Karnataka High Court

Sri. Kumar vs Sri. C. Nagappa on 11 November, 2024

Author: N S Sanjay Gowda

Bench: N S Sanjay Gowda

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                                                          MFA No. 708 of 2020
                                                     C/W MFA No. 1953 of 2020



                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 11TH DAY OF NOVEMBER, 2024

                                            BEFORE
                          THE HON'BLE MR JUSTICE N S SANJAY GOWDA
                         MISCELLANEOUS FIRST APPEAL NO. 708 OF 2020
                                             C/W
                        MISCELLANEOUS FIRST APPEAL NO. 1953 OF 2020
                                            (MV-D)


                   IN MFA No. 708/2020:

                   BETWEEN:

                   1.    SRI. KUMAR
                         S/O LATE NANJAPPA
                         NOW AGED ABOUT 32 YEARS

                   2.    NARAYANAMMA
                         W/O LATE NANJAPPA
                         NOW AGED ABOUT 64 YEARS

Digitally signed         BOTH ARE RESIDING AT
by KIRAN
KUMAR R                  JODIKRISHNAPURA VILLAGE,
Location: High           NARASAPURA POST,
Court of
Karnataka                KOLAR TALUK AND DISTRICT.
                                                                 ...APPELLANTS
                   (BY SRI. GOPAL KRISHNA N., ADVOCATE)

                   AND:

                   1.    SRI. C. NAGAPPA
                         S/O CHINNAPPA
                         MAJOR BY AGE,
                         RESIDING AT BETTAGERANAHALLI VILLAGE,
                         HANUMANAHALLI POST,
                         MULBAGAL TALUK,
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                                        NC: 2024:KHC:45594
                                      MFA No. 708 of 2020
                                 C/W MFA No. 1953 of 2020



     KOLAR DISTRICT-563131.

2.   M/s NATIONAL INSURANCE COMPANY LTD
     REGIOANL OFFICE
     SHUBARAM COMPLEX,
     M.G.ROAD, BENGALURU-560001
     BY ITS MANAGER

3.   SMT. JOTHI S
     W/O KUMAR,
     MAJOR BY AGE,
     RESIDING AT NO.52/C,
     12TH CROSS, MAGADI ROAD,
     BENGALURU-560023.
                                          ...RESPONDENTS
(BY SRI. K.N.SRINIVASA., ADVOCATE FOR R-2;
    R-1 IS SERVED AND UNREPRESENTED;
    VIDE ORDER DATED:07.03.2023, NOTICE TO
    R-3 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 17.09.2018
PASSED IN MVC NO. 8009/2016 ON THE FILE OF THE VIII
ADDITIONAL SCJ AND XXXIII ACMM, MEMBER, MACT,
BENGALURU (SCCH-5), PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

IN MFA NO. 1953/2020:

BETWEEN:

1.   SRI. KUMAR
     S/O LATE NANJAPPA
     NOW AGED ABOUT 32 YEARS
     RESIDING AT
     JODIKRISHNAPURA VILLAGE,
     NARASAPURA POST,
     KOLAR TALUK AND DISTRICT.
                                             ...APPELLANT
(BY SRI. GOPAL KRISHNA N.,ADVOCATE)
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                                          NC: 2024:KHC:45594
                                       MFA No. 708 of 2020
                                  C/W MFA No. 1953 of 2020



AND:

1.   SRI. C. NAGAPPA
     S/O CHINAPPA, MAJOR BY AGE,
     RESIDING AT BETTAGERANAHALLI VILLAGE,
     HANUMANAHALLI POST,
     MULABAGAL TALUK,
     KOLAR DISTRICT-563131.

2.   M/s NATIONAL INSURANCE COMPANY LTD
     REGIONAL OFFICE,
     SHUBARAM COMPLEX, M G ROAD,
     BENGALURU-560001.

3.   SMT. JOTHI S, W/O KUMAR
     MAJOR BY AGE
     RESIDING AT NO.52/C,
     12TH CROSS, MAGADI ROAD,
     BENGALURU-560023.
                                        ...RESPONDENTS
(BY SRI. K.N.SRINIVASA., ADVOCATE FOR R-2;
    NOTICE TO R-3 IS DISPENSED WITH VIDE ORDER
    DATED:08.11.2023;
    R-1 IS SERVED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:            17.09.2018
PASSED IN MVC NO.8010/2016        ON THE FILE OF THE VIII
ADDITIONAL   SCJ   AND   XXXIII   ACMM,    MEMBER,    MACT,
BENGALURU    SCCH-5,     PARTLY    ALLOWING     THE   CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION


     THESE APPEALS, COMING ON FOR FURTHER ORDERS,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:   HON'BLE MR JUSTICE N S SANJAY GOWDA
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                                            NC: 2024:KHC:45594
                                          MFA No. 708 of 2020
                                     C/W MFA No. 1953 of 2020



                        ORAL JUDGMENT

1. The claimants are in appeal being dissatisfied with the

quantum of compensation awarded by the Tribunal.

2. These appeals arise out of an accident which occurred

on 21.10.2016 when Smt.Varalakshmi, a 23 year old

and her daughter Kum.Bhavya, a 01 year old were

killed in the accident. Both of them were inmates in

an Auto Rickshaw which collided with a lorry that had

been insured by respondent No.2/insurer.

3. It is stated that the Auto Rikshaw in which the

deceased were traveling was not insured, and it is

only the lorry which was insured. The claimants

proceeded to initiate proceedings against the insurer

of the lorry as well as the owner of the Auto Rikshaw.

4. The Tribunal has come to the conclusion that both the

driver of Auto Rikshaw and the driver of lorry were

responsible for the accident in equal proportions. It

has thereafter proceeded to award a sum of

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Rs.11,29,000/- for the death of Varalakshmi, and a

sum of Rs.5,75,000/- for the death of Bhavya.

5. The Tribunal has made the insurer of the lorry liable

to the extent of only 50%.

6. Being aggrieved by this attribution of negligence to

the extent of 50% and, in the alternative, the

direction to the claimants to proceed only against the

lorry to the extent of 50%, the claimants are in

appeal.

7. The learned counsel for the claimants placed reliance

on the judgment rendered by the Hon'ble Supreme

Court in Khenyei's case1 in which the Apex Court

has held as follows:

"22. What emerges from the aforesaid discussion is as follows :

22.1 In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to

Khenyei vs. New India Assurance Company Limited & others, (2015) 9 SCC 273

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recover the entire compensation as liability of joint tort feasors is joint and several.

22.2. In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

22.3. In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment / extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings."

8. He submits that even though the claimants had

arrayed both the tort-feasors as respondents in the

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claim petitions, the claimants would be entitled to

proceed against any one of the tort-feasors and the

tort-feasor who is made liable to pay the

compensation can recover this amount from the other

tort-feasor in an execution proceeding.

9. He therefore submits that restricting the liability of

the insurer of the lorry to the extent of only 50%

would be contrary to said decision.

10. In my view, the Hon'ble Supreme Court has clearly

stated that in a case of composite negligence, it would

be open for the claimants to recover the whole

damages from any one of the tort-feasors and the

apportionment that is done by the Tribunal was only

to determine the inter se liability and to facilitate one

tort-feasor to proceed against the other tort-feasor in

an execution proceeding.

11. In that view of the matter, the finding of the Tribunal

that the insurer of the lorry would be liable only to the

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extent 50% cannot be sustained and accordingly, it is

set aside.

In MFA No. 708 of 2020:

12. As far as the compensation is concerned, as noticed

above, Varalakshmi was a 23 year old as on the date

of accident and there was no proof of her actual

income. As the accident occurred in the year 2016,

her notional income could have been taken as

Rs.9,500/- and to that 40% (Rs.3,800/-) would have

to be added as future prospects (Rs.13,300/-) and

1/3rd (Rs.4,433/-) have to be deducted towards her

personal expenses. Her net income would be

Rs.8,867/-. Consequently, claimant No.1 would be

entitled to a sum of Rs.19,15,272/- (Rs.8,867/- x 12

x '18') towards loss of dependency.

13. Appellant/claimants, being the husband and mother-

in-law, would each be entitled to a sum of

Rs.48,400/- i.e., Rs.96,800/- towards loss of love

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and affection, and a sum of Rs.36,300/- towards

conventional heads.

14. Consequently, the award of the Tribunal is modified

and the claimants would be entitled to the following

compensation:

                                   As awarded            As awarded
   Sl.                               by the                by this
       Nature of Heads
   No.                              Tribunal                Court
                                         (In Rs.)            (In Rs.)

       Loss of                                            19,15,272/-
   1                               10,59,000/-           (Rs.8,867/- x 12 x
       Dependency                                                      '18')
       Loss of love and                                        96,800/-
   2                                      40,000/-
       affection
   3   Loss of estate                     15,000/-
                                                               36,300/-
   3   Funeral expenses                   15,000/-

              Total                11,29,000/-           20,48,372/-


15. Thus,   claimants        are    held      entitled    to     the     total

    compensation        of     Rs.20,48,372/-               as       against

Rs.11,29,000/-, along with interest at the rate of six

per cent per annum from the date of petition till its

realization.

16. Out of the total compensation, appellant/claimant

No.1 is entitled to a sum of Rs.19,99,972/- and

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claimant No.2 is entitled a sum of Rs.48,400/- along

with proportionate interest.

17. The Insurance Company is directed to deposit the

amount of compensation awarded within two months

from the date of receipt of a certified copy of this

judgment. Liberty is reserved to the insurer to

proceed against the owner of the auto-rikshaw to

recover the same.

18. On such deposit being made, a sum of Rs.10,00,000/-

shall be invested in the name of claimant No.1 in any

nationalized bank / post office deposit initially for a

period of five years and he is entitled to receive the

periodical interest accrued thereon. Balance amount

shall be released in his favour on proper identification.

19. The entire sum awarded to claimant No.2 with

proportionate interest shall be released in her favour

on proper identification.

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In MFA No. 1953 of 2020:

20. As far as the claim in relation to death of

Kum.Bhavya, the one year old girl is concerned, this

Court in MFA No.11440 of 20112 has laid down

guidelines for determination of compensation in

respect of minors who are killed in a motor vehicle

accident and it has also tabulated a ready reckoner

chart indicating the compensation to be awarded in

case of claim petition by a single parent for the death

of a minor below the age of 15 years.

21. As per Table No.3.13 of said judgment, since the

accident is of the year 2016 and the deceased--

MFA No.11440 of 2011 connected with MFA No.206 of 2018 [Lakshminarayanappa @ Moogappa and others vs. Royal Sundaram Allianz Ins.co.Ltd. and another], disposed on 12.09.2024 Coram: Hon'ble Mr.Justice N S Sanjay Gowda.

Table - 3.1 FOR MINORS BELOW 15 YEARS WITH A SINGLE PARENT A B C D ST ND YEAR 1 METHOD* 2 METHOD AVERAGE OF THE 1ST& ('15' multiplier) 2ND METHODS

2016 10,61,620 14,21,953 12,41,787

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Bhavya was aged one year old, her father (being a

single parent) would be entitled for a compensation of

a sum of Rs. 12,41,787/-.

22. Apart from above, the claimant would also be

entitled to a sum of Rs.36,300/- under

conventional heads.

23. Consequently, the award of the Tribunal is modified

and the claimant would be entitled to the following

compensation:

As As awarded Sl. awarded Nature of Heads by this No. by the Court Tribunal (In Rs.) (In Rs.)

1 Loss of Dependency 5,10,000/-

12,41,787/-

2 Loss of Love and affection 50,000/-

3 Funeral expenses 15,000/- 36,300/-

Total 5,75,000/- 12,78,087/-

24. Thus, the claimant is held entitled to the total

compensation of Rs.12,78,087/- as against

Rs.5,75,000/-, along with interest at the rate of six