Karnataka High Court
Smt Kavitha vs Kotreshi @ Kotragouda on 5 September, 2024
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NC: 2024:KHC:36516
MFA No. 1631 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 1631 OF 2015 (MV-D)
BETWEEN:
1. SMT KAVITHA,
W/O DECEASED N.B.CHANNAPPA,
@ S.CHANNAPPA,
AGED ABOUT 41 YEARS,
2. YOGESH,
S/O DECEASED N.B.CHANNAPPA,
@ S.CHANNAPPA,
AGED ABOUT 17 YEARS,
3. GIRISH,
S/O DECEASED N.B.CHANNAPPA,
@ S.CHANNAPPA,
AGED ABOUT 7 YEARS,
4. SHOBA,
D/O DECEASED N.B.CHANNAPPA,
@ S.CHANNAPPA,
AGED ABOUT 6 YEARS,
THE APPELLANT NOS.2 TO 4 ARE MINORS
Digitally signed by HENCE, REP BY THEIR NATURAL GUARDIAN,
PRAJWAL A MOTHER I.E.APPELLANT NO.1
Location: HIGH COURT
OF KARNATAKA 5. N.B.SHIVAPPA,
S/O LATE CHANNAPPA,
AGED ABOUT 69 YEARS,
FATHER OF DECEASED N.B.CHANNAPPA
@ S.CHANNAPPA,
6. ANASUYAMMA,
W/O N.B.SHIVAPPA,
AGED ABOUT 66 YEARS,
MOTHER DECEASED M.B.CHANNAPPA
@ S.CHANNAPPA,
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MFA No. 1631 of 2015
APPELLANT NOS.2 AND 3 ARE MINOR
HENCE, REP BY THEIR NEXT FRIEND
MOTHER I.E.APPELLANT NO.1.
ALL ARE R/O NAGARAKATTE VILLAGE,
KONDAJJI POST, DAVANAGERE TALUK-577 001.
APPELLANTS
(BY SRI. HANUMANTHAPPA A.,ADVOCATE)
AND:
1. KOTRESHI @ KOTRAGOUDA,
S/O VIRUPAKSHA GOUDA,
MAJOR,
DRIVER OF TRUCK BEARING REG.NO.KA-01/B-2371,
R/O TOUDUR GRAMA, HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT - 577213.
2. S.R. ASIF,
S/O A.R. RAHAMAN AB,
MAJOR,
OWNER OF TRUCK BEARING REG.NO.KA-01/B-2371,
R/O AHMED RAZA COMPLEX,
2ND FLOOR, OPP: SS HOSPITAL, KR ROAD,
DAVANAGERE 577001.
3. THE MANAGER,
THE NEW INDIA ASSURANCE CO.LTD,
160/1, R.H. BUILDING,
NARASASRAJA ROAD,
DAVANAGERE 577001.
4. SRIKANTH .U,
UMAMAHESHWARA RAO,
MAJOR,
OWNER OF THE TRACK BEARING REG.NO.KA-17/B-5481
R/O SATYANARAYANA CAMP, HARIHARA POST,
DAVANAGERE DISTRICT 577201.
5. THE MANAGER,
RELIANCE GENERAL INSURANCE CO.LTD,
1ST FLOOR, MAGANUR COMMERCIAL COMPLEX,
NEAR KSRTC BUS STAND,
B.D ROAD,
-3-
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MFA No. 1631 of 2015
CHITRADURGA 577501.
RESPONDENTS
(BY SRI. H.C. BETSUR., ADVOCATE FOR R.5;
SRI. MAMATHA S. SHANKAR., ADVOCATE FOR SRI. E.J.
SANMATHI ADVOCATE FOR R3.
V/O/DTD 24.09.2019 APPEAL AGAINST R1, R2 AND R4 STANDS
DISMISSED.)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 25.10.2014 PASSED IN MVC
NO.972/2013 ON THE FILE OF THE IST ADDITIONAL SENIOR CIVIL
JUDGE, MACT-5, DAVANGERE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION AND ETC,.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
In this case the petitioners are seeking enhancement
of the compensation and also questioning the attribution of
50% contributory negligence.
2. For the sake of convenience, the parties herein
are referred as per their ranking before the Tribunal.
3. Brief facts of the case are, admittedly there was
an accident on 30.08.2013 at 9:30 pm involving the lorry
bearing No. KA-01/B-2372 (Ashoka Leyland lorry) and KA-
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17/B-5484 (Eicher lorry) in which the driver of the Eicher
lorry by name N.B. Channappa @ S. Chanappa, the
deceased, sustained injuries and died in the hospital. The
petitioners approached the Tribunal for grant of
compensation, the claim was opposed by both the
Insurance Companies. The Tribunal after taking the
evidence and hearing both the parties, assessed
compensation of `8,75,000/- with interest at 6% p.a, and
attributed 50% of contributory negligence against the
deceased and directed the insurer of the Ashoka Leyland to
pay the compensation. Pleading inadequacy and
questioning the attributed negligence, attributed against
the deceased the petitioners are before this Court.
4. Heard the arguments of Sri. A. Hanumanthappa,
learned counsel for the petitioners and Smt. Mamatha S.
shankar on behalf of the Insurance Company of the Ashok
leyland lorry and Sri. H.C. Betsur, learned counsel for the
Insurance Company of the Eicher lorry.
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5. It is contended by the learned counsel for the
petitioners that there was no head-on-collision, the heavy
lorry hit against the Eicher lorry driven by the deceased.
Spot mahazar was placed before the Tribunal to explain the
width of the road was 18 feet, Ashoka Leyland lorry has hit
against the Eicher lorry. There is no contributory negligence
on the part of the deceased, the Tribunal has not
considered the evidence. Only on the ground that the joint
charge sheet is filed against the deceased as well as the
driver of the lorry contributory negligence was attributed
equally. It is further contended that the deceased was died
on the steering of the Eicher lorry. RW.1 the owner of the
Eicher lorry has given evidence before the Tribunal that the
deceased was paid `12,000/- p.m, the Tribunal has taken
only `5,000/- and sought for modification.
6. Learned counsel for the insurer of the Eicher
lorry has contended that, the deceased was not holding the
driving license at the time of accident, as it was had
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expired nine months prior to the accident. The Tribunal has
rightly fastened 50% of liability against the Ashoka Leyland
lorry. He has supported the assessment of the
compensation awarded by the Tribunal and supported the
impugned judgment.
7. Per contra, learned counsel for the Insurance
Company of the Ashoka Leyland lorry has contended that,
complete negligence on the part of the deceased, for the
reason the deceased not holding valid driving license,
prosecution papers prepared to facilitate the petitioners to
claim the compensation.
8. I gave my anxious consideration to the
arguments addressed by the learned counsels for both the
parties and perused the records.
9. There is no dispute as to the accident as that of
the Ashoka Leyland lorry has satisfied the award passed by
the Tribunal to the extent of 50%. The question is
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contributory negligence on the part of the deceased, so
also the quantum of compensation.
10. Firstly regarding contributory negligence is
concerned; On careful perusal of mahazar placed on record
as per Ex.P.3 goes to show that at the place of accident the
width of the tar road was 18 feet. During mahazar it is
clearly noted by the Investigating Officer that the Ashoka
Leyland lorry has left 4 feet tar road on its left side and it
has come inside the road. It goes to show that the lorry
was consumed its width as well as 4 feet extra out of 18
feet road. It goes to show that on the right side of the lorry
for incoming opposite vehicle the width is insufficient. The
damages to both the lorries as per Ex.P.4 - IMV report
show right side portion of lorries. It goes to explain heavy
goods Ashoka Leyland lorry consumed more road space
resulting in the accident. It is a case of contributory
negligence hence joint charge was filed against both the
drivers of the lorry, but it does not mean that they have
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equally contributory negligence. The circumstances goes to
show that 70% contributory negligence on the Ashoka
Leyland lorry, 30% contributory negligence on the part of
the deceased. The petitioners being dependents of
deceased are entitled to 70% of the compensation so
assessed.
11. Regarding quantum of compensation is
concerned, the Tribunal assessed income at `5,000/- p.m,
the deceased was aged 41 years at the time of accident.
RW.1 is the owner of the vehicle whose evidence point out
that the salary of `12,000/- p.m paid to the deceased.
Admittedly, the deceased was not holding effective driving
license to drive the vehicle. The driving license which was
expired nine months prior to the accident and there was no
renewal. Hence, the deceased has to be considered with no
proof of income in the year 2013, the notional income has
to be consider at `8,000/- p.m, for the age of 41 years,
25% of future prospects is to be considered, as there are
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six defendants 1/4th is deducted towards personal expenses
and applicable multiplier is '14'. Than the loss of
dependency will be `8,000 + `2,000 (25%) = `10,000 -
`2,500 (1/4th)= `7,500 X 12 X 14 = `12,60,000/-.
12. Under conventional heads loss filial consortium
to the wife and parental consortium to the parents and loss
of love and affection towards children at `40,000/- each
has to be assessed. Loss of estate and funeral expenses at
`15,000/- each. Since, the accident is 10 years old 10%
appreciation has to be given in view of the judgment of
Hon'ble Apex Court in the case of NATIONAL INSURANCE
COMPANY LTD V/S PRANAY SETHI AND ORS. reported
in (2017)16 SCC 680. Compensation under conventional
head comes to `2,97,000/-. If put together, total
compensation come to `15,57,000/- as against `8,75,000/-
awarded by the Tribunal, thereby enhancement of
`6,82,000/-. It is just compensation under facts and
circumstances of the case.
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13. In view of the above discussion, attribution of
contributory negligence at 30% against the deceased, the
petitioners are entitled to 70% of the total compensation
with interest at 6% p.a,. Accordingly, the appeal merits
consideration, in the result, the following:
ORDER
i) Appeal is allowed-in-part;
ii) Impugned judgment and award is modified;
iii) The petitioners are entitled to 70% of total
compensation of `15,57,000/- with interest of 6%
p.a., from the date of petition till the date of
deposit;
iv) The Insurance Company of the Ashoka Leyland
vehicle is directed to deposit the enhanced
compensation with interest (supra) minus the
compensation already deposited within eight
weeks from the date of receipt of certified copy of
this judgment.
SD/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
