Karnataka High Court
Smt.Sunanda W/O. Mahaling Kharade vs Shri.Abdulrasheed S/O. Abdulsattar ... on 27 September, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC-D:11494
MFA No. 103510 of 2019
C/W MFA No. 101292 of 2019
MFA No. 101293 of 2019
MFA No. 103509 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.103510/2019(MV)
C/W
MISCELLANEOUS FIRST APPEAL NO.101292/2019(MV)
MISCELLANEOUS FIRST APPEAL NO.101293/2019(MV)
MISCELLANEOUS FIRST APPEAL NO.103509/2019(MV)
IN M.F.A.NO.103510/2019
BETWEEN:
1. SMT.VANITA W/O. SANJAY SHINDE,
AGE : 46 YEARS, OCC : HOUSEHOLD WORK,
R/O:AT/POST:BORGAON, SATARA DISTRICT,
MAHARASHTRA STATE-415519, INDIA.
2. SMT.MALAN W/O. SURESH SHINDE,
AGE : 61 YEARS, OCC : HOUSEHOLD,
R/O:AT/POST:BORGAON, SATARA DISTRICT,
MAHARASHTRA STATE-415519, INDIA.
Digitally 3. SHRI SURESH S/O. SHANKAR SHINDE,
signed by AGE : 61 YEARS, OCC : NIL,
BHARATHI R/O:AT/POST:BORGAON, SATARA DISTRICT,
HM
MAHARASHTRA STATE-415519, INDIA.
4. KUMAR SWAPNIL S/O. SANJAY SHINDE,
AGE : 26 YEARS, OCC : STUDENT,
R/O:AT/POST:BORGAON, SATARA DISTRICT,
MAHARASHTRA STATE-415519, INDIA.
5. KUMAR. SACHIN S/O. SANJAY SHINDE,
AGE: 23 YEARS, OCC: STUDENT,
R/O:AT/POST:BORGAON, SATARA DISTRICT,
MAHARASHTRA STATE-415519, INDIA.
...APPELLANTS
(BY SMT. GEETHA K. M. @ PAWAR, ADVOCATE)
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MFA No. 103510 of 2019
C/W MFA No. 101292 of 2019
MFA No. 101293 of 2019
MFA No. 103509 of 2019
AND:
1. SHRI ABDULRASHEED S/O. ABDULSATTAR SAYYAD,
AGE : MAJOR, OCCUPATIOL: BUSINESS,
R/O:MOMIN GALI, AT/POST: HIREBAGEWADI,
TQ AND DIST: BELAGAVI-591109, KARNATAKA STATE,
INDIA. (OWNER OF TRUCK BEARING NO.KA-22/B-8537).
2. GENERAL INSURANCE COMPANY LTD.,
REPRESENTED BY IT'S MANAGER/IN-CHARGE OF CLAIM
DEPARTMENT E-8, EPIP, RIICO INDUSTRIAL AREA,
SITAPUR, JAIPUR, RAJASHTAN-302022, INDIA, (POLICY
NO.100003/31-16/498369)
(VALID FROM 02.01.2016 TO 01.01.2017).
3. SHRI MEGHASHAM S/O. BHALCHANDRA RANSING,
AGE: MAJOR, OCCUPATION:BUSINESS,
R/O:AT/POST: H.NO.137, 8A DHULDEV GANESH SHERI,
PALTAN, TQ:PALTAN, DIST:SATARA 415523
MAHARASHTRA STATE, INDIA.
(OWNER OF CAR BEARING NO.MH-11/BV-8187).
4. ROYAL SUNDARAM GENERAL INSURANCE COMPANY,
LIMITED, REPRESENTED BY ITS MANAGER/
IN-CHARGE OF CLAIM DEPARTMENT, BRANCH OFFICE
ADDRESS 102 AND 103, CENTRE POINT, FIRST FLOOR,
OPPOSITE TO SANJEEV PRESS,
NEW COTTON MARKET, HUBBALLI 580020,
KARNATAKA, INDIA, HEAD OFFICE ADDRESS-
VISHARNTHI MELARAM TOWERS, NO.2/319,
RAJIV GANDHI SALAL (OMR), KARAPAKKAM, CHENNAI,
TAMIL NADU-600097, INDIA
...RESPONDENTS
(BY SRI RAM P. GHORPADE, ADVOCATE FOR R1;
SRI SUBHASH J. BADDI, ADVOCATE FOR R2;
SRI S.K.KAYAKAMATH, ADVOCATE FOR R4;
NOTICE TO R3 IS HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173 (1) OF THE MOTOR
VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 18.12.2018 PASSED BY IN THE COURT OF I
ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT.,
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NC: 2023:KHC-D:11494
MFA No. 103510 of 2019
C/W MFA No. 101292 of 2019
MFA No. 101293 of 2019
MFA No. 103509 of 2019
BELAGAVI IN MVC NO.2211/2016 AND ENHANCE THE
COMPENSATION AS CLAIMED BY THE APPELLANT BY HOLDING THAT
THE INSURANCE COMPANY LIABLE TO PAY THE SAME AND ETC.,
IN M.F.A.NO.101292/2019
BETWEEN:
ROYAL SUNDARAM GENERAL INSURANCE COMPANY,
REPRESENTED BY ITS MANAGER/IN-CHARGE OF CLAIM
DEPARTMENT, 102 AND 103, CENTRE POINT, I FLOOR,
OPP. SANJEEVI PRESS, NEW COTTON MARKET,
HUBBALLI, NOW REPRESENTED BY ITS AUTHORIZED
SIGNATORY.
...APPELLANT
(BY SRI S.K.KAYAKAMATH, ADVOCATE)
AND:
1. SMT. VANITA W/O. SANJAY SHINDE,
AGE: 46 YEARS, OCC : HOUSEHOLD WORK,
R/O:AT/POST:BORGAON, SATARA DISTRICT,
MAHARASHTRA STATE-415 001.
2. SMT. MALAN W/O. SURESH SHINDE,
AGE: 61 YEARS, OCC : HOUSEHOLD WORK,
R/O:AT/POST:BORGAON, SATARA DISTRICT,
MAHARASHTRA STATE-415 001.
3. SRI SURESH S/O. SHANKAR SHINDE,
AGE: 61 YEARS, OCC : NIL,
R/O:AT/POST:BORGAON, SATARA DISTRICT,
MAHARASHTRA STATE-415 001.
4. KUMAR SWAPNIL S/O. SANJAY SHINDE,
AGE : 26 YEARS, OCC: STUDENT,
R/O:AT/POST:BORGAON, SATARA DISTRICT,
MAHARASHTRA STATE-415 001.
5. KUMAR SACHIN S/O. SANJAY SHINDE,
AGE: 23 YEARS, OCC: STUDENT,
R/O:AT/POST:BORGAON, SATARA DISTRICT,
MAHARASHTRA STATE-415 001.
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MFA No. 103510 of 2019
C/W MFA No. 101292 of 2019
MFA No. 101293 of 2019
MFA No. 103509 of 2019
6. SRI ABDULRASHEED S/O ABDULSSATTAR SAYYAD,
AGE: MAJOR, OCC: BUSINESS,
R/O: MOMIN GALLI, AT/POST: HIREBAGEWADI,
TQ AND DIST: BELAGAVI (OWNER OF TRUCK BEARING
REGISTRATION NO.KA-22/B-8537) - 591 001.
7. GENERAL INSURANCE COMPANY LTD., REPRESENTED BY
ITS MANAGER/IN-CHARGE OF CLAIM DEPARTMENT, E-8,
EPIP, RIICO INDUSTRIAL AREA, SITAPUR, JAIPUR,
RAJASTHAN STATE - 302 001.
8. SRI MEGHASHAM S/O BHALCHANDRA RANSING,
AGE: MAJOR, OCC: BUSINESS,
R/O:AT POT H.NO.137, 8A, DHULDEV GANESH SHERI,
PALTAN, DIST: SATARA, MAHARASHTRA STATE (OWNER
OF CAR BEARING REGISTRATION NO.MH-11/BV-8187)
- 415 001.
...RESPONDENTS
(BY SMT. GEETHA K.M. @ PAWAR, ADVOCATE FOR R1 TO R4;
NOTICE TO R6 AND R8 ARE DISPENSED WITH;
SRI SUBHASH J. DADDI, ADVOCATE FOR R7)
THIS MFA IS FILED UNDER SECTION 173 (1) OF THE MOTOR
VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 18.12.2018 PASSED BY IN THE COURT OF I
ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT.,
BELAGAVI IN MVC NO.2211/2016 AND ENHANCE THE
COMPENSATION AS CLAIMED BY THE APPELLANT BY HOLDING THAT
THE INSURANCE COMPANY LIABLE TO PAY THE SAME AND ETC.,
IN M.F.A.NO.101293/2019
BETWEEN:
ROYAL SUNDARAM GENERAL INSURANCE COMPANY,
REPRESENTED BY ITS MANAGER/IN-CHARGE OF CLAIM
DEPARTMENT, 102 AND 103, CENTER POINT, I FLOOR,
OPP. SANJEEVI PRESS, NEW COTTON MARKET, HUBBALLI,
NOW REPRESENTED BY ITS AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI S.K.KAYAKAMATH, ADVOCATE)
AND:
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MFA No. 103510 of 2019
C/W MFA No. 101292 of 2019
MFA No. 101293 of 2019
MFA No. 103509 of 2019
1. SMT. SUNANDA W/O MAHALING KHARADE,
AGE: 54 YEARS, OCC: TEACHER,
R/O: VRUNDAVAN COLONY, 133A, "LAKSHMI NIVVAS"
GANGAPUR, TQ: WAI, DIST: SATARA,
MAHARASHTRA STATE - 415 001.
2. KUMAR KEDAR S/O MAHALING KHARADE,
AGE: 26 YEARS, OCC: STUDENT
R/O: VRUNDAVAN COLONY,
133A, "LAKSHMI NIVAS" GANGAPUR, TQ: WAI,
DIST: SATARA, MAHARASHTRA STATE - 415 001.
3. SRI ABDULRASHEED S/O ABDULSSATTAR SAYYAD,
AGE: MAJOR, OCC: BUSINESS,
R/O: MOMIN GALLI, AT/POST: HIREBAGEWADI,
TQ AND DIST: BELAGAVI
(OWNER OF TRUCK BEARING REGISTRATION NO.KA-
22/B-8537) - 590 001.
4. GENERAL INSURANCE COMPANY LTD., REPRESENTED BY
ITS MANAGER/IN-CHARGE OF CLAIM DEPARTMENT, E-8,
EPIP, RIICO INDUSTRIAL AREA, SITAPUR, JAIPUR,
RAJASTHAN STATE - 302 001.
5. SRI MEGHASHAM S/O BHALCHANDRA RANSING,
AGE: MAJOR, OCC: BUSINESS,
R/O:AT POT H.NO.137, 8A,
DHULDEV GANESH SHERI, PALTAN, TQ: PALTAN, DIST:
SATARA, MAHARASHTRA STATE (OWNER OF CAR
BEARING REGISTRATION NO.MH-11/BV-8187) - 415 001.
...RESPONDENTS
(BY SMT. GEETHA K.M. @ PAWAR, ADVOCATE FOR R1 AND R2;
NOTICE TO R3 AND R5 ARE DISPENSED WITH;
SRI SUBHASH J. DADDI, ADVOCATE FOR R4)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR
VEHICLES ACT, 1988, PRAYING TO SETTING ASIDE THE JUDGMENT
AND AWARD DATED 18.12.2018 PASSED BY THE COURT OF I ADDL.
SENIOR CIVIL JUDGE AND A.M.A.C.T., BELAGAVI, IN MVC
NO.2210/2016, AND ETC.,
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MFA No. 103510 of 2019
C/W MFA No. 101292 of 2019
MFA No. 101293 of 2019
MFA No. 103509 of 2019
IN M.F.A.NO.103509/2019
BETWEEN:
1. SMT. SUNANDA
W/O MAHALING KHARADE,
AGE: 55 YEARS, OCCUPATION: TEACHER IN SCHOOL,
R/O: VRUNDAVAN COLONY, 133A, "LAKSHMI NIVAS"
GANGAPUR, TQ: WAI, DISTRICTS: SATARA,
MAHARASHTRA STATE - 412803, INDIA.
2. KUMAR KEDAR
S/O MAHALING KHARADE,
AGE: 27 YEARS, OCC: STUDENT,
R/O: VRUNDAVAN COLONY,
133A, "LAKSHMI NIVAS" GANGAPUR, TQ: WAI,
DIST: SATARA, MAHARASHTRA STATE - 412803, INDIA.
...APPELLANTS
(BY SMT. GEETHA K.M., ADVOCATE)
AND:
1. SHRI ABDULRASHEED
S/O ABDULSATTAR SAYYAD,
AGE: MAJOR, OCC: BUSINESS,
R/O: MOMIN GALLI,
AT/POST: HIREBAGEWADI,
TQ AND DIST: BELAGAVI - 591 109,
KARNATAKA STATE, INDIA.
(OWNER OF TRUCK BEARING REGISTRATION NO.
KA-22/B-8537 (OWNER OF MARUTI SWIFT DZIRE CAR
NO.A-29/N-0497).
2. GENERAL INSURANCE COMPANY LTD., REPRESENTED BY
ITS MANAGER/IN-CHARGE OF CLAIM DEPARTMENT, E-8,
EPIP, RIICO INDUSTRIAL AREA, SITAPUR, JAIPUR,
RAJASTHAN STATE - 302 022, INDIA.
(INSURER OF TRUCK BEARING NO.KA-22/B-8537).
(POLICY NO.10003/31/16/498369).
(VALID FROM 02.01.2016 TO 01.01.2017).
8. SHRI MEGHASHAM S/O BHALCHANDRA RANSING,
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NC: 2023:KHC-D:11494
MFA No. 103510 of 2019
C/W MFA No. 101292 of 2019
MFA No. 101293 of 2019
MFA No. 103509 of 2019
AGE: MAJOR, OCC: BUSINESS,
R/O:AT POT H.NO.137, 8A, DHULDEV GANESH SHERI,
PALTAN, TQ: PALTAN, DIST: SATARA - 415 523,
MAHARASHTRA STATE, INDIA.
(OWNER OF CAR BEARING NO.MH-11/BV-8187).
4. ROYAL SUNDARAM GENERAL INSURANCE COMPANY
LIMITED, REPRESENTED BY IS MANAGER/IN-CHARGE OF
CLAIM DEPARTMENT, BRANCH OFFICE ADDRESS 102 AND
103, CENTRE POINT, FIRST FLOOR, OPPOSITE TO
SANJEEV PRESS, NEW COTTON MARKET,
HUBBALLI - 580 020, KARNATAKA, INDIA,
HEAD OFFICE ADDRESS-VISHARNTHI MELARAM TOWERS,
NO.2/319, RAJIV GANDHI SALAL(OMR),
KARAPAKKAM, CHENNAI,
TAMIL NADU - 600 097, INDIA.
...RESPONDENTS
(BY SRI RAM P. GHORPADE, ADVOCATE FOR R1;
SRI SUBHASH J. BADDI, ADVOCATE FOR R2;
SRI S.K.KAYAKAMATH, ADVOCATE FOR R4;
R3 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR
VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 18.12.2018 PASSED BY IN THE COURT OF I
ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT.,
BELAGAVI IN MVC NO.2210/2016 AND ENHANCE THE
COMPENSATION AS CLAIMED BY THE APPELLANT BY HOLDING THAT
THE INSURANCE COMPANY IS LIABLE TO PAY THE SAME AND ETC.,
THESE APPEALS, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 103510 of 2019
C/W MFA No. 101292 of 2019
MFA No. 101293 of 2019
MFA No. 103509 of 2019
JUDGMENT
MFA No.103509/2019 and MFA No.103510/2019 are filed by the claimants challenging common the judgment and award dated 18.12.2018 in M.V.C. Nos.2210/2016 and 2211/2016 respectively by the learned I Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal, Belagavi, for seeking enhancement of compensation.
2. MFA No.101292/2019 and MFA No.101293/2019 are filed by the appellant/insurance company who is insurer of car bearing registration No.MA- 11/BV-8187 contending that the driver of lorry bearing registration No.KA-22/B-8537 was completely rash and negligent in driving the lorry and caused accident and thus challenged 75% rash and negligence attributing on part of the driver of car.
3. Brief facts of the case are that the claimants as set out in the claim petition that on 04.08.2016 the deceased Mahaling Kharade and Sanjay Shinde being -9- NC: 2023:KHC-D:11494 MFA No. 103510 of 2019 C/W MFA No. 101292 of 2019 MFA No. 101293 of 2019 MFA No. 103509 of 2019 occupants in the car and PW.3 Digambar V. Gade was driving the car and proceeding towards Belgaum to Dharwad to go to Tirupati and at that moment when the car reached the place near Suwarna Souda lorry bearing registration No.KA-22/B-8537 dashed the hind portion of the car and due to the said impact, the deceased being occupants in the car died on the spot. Therefore, the claim petition is filed by the legal heirs of the deceased and Tribunal while awarding compensation held that driver of car was 75% rash and negligent and driver of lorry was 25% rash and negligent and thus attributed rash and negligence above stated.
4. Being aggrieved by attribution of 75% on part of the driver of the car and insurer of the car has preferred above two appeals.
5. Heard the arguments from both sides and perused the records.
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6. Learned counsel for the appellant/Royal insurance company submitted that the driver of car upon seeing there was milk van toppled down on the road and therefore he slowed down his car while driving on the lane, at that time lorry came from hind side and dashed the car. The driver of car has given complaint before the police making entire allegations against the driver of the lorry. The charge sheet is filed also against the driver of lorry. But the Tribunal without appreciating the scenery of the accident and without application of principle of res ipsa loquitur and by way of perversity in the evidence on record has wrongly fastened 75% of rashness and negligence on part of the driver of the car. Therefore, prays to hold the driver of lorry was completely rash and negligent in driving the lorry and caused accident. Therefore, prays for modification of the rashness and negligence held by the Tribunal.
7. On the other hand, learned counsel for Sri Ram General Insurance Company who is insurer of lorry
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NC: 2023:KHC-D:11494 MFA No. 103510 of 2019 C/W MFA No. 101292 of 2019 MFA No. 101293 of 2019 MFA No. 103509 of 2019 justified the judgment and award passed by the Tribunal by contending that the driver of car had suddenly changed his lane without maintaining lane discipline and therefore has invited risk himself and in that process the lorry being bigger vehicle could not control and rammed the car. Therefore, the Tribunal is correct fastening 75% of rashness and negligence on part of the car and 25% on part of the lorry. Therefore, prays to dismiss the appeals filed by the insurance company.
8. Learned counsel for the claimants submitted that the award and quantum of compensation is on lesser side. Therefore, prays for enhancement of compensation.
9. Upon considering the entire scenery of the accident and after appreciation of evidence on record on the principle of Res ipsa loquitur (the thing speaks for itself) i.e., Ex.P.1 is the complaint and Ex.P.2 is the FIR, the complaint is given by driver of the car. In the complaint it is entirely alleged that the driver of lorry had come with high speed and in rash and negligent manner
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NC: 2023:KHC-D:11494 MFA No. 103510 of 2019 C/W MFA No. 101292 of 2019 MFA No. 101293 of 2019 MFA No. 103509 of 2019 and dashed the car. It is stated that when PW.3 who is complainant upon driving the car and seeing that there was accident on the road, therefore, slowed down and tried to change the lane, in that process the driver of lorry had dashed the hind side of the car. Resultantly, the police/investigating officer has filed charge sheet-Ex.P.7 against the driver of lorry. The driver of car is examined as PW.3. In his evidence upon seeing accident on the road, he slowed down the car and was trying to change the lane and in that process, the lorry has rammed the car. When this being the scenery of the accident, it cannot be said that the driver of car was rash and negligent in driving the car. It is evidence of PW.3 that when the car was about 200 meters away from the milk van on the road and therefore, he slowed down the car and was trying to change the lane. In this context, if driver of lorry had maintained sufficient care and safe distance, then the accident would have been avoided. It is obligation on part of the driver of the vehicle to keep safe distance as per
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NC: 2023:KHC-D:11494 MFA No. 103510 of 2019 C/W MFA No. 101292 of 2019 MFA No. 101293 of 2019 MFA No. 103509 of 2019 Regulation 17 of the Motor Vehicles (Driving) Regulations, 2017 which reads as under:
"17. Keeping safe distance. - (1) A driver driving behind another vehicle shall keep sufficient distance, commensurate with the traffic conditions, from the vehicle ahead, so as to be able to stop (pull up) safely if the vehicle ahead suddenly slows down or stops.
(2) When being followed by another vehicle, not suddenly brake without a compelling reason.
(3) The driver shall during rainfall, snow or storm orice on the road due to severe weather conditions and during other adverse weather conditions, further increase the distance from the vehicle ahead."
10. Regulation 23 of the Motor Vehicles (Driving) Regulations, 2017 which reads as under:
"23. Use of horns and silence zones. - (1) Unnecessary use of horn is prohibited.
(2) As far as may be, the horn shall be sounded only when the driver apprehends danger to himself or to any other road user.
(3) The driver shall sound the horn when directed by the mandatory sign.
(4) The driver shall not-
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(a) sound the horn continuously or repeatedly or for a duration longer than necessary or in a residential areas or in a silence zone indicated by a mandatory sign;
(b) make use of a cut-out by which exhaust gases are released other than through the silencer;
(c) fit or use an air horn or a multi-toned horn giving a harsh, shrill, loud or alarming noise except as provided in sub-rule (3) of rule 119 of the Central Motor Vehicles Rules,1989; and
(d) drive a vehicle which creates undue noise or causes an alarming sound when in motion."
11. Regulation 6 of the Motor vehicle (Driving Regulation), 2017 reads as follows:
6. Lane traffic. - (1) Where any road is marked by lanes for movement of traffic, the driver shall drive within the lane, and change lanes only after giving a proper signal or road marking or signage.
(2) Where any lane is marked specially for a class of vehicles, a vehicle of that class shall drive in that lane only.
(3) Where a lane has been marked for a specified class of vehicles or for a special purpose, no other vehicle of any other class shall be driven in that lane.
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NC: 2023:KHC-D:11494 MFA No. 103510 of 2019 C/W MFA No. 101292 of 2019 MFA No. 101293 of 2019 MFA No. 103509 of 2019 (4) Where a road is divided by a longitudinal yellow or white solid line, the driver, proceeding in the same direction and trying to overtake another vehicle ahead, shall not cross the said yellow or white solid line.
(5) While approaching inter-sections, where turning lanes are marked with a single solid line, the driver shall ensure that the vehicle remains in the lane meant for the direction of manoeuvre. (6) The driver shall not drive on or over a single or double longitudinal solid line, or on a painted traffic island except in case of obstructions on the road. (7) On a road having a single broken line along with a solid line, the driver of the vehicle driving on the left of broken line may cross the broken line in order to overtake, but shall return to his lane after completing the manoeuvre, observing the safety precautions specified in regulation 12.
12. Therefore, certain stipulations are made for the drivers while using their vehicles to follow lane discipline and safety distance. The lorry being a big vehicle while plying on national highway, duty cast on driver of the lorry
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NC: 2023:KHC-D:11494 MFA No. 103510 of 2019 C/W MFA No. 101292 of 2019 MFA No. 101293 of 2019 MFA No. 103509 of 2019 to slow down the lorry but without doing so rammed the hind portion of the car. More so, the lorry was loaded with gas cylinder. Therefore, the driver ought to have taken care and caution with all vigilance and drive the lorry. Therefore, upon considering the entire evidence on record as discussed above, it is proved that the driver of the lorry was completely rash and negligent in driving the lorry and caused the accident. The Tribunal has committed error in holding that the driver of the car has changed the lane but it is the evidence of the PW.3 that he was trying to change the lane after seeing the accident took place in the lane in which he was going. This difference in the evidence is lost sight by the Tribunal. Hence, it is proved that the driver of the lorry was completely rash and negligent in driving lorry and caused accident. Therefore, finding of the tribunal in this regard is modified holding that the driver of the lorry was completely rash and negligent in driving lorry and caused accident.
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13. QUANTUM: MFA No.103510/2019 (MVC No.2211/2016) In the present case deceased was aged 46 years as on the date of accident and was a grocery shop owner by profession. The accident is of the year 2016 that is on 04.08.2016. Even though, the claimants have claimed that the deceased was earning Rs.3,00,000/- per annum, but there is no evidence to prove the same. Therefore, in the absence of proof of income, notional income of Rs.8,750/- p.m. is taken into consideration as recognized by the Karnataka State Legal Services Authority. In view of the decision of the Hon'ble Apex Court in case of National Insurance Company Limited vs. Pranay Sethi and others, reported in (2017) 16 Supreme Court Cases 680, 25% of the income is to be added towards loss of future prospects in life. There are totally 5 legal heirs. Therefore, 1/4th of the income is to be deducted towards personal and living expenses. Considering the age of the deceased, the appropriate applicable multiplier is 13.
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NC: 2023:KHC-D:11494 MFA No. 103510 of 2019 C/W MFA No. 101292 of 2019 MFA No. 101293 of 2019 MFA No. 103509 of 2019 Therefore loss of dependency is re-assessed and quantified at Rs.8,750/-+2188(25% of 8750) X ¾ X13 X12 =12,79,746/-.
14. In view of the decision of the Hon'ble Supreme Court in the case of Magma General Insurance Co. Limited v. Nanu Ram & Others, reported in 2018 ACJ 2782 and in the case of Pranay Sethi supra, the claimants are entitled to Rs.40,000/- each under the head 'loss of consortium', along with 10% escalation. Accordingly, Rs.2,20,000-00 (Rs.40,000 x 5 + 10%) is awarded under the head 'loss of consortium including loss of love and affection'.
15. Further, a compensation of Rs.15,000/- each is awarded under the head 'loss of estate' and 'funeral and transportation' respectively, along with 10% escalation. Therefore under these heads Rs.33,000/- (Rs.15,000 x 2 + 10%) is awarded.
16. Thus, the claimants would be entitled for compensation under various heads as under:
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C/W MFA No. 101292 of 2019
MFA No. 101293 of 2019
MFA No. 103509 of 2019
Sl. Heads. Amount in
No. (Rs.)
1. Towards loss of dependency 12,79,746-00
2. Towards loss of consortium 2,20,000-00
3. Towards loss of estate and 33,000-00
transportation of dead body &
funeral expenses.
Total: 15,32,746-00
17. Therefore, the claimants are entitled for
compensation of Rs.15,32,746-00 along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.15,17,500-00 awarded by the tribunal. The Sriram General insurance company is directed to deposit the compensation within eight weeks from the date of receipt of a certified copy of this judgment.
18. Claimants are not entitled for interest for delayed period of 150 days in filing the appeal.
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NC: 2023:KHC-D:11494 MFA No. 103510 of 2019 C/W MFA No. 101292 of 2019 MFA No. 101293 of 2019 MFA No. 103509 of 2019
19. In MFA No.103509/2019 (MVC No.2210/2016) In the present case deceased was aged 57 years as on the date of accident and was looking after entire work of Kharalewadi New Shreya Poultry Farm and drawing Rs.10,000/- per month. The accident is of the year 2016 that is on 04.08.2016. The deceased was a pensioner receiving Rs.10,937/- per month. There are two dependants. Even though the wife is in service, it cannot be said that she was not dependant on the deceased. Legal heirs are wife and son. Therefore, 1/3 amount is to be deducted towards personal and living expenses. 1/3rd of the income is to be deducted towards personal and living expenses.
20. In view of the decision of the Hon'ble Apex Court in case of National Insurance Company Limited vs. Pranay Sethi and others, reported in (2017) 16 Supreme Court Cases 680, 10% of the income is to be added towards loss of future prospects in life. Considering
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NC: 2023:KHC-D:11494 MFA No. 103510 of 2019 C/W MFA No. 101292 of 2019 MFA No. 101293 of 2019 MFA No. 103509 of 2019 the age of the deceased, the appropriate applicable multiplier is 9. Therefore loss of dependency is re-assessed and quantified at Rs.10,937+1094(10% of 10,937) X2/3X9 X12 =8,66,231.99 rounded of to Rs.8,66,232-00.
21. In view of the decision of the Hon'ble Supreme Court in the case of Magma General Insurance Co. Limited v. Nanu Ram & Others, reported in 2018 ACJ 2782 and in the case of Pranay Sethi supra, the claimants are entitled to Rs.40,000/- each under the head 'loss of consortium', along with 10% escalation. Accordingly, Rs.88,000-00 (Rs.40,000 x 2 + 10%) is awarded under the head 'loss of consortium including loss of love and affection'.
22. Further, a compensation of Rs.15,000/- each is awarded under the head 'loss of estate' and 'funeral and transportation' respectively, along with 10% escalation.
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NC: 2023:KHC-D:11494 MFA No. 103510 of 2019 C/W MFA No. 101292 of 2019 MFA No. 101293 of 2019 MFA No. 103509 of 2019 Therefore under these heads Rs.33,000/- (Rs.15,000 x 2 + 10%) is awarded.
23. Thus, the claimants would be entitled for compensation under various heads as under:
Sl. Heads. Amount in
No. (Rs.)
1. Towards loss of dependency 8,66,232-00
2. Towards loss of consortium 88,000-00
3. Towards loss of estate and 33,000-00
transportation of dead body &
funeral expenses.
Total: 9,87,232-00
24. Therefore, the claimants are entitled for
compensation of Rs.9,87,232-00 along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.2,30,000-00 awarded by the tribunal. The Sriram General insurance company is directed to deposit the compensation within eight weeks from the date of receipt of a certified copy of this judgment.
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NC: 2023:KHC-D:11494 MFA No. 103510 of 2019 C/W MFA No. 101292 of 2019 MFA No. 101293 of 2019 MFA No. 103509 of 2019
25. Claimants are not entitled for interest for delayed period of 150 days in filing the appeal.
26. In the result, I proceed to pass the following:
ORDER
i) MFA No.101292/2019 and MFA No.101293/2019 filed by the insurance company are allowed.
ii) MFA No.103509/2019 and MFA No.103510/2019 filed by the claimants are allowed in part.
iii) The judgment and award dated 18.12.2018 passed by the I Addl. Senior Civil Judge and Addl. MACT, Belagavi in MVC No.2210/2016 and MVC No.2211/2016 are allowed in part.
iv) Claimants in MFA No.103510/2019 are entitled for total compensation of Rs.
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NC: 2023:KHC-D:11494 MFA No. 103510 of 2019 C/W MFA No. 101292 of 2019 MFA No. 101293 of 2019 MFA No. 103509 of 2019 Rs.15,32,746-00 along with interest at the rate of 6% p.a. from the date of petition till its realization.
v) Claimants in MFA No.103509/2019 are entitled for total compensation of Rs. Rs.9,87,232-00 along with interest at the rate of 6% p.a. from the date of petition till its realization.
vi) The claimants in MFA No.103510/2019 are not entitled for interest for the delayed period of 150 days in filing the appeal.
vii)The claimants in MFA No.103509/2019 are not entitled for interest for the delayed period of 150 days in filing the appeal.
viii) The Shriram General insurance company shall deposit the amount within a
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NC: 2023:KHC-D:11494 MFA No. 103510 of 2019 C/W MFA No. 101292 of 2019 MFA No. 101293 of 2019 MFA No. 103509 of 2019 period of eight weeks from the date of receipt of a copy of this judgment.
ix) Return the trial Court records along with a copy of this judgment.
x) No order as to costs.
xi) Draw award accordingly.
SD/-
JUDGE
SSP-Upto para 10
HMB- para 11 to end
List No.: 2 Sl No.: 50
CT-ASC