Karnataka High Court
Sri C.L. Vishwa vs Sri K. Sundara on 13 November, 2024
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MFA No. 5895 of 2014
C/W MFA No. 5894 of 2014
MFA No. 7570 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 5895 OF 2014 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 5894 OF 2014
MISCELLANEOUS FIRST APPEAL NO. 7570 OF 2013 (MV-D)
IN MFA NO.5895/2014
BETWEEN:
SRI. C.L. VISHWA
S/O. SRI. LAKSHMAN
AGED ABOUT 34 YEARS,
R/AT. NAJARAYAPATNA VILLAGE AND POST
KUSHALANAGARA,
KODAGU 571 234.
Digitally signed by
... APPELLANT
CHANDRASHEKAR
LAXMAN
KATTIMANI
Location: HIGH (BY SRI. GURUDEVA PRASAD K.T., ADVOCATE)
COURT OF
KARNATAKA
AND:
1. SRI. K. SUNDARA S/O. HONNAPPA GOWDA
AGED ABOUT 46 YEARS,
R/AT. KUDAJURA HOUSE,
MANDE KOLU VILLAGE,
SULLIA TALUK 574 239
DAKSHINA KANNADA DISTRICT.
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MFA No. 5895 of 2014
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MFA No. 7570 of 2013
2. THE MANAGER
THE ORIENTAL INSURANCE COMPANY LIMITED
DIVISIONAL OFFICE,
MANGALORE BEAUTY PLAZA,
BALMATTA ROAD,
MANGALORE - 575 001.
3. SMT. C.L. JYOTHI
W/O. AMEPRASAD
AGED ABOUT 36 YEARS,
R/AT. PADAKKAL VILLAGE
CHETTIMANI, MADIKERI TALUK,
KODAGU - 571 201.
4. THE MANAGER
ORIENTAL INSURANCE COMPANY LIMITED,
OPP. TOWN HALL, MADIKERI,
KODAGU - 571 201.
5. SMT. PUSHPAVENI
W/O. A.P. YADAVA
AGED ABOUT 59 YEARS,
R/AT. RADHAKRISHNA BADAVANE,
4TH BLOCK,
KUSHALANAGAR - 571 234.
...RESPONDENTS
(BY SRI. ASHOK N. PATIL, ADVOCATE FOR R2 AND R4;
NOTICE TO R1, R3 AND R5 ARE SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 20.05.2013
PASSED IN MVC NO. 209/2009 ON THE FILE OF THE DISTRICT
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MFA No. 5895 of 2014
C/W MFA No. 5894 of 2014
MFA No. 7570 of 2013
JUDGE, MACT, KODAGU, MADIKERI, DISMISSING THE CLAIM
PETITION FOR COMPENSATION.
IN MFA NO.5894/2014
BETWEEN:
SRI. C.L. VISHWA
S/O. SRI LAKSHMAN
AGED ABOUT 34 YEARS,
R/AT: NANJARAYAPATNA VILLAGE AND POST
KUSHALANAGARA,
KODAGU - 571 234.
... APPELLANT
(BY SRI. GURUDEVA PRASAD K.T., ADVOCATE)
AND:
1. SRI. K. SUNDARA S/O. HONNAPPA GOWDA
AGED ABOUT 46 YEARS,
R/AT. KUDAJURA HOUSE,
MANDE KOLU VILLAGE,
SULLIA TALUK - 574 239
DAKSHINA KANNADA DISTRICT.
2. THE MANAGER
THE ORIENTAL INSURANCE COMPANY LIMITED,
DIVISIONAL OFFICE,
MANGALORE BEAUTY PLAZA,
BALMATTA ROAD,
MANGALORE - 575 001.
3. SMT. C.L. JYOTHI
W/O. AMEPRASAD
AGED ABOUT 36 YEARS,
R/AT. PADAKKAL VILLAGE
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MFA No. 5895 of 2014
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MFA No. 7570 of 2013
CHETTIMANI, MADIKERI TALUK,
KODAGU.
4. THE MANAGER
ORIENTAL INSURANCE COMPANY LIMITED,
OPP. TOWN HALL, MADIKERI,
KODAGU - 571 201.
...RESPONDENTS
(BY SRI. ASHOK N. PATIL, ADVOCATE FOR R2 AND R4;
NOTICE TO R1 AND R3 ARE SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 20.05.2013
PASSED IN MVC NO. 208/2009 ON THE FILE OF THE DISTRICT
JUDGE, MACT, KODAGU, MADIKERI, DISMISSING THE CLAIM
PETITION FOR COMPENSATION.
IN MFA NO.7570/2013
BETWEEN:
1. SMT. PUSHPAVENI
W/O. A.P. YADAVA
AGED ABOUT 56 YEARS,
HOUSE WIFE.
2. A.P. YADAV,
S/O. LATE POOVAIAH,
AGED ABOUT 64 YEARS,
RETIRED FORESTER.
BOTH R/AT. RADHAKRISHNA BADAVANE,
IV BLOCK, KUSHALNAGAR,
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MFA No. 5895 of 2014
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MFA No. 7570 of 2013
SOMVARPET TALUK,
KODAGU DISTRICT - 571 234.
... APPELLANTS
(BY SRI. S.R. RAVI PRAKASH, ADVOCATE)
AND:
1. SRI. K. SUNDARA
S/O. HONNAPPA GOWDA
AGED ABOUT 44 YEARS, DRIVER
JEEP NO.KA-21-3330,
R/AT. MANDEKOLU VILLAGE,
JALSUR, SULLIA TALUK - 575 001
DAKSHINA KANNADA DISTRICT.
2. K. SANJEEVA POOJARY,
S/O. THIMMAPPA POOJARY,
KARYA HOUSE,
THENKA KAJIKAR POST
AND VILLAGE, BANTWAL TALUK,
D.K. DISTRICT-575 001.
3. THE MANAGER
THE ORIENTAL INSURANCE
COMPANY LIMITED,
DIVISIONAL OFFICE,
BEAUTY PLAZA, BALMATTA ROAD,
MANGALORE - 575 001.
4. SRI. C.L. VISHWA (PREETHU)
S/O. CHATTADKA, LAXMANA,
AGED ABOUT 32 YEARS,
R/AT: NANJARAYAPATNA VILLAGE
KUSHALNAGARA HOBLI,
SOMWARPET TALUK 571 236.
KODAGU DISTRICT.
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MFA No. 5895 of 2014
C/W MFA No. 5894 of 2014
MFA No. 7570 of 2013
5. SMT. JYOTHI
W/O. LATE PRASANNA,
AGED ABOUT 35 YEARS,
R/O. CHETTIMANI VILLAGE,
BHAGAMANDALA VILLAGE
HOBLI, MADIKERE TALUK-571 201,
KODAGU DISTRICT.
...RESPONDENTS
(BY SRI. ASHOK N. PATIL, ADVOCATE FOR R1 AND R3;
SRI. K.T. GURUDEVA PRASAD, ADVOCATE FOR R4;
R5 SERVED
V/O. DATED 31.01.2019 SERVICE OF NOTICE TO
R2 IS HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 20.05.2013
PASSED IN MVC NO. 167/2009 ON THE FILE OF THE DISTRICT
JUDGE, MACT, KODAGU, MADIKERI, DISMISSING THE CLAIM
PETITION FOR COMPENSATION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 06.08.2024 AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THIS COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
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MFA No. 5895 of 2014
C/W MFA No. 5894 of 2014
MFA No. 7570 of 2013
CAV J U D G M E N T
(PER: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA)
In these appeals, the petitioners have challenged the
common judgment and award dated 20.05.2013 in
MVC.Nos.167, 208 and 209 of 2009 passed by the District
Judge and MACT, Kodagu-Madikeri in dismissing their
claim petitions.
2. The rank of the parties shall be referred to as
per their status before the Tribunal.
3. Brief facts of the case are, the petitioners in
MVC.No.167/2009 are the parents whereas the petitioner-
C.L.Vishwa in MVC.Nos.208 and 209 of 2009 is the
husband of one Smt.A.Y.Bhagya, the deceased, who was
working as a Staff Nurse at Government hospital,
Periyapatna. The marriage of the deceased was performed
with C.L.Vishwa 4 days prior to 27.04.2009. On the said
date, the deceased was travelling in the car bearing
Reg.No.KA-12/Z-845 driven by C.L.Vishwa along with his
sister Smt.Jyothi, from Nanjarayapatna to Dharmastala.
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MFA No. 5895 of 2014
C/W MFA No. 5894 of 2014
MFA No. 7570 of 2013
On Madikeri - Mangalore straight road, near Peraje at
about 11.00 a.m. from the opposite direction, a Jeep
bearing Reg.KA-21-3330 came and dashed against the
car. Due to the said impact, the deceased was killed at the
spot, the driver and the inmate of the car Jyothi were
injured.
3.1. As the dependents of the deceased, the parents
as well as husband C.L.Vishwa have filed claim petitions
before the Tribunal in MVC.Nos.167 and 209 of 2009
respectively and C.L.Vishwa as an injured filed claim
petition in MVC.No.208/2009. The owner and insurer of
the Jeep have opposed the claim petitions contending that
the driver of the jeep after seeing the opposite coming car
on the wrong side, took the jeep to the left side of the
road in order to avoid the accident. In spite of it, the car
hit against the jeep and the complete negligence was on
the part of the driver of the car. In spite of it, by using the
political influence, the driver of the car got registered a
criminal case against the driver of the jeep and the charge
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sheet was also filed in C.C.No.79/2009 before the C.J.M,
Madikeri, after trial the driver of the jeep came to be
acquitted. The driver of the jeep filed a private complaint
before the Principal JMFC, Madikeri against the driver of
the car and the same was referred to the police for
investigation.
3.2. The jeep in question was insured with the third
respondent-Oriental Insurance Co. Ltd. at the time of
accident and they sought for dismissal of the claim
petitions. The Tribunal, after taking the evidence and
hearing both the parties, assessed that the petitioners in
MVC.No.167/2009 are entitled to compensation of
Rs.1,00,000/- each and the petitioner in
MVC.No.208/2009 is entitled to compensation of
Rs.35,000/- for the injuries and Rs.50,000/- towards
death of his wife. Further held that the petitioners are not
entitled to claim the said compensation as the accident
was occurred due to complete negligence of the car driver
and ultimately dismissed the claim petitions. Aggrieved by
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MFA No. 7570 of 2013
the same, the petitioners are before this Court on various
grounds.
4. Heard the arguments of Sri S.R.Ravi Prakash,
learned counsel for the parents of the deceased, Sri
K.T.Gurudeva Prasad, learned counsel for husband of the
deceased, who is also the injured and Sri Ashok N. Patil,
learned counsel appearing for the owner and insurer of the
jeep.
5. Sri S.R.Ravi Prakash has contended that, the
marriage of the deceased was performed 4 days prior to
the accident, the petitioners being the parents, they were
fully depending on the deceased who was working as a
Staff Nurse in the Government hospital, within 4 days of
the marriage, while traveling to Dharmastala, she was
killed in the accident. Hence, they are entitled to claim
compensation under the loss of dependency as well as
under the conventional heads. The Tribunal has not
properly assessed the compensation and they being the
parents of the deceased are entitled to claim
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compensation, but the Tribunal has erroneously assessed
the lesser compensation and also dismissed the claim
petitions.
6. Sri K.T.Gurudeva Prasad has contended that,
the accident is occurred due to complete negligence on the
part of the driver of the jeep. The police investigation
attributed actionable negligence against the driver of the
jeep, who also faced the criminal trial. The driver of the
jeep came on the wrong side of the road, the driver of the
car took the car to the other side to avoid the accident and
the jeep was suddenly turned to the left side facilitating
the car to hit against the jeep. The driver of the car has no
role in the accident and complete negligence is against the
driver of the jeep. The Tribunal did not consider this
aspect and put the blame on the driver of the car while
dismissing the claims. The compensation assessed is on
the lower side. As the petitioner being the husband of the
deceased and he was also injured in the accident is
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MFA No. 7570 of 2013
entitled to just compensation and he sought for
interference.
7. Per contra, Sri Ashok N. Patil has argued with
force that the jeep was driven in a cautious manner
towards Madikeri, wherein the car was driven negligently
towards Dharmastala, at Peraje, the car all of a sudden
went offside of the road which is a wrong side to its
direction. By seeing the car coming on the wrong
direction, the driver of the jeep took the jeep to the left
side of the road to avoid the accident. But the car was
suddenly turned to the left side and hit against the jeep.
Complete negligence is on the part of the driver of the car.
The photographs of the spot clearly point out that the car
was on the wrong side, jeep was on its right side. The
driver of the jeep was acquitted of the charges as the
complete negligence is against the driver of the car and it
is not a case of contributory negligence. The Tribunal has
rightly appreciated the evidence and ultimately held that
the driver of the car was the tort-feasor, there is no
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MFA No. 7570 of 2013
negligence on the part of the jeep. Under such
circumstances the petitioners are not entitled to claim any
compensation and the Tribunal has rightly dismissed the
claim petitions and he has argued in support of the
impugned judgment.
8. In reply to the said argument, Sri K.T.Gurudeva
Prasad with reference to the mahazar contended that, the
vehicles were shifted to clear the road, the photographs
have been obtained after shifting of the vehicles which
were kept by the side of the road and this has been
wrongly interpreted by the Insurance Company and
accepted by the Tribunal. The Investigating Officer who
has inspected the spot ascertained complete negligence on
the part of the driver of the jeep and its driver has been
charge sheeted. The acquittal of the driver of the jeep was
on the ground of benefit of doubt, it was not an honorable
acquittal. The involvement of the car and the jeep was
established. The deceased was a passenger of the car and
she is a third party, her parents are the dependants so
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MFA No. 7570 of 2013
also the driver of the car as her husband are entitled to
claim compensation as the dependants. Instead of
assessing the compensation under dependency and
conventional head, the Tribunal made a nominal
assessment and erroneously dismissed the claim petitions.
9. I gave my anxious consideration to the
arguments addressed by the learned counsel for both the
parties and perused the records.
10. The Tribunal has assigned the reasons that the
parents of the deceased are not the dependents and there
is no evidence that they have spent any money towards
funeral and obsequious and there is no evidence from the
husband that he is a dependent on the deceased, and he
has attended the funeral and obsequious ceremonies and
utmost he is entitled to pecuniary damages towards loss of
love and affection and loss of estate along with the
parents of the deceased. The Tribunal also recorded that
the driver of the car has suffered simple injuries to the
face and neck, he was inpatient for 10 days at A.J.
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MFA No. 7570 of 2013
Hospital and Research Centre, Mangalore, spent around
Rs.25,875/- towards medical expenses and for this reason,
assessed compensation of Rs.35,000/-. Since the driver
himself is the tort-feasor, his claim was also dismissed.
11. There is no dispute as to the occurrence of the
accident involving the car and the jeep. The deceased was
died at the spot, her husband was the driver of the car.
Her parents and her husband are making separate claim
for award of compensation. As regarding the deceased is
concerned, she is a third party to the claim petition even
otherwise accepted that her husband was the tort-feasor.
The police investigation has brought out and attributed
actionable negligence against the driver of the jeep for
which he has faced trial in C.C.No.79/2009 before the
learned C.J.M. Madikeri. Though the driver of the jeep was
acquitted, the acquittal was under the benefit of doubt and
it was not an honorable acquittal.
12. The driver of the jeep has entered the witness
box attributing negligence against the driver of the car.
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MFA No. 7570 of 2013
But the cross examination has demonstrated that after
seeing the opposite coming car, the jeep was taken to the
right side of the road, the driver of the car after seeing the
incoming jeep has taken the car to the offside and in this
regard, there is a confusion between both the drivers were
moved zig zag, ultimately tailored the accident which took
away the life of the deceased, who lost her life within 4
days of her marriage.
13. The deceased was working as a Staff Nurse and
her parents are the dependents, mere performance of
marriage 4 days prior to the accident will not disentitle
them to claim the compensation. It is strange to
appreciate the argument canvassed on behalf of the
Insurance Company that the parents are not the
dependents. In order to assess the dependency, no
evidence is required that who has performed the funeral
and obsequious. The parents are the legal representatives
so also the husband. Since the husband himself is said to
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MFA No. 7570 of 2013
be the tort-feasor, the Tribunal ought to have considered
the claim of the parents and assessed the compensation.
14. It is seen from the material on record including
the prosecution papers, that the accident between the car
and the jeep. The jeep before going to the left side has
gone to the right side and the car also from left side has
gone to the right side and for this reason, both have
moved towards wrong direction while hitting against each
other. This clearly goes to demonstrate that the
negligence on the part of the driver of the car as well as
the jeep. Hence the evidence clearly supports the
contributory negligence by both the drivers and in the
facts and circumstances one can make out clearly that the
contributory negligence on the part of the driver of the car
would be at 60% and that of the driver of the jeep at
40%. Accordingly, the Tribunal ought to have considered
the claim petitions.
15. Regarding assessment of quantum of
compensation in MVC.No.167/2009 is concerned, the
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MFA No. 7570 of 2013
deceased was a Government employee and as per Ex.P14-
salary certificate, she was drawing salary of Rs.11,869/-
paying Professional Tax of Rs.150/-. Her net salary comes
to Rs.11,719/-. The deceased was aged 25 years as on the
date of accident, she being a permanent Government
employee, 50% of the future prospects has to be
considered in the light of the judgments of the Hon'ble
Apex Court in National Insurance Co. Ltd., -vs- Pranay
Sethi and Others1 and multiplier is to be selected in view
of Sarla Varma (Smt.) and Others -vs- Delhi
Transport Corporation and Another2 so also the
principle laid down in Shri Ram General Insurance Co.
Ltd. -vs- Bhagat Singh Rawat & Ors3 regarding 10%
appreciation for every 3 years under conventional heads.
Since there are three dependants i.e. parents and the
husband, 1/3 has to be deducted towards personal
expenses and for the age of 25, the applicable multiplier is
18. Then loss of dependency will be Rs.11,719/- +
1
(2017) 16 SCC 680
2
(2009) 6 SCC 121
3
Civil Appeal Nos.2410-2412/2023, DD. 27.03.2023
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Rs.5,859/- (50%) = Rs.17,578/- - Rs.5,859/- (1/3) =
11,719/- x 12 x 18 = Rs.25,31,304/-.
16. Under the conventional heads, the petitioners
being the parents and the husband, they are entitled to
compensation of Rs.30,000/- each towards loss of parental
consortium and loss of love and affection and Rs.10,000/-
each has to be assessed towards funeral expenses and
loss of estate. Since the claim is of the year 2009, 10%
appreciation for every 3 years on the conventional heads
is considered, it comes to Rs.1,65,000/-. Thereby total
compensation comes to Rs.26,96,304/-.
17. As regarding injuries to the petitioner in
MVC.No.208/2009 is concerned, the Tribunal has rightly
observed that he has suffered simple injuries and assessed
the compensation at Rs.35,000/- and there is no need for
further enhancement. In view of the above discussion, he
is entitled to 40% of it i.e. Rs.14,000/-.
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18. In view of the above, the finding recorded by
the Tribunal that the parents are entitled to compensation
of Rs.1,00,000/- each and the husband is entitled to
compensation of Rs.50,000/- on account of death of the
deceased is not proper.
19. Since the petitioner C.L.Vishwa has married the
deceased just 4 days prior to the accident, 25% has to be
paid to him and remaining 75% has to be paid to the
parents of the deceased. Accordingly, the apportionment
of compensation is to be made.
20. As regarding liability is concerned, there is no
dispute as to the policy was in force and the drivers of the
car as well as the jeep were holding valid driving licence as
on the date of accident. Hence, the owner and the insurer
of the car are held liable to deposit 60% and the owner
and insurer of the jeep are held liable to deposit 40% of
the compensation. Insurer is held liable to indemnify the
insured.
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21. In view of the above discussion, the appeals
merit consideration, in the result, the following:
ORDER
i. The appeals are allowed in part;
ii. The common judgment dated 20.05.2013
insofar as MVC.Nos.167/2009, 208/2009 and
209/2009 is hereby set aside;
iii. The claim petitions filed by the petitioners are
allowed in part;
iv. The compensation of Rs.26,96,304/- is
assessed on account of death of deceased
K.Y.Bhagya in MVC.No.167/2009 and
compensation of Rs.14,000/- is assessed on
account of injuries sustained by the petitioner in
MVC.No.209/2009;
v. The owners and insurers are jointly and
severally liable to pay the compensation;
vi. The owner and insurer of the car are directed to
deposit 60% of the compensation and owner
and insurer of the jeep are directed to deposit
40% of the compensation on account of death
of deceased Bhagya;
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vii. The parents of the deceased are entitled to
apportionment of 75% of the compensation
awarded in MVC.No.167/2009;
viii. The husband of the deceased is entitled to
apportionment of 40% out of 25% of the
compensation awarded in MVC.No.167/2009;
ix. The petitioner in MVC.No.209/2009 is entitled
to compensation of Rs.14,000/- from the owner
and insurer of the jeep.
x. The compensation shall carry interest at 6%
p.a. from the date of petition till the date of
deposit;
xi. The Insurance Companies are directed to
deposit their share of compensation with
interest within 8 weeks from the date of receipt
of certified copy of this judgment;
xii. The compensation awarded to the parents of
the deceased shall be apportioned equally to
them.
Sd/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
MKM/Ct-cmu
