Karnataka High Court
Shri Annappa S.O Shankar Waghmore vs Shri Ashok S.O Siddappa Uppin on 10 April, 2024
-1-
NC: 2024:KHC-D:6308-DB
MFA No. 102717 of 2017
C/W MFA.CROB No. 100053 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR JUSTICE M.I.ARUN
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
MISCELLANEOUS FIRST APPEAL NO.102717 OF 2017 (MV-D)
C/W.
MFA CROSS OBJ NO.100053 OF 2023
IN M.F.A NO.102717 OF 2017
BETWEEN:
DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO. LTD.,
DIVISIONAL OFFICE, CLUB ROAD,
BELAGAVI, REPRESENTED BY
ITS CONSTITUTED ATTORNEY,
CHIEF REGIONAL MANAGER.
...APPELLANT
(BY SRI SHARANAPPA S. KOLIWAD, ADVOCATE)
AND:
VISHAL
NINGAPPA
PATTIHAL 1. SRI. ANNAPPA SHANKAR WAGHAMORE,
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
Date: 2024.04.25
AGE: 54 YEARS, OCC: NIL,
11:27:08 +0530
R/O: BEVANUR, TQ: ATHANI, DIST: BELAGAVI.
2. SMT. SAKREVVA W/O. ANNAPPA WAGHAMORE,
AGE: 49 YEARS, OCC: HOUSE HOLD,
R/O: BEVANUR, TQ: ATHANI, DIST: BELAGAVI.
3. SRI. ASHOK SIDDAPPA UPPIN,
AGE: MAJOR, OCC: BUSINESS,
R/O: JAYALAXMI TRANSPORT COMPANY,
11, ROOPA COMPLEX, 206/1,
S.G. MUTT ROAD, 3RD MAIN,
-2-
NC: 2024:KHC-D:6308-DB
MFA No. 102717 of 2017
C/W MFA.CROB No. 100053 of 2023
CHAMRAJPET, BENGALURU-18
(OWNER OF TRUCK BEARING NO.KA-01/AA-6297)
...RESPONDENTS
(BY SRI SANJAY S. KATAGERI, ADV.FOR RESP. NO.1 AND 2)
(NOTICE SERVED TO RESPONDENT NO.3, BUT
UNREPRESENTED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DATED 27.04.2017 PASSED IN
MVC NO.2113/2016 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL, ATHANI.
IN MFA CROB NO.100053 OF 2023
BETWEEN:
1. SRI ANNAPPA S/O. SHANKAR WAGHAMORE,
AGE: 57 YEARS, OCC: AGRICULTURE (NOW NIL)
R/O: BEVANUR, TQ: ATHANI,
DIST: BELAGAVI, PINCODE-591212.
2. SMT. SAKREVVA W/O. ANNAPPA WAGHAMORE,
AGE: 51 YEARS, OCC: HOUSE HOLD WORK,
R/O: BEVANUR, TQ: ATHANI,
DIST: BELAGAVI, PINCODE-591212.
...CROSS-OBJECTORS
(BY SRI SANJAY S. KATAGERI, ADVOCATE)
AND:
1. SRI ASHOK SIDDAPPA UPPIN,
AGE: MAJOR, OCC: BUSINESS,
R/O: JAYALAXMI TRANSPORT COMPANY,
-3-
NC: 2024:KHC-D:6308-DB
MFA No. 102717 of 2017
C/W MFA.CROB No. 100053 of 2023
11, ROOPA COMPLEX, 206/1,
S.G. MUTT ROAD, 3RD MAIN,
CHAMARAJPETH, BENGALURU,
PINCODE-560018.
(OWNER OF TRUCK BEARING REGISTERED
NO.KA-01/AA-6297)
2. DIVISIONAL MANAGER,
NEW INDIA ASSURANCE COMPANY LTD.,
DIVISIONAL OFFICE,
CLUB ROAD, BELAGAVI,
PINCODE-590002.
(INSURER OF TRUCK BEARING REGISTERED
NO.KA-01/AA-6297)
...RESPONDENTS
(NOTICE SERVED TO RESPONDENTS NO.1 AND 2, BUT
UNREPRESENTED)
THIS MFA CROSS OBJECTION IN MFA NO.102717/2017
IS FILED UNDER ORDER 41 RULE 22 OF CPC. READ WITH
SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 27.04.2017 PASSED IN MVC
NO.2113/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, ATHANI, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE MISCELLANEOUS FIRST APPEAL AND MFA.CROSS
OBJECTION, COMING ON FOR ADMISSION, THIS DAY, UMESH
M ADIGA, J., DELIVERED THE FOLLOWING:
-4-
NC: 2024:KHC-D:6308-DB
MFA No. 102717 of 2017
C/W MFA.CROB No. 100053 of 2023
JUDGMENT
MFA.No.102717/2017 is filed by the insurer and MFA
Cross Objection No.100053/2023 is filed by the claimants
challenging the Judgment and Award dated 27.04.2017
passed in MVC.No.2113/2016 by the Principal Senior Civil
Judge and Additional M.A.C.T., Athani (for short, the
Tribunal').
2. Though this appeal and cross-objection are listed
for hearing on admission, but with consent of learned
counsels appearing for both side, they are taken up for
final disposal.
3. For the sake of convenience, we refer to the
parties as per their rank before the Tribunal.
4. Brief facts of the case are that claimants are
parents of deceased-Shankar. On 13.06.2016 at about
13:40 hours, Shankar Annappa Waghamore was going on
his motorcycle bearing registration No.MH-10/AU-6629
towards Bevanur along with his relative; when he reached
NC: 2024:KHC-D:6308-DB
C/W MFA.CROB No. 100053 of 2023
near the APMC gate of Athani, driver of the lorry bearing
registration No.KA-01/AA-6297 came from backside of
deceased in rash and negligent manner, with high speed
and dashed against the motorcycle in which Shankar and
his relative were going, as a result of which, Shankar
sustained grievous injuries and died at the spot.
5. It is further case of the claimants that deceased
was aged about 19 years as on the date of accident. He
was working as mason and earning Rs.15,000/- per
month. Claimants are his parents and were completely
depending upon earnings of the deceased. With these
reasons, claimants have prayed to award the
compensation of Rs.35,00,000/-.
6. The contention of the respondent/insurer is that it
has denied contents of the claim petition. It is further
contended that the rider of the motorcycle has no valid
and effective driving licence to drive the motorcycle at the
time of accident and the accident had taken place due to
negligent riding of the motorcycle by the deceased. Its
NC: 2024:KHC-D:6308-DB
C/W MFA.CROB No. 100053 of 2023
liability is restricted to the terms and conditions of the
policy of insurance and holding of valid and effective
driving licence by the driver of lorry. With these reasons
prayed to dismiss the claim petition.
7. From the rival contentions of the parties, the
Tribunal had framed the necessary issues for
determination.
8. The claimants to prove their case examined P.W.1
and got marked Ex.P.1 to Ex.P.7 and closed their
evidence. Respondent No.2 has not led evidence.
9. The Tribunal heard the arguments of both side
and appreciating the pleadings and evidence available on
record held that accident had taken place due to
negligence of driver of the lorry. The Tribunal has
assessed the age of deceased as 19 years, his income as
Rs.8,500/- per month, applied '18' multiplier and deducted
1/3rd of income of the deceased towards personal
expenses. On that basis awarded compensation under the
NC: 2024:KHC-D:6308-DB
C/W MFA.CROB No. 100053 of 2023
head loss of dependency. The Tribunal has also considered
and awarded the compensation under conventional heads.
In all, the Tribunal has awarded following amount of
compensation :
Loss of dependency Rs.12,24,000/-
Loss of love and affection Rs.50,000/-
Towards transportation, Rs.20,000/-
funeral and obsequies
ceremony.
Total Rs.12,94,000/-
10. Being aggrieved by the said finding of the
Tribunal, the respondent/insurer has filed the appeal in
MFA.No.102717/2017 contending that the accident had
taken place due to contributory negligence of the deceased
as well as driver of the lorry and it has also challenged the
quantum of compensation. Claimants have also filed MFA
Cross Objection No.100053/2023 seeking enhancement of
compensation. Both matters are taken up together for
disposal.
NC: 2024:KHC-D:6308-DB
C/W MFA.CROB No. 100053 of 2023
11. We have heard the arguments of learned counsel
for both side.
12. The questions arise for our determination is:
(1) Whether the Tribunal has justified in
holding that accident had taken place due
to sole negligence of the driver of lorry?
(2) Whether the claimants are entitled for
enhancement of compensation?
13. Question No.1 : The Tribunal in the impugned
Judgment though came to the conclusion that the rider of
the motorcycle i.e., deceased had no valid licence.
However, in paragraph No.11 of the impugned Judgment,
it has stated that the burden is on the insurer to prove
that deceased had no valid and effective driving licence to
drive the motorcycle. The respondent No.2 did not
examine any witnesses to prove that the rider of the
motorcycle had no licence to drive the said vehicle. The
said reasons are not fully correct.
NC: 2024:KHC-D:6308-DB
C/W MFA.CROB No. 100053 of 2023
14. It is not in dispute that the police after
investigating the matter, charge sheeted both driver of the
lorry as well as rider of the motorcycle, who died in the
accident. Moreover, it is mentioned in the charge sheet
that rider of the motorcycle did not have valid and
effective driving licence. Therefore, he was charge sheeted
for the offences punishable under Sections 3 read with
Section 181 of the Motor Vehicles Act, 1988. If deceased
had driving licence to drive motorcycle, claimants could
have produced the same. They even did not disclose
reason as to why they cannot produce the same. Deceased
was riding motorcycle on main road having traffic, without
having driving licence. This fact supports the contention of
insurer to hold that deceased also contributed for causing
accident in question.
15. It is pertinent to note that the lorry came behind
the motorcycle and dashed against it. From the facts and
circumstances, it could be held that contribution of the
driver of lorry in causing accident was more. Considering
- 10 -
NC: 2024:KHC-D:6308-DB
C/W MFA.CROB No. 100053 of 2023
the facts and circumstances of the present case, the
negligence on the part of the rider of the motorcycle and
driver of the lorry, is taken in the ratio of 20:80
respectively. Accordingly, the above said question is
answered.
16. The Tribunal has accepted notional income as
Rs.8,500/- per month. The said income assessed by the
Tribunal is on the lower side. As per the schedule prepared
by the Karnataka State Legal Services Authority, income
of the victim of an accident of the year 2016 is Rs.8,750/-
per month that could be applied to facts of the present
case. The Tribunal has not considered the future prospects
of the deceased. Admittedly, he was aged about 19 years
at the time of accident. As per the law laid down in the
case of National Insurance Company Limited v.
Pranay Sethi and Others1 future prospects of 40% of
the income needs to be added to his income. It is not in
dispute that multiplier applicable to the facts of the
AIR 2017 SC 5157
- 11 -
NC: 2024:KHC-D:6308-DB
C/W MFA.CROB No. 100053 of 2023
present case is '18'. Undisputedly, deceased was a
bachelor/unmarried, claimants are his parents. Therefore,
50% of his income needs to be deducted towards personal
expenses, as held in the case of Sarla Verma and Others
vs. Delhi Transport Corporation and Another, reported in
(2009) 6 SCC 121 as well as in the case of Pranay
Sethi's (supra).
17. The Tribunal on the reason that claimants were
completely depending upon earnings of the deceased,
deducted 1/3rd of his income towards personal expenses,
which is not in accordance with law, hence not sustainable.
On the basis of above calculation, compensation under the
head loss of dependency is assessed.
18. The amount of compensation awarded by the
Tribunal on conventional head is also on the lower side. In
view of the law laid down in the case of Pranay Sethi's
(supra) as well as Magma General Insurance Company
Limited v. Nanu Ram @ Chuhru Ram and Others2 and
(2018) 18 SCC 130
- 12 -
NC: 2024:KHC-D:6308-DB
C/W MFA.CROB No. 100053 of 2023
United India Insurance Co. Ltd., v. Satinder Kaur and
Others3, compensation needs to be awarded under
conventional head. For the above said reasons, the
following compensation is awarded :
Loss of dependency. Rs.13,23,000/-
(Rs.8,750/- X 12 X 18 +
40% future prospects
- 50%)
Loss of consortium Rs.80,000/-
Rs.40,000/- X 2.
Loss of estate Rs.15,000/-
Funeral expenses Rs.15,000/-
Total amount Rs.14,33,000/-
19. Out of the above said amount of compensation,
claimants are entitled for 80%, since contribution of
deceased towards causing accident is 20%. Accordingly,
claimants are entitled for compensation of Rs.11,46,400/-
which is rounded to Rs.11,47,000/- as against
Rs.12,94,000/- awarded by the Tribunal. Accordingly, we
answered question No.2.
2020 ACJ 2131
- 13 -
NC: 2024:KHC-D:6308-DB
C/W MFA.CROB No. 100053 of 2023
20. For the aforesaid discussions, we pass the
following :
ORDER
(i) Appeal in MFA.No.102717/2017 as well as
MFA CROB.No.100053/2023 are disposed off.
(ii) The Judgment and Award dated 27.04.2017
passed in MVC No.2113/2016 by the Principal
Senior Civil Judge and Additional M.A.C.T.,
Athani is modified as under :
(a) Claimants are entitled for
compensation of Rs.11,47,000/- with interest
at the rate of 6% per annum from the date of
petition till realization of the entire amount.
(b) Respondents are jointly and severally
liable to pay the compensation awarded by
this Court. They are directed to deposit the
above said amount within a period of eight
weeks from the date of receipt of copy of this
Judgment.
- 14 -
NC: 2024:KHC-D:6308-DB
C/W MFA.CROB No. 100053 of 2023
(c) The amount of compensation
apportioned equally between claimant No.1
and 2.
(iii) Amount deposited before this Court in
MFA.No.102717/2017 be transmitted to the
Tribunal forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
