Karnataka High Court
Neminath S/O Bhimaray Pashetti vs Makthumasab S/O Sayyadasab Dadunnavar on 5 December, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC-D:14187
MFA No. 100001 of 2017
C/W MFA No. 100303 of 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.100001/2017(MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.100303/2017(MV-D)
IN MFA NO.100001/2017
BETWEEN:
1. SHRI NEMINATH S/O. BHIMARAY PASHETTI,
AGE: 54 YEARS, OCC: TEACHER,
R/O: CHUNCHAVAD VILLAGE,
TAL: KHANAPUR, DIST: BELAGAVI - 591 302.
2. SMT. SUNANDA W/O. NEMINATH PASHETTI,
AGE: 46 YEARS, OCC: HOUSEWIFE,
R/O: CHUNCHAVAD VILLAGE,
TAL: KHANAPUR, DIST: BELAGAVI-591302.
...APPELLANTS
(BY SRI HARISH S. MAIGUR, ADVOCATE)
AND:
Digitally 1. MR. MAKTHUMASAB S/O. SAYYADASAB
signed by
SUJATA DADUNNAVAR, AGE: MAJOR, OCC: BUSINESS,
SUBHASH R/O: AT NEW LINGANAMATH, POST: LINGANMATH,
PAMMAR
TQ: KHANAPUR, DIST: BELAGAVI-591 305.
2. THE DIVISIONAL MANAGER, NATIONAL
INSURANCE CO. LTD., HAVING ITS DIVISIONAL
OFFICE AT, 2ND FLOOR, PRABHU BUILDING,
1732, RAMDEV GALLI, BELAGAVI - 590 002.
...RESPONDENTS
(BY SRI RAJESH B. RAJANAL, ADVOCATE FOR R2;
R1 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, PRAYING TO ENHANCE THE COMPENSATION
BY MODIFYING THE JUDGMENT AND AWARD PASSED IN MVC
NO.500/2016, ON THE FILE OF THE IX ADDITIONAL DISTRICT AND
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MFA No. 100001 of 2017
C/W MFA No. 100303 of 2017
SESSIONS JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, BELAGAVI DATED 04.11.2016 BY ALLOWING THIS
APPEAL WITH COSTS.
IN MFA NO.100303/2017
BETWEEN:
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LTD.,
HAVING ITS DIVISIONAL OFFICE AT, 2ND FLOOR,
PRABHU BUILDING, 1732, RAMDEV GALLI, BELAGAVI,
NOW REPRESENTED BY ITS ADMINISTRATIVE OFFICER,
REGIONAL OFFICE, ARIHANT PLAZA,
KUSUGAL ROAD, HUBBALLI - 580 029.
...APPELLANT
(BY SRI HARISH S. MAIGUR, ADVOCATE)
AND:
1. SHRI NEMINATH S/O. BHIMARAY PASHETTI,
AGE: 54 YEARS, OCC: TEACHER,
R/O: CHUNCHAVAD VILLAGE,
TAL: KHANAPUR, DIST: BELAGAVI - 591 302.
2. SMT. SUNANDA W/O. NEMINATH PASHETTI,
AGE: 46 YEARS, OCC: HOUSEWIFE,
R/O: CHUNCHAVAD VILLAGE,
TAL: KHANAPUR, DIST: BELAGAVI - 591302.
3. SHRI MAKTHUMASAB
S/O. SAYYADASAB DADUNNAVAR,
AGE: MAJOR, OCC: BUSINESS,
R/O: AT NEW LINGANAMATH, POST: LINGANMATH,
TQ: KHANAPUR, DIST: BELAGAVI-591 305.
(OWNER OF BAJAJ DISCOVER MOTOR CYCLE NO.
KA-22/EK-6153)
...RESPONDENTS
(BY SRI HARISH S. MAIGUR, ADVOCATE FOR R1 AND R2;
R3 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, PRAYING TO SETTING ASIDE THE JUDGMENT
AND AWARD 04.11.2016 PASSED BY THE IX ADDITIONAL DISTRICT
AND SESSIONS JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, BELAGAVI IN MVC NO.500/2016 AND ETC.,
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MFA No. 100001 of 2017
C/W MFA No. 100303 of 2017
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.100001/2017 is filed by the claimants
seeking enhancement of compensation.
2. MFA No.100303/2017 is filed by the insurance
company praying to hold the deceased has contributed
negligence more than what the tribunal has held.
3. Heard the arguments and perused the material
placed on record.
4. In this case, the factum of accident, death of
deceased in the said accident and coverage of insurance
are not in dispute. The only disputed fact is that whether
the deceased has also contributed rashness and
negligence to the accident or not.
5. In the present case, the accident is between the
two motorcycles. The deceased was riding his motorcycle
No.KA-22/EN-2695 from Alnavar to Kadabagatti cross
along with his mother and pillion rider. When the deceased
reached near Dharwad-Alnavar Road, near Gunjikar Petrol
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bunk at that time, the driver of Bajaj Discover Motorcycle
No.KA-22/EK-6153 came from Kadabagatti towards
Alnavar and dashed the motorcycle. Therefore, this is the
head on collusion. The tribunal has apportioned rashness
and negligence between the deceased and other rider as
20:80 respectively, on the reason that the deceased was
not holding driving license. Therefore, he has contributed
negligence. Accordingly, held that deceased has
contributed 20% of rashness and negligence to the
accident. This finding is to be reconsidered by appreciating
the evidence on record. Ex.P.3-Spot Panchanama, Ex.P.4
is the Rough Sketch of the scene of the accident.
Complaint is lodged and FIR registered against rider of the
Bajaj Discover Motorcycle No.KA-22/EK-6153. Upon
perusing spot mahazar and spot sketch, the width of the
road is 22 feet leading from Alnavar to Kadabagatti. The
deceased was riding his motorcycle from AlnaVar to
Kadabagatti. The rider of the Bajaj Discover Motorcycle
was riding from Kadabagatti cross to Alnavar that is
opposite to the deceased motorcycle. The place of accident
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is shown 8 feet away from Western edge of the road.
Therefore, the spot sketch proves that the deceased was
on his correct side that is on the left side of the road
leading from Alnavar to Kadabagatti. But the rider of the
Bajaj Discover Motorcycle by coming opposite direction to
the deceased has come to the extreme wrong side of the
road and hit the deceased motorcycle. Therefore, these
documents proved that the deceased was on its correct
side and has not contributed any negligence and rashness
while riding the motorcycle, whereas the rider of the Bajaj
Discover Motorcycle coming opposite to the deceased had
driven the motorcycle to the extreme wrong side hit the
deceased. Therefore, the rider of the Bajaj Discover
Motorcycle was completely rash and negligent in causing
the accident. Just because the deceased was not holding
the driving licence that cannot be said that the deceased
has also contributed negligence and rashness. The aspect
of rashness and negligence is to be appreciated on the
base that on which directions the motorcycles were
moving and at which place the riders of the motorcycles
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were on the road and who has deviated his lane discipline
are the factors deciding rashness and negligence aspect.
Non holding of the driving licence presumes that whether
rider/driver may have skills or not. This is only
presumption. The presumption is not evidence. Therefore,
as discussed above non-holding of driving licence may be
factor for taking penal action but that cannot decides
rashness and negligence. The rashness and negligence
aspect can be considered on the principle of res ipsa
loquitur (thing speaks itself) at the date and time of
occurrence of the accident. Therefore, in this regard, the
tribunal has committed error. Hence, apportionment of
rashness and negligence made by the tribunal is liable to
be set aside. Accordingly, it is held that the rider of Bajaj
Discover Motorcycle No.KA-22/EK-6153 is completely
rashness and negligent in causing accident.
6. The deceased was aged 24 years old at the
time of the accident. The accident is of the year 2015.
Hence notional income is to be taken at Rs.8,000/- per
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month as recognized by the Karnataka State Legal
Services Authority. In view of the decision of the Hon'ble
Apex Court in case of National Insurance Company
Limited vs. Pranay Sethi and others, reported in
(2017) 16 Supreme Court Cases 680, 40% of the
income is to be added towards loss of future prospects in
life. There are totally two legal heirs. The claimants are
parents of deceased. The deceased was a bachelor, 50%
of his income is deducted towards his personal and living
expenses. Considering the age of the deceased, the
appropriate applicable multiplier is 18. Therefore loss of
dependency is re-assessed and quantified at
Rs.12,09,600/- (Rs.8,000 + 40% minus 50% x 12 x 18).
7. In view of the decision of the Hon'ble Supreme
Court in the case of Magma General Insurance Co.
Limited v. Nanu Ram & Others, reported in 2018 ACJ
2782 and in the case of Pranay Sethi supra, the
claimants are entitled to Rs.40,000/- each under the head
'loss of consortium', along with 10% escalation.
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Accordingly, Rs.88,000/- (Rs.40,000 x 2 + 10%) is
awarded under the head 'loss of consortium including loss
of love and affection'.
8. Further, a compensation of Rs.15,000/- each is
awarded under the head 'loss of estate' and 'funeral and
transportation' respectively, along with 10% escalation.
Therefore under these heads Rs.33,000/- (Rs.15,000 x 2
+ 10%) is awarded.
9. Thus, the claimants would be entitled for
compensation under various heads as under:
Sl. Heads. Amount in
No. (Rs.)
1. Towards loss of dependency 12,09,600
(Rs.8,000 + 40% minus 50% x
12 x 18)
2. Towards loss of consortium 88,000
(40,000 x 2 +10%)
3. Towards loss of estate and 33,000
transportation of dead body &
funeral expenses.
(15,000 x 2 + 10%)
Total: 13,30,600
Less: Compensation awarded by 6,80,800
tribunal:
Enhanced compensation: 6,49,800
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10. Therefore, the claimants are entitled for
compensation of Rs.13,30,600/- as against what has been
awarded by the tribunal along with interest at the rate of
6% p.a. from the date of filing of the petition till
realization. The insurance company is directed to deposit
the enhanced compensation within eight weeks from the
date of receipt of a certified copy of this judgment.
11. In the result, I proceed to pass the following:
ORDER
i) MFA No.100001/2017 filed by the
claimants is allowed in part.
ii) MFA No.100303/2017 filed by the
insurance company is dismissed.
iii) The judgment and award passed in MVC
No.500/2016, dated 04.11.2016, passed
by the learned IX Additional District and
Sessions Judge and Additional MACT,
Belagavi, stands modified.
iv) The claimants are entitled for
compensation of Rs.13,30,600/- along with
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interest at the rate of 6% p.a. from the
date of petition till its realization.
v) The insurance company shall deposit the
amount within a period of eight weeks
from the date of receipt of a copy of this
judgment.
vi) No order as to costs.
vii) Draw award accordingly.
SD/-
JUDGE
SSP
CT-ASC
