Karnataka High Court
The Divisional Manager, Oriental vs Harifa Begum And Ors on 7 December, 2023
Author: R.Devdas
Bench: R.Devdas
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MFA No. 200019 of 2019
C/W MFA No. 200628 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE C M JOSHI
MISCL. FIRST APPEAL NO. 200019 OF 2019 (MV-D)
C/W
MISCL. FIRST APPEAL NO. 200628 OF 2018
MISCL. FIRST APPEAL NO. 200019 OF 2019 (MV-D)
BETWEEN:
1. HARIFA BEGUM W/O LATE BUDDESAB @
RAJMOHAMMED,
AGE: 38 YEARS, OCC: HOUSEHOLD.
2. MUKTUMBI W/O MAMMASAB,
AGE: 88 YEARS, OCC: NIL,
Digitally signed by
SOMANATH
PENTAPPA MITTE BOTH ARE R/AT RAMPUR,
Location: HIGH TQ: SHORAPUR, DIST: YADGIR,
COURT OF
KARNATAKA NOW R/AT NANDUR (K) VILLAGE,
TQ: & DIST: KALABURAGI-585105.
...APPELLANTS
(BY SRI. B. C. JAKA, ADVOCATE)
AND:
1. HUSSAIN BHASYA PATAN S/O ISMAILSAB,
AGE: 53 YEARS, OCC: OWNER OF LEYLAND LORRY
BEARING ITS REG. NO. KA-28/B-4875,
R/AT HYDER COLONY, NEAR BAGAYAT GALLI,
M. ROAD, VIJAYAPUR-586101.
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MFA No. 200019 of 2019
C/W MFA No. 200628 of 2018
2. THE DIVISIONAL MANAGER,
ORIENTAL INSURANCE CO. LTD., VIJAYAPRA,
THROUGH ITS DIVISIONAL OFFICE,
ORIENTAL INSURANCE CO. LTD., KALABURAGI,
OPP. MINI VIDHANA SOUDHA,
KALABURAGI-585102.
...RESPONDENTS
(BY SRI. SANJAY H. JOSHI, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO ALLOW THE APPEAL BY MODIFYING THE
IMPUGNED JUDGMENT AND AWARD DATED 02.11.2017
PASSED BY THE III ADDL.SENIOR CIVIL JUDGE AND MACT AT
KALABURAGI IN MVC NO.1062/2015 AND CONSEQUENTLY BE
PLEASED TO ENHANCE THE COMPENSATION OF
RS.39,84,900/- WITH INTEREST @12% PER ANNUM FROM
THE DATE OF PETITION TILL ACTUAL REALIZATION.
MISCL. FIRST APPEAL NO. 200628 OF 2018
BETWEEN:
1. THE DIVISIONAL MANAGER,
ORIENTAL INSURANCE CO. LTD.,
VIJAYAPRA, NOW REPRESENTED BY
THE ORIENTAL INSURANCE CO. LTD.
THE DIVISIONAL MANAGER,
N.G.COMPLEX, 1ST FLOOR,
OPP: MINI VIDHAN SOUDHA,
MAIN ROAD, KALABURAGI-585102.
...APPELLANT
(BY SRI. SANJAY H. JOSHI, ADVOCATE)
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MFA No. 200019 of 2019
C/W MFA No. 200628 of 2018
AND:
1. HARIFA BEGUM
W/O LATE BUDDESAB @ RAJMOHAMMED,
AGE: 38 YEARS, OCC: HOUSEHOLD.
R/O RAMPUR, TALUKA SHORAPUR,
DIST: YADGIRI-585201.
2. MULTUMBI W/O MAMMASAB,
AGE: 88 YEARS, OCC: NIL,
R/O RAMPUR, TALUKA SHORAPUR,
DIST: YADGIR-585201.
BOTH ARE RESIDING AT NANDUR (K) VILLAGE,
TQ: & DIST: KALABURAGI-585105
3. HUSSAIN BHASYA PATAN
S/O ISMAILSAB,
AGE: 53 YEARS, OCC: OWNER OF LORRY,
LEYLAND LORRY BEARING NO. KA-28/B-4875,
R/AT HYDER COLONY, NEAR BAGAYAT GALLI,
M. ROAD, VIJAYAPUR-586101.
...RESPONDENTS
(BY SRI. B.C. JAKA, ADVOCATE FOR R1 & R2;
R3 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO CALL FOR THE ENTIRE RECORDS OF IN
JUDGEMENT AND AWARD DATED: 02.11.2017, PASSED BY THE
III ADDITIONAL SENIOR CIVIL JUDGE AND MACT AT
KALABURGI IN MVC NO. 1062/2015, IN REGARD TO THE
ENTIRE LIABILITY OF RS. 10,15,100/- WITH INTEREST OF 6%
PER ANNUM BEING FIXED UPON THE APPELLANT AND SET
ASIDE AND REDUCE THE SAME.
THESE APPEALS ARE, COMING ON FOR ADMISSION, THIS
DAY, C.M. JOSHI., DELIVERED THE FOLLOWING:
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MFA No. 200019 of 2019
C/W MFA No. 200628 of 2018
JUDGMENT
Being aggrieved by the judgment in
MVC.No.1062/2015 dated 02.11.2017 by learned III
Additional Senior Civil Judge & MACT, Kalaburagi, whereby
the petition came to be partly allowed, the claimants are in
appeal in MFA No.200019/2019 and the respondent-
Insurance Company is in appeal in MFA No.200628/2018.
2. The parties are referred to as per their rank
before the Tribunal for the sake of convenience.
3. The petitioners are wife and mother of
deceased Buddesab @ Rajmohammed who succumbed to
the injuries sustained in road traffic accident dated
17.05.2015 involving the motorcycle bearing No.KA-28/S-
2220 and the Lorry bearing No.KA-28/B-4875 near Janata
Colony, Kalaburagi. It was contended that when the
deceased Buddesab @ Rajmohammed was a pillion rider of
the motorcycle, the lorry came from back side in high
speed in negligent manner and dashed to the motorcycle
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resulting in injuries and he succumbed to the injuries at
the spot. The petitioner contended that deceased was
working as Head cook in Dhaba of the rider of the
motorcycle and was earning Rs.20,000/- per month. It is
contended that the respondent No.1 being the owner and
respondent No.2 being the insurer of the Lorry, are liable
to pay the compensation to the petitioners.
4. On being issued with the notice by the Tribunal,
respondent No.1 and 2 appeared and filed their objection
statements. Both of them disputed the age, occupation
and income of the deceased and contended that the
compensation claimed is highly exorbitant imaginary and
untenable. The respondent No.1 contended that the driver
of the lorry possessed a valid and effective driving licence
as on the date of the accident and the Lorry was covered
by a valid insurance policy.
5. The respondent No.2 contended that three
persons were proceeding on the motorcycle bearing
Reg.No.KA-28/S-2220 and while the rider overtook the
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Lorry, the accident occurred and as such there was
negligence on the part of the rider also. Hence, they
contended that the owner and insurer of the motorcycle
are also necessary parties to the petition. Inter-alia, it
was alleged that the rider of the motorcycle was not
having a driving licence and as such charge sheet was filed
against the rider of the motorcycle also. The insurance
company has also contended that there were violations of
the terms and conditions of the policy issued in favour of
the Lorry owner.
6. On the basis of the above contentions, the
Tribunal framed appropriate issues and the petitioner No.2
was examined as PW1 and Ex.P1 to Ex.P7 were marked.
A witness was examined as PW2. Respondents have
neither examined any witness nor produced any
documentary evidence.
7. After the hearing the arguments, the Tribunal
held that the respondent No.2 is liable to pay the
compensation of Rs.10,15,100/- to the petitioners.
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8. Being aggrieved by the said judgment, the
petitioners have approached this court contending that the
compensation awarded is meager, inadequate and needs
to be reassessed. The insurance company has approached
this Court in appeal contending that the Tribunal has not
appreciated about the contributory negligence of the rider
of the motorcycle and that the owner and insurer of the
motorcycle were also necessary parties to the petitions.
9. In both the appeals were noticed to the
respondent No.1-owner of the Lorry was dispensed with.
10. The Trial Court records have been secured and
the arguments by both the sides were heard.
11. The learned counsel appearing for the insurance
company in MFA No.200628/2018 contended that the
motorcycle on which the deceased was traveling was
driven in a rash and negligent manner and as such charge
sheet was laid against him also. There were two pillion
riders on the motorcycle and therefore the contributory
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negligence should have been considered by the Tribunal.
Regarding the quantum of the compensation, he has
defended the conclusions reached by the Tribunal and
sought for dismissal of the appeal by the petitions.
12. Per contra, the learned counsel appearing for
the claimants contended that the Tribunal erred in
assessing the income of the deceased and adequate
compensation was not assessed by it. He contends that it
is a case of composite negligence and the deceased had no
role to play in the actionable negligence in commission of
the accident. Therefore, there was no need for arraying
the owner and insurer of the motorcycle as party to the
petition.
13. Evidently, the fact that the accident occurred
involving the lorry and the motorcycle and the death of the
deceased Buddesab @ Rajmohammed in the said accident
is not in dispute. So also the fact that the deceased was
one of the pillion riders of the motorcycle is not in dispute.
Hence, it is clear that the deceased had no role to play in
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the actionable negligence resulting in the accident. The
full bench decision of this Court in the case of Ganesh Vs.
Sayed Munned Ahmed1 and in the case of K.S.R.T.C. Vs.
Arun @ Arvind and others2 emphatically lay down that, in
case of composite negligence, claimant is at liberty to
claim compensation against any one of the tortfeasors.
Both these decisions are reiterated and confirmed by the
Apex Court in Khenyei Vs. New India Assurance Co. ltd.
and others3, wherein it was held as below:
22. What emerges from the aforesaid
discussion is as follows:
22.1. In the case of composite negligence, the
plaintiff/claimant is entitled to sue both or any
one of the joint tortfeasors and to recover the
entire compensation as liability of joint tortfeasors
is joint and several.
22.2. In the case of composite negligence,
apportionment of compensation between two
tortfeasors vis-à-vis the plaintiff/claimant is not
permissible. He can recover at his option whole
damages from any of them.
22.3. In case all the joint tortfeasors have
been impleaded and evidence is sufficient, it is
open to the court/Tribunal to determine inter se
extent of composite negligence of the drivers.
However, determination of the extent of
ILR.1999.Kar.403
AIR.2004.Kar.26
(2015)9 SCC 273
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negligence between the joint tortfeasors is only
for the purpose of their inter se liability so that
one may recover the sum from the other after
making whole of the payment to the
plaintiff/claimant to the extent it has satisfied the
liability of the other. In case both of them have
been impleaded and the apportionment/extent of
their negligence has been determined by the
court/Tribunal, in the main case one joint
tortfeasor can recover the amount from the other
in the execution proceedings.
22.4. It would not be appropriate for the
court/Tribunal to determine the extent of
composite negligence of the drivers of two
vehicles in the absence of impleadment of other
joint tortfeasors. In such a case, impleaded joint
tortfeasor should be left, in case he so desires, to
sue the other joint tortfeasor in independent
proceedings after passing of the decree or
award."
14. In view of the above decisions, the petitioners
were not required to array the owner and insurer of the
motorcycle as party as they were at liberty to claim the
compensation against any one of the tortfeasors. If at all
the respondent No.1 and 2 claimed that there was
contributory negligence, nothing prevented them from
invoking the provisions of Order 1 Rule 10 of CPC. In that
view of the matter, the appeal filed by the insurance
company is devoid of any merits and as such it has to be
dismissed.
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15. Coming to the quantum of the compensation
amount, the Tribunal has awarded the compensation
under the head of loss of dependency by taking the
notional income of the deceased at Rs.7,000/- per month.
The petitioner did not prove the income of the deceased
Buddesab to be Rs.20,000/- per month. Though PW2-the
owner of the Dhaba was examined, there was no
acceptable cogent evidence to prove the salary paid by
him to the deceased. Therefore, the Tribunal was justified
in holding that the notional income has to be considered.
16. The guidelines issued by the KSLSA for
settlement of the disputes before Lok-Adalath prescribed a
notional income of Rs.8,000/- per month for the year
2015. In umpteen numbers of decisions, this Court has
held that the guidelines issued by KSLSA are in general
conformity with the wages fixed under the Minimum
Wages Act. Therefore, the notional income has to be
considered at Rs.8,000/- per month. The fact that the
deceased was aged 40 years and that the petitioners were
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the only dependents is not in dispute. By adding 25% of
the notional income as future prospects, the effective
multiplicand would be Rs.10,000/-. Therefore, the loss of
dependency is calculated as Rs.10,000/- x 12 x 15 x 2/3 =
Rs.12,00,000/-, by adopting personal expenses at 1/3 rd of
the income.
17. In view of the decision of the Apex Court in the
case of Pranay Sethi, petitioners are also entitled for a
sum of Rs.40,000/- under loss of consortium, a sum of
Rs.15,000/- each under the head of funeral expenses and
loss of estate. By adding 10% at every interval of three
years, they are entitled for Rs.48,400/-, Rs.18,150/- and
Rs.18,150/- under the above conventional heads. Hence,
the petitioners are entitled for compensation of
Rs.12,84,700/- under the different heads are as below:
1 Loss of dependency Rs.12,00,000/-
2 Loss of consortium Rs.48,400/-
3 Funeral expenses Rs.18,150/-
4. Loss of estate Rs.18,150/-
Total Rs.12,84,700/-
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18. In the result, the appeal filed by the petitioners
deserves to be allowed in part. Hence, the following:
ORDER
i) Appeal filed by the insurance company
in MFA No.200628/2018 is dismissed.
ii) The appeal filed by the petitioners in
MFA No.200019/2019 is allowed in
part.
iii) The petitioners are entitled for a sum
of Rs.2,69,600/- in addition to the
compensation awarded by the Tribunal
along with interest at the rate of 6%
per annum from the date of petition till
its deposit before the Tribunal.
iv) The respondent No.2-insurance
company is directed to deposit the
compensation within a period of six
weeks from the date of judgment.
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v) The other terms and conditions
regarding apportionment and fixed
deposit as ordered by the Tribunal
remain unaltered.
Sd/-
JUDGE
Sd/-
JUDGE
SMP
