Karnataka High Court
Vivekanand S/O Veerayya Salimath And ... vs Arjun S/O Rachappa Kumbar And Anr on 18 March, 2025
Author: K Natarajan
Bench: K Natarajan
-1-
MFA NO.201992/2019 AND
CONNECTED MATTERS
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS 18TH DAY OF MARCH, 2025
PRESENT
THE HON'BLE MR. JUSTICE K NATARAJAN
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
MISCELLANEOUS FIRST APPEAL NO. 201992 OF 2019
C/W
MISCELLANEOUS FIRST APPEAL NO. 201993 OF 2019
MISCELLANEOUS FIRST APPEAL NO. 201994 OF 2019
MISCELLANEOUS FIRST APPEAL NO. 200372 OF 2020
MISCELLANEOUS FIRST APPEAL NO. 200373 OF 2020
MISCELLANEOUS FIRST APPEAL NO. 200376 OF 2020
IN MFA NO.201992/2019:
Digitally signed
by RAMESH BETWEEN:
MATHAPATI
Location: HIGH
COURT OF THE BRANCH MANAGER,
KARNATAKA ROYAL SUNDARAM INSURANCE CO. LTD.,
SUNDARAM TOWERS, 45 & 46,
WHITES ROAD, CHENNAI - 600002.
NOW REPRESENTED BY
ROYAL SUNDARAM GEN, INSURANCE CO. LTD.,
NO.1, SUBRAMANIAM BUILDING, 2ND FLOOR,
CLUB HOUSE ROAD, ANNA SALAI,
CHENNAI - 600002.
THROUGH MANAGER LEGAL.
...APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
1. VIVEKANAND S/O VEERAYYA SALIMATH,
BAMMANAHALLI,
-2-
MFA NO.201992/2019 AND
CONNECTED MATTERS
AGE: 53 YEARS, OCC: LECTURER,
2. BHARATI W/O VIVEKANAND SALIMATH,
BAMMANAHALLI,
AGE: 48 YEARS, OCC: HOUSEHOLD,
BOTH R/O VIVEKANAND NAGAR,
SINDAGI, DIST: VIJAYPURA - 586101.
3. ARJUN S/O RACHAPPA KUMBAR,
AGE: 43 YEARS, OCC: BUSINESS,
R/O BARADOL, TQ: INDI,
DIST: VIJAYAPURA - 586209.
...RESPONDENTS
(BY SRI. SANGANABASAVA B. PATIL, ADV. FOR R1 & R2;
SRI. SANGANAGOUDA V. BIRADAR, ADV. FOR R3)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO SET
ASIDE THE JUDGMENT AND AWARD DATED 13TH DAY OF JUNE
2019 PASSED BY THE III ADDITIONAL SENIOR CIVIL JUDGE &
MEMBER MACT XII AT VIJAYPURA IN MVC NO.326/2016 AND
TO MODIFY THE COMPENSATION AWARDED AND TO PASS
SUCH OTHER ORDERS AS THIS HON'BLE COURT DEEMS FIT
UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE.
IN M.F.A NO.201993/2019:
BETWEEN:
THE BRANCH MANAGER,
ROYAL SUNDARAM INSURANCE CO. LTD.,
SUNDARAM TOWERS, 45 & 46
WHITES ROAD, CHENNAI - 600002.
NOW REPRESENTED BY
ROYAL SUNDARAM GEN, INSURANCE CO. LTD.,
NO.1, SUBRAMANIAM BUILDING, 2ND FLOOR,
CLUB HOUSE ROAD, ANNA SALAI,
CHENNAI - 600002.
THROUGH LEGAL MANAGER.
...APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
-3-
MFA NO.201992/2019 AND
CONNECTED MATTERS
AND:
1. KALYAN S/O KSHITISHCHANDRA MONDAL
AGE: 54 YEARS
2. ANANYA W/O KALYAN MONDAL,
AGE: 52 YEARS, OCC: HOUSEHOLD,
BOTH R/O 45, KENDUA MAIN ROAD,
GARIA, KOLKATA, WEST BENGAL - 700084.
3. ARJUN S/O RACHAPPA KUMBAR,
AGE: 43 YEARS, OCC: BUSINESS,
R/O BARADOL, TQ: INDI,
DIST: VIJAYAPURA - 586209.
...RESPONDENTS
(BY SRI. SANGANABASAVA B. PATIL, ADV. FOR R1 & R2;
NOTICE TO R3 - SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO SET
ASIDE THE JUDGMENT AND AWARD DATED 13TH DAY OF JUNE
2019 PASSED BY THE III ADDITIONAL SENIOR CIVIL JUDGE &
MEMBER MACT XII AT VIJAYPURA IN MVC NO.327/2016 AND
TO MODIFY THE COMPENSATION AWARDED AND TO PASS
SUCH OTHER ORDERS AS THIS HON'BLE COURT DEEMS FIT
UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE.
IN M.F.A NO.201994/2019:
BETWEEN:
THE BRANCH MANAGER,
ROYAL SUNDARAM INSURANCE CO. LTD.,
SUNDARAM TOWERS, 45 & 46
WHITES ROAD, CHENNAI - 600002.
NOW REPRESENTED BY
ROYAL SUNDARAM GEN. INSURANCE CO. LTD.,
NO.1, SUBRAMANIAM BUILDING, 2ND FLOOR,
CLUB HOUSE ROAD, ANNA SALAI,
CHENNAI - 600002.
THROUGH MANAGER LEGAL.
-4-
MFA NO.201992/2019 AND
CONNECTED MATTERS
...APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
1. RAJESH KUMAR S/O BRIJ MOHAN,
BAMMANAHALLI,
AGE: 47 YEARS, OCC: ENGINEER,
2. SUNITA KUMARI W/O RAMESH KUMAR,
BAMMANAHALLI,
AGE: 43 YEARS, OCC: HOUSEHOLD,
BOTH R/O 4TH MAIN, 8TH CROSS,
COFFEE BOARD LAYOUT, KEMPAPURA,
BANGALORE - 560001.
3. ARJUN S/O RACHAPPA KUMBAR,
AGE: 43 YEARS, OCC: BUSINESS,
R/O BARADOL, TQ: INDI,
DIST: VIJAYAPURA - 586209.
...RESPONDENTS
(BY SRI. SANGANABASAVA B. PATIL, ADV. FOR R1 & R2;
NOTICE TO R3 - SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO SET
ASIDE THE JUDGMENT AND AWARD DATED 13TH DAY OF JUNE
2019 PASSED BY THE III ADDITIONAL SENIOR CIVIL JUDGE &
MEMBER MACT XII AT VIJAYPURA IN MVC NO.328/2016 AND
TO MODIFY THE COMPENSATION AWARDED AND TO PASS
SUCH OTHER ORDERS AS THIS HON'BLE COURT DEEMS FIT
UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE.
IN M.F.A NO.200372/2020:
BETWEEN:
1. RAJESH KUMAR S/O BRIJ MOHAN,
AGE: 48 YEARS, OCC: ENGINEER,
-5-
MFA NO.201992/2019 AND
CONNECTED MATTERS
2. SUNITA KUMARI W/O RAMESH KUMAR,
AGE: 44 YEARS, OCC: HOUSE HOLD,
BOTH ARE R/O: 4TH MAIN, 8TH CROSS,
COFFEE BOARD LAYOUT, KEMPAPURA,
BANGALORE-06.
...APPELLANTS
(BY SRI. SANGANABASAVA B. PATIL, ADVOCATE)
AND:
1. ARJUN S/O RACHAPPA KUMBAR,
AGE: 45 YEARS, OCC: BUSINESS,
R/O BARADOL, TQ: INDI,
DIST: VIJAYAPURA - 586101.
2. THE BRANCH MANAGER,
ROYAL SUNDARAM INSURANCE CO. LTD.,
SUNDARAM TOWERS, 45 & 46,
WHITES ROAD, CHENNAI - 600002.
...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADV. FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO
MODIFY THE JUDGMENT AND AWARD PASSED BY THE COURT
OF III ADDITIONAL SENIOR CIVIL JUDGE & M.A.C.T. NO.XII
VIJAYAPUR AT: VIJAYAPUR IN MVC NO.328/2016 DATED
13.06.2019 AND BE PLEASED TO ALLOW THE CLAIM PETITION
BY GRANTING THE RELIEF AS PRAYED FAR BY THE
APPELLANTS HEREIN.
IN M.F.A NO.200373/2020:
BETWEEN:
1. VIVEKANAND S/O VEERAYYA SALIMATH,
AGE: 54 YEARS, OCC: LECTURER,
2. BHARATI W/O VIVEKANAND SALIMATH,
AGE: 49 YEARS, OCC: HOUSE HOLD,
-6-
MFA NO.201992/2019 AND
CONNECTED MATTERS
BOTH ARE R/O: VIVEKANAND NAGAR,
SINDAGI, DIST: VIJAYAPUR - 586101.
...APPELLANTS
(BY SRI. SANGANABASAVA B. PATIL, ADVOCATE)
AND:
1. ARJUN S/O RACHAPPA KUMBAR,
AGE: 44 YEARS, OCC: BUSINESS,
R/O BARADOL, TQ: INDI,
DIST: VIJAYAPURA - 586101.
2. THE BRANCH MANAGER,
ROYAL SUNDARAM INSURANCE CO. LTD.,
SUNDARAM TOWERS, 45 & 46,
WHITES ROAD, CHENNAI - 600002.
...RESPONDENTS
(BY SRI. SANGANAGOUDA V. BIRADAR, ADV. FOR R1;
SMT. PREETI PATIL MELKUNDI, ADV. FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO
MODIFY THE JUDGMENT AND AWARD PASSED BY THE COURT
OF III ADDITIONAL SENIOR CIVIL JUDGE & M.A.C.T. NO.XII
VIJAYAPUR AT: VIJAYAPUR IN MVC NO.326/2016 DATED
13.06.2019 AND BE PLEASED TO ALLOW THE CLAIM PETITION
BY GRANTING THE RELIEF AS PRAYED FAR BY THE
APPELLANTS HEREIN.
IN M.F.A NO.200376/2020:
BETWEEN:
1. KALYAN S/O KSHITISH CHANDRA MONDAL,
AGE: 55 YEARS, OCC: BUSINESS,
2. ANANYA W/O KALYAN MONDAL,
AGE: 53 YEARS, OCC: HOUSE HOLD,
BOTH ARE R/O: 45 KENDUA MAIN ROAD,
GARIA, KOLKATA, WEST BENGAL - 700084.
...APPELLANTS
-7-
MFA NO.201992/2019 AND
CONNECTED MATTERS
(BY SRI. SANGANABASAVA B. PATIL, ADVOCATE)
AND:
1. ARJUN S/O RACHAPPA KUMBAR,
AGE: 44 YEARS, OCC: BUSINESS,
R/O BARADOL, TQ: INDI,
DIST: VIJAYAPUR - 586101.
2. THE BRANCH MANAGER,
ROYAL SUNDARAM INSURANCE CO. LTD.,
SUNDARAM TOWERS, 45 & 46,
WHITES ROAD, CHENNAI - 600002.
...RESPONDENTS
(BY SRI. SANGANAGOUDA V. BIRADAR, ADV. FOR R1;
SMT. PREETI PATIL MELKUNDI, ADV. FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO
MODIFY THE JUDGMENT AND AWARD PASSED BY THE COURT
OF III ADDITIONAL SENIOR CIVIL JUDGE & M.A.C.T. NO.XII
VIJAYAPUR AT: VIJAYAPUR IN MVC NO.327/2016 DATED
13.06.2019 AND BE PLEASED TO ALLOW THE CLAIM PETITION
BY GRANTING THE RELIEF AS PRAYED FAR BY THE
APPELLANTS HEREIN.
THESE APPEALS HAVING BEEN RESERVED FOR
JUDGMENT, COMING ON FOR "PRONOUNCEMENT OF ORDERS"
THIS DAY, THE COURT, PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE K NATARAJAN
AND
HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
-8-
MFA NO.201992/2019 AND
CONNECTED MATTERS
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL)
These appeals are filed under Section 173(1) of the
Motor Vehicles Act, 1988 (hereinafter referred to as 'MV
Act'). The appeals filed are as under:
i) MFA.No.201992/2019 is filed by the Insurance
Company and MFA.No.200373/2020 is filed by
the claimants against the judgment in
MVC.No.326/2016.
ii) MFA.No.201993/2019 is filed by the Insurance
Company and MFA.No.200376/2020 is filed by
the claimants against the judgment in
MVC.No.327/2016.
iii) MFA.No.201994/2019 is filed by the Insurance
Company and MFA.No.200372/2020 is filed by
the claimants against the judgment in
MVC.No.328/2016.
All these appeals are arising out of the common
judgment and award dated 13.06.2019 passed in
MVC.Nos.326-328/2016 by the III Additional Senior Civil
MFA NO.201992/2019 AND
CONNECTED MATTERS
Judge and MACT-XII, Vijayapura (hereinafter referred to
as 'Tribunal').
2. Though the matters are listed for admission,
with the consent of the learned counsels representing the
parties, the same are taken up for final disposal.
3. The parties are referred to as per their ranking
before the Tribunal for the sake of convenience.
4. Brief facts leading to filing of these appeals are
that the legal heirs of the deceased have filed claim
petitions before the Tribunal under Section 166 of the MV
Act, seeking compensation for the accidental death of their
dependents/children's. It is averred that deceased were
proceeding on a motor bike bearing registration No.KA-
14/W-4793 from Solapur Bypass Road towards Sindagi
Bypass Road near Sanganabasava School. At that time,
the mini goods vehicle bearing registration No.KA-28/C-
2575 came from opposite direction i.e., from Sindagi
Bypass Road, driven by its driver in a rash and negligent
- 10 -
MFA NO.201992/2019 AND
CONNECTED MATTERS
manner and dashed to the motorcycle, resultantly all the
motorcyclists sustaining grievous injuries and they
succumbed to those injuries. The dependents filed the
claim petition claiming that the accident is due to the
negligence of the driver of the offending mini goods
vehicle and they are entitled to a compensation for the
untimely death of their children.
5. The respondents entered appearance before the
Tribunal and filed detailed statement of objections denying
the negligence of the driver of the offending vehicle. It is
averred that the liability is subject to the fulfillment of the
conditions of policy. It is further averred that the rider of
the motorcycle was not in possession of a valid driving
license and they were travelling without wearing helmet
and more than two persons were riding on the motorcycle
which is in violation of Section 129 of the MV Act. It is
also averred that the age, claimed income of the deceased
are false and without any basis, and hence, sought for
dismissal of the claim petitions.
- 11 -
MFA NO.201992/2019 AND
CONNECTED MATTERS
6. The Tribunal based on the pleading framed the
issues, recorded the evidence, the claimants examined
PW-1 to PW-5 and got marked exhibits P1 to P31. The
respondent examined RW-1 and RW-2 and got marked
exhibits R1 and R2. The Tribunal on appreciation of the
evidence, assessed the income of all the deceased at
Rs.20,000/- per month, deducted 50% towards personal
and living expenses, applied 18 multiplier and awarded
Rs.21,60,000/- towards loss of dependency, Rs.25,000/-
towards loss of love and affection, Rs.20,000/- towards
loss of estate and Rs.25,000/- towards transportation of
dead body and funeral expenses, in all Rs.22,30,000/-
with interest at the rate of 6% p.a. in each of the claim
petitions by saddling the entire liability on the insurance
company. Being aggrieved, the insurance company is in
appeal, challenging the saddling of entire liability on it, as
well as the quantum of compensation. On the other hand,
the claimants are seeking for higher compensation.
- 12 -
MFA NO.201992/2019 AND
CONNECTED MATTERS
7. Smt. Preethi Patil Melkundi, learned counsel
appearing for the appellant-insurance company submits
that the Tribunal has committed a grave error in saddling
the entire liability on the appellant-insurance company
without appreciating the fact that all the three deceased
were travelling on one motorcycle without wearing a
helmet which is in violation of Sections 128 and 129 of MV
Act. Hence, proportionate liability is required to be
saddled on the deceased. It is submitted that
non-wearing of the helmet and triple riding clearly
demonstrates negligence of the rider and such negligence
of the rider of the motorcycle caused accidental death of
the pillion riders on the motorcycle and hence, the
insurance company cannot be held solely liable to pay the
compensation. It is further submitted that the Tribunal
has committed further error in assessing the income of all
the deceased notionally at Rs.20,000/- per month as they
were the students pursuing their education. Hence, the
assessment of income of the deceased should be based on
the notional income chart prepared by the Karnataka State
- 13 -
MFA NO.201992/2019 AND
CONNECTED MATTERS
Legal Services Authority and it should not be more than
Rs.10,000/- per month. On these grounds, she seeks to
allow the appeals filed by the Insurance Company by
modifying the impugned judgment of the Tribunal.
8. Sri. Sanganabasava B. Patil, learned counsel
appearing for the appellant-claimants supports the
impugned judgment and award of the Tribunal insofar as
saddling of entire liability on the insurance company and
the finding on negligence. It is submitted that the
deceased were 2nd year MBBS students and if they were
alive, they would have a bright future and they would have
earned more than Rs.50,000/- per month and contributed
to their families. However, the Tribunal without any basis
has assessed the income of the deceased notionally at
Rs.20,000/- per month, which is on the lower side and is
required to be enhanced appropriately. It is further
submitted that the Tribunal has erred in not awarding any
compensation under the head of loss of future prospects of
the deceased which they are entitled at the rate of 40% of
- 14 -
MFA NO.201992/2019 AND
CONNECTED MATTERS
the assessed income of the deceased. It is also submitted
that the award of compensation under the head of loss of
consortium and conventional heads are contrary to the
settled position of law. In support of his contention, he
placed reliance on the following decisions:
a) Bishnupriya Panda vs. Basanti Manjari
Mohanty1
b) Mohammed Siddique and another vs. National
Insurance Company Ltd., and others2
c) Mallanna vs. Mahadevappa and others3
9. He seeks to allow the appeals filed by the
claimants by dismissing the appeals of the insurance
company.
10. We have heard the arguments of learned
counsel for the appellant - insurance company, learned
counsel for the appellants - claimants, perused the
material available on record and meticulously considered
Civil Appeal No.4911/2023 dated 04.08.2023
AIR 2020 SC 520
MFA.No.202001/2018 and connected appeals DD 11.08.2023
- 15 -
MFA NO.201992/2019 AND
CONNECTED MATTERS
the contentions advanced and the material available on
record. The point that arises for consideration in these
appeals is as under:
i) Whether the impugned judgment and award
passed by the Tribunal call for interference in
these appeals?
11. The pleading and evidence on record indicates
that one Sri. Vishwas, Sri. Anindya and Sri. Avadeshkumar
were proceeding on a motorcycle bearing registration
No.KA-14/W-4793 from Solapur Bypass Road towards
Sindagi Bypass Road on 03.01.2016. At that time, the
driver of mini goods vehicle bearing registration No.KA-
28/C-2575 came from the opposite direction in a rash and
negligent manner and dashed to the motorcycle resulting
in grievous injuries to all the three riders of the
motorcycle. Later, they succumbed to those injuries.
Admittedly, the jurisdictional police on completion of
investigation filed charge sheet against the driver of the
mini goods vehicle for the negligence. The driver of the
offending vehicle has been convicted by the I Additional
- 16 -
MFA NO.201992/2019 AND
CONNECTED MATTERS
JMFC, Vijayapura in CC.No.1836/2016. Considering the
oral and documentary evidence on record, the Tribunal
answered the issue with regard to the negligence in favour
of the claimants.
12. The contention of the insurance company is that
all the three riders of motorcycle were proceeding on the
motorcycle bearing registration No.KA-14/W-4793 without
wearing a helmet which is a clear violation of Sections 128
and 129 of the MV Act. It is trite law that if there is a
violation of Sections 128 and 129 of the MV Act, the
consequences under the law would follow. However, that
itself would not establish the factum of negligence of the
rider of the motorcycle. The parties to the proceedings
are required to establish the actionable negligence by
adducing legally acceptable evidence. In the instant case,
the claimants have established the factum of negligence
by oral and documentary evidence before the Tribunal.
The Tribunal while considering the issues No.1 and 2 has
recorded the clear finding that the driver of the mini goods
- 17 -
MFA NO.201992/2019 AND
CONNECTED MATTERS
vehicle was negligent and caused the accident in question.
The said finding of the Tribunal is on appreciation of oral
and documentary evidence on record and the said finding
of the Tribunal is neither perverse nor contrary to the
evidence on record calling for any interference. The
contentions urged by the insurance company with regard
to the shifting of partial liability on the claimant, has no
merit and accordingly rejected. Our view gains support
from the decision of the Hon'ble Supreme Court in the
case of Mohammed Siddique and another referred
supra. The relevant paragraphs of the judgment is
extracted herein below:
"13. But the above reason, in our view, is
flawed. The fact that the deceased was riding on a
motor cycle along with the driver and another,
may not, by itself, without anything more, make
him guilty of contributory negligence. At the most
it would make him guilty of being a party to the
violation of the law. Section 128 of the Motor
Vehicles Act, 1988, imposes a restriction on the
driver of a two wheeled motor cycle, not to carry
more than one person on the motor cycle. Section
194C inserted by the Amendment Act 32 of 2019,
- 18 -
MFA NO.201992/2019 AND
CONNECTED MATTERS
prescribes a penalty for violation of safety
measures for motor cycle drivers and pillion riders.
Therefore, the fact that a person was a pillion rider
on a motor cycle along with the driver and one
more person on the pillion, may be a violation of
the law. But such violation by itself, without
anything more, cannot lend to a finding of
contributory negligence, unless it is established
that his very act of riding along with two others,
contributed either to the accident or to the impact
of the accident upon the victim. There must either
be a causal connection between the violation and
the accident or a causal connection between the
violation and the impact of the accident upon the
victim. It may so happen at times, that the
accident could have been averted or the injuries
sustained could have been of a lesser degree, if
there had been no violation of the law by the
victim. What could otherwise have resulted in a
simple injury, might have resulted in a grievous
injury or even death due to the violation of the law
by the victim. It is in such cases, where, but for
the violation of the law, either the accident could
have been averted or the impact could have been
minimized, that the principle of contributory
negligence could be invoked. It is not the case of
the insurer that the accident itself occurred as a
result of three persons riding on a motor cycle. It
is not even the case of the insurer that the
- 19 -
MFA NO.201992/2019 AND
CONNECTED MATTERS
accident would have been averted, if three
persons were not riding on the motor cycle. The
fact that the motor cycle was hit by the car from
behind, is admitted. Interestingly, the finding
recorded by the Tribunal that the deceased was
wearing a helmet and that the deceased was
knocked down after the car hit the motor cycle
from behind, are all not assailed. Therefore, the
finding of the High Court that 2 persons on the
pillion of the motor cycle, could have added to the
imbalance, is nothing but presumptuous and is not
based either upon pleading or upon the evidence
on record. Nothing was extracted from PW3 to the
effect that 2 persons on the pillion added to the
imbalance."
[Emphasis supplied]
13. The Co-ordinate Bench of this Court in the case
of Mallanna referred supra considered the decision of this
Court in the case of Bharma Kallappa Murashetti and
others vs. Karamjeet Kaur and another4 and held that
the violation of statutory provision itself cannot be the
reason to come to the conclusion that there is a
contributory negligence. The relevant paragraphs of the
ILR (2016) 5098
- 20 -
MFA NO.201992/2019 AND
CONNECTED MATTERS
judgment of Bharma Kallapa Murashetti and others
referred supra is extracted herein below:
"8. A careful perusal of these judgments
makes it clear that the very violation of a statutory
provision would not lead to negligence causing the
accident. A concrete evidence is necessary to
establish the violation of the statutory provision,
resulting in the negligence causing the accident.
Only in such circumstances, proportionate
contributory negligence could be attributable. No
doubt three passengers were traveling in a
motorcycle in violation of Section 128 of the Act,
but no evidence is led by the insurer to establish
that the said violation of the statutory provision
itself was the cause for the accident to attribute
contributory negligence on the part of the
deceased. Mere taking a defence in the written
statement would not be suffice to establish the
factum of contributory negligence, it has to be
supported by direct and corroborative evidence,
which is admittedly missing in the present case,
since the insurer has not made any attempt to
adduce evidence to establish the contributory
negligence on the part of the deceased. It is well
settled principle that, for the insurer to avoid its
liability, the breach of the policy must be so
fundamental in nature that it brings contract to an
- 21 -
MFA NO.201992/2019 AND
CONNECTED MATTERS
end. The burden of proving rests on the shoulder
of the insurer to establish this breach of the policy,
which was fundamental in nature. That having not
been done by the insurer, no contributory
negligence can be attributed on the part of the
deceased. On the other hand, the Police records
very well establish that the negligence on the part
of the driver of the truck was the cause for the
accident. This vital material evidence was lost
sight of by the Tribunal while fixing contributory
negligence to the extent of 50% on the deceased.
Thus, this Court is of the considered opinion that
the Tribunal fixing 50% contributory negligence on
the part of the deceased is not fit to be sustained.
Accordingly, the entire negligence is fixed on the
driver of the truck (offending vehicle) and the
insurer of the offending vehicle-respondent No.2
shall be liable to satisfy the award."
14. In view of the settled position of law, we are of
the considered view that the factum of negligence is
required to be pleaded and proved before the Tribunal by
the parties to the proceeding by proper pleading and
legally acceptable evidence. Mere infraction of Sections
128 and 129 of the MV Act, would not ipso facto lead to
contributory negligence. The Tribunal has rightly come to
- 22 -
MFA NO.201992/2019 AND
CONNECTED MATTERS
the conclusion that the driver of the mini goods vehicle
was negligent and directed the appellant-insurance
company to indemnify the loss caused.
15. Insofar as the quantum of compensation is
concerned, the Tribunal notionally assessed the income of
the deceased at Rs.20,000/- per month taking note of the
fact that the deceased were 2nd year MBBS students of
B.M. Patil Medical College, Vijaypura. Admittedly, the
deceased were non-earning members of the claimants
family and their income is required to be re-assessed
notionally. The pleading and evidence on record, indicates
that the deceased were pursuing their MBBS course in
B.M. Patil Medical College, Vijayapura and they were
academically sound. Keeping in mind the potential
earning capacity of the deceased, we are of the considered
view that the income of the deceased is required to be re-
assessed.
16. This Court has also taken judicial notice of the
fact that the students of MBBS course earns stipend during
- 23 -
MFA NO.201992/2019 AND
CONNECTED MATTERS
their studies. We have also considered the decision of the
Hon'ble Supreme Court in the case of Bishnupriya Panda
referred supra, wherein the income of the deceased - 4th
year MBBS student for the accident year-2013 was
notionally assessed at Rs.50,000/- per month. In the
instant case, all the deceased were in 2nd year of the MBBS
course at the time of accident and taking note of the
stipend paid to the MBBS student for the relevant year, we
have re-assessed the notional income of the deceased at
Rs.30,000/- per month.
17. Having re-assessed the notional income of the
deceased at Rs.30,000/- per month, the claimants are also
entitled for an addition of 40% of the assessed income of
the deceased towards the loss of future prospects as held
by the Hon'ble Supreme Court in the case of National
Insurance Company Limited vs. Pranay Sethi and
others5. Each of the claimants are also entitled to
Rs.40,000/- towards the loss of consortium as per the law
(2017) 16 SCC 680
- 24 -
MFA NO.201992/2019 AND
CONNECTED MATTERS
laid by the Hon'ble Supreme Court in the case of Magma
General Insurance Company Limited vs. Nanuram alias
Chuhru Ram & others6. The claimants are also entitled to
a compensation of Rs.15,000/- under the head of loss of
estate and Rs.15,000/- towards transportation of dead
body and funeral expenses. The claimants are also
entitled to an interest at the rate of 6% from the date of
petition till the realization of the compensation amount.
The appropriate multiplier would be 18 and deduction
towards the personal and living expenses would be 50%
as all the deceased were bachelors. The compensation is
re-assessed in all the claims as under:
Loss of dependency: Rs.30,000/- + 40%
(Rs.12,000/-) = Rs.42,000/- x 12 x 18 x 50% =
Rs.45,36,000/-.
18. Thus, the claimants would be entitled to the
modified compensation as under:
(2018) 18 SCC 130
- 25 -
MFA NO.201992/2019 AND
CONNECTED MATTERS
Particulars Amount
(Rs.)
Loss of dependency 45,36,000
Loss of consortium 80,000
Loss of estate 15,000
Transportation of dead 15,000
body and funeral
expenses
Total Rs.46,46,000
Thus, the claimants in each claim petition are entitled
to a total compensation of Rs.46,46,000/- as against
Rs.22,30,000/- awarded by the Tribunal with interest at
the rate of 6% p.a. from the date of petition till realization.
19. In the result, we proceed to pass the following :
ORDER
i. MFA.No.201992/2019, MFA.No.201993/2019
and MFA.No.201994/2019 are dismissed.
ii. MFA.No.200373/2020, MFA.No.200376/2020
and MFA.No.200372/2020 are allowed in
part.
- 26 -
MFA NO.201992/2019 AND
CONNECTED MATTERS
iii. The impugned judgment and award of the
Tribunal dated 13.06.2019 passed in
MVC.No.326/2016, MVC.No.327/2016 and
MVC.No.328/2016 are modified and each of the
claimants are entitled to a total compensation
of Rs.46,46,000/- as against Rs.22,30,000/-
awarded by the Tribunal with interest at the
rate of 6% p.a. from the date of petition till
realization.
iv. The appellant-insurance company shall deposit
the entire compensation amount with accrued
interest in all the claim petitions before the
Tribunal within a period of eight weeks from
the date of receipt of certified copy of this
judgment.
v. On such deposit, the apportionment, deposit
and disbursement shall be made in terms of
award of the Tribunal.
vi. The amount in deposit, if any, shall be
transmitted to the Tribunal.
- 27 -
MFA NO.201992/2019 AND
CONNECTED MATTERS
vii. Draw modified award accordingly.
viii. There shall be no order as to costs.
Sd/-
(K NATARAJAN)
JUDGE
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
MCR
CT: PS
