Karnataka High Court

Smt.Malu W/O Vishnu Lohar vs Shri.Nilesh Tukaram Virole on 4 November, 2024

Author: H.T.Narendra Prasad

Bench: H.T.Narendra Prasad

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                                                       NC: 2024:KHC-D:16147-DB
                                                       MFA No. 101235 of 2018




                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                           DATED THIS THE 4TH DAY OF NOVEMBER 2024
                                             PRESENT
                         THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
                                                AND
                           THE HON'BLE MR. JUSTICE VENKATESH NAIK T

                         MISCELLANEOUS FIRST APPEAL NO.101235 OF 2018



                   BETWEEN:

                   1.   SMT. MALU W/O. VISHNU LOHAR
                        AGE: 44 YEARS,
                        OCC: HOUSEHOLD,
                        R/O: SUBHASH ROAD,
                        SANKESHWAR,
                        TQ: HUKKERI,
                        DIST: BELAGAVI.

                   2.   SRI. VIJAY S/O. VISHNU LOHAR
                        AGE: 22 YEARS, OCC: NIL,
                        R/O: SUBHASH ROAD,
                        SANKESHWAR,
                        TQ: HUKKERI,
Digitally signed        DIST: BELAGAVI.
by MANJANNA E
Location: HIGH
COURT OF                (SINCE DEAF AND DUMB REPRESENTED
KARNATAKA               BY THE NATURAL GUARDIAN MOTHER APPELLANT NO.1).
DHARWAD
BENCH
Date: 2024.11.16   3.   SMT. PRIYANKA W/O. NAVANATH SUTAR
11:10:39 +0530
                        AGE: 26 YEARS, OCC: HOUSEHOLD,
                        R/O: BHAIRWADI, TQ: GADHINGLAJ,
                        DIST: KOLHAPUR.
                                                                  ...APPELLANTS
                   (BY SRI. NAGARAJ J.APPANNAVAR AND
                       SRI. NAVEEN R. MELINAMANI, ADVOCATES)
                             -2-
                                     NC: 2024:KHC-D:16147-DB
                                     MFA No. 101235 of 2018




AND:

1.   SHRI. NILESH TUKARAM VIROLE
     AGE: 40 YEARS, OCC: BUSINESS,
     R/O: A/P SHIKRAPUR,
     TQ: SHIRUR, DIST: PUNE,
     (OWNER OF TATA TRUCK BEARING
     NO MH-12/HC-8811).

2.   THE DIVISIONAL MANAGER
     ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
     # 14, KRISHNA TOWER,
     TILAKWADI, BELAGAVI,

     (INSURER OF TATA TRUCK BEARING NO.
     MH-12/HC-8811, COVER NOTE NO. 82403986,
     VALID FROM 26.08.2013 TO 24.08.2014)
                                               ...RESPONDENTS
(BY SRI. S.K.KAYAKAMATH, ADVOCATE FOR R2;
    R1- SERVED)


       THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED
24.07.2017 PASSED IN MVC NO.2500/2014 ON THE FILE OF THE X
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER OF
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.


       THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:      THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
                                 AND
              THE HON'BLE MR. JUSTICE VENKATESH NAIK T
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                                       NC: 2024:KHC-D:16147-DB
                                       MFA No. 101235 of 2018




                        ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)

This appeal is filed by the claimants seeking enhancement

of compensation awarded by judgment and award dated

24.07.2017 passed by the learned X Additional District and

Sessions Judge and Additional MACT, Belagavi, in M.V.C.

No.2500/2014 whereunder the Tribunal has awarded

compensation of Rs.5,82,000/-.

2. For the sake of convenience, the parties are

referred to as per their ranking before the Tribunal.

3. Brief facts of the claimants' case before the Tribunal

are that, on 26.05.2014 at about 12:15 pm, on Belagavi-

Sankeshwar NH-4 near Chkkalagudda cross, the driver one Sri.

Tulasiram Vittal Sharuk, driver of truck bearing No.MH-12/HC-

8811 drove the same from Belagavi to Sankeshwar in a high

speed and in a rash and negligent manner and dashed to the

scooter of the deceased bearing registration No.KA.23/Y-7935,

when the rider of the scooter along with the pillions were

crossing the said Highway towards Kadalagi village road. Due

to the said impact, Smt. Geetha, who was pillion rider died on

the spot and a minor girl by name Rutika, aged about 13 years,

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who was also a pillion on the said scooter, died when she was

taken to Sankeshwar Government Hospital and the rider of the

scooter by name Vishnu Lohar aged about 50 years, died on

the way to the District Hospital, Belagavi. It is contended that

the deceased Vishnu Lohar was aged about 48 years and was

earning Rs.15,000/- per month by doing photo frame work and

due to his sudden death, they have lost the only bread earning

member. Therefore, the wife and children of the rider of the

scooter filed a claim petition seeking compensation.

4. After service of notice before the Tribunal,

respondent No.1-owner of the truck remained absent and was

placed exparte. Respondent No.2/Insurer appeared through

counsel and filed objections denying the entire averments made

in the petition.

5. The Tribunal considering the oral and documentary

evidence on record, awarded compensation of Rs.5,82,000/-

with interest at 6% per annum from the date of petition till its

realization.

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6. Being dissatisfied with the compensation awarded

by the Tribunal, the claimants have preferred this appeal.

7. Learned counsel for the appellants/claimants

contended that the Tribunal has committed an error in

assessing the income of the deceased at Rs.7,000/- per month,

whereas the deceased was doing photo frame work and earning

a sum of Rs.15,000/- per month and it ought to have taken the

income at Rs.7,500/- per month, as per the Circular issued by

the Karnataka State Legal Services Authority as well as High

Court Legal Services Committee for the accident of the year

2014. Thus, he prays for allowing the appeal by enhancing the

compensation reasonably.

8. Per contra, learned counsel for the

respondent/insurance company contended that the Tribunal

considering the oral and documentary evidence on record, has

awarded fair and reasonable compensation and hence, no

interference is called for at the hands of this Court. He further

contended that, at the time of accident, the rider of the scooter

was not having valid and effective driving licence to ride the

motor cycle and there was no Registration Certificate, Fitness

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certificate or permit of the vehicle and hence, the owner of the

vehicle has violated the conditions of the policy. Further the

owner has not complied the provisions of Sections 134(1) and

158(6) of MV Act. It is his further contention that the accident

was due to the negligence of the rider of the scooter and

hence, the insurance company is not liable to pay the

compensation. Thus, the learned counsel prays for dismissal of

the appeal.

9. Having heard the learned counsel for the parties

and on perusal of the appeal papers including original records

of the Tribunal, the points that arise for our consideration in

this appeal are:

1. Whether the insurer proved that, the accident

occurred due to negligent riding of the deceased

Vishnu Lohar, who contributed his negligence?

2. Whether the quantum of compensation awarded

by the Tribunal is just and reasonable or does it call

for enhancement?

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10. There is no dispute with regard to the occurrence of

the accident on 26.05.2014 and also death of Vishnu Lohar in a

road traffic accident.

11. Insofar as negligence is concerned, the insurer has

taken contention that the accident took place due to negligent

riding of rider of the scooter, who also contributed his

negligence in occurring the accident. In order to prove the

aspect of negligence, the claimants have examined PW1 to

PW3, wherein they have stated that on 26.05.2014, the

deceased Vishnu Lohar as a rider, deceased Geeta and Kumari

Rutika as pillion riders were proceeding on Three Wheeler

Activa Scooter meant for handicapped person bearing

registration No.KA-23/Y-7935 on Sankeshwar-Belagavi road,

from Sankeshwar to Belagavi, when they approached near

Chikkalagudda Cross, the rider Vishnu Lohar had taken a turn

of his Activa Scooter towards Kadalagi Cross road, at that time,

the driver of Truck bearing registration No.MH-12/HC-8811

came on NH-4 road from Belagavi to Sankeshwar and dashed

to Activa Scooter. Due to which, rider and pillion riders fell

down and sustained severe injuries. The pillion rider Geeta

died at the spot, Kumari Rutika died in Sankeshwar Hospital

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and rider Vishnu Lohar also died in District Hospital, Belagavi.

As per charge sheet, the Investigating Officer charge sheeted

the driver of the Truck for the offence of rash and negligent

driving, which is evident from Ex.P7. As per Ex.P3-Spot

Mahazar and Ex.P4-Sketch, the rider of the scooter was

crossing the road, however, he ought to have taken utmost

care and caution while crossing the road that too National

Highways. Thus, from perusal of oral and documentary

evidence on record, it is clear that the rider of scooter was also

contributed his negligence in the occurrence of the accident.

Therefore, we are of the considered view that the Tribunal has

rightly observed that rider of the scooter Vishnu Lohar also

contributed his own negligence in the occurrence of the

accident, which is to an extent of 25% and remaining 75% due

to actionable negligence of driver of Truck bearing reg. No.MH-

12-HC/8811. Thus, we find no error in the finding of the

Tribunal with regard to contributory negligence.

12. Insofar as quantum of compensation is concerned,

the Tribunal assessed the notional income of the deceased at

Rs.7,000/- per month, which is on the meager side. The

accident is of the year 2014. No documentary evidence is

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placed on record with regard to income of the deceased that he

was earning Rs.15,000/- per month by doing photo frame

work. In the absence of proof of income, taking note of the

Circular issued by the Karnataka State Legal Services Authority

as well as High Court Legal Services Committee, Dharwad, we

deem it appropriate to re-assess the notional income of the

deceased at Rs.7,500/- per month. The deceased was aged

about 52 years at the time of the accident. The respondents

have not disputed this aspect. As per decision of the Hon'ble

Apex Court in the case of Sarala Verma & Others Vs. Delhi

Transport Corporation & Another1, multiplier applicable to

the age of the deceased is '11' which is rightly considered by

the Tribunal.

13. The deceased Vishnu Lohar died leaving behind his

wife, children and therefore, appropriate deduction towards

personal expenses of the deceased would be 1/3rd, which has

been rightly adopted by the Tribunal. The Tribunal has not

considered the future prospects of the deceased. As per the

principles of law laid down by the Hon'ble Apex Court in the

case of Pranay Sethi supra, 10% of the assessed income has

2009 ACJ 1298

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NC: 2024:KHC-D:16147-DB

to be added towards future prospects. Thus, loss of dependency

is reckoned as under:

Rs.7,500/- + 750(10%) = Rs.8,250/-

Rs.8,250/-x 2/3rd x 12 x 11 = Rs.7,26,000/-

14. The Tribunal has awarded Rs.50,000/- towards loss

of consortium, Rs.50,000/- towards loss of love and affection,

Rs.10,000/- towards funeral expenses and Rs.25,000/- each

towards loss of estate and transportation of dead body. The

claimants are wife and children of the deceased. As per the

judgment rendered by the Hon'ble Apex Court in the case of

Magma General Insurance Company Limited Vs Nanu

Ram @ Churu Ram & Others2 and Pranay Sethi supra, the

claimants are entitled to Rs.1,20,000 i.e. (Rs.40,000x3)

towards loss of consortium, Rs.15,000/- towards loss of

estate and Rs.15,000/- towards funeral expenses. Thus, in all,

the claimants are entitled to modified compensation as under:

        Loss of dependency                        Rs.7,26,000/-
        Loss of consortium (Rs.40,000x3)          Rs.1,20,000/-
        Loss of estate                            Rs. 15,000/-
        Funeral expenses                          Rs. 15,000/-
                                                  ------------------
                        Total                     Rs.8,76,000/-
                                                  ------------------


    2018 (18) SCC 130
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                                            NC: 2024:KHC-D:16147-DB





        15.   Thus,   the    claimants     are   entitled    to   total

compensation of Rs.8,76,000/-.            Since there is contributory

negligence on the part of the deceased rider of the scooter to

an extent of 25%, the claimants are entitled to 75% of the total

compensation i.e., Rs.6,57,000/- (Rs.8,76,000 x 75%) as

against Rs.5,82,000/- awarded by the Tribunal.

16. In the result, we pass the following:

ORDER

The appeal filed by the claimants is allowed in part.

The judgment and award dated 24.07.2017 passed by the

learned X Additional District and Sessions Judge and

Additional MACT, Belagavi, in M.V.C. No.2500/2014 is

modified to the extent that the claimants are entitled to

total compensation of Rs.6,57,000/- as against

Rs.5,82,000/- with interest at the rate of 6% per annum

from the date of petition till realization. The insurance

company shall deposit the compensation with accrued

interest before the Tribunal within six weeks from the date

of receipt of certified copy of this judgment.