The Branch Manager vs Smt. Savitri W/O Parvatagiri
2022 Latest Caselaw 2730 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

     DATED THIS THE 18TH DAY OF FEBRUARY, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

       MISCELLANEOUS FIRST APPEAL No.102149/2018(MV)

BETWEEN:

THE BRANCH MANAGER,
ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD.,
NEAR SWIMMING FOOL COMPLEX,
NEW COTTON MARKET, HUBBALLI,
NOW REPRESENTED BY ITS
AUTHORIZED SIGNATORY.
                                        ...APPELLANT

(BY MS. ANUSHA SANGAMI FOR
 SRI. S.K.KAYAKAMATH, ADVOCATE - THRU VC)

AND:

1.     SMT.SAVITRI W/O PARVATAGIRI,
       AGE ABOUT: 40 YEARS,
       OCC: HOUSEHOLD WORK,
       R/O: KUDALSANGAMA,
       TQ: HUNGUND,
       DIST: BAGALKOTE-587118.

2.     SRI. PARVATAGIRI S/O MANAYYA,
       AGE ABOUT: 49 YEARS,
       OCC: AGRICULTURE,
       R/O: KUDALSANGAMA,
       TQ: HUNGUND,
       DIST: BAGALKOTE-587118.
                                                  MFA NO.102149/2018

                                 2



3.   M/S.. SHRI VELLAVAN TRANSPORT,
     MANAGING PARTNER C. SAKTHIVED
     S/O M. CHINNOTHARDAI,
     AGE ABOUT: 39 YEARS,
     OCC: BUSINESS,
     R/O: 1D-12 F, NEAR ATC DEPARTMENT,
     BNHAVANI MAIN ROAD,
     SOMKORI, DIST: SALEM,
     TAMILNADU STATE-636001.
                                                  ...RESPONDENTS

(BY SRI. P.N.HOSAMANI, ADVOCATE FOR R1 AND R2;
 NOTICE TO R3 DISPENSED WITH)

     THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED
05.04.2018 PASSED IN MVC NO.354/2016 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND MEMBER, MOTOR ACCIDENT CLAIMS
TRIBUNAL-X, HUNGUND, AWARDING COMPENSATION OF
Rs.14,31,800/- WITH INTEREST AT 7% P.A. FROM THE DATE OF
PETITION TILL ITS REALISATION.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

The Insurer of the offending lorry bearing

registration No.TN-52/E-5346 has preferred the

instant appeal challenging the judgment and award

dated 05.04.2018 passed by the Senior Civil Judge

and MACT-X, Hungund (hereinafter referred to as 'the

Tribunal', for brevity) in MVC No.354/2016 both on MFA NO.102149/2018

liability as well as on quantum of compensation

awarded.

2. Though the appeal is listed for admission,

with the consent of learned counsel appearing on

both sides, the same is taken up for final disposal.

3. The parties to this appeal are referred to by

their rankings assigned to them before the Tribunal

for the sake of convenience.

4. The facts of the case that would be relevant

for the purpose of disposal of this case are;

The deceased Mounesh, who is the son of the

claimants herein, was riding his motorcycle bearing

registration No.KA-29/J-1968 on 12.01.2016 from

Kudalasangama to Kudalasangama cross on Almatti-

Hungund National Highway and when he was about to

cross the road, the offending lorry bearing

registration No.TN-52/E-5346, which was driven in a

rash and negligent manner by its driver, dashed

against the motorcycle and caused the accident, as a MFA NO.102149/2018

result, the deceased who had suffered injuries in the

said accident, had succumbed to the injuries on the

spot.

It is under these circumstances the claimants,

who are the parents of the deceased, had filed a

petition under Section 166 of the Motor Vehicles Act,

1988, claiming compensation of `16,00,000/- with

interest from the owner and Insurer of the offending

lorry. The said claim petition was partly allowed and

a total compensation of `14,31,800/- was awarded by

the Tribunal with interest at 7% per annum from the

date of petition till realization. The liability to pay the

compensation was saddled on the Insurer of the

offending lorry. Being aggrieved by the said

judgment and award, the Insurer is before this Court.

5. Learned counsel for the Insurer submits

that the Tribunal has erred in holding the driver of

the lorry guilty of negligence for causing the

accident. She submits that the accident had

happened in the middle of the road and therefore, MFA NO.102149/2018

even the deceased was required to be held guilty of

contributory negligence for causing the accident.

She submits that the quantum of compensation and

rate of interest awarded by the Tribunal is on the

higher side.

6. Per contra, learned counsel for the

claimants submits that the charge sheet has been

filed only as against the driver of the offending lorry

and respondents have not led in any evidence before

the Tribunal so as to prove the contributory

negligence of the deceased and therefore the

Tribunal was justified in holding the driver of the

lorry negligent in causing the accident. He also

submits that the compensation awarded by the

Tribunal is just and proper and needs no

interference.

7. The undisputed facts of the case are that,

the son of the claimants, who was riding the

motorcycle, had met with an accident on 12.01.2016

wherein the offending lorry bearing registration MFA NO.102149/2018

No.TN-52/E-5346 was involved and the said lorry was

duly insured with the appellant Insurance Company

and the Insurance Policy was valid as on the date of

the accident. It is also not in dispute that the police

had filed a charge sheet in respect of the accident in

question, only as against the driver of the offending

lorry. Though the learned counsel for the Insurer of

the lorry has vehemently contended that the Tribunal

had erred in holding only the driver of the lorry

negligent for causing the accident and though she

has contended that the Tribunal ought to have held

even the deceased negligent, as rightly contended by

the learned counsel for the claimants, the

respondents have not led in any evidence before the

Tribunal in order to establish the contributory

negligence of the deceased rider of the motorcycle.

It is not in dispute that the charge sheet has been

filed only as against the driver of the lorry. The

driver of the lorry, who would have been the best

witness to speak about the accident in question, has

not been examined before the Tribunal.

MFA NO.102149/2018

8. In the absence of any cogent material

available before the Tribunal, the Tribunal was fully

justified in holding the driver of the offending lorry

guilty of negligence in causing the accident and the

Tribunal could not have attributed contributory

negligence on the deceased in the absence of any

material documents before it. Therefore the said

finding recorded by the Tribunal, which is sought to

be questioned by the Insurer, does not suffer from

any irregularity or illegality, which calls for

interference by this Court and I find no merit in the

contention urged in this regard by the Insurer.

9. Insofar as the quantum of compensation is

concerned, the deceased was aged about 22 years as

on the date of the accident. The accident is of the

year 2016. The notional income of the deceased was

required to be taken at `8,750/- per month, in view

of the income chart maintained by the Karnataka

State Legal Services Authority for the purpose of

disposal of motor vehicle accident cases before the MFA NO.102149/2018

Lok Adalath. However, the Tribunal had erroneously

taken the notional income at `9,000/- per month.

40% of the notional income is required to be taken

towards the loss of future prospects and if 1/2 of the

said income is deducted towards personal expenses

of the deceased, who was a bachelor, by applying the

multiplier of 18, the claimants would be entitled for a

total compensation of `13,23,000/- (`6,125x12x18)

towards 'loss of dependency' as against `13,60,800/-

awarded by the Tribunal. In addition to the same,

the claimants are entitled for sum of `40,000/- each

towards 'loss of filial love and affection' and another

sum of `30,000/- towards 'loss of estate and funeral

expenses'.

10. Therefore in all the claimants are entitled

for a total sum of `14,33,000/- as against

`14,31,800/- awarded by the Tribunal. The claimants

are entitled for interest at 6% per annum from the

date of petition till the realization, on the

compensation awarded to them.

MFA NO.102149/2018

The appellant Insurer of the offending lorry

bearing registration No.TN-52/E-5346 is directed to

deposit the balance compensation amount with

interest before the Tribunal within a period of six

weeks from the date of receipt of certified copy of

this order. The amount in deposit is directed to be

transferred to the Tribunal for the purpose of

disbursement. The order passed by the Tribunal

insofar as it relates to a apportionment,

disbursement, deposit etc., remain unaltered.

Miscellaneous First Appeal is accordingly partly

allowed.

Sd/-

JUDGE

CLK/gab