Karnataka High Court
Muniyappa S/O Hanumantha And Ors vs Basavaraj S/O Sangappa And Ors on 23 March, 2022
Bench: Ashok S. Kinagi
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
MFA No.200668 OF 2014 (MV)
BETWEEN:
1. MUNIYAPPA,
S/O HANUMANTHA,
AGED ABOUT 51 YEARS,
OCC: NIL,
2. BHEEMAWWA,
W/O MUNIYAPPA,
AGED ABOUT 46 YEARS,
OCC: HOUSEHOLD,
3. NAGARAJ,
S/O MUNIYAPPA,
AGED ABOUT 11 YEARS,
OCC: STUDENT,
4. SHANKAR
S/O MUNIYAPPA,
AGED ABOUT 5 YEARS,
OCC: STUDENT,
CLAIMANT Nos.3 & 4 ARE MINORS,
HENCE REP. BY THEIR NATURAL MOTHER/
APPELLANT NO.2
2
ALL ARE R/O JEGARKAL,
RAICHUR TALUK & DISTRIC -584 101.
... APPELLANTS
(BY SRI. MAHANTESH PATIL, ADVOCATE)
AND:
1. BASAVARAJ,
S/O SANGAPPA,
AGED ABOUT 22 YEARS,
OCC: DRIVER OF AMBULANCE,
R/O KARDI, HUNUGUND TALUK,
BAGALKOT DISTRICT-587 101.
2. THE DISTRICT HEALTH &
FAMILY WELFARE OFFICER,
SITUATED AT EK MINAR,
NEAR BOOBBHAVAN,
RAICHUR-584 101.
3. KARNATAKA GOVT. INSURANCE DEPT.
MOTOR BRANCH, BANGALORE
REPTD. BY ITS MANAGER,
KGID, RAICHUR-584 101.
4. SAGAR,
S/O BASANNA,
AGED ABOUT 22 YEARS,
OCC: RIDER OF M/C
NO.36/W-9663,
R/O JEGARKAL VILLAGE,
RAICHUR TALUK & DISTRICT - 584 101.
5. MADHUKANTH,
S/O BHEEMAPPA,
AGED ABOUT 37 YEARS,
OCC: OWNER OF M/C NO.
36/W-9663, R/O H.NO.9-19-155/1,
MADDIPET, RAICHUR-584 101.
3
6. THE BRANCH MANAGER,
ORIENTAL INSURANCE CO., LTD.,
KATKAM KRISHNAIAH COMPLEX,
CITY TALKIES ROAD, RAICHUR-584 101.
... RESPONDENTS
(NOTICE TO R1 D/W V/O DTD:11.04.2014;
BY SMT. MAYA T.R, HCGP FOR R2 & R3;
SRI. HARSHAVARDHAN R.MALIPATIL, ADV. FOR R4 & R5 ;
SMT. SUMITRA H, ADVOCATE FOR R6)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE M.V.ACT PRAYING TO
CALL FOR RECORDS AND MODIFY THE IMPUGNED
JUDGMENT AND AWARD DATED 28.02.2014 PASSED BY
THE MACT (II ADJ) RAICHUR IN MVC NO.334/2013.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the petitioners under
Section 173(1) of the Motor Vehicles Act (for short
'the Act') challenging the judgment and award dated
28.02.2014 passed by the Member Motor Accident
Claims Tribunal (II-A.D.J.), Raichur (for short
hereinafter referred to as 'the Tribunal') in MVC
No.334/2013.
2. For the sake of convenience, parties are
referred to as per their ranking before the Claims
Tribunal. Appellants are the petitioners and
respondents are the respondents before the Tribunal.
3. Facts giving rise to filing of this appeal are
as under:
That, on 17.03.2013 at about 12 p.m., when the
son of petitioners No.1 and brother of petitioners No.3
and 4 by name Govindappa was proceeding on a
motor cycle bearing registration No.KA-36/W-9663 as
a pillion rider, rode by petitioner in
M.V.C.No.444/2013 i.e., Laxmana, when they reached
near Merchad cross on Raichur bye-pass road, at that
time, respondent No.1 being the driver of Omni
Ambulance bearing registration No.KA-36/G-0278 in
which petitioner Laxmana in M.V.C.No.444/2013 was
proceeding in the ambulance in order to help the
injured Mallama. Respondent No.1 drove the
ambulance in rash and negligent and lost control over
the same and dashed to the motor cycle and caused
accident, due to which the motor cycle rider,
Govindappa and inmate of ambulance i.e., petitioner
Laxmana in M.V.C.No.444/2013 sustained grievous
injuries and Govindappa succumbed to the injuries on
the way to hospital. The petitioners being the legal
representatives of the deceased - Govindappa filed
claim petition under Section 166 of the M.V.Act,
seeking compensation on account of the death of
Govindappa in the road traffic accident.
4. The respondent No.1 appeared but did not
filed written statement, respondent No.2 filed written
statement and respondent No.1 and 3 adopted the
written statement filed by respondent No.2.
Respondent No.2 denied the averments made in the
claim petition. It is contended that the respondent
No.1 was driving the ambulance from Kardi to Raichur
for shifting a patient to the hospital at Raichur in a
slow and careful manner, suddenly motor cycle rider
rode the motor cycle in a rash and negligent manner
and hit the left side door of ambulance and caused the
accident. It is contended that the accident was
occurred due to rash and negligent riding of the rider
of the motor cycle and denied the age, avocation,
income and relationship of the petitioners with
deceased and prayed to dismiss the claim petition.
5. The Tribunal on the basis of the pleadings
of the parties framed the issues.
6. The petitioners in order to prove their case,
petitioner No.2 examined as PW.1 and got marked the
documents as Ex.P1 to Ex.P7. On behalf of the
respondents, respondent No.1 examined as RW-1 and
got marked the documents as Ex.R1 to Ex.R4.
7. The Tribunal, after recording the evidence
and considering the material on record, held that the
petitioners proved that the deceased Govnidappa died
in the road traffic accident occurred on 17.03.2013,
and the accident was occurred due to rash and
negligent driving of the driver of Omni ambulance
bearing registration No.KA-36/G-0278 and further
held that the petitioners are entitled for
compensation. Further, held that there was a
contributory negligence on the part of the rider of the
motor cycle and fastened the liability of 60% on the
respondent No.1 and 40% on the rider of the motor
cycle. Further, directed the respondents No.1 to 3
shall bare the liability of 40% of award amount,
remaining 60% liability shall bare by the respondent
Nos.4 and 5 and directed the respondents No.3 and 5
the insurer and owner of the motor cycle shall deposit
their respective liability, within one month from the
date of award. Being dissatisfied with the
compensation awarded by the Tribunal, the petitioners
have filed this appeal seeking enhancement of
compensation.
8. Heard the learned counsel for the
petitioners and learned counsel for the respondents
No.4 and 5 and also learned HCGP for respondents
No.2 and 3.
9. Learned counsel for the petitioners submits
that the Tribunal has committed an error in fastening
the liability to the extent of 40% on the driver of the
Omni ambulance and 60% on the rider of the
motorcycle. He further submits that the compensation
awarded by the Tribunal is on the lower side. Hence,
on these grounds, he prays to allow the appeal.
10. Per contra, learned HCGP submits that the
Tribunal relying on the spot mahazar and spot sketch
held that there was a negligence on the part of the
rider of the motorcycle and submits that the Tribunal
was justified in fastening the liability to an extent of
60% on the rider of the motor cycle and 40% on the
respondent No.1. She further submits that the award
passed by the Tribunal is just and proper and does not
call for interference and prays to dismiss the appeal.
11. Per contra, learned counsel for the
respondents No.4 and 5 submits that the Tribunal has
committed an error in fastening the liability to an
extent of 60% of the rider. He further submits that
the Tribunal without considering the records has
committed an error in passing the impugned judgment
and award. Hence, on these grounds, he prays to
dismiss the appeal.
12. Perused the records and considered the
submissions made by the learned counsel for the
parties.
13. The point that arises for consideration are
with regard to liability and quantum of compensation.
14. It is not in dispute that the deceased
Govindappa met with an accident and sustained
grievous injuries and succumbed to the injuries. In
order to prove that the accident has occurred due to
the rash and negligent driving of the driver of the
Omni ambulance and also rider of the motorcycle, the
petitioners have produced copy of the FIR and charge
sheet, which are marked as Ex.P1 and Ex.P6 and also
produced the Inquest report marked as Ex.P5. From
the perusal of the records, the Tribunal was justified in
recording a finding that the accident was occurred due
to rash and negligent driving of the driver of Omni
ambulance and rider of the motorcycle.
15. Insofar as liability is concerned, it is the
case of the respondent No.3 that the accident was
occurred due to sudden enter by the rider of the
motor cycle to main road without waiting for the
speedy vehicle to pass through, due to sudden
obstruction to the moving vehicle in the middle of the
road and not on side and produced the copy of spot
mahazar and spot sketch. On the perusal of spot
mahazar and spot sketch, the rider of the motor cycle
has suddenly entered the main road without waiting
for the seedy vehicle. The rider of the motor cycle has
contributed for the cause of accident. The deceased
Govindappa was the pillion rider, and the accident was
occurred due to rash and negligent riding on the part
of rider of the motor cycle and also respondent No.1.
The Tribunal was justified in fastening the liability on
the rider of the motor cycle and respondent No.1 is
just and proper and does not call for interference with
regard to liability.
16. Insofar as quantum of compensation is
concerned, the petitioners have contended that the
deceased was doing milk vending business and labour
work and earning Rs.8,000/- per month. In order to
substantiate the claim of the petitioners, petitioners
have not tendered any evidence with regard to the
income of the deceased before the Tribunal. In the
absence of proof of income, the notional income of the
deceased will have to be taken as per the chart
provided by the Karnataka State Legal Services
Authority. In terms of the chart, for the accident of
the year 2013, the notional income of the deceased
will have to be taken at Rs.7,000/- as against
Rs.6,000/- per month taken by the Tribunal. To the
aforesaid amount, as the deceased was aged 18
years, 40% of the said amount has to be added on
account of future prospects in view of the law laid
down by the Constitution Bench of the Supreme Court
in the case of National Insurance Company
Limited vs. Pranay Sethi and Others reported in
AIR 2017 SC 5157. Thus, the monthly income
comes to Rs.9,800/-. The deceased was bachelor
50% has to be deducted towards his personnel
expenses. I deem it appropriate to deduct 50% is to
be deducted out of Rs.9,800/- (9,800 - 50% = 4,900)
therefore, the monthly income of the deceased comes
to Rs.4,900/-. Taking into account the age of the
deceased which was 18 years at the time of accident,
multiplier of 18 has to be adopted as per the
judgment of the Hon'ble Supreme Court in the case of
Sarla Verma vs. Delhi Transport Corporation
reported in (2009) 6 SCC 121. Therefore, the
petitioners are entitled to a sum of Rs.10,58,400/-
(4,900 x 12 x 18) on account of loss of dependency as
against Rs.6,48,000/- awarded by the Tribunal.
17. In view of the law laid down by the Hon'ble
Supreme Court in the case of Magma General
Insurance Company Limited vs. Nanu Ram Alias
Chuhru Ram & Others reported in (2018) 18 SCC
130, each petitioners are entitled to a sum of
Rs.40,000/- towards loss of consortium. The
petitioners are 4 in number, hence the compensation
towards loss of consortium would be Rs.1,60,000/-
(40,000 x 4). In addition, the petitioners are entitled
a sum of Rs.15,000/- towards funeral expenses and
Rs.15,000/- under the head of loss of estate.
18. Thus, in all, the petitioners are entitled to a
sum of Rs.12,48,400/- as against Rs.7,83,000/-
awarded by the Tribunal. The petitioners are entitled
for enhanced compensation of Rs.4,65,400/- with
interest at the rate 6% per annum, from the date of
petition, till its realization.
19. In view of the above discussion, I proceed
to pass the following:
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and award
passed by the Tribunal dated
28.02.2014 in M.V.C.No.334/2013 is
modified.
iii. The petitioners are entitled to an
enhanced compensation of
Rs.4,65,400/- along with interest at
the rate of 6% per annum from the
date of petition till the date of
realization.
iv. The respondents No.3 & 5 directed to
deposit their respective liability before
the Tribunal within a period of eight
weeks from date of the receipt of
certified copy of this judgment.
SD/-
JUDGE
GRD
