Karnataka High Court
Smt. Neelamma W/O Jagannath And Ors vs Sri. Hanumesh Kuri And Anr on 26 July, 2024
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MFA No. 200156 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MISCL. FIRST APPEAL NO. 200156 OF 2020 (MV-D)
BETWEEN:
1. SMT. NEELAMMA W/O JAGANNATH
AGE: 29 YEARS, OCC: HOUSEHOLD WORK
2. BINDU D/O LATE JAGANNATH
AGE: 10 YEARS, MINOR
3. LAXMIBAI D/O LATE JAGANNATH
AGE: 8 YEARS, MINOR
4. SRI. SRIKANTH S/O LATE JAGANNATH
AGE: 5 YEARS, MINOR
Digitally signed
by KHAJAAMEEN 5. SRI. MAHESH S/O LATE JAGANNATH
L MALAGHAN AGE: 3 YEARS, MINOR,
Location: HIGH SINCE APPELLANT NO. 2 TO 5 ARE MINORS,
COURT OF
KARNATAKA REPRESENTED BY THEIR NATURAL MOTHER,
GUARDIAN SMT. NEELAMMA APPELLANT NO-1.
6. SMT. LAXMI
W/O LATE HULYA @ HULIAPPA
AGE: 62 YEARS, OCC: HOUSEHOLD AND COOLIE
WORK,
7. SRI. HULYA @ HULIAPPA S/O THAKREY
AGE: 66 YEARS, OCC: COOLIE.
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MFA No. 200156 of 2020
ALL ARE R/O. BETTADUR TANDA,
TQ. MANVI, RAICHUR-584101,
PRESENTLY RESIDENT AT SINGANODI TANDA
...APPELLANTS
(BY SRI BABU H. METAGUDDA, ADVOCATE)
AND:
1. SRI. HANUMESH KURI S/O YAMANAPPA KURI
AGE: 32 YEARS OCC: DRIVER,
R/O. 4TH WARD S.B. COLONY,
BASAPATTANA TQ. GANGAVATHI,
DIST. KOPPAL-584101.
2. SRI. JAGADISH S/O YAMANAPPA
AGE: MAJOR OCC: BUSINESS &,
OWNER OF LORRY NO.KA-35/J-7127,
R/O 28TH WARD 100 BED HOSPITAL ROAD,
CHAPPARABADAHALLI TQ. HOSPET,
DIST. BELLARY-584101.
3. THE BRANCH MANGER
NATIONAL INSURANCE CO. LTD,
NEAR SURAKSHA HOSPITAL, RAICHUR,
TQ. & DIST. RAICHUR-584101.
...RESPONDENTS
(BY SRI DEEPAK V BARAD, ADVOCATE FOR R3;
VIDE ORDER DATED 07.01.2021, NOTICE TO R1 AND R2
DISPENSED WITH)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
A) CALL FOR THE RECORDS IN MVC NO.184/2018 ON THE FILE
OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, RAICHUR. B)
ALLOW THIS APPEAL AND MODIFY THE JUDGMENT AND
AWARD DATED 28.06.2019 PASSED IN MVC NO.184/2018 BY
THE MOTOR ACCIDENT CLAIMS TRIBUNAL AND PRINCIPAL
DISTRICT AND SESSIONS JUDGE AT- RAICHUR AND
ENHANCING THE COMPENSATION FROM RS.6,61,900/- WITH
6% INTEREST TO RS.16,70,000/- WITH 12% INTEREST.
C).ALLOW THIS APPEAL AND DIRECT THE 3RD
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MFA No. 200156 of 2020
RESPONDENT/INSURANCE COMPANY TO PAY THE ENTIRE
COMPENSATION TO THE CLAIMANTS/APPELLANTS. AND ETC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE UMESH M ADIGA)
This is a claimants' appeal for enhancement of
compensation awarded by the Tribunal in M.V.C.No.184 of
2018 dated 28.06.2019 on the file of the M.A.C.T.,
Raichur.
2. I refer the parties as per their rank before the
Tribunal.
3. Brief facts of the case are that on 28.01.2018,
the deceased Jagannath and Shankar were going on
motorcycle bearing Registration No.KA-36/EJ-3592 on
Raichur-Manvi main road. Deceased Jagannath was rider
and Shankar was pillion-rider. The driver of the lorry
bearing Registration No.KA-35/B-7127 had parked his
lorry on the middle of the road without putting on proper
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indicator lights and parking lights. Due to glare of
headlights of on coming vehicles, rider of the motorcycle,
i.e., Jagannath could not make out the parked lorry,
dashed against the rear side of the same. As a result of
which, rider of the motorcycle sustained grievous injuries.
The deceased Jagannath sustained head injuries and died
at the spot. A complaint was given to the concerned
police station and they have registered the FIR,
investigated the case and submitted the charge-sheet
against both rider of the motorcycle as well as driver of
the lorry.
4. It is the further case of the claimants that
claimant No.1 is his wife; claimant Nos.2 to 5 are children
and claimant Nos.6 and 7 are parents of the deceased
Jagannath. Deceased Jagannath was aged about 31 years
at the time of the accident and he was earning
Rs.15,000/- per month by working as a Mason and
maintaining entire family. Due to the death of the said
Jagannath, his family members are suffering. With these
reasons, prayed to award compensation.
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5. Respondent Nos.1 and 2 are driver and owner
of the lorry. Respondent No.3 is the Insurer of the said
lorry.
6. Respondent No.2 denied the contents of the
claim petition and he has further stated that accident had
taken place due to rash and negligent riding of the
motorcycle by the deceased. The claim petition is bad for
non-joinder of necessary parties. The said lorry was
insured with the Respondent No.3 and in the event, if
compensation is awarded, Respondent No.3 is liable to pay
the same. With these reasons, he prayed to dismiss the
claim petition.
7. Respondent No.3 has also denied the contents
of the claim petition and it has further stated that accident
had taken place due to negligence of the deceased and the
driver of the lorry was not at all responsible for the same.
The liability of the Respondent No.3 is restricted to terms
and conditions of the policy of insurance and holding of
valid and effective license by driver of the lorry. With
these reasons, prayed to dismiss the claim petition.
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8. The Tribunal had framed necessary issues.
9. Claimants examined PWs-1 and 2 and got
marked Exs.P1 to P6 and closed their evidence.
The respondents have examined one witness as RW-
1 and got marked Exs.R1 to R7 and closed their evidence.
10. The Tribunal, after hearing both the parties and
on appreciating the materials on record held that the
accident had taken place due to contributory negligence of
rider of the motorcycle as well as driver of the lorry and
apportioned it at the ratio of 50:50.
The Tribunal, while awarding the compensation
assessed the age of the deceased as 31 years; his earning
as Rs.6,400/- per month; applied multiplier as '16';
deducted 1/5th of income towards personal expenses and
assessed the compensation under the head loss of
dependency. The Tribunal has also awarded compensation
under the conventional head and awarded the following
amount of compensation:
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Sl. Heads of Compensation Amount
No. (in Rs.)
1 Loss of dependency 12,28,800
2 Loss of consortium 25,000
3 Loss of love and affection 25,000
4 Loss of estate 25,000
5 Transportation of dead 20,000
body and funeral
Total 13,23,800
11. The Tribunal deducted 50% of the said
compensation on the ground that rider of the motorcycle
was responsible for the accident and directed Respondent
Nos.2 and 3 to pay 50% of the compensation by the
impugned judgment and award.
12. I have heard the arguments of the learned
Advocate for the Appellant and Respondent No.3.
13. The learned Advocate for the Appellant would
submit that undisputedly, the lorry was parked on the
road. The driver of the lorry did not take any precaution
to indicate that it was parked and there was no parking
light or any guard-stones behind the said vehicle. The
accident had taken place during night. Deceased was
riding the motorcycle. In view of the darkness, so also,
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without taking any precautionary measures, driver of the
lorry had parked the vehicle, because of which, deceased
rider of the motorcycle could not see the same and banged
against back side of the lorry, as a result of which, he
sustained severe head injuries and died.
The learned Advocate for the appellant would further
submit that unfortunately, the Investigation Officer
charge-sheeted the deceased rider of the motorcycle
though he was not negligent in riding the vehicle. The
driver of the lorry had committed an offence under Section
122 of the Motor Vehicles Act. In addition to that, he
pleaded guilty before the concerned Criminal Court and
paid fine. These facts clearly indicate that he was
responsible for the accident in question.
Learned Advocate for Appellant would further submit
that the Co-ordinate Bench of this Court in M.F.A.
No.200227 of 2020 (MV-I) dated 03.10.2023 held that
when vehicle was parked on the main road without taking
precautionary measures, the driver of such vehicle was
solely responsible for the accident in question, if any
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person dashed against the parked vehicle during the night.
He has relied on the judgment of the Hon'ble Apex Court
in the case of Archit Saini and another Vs. The Oriental
Insurance Company Limited and others 1. With these
reasons, prayed for setting aside the impugned judgment
and allow the appeal by enhancing the compensation
amount awarded by the Tribunal, as well as directing the
respondents to pay entire amount of compensation.
14. The learned Advocate for Respondent No.3
vehemently contended that charge-sheet was filed against
rider of the motorcycle as well as the driver of the lorry.
PW-2 who is an eye-witness to the accident and pillion-
rider of the motorcycle, in his cross-examination, admits
that portion of the lorry was parked on the tar road and
remaining portion was parked on the mud-road and there
was space of about 25 feet towards right side of the lorry.
The rider of the motorcycle could easily pass through from
the right side of the lorry. The said admission of an eye-
2018 Kant M.A.C.346(SC)
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witness is sufficient to show that it was negligence of rider
of the motorcycle.
He would further submit that the motorcycle had also
headlight, by the same, he could have seen the parked
lorry. Even though for the sake of discussion, it is
accepted that the driver of the lorry had not taken any
precautionary measures, the rider of the motorcycle could
have reduced the speed of the motorcycle or stopped his
motorcycle. It indicates that rider of the motorcycle had no
control over his vehicle.
15. The learned Advocate for Respondent No.3
would further submit that the Tribunal in the impugned
judgment discussed in detail about the evidence of both
the parties. The Respondent examined RW-1 who was
driver of the lorry. In his cross-examination by the
petitioners, even it was not suggested that he did not take
care of putting the indicator light or keeping the guard-
stones behind the lorry to indicate that it was parked.
These facts indicate that the accident had taken place due
to the negligence of the deceased. The Tribunal rightly
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held the same and there is no reason to interfere with the
impugned judgment.
16. The learned Advocate for Respondent No.3
would further submit that whatever the amount of
compensation awarded by the Tribunal is just and
reasonable and claimant is not entitled for any
enhancement of the same.
17. The fact of accident and the manner in which
the accident had taken place and death of Jagannath are
not in dispute. It is not in dispute that place of accident is
Raichur-Manvi main road and lorry was parked at the time
of the accident. As per the case of the claimants, said
lorry was parked on the middle of the road. The spot
mahazar and map of the place of accident would also
indicate that the lorry was parked on the tar road.
However, PW-2 in his cross-examination has stated that
portion of the lorry was on the mud-road and remaining
five to six feet portion was on the main road. He has also
stated that there was lot of space of around 25 feet
towards the right side of the lorry. He denies the
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suggestions of the Insurer that driver of the lorry has
taken precautionary measure of switching on the indicator
lights.
18. The driver of the lorry was examined by
Respondent as RW-1. In his evidence, he has stated that
due to some mechanical defects, he was forced to park the
vehicle on the tar road. He was cross-examined by the
Advocate for the petitioner and he denied suggestion that
due to negligent parking of the lorry, without following the
safety measures, accident had taken place. In the cross-
examination of the Insurer, he has stated that the vehicle
was parked at the extreme left side of the road. The
vehicle required repairs, therefore, he parked it and went
to call a Mechanic. He switched on the parking lights and
kept the guard-stones on the back side of the lorry.
In the cross-examination, petitioner has not
elaborately questioned him regarding the place of the
parking or width of the road, etc., he might be the
competent person because being a driver of the vehicle,
he could have answered such relevant questions.
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Whatever he has stated in the cross-examination of the
Insurer regarding taking of safety measures such as
putting on the parking lights or keeping the guard-stones,
etc., were not denied.
19. Considering the evidence of PW-2 and RW-1, it
could be safely held that there is contributory negligence
by the deceased also for causing accident in question.
20. As rightly submitted by the learned counsel for
the appellant, the contributory negligence of deceased
taken by the Tribunal is on the higher side, probably,
based on the charge-sheet filed against him by the
concerned police along with the driver of lorry. Either of
the parties should have examined the Investigation Officer
to analyze the parking of the lorry and use of the parking
lights, etc., because both PW-2 as well as RW-1 are
interested witnesses. On the basis of the available
materials and evidence of the witnesses, the contributory
negligence of the rider of the motorcycle, deceased
Jagannath and driver of the lorry is assessed as 25:75.
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Rider of the motorcycle has contributed to an extent of
25% for the cause of the accident.
21. Deceased was rider of the motorcycle and is
said to be the owner of the said motorcycle. Since he was
a joint tort-feasor, his legal heirs are on record and in their
presence, the contributory negligence can be apportioned.
22. Considering the amount of compensation
awarded by the Tribunal, reassessment/recalculation of
the same is required. The Tribunal has taken income of
the deceased as Rs.6,500/- per month. The accident had
taken place during the year 2018. If the Chart of notional
income prepared by the Karnataka State Legal Services
Authority is taken into account, the notional income of the
deceased could be taken as Rs.11,750/- per month.
Admittedly, he was aged about 31 years. Therefore, 40%
of his income has to be added towards future prospects.
The multiplier applicable to the case in hand is '16'.
Deceased had to maintain in all seven dependants.
Therefore, deduction towards personal expenses is taken
as 1/5th; on the basis of the said figures, compensation
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under the head 'loss of dependency' is assessed. The
Tribunal has not awarded the compensation under the
conventional heads as per the law laid down in the case of
National Insurance Company Limited Vs. Pranay Shethi
and others2 and Magma General Insurance Company
Limited Vs. Nanu Ram Alias Chuhru Ram and others 3.
23. For the aforesaid discussion, following amount
of compensation is awarded:
Sl. Heads of Compensation Amount
No. (in Rs.)
1 Loss of dependency 25,26,720
Rs.11750+40%X12X16X4/5
2 Loss of consortium 2,80,000
3 Loss of estate 15,000
4 Funeral expenses 15,000
Total 28,36,720
25% contribution 7,09,180
21,27,540
Awarded by Tribunal 6,61,900
TOTAL 14,65,640
Respondent No.3 is liable to pay the same with
interest @ 6% per annum from the date of petition.
(2017) 16 SCC 680
(2018) 18 SCC 130
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24. For the aforesaid discussion, I proceed to pass
the following:
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and award passed by
the Motor Accident Claims Tribunal, Raichur in
M.V.C.No.184 of 2018 dated 28.06.2019 is
modified;
(a) The claimant is entitled for enhancement
of Rs.14,65,640/- (Rupees Fourteen
Thousand Sixty Five Thousand Six
Hundred and Forty only) with interest at
the rate of 6% per annum from the date
of the petition till its realization.
iii. The Respondent No.3 is liable to pay the said
amount with interest and it shall deposit the
same within a period of Six weeks from the
date of release of this order.
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iv. Apportionment, Deposit and Release of the
compensation amount is as ordered by the
Tribunal.
The Registry is directed to send back the Trial Court
records with copy of this judgment.
Sd/-
JUDGE
DH
CT:PK
