Karnataka High Court
Manohar @ Mallappa S/O Balu Donakari vs The Divisional Controller on 27 February, 2024
-1-
NC: 2024:KHC-D:4576
MFA No. 100313 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 100313 OF 2015 (MV-D)
BETWEEN:
1. SHRI. MANOHAR @ MALLAPPA
S/O. BALU DONAKARI,
AGE: 30 YEARS, OCC: DRIVER,
RESIDENT OF 334, 3RD CROSS,
SHIVAJI NAGAR, BELGAUM.
2. KUMAR. VEDANT S/O. MANOHAR
@ MALLAPPA DONAKARI,
AGE: 2 1/2 YEARS,
SINCE MINOR REPRESENTED BY HIS MINOR
GUARDIAN NATURAL FATHER APPELLANT NO.1.
RESIDENT OF 334, 3RD CROSS,
SHIVAJI NAGAR, BELGAUM.
...APPELLANTS
(BY SRI. HARISH S. MAIGUR, ADVOCATE)
AND:
Digitally
signed by THE DIVISIONAL CONTROLLER,
ROHAN
ROHAN HADIMANI NWKRTC, BELGAUM DIVISION,
HADIMANI T
T Date:
2024.02.29
BELGAUM
10:37:16
+0530
...RESPONDENT
(BY SRI. M K SOUDAGAR, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT 1988, PRAYING TO MODIFY THE JUDGMENT
AND AWARD PASSED IN M.V.C NO.290/2014 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACT COURT-I AND ADDL. MACT,
BELGUAM, AT BELGAUM, DATED 02/09/2014, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
-2-
NC: 2024:KHC-D:4576
MFA No. 100313 of 2015
JUDGMENT
Though this appeal is listed for admission, with the
consent of learned counsel for the parties, it is taken up for
final disposal.
2. This appeal is by the claimants challenging the
fastening of contributory negligence to an extent of 25% as
well as seeking enhancement of compensation awarded under
judgment and award dated 2.9.2014 passed in MVC
No.290/2014 on the file of learned Presiding Officer, FTC-I and
Member, Addl. MACT, Belgaum (for short, 'Tribunal').
3. Brief facts leading to filing of this appeal are that on
10.09.2013, one Smt.Renuka W/o Manohar was proceeding on
motor cycle bearing registration No.KA-22/EF-5516 as a pillion
rider from Khanapur to Nandagad, her husband was riding the
said motorcycle in a moderate speed; when they came near
Karambal village, driver of NWKRTC bus bearing registration
No.KA-22/F--1711 came from hind side and dashed to the
motorcycle, resulting into accident. Due to the impact, the
deceased Smt.Renuka fell down from the motorcycle and she
was crushed under the bus and died on the spot. It is averred
NC: 2024:KHC-D:4576
that the deceased Renuka was aged about 23 years and doing
tailoring work, earning Rs.13,000/- per month.
4. The respondent/Corporation filed statement of
objections denying the averments made in the claim petition. It
was contended that the driver of the offending bus was not
negligent and was driving the bus in a moderate speed, but
rider of the motor cycle was negligent, lost control and fell
down on the road. It was further contended that there were
three passengers on the motorcycle. Hence, sought for
dismissal of the claim petition.
5. The claimant No.1, husband of the deceased
Renuka, examined himself as PW1 and got marked the
documents as Ex.P1 to P9. The respondent examined the
driver of the bus as RW1. The Tribunal on scrutiny of entire
material available on record, allowed the claim petition in part
and awarded total compensation of Rs.10,14,000/- with
interest at 6% per annum from the date of petition till
realization holding that driver of NWKRTC bus contributed to
the extent of 75% and rider of motorcycle contributed
negligence to an extent of 25%. The claimants being aggrieved
NC: 2024:KHC-D:4576
by the liability as well as quantum of compensation, are before
this Court in this appeal.
6. Sri.Harish S Maigur, learned counsel for the
appellants/claimants would submit that the Tribunal committed
an error in fastening 25% of liability on the
appellants/claimants by recording a finding that there were
three passengers on the motorcycle and the said issue is no
more res-integra in view of decision of Division Bench of this
Court in Laxmibai Annappa Deshinge & Others Vs.
Mohammad Zaheerabbas & Another1. It is therefore
submitted that entire liability is to be fastened on the
respondent/Corporation. It is further submitted that the
Tribunal committed an error in assessing notional income of the
deceased at Rs.6,000/- per month, as the deceased was home
maker and doing tailoring work, earning more than Rs.15,000/-
per month. It is contended that the Tribunal committed an
error in not awarding any compensation under the head loss of
future prospects. Thus, he prays for allowing the appeal.
MFA No.100009/2020, dated 29.11.2023
NC: 2024:KHC-D:4576
7. Per contra, learned counsel Sri.M.K.Soudagar for
respondent/Corporation supporting the impugned judgment
and award of the Tribunal would submit that it is the case of
the appellants/claimants that they were proceeding on
motorcycle on katcha road and it is also an admitted fact that
there were three passengers on the said motorcycle. Taking
note of the said fact, the Tribunal has rightly come to a
conclusion that the rider of the motorcycle also contributed to
the accident in question and fastened 25% contributory
negligence, which does not call for interference. It is also
submitted that the appellants failed to produce any evidence to
substantiate the income of the deceased. Hence, the Tribunal
is justified in assessing income of the deceased at Rs.6,000/-
per month and award of compensation on all other heads is
also just and proper, needs no interference. Thus, prays for
dismissal of the appeal.
8. Having heard the learned counsel for the parties
and on perusal of the appeal papers including original records
of the Tribunal, the following points would arise for
consideration in this appeal:
NC: 2024:KHC-D:4576
a) Whether the Tribunal is justified in fixing contributory
negligence to an extent of 25% on the rider of the
motor cycle in question?
b) Whether the claimants would be entitled for enhanced
compensation?
9. Answer to the above points would be in the
negative and affirmative respectively for the following reasons:
10. The parties to the proceedings do not dispute the
occurrence of the accident on 10.09.2013 resulting in death of
Smt. Renuka, wife of appellant No.1 and mother of appellant
No.2. The contention of learned counsel for the appellants that
the Tribunal committed an error in fastening liability to an
extent of 25% on the rider of the motorcycle is concerned, the
evidence on record indicates that the jurisdictional police after
completion of investigation filed charge sheet against driver of
the offending bus and the charge sheet has not been
challenged by the Corporation. The Tribunal recorded a finding
that there were three passengers on the motorcycle and based
on such finding, the Tribunal proceeded to fasten liability on the
rider of the motorcycle to an extent of 25%, which in my
considered view is contrary to the law laid down by the Hon'ble
Apex Court in the case of Mohammed Siddique and Another
NC: 2024:KHC-D:4576
Vs. National Insurance Co. Limited & Others2, which has
been reiterated by Division Bench of this Court in Laxmibai
Annappa Deshinge's case referred supra. It would be useful
to refer the decision of Hon'ble Apex Court in Mohammed
Siddique's case supra. The relevant paragraphs of which are
extracted below:
"12. It is seen from the material on record that the accident
occurred at about 2:00 a.m. on 5.09.2008. Therefore, there
was no possibility of heavy traffic on the road. The finding of
fact by the Tribunal, as confirmed by the High Court, was that
the motor cycle in which the deceased was travelling, was hit
by the car from behind and that therefore it was clear that the
accident was caused by the rash and negligent driving of the
car. In fact, the High Court confirms in paragraph 4 of the
impugned order that the motor cycle was hit by the car from
behind. But it nevertheless holds that 3 persons on a motor
cycle could have added to the imbalance. The relevant portion
of paragraph 4 of the order of the High Court reads as follows:
"On careful assessment of the evidence led, this Court
finds substance in the plea of the insurance company.
While it is correct that the offending car had no business
to strike from behind against the motorcycle moving
ahead of it, even if the motor cycle was changing lane to
allow another vehicle to overtake, the fact that a motor
vehicle meant for only two persons to ride was carrying,
besides the driver, two persons on the pillion would
undoubtedly have added to the imbalance."
13. But the above reason, in our view, is flawed. The fact that
the deceased was riding on a motor cycle along with the driver
and another, may not, by itself, without anything more, make
him guilty of contributory negligence. At the most it would
make him guilty of being a party to the violation of the
law. Section 128 of the Motor Vehicles Act, 1988, imposes a
restriction on the driver of a two wheeled motor cycle, not to
2020 ACJ 751
NC: 2024:KHC-D:4576
carry more than one person on the motor cycle. Section 194C
inserted by the Amendment Act 32 of 2019, prescribes a
penalty for violation of safety measures for motor cycle drivers
and pillion riders. Therefore, the fact that a person was a
pillion rider on a motor cycle along with the driver and one
more person on the pillion, may be a violation of the law. But
such violation by itself, without anything more, cannot lead to
a finding of contributory negligence, unless it is established
that his very act of riding along with two others, contributed
either to the accident or to the impact of the accident upon the
victim. There must either be a causal connection between the
violation and the accident or a causal connection between the
violation and the impact of the accident upon the victim. It
may so happen at times, that the accident could have been
averted or the injuries sustained could have been of a lesser
degree, if there had been no violation of the law by the victim.
What could otherwise have resulted in a simple injury, might
have resulted in a grievous injury or even death due to the
violation of the law by the victim. It is in such cases, where,
but for the violation of the law, either the accident could have
been averted or the impact could have been minimized, that
the principle of contributory negligence could be invoked. It is
not the case of the insurer that the accident itself occurred as
a result of three persons riding on a motor cycle. It is not even
the case of the insurer that the accident would have been
averted, if three persons were not riding on the motor cycle.
The fact that the motor cycle was hit by the car from behind, is
admitted. Interestingly, the finding recorded by the Tribunal
that the deceased was wearing a helmet and that the deceased
was knocked down after the car hit the motor cycle from
behind, are all not assailed. Therefore, the finding of the High
Court that 2 persons on the pillion of the motor cycle, could
have added to the imbalance, is nothing but presumptuous and
is not based either upon pleading or upon the evidence on
record. Nothing was extracted from PW3 to the effect that 2
persons on the pillion added to the imbalance.
14. Therefore, in the absence of any evidence to show that the
wrongful act on the part of the deceased victim contributed
either to the accident or to the nature of the injuries sustained,
the victim could not have been held guilty of contributory
negligence. Hence the reduction of 10% towards contributory
negligence, is clearly unjustified and the same has to be set
aside."
NC: 2024:KHC-D:4576
11. The Hon'ble Apex Court in the above referred
decision has clearly enunciated that unless there is sufficient
evidence on record to establish contributory negligence of the
rider of motorcycle, merely there were two pillion riders, itself
would not constitute the contributory negligence. In the case
on hand, there is no evidence whatsoever on record to come to
a conclusion that the pillion riders have contributed to the
accident in question. In view of the same, I hold that the
Tribunal committed an error in fastening 25% contributory
negligence on the rider of the motorcycle. Hence, this Court is
of the considered view that the driver of the NWKRTC bus was
alone responsible for the accident and entire liability is to be
saddled on the Corporation. Hence, the
respondent/Corporation is liable to pay entire compensation to
the claimants.
12. Insofar as quantum of compensation is concerned,
it is not in dispute that the appellants/claimants have not
produced any cogent evidence to substantiate the claim that
the deceased was earning Rs.15,000/- per month. In the
absence of any cogent and acceptable evidence on record, this
Court relies on notional income chart prepared by the KSLSA
- 10 -
NC: 2024:KHC-D:4576
based on the year of accident. Taking note of the aforesaid
chart, this Court would assess notional income of the deceased
at Rs.7,000/- per month. Further, the Tribunal committed an
error in not awarding compensation under the head of loss of
future prospects. In terms of decision of Hon'ble Apex Court in
the case of National Insurance Company Limited Vs.
Pranay Sethi & Others3, wherever the deceased was aged
below 40 years, the claimants shall be entitled for addition of
40% of the assessed income towards future prospects. In the
instant case, the deceased was aged 23 years as on the date of
the accident, hence, the claimants would be entitled for
addition of 40% of the assessed income towards future
prospects. There is no dispute with regard to deduction of 1/3rd
towards personal and living expenses of the deceased and
applicable multiplier of 18. Thus, the claimants would be
entitled for modified compensation on the head of loss of
dependency as under:
Rs.7,000 + 40% x 12 x 18 x 2/3 = Rs.14,11,200/-
2017(16) SCC 680
- 11 -
NC: 2024:KHC-D:4576
13. The Tribunal also committed an error in awarding
Rs.1,25,000/- towards loss of consortium and Rs.30,000/-
towards loss of love and affection, which are on the higher side.
In light of decision of Hon'ble Apex Court in Pranay Sethi's
case supra, the claimants would be entitled to Rs.16,500/-
towards loss of estate and Rs.16,500/- towards funeral
expenses including 10% escalation. In terms of decision of
Hon'ble Apex Court in the case of Magma General Insurance
Company Limited Vs. Nanu Ram & Others4, appellant No.1
and 2 would be entitled to Rs.44,000/- each towards spousal
and parental consortium respectively including 10% escalation.
14. Thus, the claimants would be entitled to modified
compensation on the following heads:
Particulars Amount
(in Rs.)
Loss of dependency 14,11,200/-
Loss of estate 16,500/-
Funeral expenses 16,500/-
Loss of consortium 88,000/-
Total 15,32,200/-
2018 ACJ 2782
- 12 -
NC: 2024:KHC-D:4576
Thus, the claimant shall be entitled to total compensation
of Rs.15,32,200/- as against Rs.10,14,000/- awarded by the
Tribunal.
15. In the result, this Court proceeds to pass the
following:
ORDER
a) Appeal stands allowed in part.
b) The impugned judgment and award of the
Tribunal is modified to an extent that the
claimant would be entitled to total compensation
of Rs.15,32,200/- as against Rs.10,14,000/-
awarded by the Tribunal.
c) The enhanced compensation amount shall carry
interest at the rate of 6% per annum from the
date of petition till the date of payment.
d) The Corporation shall deposit the enhanced
compensation amount with accrued interest
before the Tribunal within a period of six weeks
from today.
- 13 -
NC: 2024:KHC-D:4576
e) The apportionment, deposit and disbursement of
enhanced compensation shall be made as per
award of the Tribunal.
f) Registry to transmit the records forthwith to the
Tribunal.
g) Draw modified award accordingly.
Sd/-
JUDGE
JTR
