Karnataka High Court
M. Amogh S/O Manchal Raghunandan And Anr vs Sri. Manchal Siddaiah S/O Late Manchal ... on 16 April, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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MFA No.201110 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE K V ARAVIND
MISCL. FIRST APPEAL NO.201110 OF 2021 (MV-D)
BETWEEN:
1. M. AMOGH
S/O MANCHAL RAGHUNANDAN
AGE: 13 YEARS
OCC: STUDENT
2. M. SWASTHI
D/O MANCHAL RAGHUNANDAN
AGE: 10 YEARS
OCC: NIL
Digitally signed by
BASALINGAPPA
SHIVARAJ SINCE APPELLANTS ARE MINORS
DHUTTARGAON
Location: HIGH
AS SUCH REPRESENTED BY
AS PER COURT
COURT OF
KARNATAKA
THEIR MATERNAL GRANDFATHER BY NAME
ORDER DATED
PRABHAKAR SHETE
16.04.2024
(NOW SINCE DECEASED IS HE IS
REPLACED BY ANOTHER GUARDIAN BY NAME)
VIVEK
S/O PRABHAKARRAO SHETE
AGE: 46 YEARS, OCC:
R/O KAREGOAN ROAD
BHAGYA NAGAR
PARBHANI, PARBHANI
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MFA No.201110 of 2021
MAHARASHTRA - 431 401.
...APPELLANTS
(BY SRI BASAVARAJ R.MATH, ADVOCATE)
AND:
1. SRI. MANCHAL SIDDAIAH
S/O LATE MANCHAL NARAYANAPPA
AGE: 75 YEARS
OCC: OWNER OF MOTOR CYCLE
BEARING NO.KA.36/R-8562
R/O. OPP. RAGHAVENDRA SWAMY TEMPLE
JAWAHARNAGAR
RAICHUR - 584 101.
2. THE BRANCH MANAGER
THE ORIENTAL INSURANCE CO. LTD.
K.K. COMPLEX, CITY TALKIES ROAD
RAICHUR - 584 101.
...RESPONDENTS
(BY SRI SUDARSHAN M., ADVOCATE FOR R2;
R1 SERVED)
THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
MOTOR VEHICLES ACT, PRAYING TO CALL FOR RECORDS AND
MODIFY THE IMPUGNED JUDGMENT AND AWARD DATED
17.10.2019 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE AND M.A.C.T. AT RAICHUR IN M.V.C.
NO.163/2017, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS MFA COMING ON FOR ORDERS THIS DAY
H.T.NARENDRA PRASAD J., DELIVERED THE FOLLOWING:
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MFA No.201110 of 2021
JUDGMENT
This appeal is by the claimants filed under Section
173(1) of the Motor Vehicles Act, 1988 being aggrieved by
the judgment and award dated 17.10.2019 passed by the
MACT, Raichur in MVC No.163/2017 and seeking
enhancement of compensation.
2. Facts giving rise to the filing of the appeal
briefly stated are that, on 10.03.2013 the mother of the
claimants by name Smt. M. Sarika was proceeding as a
pillion rider on a motorcycle bearing Reg.No.KA-36/R-8562
with an intention to perform pooja, on the eve of Maha
Shivaratri at Nandeeshwar Temple, Raichur. When they
proceeding in front of Muniyappa Mueddappa house and
while crossing the road humps, suddenly she buffalo came
across moving vehicle, as such to avoid accident rider of
the motorcycle suddenly applied brake, as such, pillion
rider Smt. M. Sarika fell down from the motorcycle on the
road and sustained sever injuries and succumbed to the
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said injuries on 13.06.2013 while taking treatment in the
Apollo Hospital, Hyderabad.
3. The deceased was hale and healthy at the time
of accident and was earning Rs.9,000/- per month by her
profession as a Tailor and contributing the same to her
family. Hence, the claimants filed the claim petition under
Section 166 of Motor Vehicles Act before the Claims
Tribunal seeking compensation for the injuries sustained in
the road traffic accident.
4. Pursuant to the summons, respondent Nos.1
and 2 appeared and filed their separate written statements
denying the averments made in the claim petition.
5. On the basis of the pleadings of the parties, the
Claims Tribunal framed the issues and thereafter recorded
the evidence. The guardian of the claimants has been
examined as PW-1 besides examining two witnesses as
PWs-2 and 3 and got exhibited documents namely, Ex.P1
to Ex.P-405. On behalf of respondents, one witness is
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examined as R.W.1 and a copy of insurance policy is
marked as Ex.R.1.
6. The Claims Tribunal, by the impugned judgment
inter alia held that the accident took place on account of
rash and negligent riding of the rider of the motorcycle to
the extent of 75% and negligent on the part of pillion rider
to the extent of 25% for having not wearing head gear as
mandated under Section 129 of Motor Vehicles Act. Insofar
as quantum of compensation, the Tribunal, upon
considering the oral and documentary evidence placed
before it, held that the claimants are entitled to
compensation of Rs.40,68,813/- along with interest at the
rate of 6% p.a. and directed the Insurance Company to
deposit 75% of the award amount and directed the
claimants to bear the remaining 25% of the compensation
themselves. Being aggrieved by the same, this appeal has
been filed.
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7. Sri Basavaraj R. Math, the learned counsel
appearing for the claimants has contended that the
deceased was proceeding as a pillion rider on the
motorcycle. However, the Tribunal erred in holding that
she was negligent in causing the accident to the extent of
25%. He further contended that, if the pillion rider was
not wearing helmet and same is in violation of provisions
of Motor Vehicles Act unless it is proved that not wearing
helmet will contribute negligence towards the accident.
Under these circumstances, negligence cannot be fastened
on the deceased.
8. Secondly, he has contended that at the time of
accident, deceased a partner in the partnership firm
namely, M/s. Shamala Industries. In addition to income
deriving from the firm, she was earning Rs.9,000/- per
month by doing tailoring work. The Tribunal has assessed
monthly income of the deceased at Rs.8,000/- and is on
the lower side.
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9. Thirdly, he has contended that in view of the
judgment of the Apex Court in National Insurance Co.
Ltd. Vs. Pranay Sethi reported in (2017) 16 SCC 680,
40% of the income of the deceased has to be added
towards future prospects. Further, he submits that as per
the judgment in MAGMA GENERAL INSURANCE CO. LTD. -
V- NANU RAM [2018 ACJ 2782], each of the claimants are
entitled for compensation of Rs.40,000/- under the head
of 'parental consortium'. Hence, on these grounds, he
sought for allowing the appeal.
10. On the other hand, Sri Sudarshan M., learned
counsel appearing for the Insurance Company contend
that deceased was not wearing helmet when she was
proceeding on a motorcycle as a pillion rider and thereby
violates mandatory provisions of Section 129 of Motor
Vehicles which mandates the rider and pillion rider must
wear the helmet. In the present case, since the deceased
violated the provisions of Motor Vehicles Act, the Tribunal
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has rightly held that she was negligent in causing the
accident.
11. In respect of quantum, he has contended that
even though the claimants was a partner in a firm, they
have not produced any document to substantiate that how
much profit she was getting through the said partnership
firm. Therefore, the Tribunal has rightly assessed the
monthly income of the deceased at Rs.8,000/-.
12. Thirdly, the learned counsel for the Insurance
Company contended that considering the age and
avocation of the deceased, overall compensation awarded
by the Tribunal is just and reasonable. Hence, he sought
for dismissal of the appeal.
13. Heard the learned counsel for the parties,
perused the judgment and award including the appeal
papers.
14. It is not in dispute that on 10.03.2013 the
mother of the claimants by name M. Sarika was
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proceeding as a pillion rider on a motorcycle bearing
Reg.No.KA-36/R-8562 with an intention to perform pooja,
on the eve of Maha Shivaratri at Nandeeshwar Temple,
Raichur. When they proceeding in front of Muniyappa
Mueddappa house and while crossing the road humps,
suddenly she buffalo came across the moving vehicle, as
such to avoid accident rider of the motorcycle suddenly
applied brake, as such, pillion rider M. Sarika fell down
from the motorcycle on the road and sustained sever
injuries and succumbed to the said injuries on 13.06.2013
while taking treatment in the Apollo Hospital, Hyderabad.
15. The Tribunal after considering the evidence of
the parties has rightly held that the rider of the motorcycle
is negligent in causing the accident. Only because the
pillion rider, the deceased was not wearing the helmet,
Tribunal has held that she was negligent to the extent of
25% of the accident. There is no such law that if pillion
rider was not wearing the helmet, contributory negligence
shall be fastened on him and even will not be entitled to
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get compensation. Moreover, no provisions of Motor
Vehicles Act states that it is an offence under the Act.
Unless it is proved that not wearing the helmet by the
pillion rider is contributed to the accident, he cannot be
held negligent for accident. Therefore, finding of the
Tribunal that the deceased was contributed 25% to the
accident due to negligent is unsustainable and the finding
to that extent rendered by the Tribunal is set aside.
Therefore, it is held that the rider of the motorcycle is
alone negligent in causing the accident.
16. In respect of the quantum is concerned, even
though the claim of the claimants that the deceased was a
partner in partnership firm namely M/s. Shamala
Industries, they have not produced any document to prove
the same. Further, it is contended that deceased was
working as a tailoring and earning Rs.9,000/- per month.
The Tribunal after considering the evidence of the parties,
has rightly assessed the notional income of the deceased
at Rs.8,000/- p.m.
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17. In view of the judgment of Apex Court in the
case of Praney Sethi (supra), 40% of the income of the
deceased has to be added towards future prospects. The
Tribunal has rightly deducted 1/3rd of the income of the
deceased towards his personal expenses. The deceased
was aged 30 years at the time of accident and the
applicable multiplier is '17'. Thus, the claimants are
entitled to compensation of Rs.15,23,268/- (Rs.8000 +
40%= 11,200 less 1/3rd = Rs.7,467 x 12x 17) on account
of 'loss of dependency'.
18. In view of the law laid down by the Supreme
Court in the case of 'MAGMA GENERAL INSURANCE'
(supra), claimants being the children of the deceased are
entitled for compensation of Rs.40,000/- each under the
head of 'loss of parental consortium'. The compensation
awarded under the head 'medical expenses' remained
intact.
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19. Thus the claimants are entitled to the following
compensation:
Compensation under Amount in
different Heads (Rs.)
Medical expenses 29,35,813/-
Loss of dependency 15,23,268/-
Funeral expenses 15,000/-
Loss of estate 15,000/-
Loss of Parental 80,000/-
consortium
Total 45,69,081/-
20. In the result, we pass the following:
ORDER
a) The appeal is allowed in part.
b) The judgment of the Claims Tribunal is
modified.
c) The claimants are entitled to a total
compensation of Rs.45,69,081/- as against
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Rs.40,68,813/- awarded by the Tribunal along
with interest at the rate of 6% per annum.
d) The Tribunal's direction that 25% of the
compensation shall be born by the claimants
themselves is set aside.
e) The Respondent No.2 - Insurance Company is
directed to deposit the entire compensation
amount along with interest at the rate of 6%
per annum from the date of filing of the claim
petition till the date of realization, within a
period of six weeks from the date of receipt of
a copy of this judgment.
f) The apportionment, deposit and release of
compensation amount shall be as per the order
of the Tribunal.
Sd/-
JUDGE
Sd/-
JUDGE
BL
