Karnataka High Court
Nirmala S Nagaraj W/O Late ... vs S Basavaraja S/O Sharabaiah on 6 July, 2022
Bench: P.Krishna Bhat
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MFA No. 23099 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 06TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE P.KRISHNA BHAT
MISCELLANEOUS FIRST APPEAL NO. 23099 OF 2010 (MV-D)
BETWEEN:
1. NIRMALA S NAGARAJ W/O LATE NAGARAJA
AGE: 29 YEARS, OCC: TEACHER WORKING AT
HALE KOTE, TQ: SIRUGUPPA,
R/O: RAMANAGARA, 13TH WARD,
KUDLIGI, DIST: BELLARY
WIFE OF DECEASED LATE T. NAGARAJ
2. T. OBULAMMA D/O T MARAPPA
AGE: 57 YEARS,
R/O: RAMANAGARA,
13TH WARD, KUDLIGI.
...APPELLANTS
(BY SRI. Y LAKSHMIKANT REDDY, ADV., &
SMT. Y. MALATHI REDDY, ADV.,)
AND:
1. S. BASAVARAJA S/O SHARABAIAH
Digitally signed
AGE: 38 YEARS, OWNER OF LNT (JCB)
by SUJATA
SUBHASH
PAMMAR
BEARING REGN. NO. KA-35/M-4068,
Location: HIGH
COURT OF
KARNATAKA,
R/O: VASU NILAYA, GANDHI COLONY,
DHARWAD
DAM ROAD, HOSPET. DIST: BELLARY.
2. THE BRANCH MANAGER
M/S. UNITED INDIA INSURANCE CO. LTD.,
BEHIND RADHIKA THEATOR,
MUBARAK ROAD, BELLARY.
...RESPONDENTS
(BY SRI. RAVINDRA R MANE, ADV., FOR R2;
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MFA No. 23099 of 2010
R1- NOTICE SERVED)
THIS MFA IS FILED U/S.173(1) OF THE M.V.ACT, AGAINST
THE JUDGEMENT AND AWARD DATED:10.03.2010, PASSED IN
MVC NO.594/2008, ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT-II CUM MOTOR ACCIDENT CLAIMS
TRIBUNAL-X, AT BELLARY, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY
THE COURT DELIVERED THE FOLLOWING.
JUDGMENT
This appeal is at the instance of the claimants calling in
question the correctness of the judgment and award dated
10.03.2010 in MVC No.594/2008 passed by the learned
Presiding Officer, Fast Track Court-II cum Motor Accident
Claims Tribunal-X at Ballari (for short "the Tribunal").
2. Brief facts as per the case of the claimants is that
on 18.03.2008, deceased-S.Nagaraj was riding motorcycle
bearing registration No.KA-17/W-7804 from Hospete towards
Kudligi near Murugesh Dhaba in Kaivalyapura village and at
that time, the driver of JCB bearing registration No.KA-35/M-
4068 drove the same in a rash and negligent manner and in
MFA No. 23099 of 2010
high speed and dashed against the motorcycle resulting in
death of the deceased.
3. The claim petition was contested by all the
respondents before the learned Tribunal. However
respondent No.1 and 2 did not file any written statement and
only the Insurance Company filed its written statement.
4. During trial, claimant No.1 examined herself as
PW1 and Exs.P1 to P9 were marked. One eyewitness was
examined as PW2. Respondent No.3 examined one of its
officials as RW1 and Ex.R1 to R4 were marked.
5. After hearing the learned counsel on both sides
and perusing the records, the learned Tribunal quantified a
total compensation of Rs.19,36,000/- for the death of the
deceased but upon its finding that there was 75%
contributory negligence on the part of the deceased,
awarded Rs.4,84,000/- to the claimants with interest thereon
at 6% per annum and fastened the liability to pay the same
on the insurance Company. In this appeal, learned counsel
for the appellants-claimants strenuously contended that the
MFA No. 23099 of 2010
contributory negligence fixed at 75% against the deceased is
not supported by evidence and on the other hand, JCB being
a bigger vehicle, no contributory negligence should have
been attributed to the rider of the motorcycle at all. Her
further contention is that the reliance placed by the learned
Tribunal on the Sketch Map (Ex.R4) and the Spot
Panchanama (Ex.P2) is erroneous inasmuch as they only
reflect the state of affairs as to what situation obtained at
the spot post-accident. She contended that the charge sheet
(Ex.P3) showed that the accident had taken place due to the
rash and negligent driving by the driver of the JCB and in
view of the evidence of eyewitness, learned Tribunal should
have held that the driver of the offending JCB vehicle alone
was negligent. She also pointed out that the respondents
had not examined the driver of the JCB. She therefore
submitted that the award to the extent it apportioned
contributory negligence on the deceased is liable to be set
aside. She also submitted that on conventional heads like
consortium etc., the learned Tribunal has awarded a lesser
compensation.
MFA No. 23099 of 2010
6. Learned Counsel Sri. R. R. Mane, appearing for
the Insurance Company contended that in view of the Sketch
Map (Ex.R4) and the Spot Panchanama (Ex.P2), the finding
of the learned Tribunal on the contributory negligence is fully
sustainable and it should not be set aside. He also submitted
that the learned Tribunal was correct in rejecting the
evidence of PW2 as he had turned hostile before the Criminal
Court as could be seen from Ex.R3. He therefore, submitted
that there is no merit in the appeal and it is liable to be
dismissed.
7. I have given my anxious consideration to the
submissions made on both sides and I have carefully
perused the records.
8. The case of the claimant is that on 18.03.2008
while deceased-S.Nagaraj was riding his motorcycle near a
Dhaba in Kaivalyapura village, on account of rash and
negligent driving of the offending JCB, the accident had
taken place resulting in death of the deceased.
MFA No. 23099 of 2010
9. Learned Tribunal, after trial and on appreciation
of the evidence has recorded a finding that deceased was
earning monthly income of Rs.9,254/- by working as a
teacher in a Government School and the said correctness of
the same is not disputed by the learned counsel for the
Insurance Company before me. Similarly, the age of the
deceased is also not in dispute. Learned Tribunal has taken
the same at 27 years and it has held that appropriate
multiplier applicable to the said age is '17'. 50% of the
income is required to be added to the salary of the deceased
towards loss of future prospects by following the decision of
the Hon'ble Supreme Court in National Insurance
Company Limited v. Pranay Sethi and others1 and since
he has left behind a widow and mother, 1/3rd of the income
is required to be deducted towards personal expenses of the
deceased. Learned Tribunal has observed the above said
aspects by following correct principles of law.
10. In regard to the aspect of negligence regarding
the occurrence of the accident is concerned, the charge
(2017) 16 SCC 680
MFA No. 23099 of 2010
sheet (Ex.P3) is filed against the driver of the offending JCB
in question. It is also true that respondents have not
examined the driver of the JCB, who was the most important
witness in this case. Further, as per the charge-sheet
(Ex.P3), the culpable negligence is attributed solely to the
driver of the JCB for the accident. In regard to the scene of
occurrence, Ex.P2, which is Spot Panchanama and Ex.R4,
which is a Sketch Map show that when they were prepared
by the police i.e. after the accident, the motorcycle and the
dead body were on the wrong side so far as the rider of the
motorcycle is concerned. The eyewitness examined (PW2),
as held by the learned Tribunal, cannot be relied upon in
view of the fact that before the learned Criminal Court he
was examined as a witness and he had turned hostile and he
has explicitly stated before the Court that he had not seen
the accident(Ex.R3). The question of negligence has to be
now decided keeping the above facts in view. The
probabilities clearly suggest that the rider of the motorcycle
was somewhere on the median of the road which was 24 ft.
in width at the time of the accident. It cannot be denied that
MFA No. 23099 of 2010
the JCB is a bigger vehicle. Learned Tribunal has needlessly
kept in view the aspect of deceased possibly not having a
valid and effective driving licence to ride a motorcycle. In
view of the fact that Ex.P2 and Ex.R4 do not reflect the
actual spot of the accident at the time of the impact and also
the fact that the driver of the JCB was not examined by the
respondents, it can be safely assumed that there was equal
negligence on the part of both driver of JCB as well as the
rider of the motorcycle. As a matter of fact, learned Tribunal
has held that there was negligence on the part of the driver
of the JCB also. However, there was error in apportioning the
contributory negligence to the extent of 75% on the rider of
the motorcycle. If only the respondents had examined the
driver of the JCB, it would have been possible for the Court
to ascertain what measures the driver of the JCB had taken
to avert the accident. In that view of the matter, I am of the
view that the negligence has to be apportioned equally
between the rider of the motorcycle as well as the driver of
the JCB.
MFA No. 23099 of 2010
11. Learned Tribunal has arrived at the figure of
Rs.18,87,816/- correctly towards loss of dependency. Since
there was contributory negligence to the extent of 50:50, the
claimants are entitled to the award of compensation from the
respondents in a sum of Rs.9,43,908/- towards loss of
dependency.
12. However, since the deceased had left behind a
widow and mother, a sum of Rs.80,000/- ought to have been
awarded under the head of loss of consortium and another
sum of Rs.30,000/- ought to have been awarded towards
funeral expenses and loss of estate and I do so.
13. Thus, in all the compensation payable by the
respondent-Insurance Company on account of death of
deceased should be Rs.10,53,908/- which shall carry interest
@ 6% per annum from the date of petition till the date of
payment.
14. In view of the above, the appeal is allowed to the
said extent.
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MFA No. 23099 of 2010
15. The respondent-Insurance Company shall deposit
the differential amount with interest thereon @ 6% per
annum from the date of petition till the date of payment.
16. Registry to transmit the records to the Tribunal,
forthwith.
17. In view of disposal of the appeal, pending
interlocutory applications, if any, do not survive for
consideration and are disposed of accordingly.
Sd/-
JUDGE
YAN
