Karnataka High Court
Mallawwa W/O Siddappa Waddar @ ... vs Raghavendra R Barad on 17 February, 2022
Bench: S.Vishwajith Shetty
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17 T H DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
M.F.A. No.21916/2013
C/W M.F.A.No.22777/2013 (MV)
IN MFA No.219 16/ 2013
BET WEEN
HDFC ERGO GENERAL INSU RANCE CO., LTD.,
1ST FLOOR, HM GENEVA HOU SE NO.14,
CU NNINGHAM ROAD,
BENGALURU -560052, NOW REPTD.
BY ITS AU THORIZ ED SIGNATORY
...APPELLANT
(BY SRI S.K.KAY AKAMATH, ADVOCATE)
AND
1. MALLAWWA,
W/O SIDDAPPA WADDAR @ MALAGITTI,
AGE: 31 YEARS, OCC: COLLIE,
NOW NIL, R/O: HANAMAPU R,
TQ: RAMADU RG, DIST: BELGAU M
1(A) KUMAR MANJU NATH
S/O SIDDAPPA MALAGITTI,
AGE: 17 YEARS, OCC: NIL,
R/O: HIR ENASAB I, TQ: B ADAMI,
DIST: B AGALKOT.
1(B ) KUMARI B HIMAVVA
S/O SIDDAPPA MALAGITTI,
AGE: 14 YEARS, OCC: NIL,
R/O: HIR ENASAB I, TQ: B ADAMI,
DIST: B AGALKOT.
2
1(C) KUMARI SHWETA
S/O SIDDAPPA MALAGITTI,
AGE: 08 YEARS, OCC: NIL,
R/O: HIR ENASAB I, TQ: B ADAMI,
DIST: B AGALKOT.
SINCE MINORS RE PRESENT ED BY THEIR
GU ARDIAN (MATERNAL U NCLE) I.E.,
SRI, GANESH S/O SHET TEPPA B ADAMI,
AGE: 43 YEARS, OCC: COOLI,
R/O: HALARAGERI, TQ: B ADAMI,
DIST: B AGALKOT.
2. RAGHAVENDRA R B ARAD,
AGE: MAJOR, OCC: BUSINESS,
DU RGA BAR, OPP: DURGA VIHAR,
MU LGEND NAKA, GADAG.
3. B ASAVARAJ SHIVANAGOU DA PATIL,
AGE: MAJOR, OCC: BUSINESS,
HOLE ALUR, TQ: RON,
DIST: GADAG.
4. PRAKASH TAMMANAGOUDA TAMMANAGOU DAR,
AGE: MAJOR, OCC: BUSINESS,
R/O: KOTB AL, TQ: RON,
DIST: GADAG.
5. THE DEPU TY GENERAL MANAGER
M S GENERAL INSURANCE COMPANY LIMITED,
135/ 5, 2ND FLOOR , 15 T H CROSS,
J P NAGAR, III PHASE,
B ENGALU RU.
...RESPONDENTS
(BY SRI SHIVARAJ S.B ALLOL I, ADVO CATE FOR R1
AND R1(A) T O (C);
SRI G.N.NARASAMMANAVAR, ADVOCATE FOR R4;
SRI R.R.MANE, ADVOCATE FOR R5;
NOT ICE T O R2 AND 3 SERVED)
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 27.12.2012 PASS ED IN
MVC No.520/2012 ON THE FILE OF SENIOR CIV IL J UDGE
AND MEMB ER, ADDIT IONAL MOT OR ACCIDENT CLAIMS
TRIB UNAL, RAMDU RG, AWARDING THE COMPENSATION OF
3
`8,50,000/- WIT H INT EREST AT THE RATE OF 9% P.A, FROM
THE DATE OF PETITION TILL REALIZ ATION.
IN MFA No.227 77/ 2013
BET WEEN
1. MALLAWWA W/O SIDDAPPA WADDAR
@ MALAGITTI,
AGE: 30 YEARS, OCC: COOLIE,
R/O: HANAMAPUR, T Q: RAMDURG,
DIST: B ELGAU M.
1(A) KURAMR MANJUNATH
S/O SIDDAPPA MALAGITTI,
AGE: 17 YEARS, OCC: NIL,
R/O: HIR ENASAB I, TAL: B ADAMI,
DIST: B AGALKOT-587114.
1(B ) KUMARI B HIMAVVA
D/ O SIDDAP PA MALAGITT I,
AGE: 14 YEARS, OCC: NIL,
R/O: HIR ENASAB I, TAL: B ADAMI,
DIST: B AGALKOT-587114.
1(C) KUMARI SHWETA
D/ O SIDDAP PA MALAGITT I,
AGE: 08 YEARS, OCC: NIL,
R/O: HIR ENASAB I, TAL: B ADAMI,
DIST: B AGALKOT-587114.
SINCE MINORS RE PRESENT ED BY THEIR
GU ARDIAN (MATERNAL U NCLE) I.E.
GANESH SHET TAPPA B ADAMI,
AGE: 43 YEARS, OCC: COOLI,
R/O: HALAGER I, T AL: B ADAMI,
DIST: B AGALKOT-587114.
(GUARDIAN OF PR OPOSED LR 'S)
...APPELLANTS
(BY SRI. SHIVARAJ S.BALLOLI, ADVOCATE)
AND
1 . RAGHAVENDRA R. BARAD,
AGE: MAJOR, OCC: BUSINESS,
R/O: DU RGA BAR, OPP: DU RGA VIHA R,
4
MU LGEND NAKA, GADAG.
2 . HDFC ERGO GENERAL INSURANCE
COMPANY LIMITED,
1ST FLOOR, H.M.GENEVA HOU SE
NO. 14, CU NNINGHAM ROAD,
B ANGALORE-50 6652.
3 . SHRI B ASAVARAJ S/O SHIVANAG OUDA PAT IL,
AGE: MAJOR, OCC: BUSINESS,
R/O: HOLE ALUR, TQ: RON,
DIST: GADAG.
4 . SHRI PRAKAS H
S/O TAMMANAGOUDA T AMMANAGOU DAR,
AGE: MAJOR, OCC: BUSINESS,
R/O: KOTAB AL, TQ: RON,
DIST: GADAG.
5 . THE DEPU TY GENERAL MANAGER,
M.S. GENERAL INSU RANCE COMPANY LIMIT ED,
135/ 5, 2ND FLOOR , 15TH CROSS, JP NAGAR,
3RD PHASE, B ANGALORE- 560678.
...RESPONDENTS
(By SRI.S.K.KAY AKAMATH, ADVOCATE FOR R2;
SRI.R.R.MANE, ADVOCATE FOR R5;
R1, R3 AND R4 NOTICE DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 27.12.2012 PASS ED IN
MVC No.520/ 2012 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND MEMB ER, ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIB UNAL, RAMDU RG, PART LY ALLOWING THE
CLAIM PET IT ION FOR COMPENSAT ION AND S EEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEA LS COMING ON FOR FU RTHER HEARING,
THIS DAY THE COURT DELIVERED THE FOLL OWING:
5
JUDGMENT
These two appeals are filed by the insurer of the
offending Maruti Swift Car bearing registration
No.KA-26/M-2736 and the claimant b eing aggrieved by
the judgment and award dated 27.12.2012 passed by
the Court of Senior Civil Judge and Addl.M.A.C.T.,
Ramdurg (hereinafter referred to as the 'Tribunal',
for brevity) in MVC No.520/2012.
2. The parties to the appeals are referred to
by their rankings before the Tribunal for the purpose
of convenience.
3. The undisputed facts of the case are that
on 28.08.2011, the claimant was traveling in Tum-
Tum autorickshaw bearing registration No.KA-26/
8310 from Hire-Nasabi towards Chikkamannur village
and when the said autorickshaw was passing near
Kotabal village, the Maruti Swift Car bearing
registration No.KA-26/M-2736 which was d riven in a
rash and neg ligent manner by its driver came from
opposite sid e and dashed ag ainst autorickshaw. In the
said accident, the claimant had suffered grievous
injuries and she was immediately shifted to the
Government Hospital, Ron and thereafterwards she was
shifted to KIMS Hosp ital, Hubballi, wherein she was
admitted as an inp atient from 28.08.2011 to
28.10.2011. It is under these circumstances, the
claimant had filed a claim petition under Section 166
of the Motor Vehicles Act, 1988 (for short, the 'Act')
claiming compensation of `20,00,000/- in respect of
the injury sustained by her in the road traffic
accident that had taken place on 28.08.2011.
4. In the said claim petition, the owner and
insurer of the car were arrayed as respondents No.1
and 2 while the owners of the autorickshaw and the
insurer of the said vehicle were arrayed as
respondents No.3 to 5. The said claim petition was
partly allowed by the Tribunal and a compensation of
`8,50,000/- was awarded to the claimant with
interest at 9% per annum from the date of petition
till realization and the entire liability was saddled on
the insurer of the offending vehicle to pay the
compensation amount. Being aggrieved by the
impugned judgment and award to the extent it
relates to saddling liability on it, the insurer of the
Maruti Swift Car bearing registration No.KA-26/M-2736
has p referred MFA No.21916/2013 while the claimant
has preferred MFA No.22777/2013 seeking
enhancement .
5. During the pendency of the appeal, the
original claimant has expired and her minor children
represented by a legal guardian were permitted to
come on record and prosecute the appeal.
6. Learned counsel for the insurer of the
Maruti car submits that the Tribunal had erred in
saddling the entire liability to pay the compensation
on the owner and insurer of the car. He submits that
in respect of the very same accident, there were
other claim petitions filed by the injured and in the
said claim petitions, the composite negligence inter-
se between the owners of the Maruti car and
autorickshaw have been apportioned at 70:30 ratio.
He submits that the said judgment has been affirmed
by this Court in MFA No.21769/2013 disposed off on
15.02.2022 and submits that even in this case, the
composite negligence may be apportioned inter-se
between the owners of the two vehicles at 70:30
ratio. This submission is not seriously disputed by the
learned counsel appearing for the claimants. Learned
counsel for the claimants however submits that the
compensation awarded by the Tribunal compared to
the injury suffered and the treatment undergone by
her is on the lower side. The claimant had suffered
100% disability and her notional income has been
taken on the lower side which has resulted in
awarding the lower compensation and accordingly
prays to enhance the compensation.
7. Learned counsel for the insurer in reply
would submit that since the claimant has now
expired, there is no scope for enhancement as such
in the appeal. He submits that the legal
representatives of injured claimant cannot prosecute
the appeal seeking enhancement of the compensation
and accordingly he prays to dismiss the appeal filed
by the claimant.
8. I have given my anxious consideration to
the arguments addressed on both sides and also
perused the material available on record.
9. It is not in dispute that in the accident that
had occurred on 28.08.2011 involving the two
vehicles i.e. the autorickshaw bearing registration
No.KA-26/8310 and Maruti Swift Car bearing
registration No.KA-26/ M-2736, the injured claimant
who was traveling in the autorickshaw bearing
registration No.KA-26/8310 was grievously injured
and she was admitted in a private hospital as an
inpatient for more than two months. In the said
accident, the claimant had suffered fracture of T8
and T9 vertebra, fracture of left femur and other
injuries as could be seen from the wound certificates
at Exs.P5 and P6 available on record. The material on
record would also go to show that the injured
claimant was completely disabled due to the said
injuries and the doctor who had treated her was
examined as PW2 and he has deposed that the
disability to her limbs is at 100%. However, the
Tribunal while considering the disability to the whole
body for granting compensation has taken the same
at 90%. In my considered view the said approach of
the Tribunal is erroneous in law and Tribunal ought to
have taken the permanent physical disability of the
claimant to her whole body at 100%.
10. The accident is of the year 2011 and the
notional income of the injured claimant was taken by
the Tribunal at `3,000/- per month. In view of the
income chart maintained by the Karnataka Legal
Services Authority for the purpose of disposal of
motor accident cases in the Lok Adalath, the notional
income of the claimant ought to have taken at
`6,000/- per month. Since the claimant had suffered
100% disability to the whole body, 40% of the said
income is required to be taken into consideration
towards loss of future prospects and having regard to
the age of the claimant, the proper multiplier
applicable would be '16'. In the said event, the
claimant would be entitled for a compensation of
`16,12,800/- towards loss of future earning due to
disability.
11. The claimant had produced medical bills to
the tune of `31,000/- and she is entitled for the
reimbursement of the same and accordingly the same
is allowed. The material on record would go to show
that the claimant had undergone prolonged treatment
for her injuries and inspite of such treatment, she
had not completely recovered and therefore towards
incidental expenses, I am of the view that the
claimant is entitled for a sum of `1,00,000/- as
against `50,000/- awarded by the Tribunal. Since the
claimant has expired during the pendency of the
appeal, no compensation can be awarded under the
head of pain and suffering and loss of amenities in
future life. Since the disability is considered at 100%
even compensation towards loss of income during laid
up period cannot be awarded. Therefore in all, the
claimant is awarded a compensation of `17,43,800/-
as against `8,50,000/- awarded by the Tribunal. The
rate of interest awarded by the Tribunal remains
unaltered.
12. Though the learned counsel for the insurer
has submitted that since the original claimant has
now expired and therefore the present appeal seeking
enhancement cannot be prosecuted by the legal
representatives of the deceased claimant, having
regard to the judgment of the Hon'ble Supreme Court
in the case of the Oriental Insurance Company
Limited V/s Kahlon @ Jasmail Singh Kahlon
(deceased) through his legal representative
Narinder Kahlon Gosakan and another in Civil
Appeal No.4800 of 2021 disposed off on 16.08.2021,
wherein the Hon'ble Supreme Court has said that the
claim for personal injuries will not survive on death
of the injured unrelated to the accident but the legal
representatives could purse the claim for
enhancement of the claim for loss to estate which
would include expenditure on medical expenses,
traveling, attendant, diet, doctor's fee and
reasonable monthly annual accretion to the estate for
a certain period, I find no merit in the said
contention raised by the learned counsel for the
insurer. The legal representatives of the injured
claimant are entitled for enhancement of
compensation only towards loss of estate as held by
the Hon'ble Supreme Court in the case of Kahlon @
Jasmail Singh Kahlon.
13. Insofar as the contentions urged by the
learned counsel for the insurer that the composite
negligence is required to be attributed or apportioned
at 70:30 on the two tortfeasors, learned counsel for
the claimant has not seriously disputed the same
having regard to the fact that in the connected claim
petitions which arose from the very same accident,
there has been a finding to the said effect which has
already been affirmed by this Court in MFA
No.21769/2013 disposed off on 15.02.2022. Under
the circumstances even in the present case, the
composite negligence between the driver/owner of
the Maruti car bearing registration No.KA-26/M-
2736and driver/owner of the tum-tum autorickshaw
bearing registration No.KA-26/8310 is apportioned at
70:30 i.e. 70% on the owner of the car bearing
registration No.KA-26/M-2736 and 30% on the owner
of the autorickshaw bearing registration No.KA-
26/8310. The said apportionment is only to fix the
inter-se liability between the two tortfeasors who are
involved in the accident and such an apportionment
made would not be binding on the claimant, as the
claimant is at liberty to proceed against any one of
the tortfeasors seeking compensation. The law in this
regard is very clear in the judgment of the Hon'ble
Supreme Court in the case of Khenyei V/s New
India Insurance Co.Ltd. and others reported in
2015 ACJ 1441, wherein the Hon'ble Supreme Court
has held that in the case of composite negligence,
the claimant is entitled to claim compensation
against any of the tortfeasors and even in a case
where both the tortfeasors are party to the
proceedings, the apportionment made by tribunal
with regard to the composite negligence between two
tortfeasors would be only to fix the inter-se liability
of the two tortfeasors and the same would not
binding on the claimant. The tortfeasor or the insurer
of the tortfeasor who pays the compensation to the
claimant is always at liberty to recover the
apportioned part of compensation from the other
tortfeasors. Under the circumstances, I direct the
insurer of the car bearing registration No.KA-26/
M-2736 to deposit the entire compensation amount
with interest before the Tribunal and thereafterwards
recover the same from the owner/insurer of the
autorickshaw bearing registration No.KA-26/8310 to
the extent it is held liable, by initiating independent
proceedings. Accordingly, the appeals filed by the
insurer as well as the claimant are partly allowed.
14. The amount in deposit in MFA
No.21916/2013 filed by the insurer is directed to be
transferred to the Tribunal for the purpose of
disbursement. Out of the compensation amount
awarded to the deceased claimant, 30% may be
deposited in the name of claimant No.1(a) for a
period of 3 years and 30% each may be deposited in
the name of claimants No.1(b) to 1(e) respectively
for a period of three years or till they attain the age
of majority whichever is later and the remaining 10%
shall be released in favour of claimant No.1(a)-Kumar
Manjunath on proper identification.
Sd/-
JUDGE
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