Karnataka High Court

Smt Hemalatha vs Chandrashekara Samsthanamata on 27 January, 2022

Bench: P S Kumar, Rajendra Badamikar

                                     MFA No.8399/2016
                               C/W MFA Crob No.58/2017

                         1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 27TH DAY OF JANUARY, 2022

                     PRESENT

  THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR

                       AND
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

               MFA No.8399 OF 2016
                       C/W
           MFA CROB No.58 OF 2017 (MV)


IN MFA No.8399 OF 2016

BETWEEN :

THE BRANCH MANAGER
ORIENTAL INSURANCE CO. LTD.,
N.K.COMPLEX, 2ND STAIR
KESHAVAPURA CIRCLE
OPP: FATHIMA COLLEGE
HUBLI-580 020

BY

THE BRANCH MANAGER
ORIENTAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE, 1ST FLOOR
S.S.COMPLEX, SUBHAS CIRCLE
HASSAN

BY

THE ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE, 2ND FLOOR
SUMANGALA COMPLEX
LAMINGTON ROAD
                                     MFA No.8399/2016
                              C/W MFA Crob No.58/2017

                          2
HUBLI-580 020
BY IT'S MANAGER                          ... APPELLANT

(BY SHRI. O. MAHESH, ADVOCATE)

AND :

1.   HEMALATHA
     W/O HEMARAJU
     AGED ABOUT 27 YEARS

2.   SHARATH B.H
     S/O HEMARAJU
     AGED ABOUT 8 YEARS

3.   SINCHANA B.H
     D/O HEMARAJU
     MINOR, AGED ABOUT 3 YEARS

     RESPONDENTS NO.2 AND 3
     BEING MINORS REPRESENTED
     BY GUARDIAN MOTHER - 1ST RESPONDENT

4.   JAYAMMA
     W/O LATE GOWDAPPA @
     GOWDEGOWDA
     AGED ABOUT 67 YEARS

     ALL ARE PERMANENT
     R/O BALLURUPURA VILLAGE
     PALYA HOBLI, ALUR TALUK
     HASSAN DISTRCT-573 201

     RESPONDENTS NO.1 TO 3 ARE
     PRESENTLY RESIDING AT

     DODDAMANDIGANAHALLI
     KASABA HOBLI, HASSAN
     TALUK AND DISTSRICT-573 201

5.   CHANDRASHEKARA SAMSTHANA MATA
     S/O SOMASHEKARA
     AGED ABOUT 51 YEARS
                                     MFA No.8399/2016
                              C/W MFA Crob No.58/2017

                          3


     HOUSE NO. 34, NAKSHATHRA
     COLONY, SHANTHI NAGAR
     BENGERI KESHAVAPURA
     HUBLI TOWN AND
     DISTRICT-580 020               ... RESPONDENTS

(BY SHRI. K.C. PRATHEEP, ADVOCATE FOR R1-R3
    [R2 & R3 MINORS REP. BY R1];
    SHRI. G.D. GANGADHAR, ADVOCATE FOR R5;
    R4-SERVED)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED.02.09.2016 PASSED IN
MVC NO.457/2015 ON THE FILE OF THE III ADDITIONAL
DISTRICT   JUDGE,    MACT,   HASSAN,    AWARDING  A
COMPENSATION OF RS.10,01,000/- WITH 6% P.A FROM THE
DATE OF PETITION TILL THE DATE OF REALIZATION.

IN MFA Crob No.58 OF 2017

BETWEEN :

1.   SMT. HEMALATHA
     W/O LATE HEMARAJU
     AGED ABOUT 27 YEARS

2.   SHARATH B.H
     S/O LATE HEMARAJU
     AGED ABOUT 8 YEARS

3.   SINCHANA B.H
     D/O LATE HEMARAJU
     AGED ABOUT 21/2 YEARS

     CROSS OBJECTORS NO.2 AND 3
     ARE MINORS REPRESENTED
     BY HER NATURAL
     GUARDIAN MOTHER -
     CROSS OBJECTOR No.1
                                      MFA No.8399/2016
                               C/W MFA Crob No.58/2017

                          4
     ALL ARE PERMANENTLY RESIDING AT

     BALLURUPURA VILLAGE
     PALYA HOBLI, ALUR TALUK
     HASSAN DISTRCT-34

     ALL ARE PRESENTLY RESIDING AT

     DODDAMANDIGANAHALLI
     KASABA HOBLI
     HASSAN TALUK
     HASSAN DISTSRICT-34           ... CROSS OBJECTORS

(BY SHRI. K.C. PRATHEEP, ADVOCATE)

AND :

1.   CHANDRASHEKARA SAMSTHANAMATA
     S/O SOMASHEKARA
     AGED ABOUT 52 YEARS
     R/AT NO. 34, NAKSHATHRA
     COLONY, SHANTHINAGAR
     BENGERI KESHAVAPURA
     HUBLI TOWN
     HUBLI DISTRICT-20

2.   THE BRANCH MANAGER
     THE ORIENTAL INSURANCE CO. LTD.,
     N.K.COMPLEX, 2ND STAIR
     KESHAVA CIRCLE
     OPP: FATHIMA COLLEGE
     HUBLI-580 020
     REP. BY
     THE ORIENTAL INSURANCE CO. LTD.,
     DIVISIONAL OFFICE
     1ST FLOOR, S.S. COMPLEX
     SUBHAS CIRCLE
     HASSAN DISTRICT-01

3.   JAYAMMA
     W/O LATE GOWDAPPA @
     GOWDEGOWDA
     AGED ABOUT 66 YEARS
                                      MFA No.8399/2016
                               C/W MFA Crob No.58/2017

                           5
     R/AT BALLURUPURA VILLAGE
     PALYA HOBLI
     ALUR TALUK
     HASSAN DISTRCT-34                  ... RESPONDENTS

(BY SHRI. G.D. GANGADHAR, ADVOCATE FOR R1;
    SHRI. O. MAHESH, ADVOCATE FOR R2;
    VIDE ORDER DTD.22.06.2021 NOTICE TO R3 IS
    DISPENSED WITH)

     THIS MFA.CROB IN MFA NO. 8399/2016 IS FILED
UNDER ORDER XLI RULE 22 OF THE CPC, READ WITH UNDER
SECTION 173(1) OF THE MV ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 02.09.2016 PASSED IN MVC
NO.457/2015 ON THE FILE OF THE III ADDITIONAL
DISTRICT JUDGE AND M.A.C.T, HASSAN, PARTLY ALLOWING
THE CALIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THESE MFA AND MFA.CROB, HAVING BEEN HEARD
THROUGH VIDEO CONFERENCING AND RESERVED FOR
JUDGMENT   ON    17.01.2022  COMING    ON   FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, P.S.DINESH
KUMAR J, PRONOUNCED THE FOLLOWING:-

                      JUDGMENT

Insurer has filed M.F.A. No.8399/2016

challenging the aspect of negligence on the part of

the driver of the vehicle insured by the appellant

and its liability arising out of Judgment and Award

dated September 2, 2016 in MVC No.457/2015

passed by the III Additional District Judge and

MACT, Hassan.

MFA No.8399/2016 C/W MFA Crob No.58/2017

2. The claimants have filed cross-objection

seeking enhancement of compensation.

3. For the sake of convenience parties shall

be referred as per their status before the Tribunal.

4. Brief facts of the case are, a lorry1

transporting bricks had broken down on Bengaluru-

Tumkuru Highway on November 18, 2014. Its

driver Hemaraju was standing in front of the lorry.

At about 11.10 p.m a goods vehicle of Canter2

make (hereinafter referred to as 'Canter'), rammed

into the brick lorry on its hind side. Due to the

impact, the brick lorry moved forward and ran over

Hemaraju. He was shifted to Hospital, but

succumbed to the injuries within few hours. The

driver of Canter also sustained grievous injuries and

died on the spot. One Lokesh, working in Navayuga

Toll Complex, lodged FIR No.297/2014 in

KA-13 A 421

KA-25 D 3059- 'Canter' for short MFA No.8399/2016 C/W MFA Crob No.58/2017

Nelamangala Town Police Station stating inter alia

that the driver of the brick lorry had parked it

without any indicators in a negligent manner.

However, after investigation, an abated charge

sheet was filed against the driver of the Canter.

The Tribunal, on consideration of the claim petition

filed by the claimants has awarded Rs.10,01,000/-

as compensation.

5. Shri. O.Mahesh, for the insurer mainly

contended that:

• the basis for filing the charge sheet is the FIR

and it has been filed based on the complaint

given by Lokesh, who was the first to reach

the spot during his night patrolling duty. He

has clearly stated in the complaint that the

driver of the brick lorry had parked it in a

negligent manner;

• the claimants have not produced the sketch

prepared by the Police. The insurer has MFA No.8399/2016 C/W MFA Crob No.58/2017

produced the same as Ex.R2. It clearly shows

that the brick lorry was parked almost

touching the median;

• the Bengaluru-Pune road is a busy National

Highway and meant for fast movement of the

vehicles. Obviously, the Canter driver could

not have stopped the vehicle in the absence of

any indication that the brick lorry was

stationery;

• As per Rule 15 of the Road Regulations, 1989,

driver is required to park the vehicle keeping

in view the safety of the passengers and other

vehicles.

6. In substance, Shri. Mahesh argued that

brick lorry was parked in centre of the road. There

was no indication that it was stationery. Therefore,

there was no negligence on the part of the driver of

the Canter insured by the appellant. Hence, the MFA No.8399/2016 C/W MFA Crob No.58/2017

liability saddled against the owner of the Canter and

the insurer are unsustainable in law.

7. In reply, Shri. Prateep submitted that the

charge sheet is filed against the driver of the

Canter. It has not been challenged. The witness,

P.W.2 has stated that there were sufficient

indicators to show that the brick lorry was

stationary. Since it was a loaded vehicle, it could

not have been moved unless fully repaired. He

argued supporting the Award with regard to the

liability.

8. Shri. Pratheep relied upon the decision of

the Hon'ble Supreme Court in Sunita and others Vs.

Rajasthan State Road Transport Corporation and

others3 and contended that in the absence of

challenge, the Tribunal has rightly accepted the

charge sheet.

(2020) 13 SCC 486- Paras-20 to 25 MFA No.8399/2016 C/W MFA Crob No.58/2017

9. In reply to the authority cited,

Shri. Mahesh submitted that there was none to

challenge the charge sheet because it was an

abated charge sheet filed against the deceased

driver of the Canter.

10. With regard to the enhancement,

Shri. Pratheep submitted that Tribunal has recorded

in para 12 of the judgment that Hemaraju (driver of

brick lorry) was possessing a valid driving license to

drive a Transport vehicle. Though no proof of

income was produced by the claimants, the Tribunal

ought to have considered a reasonable income of

Rs.15,000/- per month which a driver would earn.

He prayed for dismissing Insurer's appeal and to

allow the cross-objection.

11. We have carefully considered rival

contentions and perused the records.

MFA No.8399/2016 C/W MFA Crob No.58/2017

12. Undisputed facts of the case are, the

accident has taken place on the National Highway.

The brick lorry was stationary. The Canter has

rammed into the hind side of the brick lorry.

Claimants' case is, victim Hemaraju was standing in

front of the brick lorry. Due to the impact, the

brick lorry ran over him. The abated charge sheet

has been filed against the driver of Canter. The

insurer has challenged the aspect of negligence on

the part of the driver of the Canter and the liability.

13. The crucial point for consideration is, by

whose negligence, the accident has occurred?

14. Ex.R2 is the sketch prepared by the

Police. It shows that brick lorry was parked almost

abutting the median.

15. The earliest undisputed document is the

FIR. It has been registered based on the complaint

given by one Lokesh who learnt about the accident MFA No.8399/2016 C/W MFA Crob No.58/2017

during night patrolling duty. He has stated that

brick lorry was parked in a negligent manner. FIR

has been registered at 01:10 hours.

16. In his evidence, P.W.2 has stated that

he was informed by Hemaraju, the driver of the

brick lorry that it had broken down at about 5.30

a.m. on November 18, 2015. Hemaraju had

requested him to get a mechanic. Accordingly, he

had taken a mechanic in the evening at about 5.00

p.m. The lorry was repaired and kept in the running

condition for 'cooling'. At about 11.10 p.m., the

Canter had rammed into the brick lorry. In his

cross-examination, P.W.2 has denied that brick

lorry was in the centre of the road. He has stated

that he was present at the spot and shifted

Hemaraju to the Hospital. He did not know who had

lodged the FIR.

MFA No.8399/2016 C/W MFA Crob No.58/2017

17. It was argued by Shri O. Mahesh that

P.W.2 is an interested witness. We have perused

the evidence of P.W.2. It was suggested to him

that he was related to Hemaraju. He has replied

that Hemaraju was his friend and not a relative.

He has admitted that a vehicle is kept in running

condition only when the engine is repaired. He has

also admitted that to repair the engine, the vehicle

has to be taken to the workshop. Thus, one thing

is clear that engine was not under repair. Be that

as it may, the fact remains that brick lorry had

remained on the National Highway for about 16

hours (from around 5.00 A.M. on 18.11.2014 till

around 11.00 P.M.).

18. Complainant Lokesh has stated that

there was no indication to show that the brick lorry

was stationary. The panchanama prepared by the

police at 8.00 A.M. on 19.11.2019 also does not

mention anything about any indicator/sign kept on MFA No.8399/2016 C/W MFA Crob No.58/2017

the road to show that brick lorry was stationary.

On the other hand, the panchanama shows that the

accident had taken place on the 'right hand side of

the road' which corroborates with the spot sketch

Ex.R2. Hence, it is clear that the brick lorry was

stationary in a dangerous manner on the National

Highway.

19. The panchanama, Ex.P4 shows that the

front side of the Canter was fully damaged. The

engine cabin had got detached. This shows that the

impact was very severe. Admittedly, brick lorry

was stationary. Therefore, the driver of the Canter

must have been driving the vehicle in high speed.

Even in the absence of any indicator, a driver,

driving the vehicle at a reasonable speed, will be

able to see a stationary lorry and avoid accident.

Hence, in our opinion, the driver of the Canter was

also negligent. In the facts of this case, we deem it

appropriate to fix the negligence on the part of the MFA No.8399/2016 C/W MFA Crob No.58/2017

brick lorry at 50% and that of Canter at 50%

because, brick lorry was parked in a dangerous

manner on the National Highway without any

indicators. At the same time, Canter's driver was

not cautious and vigilant.

20. With regard to enhancement of

compensation, it was argued by Shri Pratheep that

the Tribunal has erred in considering the notional

income. The Tribunal has recorded that no

documents were placed to prove the earning

capacity of Hemaraju. Even his driving license is

not placed on record to show that deceased

Hemaraju was capable of driving. Though

Hemaraju's wife has deposed that her husband was

owning four vehicles, no document is produced

before the Court. In the least, the registration

certificate of the brick lorry is also not produced.

Therefore, in our view, the Tribunal has rightly

considered the notional income. This Court has MFA No.8399/2016 C/W MFA Crob No.58/2017

been consistently considering the notional income

of an able bodied person in the year 2014 as

Rs.8,500/-.

21. As held in Pranay Sethi and others Vs.

National Insurance Company Limited4, 40% of the

income will have to be added towards future

prospects.

22. Deceased was aged 35 years, hence the

applicable multiplier is 16.

23. The claim petition is filed by Hemaraju's

widow, two minor sons and his mother. Hence,

1/4th is deductible from the earnings of the

deceased while calculating loss of dependency.

24. Thus, compensation towards loss of

dependency is worked out as follows:

(2017)16 SCC 680 Para 59.4 MFA No.8399/2016 C/W MFA Crob No.58/2017

The monthly notional income works out to

Rs.11,900/- (Rs.8,500+3,400) [by adding 40%

towards future prospects

Rs.8,500*40%=Rs.3,400]. After deducting 1/4th,

it works out to Rs.8,925/- per month

(Rs.11,900*3/4). The Annual notional income works

out to Rs.1,07,100/- (8,925*12). By applying 16 as

multiplier, the loss of dependency works out to

Rs.17,13,600/- (Rs.1,07,100*16).

25. The total compensation is re-computed

as follows;

     Sl.No                 Description                   Amount

     a.          Loss of dependency                   Rs.17,13,600

     b.          ADD:            Consortium             Rs.1,60,000
                 (40,000*4)
     c.          ADD: Conventional heads;                Rs.30,000
                 funeral expenses, etc.,
     d.                 Total (a+b+c)                 Rs.19,03,600

     e.            LESS: Compensation                 Rs.10,01,000
                  awarded by the Tribunal
                          (d-e)
             Enhanced Compensation                    Rs.9,02,600
                                              MFA No.8399/2016
                                       C/W MFA Crob No.58/2017




        26.    As   we    have      held      the    contributory

negligence on the part of Hemaraju as 50%,

claimants shall be entitled for 50% of the

compensation, i.e., Rs.9,51,800/-

(Rs.19,03,600*50%).

27. In the result, the following:

ORDER

i) MFA No.8399/2016 filed by the Insurer is

allowed in part holding that the driver of the brick

lorry was negligent to the extent of 50%.

Consequently, the compensation payable to the

claimants is determined as Rs.9,51,800/- with 6%

interest from the date of claim petition till the date