Karnataka High Court
Aabdul Kareem @ Kareem vs New India Assurance Company Ltd on 2 May, 2025
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MFA NO.1342 of 2023
IN THE HIGH COURT OF KARNATAKA
AT BENGALURU
DATED THIS THE 02nd DAY OF MAY, 2025
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.1342 OF 2023
BETWEEN:
1. ABDUL KAREEM @ KAREEM
S/O ABU BYARY
AGED 52 YEARS
2. SMT. FATHIMA ZOHARA
W/O ABDUL KAREEM @ KAREEM
AGED 47 YEARS
3. MOHAMMED AZMAN
S/O ABDUL KAREEM @ KAREEM
AGED 20 YEARS
4. MOHAMMED RAMIZ
S/O ABDUL KAREEM @ KAREEM
AGED 17 YEARS
5. MOHAMMED RAZI
S/O ABDUL KAREEM @ KAREEM
AGED 14 YEARS
MALLIKARJUN
RUDRAYYA
KALMATH
APPELLANTS NO.4 AND 5 ARE MINORS AND HENCE
Digitally signed
by MALLIKARJUN REPRESENTED THROUGH IS NATURAL
RUDRAYYA
KALMATH
Date: 2025.05.06
GUARDIAN FATHER, THE APPELLANT NO.1 HEREIN
14:39:10 +0530
ALL ARE R/O D.NO.2-79/1
RAMANAGARA, KALLADKA POST
GOLTHAMAJALU, BANTAWAL TALUK
PRESENTLY R/AT FLAT NO.1,
J.M. ROAD, BUNDER
MANGALURU
...APPELLANTS
(BY SRI. G.R. PRASAD B.R. ADVOCATE)
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MFA NO.1342 of 2023
AND:
1. NEW INDIA ASSURANCE COMPANY LIMITED
JEEVAN SEVA BUILDING
2ND FLOOR, S.V. ROAD, SANTACRUZ WEST
MUMBAI
LOCAL OFFICE: 4TH FLOOR, FORTUNE BUILDING
OPP. TO ATHENA HOSPITAL, FALNIR
MANGALURU 575 001
REPRESENTED BY ITS MANAGER
2. MR. B. MONAPPA NAIK
S/O B.SUBBA NAIK
AGED ABOUT 54 YEARS
R/O DOOR NO.1-34
BARANIKERE HOUSE, MINI POST
BANTWAL - 574 325
...RESPONDENTS
(BY SRI. VENKATESH KAMATH, ADVOCATE FOR R1;
R2 SERVED, UNREPRESENTED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 26.04.2022 PASSED IN MVC
NO.982 OF 2020 ON THE FILE OF THE III ADDITIONAL
DISTRICT & SESSIONS JUDGE, MACT-IV, DAKSHINA
KANNADS, MANGALURU.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 15.04.2025, COMING ON FOR
"PRONOUNCEMENT OF ORDERS" THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE G BASAVARAJA)
Appellant-claimant has preferred this appeal against the
judgment and award dated 26th April 2022 passed in MVC
No.982 of 2020 by the III Additional District & Sessions Judge,
Motor Accident Claims Tribunal-IV, Dakshina Kannada,
MFA NO.1342 of 2023
Mangaluru (for short hereinafter referred to as "the Tribunal")
questioning the saddling of 50% contributory negligence on
behalf of the deceased and also seeking enhancement in
compensation.
2. The brief facts leading to this appeal are that the
petitioner/claimants have filed claim petition seeking
compensation for the death of Mohammed Ajmal in the road
traffic accident. It is the case of petitioners that on 14th
January 2020, when Mohammed Ajmal was travelling on his
Honda Matrix Scooter bearing registration number KA-19/EG-
9826 on Mani - Mysore National Highway and at 6.50 pm, while
passing near Mani village of Bantwal Taluk, the motorcycle
bearing registration number KA-19/EC-8175 was coming from
opposite direction being ridden by its rider in a rash and
negligent manner. It is stated that a dog suddenly came on the
road and in order to avoid hitting to the dog, the rider of the
offending motorcycle came to the wrong side and hit to the
motorcycle of Mohammad Ajmal, resulting in Mohammed Ajmal
sustaining grievous injuries. Immediately, he was shifted to
Highland Hospital, Mangalore, wherein he was declared as
dead. It is stated in the claim petition that the deceased was
19 years as on the date of accident and was earning
MFA NO.1342 of 2023
Rs.15,000/- per month. It is stated that petitioners 1 & 2 are
the parents and petitioners 3 to 5 are siblings of Mohammad
Ajmal and all were dependent on him. It is also stated that the
family has lost the earning member and hence claimed
compensation from the insured and insurer of the offending
vehicle.
3. In furtherance of issuance of summons, respondent
No.1 did not appear and was placed ex-parte. Respondent
No.2 appeared through counsel and filed objection statement
contending that the accident in question was due to negligence
on the part of the rider of the deceased. There was no
negligence on the part of the rider of the offending motorcycle
by the respondent No.2, and therefore respondent No.2 is not
liable to pay compensation. It is further stated that the rider of
the offending motorcycle was not having the driving license at
the time of accident, and therefore, the insured of the
motorcycle-respondent No.2 has committed breach of policy
conditions. On all these grounds, respondent No.2 sought to
reject the claim petition.
4. Based on the pleadings, the Tribunal framed issues.
To prove the case, father of the deceased has been examined
as PW1 and another witness has been examined as PW2 and
MFA NO.1342 of 2023
got marked eight documents as per Exhibits P1 to P8. On
behalf of respondents, respondent No.2 has examined the
Divisional Manager as RW1 and another witness as RW2 and
marked eleven documents as per Exhibits R1 to R11.
5. Having heard the arguments on both sides, the
Tribunal has partly allowed the claim petition with respect to
petitioners 2 to 5 and rejected the claim petition in respect of
petitioner No.1. The Tribunal awarded the compensation of
Rs.12,53,400/- along with interest at 6% per annum from the
date of petition till realisation. The Tribunal observed that the
deceased had also contributed to the accident in an extent of
50% and hence saddled contributory of negligence on the
deceased and rider of the offending motorcycle in the ratio of
50:50. Being aggrieved by saddling of contributory negligence
on the part of the deceased, the claimants have preferred this
appeal, so also, seeking enhancement in the compensation.
6. Siri Guruprasad B.R., learned Counsel appearing for
the appellant/claimants submitted that the award passed by
the Tribunal is on the lower side, and the same is passed
without considering the materials produced by the claimants.
The deceased was aged 19 years and was working under his
father in his hotel and getting salary of Rs.15,000/- per month.
MFA NO.1342 of 2023
However, the Tribunal has considered the income of the
deceased at Rs.14,000/- per month, which is on the lower side.
It is further contended that it was a specific contention of the
claimants before the Tribunal that the deceased was riding his
scooter in a slow and careful manner, however, the accident
occurred due to rash and negligent riding of motorcycle by the
Rider of the offending motorcycle. Hence, the saddling of 50%
contributory negligence on the part of the deceased is bad and
contrary to materials available on record, and the same is able
to be set aside. On all these grounds, he sought to allow the
appeal by enhancing the compensation.
7. On the other hand, Sri Venkatesh Kamath, learned
Council appearing for the Respondent No.1-insurance Company
submitted that the Tribunal has considered the materials placed
before it in its proper perspective and has awarded the just
compensation. It is also contended that the Tribunal was
justified in saddling contributory negligence in an extent of
50% on the deceased on the basis of the evidence on record
and he submitted that there is no ground for interference in
this appeal and accordingly sought for dismissal of the appeal.
8. Having heard the arguments and perusal of records
the following points would arise for my consideration:
MFA NO.1342 of 2023
1. Whether appellants have made out a ground to
interfere with the impugned judgment and award
passed by the tribunal?
2. What order?
9. My answer to the above points would be as under:
Point No.1: In the negative;
Point No.2: As per final order
Regarding Point No.1:
10. I have gone through the impugned judgment and
award and also perused the records. The accident is not in
dispute and the death of Mohammed Ajmal, rider of the
motorcycle is also not in dispute. It has also come in the
evidence that the rider of the offending motorcycle also
sustained grievous injuries and later he too succumbed to the
injuries sustained in the accident.
11. The claimants have contended that the deceased
was aged nineteen years and was earning Rs.15,000/- per
month and was aged nineteen years as on the date of accident.
In this regard, the Tribunal has observed that the claimants
have not produced any document to show that the as on the
date of accident the deceased was aged nineteen years. The
MFA NO.1342 of 2023
claimants, except contending that the deceased was assisting
his father in hotel business, have not produced any
documentary evidence to show the income of the deceased. In
that view of the matter, the Tribunal has taken the notional
income of the deceased at Rs.14,000/- per month. In cases
where the income of the deceased is not proved, this court
takes the notional income as per the charge prepared by the
Karnataka Legal Services Authority, commensurate with the
year of accident. In the case on hand, the accident took place
on 14th January, 2020. As per the chart prepared by the Legal
Services Authority, the notional income is at Rs.13,750/- per
month, where as the Tribunal has taken it at Rs.14,000/- per
month. As per Exhibit P5 which is the post-mortem report, the
age of the deceased is shown as 20 years and accordingly,
following the judgment of SARLA VERMA AND OTHERS v. DELHI
TRANSPORT CORPORATION AND ANOTHER reported in (2009)6
SCC 121, the appropriate multiplier would be 18 and the same
is taken by the Tribunal and awarded the compensation of
Rs.21,16,800/- towards loss of dependency. The Tribunal has
held that appellant No.1 is not dependent and dismissed the
claim petition as against appellant No.1 and has awarded
compensation towards loss of consortium appellants 2 to 5
each at Rs.40,000/- each which comes to Rs.1,60,000/- and
MFA NO.1342 of 2023
further awarded Rs.15,000/- towards loss estate and towards
funeral expenses. Hence, the total compensation to which the
claimants are entitled would be Rs.23,06,800/- against the
compensation of Rs.25,06,800/- awarded by the Tribunal.
12. As regards the negligence on the part of the riders
of motorcycle is concerned, after thorough investigation, the
Investigating Officer has submitted charge sheet against riders
of both motorcycles. The appellants have not placed any
material to discard the charge-sheet submitted by the
Investigating Officer. The Tribunal has observed as to the
sketch of the accident prepared by the investigating officer
which shows that accident occurred on the middle of the road
and thus, believing the records, it was held that both the riders
of the motorcyles have contributed equally to the accident and
accordingly saddled contributory negligence on both the riders
of the motorcycle in the ratio of 50:50. Under such
circumstance, I do not find any ground to interfere with the
conclusion arrived at by the Tribunal and the same cannot be
found fault with. Moreover, Respondent-Insurance Company
has not preferred appeal against the impugned judgment and
award of the Tribunal. Accordingly, I answer point No.1 in the
negative.
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MFA NO.1342 of 2023
Regarding Point No.2:
13. In the result, I proceed to pass the following:
ORDER
(i) Appeal is dismissed.
(ii) Judgment and award dated 26th April 2022
passed in MVC No.982 of 2020 by the III
Additional District & Sessions Judge, Motor
Accident Claims Tribunal-IV, Dakshina Kannada,
Mangaluru, is confirmed.
Sd/-
(G BASAVARAJA)
JUDGE
lnn
