Karnataka High Court
Hanamant Dundappa Narale And Anr vs Pandurang And Ors on 4 March, 2025
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NC: 2025:KHC-K:1426
MFA No. 200081 of 2023
C/W MFA No. 201390 of 2022
IN THE HIGH COURT OF KARNATAKA, R
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISCL. FIRST APPEAL NO.200081 OF 2023 (MV-D)
C/W
MISCL. FIRST APPEAL NO.201390 OF 2022 (MV-D)
IN MFA NO.200081/2023:
BETWEEN:
1. HANAMANT DUNDAPPA NARALE,
AGE: 49 YEARS, OCC: NIL,
2. MAHADEVI W/O HANAMANT NARALE,
AGE: 44 YEARS, OCC: H H WORK,
BOTH ARE R/O HONAWAD,
TQ. AND DIST. VIJAYAPUR.
Digitally signed
...APPELLANTS
by SHIVALEELA
DATTATRAYA
UDAGI (BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA
AND:
1. PANDURANG
S/O YAMANAPPA KATRAL,
AGE: 44 YEARS, OCC: BUSINESS,
R/O HONAWAD,
TQ. AND DIST. VIJAYAPUR.
2. THE BRANCH MANAGER,
NATIONAL INSURANCE COMPANY LTD.,
1ST FLOOR, HERALAGI BUILDING,
BEHIND SIDDESHWAR TEMPLE,
VIJAYAPUR-586 101.
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MFA No. 200081 of 2023
C/W MFA No. 201390 of 2022
3. SUBHASH S/O BASAPPA TUPPAD,
AGE: 31 YEARS, OCC: BUSINESS,
R/O HONAWAD,
TQ. AND DIST. VIJAYAPUR.
4. NIZAR K P S/O ALLMA,
AGE: 34 YEARS, OCC: BUSINESS,
R/O KEEDATHAPARAMBIL HOUSE,
RAJEEVAGANDHI COLONY KABANIGIRI,
P.O PULPALLY WAYANAD.
...RESPONDENTS
(BY SRI. S.S. ASPALLI, ADV. FOR R2;
V/O DTD. 28.03.2023, NOTICE TO R1, R3 AND R4 D/W)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR
VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD
PASSED IN MVC NO. 966/2018 DATED 16.11.2021 BY THE IV
ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER, MOTOR ACCIDENT
CLAIMS TRIBUNAL AT VIJAYAPURA AND ALLOW THIS APPEAL AND
ENHANCE THE COMPENSATION AS CLAIMED IN THE CLAIM
PETITION.
IN MFA NO.201390/2022:
BETWEEN:
THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD.,
1ST FLOOR, HERALAGI BUILDING,
BEHIND SIDDESHWAR TEMPLE, VIJAYAPURA,
REPRESENTED BY ITS
AUTHORISED SIGNATORY.
...APPELLANT
(BY SRI. S.S. ASPALLI, ADVOCATE)
AND:
1. HANAMANT
S/O DUNDAPPA NARALE,
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MFA No. 200081 of 2023
C/W MFA No. 201390 of 2022
AGE: 43 YEARS, OCC: NIL,
2. MAHADEVI
W/O HANAMANT NARALE,
AGE: 43 YEARS,
OCC: HOUSEHOLD WORK,
BOTH R/O HONWAD,
VIJAYAPURA DISTRICT-586 101.
3. PANDURANG
S/O YAMANAPPA KATRAL,
AGE: 43 YEARS, OCC: BUSINESS,
R/O HONAWAD,
DIST. VIJAYAPURA-586 101.
4. SUBHASH
S/O BASAPPA TUPPAD,
AGE: 30 YEARS, OCC: BUSINESS,
R/O HONAWAD,
VIJAYAPURA DIST.-586 101.
5. NIZAR K.P S/O ALIMA,
AGE: 33 YEARS, OCC: BUSINESS,
R/O KEEDATHPARAMBIL HOUSE,
RAJEEV GANDHI COLONY,
KABAANIGIRI P.O., PULPALLY,
WAYANAND (KERLA STATE)-673 579.
...RESPONDENTS
(BY SRI. SANGANAGOUDA V. BIRADAR, ADV. FOR R1 AND R2;
SRI. SHARANAGOUDA V. PATIL, ADV. FOR R4;
R3 AND R5 ARE SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR
VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD
DATED 16.11.2021 PASSED BY THE IV ADDL. SENIOR CIVIL JUDGE
AND MEMBER MACT XV-VIJAYAPURA IN MVC NO. 966/2018.
THESE APPEALS COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MFA No. 200081 of 2023
C/W MFA No. 201390 of 2022
CORAM: HON'BLE MR. JUSTICE C M JOSHI
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE C M JOSHI)
Heard learned counsel Sri.Sanganagouda V. Biradar
for appellants in MFA No.200081/2023. Learned counsel
for the appellant-Insurance Company in
MFA No.201390/2022 has not submitted his arguments.
2. Being aggrieved by the judgment in MVC
No.966/2018 passed by IV-Additional Senior Civil Judge
and MACT-XV, Vijayapura (for short, 'the Tribunal') dated
16.11.2021, the petitioners are before this Court in MFA
No.200081/2023 and the Insurance Company is before
this Court in MFA No.201390/2022.
3. The factual matrix of the case that emerges
from the records is that on 29.11.2017 at about 9:30 a.m.
the deceased-Siddaraya was walking on extreme end of
the road and the motorcycle bearing No.KL-12/D-6909
ridden by one Subhash came in a rash and negligent
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manner and dashed to another motorcycle bearing No.KA-
28/ER-4810 and thereafter both the vehicles dashed to
Siddaraya where he died due to the fatal injuries
sustained. It is contended that the deceased was aged
about 18 years, earning Rs.15,000/- per month and the
petitioners being the parents of the deceased have lost
their son and therefore, they are entitled for the
compensation.
4. The respondent Nos.1 and 2 before the Tribunal
were the owner and insurer of the motorcycle bearing
No.KA-28/ER-4810 and the respondent Nos.3 and 4 were
the rider and owner of the motorcycle bearing No.KL-
12/D-6909.
5. In spite of service of notice, the respondent
Nos.3 and 4 did not appear before the Tribunal. It is only
the respondent No.2 appeared and contested the claim. It
was contended by respondent No.2 that the motorcycle
bearing No.KA-28/ER-4810 has never touched the
deceased and therefore no negligence can be attributed to
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it. It was contended that the negligence was on the part of
the rider-respondent No.3-Subhash and therefore, it is
only the respondent Nos.3 and 4, who are liable to pay the
compensation. Inter alia, respondent No.2 had also
contended that there were violation of terms and
conditions of the policy and the rider had no driving
licence.
6. On the basis of the above contentions, the
Tribunal framed appropriate issues and the petitioner No.1
was examined as PW.1 and got marked Exs.P1 to P8 and
one witness was examined as PW.2. The respondents did
not lead any ocular evidence, but copy of the policy was
marked as Ex.R1.
7. After hearing both the sides, the Tribunal came
to conclusion that riders of both the motorcycles
contributed negligence equally and assessed the
compensation payable at Rs.11,37,000/- and directed the
respondent No.2 to pay the compensation with liberty to
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recover 50% of the same from the respondent Nos.3 and
4.
8. Being aggrieved by the said judgment, the
petitioners are before this Court seeking enhancement of
the compensation. The Insurance Company is before this
Court seeking absolvement of its liability since the charge-
sheet was filed only against the respondent No.3 -
Subhash and as such, fastening 50% liability on the
respondent No.1 before the Tribunal is incorrect.
9. Learned counsel appearing for the
appellants/petitioners submits that the notional income of
the deceased who was aged about 16 years 4 months has
not been properly considered by the Tribunal. He submits
that even though the deceased was a minor, the Division
Bench of this Court in MFA No.102268/2019 DD
13.11.2020 (Chetana and others vs. Babuji M. and
others) has held that the minors aged above 15 years
have to be considered as adults for the purpose of
assessment of compensation and in this regard, the
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Division Bench has relied on the judgment of the Hon'ble
Apex Court in the case of Kishan Gopal and another vs.
Lala and others1.
10. As noted supra no arguments are advanced on
behalf of the appellant-Insurance Company.
11. A perusal of the Tribunal records would show
that in the complaint filed by the petitioners before the
police, it was clearly mentioned that he came to know
about the accident through one Pandu Katral. It was
informed to the PW.1 by said Pandu that while the
deceased was walking by the side of the road, the
respondent No.3-Subhash came on the motorcycle bearing
No.KL-12/D-6909 with a pillion rider in high speed and
negligent manner and dashed to the motorcycle of the said
Pandu i.e. KA-28/ER-4810 and then dashed to the
deceased who was walking on the northern side of the
road. The said Pandu went to the spot and had found that
AIR 2013 SC 5037
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the deceased-Siddaraya had succumbed to injuries.
Accordingly, the complaint was lodged by PW.1 and
investigation was launched by the police. During
investigation, the Investigating Officer found that the said
Subhash had no driving licence and therefore, filed the
charge sheet for the offences punishable under Sections
279, 337, 338 and 304-A of IPC and Section 3 read with
181 of M.V.Act. The owner of the motorcycle was arrayed
as accused No.2 and he was alleged of allowing the
motorcycle which was not insured to be driven on the road
by a person who is not having a valid driving licence and
thereby the offence under Section 156 read with 196 and
Section 5 read with 180 of the M.V.Act, were invoked
against him. The Investigating Officer did not find any
culpable negligence towards the rider i.e. Pandu, of the
motorcycle bearing No.KA-28/ER-4810.
12. The petitioners contend that both the vehicles,
after the collision had dashed to the deceased. This
version stated by PW.2, who claims to be eyewitness, do
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not find any support from any of the police papers. The
spot mahazar at Ex.P5 would show that there is a distance
about 50 feet from the place where the vehicle of
respondent Nos.1 and 2 had collided with the vehicle of
the respondent Nos.3 and 4 and the place where it had
dashed to the deceased. This would show that both the
vehicles hitting upon the deceased do not get support from
the police papers.
13. Be that as it may, the police are saddled to
investigate the culpable negligence in the matter. The
investigating agency is not concerned with the actionable
negligence. Therefore, it is the actionable negligence,
which is relevant for a petitions filed under Section 166 of
the M.V.Act.
14. The point now posed before this Court is
whether the owner and insurer of the vehicle bearing No.
KA-28/ER-4810 are also liable to pay the compensation?
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15. It is settled proposition of law that the liability
to pay compensation under tort arises out of the concept
of actionable negligence.
16. An actionable negligence basically comprise of
a) breach of duty of care owed to another person
or entity,
b) the duty of care requiring the person or entity
to exercise reasonable care to prevent harm or
injury to others,
c) to establish actionable negligence, it must be
shown that the breach of duty caused the harm or
injury and
d) the claimant must also show that he suffered
damages as a result of breach of duty.
17. The culpable negligence, which is relevant for
prosecuting agency comprise of
a) gross or wanton breach of duty, which is more
serious and egregious breach than actionable
negligence,
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b) reckless disregard for the safety and wellbeing
of others which is a higher level of intent than
actionable negligence,
c) conscious disregard to the safety and wellbeing
of others, knowing that their actions could cause
harm,
d) culpable negligence can result in punitive
damages which are designed to punish the wrong
doer for their reckless and egregious behavior.
18. It may be noted that the degree of negligence,
intent and the consequences are the key differences of
actionable negligence and culpable negligence. A culpable
negligence requires higher degree of proof as it results in a
punishment to the wrong doer. Therefore if it is shown
that a person failed to exercise any of the care as
mentioned above, he would be liable to pay the
compensation.
19. The concept of actionable negligence was
considered by the Apex Court in the case of
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Jang Bahadur Singh v. Sunder Lal Mandal2, in the
above judgment, at paragraph No.62 it was held as below:
"62. The rule of law, therefore, is that
when two persons have been negligent, he must
bear the blame who was at fault in not avoiding
the result of the other's negligence. The ultimate
question, rather the crux of the matter, in such a
case is: Who caused the accident? Its answer
furnishes the working rules of contributory
negligence, and, as such, the rule of law of
liability for negligence and its effect on the
plaintiff's action for damages for actionable
negligence."
20. In other words, who caused the accident? and
the answer to such question provide the Rules of
contributory negligence.
21. The development of law of insurance concerning
the motor vehicle accidents, over the years, has
undergone drastic changes owing to the responsibility of
the State to compensate the victims of the accidents.
AIR 1962 Pat 258
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From the viewpoint of proving the actionable negligence,
which is essential in case of any tortuous liability, it
appears that the requirement was filled by the State in
drafting the Motor Vehicles Act, for, the word negligence
can nowhere be found either in Section 165 or 166 of the
M.V.Act. In other words it is only the involvement of the
vehicle, which is essential to invoke the provisions of
Section 166 of the M.V.Act. Viewed from this angle, it
appears that it is not necessary for the petitioners to
establish and prove the negligence on the part of the rider
of the motorcycle bearing No.KA-28/ER-4810, the
involvement of the said vehicle is sufficient. For the
purpose of culpable negligence, it is necessary to find out
who was more negligent, as such negligence makes him
liable under the criminal liability.
22. Obviously the rider of the motorcycle bearing
No.KA-28/ER-4810 was not charge-sheeted by the police.
Under these circumstances, even though the Tribunal
erred in holding that both the vehicles have contributed
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50% negligence, the liability of the respondent Nos.3 and
4 which arise out the actionable negligence, cannot be
absolved completely.
23. It is worth to note that the negligence on the
part of the respondent No.3-Subhash and the owner
respondent No.4 was clearly on the higher side. It is
evident that respondent No.4 gave an uninsured vehicle in
the hands of the respondent No.3 who didn't have a
driving licence. Therefore, the liability of the respondent
Nos.3 and 4 is held at 90% and that of the respondent
Nos.1 and 2 is held at 10% since he could have exercised
care while on the road, before the vehicle of the
respondent Nos.3-Subhash collided with his vehicle.
Evidently as per the spot mahazar, accident between the
two motorcycles had taken place at the centre of the road.
In that view, the apportionment of negligence by the
Tribunal is unsustainable in law and the same is modified
as 90% on the part of respondent Nos.3 and 4 and 10%
on behalf of respondent Nos.1 and 2.
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Coming to the quantum of the compensation, the
Tribunal though rightly took the notional income at
Rs.10,250/-, it failed to add future prospects for the same.
Therefore, after adding the future prospects, the
compensation towards loss of dependency is reassessed as
Rs.15,49,800/- {Rs.14,350/-[10,250 + (10,250 x 40%)]
x 12 x 18 x 50%} by deducting 50% towards personal
expenses of the deceased, who was a bachelor.
24. To that a sum of Rs.19,500/- towards funeral
expenses, Rs.19,500/- towards the loss of estate and
Rs.52,000/- towards loss of love and affection is awarded
after giving escalations at 10% every 3 years as held in
the case of National Insurance Co. Ltd., v. Pranay
Sethi and Others3. Therefore, the petitioners are entitled
for total compensation of Rs.16,40,800/-.
25. The Tribunal, though had erred in assessing the
apportionment of negligence has rightly ordered the
(2010) 12 SCC 378
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respondent No.2-Insurance Company to pay the
compensation with liberty to recover the same from the
respondent Nos.3 and 4. This is on account of the principle
of composite negligence. Evidently the deceased had no
role to play in the accident; he was a pedestrian walking
by the side of the road. For him, it was a case of
composite negligence (Khenyei v. New India Assurance
Co. Ltd.,4). Therefore, the petitioners are at liberty to
claim compensation from any one of the tortfeasors.
26. As such, both the appeals deserve to be allowed
in-part and hence, the following:
ORDER
(i) Both appeals are allowed in-part.
(ii) The appellants-claimants are entitled for
compensation of Rs.16,40,800/- from
the respondent Nos.1 to 4 jointly and
severally.
(2015) 9 SCC 273
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(iii) The respondent Nos.1 and 2 are liable to
pay compensation of 10% and the
respondent Nos.3 and 4 are liable to pay
compensation of 90%.
(iv) The respondent No.2-Insurance
Company is directed to pay entire
compensation to the petitioners with
liberty to recover the same from the
respondent Nos.3 and 4 by executing
this judgment as a decree.
(v) Rest of the order passed by the Tribunal
regarding apportionment and deposit
remain unaltered.
(vi) The amount in deposit, if any, be
transmitted to the concerned Tribunal
forthwith.
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(vii) The Registry to send back the records to
the concerned Court.
Sd/-
(C M JOSHI)
JUDGE
sdu
CT:AK
