Karnataka High Court

Shruti W/O Nagappa Talawar vs The Andra Oxygen Pvt. Ltd on 10 March, 2022

Bench: S.Sunil Dutt Yadav, K.S.Hemalekha

                           1


          IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 10TH DAY OF MARCH, 2022

                       PRESENT
     THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
                         AND
      THE HON'BLE MRS.JUSTICE K.S. HEMALEKHA
                M.F.A.No.102149/2017
                         C/W
             M.F.A.CR.OB.No.100121/2017

IN M.F.A.No.102149/2017

BETWEEN:

THE BRANCH MANAGER
UNITED INDIA INSURANCE COMPANY LIMITED,
MELLIGERI COMPLEX KALADAGI ROAD,
BAGALKOT.
REP. BY DULY CONSTITUTED AUTHORITY.
DIVISIONAL MANGER.
                                   ....APPELLANT
(BY SRI.M.K.SOUDAGAR, ADVOCATE)

AND:

1.     SHRUTHI W/O NAGAPPA TALAWAR,
       AGE: 23 YEARS, OCC:HOUSEHOLD WORK,
       R/O: KAJJIDONI VILLAGE,
       TAL AND DIST: BAGALKOT-587101.

2.     TANU D/O NAGAPPA TALAWAR,
       AGE: 3 YEARS, OCC: NIL,
       R/O: KAJJIDONI VILLAGE,
       TAL AND DIST: BAGALKOT-587101.
                          2



3.   HANAMANTH S/O VENKAPPA TALAWAR
     AGE: 53 YEARS, OCC:COOLIE,
     R/O: KAJJIDONI VILLAGE,
     TAL AND DIST: BAGALKOT.

4.   TULASAVVA W/O HANAMANTH TALAWAR,
     AGE: 51 YEARS, OCC: COOLIE,
     R/O: KAJJIDONI VILLAGE,
     TAL AND DIST: BAGALKOT-587101.

     (RESPONDENT NO.2 BEING MINOR REPRESENTED BY
     HER NATURAL GUARDIAN MOTHER RESPONDENT
     NO.1)

5.   THE ANDRA OXYGEN PRIVATE LIMITED.
     P.H SHIRUR, AGE: 43 YEARS, OCC: BUSINESS
     R/O: A-P H.NO.133, HALLUR CHAWAL,
     VASAVI TALKIES ROAD,
     TAL AND DIST: BAGALKOT-587101.

                                       ....RESPONDENTS
(BY SRI.VITTAL S. TELI, ADVOCATE FOR R1 TO R4;
SRI. S.C.HIREMATH, ADVOCATE FOR R5)

     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND
AWARD DATED 16.02.2017 PASSED IN MVC No.26/2015 ON
THE FILE OF THE MEMBER, MOTOR ACCIDENT CLAIMS
TRIBUNAL-II, BAGALKOT, AWARDING COMPENSATION OF
RS.26,39,100/- WITH INTEREST AT 6% P.A. FROM THE DATE
OF PETITION TILL ITS PAYMENT.

IN M.F.A.CR.OB.No.100121/2017

BETWEEN

1.   SHRUTI W/O NAGAPPA TALAWAR,
     AGE: 22 YEARS, OCC: H/W,
     R/O: KAJJIDONI VILLAGE,
     TQ AND DIST: BAGALKOT-587101.
                           3




2.    TANU D/O. NAGAPPA TALAWAR,
      AGE: 3 YEARS,
      SINCE MINOR REPRESENTED BY
      NATURAL GUARDIAN APPELLANT No.1,

3.    HANAMANT S/O VENKAPPA TALAWAR,
      AGE: 52 YEARS, OCC: COOLIE,
      R/O: KAJJIDONI VILLAGE,
      TQ AND DIST: BAGALKOT-587101.

4.    TULASAVVA W/O HANAMANTH TALAWAR
      AGE: 50 YEARS, OCC: COOLIE,
      R/O: KAJJIDONI VILLAGE,
      TQ AND DIST: BAGALKOT-587101.

                                    ...CROSS OBJECTORS
(BY SRI.VITTAL S. TELI, ADVOCATE FOR CROSS OBJECTOR)

AND

1.    THE ANDRA OXYGEN PRIVATE LIMITED,
      P.H. SHIRUR, AGE: 42 YEARS,
      OCC: OWNER OF VEHICLE,
      R/O: A/P H.NO.133, HALLUR CHAWAL,
      VASAVI TALKIES ROAD,
      BAGALKOT-587101.

2.   THE BRANCH MANAGER,
     UNITED INDIA INSURANCE COMPANY LIMITED,
     MELLIGERI COMPLEX,
     KALAGADI ROAD,
     BAGALKOT-587101.
                                     ...RESPONDENTS
(BY SRI.S.C.HIREMATH, ADVOCATE FOR R1;
SRI.M.K.SOUDAGAR, ADVOCATE FOR R2)

    THIS M.F.A. CROB IN M.F.A. No.102149/2017 FILED
UNDER ORDER XLI RULE OF 22 OF CPC., AGAINST THE
JUDGMENT AND AWARD DATRED 16.02.2017 PASSED IN
                                 4


MVC No.26/2015 ON THE FILE OF THE MEMBER OF MOTOR
ACCIDENT CLAIMS TRIBUNAL-II, BAGALKOT, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THIS APPEAL AND CROSS OBJECTION COMING ON FOR
ADMISSION THIS DAY, K.S. HEMALEKHA J., DELIVERED
THE FOLLOWING:

                         JUDGMENT

Though this appeal and cross objection are listed for

admission, with the consent of learned counsel for both

sides, they are taken up for final disposal.

2. The appeal as well as cross objection are

directed against judgment and award dated 16.02.2017

passed in MVC No.26/2015 on the file of the learned

Member, MACT-II, Bagalkot, (for short "Tribunal").

3. MFA No. 102149/2017 is filed by the Insurance

Company challenging the fastening of liability as well as

quantum of compensation. MFA CROB No.100121/2017 is

filed by the claimants seeking enhancement of

compensation.

4. The parties herein are referred to as per their

ranking before the Tribunal for the sake of convenience.

5. The claimants have filed claim petition under

Section 166 of the Motor Vehicles Act, 1988, seeking

compensation of Rs.37,50,000/- on account of death of

one Nagaraja S/o Hanamanth Talawar in a fatal road traffic

accident that occurred on 03.07.2014, when the deceased

was proceeding in a bullock cart along with his family

members, at that time, the driver of the lorry bearing

registration No.KA-29/9165 came in a rash and negligent

manner and hit the bullock cart from backside, due to the

said impact, deceased Nagaraja Talawar succumbed to the

injuries at the spot. The claimants are the wife, minor

child and the parents of the deceased Nagaraja. It is

averred that the deceased was aged about 25 years, hale

and healthy, working as an agriculturist and also doing the

coolie work and thereby earning Rs.15,000/- per month. It

is averred that the claimants were solely dependent on the

income of the deceased.

6. In pursuance of the summons issued by the

Tribunal, respondent No.1 though served with notice did

not appear and he was placed exparte. Respondent No.2-

Insurance Company appeared and filed written statement.

7. Respondent No.2-Insruance Company denied

that the accident occurred due to the negligence on the

part of the driver of the lorry and took up the contention

that driver of the offending vehicle did not possess valid

and effective driving license as on the date of accident and

sought to absolve the liability.

8. The Tribunal on the basis of the pleadings

framed following issues:

1. Whether the petitioners prove that, at about 9.30 hours, when Nagappa S/o Hanamanth Talawar with his family members was proceeding on his bullock cart for their coolie work, near petrol bunk, he met with an accident and sustained grievous injuries and succumbed to death, due to the actionable negligence on the part of the driver of lorry bearing registration No.KA- 29/9165?

2. Whether the respondent No.2-Insurance company proves that, it is not liable to pay compensation?

3. Whether the petitioners are entitled for compensation sought for? Is so, from whom?

4. What order or award?

9. The Tribunal considering the pleadings and

material evidence on record held that the accident

occurred due to rash and negligent driving of the driver of

the lorry bearing registration No.KA-29/9165, due to which

deceased Nagappa Talawar succumbed to the injuries and

fastened the liability upon the Insurance Company and

awarded total compensation of Rs.26,39,100/- with

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

petition till realization.

10. Aggrieved by fastening of liability and quantum

of compensation awarded by the Tribunal being on the

higher side, the Insurance Company is in appeal. The

claimants are in Cross objection on the ground of quantum

of compensation being on the lower side.

11. Heard learned counsel for the Insurance

Company and learned counsel for the claimants and

perused the material on record including original records.

12. Learned counsel for the Insurance Company in

support of his appeal would contend that the accident

occurred due to contributory negligence on the part of the

deceased and fastening of liability to the entire extent

upon the Insurance Company is without considering the

fact that there was negligence on the part of the deceased.

It is further contended that the Tribunal has taken the

income of the deceased at Rs.8,000/- per month and

adding 50% towards future prospects is contrary to the

dictum of the Apex Court of the Hon'ble Apex Court in the

case of National Insurance Company Limited Vs.

Pranay Sethi and others reported in 2017 ACJ 2700

and sought to reduce the compensation.

13. Per contra, learned counsel for the claimants in

support of his cross objection would contend that the

Tribunal considering the fact there was rash and negligent

driving on the part of the driver of the lorry bearing

registration No.KA-29/9165 fastened the liability on the

insurance company. Insofar as quantum of compensation

is concerned, it is contended that the Tribunal has

committed an error in awarding meager compensation

under head of loss of consortium and same requires to be

enhanced reasonably. He further contended that the

compensation awarded by the Tribunal under the other

heads is just, fair and proper, which requires no

interference by this Court. Thus, he sought to allow the

cross objection filed by the claimants by dismissing the

appeal filed by the insurance company.

14. Having heard the learned counsel for the

parties and on perusal of the material on record, the points

that would arise for consideration are:

i. "Whether the Tribunal was justified in fastening of liability on the Insurance company, holding that the accident occurred due to rash and negligent driving of the offending vehicle?"

ii. "whether the judgment and award passed by the Tribunal insofar as the

quantum is concerned, requires to be reconsidered?".

15. It is contended by the Insurance Company that

the accident occurred due to the contributory negligence

on the part of the deceased Nagappa Talawar, who was

rider of the bullock cart. A perusal of the impugned

judgment and award and material on record would depict

that Ex.P4-spot mahazar and rough sketch shows the place

of the accident. The offending vehicle on that day was

plying from west to east and the bullock cart was also

proceeding in the same direction. At the place of accident,

the width of the road was about 30 feet and it was a

straight road between east to west. The offending vehicle

as per the spot mahazar hit the bullock cart at its

backside, when it was proceeding towards the left side of

the road. If the spot of the accident shown in the rough

sketch enclosed with the Ex.P4 is taken into consideration,

the contention of the Insurance Company that the bullock

cart came across plying vehicle resulting in accident cannot

be accepted. As such, contributory negligence as

contended by the Insurance Company is not acceptable.

The Tribunal considered the material evidence on record

has rightly fastened the liability upon the Insurance

Company. Accordingly, we answer the point No.1 in the

affirmative as against the Insurance Company holding that

the fastening of liability on account of the contributory

negligence is just and proper.

16. Point No.2: Insofar as the quantum of

compensation awarded by the Tribunal is concerned, in

view of the dictum of the Apex court in the cases of

Pranay Sethi (supra), United India Insurance

Company Limited V/s Satinder Kaur and others

reported in AIR 2020 SC 3076 and Magma General

Insurance Company Ltd. Vs. Nanu Ram & Others

reported in 2018 ACJ 2782, looking into the judgment

and award of the Tribunal, the award of compensation by

the tribunal needs to be reassessed.

17. The Tribunal has taken the income of the

deceased at Rs.8,000/- per month. In the facts and

circumstance of the case that the deceased was earning

Rs.8,000/- per month by doing agriculture work as well as

working as coolie, the income assessed by the Tribunal at

Rs.8,000/- per month was just and proper. However,

taking into consideration that the claimants have not

produced any documents to show the actual income of the

deceased, as per the guidelines of the Karnataka State

Legal Services Authorities for the accidental claims of the

year 2014, the notional income of the deceased has to be

taken at Rs.7,500/- per month.

18. Further, the Tribunal committed an error in

adding 50% towards future prospects. In the light of

dictum of the Hon'ble Apex Court in the case of Pranay

Sethi (supra), the claimants would be entitled for addition

of 40% towards future prospects instead of 50% added by

the Tribunal. Deduction of 1/4th of the assessed income

towards personal and living expenses considering the

number of dependents of the deceased and multiplier of

'18' considering the age of the deceased as 25 years, are

not disturbed. Thus, the claimants would be entitled for

compensation under the head of loss of dependency at

Rs.17,01,000/- (Rs.7,500 + 40% x 12 x 18 x ¾).

19. The medical expenses of Rs.6,60,100/-

awarded by the Tribunal based on the medical bills

produced by the claimants remains undisturbed. Insofar as

the consortium is concerned, as per the dictum of the

Hon'ble Apex Court in the cases of Satinder Kaur (supra)

and Magma General Insurance Company Ltd. (supra),

claimant No.1 being wife of the deceased would be entitled

to Rs.40,000/- towards spousal consortium, claimant No.2

being daughter of the deceased would be entitled to

Rs.40,000/- towards parental consortium and claimants

No.3 and 4 being parents of the deceased would be

entitled to Rs.40,000/- each towards filial consortium.

Besides, the claimants would be entitled to Rs.15,000/-

each towards loss of estate and funeral expenses.

20. Thus, the claimants would be entitled for

modified compensation under the following heads:

Sl. No.               Particulars                    Amount
1            Loss of dependency                   Rs.17,01,000/-
2            Medical Expenses                     Rs. 6,60,100/-
3            Spousal, filial and Parental         Rs. 1,60,000/-
             Consortium (Rs.40,000x4)
4            Funeral expenses                     Rs. 15,000/-
5            Loss of estate                       Rs. 15,000/-
                          Total                  Rs.25,51,100/-

21. Accordingly, we answer point No.2 in the

affirmative holding that the claimants would be entitled for

total compensation of Rs.25,51,100/- as against

Rs.26,39,100/- as awarded by the Tribunal with interest at

the rate of 6% per annum from the date of petition till

realization.

22. In the result, we pass following:

ORDER

1. Appeal as well as cross objection are allowed

in part.

2. The impugned judgment and award passed by

the Tribunal is modified to the extent that the