Karnataka High Court
Shivubai And Ors vs Maheboob And Anr on 26 February, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
-1-
NC: 2024:KHC-K:1755-DB
MFA No.200889 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE K V ARAVIND
MISCL. FIRST APPEAL NO.200889 OF 2022 (MV-D)
BETWEEN:
1. SHIVUBAI
W/O MALAKARI KAMBALE
AGE: 70 YEARS, OCC: NIL
2. LALITA
W/O SURESH KAMBALE
AGE: 46 YEARS
OCC: HOUSEHOLD WORK
3. DAULAPPA
S/O SURESH KAMBALE
Digitally signed by AGE: 27 YEARS, OCC: NIL
VARSHA N
RASALKAR
Location: HIGH
COURT OF 4. PRAKASH
KARNATAKA
S/O SURESH KAMBALE
AGE: 26 YEARS, OCC: NIL
5. ANIL
S/O SURESH KAMBALE
AGE: 25 YEARS, OCC: NIL
ALL ARE R/O ARAKERI
TALUK AND DISTRICT
VIJAYAPURA - 586 104.
...APPELLANTS
(BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE)
-2-
NC: 2024:KHC-K:1755-DB
MFA No.200889 of 2022
AND:
1. MAHEBOOB
S/O MOHAMMEDSAB HAZI
AGE:45 YEARS, OCC: BUSINESS
R/O ASAR GALLI
VIJAYAPURA - 586 101.
2. THE BRANCH MANAGER
CHOLAMANDALAM GENERAL
INSURANCE COMPANY LIMITED
1ST FLOOR, V.A. KALBURGI SQUARE
DESHPANDE NAGAR, DESAI CROSS
HUBBALLI - 29.
...RESPONDENTS
(BY SRI MANJUNATH MALLAYYA SHETTY, ADVOCATE FOR R2;
V/O DATED 19.01.2024 NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL AND
ENHANCE THE COMPENSATION AS CLAIMED IN THE CLAIM
PETITION BY MODIFYING THE JUDGMENT AND AWARD DATED
24.06.2021 PASSED BY THE COURT OF I ADDITIONAL SENIOR
CIVIL JUDGE AND MEMBER, M.A.C.T. - VI, AT VIJAYAPURA IN
M.V.C.NO.413/2016.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY
H.T.NARENDRA PRASAD J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of the Motor
Vehicles Act, 1988 (hereinafter referred to as 'the Act', for
NC: 2024:KHC-K:1755-DB
short) has been filed by the claimants being aggrieved by
the judgment and award dated 24.06.2021 passed by the
First Additional Senior Civil Judge and MACT-VI,
Vijayapura in MVC No.413/2016 whereby the Tribunal has
awarded compensation Rs.8,26,000/- with 6% interest
and held that there is contributory negligence on the part
of both driver of the lorry and rider of the motorcycle.
2. The facts giving rise to the filing of the appeal
briefly stated are that on 05.09.2015 at about 8.30 pm.,
Suresh being the rider of the motorcycle bearing
registration No.KA-29/8624 was going towards Vijayapura
side from Tikota. He was riding his motorcycle in slow and
cautious manner. When he reached near Torvi village, at
that time, a lorry bearing registration No.KA-29/5884 was
parked in the middle of the road without any indicator.
Since it was about 8.30 p.m., in the night, the deceased
was unable to identify the parked lorry and he dashed his
motorcycle to the said stationed lorry. As a result of the
NC: 2024:KHC-K:1755-DB
accident, the deceased sustained grievous injuries and
succumbed to the injuries.
3. The claimants who are the legal representatives
of the deceased have filed a claim petition under Section
166 of the Act seeking compensation for the death of the
deceased along with interest.
4. Respondent No.1 did not appear before the
Tribunal inspite of service of notice and hence, he was
placed ex-parte.
On service of summons, respondent No.2 appeared
through counsel and filed written statement wherein the
averments made in the petition were denied. The
occurrence of accident and also negligence on the part of
the driver of the lorry was also denied. It was further
pleaded that the accident was due to rash and negligent
riding of the motorcycle by the deceased himself. It was
stated in the written statement that lorry bearing
registration No.KA-29/5884 was not insured with the
respondent-Insurance Company. The driver of the lorry
NC: 2024:KHC-K:1755-DB
was not holding valid and effective driving licence as on
the date of the accident. The liability is subject to terms
and conditions of the policy.
On the basis of pleadings of the parties, the Tribunal
framed the following issues:
1) "Whether the petitioners prove that,
on 05.09.2015 at about 8.30 p.m.,
deceased-Suresh died as a result of
accident caused by Lorry bearing
Reg.No.KA-29/5884?
2) Whether the respondent No.2 proves
that, due to his own negligence and
as a result of accident Suresh died?
3) Whether the respondent No.2 proves
that, there is violation of policy
conditions?
4) Whether the petitioners are entitled
compensation, if so, for what
quantum and from whom?
5) What order or award?"
NC: 2024:KHC-K:1755-DB
5. The claimants, in order to prove their case,
examined Smt.Lalita as PW-1 and Sri.Dhareppa as PW-2
and got exhibited documents namely Ex.P1 to Ex.P6. On
behalf of respondents, one Sri.Vallabhbai, Officer of the
Insurance Company was examined as RW-1 and got
exhibited documents namely Ex.R1 and R2. On
appreciation of the oral and documentary evidence, the
Tribunal by the impugned judgment, inter alia, held that
the deceased has contributed 50% to the accident. The
Tribunal further held that the claimants are entitled to a
compensation of Rs.8,26,000/- along with interest at the
rate of 6% p.a. and directed the Insurance Company to
deposit the compensation amount along with interest.
Being aggrieved by the same, the claimants have filed this
appeal.
6. Sri.Sanganagouda V.Biradar., learned counsel
for the claimants has raised the following contentions:
Firstly, learned counsel for the claimants contended
that at the time of the accident the driver of the lorry
NC: 2024:KHC-K:1755-DB
bearing registration No.KA-29/5884 was wrongly parked in
the middle of the road. There was no light and indicator.
The accident has occurred on 05.09.2015 at about 8.30
p.m.,. since there was no indicator, the deceased was
unable to notice the stationed lorry and hence, the
accident has occurred. As a result of which, the rider of
the motorcycle suffered grievous injuries and succumbed
to the same. He further contended that this aspect of the
matter has not been disputed by the respondents. The
Tribunal without considering this aspect of the matter
erred in holding that there was contributory negligence on
the part of both driver of the lorry as well as rider of the
motorcycle. He further contended that police have filed FIR
and chargesheet against the driver of the lorry and also
the deceased only on the basis of complaint lodged as per
Ex.P2. He contended that complainant is not an
eyewitness and as per MVI report (Ex.P5) and spot
panchanama (Ex.P4), the driver of the lorry alone is
negligent in causing the accident.
NC: 2024:KHC-K:1755-DB
In respect of quantum, he contended that at the time
of accident the deceased was aged about 45 years and he
was earning Rs.15,000/- per month. But the Tribunal is
not justified in taking the monthly income of the deceased
as merely as Rs.6,000/-.
Secondly, as per the law laid down by the Hon'ble
Supreme Court in the case of NATIONAL INSURANCE
CO. LTD. -V- PRANAY SETHI [AIR 2017 SC 5157],
25% of the income of the deceased has to be added for
future prospects.
Lastly, he contended that as per the judgment of the
Hon'ble Supreme Court in the case of MAGMA GENERAL
INSURANCE CO. LTD. -V- NANU RAM AND OTHERS
[2018 ACJ 2782], each of the claimants are entitled for
compensation under the head of 'loss of love and affection
and consortium'. Hence, he prays for allowing the appeal.
7. Per contra, Sri.Manjunath Mallayya Shetti,
learned counsel for respondent No.2-Insurance Company
has contended that though the lorry was stationed, it was
NC: 2024:KHC-K:1755-DB
parked on the extreme left side of the road. He further
contended that even the MVI report produced at Ex.P5
reveals that the entire front portion of the motorcycle was
damaged. Therefore, it is very clear that the rider of the
motorcycle was riding the motorcycle with high speed and
in rash and negligent manner. Therefore, the Tribunal has
rightly held that the deceased has contributed 50% to the
accident. He further contended that the complaint (Ex.P2)
was lodged by one Kenchappa, wherein he categorically
stated that the deceased was also negligent in causing the
accident and he was riding the motorcycle with high speed
and in rash and negligent manner. On the basis of the
complaint, the police have registered the FIR against the
deceased as well as the driver of the lorry. After thorough
investigation, the police have filed the chargesheet.
Therefore, it is very clear that the accident has occurred
due to negligence of both driver of the lorry as well as
rider of the motorcycle. The Tribunal has rightly held that
deceased has also contributed to the accident.
- 10 -
NC: 2024:KHC-K:1755-DB
In respect of quantum, he contended that even
though the claimants claim that the deceased was earning
Rs.15,000/- per month, the same is not established by the
claimants by producing documents. Therefore, the Tribunal
has rightly assessed the income of the deceased at
Rs.6,000/- per month.
Secondly, he contended that since the claimants
have not established the income of the deceased, they are
not entitled for compensation towards 'future prospects'.
Thirdly, on appreciation of oral and documentary
evidence and considering the age and avocation of the
deceased, the overall compensation awarded by the
Tribunal is just and reasonable. Hence, he sought for
dismissal of the appeal.
8. Heard the learned counsel for the parties and
perused the judgment and award of the Tribunal and
original records.
- 11 -
NC: 2024:KHC-K:1755-DB
RE: CONTRIBUTORY NEGLIGENCE
9. The case of the claimants is that on
05.09.2015, at about 8.30 p.m., the deceased was riding
the motorcycle bearing registration No.KA-29/8624 and
proceeding towards Vijayapur, when he reached near Torvi
village, at that time, a lorry bearing registration No.KA-29/
5884 was parked in the middle of the road without any
indicator. Since it was night at about 8.30 pm., the
deceased was unable to notice the stationed lorry, as such
he dashed against the lorry and suffered grievous injuries
and succumbed to the same. To prove their case, claimant
No.2 has been examined as PW-1. In her evidence, she
has reiterated the statements made in the claim petition
and contended that accident has occurred due to rash and
negligent driving of the lorry by its driver. The claimant
has also examined PW-2, who is an eyewitness to the
accident. He has categorically stated that accident has
occurred due to negligence of the driver of the lorry which
was parked in the middle of the road and there was no
- 12 -
NC: 2024:KHC-K:1755-DB
indicator. The accident has occurred at 8.30 pm., and he
has also stated that deceased was riding the motorcycle
slowly and in cautious manner following the traffic rules.
In cross-examination of PWs-1 and 2, the respondent No.2
has not elicited any worthwhile information. To disprove
the case of the claimants, the respondent-Insurance
Company has not examined driver of the lorry or insured.
Respondent No.2 has examined RW.1 who is the Officer of
the Insurance Company. It is very clear from the evidence
of PWs-1 and 2 that driver of the lorry bearing registration
No.KA-29/5884 was parked in the middle of the road
without any indicators. It is also not in dispute that
accident was occurred at about 8.30 pm., on 05.09.2015.
The rider of the motorcycle was riding the motorcycle on
the left side of the road and MVI report and mahazar do
not indicate that there was light in the motorcycle.
Therefore, it is very clear that since the lorry was parked
in the middle of the road in the night without any indicator
due to negligence of the driver of the lorry, the accident
has occurred.
- 13 -
NC: 2024:KHC-K:1755-DB
The Tribunal has committed an error to give a finding
that deceased has contributed 50% to the accident only on
the basis of complaint lodged by one Kenchappa produced
at Ex.P2, wherein it is stated that deceased was also
negligent in causing the accident but he was not an
eyewitness to consider the evidence of PWs-1 and 2, PM
report (Ex.P3), spot panchanama (Ex.P4), MVI report
(Ex.P5). Hence, we are of the opinion that accident has
occurred due to negligence on the part of driver of the
lorry. Therefore, the finding of the Tribunal that deceased
has contributed 50% to the accident is unsustainable.
Therefore, the Insurance Company is liable to pay entire
compensation to the claimants.
RE: QUANTUM OF COMPENSATION
10. Even though the claimants claim that deceased
was earning Rs.15000/- per month, they have not
produced any documents to prove the income of the
deceased. In the absence of proof of income, the notional
income has to be assessed. As per the guidelines issued by
- 14 -
NC: 2024:KHC-K:1755-DB
the Karnataka State Legal Services Authority, for the
accident taken place in the year 2015, the notional income
of the deceased has to be taken at Rs.8,000/- p.m.
The Tribunal has rightly deducted 1/4th of the income
of the deceased for his personal expenses. In view of the
law laid down by the Constitution Bench of the Supreme
Court in 'PRANAY SETHI' (supra) 25% of the income is
to be added for future prospect. Thus, the monthly
income comes to Rs.10,000/-. Since there are 4
dependents, it is appropriate to deduct 1/4th of the income
of the deceased towards personal expenses. Thus the
monthly income comes to Rs.7,500/-. The deceased was
aged about 45 years at the time of the accident and
multiplier applicable to his age group is '14'. Thus, the
claimants are entitled to compensation of Rs.12,60,000/-
(Rs.7,500*12*14) on account of 'loss of dependency'.
In addition, the claimants are entitled to
compensation of Rs.15,000/- on account of 'loss of estate'
- 15 -
NC: 2024:KHC-K:1755-DB
and compensation of Rs.15,000/- on account of 'funeral
expenses'.
In view of the law laid down by the Supreme Court in
the case of 'MAGMA GENERAL INSURANCE' (supra),
Claimant No.1, mother of the deceased is entitled for
compensation of Rs.40,000/- under the head of 'loss of
filial consortium' and claimant No.2-wife of the deceased is
entitled for Rs.40,000/- towards loss of spousal
consortium. Claimant Nos.3 to 5, children of the deceased
are entitled for compensation of Rs.40,000/- each under
the head of 'loss of parental consortium'.
11. Thus, the claimants are entitled to the following
compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 12,60,000
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal consortium 40,000
Loss of parental 1,20,000
consortium
Loss of Filial consortium 40,000
Total 14,90,000
- 16 -
NC: 2024:KHC-K:1755-DB
12. In the result, the appeal is allowed in part.
The judgment of the Claims Tribunal is modified.
The claimants are entitled to a total compensation of
Rs.14,90,000/- as against Rs.8,26,000/- awarded by the
Tribunal.
The Insurance Company is directed to deposit the
entire compensation amount along with interest @ 6%
p.a. from the date of filing of the claim petition till the date
of realization, within a period of eight weeks from the date
of receipt of copy of this judgment.
Sd/-
JUDGE
Sd/-
JUDGE
VNR/NJ
Ct:Vk
