicates that the damage was

caused to both the auto rickshaw as well as the

motorcycle. The damage indicated therein would show

that the auto rickshaw had rammed into the motorcycle.

This is clear from the fact that the damage has occurred

to the motorcycle only on one side. If it was a case of

head on collusion, damage to the motorcycle would have

been different. Having regard to the damages suffered

by the driver of the auto rickshaw and the motorcycle

has indicated in the IMV report, the finding of the

Tribunal that the driver of the auto rickshaw cannot be

found fault with. I therefore, confirm the same.

10. As far as the quantum of compensation is

concerned, the Tribunal has taken the notional income of

the deceased at Rs.5,000/-. The accident is of the year

2011. There is admittedly no document to establish the

monthly income. It would be therefore proper to adopt

the notional income as determined by the Karnataka

State Legal Service Authority which would be a sum of

Rs.6,000/-, as the accident is of the year 2011.

11. As per the judgment rendered by the Hon'ble Apex

Court in the case of National Insurance Company

Limited V/s Pranay Sethi and others, reported in

(2017) 16 SCC 680, 40% of this Rs.6000/- would have

to be added as future prospectus. This would in turn

result in the income of the deceased to become

Rs.8,400/-. Out of the said sum, 25% would have to be

deducted towards personal expenses of the deceased

and this would result in the income of the deceased to be

Rs.6,300/-. As the deceased was aged 26 years, a

multiplier of 18 will have to be adopted. Consequently,

Rs.13,60,800/-(Rs.6,300x12x18) is awarded towards the

loss of dependency.

12. In addition, each of the claimants would be entitled

to a sum of Rs.40,000/- towards loss of consortium. In

other words the claimants in all will be entitled for

Rs.2,50,000/- towards loss of consortium.

13. The claimants are entitled for further sum of

Rs.30,000/- under the conventional heads.

14. The Tribunal has awarded a sum of Rs.54,943/-

towards medical expenses. The same being based on

the documentary evidence, they are affirmed.

15. Consequently, the claimants are entitled to the

following sums:

Sl.No.     Particulars                      Amount(Rs.)
1          Loss of dependency               13,60,800-00
2          Loss of consortium                 2,50,000-00
3          Under conventional head              30,000-00
4          Medical expenses                      54943-00
                                      Total 16,95,743-00

16. The enhanced compensation shall carry interest at

6% per annum from the date of petition till date of

release.

17. The Insurance company is directed to deposit the

enhanced compensation amount within 8 weeks.

18. The Amount in deposit shall be transmitted to the

Tribunal for disbursement.

19. As far as compensation awarded for the claimants

who are inmates in the Auto rickshaw are concerned, the

Tribunal has awarded Rs.3,60,000/- and 5,42,000/-

respectively. These sums are accepted by the claimants

and no appeals have been filed.