Karnataka High Court

Chikkamahadevi vs Nagaraju on 27 May, 2021

Author: H.P.Sandesh

                              1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 27TH DAY OF MAY, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  M.F.A.NO.2837/2014 (MV)
                C/W M.F.A.NO.1789/2014 (MV)

IN M.F.A.NO.2837/2014:

BETWEEN:

1.     CHIKKAMAHADEVI,
       W/O LATE NINGANAIKA,
       AGED ABOUT 42 YEARS.

2.     ANKANAIKA,
       S/O LATE NINGANAIKA,
       AGED ABOUT 22 YEARS.

3.     RAVI,
       S/O LATE NINGANAIKA,
       AGED ABOUT 20 YEARS.

       ALL ARE RESIDENTS OF
       HALLIDIDDI VILLAGE,
       CHATRA HOBLI, NANJANGUD TALUK,
       MYSURU DISTRICT-571301.                 ... APPELLANTS

               (BY SRI RAGHU M.N., ADVOCATE)

AND:

1.     NAGARAJU,
       S/O RACHAIAH,
       AGED ABOUT 37 YEARS,
       R/AT HORALAVADI VILLAGE,
       KASABA HOBLI,
       NANJANGUD TALUK,
       MYSURU DISTRICT-571301.
                               2



2.      P. CHELUVARAJU,
        S/O VENKATAGOWDA,
        AGED ABOUT 52 YEARS,
        R/AT "MATHRU NILAYA"
        15TH CROSS, NAGESHWARA LAYOUT,
        NANJANGUD TOWN,
        MYSURU DISTRICT-571301.

3.      IFFCO-TOKIO GENERAL INSURANCE CO.LTD,
        NO.846, NEW KANTHARAJ URS ROAD,
        NEAR AKSHAYA BANDAR,
        KUVEMPUNAGARA,
        MYSURU-570023.
        (INSURER OF TRACTOR KA-09 T-5782-ENGINE)

4.      HDFC ERGO GENERAL INSURANCE CO.LTD.,
        2ND FLOOR, MYSORE TRADE CENTER,
        NEAR K.S.R.T.C,BUS STAND, B.N ROAD,
        MYSURU-570001.
        (INSURER OF KA-09 T-6208 T-6209
        TRACTOR & TRAILER).                 ... RESPONDENTS

     (BY SRI LAKSHMANACHAR K.V., ADVOCATE FOR R-1 AND R-2;
                SRI B. PRADEEP, ADVOCATE FOR R-3;
               SRI H.S. LINGARAJ, ADVOCATE FOR R-4)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 10.01.2014 PASSED
IN MVC.NO.48/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, NANJANGUD PARLY ALLOWING THE CLAIM PETITION
FOR   COMPENSATION     AND  SEEKING   ENHANCEMENT    OF
COMPENSATION.

IN M.F.A.NO.1789/2014:

BETWEEN:

1.      P. CHALUVARAJU ALIAS CHELUVAPPA,
        S/O VENKATAGOWDA,
        AGED ABOUT 54 YEARS,
        RESIDING AT "MATHRU NILAYA"
        15TH CROSS, NAGESHWARA LAYOUT,
        NANJANGUD TOWN-570000.
                                3



2.     NAGARAJU,
       S/O RACHAIAH,
       AGED ABOUT 39 YEARS,
       DRIVER,
       R/AT HORALAVADI VILLAGE,
       KASABA HOBLI,
       NANJANGUD TALUK-570000.                 ... APPELLANTS

           (BY SRI LAKSHMANACHAR K.V., ADVOCATE)

AND:

1.     CHIKKAMAHADEVI,
       W/O LATE NINGANAIKA,
       AGED ABOUT 44 YEARS.

2.     ANKANAIKA,
       S/O LATE NINGA NAIKA,
       AGED ABOUT 24 YEARS.

3.     RAVI,
       S/O LATE NINGANAIKA,
       AGED ABOUT 22 YEARS.

       ALL ARE RESIDING AT
       HALLIDIDDI VILLAGE,
       CHATRA HOBLI,
       NANJANGUD TALUK-570000.

4.     IFFCO-TOKIO GENERAL INSURANCE CO.LTD,
       NO.846, NEW KANTHARAJ URS ROAD,
       NEAR AKSHAYA BANDAR, KUVEMPUNAGARA,
       MYSURU-570001.

5.     HDFC ERGO GENERAL INSURANCE COMPANY LIMITED,
       2ND FLOOR, MYSORE TRADE CENTER,
       NEAR KSRTC BUS STAND, B.N ROAD,
       MYSURU-570001.                    ... RESPONDENTS

         (BY SRI RAGHU M.N., ADVOCATE FOR R-1 TO R-3;
               SRI B. PRADEEP, ADVOCATE FOR R-4;
             SRI H.S. LINGARAJ, ADVOCATE FOR R-5)
                                 4



      THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 10.01.2014 PASSED
IN MVC.NO.48/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC AND MACT AT NANJANGUD, AWARDING COMPENSATION
OF Rs.6,40,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL ITS DEPOSIT.

     THESE MFA's COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                        JUDGMENT

Though the matter is listed for admission today, with the

consent of all the learned counsel, it is taken up for final

disposal.

2. These two appeals are filed by the claimants and the

owner of the Tractor, respectively challenging the judgment and

award dated 10.01.2014 passed in M.V.C.No.48/2012 on the file

of the Senior Civil Judge and JMFC and MACT, Nanjangud ('the

Tribunal' for short) questioning the quantum of compensation

and liability.

3. The parties are referred to as per their original

rankings before the Tribunal to avoid the confusion and for the

convenience of the Court.

4. The factual matrix of the case is that the claimants are

the wife and children of the deceased Ninganaika. It is

contended that on 29.03.2012 when the deceased was

proceeding in the motor cycle bearing registration No.KA-09-EN-

1282, the driver of the tractor-trailer bearing registration No.KA-

09-T-5782 and T-6209 drove the tractor-trailer in a rash and

negligent manner and dashed against the motor cycle. As a

result, the said Ninganaika suffered grievous injuries.

Immediately he was taken to the hospital where he succumbed

to injuries. Hence, the claim petition was filed claiming that he

was earning Rs.6,000/- per month and due to the untimely

death of the deceased, the family of the deceased lost the

earning member of the family.

5. The claim petition was opposed by filing the written

statement by the Insurance Company insured in respect of

tractor-trailer and denied the negligence on the part of the driver

of the tractor and contended that the accident was on account of

the negligence on the part of the deceased himself. The

claimants in order to substantiate their claim, examined the wife

of the deceased as P.W.1 and P.W.2 eye witness to the accident

and got marked the documents at Exs.P.1 to 29. The

respondents examined R.W.1 to R.W3 and got marked the

documents at Exs.R.1 to 3. The Tribunal after considering both

oral and documentary evidence placed on record allowed the

claim petition in part granting compensation of Rs.6,40,000/-

with interest at the rate of 6% per annum from the date of

petition till its deposit. The Tribunal exonerated the liability of

the Insurance Companies and fastened the liability on the owner.

Hence, the present two appeals are filed by the claimants and

the owner of the tractor.

6. The learned counsel for the appellant/claimants in

M.F.A.No.2837/2014 would contend that the accident was taken

place in 2012 and the deceased died on account of the accidental

injuries and he was aged about 45 years. The Tribunal has

committed an error in taking the income of Rs.5,000/- per

month and ought to have taken the notional income. The

learned counsel would submit that no future prospects was

considered and an amount of Rs.10,000/- was awarded under

the head other conventional heads. Hence, it requires

interference of this Court.

7. The learned counsel for the appellants in M.F.A.

No.1789/2014 would contend that the Tribunal has committed

an error in fastening the liability on the owner. The vehicle

involved in the accident is a light motor vehicle and in view of

the judgment of the Apex Court in the case of MUKUND

DEWANGAN v. ORIENTAL INSURANCE CO.LTD., reported in

(2017) 14 SCC 663, the liability has to be fastened on the

Insurance Company.

8. Per contra, the learned counsel for respondent No.4

i.e., the Company which issued policy in respect of tractor would

contend that the very claim of the claimants is that the deceased

was earning Rs.6,000/- per month. The learned counsel would

submit that both tractor-trailer are involved in the accident and

if this Court comes to a conclusion that liability has to be

fastened on the Insurance Company, the same has to be

apportioned as 50% each.

9. The learned counsel for respondent No.5 also

reiterates the same.

10. Having heard the respective learned counsel and also

on considering the grounds urged in the appeal memo, the

points that would arise for the consideration of this Court are:

(i) Whether the Tribunal has committed an error in not granting just and reasonable

compensation as contended in M.F.A.No.2837/2014?

(ii) Whether the Tribunal has committed an error in fastening the liability on the owner as contended in M.F.A.No.1789/2014?

Point No.(i):

11. Having heard the respective learned counsel and also

on perusal of the records, the claimants have examined P.W.1 in

respect of claim made with regard to the quantum of

compensation is concerned. Insofar as the accident is

concerned, there is no dispute. Though the respondents have

contended before the Tribunal that the accident was on account

of the negligence on the part of the deceased, the Tribunal has

given the finding that the accident was occurred due to

negligence on the part of the driver of the tractor-trailer. No

appeal is filed before this Court by the respective Insurance

Companies with regard to the findings of the Tribunal.

12. Now the question before this Court is with regard to

quantum of compensation. It is the claim of the claimants that

the Tribunal has committed an error in taking the income of the

deceased at Rs.5,000/- per month. On perusal of the judgment

of the Tribunal in respect of issue No.2 is concerned, the Tribunal

has taken the income of the deceased as Rs.5,000/- per month.

While calculating the loss of dependency, the Tribunal has rightly

deducted 1/3rd of the total earnings of the deceased. On perusal

of the judgment and award, future prospects has not been

considered as contended by the learned counsel for the

claimants. Having taken note of the accident is of the year

2012, the Tribunal ought to have taken the notional income of

Rs.7,000/- per month in the absence of any documentary proof

with regard to the income of the deceased. The deceased was

aged about 45 years at the time of the accident and the Tribunal

while calculating the loss of dependency has rightly applied the

multiplier '14'.

Now the 'loss of dependency' is calculated as under:

      Monthly income                 -    Rs.7,000/-

      Add: 25% towards
           Future prospects          -    Rs.1,750/-
                                          --------------
                                     -    Rs.8,750/-
      Less: 1/3rd towards
             Personal expenses       -    Rs.2,917/-
                                          --------------
                                     -    Rs.5,833/-
                                          --------------
      Loss of dependency             =    Rs.9,79,944/-
      (Rs.5,833/- x 12 x 14)              --------------




     13.   The   Tribunal   while     awarding   the   compensation

awarded Rs.40,000/- under conventional heads, i.e., loss of love

and affection, loss of estate, loss of consortium and funeral

expenses. The claimants are the wife and children of the

deceased and they are entitled to Rs.70,000/- under the head

conventional heads as held by the Apex Court in the case of

NATIONAL INSURANCE COMPANY LIMITED v. PRANAY

SETHI AND OTHERS reported in (2017) 16 SCC 680.

14. The Tribunal has rightly awarded an amount of

Rs.40,000/- under the head medical expenses. The records

reveals that immediately after the accident he was shifted to the

hospital and he died after four days and spent an amount of

Rs.40,000/- and the same has been rightly considered by the

Tribunal and the same has to be allowed.

15. In all the claimants are entitled for a compensation

of Rs.10,89,944/-. Hence, I answer point No.(i) as affirmative.

Point No.(ii):

16. The contention of the appellants in

M.F.A.No.1789/2014 is that in view of the judgment of the Apex

Court in the case of MUKUND DEWANGAN (supra), the liability

has to be fastened on the Insurance Companies who have issued

insurance in respect of tractor-trailer. The vehicle involved in

the accident is a light motor vehicle and the same is not disputed

by respondent Nos.4 and 5. Now the question before this Court

is who is liable to pay the compensation. The vehicle involved in

the accident is tractor-trailer. In order to prove the negligence

on the part of the driver of the tractor-trailer, the claimants have

examined P.W.2 eye witness to the accident. P.W.2 in his

evidence he states that he was proceeding in the car and

witnessed the accident. In his chief evidence he says that the

motor cycle came in contact with the right side of the tractor. In

chief examination it is not specific whether it came in contact

with the tractor or trailer. But in the cross-examination, he says

that the motor cycle dashed against the tractor-trailer; the

tractor moved and thereafter trailer came in contact with the

motor cycle. Having perused the evidence of P.W.2, it is

appropriate to apportion the liability of 50% each on the insurer

of both tractor and trailer and it would meet the ends of justice.

Hence, point No.(ii) is answered as affirmative.

17. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeals are allowed.


      (ii)    The impugned judgment and award of the
              Tribunal   dated        10.01.2014           passed    in
              M.V.C.No.48/2012         is      modified       granting