Karnataka High Court
The Oriental Insurance Co., Ltd vs Savitri W/O Venktesh Ramadurga on 17 November, 2023
Bench: S.Sunil Dutt Yadav, Vijaykumar A.Patil
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 17th DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO.100984/2017
C/W
MISCELLANEOUS FIRST APPEAL NO.101170/2017
IN MFA NO. 100984/2017
BETWEEN
1. BASANGOUDA S/O. HANAMANTAGOUDA SANNAGOUDRA
AGE: 52 YEARS, OCC: PVT. SERVICE,
R/O: ANCHATAGERI, TQ: HUBBALLI.
2. SMT. SAVAKKA W/O. BASANGOUDA SANNAGOUDRA
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O: ANCHATAGERI, TQ: HUBBALLI.
SHIVAKUMAR
HIREMATH ...APPELLANTS
Digitally signed by (BY SRI. C. S. NAGASHETTI, ADVOCATE)
SHIVAKUMAR
HIREMATH
Date: 2023.11.21
11:36:57 +0530
AND
1. MOHAMMADALI S/O. KHULAHISAB,
AGE: MAJOR, OCC: OWNER OF LORRY,
R/O: VEGETABLE MARKET ROAD,
HIRIYUR, TQ: HIRIYUR,
DIST: CHITRADURGA-577598.
2
2. RELIANCE GENERAL INSURANCE COMPANY LTD,
BY ITS DIVISIONAL MANAGER,
V. A. KALBURGI SQUARE, DESAI CROSS,
DESHPANDE NAGAR, HUBBALLI.
3. DIVINE MARKETING ASSOCIATES
NO.504, BULLA COMPOUND,
LAMINGTON ROAD, HUBLI.
4. THE ORIENTAL INSURANCE COMPANY LIMITED,
BY ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE, ENKAY COMPLEX,
KESHWAPUR, HUBLI.
5. NATIONAL INSURANCE CO. LTD,
THE DIVISIONAL MANAGER,
ARIHANT PLAZA, KUSUGAL ROAD,
KESHWAPUR, HUBLI.
...RESPONDENTS
(BY SRI. U. G. KATTIMANI, ADV. FOR R1,
SRI. SURESH S. GUNDI, ADV. FOR R2,
SRI. SHIVAKUMAR R. AMBLI, ADV. FOR R3,
SRI. RAJASHEKHAR S. ARANI, ADV. FOR R4,
SRI. GANGADHAR S. HOSAKERI, ADV. FOR R5)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLE ACT,
AGAINST THE JUDGMENT AND AWARD DATED 30.11.2016
PASSED IN MVC NO.726/2015 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, HUBBALLI, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA NO. 101170/2017.
BETWEEN
1. THE ORIENTAL INSURANCE COMPANY LTD.,
ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE,
ENKAY COMPLEX, KESHWAPUR HUBBALLI,
3
NOW REPRESENTED BY ITS DEPUTY MANAGER,
REGIONAL OFFICE, HUBBALLI.
...APPELLANT
(BY SRI. RAJASHEKHAR S. ARANI, ADVOCATE)
AND
1. SRI. BASANAGOUDA S/O. HANAMANTAGOUDA
SANNAGOUDRA,
AGE: 52 YEARS, OCC: PRIVATE SERVICE,
R/O: ANCHATGERI, TQ: HUBBALLI.
2. SMT. SAVAKKA W/O. BASANAGOUDA SANNAGOUDRA
AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
R/O: ANCHATGERI, TQ: HUBBALLI.
3. MOHAMMADALI S/O. KHULAHISAB
AGE: MAJOR, OCC: OWNER OF LORRY NO.KA-04/1629,
R/O: VEGETABLE MARKET ROAD, HIRIYUR,
TQ: HIRIYUR, DIST: CHITRADURGA.
4. RELIANCE GENERAL INSURANCE CO. LTD,
A KALBURGI SQUARE, DESAI CROSS,
DESHPANDE NAGAR, HUBBALLI,
BY ITS REPRESENTED BY DIVISIONAL MANAGER.
5. DIVINE MARKETING ASSOCIATES,
NO.504, BULLA COMPOUND, LAMINGTON
ROAD, HUBBALLI.
6. NATIONAL INSURANCE CO. LTD,
BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE,
ARIHANT PLAZA, KUSUGAL ROAD,
KESHWAPUR, HUBBALLI.
...RESPONDENTS
(BY SRI. C. S. NAGASHETTI, ADV. FOR R1 & R2,
SRI. SURESH S. GUNDI, ADV. FOR 4,
SRI. SHIVAKUMAR R. AMBLI, ADV. FOR R5,
SRI. GANGADHAR S. HOSAKERI, ADV. FOR R6,
NOTICE TO R3 SERVED)
4
THIS MFA IS FILED U/S. 173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 30.11.2016
PASSED IN MVC NO.726/2015 ON THE FILE OF THE PRL. SENIOR
CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, HUBLI, AWARDING COMPENSATION OF RS.
4,31,000/- WITH INTEREST AT 8% P.A. FROM THE DATE OF
PETITION TILL ITS REALIZATION.
THESE APPEALS HAVING BEEN HEARD, RESERVED ON
08.11.2023 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT VIJAYKUMAR A PATIL, J., PRONOUNCED THE
FOLLOWING:
JUDGMENT
MFA No.100984/2017 is filed by the appellants-
claimants, who are the father and mother of deceased
Hanamantagouda, seeking for enhancement of
compensation. MFA No.101170/2017 is filed by the
appellant-Insurance Company challenging the liability as well
as the quantum of compensation awarded in the Judgment
and award dated 30.11.2016 in MVC No.726/2015 by the
Principal Senior Civil Judge and Addl. MACT, Hubli,
(hereinafter referred to as 'the Tribunal').
2. Brief facts giving rise to filing of these appeals are
that the legal heirs of the deceased Hanamantagouda have
filed a claim petition seeking compensation before the
Tribunal. It is averred that, deceased Hanamantagouda was
proceeding on his motorcycle bearing registration No.KA-
25/TA-3548 from Hubli to Anchatageri on Hubli-Karwar road,
at that time, he was going behind TATA 407 vehicle bearing
registration No.KA-25/7809 driven by its driver in a rash and
negligent manner and dashed rear of the stationed lorry
bearing registration No.KA-40/1629 and impact of the said
collision, the deceased who was riding the motorcycle behind
the TATA 407 vehicle could not control his motorcycle
resulted in colliding with the ongoing TATA 407 vehicle,
which resulted in death of the rider Sri. Hanamantappa. It is
submitted that, the accident has caused due to the rash and
negligent driving of the TATA 407 vehicle and the deceased
was hale and healthy, was a plumber and was earning
Rs.30,000/- per month from his avocation and due to the
sudden death the claimants have suffered financially and
mentally as they were dependent on the deceased.
3. The respondent No.1 is the owner of the stationed
lorry, respondent No.2 Insurer of the said lorry and the
respondent No.3 is the owner of TATA 407 vehicle and the
respondent No.4 is insurer of the said TATA 407 vehicle and
respondent No.5 is insurer of motorcycle. The respondent
No.1 has remained absent. The respondent Nos.2, 4 and 5
have filed objections denied the place, date, time and nature
of the accident and it is averred that, due to the negligence
on the part of the driver of the motorcycle, the accident has
happened. It is averred that, the owners of the respective
vehicle involved in the accident have failed to intimate about
the accident and also failed to furnish the relevant
documents. Hence, the owners are liable to pay the
compensation and not the Insurance company. It is further
averred that, the drivers of the respective vehicle were not
having a valid and effective driving licence on the date of
accident, hence, they have denied the liability. The
respondent No.2-Insurance company contended that, the
lorry was parked on the extreme left side of the road and no
charge-sheet is filed against the driver of the stationed lorry.
Hence, they are not liable to pay compensation as they have
contributed to the accident in question. The respondent No.5
the Insurer of the motorcycle of the deceased has averred
that, the driver of the TATA 407 was driven in rash and
negligent manner and has caused the accident in question.
The respondent No.3 has denied the liability, income and
avocation of the deceased and averred that, his vehicle TATA
407 has a valid Insurance policy. The tribunal has framed
the issues, recorded the evidence. The appellant-claimants
examined himself as P.W.1 and got marked Ex.P.1 to Ex.P.9.
The respondent examined R.W.1 to R.W.4 and got marked
Ex.R1 to Ex.R8. The tribunal has awarded the compensation
of Rs.4,31,000/- with interest at the rate of 8%. The tribunal
has fastened the liability of 50% on the TATA 407 vehicle
bearing registration No.KA-25/C-7809 insured with the
respondent No.4 and 50% on the deceased.
4. Sri. C.S.Nagashetty, learned counsel for the
appellant-claimants submits that, the tribunal has committed
an error in fastening 50% liability on the deceased, holding
that the deceased has contributed 50% to the accident in
question. It is submitted that, the tribunal has committed an
error in assessing the income of the deceased at Rs.3,000/-
as the deceased was working as plumber and was earning
Rs.30,000/- per month. It is submitted that the tribunal has
committed an error in not awarding any compensation under
the head of loss of future prospects and also committed an
error in not awarding any compensation under the head of
loss of consortium. He seeks to allow the appeal filed by the
claimants by enhancing the compensation.
5. Per contra, Sri. Rajashekhar S. Arani, learned
counsel appearing for the appellant-Insurance company
submits that, the tribunal has committed an error in holding
that the driver of the TATA 407 was negligent and has
contributed to the accident and fastened liability of 50% on
the appellant-Insurance company. It is submitted that, the
driver of the stationed lorry bearing No.KA-40/1629 was also
negligent as he has parked the vehicle on the road without
any indication or switching on the indicators. Hence, the
tribunal ought to have fastened certain extent of liability on
the driver of the stationed lorry. He seeks to modify the
impugned Judgment and award by fastening the liability on
the stationed lorry also. To substantiate the said submission,
learned counsel refers to the evidence and cross-
examination of R.W.2, who is the Investigating Officer has
deposed that, the lorry was parked on the right side of the
road and submits that the driver of stationed lorry is also
liable for the accident in question. It is submitted that, the
tribunal considering the evidence on record has awarded just
and proper compensation on all the heads, and the same
does not call for any enhancement in the appeal filed by the
claimants. He seeks to allow the appeal filed by the
Insurance company by dismissing the appeal of the
claimants.
6. Having heard the learned counsel for the
appellants/claimants, learned counsel for the appellant-
Insurance company, perused the appeal memorandums and
tribunal records, the point that arises for consideration in
these appeals are;
(a) Whether the tribunal was justified in fixing the
liability on the appellant-Insurance company at 50%?
(b) Whether the appellant-claimants are entitled for
the enhancement of compensation?
7. The answer to the above points are in the
affirmative for the following reason:
(a) The parties to the proceeding do not dispute that,
Sri. Hanamantagouda has died in the road accident dated
05.05.2015 and it is also not in dispute that, the deceased
was riding motorcycle bearing No.KA-25/TA-3548 and it is
also not in dispute that, the said motorcycle dashed to TATA
407 vehicle bearing No.KA-25/C-7809. It is also not in
dispute that, TATA 407 vehicle bearing No.KA-25/C-7809
has dashed to the stationed lorry bearing registration No.KA-
40/1629. It is not in dispute that, all these three vehicles
have been insured with the Insurance companies who are
the respondents before the tribunal. The contention of the
appellant-Insurance company that, the driver of KA-40/1629
was negligent in parking his lorry on the road without any
indication or switching on the indicators and has contributed
to the accident in question. On close scrutiny of the evidence
on record, it is evident that, the investigating officer after
completion of investigation had filed charge-sheet only
against the deceased Hanumantagouda and the driver of
TATA 407 vehicle and no charge-sheet is filed against the
driver of the stationed lorry. Merely a stray sentence in the
evidence of R.W.1 that the lorry was parked on the right side
of the road cannot be the basis to come to the conclusion
that, the driver of the stationed lorry was negligent and has
contributed to the accident in question. On close perusal of
the sketch at Ex.P.6 would clearly demonstrate that the lorry
was parked on the extreme left side of the road and based
on the collected evidence the investigation officer has filed
the charge-sheet against the deceased as well as the driver
of the TATA 407. Hence, no evidence is available on record
to come to a conclusion that the driver of the stationed lorry
has contributed to the accident in question. Admittedly, The
Insurance company admittedly has not adduced the
evidence of driver of TATA 407 vehicle to substantiate their
contention. In the absence of any cogent and acceptable
evidence that the driver of stationed lorry was negligent, this
Court is of the considered view that the reasoning adopted
by the tribunal while fastening the liability of the appellant
Insurance company to 50% is based on the evidence
available before it and such reasoning is neither perverse nor
contrary to the evidence on record calling for any
interference in this appeal. Insofar as contention of the
claimant that the tribunal has committed an error in
fastening 50% of contributory negligence on the deceased,
said contention has no merit. On perusal of the charge-sheet
and other evidence on record, clearly demonstrates that the
deceased was just behind TATA 407 lorry and was negligent
in riding the motorcycle. Hence, this Court does not find any
reason to modify the contributory negligence fastened on the
deceased.
(b) The tribunal has assessed the income of the
deceased at Rs.3,000/- per month and determined the
compensation. The appellant-claimants have contended that,
the deceased was working as a Plumber and was earning
Rs.30,000/- per month, however, no material were placed
before the tribunal to substantiate the said contention. This
Court and Lok Adalaths normally rely on the notional income
chart prepared by the Karnataka State Legal Service
Authority to assess the income in the road accident cases, in
the absence of any evidence on record. In the instant case,
the accident is of the year 2015 placing reliance on the
aforesaid chart, this Court assesses the notional income of
the deceased at Rs.8,000/-.
(c) The tribunal has committed an error in applying
17 multiplier. Keeping in mind the enunciation of law laid
down by the Hon'ble Supreme Court in the case Sarala
Verma and others Vs. Delhi Transport Corporation
Limited and another, reported in (2009) 6 SCC 121 the
deceased was aged about 25 years as on the date of the
accident. Hence, the appropriate multiplier would be '18'.
(d) The deceased was a bachelor. Hence, the tribunal
has rightly deducted 50% of the assessed income towards
the personal and living expenses of the deceased. The
tribunal has failed to add 40% to the assessed income of the
deceased under the head of loss of future prospects as held
by the Supreme Court in the case of National Insurance
Company Limited Vs. Pranay Sethi and others, reported
in (2017) 16 SCC 680. The appellants are entitled for
addition of 40% under the head of loss of future prospects
of the deceased.
(e) Keeping in mind the enunciation of law, laid down
by the Hon'ble Supreme Court in the case of Magma
General Insurance Company Limited Vs Nanu Ram,
reported in (2018) SCC 130, the appellants are the parents of
the deceased are entitle to Rs.40,000/- each as a parental
consortium. The tribunal has committed an error in awarding
8% interest on the compensation amount. Taking note of the
rate of interest paid in the nationalized Bank on the fixed
deposits in the year 2015, this Court is of the view that, the
appellants are entitled for the interest at the rate of 6% per
annum on the compensation amount from the date of
petition, till its realization. The tribunal has committed an
error in awarding compensation under the head of loss of
pain and mental agony and loss of love and affection and
funeral and death ceremony expenditure. The appellants are
entitled to Rs.15,000/- under the head of loss of estate and
Rs.15,000/- under the head of transportation of dead body
and funeral expenses in place of the aforesaid heads of
compensation awarded by the tribunal.
(f) This Court has not altered the ratio of
contributory negligence fixed by the tribunal in these
appeals.
(g) The loss of dependency is calculated as under:
Rs.8,000/- + Rs.3,200/- (40% addition) = Rs.11,200/-
minus 50% = Rs.5,600/-
Rs. 5,600 X 12 X 18 = Rs.12,09,600/-
(h) Since the accident was caused due to the 50%
equal negligence on the part of TATA 407 driver of the goods
vehicle bearing No.KA-25/C-7809 insured with the 4th
respondent-Oriental Insurance Company Limited, the 4th
respondent-Oriental Insurance Company Limited is liable to
pay 50% of the total compensation amount to the claimants.
8. Thus, the appellants/claimants would be entitled
for modified compensation on the following heads:
Sl.No. Particulars Amount
1. Loss of dependency Rs.12,09,600/-
2. Loss of estate and funeral Rs.30,000/-
expenses & transportation of dead
body
3. Loss of consortium Rs.80,000/-
(Rs.40,000/-x2)
Total Rs.13,19,600/-
9. In view of the aforementioned, we pass the
following:
ORDER
(i) MFA No.101170/2017 filed by the
Insurance company is dismissed;
(ii) MFA No.100984/2017 filed by the
claimants/appellants is partly allowed;
(iii) The impugned judgment and award of the
Tribunal is modified to the extent that the
claimants are entitled for total
compensation Rs.13,19,600/- as against
Rs.4,31,000/- awarded by the Tribunal;
(iv) Since, the accident was caused due to the
contributory negligence of 50%
determined on the part of TATA 407 driver
of the goods vehicle bearing No.KA-25/C-
7809 insured with the 4th respondent-
Oriental Insurance Company Limited, the
4th respondent-Oriental Insurance
Company Limited is liable to pay 50% of
the total compensation amount to the
claimants i.e. Rs.6,59,800/- of the total
compensation amount of Rs.13,19,600/-.
(v) The enhanced compensation amount will
bear interest at the rate of 6% per annum
from the date of claim petition till date of
realization;
(vi) The respondent-Insurance Company shall
deposit the enhanced compensation
amount with accrued interest before the
Tribunal within six weeks from the date of
receipt of certified copy of this judgment;
(vii) Apportionment, deposit and disbursement
of the enhanced compensation shall be
made as per the award of the Tribunal;
(viii) The amount deposited by the insurance
company in M.F.A. No.101170/2017 shall
be transmitted to the Tribunal;
(ix) Draw modified award accordingly;
(x) Registry to transmit the records to the
Tribunal forthwith;
(xi) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
Svh/-
