Karnataka High Court
Smt. Nagawwa W/O Basappa Honyal vs Shri. Yasusf Ali Ali Rangrej on 4 March, 2024
-1-
NC: 2024:KHC-D:4837
MFA No. 101164 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 101164 OF 2021 (MV-D)
BETWEEN:
1. SMT. NAGAWWA W/O. BASAPPA HONYAL,
AGE: 50 YEARS, OCCUPATION: NIL,
R/O. ANGOL, BELAGAVI,
NOW RESIDING AT KURANI-591221,
TALUKA: HUKKERI, DISTRICT: BELAGAVI.
2. SHRI. BASAPPA S/O. MALLAPPA HONYAL,
AGE: 55 YEARS, OCCUPATION: NIL,
R/O. ANGOL, BELAGAVI,
NOW RESIDING AT: KURANI-591221,
TALUKA: HUKKERI, DISTRICT: BELAGAVI.
...APPELLANTS
(BY SMT. SUNANDA P. PATIL, ADVOCATE)
AND:
Digitally signed by
ROHAN HADIMANI T
1. SHRI. YASUF ALI RANGREJ,
Location: HIGH
COURT OF
AGE: 40 YEARS, OCCUPATION: BUSINESS,
KARNATAKA R/O. 564, RAVIWARPETH,
EVHARAJ CHAMBERS,
OPP: BHAVANI MATA MANDIR,
PUNE, MAHARASTRA- 411002.
2. THE NEW INDIA ASSURANCE CO. LTD,
CHICHWAD D. O. THROUGH ITS
DIVISIONAL MANAGER, CLUB ROAD,
BELAGAVI-590001.
3. SMT. REKHA W/O. LAXMAN HONYAL,
AGE: 35 YEARS, OCCUPATION: HOUSEHOLD,
-2-
NC: 2024:KHC-D:4837
MFA No. 101164 of 2021
R/O. HONYAL-591124,
TALUKA AND DISTRICT: BELAGAVI.
4. KUMAR VIJAY S/O. LAXMAN HONYAL,
AGE: 19 YEARS, OCCUPATION: STUDENT,
R/O. HONYAL-591124,
TALUKA AND DISTRICT: BELAGAVI.
5. KUMAR VISHAL S/O. LAXMAN HONYAL,
AGE: 16 YEARS, OCCUPATION: STUDENT,
SINCE MINOR REPRESENTED BY HIS
MINOR GUARDIAN NATURAL MOTHER
RESPONDENT NO.3,
SMT. REKHA W/O. LAXMAN HONYAL.
...RESPONDENTS
(BY SRI. PRASHANT MATHAPATI, ADV. FOR R1,
SRI. S. V. YAJI, ADV. FOR R2,
SRI. SANJAY S. KATAGERI, ADV. FOR R3 TO R5)
THIS MISCELLENEOUS FIRST APPEAL IS FILED U/S.173 (1) OF
MOTOR VEHICLES ACT, 1988, PRAYING TO ALLOW THE APPEAL BY
MODIFYING THE JUDGMENT AND AWARD DATED 05.09.2019 IN MVC
NO.733/2016 PASSED BY THE SENIOR CIVIL JUDGE AND
ADDITIONAL MACT, HUKKERI ITERINARY COURT AT SANKESHWAR
AND ENHANCE THE COMPENSATION FROM RS. 11,10,900/- TO RS.
25,00,000/- TO THE APPELLANTS AND RESPONDENT NO.3 TO 5 BY
FIXING THE LIABILITY ENTIRELY ON OWNER AND INSURER OF
MARUTI ERTIGA CAR BEARING NO.MH-12/JZ-4298 IN THE INTEREST
OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
-3-
NC: 2024:KHC-D:4837
MFA No. 101164 of 2021
JUDGMENT
This appeal is by the claimants challenging the
contributory negligence to an extent of 25% saddled on the
deceased and seeking enhancement of compensation awarded
under judgment and award dated 5.9.2019 passed in MVC
No.733 of 2016 on the file of learned Senior Civil Judge and
Addl. MACT, Hukkeri, Itinerary Court at Sankeshwar (for short,
'Tribunal').
2. Brief facts leading to filing of this appeal are that on
26.4.2016, deceased Laxman Basappa Honyal was proceeding
on his motorcycle bearing registration No.KA-04/EP-4524
along with his wife-Smt.Rekha/ pillion rider from Belagavi to
Kurani village. When he came near Chikalagud cross on
Belagavi-Sankeshwar National Highway, the deceased Laxman
while taking turn towards Kurani village, at that time, one
Maruti Ertiga Car bearing registration No.MH-12/JZ-4298
driven by its driver came in a rash and negligent manner and
dashed to the motorcycle. Due to the impact, both rider and
pillion rider fell down and sustained grievous injuries.
However, the deceased succumbed to the injuries. It is
averred that the deceased Laxman was doing mason work and
NC: 2024:KHC-D:4837
earning Rs.500/- per day. Hence, the claimants filed claim
petition seeking compensation.
3. Respondent No.1/owner of the offending car
entered appearance and filed objections denying the entire
claim petition averments. Respondent No.1 specifically
contended that he was having valid and effective driving
license as on the date of the accident and vehicle was insured
with respondent No.2/Insurer. The respondent No.2/Insurance
Company having entered appearance filed statement of
objections denying the entire averments made in the claim
petitions. It is averred that rider of the motorcycle was not
having valid and effective driving license as on the date of the
accident. Thus, sought dismissal of the claim petition.
4. Before the Tribunal, appellant No.1/mother of the
deceased examined herself as PW1 and got marked Ex.P1 to
P7. Respondent No.3-wife of the deceased examined as RW1
and got marked Exs.D1 to D4. The Tribunal considering the
rival contentions of the parties and the evidence available on
record, awarded total compensation of Rs.14,81,200/- with
interest at 6% per annum holding that the deceased was
NC: 2024:KHC-D:4837
negligent in riding the motorcycle and contributed to the
accident to an extent of 25%. Being aggrieved by the award
of compensation as well as fastening of contributory
negligence on the deceased to an extent of 25%, the claimants
are before this Court.
5. Heard the learned counsel Smt.Sunanda P. Patil, for
the appellants/claimants, Sri.S.V.Yaji, learned counsel for
respondent No.2/Insurance Company and Sri.Sanjay S.
Katageri, learned counsel for respondents No.3 to 5.
6. Learned counsel Smt. Sunanda P.Patil appearing for
the appellants/claimants would submit that the Tribunal
committed an error in holding that the deceased was negligent
and contributed to the accident in question to an extent of
25%. The aforesaid finding of the Tribunal is contrary to the
evidence available on record and therefore, she seeks to
fasten the entire liability on the insurance company holding
that the driver of offending Car was negligent and caused the
accident. She further submits that the Tribunal committed an
error in assessing the income of the deceased at Rs.7,000/-
per month, which is contrary to the evidence available on
NC: 2024:KHC-D:4837
record. It is also submitted that award of compensation by the
Tribunal under the head of loss of consortium is on the lower
side, which requires to be interfered by enhancing
appropriately by applying 10% escalation on the said amount.
Thus, she seeks to allow the appeal filed by the claimants.
7. Sri.S.V.Yaji, learned counsel appearing for the
respondent No.2/Insurance Company submits that the Tribunal
has recorded its finding at paragraphs-16, 17 and 32 of the
impugned judgment with regard to liability and has come to a
definite conclusion that the rider of the motorcycle was
negligent, who took turn on National Highway without
observing the traffic rules and without seeing whether any
vehicle is coming on highway. He submits that Rough Sketch
at Ex.D3 clearly indicates that spot of the accident is 4.7 feet
eastern side of the road. In other words, driver of the
offending car was on the left side of the road and without
seeing the car, rider of the motorcycle came and dashed to the
Car, resulting in the accident in question. It is also submitted
that the Tribunal has recorded correct finding that
investigating officer has filed charge sheet against the
deceased as well as driver of the offending car. Hence, there
NC: 2024:KHC-D:4837
is no justification in altering the liability in the appeal filed by
the claimants. It is submitted that the award of compensation
by the Tribunal is just and proper, requires no interference.
Thus, he seeks to dismiss the appeal filed by the claimants.
8. Having heard the arguments of learned counsel for
the parties and on perusal of the entire appeal papers
including the Tribunal records, the following points would arise
for consideration in these appeals:
a) Whether the Tribunal is justified in holding that
the deceased rider of the motorcycle has
contributed to the accident in question to an
extent of 25%?
b) Whether the claimants are entitled for
enhanced compensation?
9. Answer to the above points would be in the
'negative' and 'affirmative' respectively for the following
reasons:
10. It is not in dispute that on 26.04.2016, the
deceased Laxman was proceeding on motorcycle bearing
registration No.KA-04/EP-4524 along with his wife and when
he reached national highway, he was about to cross the said
NC: 2024:KHC-D:4837
highway, at that time, the accident took place and in the said
accident, Laxman sustained fatal injuries and succumbed to
the same. The Tribunal considering the evidence available on
record has recorded a categorical finding at paragraphs-16, 17
and 32 that the rider of the motorcycle was also negligent and
contributed to the accident in question to an extent of 25% in
question. A bare perusal of the complaint at Ex.P1 and FIR at
Ex.P2 clearly indicates that driver of offending car was
negligent and caused the accident in question. The
jurisdictional police after completion of investigation, no doubt,
filed charge sheet against the driver of the offending Maruti
Car as well as rider of the motorcycle i.e., deceased Laxman.
A perusal of the charge sheet papers clearly discloses that the
charge sheet against the driver of the offending car was filed
for the offences punishable under Sections 279, 338 and 304
of IPC and charge sheet filed against rider of the motorcycle
was for the offence punishable under Sections 3, 181 and 146
of MV Act. The charge sheet filed against the rider of the
motorcycle was for the offences under the MV Act i.e., for not
having valid and effective driving license as on the date of the
accident. Admittedly, there is no charge sheet against the
NC: 2024:KHC-D:4837
deceased with regard to negligent aspect. Ex.D3-Rough
Sketch clearly indicates that the accident has taken place on
the western portion of national highway and the car was
proceeding from Sankeshwar to Belagavi. The spot of the
accident is shown 4.7 feet from the edge of the road. The said
sketch also indicates that rider of the motorcycle has crossed
almost 26 feet of the road and when he was about to cross the
entire road, only 4.7 feet was left, at that time, car came and
hit the motorcycle, resulting in the accident. In other words,
rider of the motorcycle has crossed major portion of the road
and when he reached center of the road, driver of the
offending car ought to have seen the motorcycle and reduced
the speed; without doing the same, the driver of the car
straightaway came and hit the motorcycle, which clearly
indicates that the driver of the offending car was driving the
vehicle in a rash and negligent manner and caused the
accident. The Tribunal has recorded a finding that charge
sheet is filed against both rider of the motorcycle as well as
driver of the car and proceeded to saddled liability on the
deceased at 25%. This Court is of the considered view that
such finding recorded by the Tribunal is contrary to the charge
- 10 -
NC: 2024:KHC-D:4837
sheet material and without noticing the fact that no charge
sheet is filed against rider of the motorcycle with regard to
negligence and filing of charge sheet against the deceased is
with regard to non-possession of driving license.
11. It is not in dispute that the Insurance Company has
not challenged the contents of the charge sheet in any of the
proceedings. Admittedly, the Insurance Company has not
examined any of the independent witness to disbelieve the
contents of the charge sheet. Hence, in the absence of any
contra evidence on record, the contention of the Insurance
Company that the rider of the motorcycle was negligent in
causing the accident, has no merit consideration, as the
charge sheet filed against the rider of motorcycle was for non-
possession of valid and effective driving license as on the date
of the accident and not for negligent riding of motorcycle.
12. Section 3 of the MV Act contemplates necessity for
driving license, which reads under:
No person shall drive a motor vehicle in any public
place unless he holds an effective driving license
issued to him authorizing him to drive the vehicle;
and no person shall so drive a transport vehicle
(other than a motor cab or motorcycle) hired for his
own use or rented under any scheme made under
- 11 -
NC: 2024:KHC-D:4837
sub-section(2) of Section 75) unless his driving
license specifically entitles him so to do so.
13. Section 181 of the MV Act provides driving vehicles
without possession of driving license, which reads as under:
Whoever drives a motor vehicle in contravention of
Section 3 or 4 shall be punishable with
imprisonment for a term which may extend to three
months, or with fine (of five thousand rupees), or
with both.
14. A perusal of the above provisions would make it
clear that whoever drives a motor vehicle without valid and
effective driving license is an offence under Section 181 of the
MV Act. Mere non-possession of driving license while
driving/riding a motor vehicle itself cannot be held to be a
ground for saddling contributory negligence. The MV Act does
not provide for absolving the liability of the insurance company
on the ground of non-possession of driving license.
15. The Hon'ble Apex Court in the case of Sudhir
Kumar Rana Vs. Surinder Singh & Others1, at paragraph-9
has held as follows:
9. If a person, drives a vehicle without a license, he
commits an offence. The same, by itself, in our opinion, may
not lead to a finding of negligence as regards the accident. It
has been held by the Courts below that it was the driver of the
(2008) 12 SCC 436
- 12 -
NC: 2024:KHC-D:4837
mini truck who was driving rashly and negligently. It is one
thing to say that the appellant was not possessing any license
but no finding of fact has been arrived at that he was driving
the two-wheeler rashly and negligently. If he was not driving
rashly and negligently which contributed to the accident, we
fail to see as to how, only because he was not having a license,
he would be held to be guilty of contributory negligence.
(Emphasis supplied)
16. A reading of the above paragraph, it is very clear
that merely because deceased rider of motorcycle was not
having driving license, that itself cannot be held to be guilty of
contributory negligence. Negligence cannot be fixed on the
shoulders of the rider of the motorcycle merely for not having
driving license. Therefore, it cannot be said that there was
contributory negligence on part of the rider due to which the
accident has occurred. Moreover, it is for the insurer who
contends that rider of the motorcycle had no license to prove
the same. There is no material to that effect and also there is
no material evidence to say that negligence of the rider
contributed to the occurrence of accident. Thus, the contention
of the insurance company cannot be acceded to and same is
liable to be rejected. Therefore, in the present facts and
circumstances of the case, I am of the considered view that
finding recorded by the Tribunal with regard to contributory
negligence to an extent of 25% on the deceased is wholly
- 13 -
NC: 2024:KHC-D:4837
unsustainable and same is modified holding that due to sole
negligence on the part of the driver of offending car, the
accident took place. Hence, Issue No.1 is answered in the
negative holding that the insurance company is liable to pay
entire compensation amount.
17. Insofar as quantum of compensation is concerned,
the Tribunal committed an error in assessing the income of the
deceased at Rs.7,000/- per month. Admittedly, the
appellants/claimants have not produced any cogent evidence
to substantiate the claim of income of the deceased. In the
absence of any cogent and acceptable evidence on record, this
Court relies on notional income chart prepared by the KSLSA
based on the year of accident. Taking note of the aforesaid
chart, this Court assesses notional income of the deceased at
Rs.8,750/- per month. There is no dispute with regard to
addition of 40% of the assessed income towards loss of future
prospects, age of the deceased as 35 years, deduction of 1/4th
towards personal and living expenses of the deceased as there
are five dependents and applicable multiplier of 16. Thus, the
claimants would be entitled for modified compensation on the
head of loss of dependency as under:
- 14 -
NC: 2024:KHC-D:4837
Rs.8,750 + 40% x 12 x 16 x 3/4 = Rs.17,64,000/-
18. In terms of decision of Hon'ble Apex Court in the
case of Magma General Insurance Company Limited Vs.
Nanu Ram & Others2, appellant No.1 and 2 would be entitled
to Rs.44,000/- each towards filial consortium, respondent
No.3/wife of the deceased would be entitled to Rs.44,000/-
towards spousal consortium and respondents No.4 and 5
would be entitled to Rs.44,000/- each towards parental
consortium including 10% escalation. In terms of decision of
the Hon'ble Apex Court in the case of National Insurance
Company Limited Vs. Pranay Sethi & Others3, the
claimants would be entitled to Rs.16,500/- towards loss of
estate and Rs.16,500/- towards funeral expenses including
10% escalation.
19. Thus, the claimants would be entitled to modified
compensation on the following heads:
2018 ACJ 2782
2017 (16) SCC 680
- 15 -
NC: 2024:KHC-D:4837
Particulars Amount
(in Rs.)
Loss of dependency 17,64,200/-
Loss of estate 16,500/-
Funeral expenses 16,500/-
Loss of consortium (Rs.44,000 x 5) 2,20,000/-
Total 20,17,200/-
Thus, the claimant shall be entitled to total compensation
of Rs.20,17,200/- as against Rs.14,81,200/- awarded by the
Tribunal.
20. 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.20,17,200/- as against Rs.14,81,200/-
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.
- 16 -
NC: 2024:KHC-D:4837
d) The insurance company is liable to pay entire
compensation and accordingly is directed to
deposit the entire compensation amount with
accrued interest before the Tribunal within a
period of six weeks from the date of receipt of
certified copy of this judgment.
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
