Karnataka High Court
Smt.Nirmala And Ors vs Sri.Pandit Rao And Anr on 29 May, 2024
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MFA No.201063 of 2017
C/W MFA.CROB No.200059 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF MAY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO.201063 OF 2017 (MV-D)
C/W.
MFA.CROB.NO.200059 OF 2017 (MV-D)
IN M.F.A.NO.201063 OF 2017
BETWEEN:
THE BRANCH MANAGER,
ORIENTAL INSURANCE CO. LTD.,
BRANCH OFFICE, SHOP NO.3,
KAMASHETTY COMPLEX,
NEAR BUS STAND, BIDAR.
Digitally signed by
(NOW REPRESENTED BY AUTHORIZED
BASALINGAPPA
SHIVARAJ SIGNATORY, DIVISION OFFICE, KALABURAGI)
DHUTTARGAON
Location: HIGH ...APPELLANT
COURT OF
KARNATAKA
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
1. NIRMALA
W/O LATE RAVI SHETKAR,
AGE: 37 YEARS, OCC: HOUSEHOLD,
2. KOMAL @ MARNAL
D/O LATE RAVI SHETKAR,
AGE: 17 YEARS, MINOR,
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MFA No.201063 of 2017
C/W MFA.CROB No.200059 of 2017
3. AMAN
S/O RAVI SHETKAR,
AGE: 14 YEARS, MINOR,
BOTH MINORS
U/G OF THEIR MOTHER
NIRMALA
W/O LATE RAVI SHETKAR
AGE: 37 YEARS,
OCC: HOUSEHOLD WORK,
4. BICHAMMA
W/O BASAWARAJ SHETKAR,
AGE ABOUT 62 YEARS,
OCC: HOUSEHOLD WORK,
ALL R/O : HYDERABAD ROAD,
LADGERI, BIDAR - 585 401.
5. PANDIT
S/O DIGAMBER RAO HIBARE,
AGE: MAJOR,
OCC: TRANSPORT OPERATOR
R/O : HALLIKHED - B,
TQ: HUMNABAD,
DIST : BIDAR - 585 401.
...RESPONDENTS
(BY SRI RAVI B. PATIL, ADVOCATE FOR R1 TO R4;
R-2 AND R-3 ARE MINORS REPRESENTED BY R1;
V/O DTD.05.02.2019, NOTICE TO
R5 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, PRAYING TO, CALL FOR THE RECORDS
AND ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE
IMPUGNED JUDGMENT AND AWARD DATED 25.03.2017 IN
M.V.C.NO.657/2012 PASSED BY THE SENIOR CIVIL JUDGE AND
M.A.C.T., HUMNABAD, IN THE INTEREST OF JUSTICE.
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MFA No.201063 of 2017
C/W MFA.CROB No.200059 of 2017
IN MFA.CROB.NO.200059 OF 2017
BETWEEN:
1. SMT.NIRMALA
W/O LATE RAVI SHETKAR,
AGED ABOUT 37 YEARS,
OCC: HOUSEHOLD,
2. KOMAL @ MARNAL
D/O LATE RAVI SHETKAR,
AGED ABOUT 17 YEARS,
OCC: STUDENT,
3. AMAN
S/O LATE RAVI SHETKAR,
AGED ABOUT 14 YEARS,
OCC: STUDENT,
CROSS APPELLANTS 2 AND 3
BEING MINORS
U/G OF THEIR NATURAL MOTHER,
SMT. NIRMALA
W/O LATE RAVI SHETKAR,
4. SMT. BICHAMMA
W/O BASWARAJ SHETKAR,
AGED ABOUT 62 YEARS
OCC: HOUSEHOLD,
ALL R/O : HYDERABAD ROAD,
LADGERI, BIDAR - 585 401.
...CROSS OBJECTORS
(BY SRI RAVI B. PATIL, ADVOCATE)
AND:
1. SRI.PANDIT RAO
S/O DIGAMBER RAO HIBARE,
AGE: MAJOR,
OCC: TRANSPORT OPERATOR,
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MFA No.201063 of 2017
C/W MFA.CROB No.200059 of 2017
R/O : HALLIKHED - B,
TQ: HUMNABAD &
DIST : BIDAR.
(OWNER OF GOODS
LORRY BEARING
REG.NO.KA.39 0801)
2. THE BRANCH MANAGER,
ORIENTAL INSURANCE CO. LTD.,
BRANCH OFFICE, SHOP NO.3,
KAMSHETTY COMPLEX,
NEAR BUS STAND, BIDAR - 585 401.
...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
V/O DTD. 29.01.2019,
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA CROB. IS FILED UNDER ORDER XLI RULE 22
OF CODE OF CIVIL PROCEDURE, 1908 PRAYING TO CALL FOR
THE RECORDS IN M.V.C.NO.657/2012 ON THE FILE OF THE
COURT OF SENIOR CIVIL JUDGE AND M.A.C.T., AT HUMNABAD
AND SET ASIDE THE JUDGMENT AND AWARD DATED
25.03.2017 PASSED BY THE COURT OF SENIOR CIVIL JUDGE
AND M.A.C.T., AT HUMNABAD, AND CONSEQUENTLY ALLOW
THE PRESENT APPEAL THEREBY ENHANCE THE COMPENSATION
FROM RS.22,05,000/- TO RS.57,55,000/- AS CLAIMED IN THE
PRESENT APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY
AND ETC.
THIS MFA AND MFA CROB. COMING ON FOR HEARING,
THIS DAY, ASHOK S. KINAGI J., DELIVERED THE
FOLLOWING:
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MFA No.201063 of 2017
C/W MFA.CROB No.200059 of 2017
JUDGMENT
This appeal and cross-objection are arising out of
the judgment and award dated 25.03.2017 passed in
MVC No.657/2012 by the Senior Civil Judge and
Member, Motor Accident Claims Tribunal, Humnabad,
(for short hereinafter referred to as 'the Tribunal').
2. The Insurance Company has filed the appeal
in MFA No.201063/2017 and the claimants have filed
the cross-objection in MFA.CROB.No.200059/2017.
3. For the sake of convenience, parties are
referred to as per their ranking before the Tribunal. The
appellant is respondent No.2, respondents 1 to 4 are the
petitioners and respondent No.5 is respondent No.1.
4. Facts giving rise to filing of this appeal and
cross-objection are that, on 22.01.2012, the deceased-
Ravi had been to his Rinku Bar, at Humnabad for taking
stock of the business and after closure of the Bar, he
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along with his friend Manik @ Balu was returning to
Bidar, driving his own Tata Indica Car bearing
registration No.KA-38-M-1521, around 1.00 a.m., to
2.00 a.m., the deceased was driving his car on proper
side in normal speed. When he reached near
Shanimahatma cross on Humnabad road, the offending
lorry bearing registration No.KA-39-0801 which was
loaded with sugarcane was parked on the middle of the
road without keeping the tale indicator lights on and
putting stones or branches of trees around the lorry to
give the signal of stationed lorry. At that time, another
heavy vehicle was coming from opposite direction. Due
to dark night, the deceased-Ravi could not see the
stationed lorry and dashed to the said lorry. As a result,
Ravi and his friend Manik @ Balu died on the spot. The
petitioners are the legal representatives of deceased-
Ravi. It is contended that during the life-time of Ravi,
he was doing business and was earning Rs.50,000/- per
month. Due to the death of Ravi, the petitioners are
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deprived of their entire income. Hence, the petitioners
filed claim petition under Section 166 of the Motor
Vehicles Act, 1988 and pray to allow the claim petition
and to award compensation.
5. Though respondent No.1 appeared through
counsel, he did not choose to file written statement.
Respondent No.2 appeared through counsel and filed
written statement denying the averments made in the
claim petition. It is contended that the accident has
occurred due to the rash and negligent driving of the
deceased-Ravi and therefore, there is contributory
negligence on the part of the deceased-Ravi. Hence,
prayed to dismiss the claim petition.
6. The Tribunal on the basis of the pleadings of
the parties framed the issues and recorded the
evidence.
7. In order to establish the case, petitioner No.1
was examined as PW.1 and examined three witnesses as
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PWs.2 to 4 and got marked the documents as Exs.P1 to
P36. On the other hand, the respondents have not
entered into witness box. Respondent No.2 got marked
two documents as Exs.R1 and R2.
8. The Tribunal after recording the evidence and
after assessment of oral and documentary evidence on
record, allowed the claim petition in part with cost and
awarded compensation of Rs.22,05,000/- along with
interest at the rate of 6% per annum from the date of
claim petition till the date of payment. The Tribunal also
held that respondent Nos.1 and 2 are jointly and
severally liable to pay compensation to the petitioners
and respondent No.2 was directed to deposit the
compensation amount with accrued interest.
9. Respondent No.2 being aggrieved by the
judgment and award passed in MVC No.657/2012 filed
the appeal challenging the liability as well as quantum of
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compensation and the petitioners have filed the cross-
objection seeking enhancement of compensation.
10. Heard learned counsel for respondent No.2
and learned counsel for the petitioners.
11. Learned counsel for respondent No.2 submits
that there was contributory negligence on the part of the
deceased-Ravi. The Tribunal ought to have fastened
50% liability on the deceased-Ravi. The Tribunal has
committed an error in not considering the contents of
charge sheet produced by the petitioners. Hence, the
impugned judgment passed by the Tribunal is contrary
to the records. She further submits that the
compensation awarded by the Tribunal is on the higher
side and the same is required to be interfered with. On
these grounds, she prays to allow the appeal and to
dismiss the cross-objection filed by the petitioners.
12. Learned counsel for the petitioners supports
the impugned judgment and award passed by the
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Tribunal. He submits that in order to rebut the evidence
of the petitioners, respondent No.2 has not examined
any witness nor rebutted the claim of the petitioners.
Hence, the Tribunal was justified in fastening the liability
jointly on respondent Nos.1 and 2. He also submits that
the compensation awarded by the Tribunal is on the
lower side. Hence, he prays to allow the cross-objection
by enhancing the compensation and to dismiss the
appeal filed by respondent No.2.
13. We have perused the records and considered
the submissions of the learned counsel for the parties.
14. The point that arise for our consideration are
liability and quantum.
15. Insofar as liability, petitioners in order to
substantiate their claim, examined petitioner No.1 as
PW.1 and in order to establish that the accident has
occurred due to wrong parking of the lorry by the driver
of lorry bearing registration No.KA-39-0801, the
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petitioners have produced certified copy of FIR as Ex.P1
and the charge sheet as Ex.P6. We have perused Ex.P6
and also Ex.P3-spot panchanama which disclose that
the lorry was parked on the road at the distance of
15ft., from the path. Ex.P3 further discloses that the
said vehicle was parked on the road without keeping the
tale indicator lights on and putting stones or branches of
trees around the lorry to give the signal of parked lorry.
Hence, the petitioners have proved that there was
negligence on the part of the driver of the lorry and
there was no negligence on the part of the deceased-
Ravi. Though respondent No.2 has taken defence that
there was contributory negligence on the part of the
deceased, the officials of respondent No.2 have not
entered into the witness box to rebut the claim of the
petitioners. In the absence of oral and documentary
evidence, we are of the opinion that the Tribunal is
justified in fastening the liability jointly and severally on
respondents.
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16. Further, learned counsel for the petitioners
submits that respondent No.2 has already satisfied the
claim in MVC No.32/2014. When respondent No.2 has
satisfied the award passed in MVC No.32/2014, it cannot
escape from liability in the instant case.
17. Insofar as quantum of compensation, the
petitioners have contended that the deceased was doing
business. In order to substantiate the same, the
petitioners have produced Exs.P29 and P30-
Acknowledgements issued by the Income Tax
Department which disclose that the deceased-Ravi was
income tax assessee and had paid income tax for the
financial year 2009-2010 and 2010-2011. The Tribunal
considering Exs.P29 and P30 has assessed the monthly
income of the deceased-Ravi at Rs.10,000/- per month.
Considering the material on record, we are of the
opinion that the monthly income assessed by the
Tribunal and the compensation awarded by the Tribunal
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is just and proper. We do not find any error in the
impugned judgment. Hence, the impugned judgment
and award passed by the Tribunal does not call for any
interference.
18. Accordingly, we proceed to pass the following:
ORDER
The appeal filed by the Insurance Company and
cross-objection filed by the claimants are dismissed.
The amount in deposit be transmitted to the
Tribunal forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
NB
Ct: VK
