New India Assurance Co. Ltd vs Najeersab S/O Husensab Yalavagi @ ...
2022 Latest Caselaw 12298 Kant

                                                  -1-




                                                           MFA No. 23515 of 2013


                                  IN THE HIGH COURT OF KARNATAKA

                                          DHARWAD BENCH

                             DATED THIS THE 11TH DAY OF OCTOBER, 2022

                                               BEFORE
                                 THE HON'BLE MR JUSTICE R.NATARAJ
                       MISCELLANEOUS FIRST APPEAL NO. 23515 OF 2013 (MV-D)
                      BETWEEN:

                      1.   NEW INDIA ASSURANCE CO. LTD.,
                           BY ITS DIVISIONAL MANAGER,
                           A.M.ARCADE,
                           C.G.HOSPITAL ROAD,
                           DAVANAGERE,
                           HEREIN REPRESENTED
                           BY NEW INDIA ASSURANCE CO.
                           LTD.,
                           REGIONAL OFFICE,
                           MOTOR THIRD PARTY HUB OFFICE,
                           SRINATH COMPLEX,
                           2ND FLOOR, NEW COTTON MARKET,
                           HUBLI-580 029.
                           REPRESENTED BY ITS AUTHORISED SIGNATORY.
        Digitally
        signed by J
J
        MAMATHA                                                    ...APPELLANT
MAMATHA Date:
        2022.10.15
        12:12:21      (BY SRI. R R MANE, ADVOCATE)
        +0530
                      AND:

                      1.   SRI NAJEERSAB
                           S/O HUSENSAB YALAVAGI @ DESOOR
                           AGE: 42 YEARS,
                           OCC: COOLIE,
                           R/O. BYADGI,
                           DIST: HAVERI.

                      2.   NAGAPPA S/O GANGAPPA HULLUR
                           AGE: MAJOR,
                               -2-




                                       MFA No. 23515 of 2013


    OCC: AGRICULTURE,
    R/O. KALAS, TQ: KUNDAGOLA,
    DIST: DHARWAD.

                                             ...RESPONDENTS
(BY SRI. MADANMOHAN M KHANNUR, ADV. FOR R1,
    SRI HANUMANTHA REDDY SAHUKAR, ADV. FOR R2)

     THIS APPEAL IS FILED UNDER SECTION 173 (1) OF M.V.
ACT 1988, AGAINST THE JUDGMENT AND AWARD DTD:24-04-
2013 PASSED IN MVC No.459/2011 ON THE FILE OF THE
ADDL. SENIOR CIVIL JUDGE AND MEMBER, ADDL. MACT,
BYADGI, AWARDING THE COMPENSATION OF RS.10,82,000/-
WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE
OF PETITION, TILL THE DATE OF REALIZATION.

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

                         JUDGMENT

The Insurer being aggrieved by the judgment and award

passed by the Addl. Senior Civil Judge and Addl. M.A.C.T., at

Byadagi, in M.VC 459/2011 has filed this appeal challenging the

finding regarding negligence as well as the quantum of

compensation.

2. On 11.02.2011, a boy named Imran Khan, aged 18

years supposedly employed as a mason and a bar bending

supervisor was traveling in an autotickshaw bearing registration

MFA No. 23515 of 2013

No.KA-27/A-1770. At about, 8.30 p.m., a tractor-trailer

bearing registration KA-25/T-7168 and 7169 which was driven

from the opposite direction dashed against the autorickshaw.

As a result, the said Imran Khan suffered serious injuries and

died at the spot. The claimant being the father of the said

Imran Khan filed a claim petition claiming compensation of

Rs.19 lakhs.

3. The claim petition was opposed by the driver and

the owner of the tractor-trailer as well as the Insurer of the

autorickshaw. The Insurer contended that the driver of the

autorickshaw was not negligent and had not contributed to the

accident and therefore, was not liable to indemnify the owner.

It is also contended that the charge-sheet was filed against the

driver of the tractor-trailer. The claimant was examined as PW-

1 and a witness was examined as PW-2 and they got marked

Ex.P.1 to Ex.P.9. The owner of the tractor-trailer was

examined as RW-1 and an official of the Insurer was examined

as RW-2 who marked EX.R.1 and Ex.R.2.

4. Based on the oral and documentary evidence, the

Tribunal held that the drivers of both the vehicles were guilty of

MFA No. 23515 of 2013

composite negligence. In so far as the loss of dependency is

concerned, the Tribunal considered the evidence of PW-2 who

deposed that the deceased was paid a sum of Rs.300/- per day

and held his income to be Rs.9,000/- p.m. and after deducting

half of his salary towards personal expenses, awarded the

following compensation:

Sl.No.                        Heads                   Amount
   1.         Towards loss of dependency          Rs. 9,72,000/-
   2.         Towards transportation of injured
              from spot of the accident to
              Byadagi Hospital there after to
              Burial Ground for funeral           Rs.   10,000/-
   3.         Towards funeral ceremony            Rs.   10,000/-
   4.         Towards death ceremonies            Rs.   15,000/-
   5.         Towards mental shock and agony
              for petitioners 1 to 4              Rs.   25,000/-
   6.         Towards loss of estate              Rs.   25,000/-
   7.         Towards loss of consortium to
              petitioners                         Rs. 25,000/-
                              Total               Rs. 10,82,000

5. It directed the respondent No.1 as well as the

respondents 3, 4 to pay 50% each out of the compensation

awarded. Being aggrieved by the same, the present appeal is

filed.

6. Learned counsel for the Insurer submitted that the

documents prepared by the police clearly indicate that the

MFA No. 23515 of 2013

autorickshaw was driven on the left hand side of the road and

therefore, the owner of the autorickshaw cannot be held guilty

of composite negligence. He submitted that the Tribunal

mechanically held that both the drivers were guilty of

composite negligence without considering the documents

prepared by the police which indicated that it was the driver of

the trailer-tractor who was guilty of negligence. He further

contended that in stark contrast to the records prepared by the

police, the respondent No.1 contended that at the time of the

accident, the tractor trailer was parked on the left side of the

road for filling diesel. He submitted that the Tribunal

committed an error in considering the income of the deceased

at a sum of Rs.9,000/- though the claimant himself mentioned

that the monthly income of the deceased was a sum of

Rs.8,000/-. He therefore prayed that the compensation

determined by the Tribunal as well as the liability imposed upon

the Insurer be set aside.

7. The learned counsel for the claimants on the other

hand contended that the deceased was a mason and a bar

bender supervisor and therefore, was a skilled worker. He

submitted that the evidence of PW-2 established that the

MFA No. 23515 of 2013

deceased was earning Rs.300 per day. He, therefore submitted

that the Tribunal having regard to the age of the deceased

must have factored the loss of future prospects which was not

done and therefore, prays that the award passed by the

Tribunal be left undisturbed. In so far as the liability fastened

on the Insurer of the autorickshaw, the learned counsel

contended that as per Ex.P.3 and Ex.P.4, it was clear that the

accident was due to head on collision between the two vehicles

and therefore, the Tribunal was right in fixing the liability on

both of them to pay compensation.

8. I have considered the submissions made by the

learned counsel for the parties.

9. The accident in question is not in dispute. It is also

not in dispute that the deceased died in the accident. Though,

the respondent No.1 and 5 claimed that the vehicle was

parked, the same is belied by the documents placed on record

which indicate that both the vehicles had collided against each

other. Thus, in the absence of any proof of evidence by the

drivers of both the vehicles, the Tribunal was justified in

MFA No. 23515 of 2013

holding that the drivers of both the vehicles were guilty of

composite negligence .

10. In so far as compensation is concerned, PW-2

deposed that the deceased was engaged by him on daily wage

basis and was paid Rs.300/- per day. The claimant himself

claimed that the deceased was earning Rs.8,000/- p.m. Having

regard to the fact that the deceased was a mason and a bar

bending supervisor, the notional income as fixed by the Legal

Services Authority cannot be made applicable to the deceased,

since he was a skilled worker. Therefore, the income of

Rs.8000/- p.m. could be considered for the purpose of

determining the loss of dependency. Since the Tribunal has not

considered the loss of future prospects, the compensation

awarded by the Tribunal cannot be termed to be just.

However, since there is no appeal filed by the claimant seeking

enhancement, it is inappropriate to do so in the appeal filed by

the Insurer.

11. Though the Tribunal has awarded a sum of

Rs.75,000/- towards mental shock and agony, loss of estate

and loss of consortium and Rs.35,000/- under the conventional

MFA No. 23515 of 2013

heads, this Court does not consider it appropriate to interfere

with the same, as the compensation awarded by the Tribunal

does not factor the loss of future prospects. Hence, this appeal

lacks merit and is dismissed.

The amount in deposit is ordered to be transferred to the

Tribunal for further orders.

(Sd/-) JUDGE

Jm/-