Karnataka High Court
Smt.Saravva W/O Durgappa Hanchinmani vs Smt.Jyoti W/O Lokanna Katti on 29 April, 2025
-1-
NC: 2025:KHC-D:7069
MFA No. 100579 of 2015
C/W MFA No. 101368 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
M.F.A. NO. 100579 OF 2015 C/W.
M.F.A. NO. 101368 OF 2020 (MV-D)
IN MFA NO. 100579 OF 2015
BETWEEN:
SMT. JYOTI W/O. LOKANNA KATTI,
AGE 36 YEARS, OCC: BUSINESS,
R/O. H.NO.1428, W.NO.05, AT POST: LOKAPUR,
TQ: MUDHOL, DISTRICT: BAGALKOT.
- APPELLANT
(BY SRI. HARISH S. MAIGUR, ADVOCATE)
AND:
1. SMT. SARAVVA W/O. DURGAPPA HANCHINMANI,
AGE 47 YEARS, OCC: HOUSEHOLD WORK,
R/O. GAJAPATI, TQ & DIST: BELAGAVI,
C/O. SHRI. DEVENDRA MALLAPPA HANCHINMANI,
R/O. GOLIHALLI, TQ: KHANAPUR, DIST: BELAGAVI.
Digitally signed
by VISHAL
NINGAPPA
PATTIHAL 2. THE MANAGER, SHRIRAM GENERAL INSURANCE
Location: High
Court of COMPANY LIMITED, E-8, EPIP, SITAPURA,
Karnataka,
Dharwad Bench. INDUSTRIAL AREA, JAIPUR, RAJASTHAN-302022,
THROUGH THE MANAGER, SHRIRAM GENERAL
INSURANCE COMPANY LIMITED.
- RESPONDENTS
(BY SRI. HANAMANT R. LATUR, ADVOCATE FOR R1;
SRI. S. K. KAYAKAMATH, ADVOCATE FOR R2)
THIS M.F.A. IS FILED U/SEC. 173(1) OF M.V. ACT,
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD PASSED
IN M.V.C NO.1250/2013, ON THE FILE OF THE MOTOR
ACCIDENTS CLAIMS TRIBUNAL, KHANAPUR, AT: KHANAPUR,
DATED 18.09.2014 & ETC.
-2-
NC: 2025:KHC-D:7069
MFA No. 100579 of 2015
C/W MFA No. 101368 of 2020
IN MFA NO. 101368 OF 2020
BETWEEN:
SMT. SARAVVA W/O. DURGAPPA HANCHINMANI,
AGE 52 YEARS, OCC HOUSEHOLD WORK,
R/O. GAJAPATI, TAL: BELAGAVI,
C/O. SHRI. DEVENDRA S/O. MALLAPPA HANCHINMANI,
R/O. GOLIHALLI-590001, TQ: KHANAPUR,
DIST: BELAGAVI.
- APPELLANT
(BY SRI. HANAMANT R. LATUR, ADVOCATE)
AND:
1. SMT. JYOTI W/O. LOKANNA KATTI,
AGE 50 YEARS, OCC: BUSINESS,
R/O. H.NO-1428, W.NO-05,
AT & POST: LOKAPUR-587311,
TQ: MUDHOL, DIST: BAGALKOT.
2. THE MANAGER,
SRIRAM GENERAL INSURANCE CO. LTD.,
E-8, EPIP, SITAPUR INDUSTRIAL AREA, JAIPUR,
RAJASTAN-302022, THROUGH THE MANAGER,
SHRIRAM GENERAL INSURANCE COMPANY LIMITED.
- RESPONDENTS
(BY SRI. HARISH S. MAIGUR, ADVOCATE FOR R1;
SRI. S. K. KAYAKAMATH, ADVOCATE FOR R2)
THIS M.F.A. IS FILED U/SEC. 173(1) OF M.V. ACT,
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD PASSED
IN M.V.C NO.1250/2013, ON THE FILE OF THE MOTOR
ACCIDENTS CLAIMS TRIBUNAL, KHANAPUR, AT: KHANAPUR,
DATED 18.09.2014 & ETC.
THESE MISCELLANEOUS FIRST APPEALS HAVING BEEN
HEARD AND RESERVED ON 02.04.2025 FOR JUDGMENT AND
COMING ON FOR PRONOUNCEMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
-3-
NC: 2025:KHC-D:7069
MFA No. 100579 of 2015
C/W MFA No. 101368 of 2020
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) The claimant filed appeal M.F.A. No. 101368/2020 and respondent No.1-owner of the offending lorry filed M.F.A. No. 100579/2015 challenging the judgment and award dated 18th September 2014 passed in M.V.C. No. 1250/2013, passed by The Senior Civil Judge and M.A.C.T. Khanapur (for short, the Tribunal).
The parties are referred to as per their ranking before the tribunal.
2. It is the case of Claimant that her son Sunil Durgappa Huchinamani met with an accident on 01.04.2013 at 4.00 p.m. near Government Hospital at Balgaum due to rash and negligent driving of a lorry bearing registration number KA-48/5177 (for short, 'offending vehicle') by its driver. At the time of accident, the deceased was riding motorcycle bearing registration No. KA-22-EZ-1320. When he was turning his vehicle towards the government hospital, Belgaum, offending lorry -4- NC: 2025:KHC-D:7069 MFA No. 100579 of 2015 C/W MFA No. 101368 of 2020 came from Chenamma Circle side in a rash and negligent manner and dashed against the deceased, as a result of which he sustained fatal injuries and while undergoing treatment died on the same day. The claimant is mother of the deceased.
3. Respondent No. 1 was exparte before the tribunal (who is appellant in M.F.A. No. 100579/2015). Respondent No. 2-insurer denied the contentions of the claimant and further stated that accident occurred due to negligence of the rider of the motorcycle. Its liability is restricted to terms and conditions of policy of insurance and holding of valid and effective driving license by driver of the offending vehicle. With these reasons prayed to dismiss the petition.
4. From the rival contentions, the tribunal framed necessary issues. It recorded evidence of both the parties; Claimants examined one witness as PW1 and marked 12 documents as Ex.P1 to 12. Respondent No.2 -5- NC: 2025:KHC-D:7069 MFA No. 100579 of 2015 C/W MFA No. 101368 of 2020 examined two witnesses as RW1 and 2 and marked 25 documents as Ex.R1 to 25.
5. After hearing both the parties and appreciating pleading and evidence on record, the Tribunal, by impugned judgment, held that accident occurred due to composite negligence of driver of the lorry as well as the deceased and apportioned the negligence in the ratio of 75:25 respectively. The tribunal also found that driver of the offending vehicle had drunk at the time of accident. Therefore, owner of the vehicle is liable to pay entire amount of compensation.
6. The tribunal also found that, age of the younger parent is 49 years and applied multiplier '13'; assessed the income as Rs.6,000/- per month; deducted 50% of the income towards personal expenses since the deceased was unmarried. On that basis, it awarded the compensation under the heading 'loss of dependency'. The tribunal directed the respondent No.1 to pay the compensation to an extent of 75% to the claimant.
-6-
NC: 2025:KHC-D:7069 MFA No. 100579 of 2015 C/W MFA No. 101368 of 2020
7. Heard arguments of the learned counsels appearing for both the parties.
8. The learned counsel for owner of the offending vehicle contends that the Tribunal, without determining the percentage of alcohol in the blood of the driver of the offending vehicle on the basis of blood test report, believed the case of the police, only on the basis of the charge sheet filed against the driver of the lorry, that he had consumed liquor. The Motor Vehicle Rules prescribe that if certain percentage of alcohol is found in the blood samples, then only the Tribunal ought to have held that there is a breach of conditions of policy. But in this case, no scientific evidence is available to show that the driver of the lorry had consumed alcohol, beyond permitted limit. Therefore, the said finding of the Tribunal is erroneous, which needs inference by this court.
9. The learned counsel for claimants has contended that the driver of the lorry was chargesheeted and there is no allegation in the chargesheet that deceased was also -7- NC: 2025:KHC-D:7069 MFA No. 100579 of 2015 C/W MFA No. 101368 of 2020 negligently driving the vehicle. Without any basis the Tribunal held that accident occurred due to composite negligence of driver of the lorry as well as rider of the motorcycle in the ratio of 75:25. The said finding is without any basis and hence not tenable.
10. He has further contended that the driver of the lorry was not examined. R.W.2 is not a competent person to investigate the matter and report submitted by him is stating that accident had taken place due to negligence of rider of the motorcycle as well as driver of the lorry, who had drunken while driving the vehicle is no basis.
11. He further submits that income assessed by the Tribunal is on lower side. As per the case of Sarla Verma and others Vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121, the multiplier has to be considered from the age of the deceased and not from the youngest parent. He further contends that the deceased was a well-educated person and educational qualification certificates are placed on record. However, -8- NC: 2025:KHC-D:7069 MFA No. 100579 of 2015 C/W MFA No. 101368 of 2020 the Tribunal has taken notional income of a coolie and assessed the compensation, which is erroneous. He further contends that amount of compensation awarded under other heads are also a lower side and prays for enhancement of the same.
12. The Learned Counsel for insurer contends that the Tribunal has properly considered the evidence on record and passed the impugned judgment. It does not call for interference. He contends that the investigating officer while chargesheeting the driver of the lorry held that he had drunken at the time of accident. That said document was got marked in the evidence of claimant. Now they cannot dispute it. Drunk and driving is not only an offense, but it is a breach of conditions of policy. Therefore, respondent No.2 2-insurer is not liable to indemnify the owner of the vehicle and pay the compensation.
13. The learned advocate for insurer further submits that the contents of the chargesheet and manner in which accident had taken place, the Tribunal rightly held that -9- NC: 2025:KHC-D:7069 MFA No. 100579 of 2015 C/W MFA No. 101368 of 2020 accident had taken place due to composite negligence of driver of the lorry and rider of the motorcycle. It does not call for any interference. He has also submitted that considering the available material, the Tribunal assessed the compensation which does not call for any interference.
14. The following points emerge for determination.
(i) Whether the Tribunal is justified in holding that accident had taken place due to composite negligence of driver of the lorry and rider of the motorcycle and the negligence was in the ratio of 75:25?
(ii) Whether the Tribunal is justified in absolving the liability of Respondent No.2 to pay the compensation?
(iii) Whether the Tribunal has awarded just compensation?
(iv) What order?
My findings to the above points are as under:
Point No.1 : In the negative
Point No.2 : In the negative
Point No.3 : Partly in the affirmative
Point No.4 : As per final order
- 10 -
NC: 2025:KHC-D:7069
MFA No. 100579 of 2015
C/W MFA No. 101368 of 2020
15. Point No.1: PW1 is the claimant and in her evidence she has reiterated contents of claim petition. It is not in dispute that accident had taken place between the lorry and motorbike at the spot, mentioned in the charge sheet. Claimant has produced the copy of complaint, F.I.R., Spot Mahazar, M.V. report, PM report and Charge sheet at Exs.P1 to 5 and 10 respectively. The said documents do not disclose anywhere that rider of the motorcycle was also negligent in driving the said vehicle and contributed for causing the accident in question. According to the charge sheet, rider of the motor was turning his vehicle to go towards Government Hospital side. In the meanwhile, lorry came in a rash and negligent manner and dashed against motorbike. In the cross-examination of PW1, nothing is brought out to show that deceased had contributed for causing the accident in question. There is no clear evidence as to distance between lorry and the motorcycle, when the rider of the motorcycle tried to cross the road. Driver of the lorry could be proper person to state the said facts or any other eyewitnesses.
- 11 -
NC: 2025:KHC-D:7069 MFA No. 100579 of 2015 C/W MFA No. 101368 of 2020 Unfortunately, both the parties have not led evidence of any eyewitness. Even in the charge seat, the rider of the motorcycle was not charge seated for the offence of negligent driving. Under these circumstances, the Tribunal without any legal evidence held that accident had taken place due to composite negligence of driver of the lorry as well as rider of the motorcycle. The said finding is without any materials. To assess composite negligence presence of the owner and insurer as well as driver of both the vehicles is a must. In this case owner and insurer of motorcycle is not party. As held in the case of Khenyei Vs. New India Assurance Co. Ltd. & Ors. reported in 2015 AIR SCW 3169, in such circumstances, ratio of composite and contributory negligence cannot be assessed. Hence, the said finding is erroneous and it needs interference. Accordingly, I answer point No. 1 in the negative.
16. Point No. 2: The Tribunal appears to be influenced by the chargesheet filed against the driver of the lorry that he
- 12 -
NC: 2025:KHC-D:7069 MFA No. 100579 of 2015 C/W MFA No. 101368 of 2020 was drunken while driving the vehicle. The driver was chargesheeted for the offense punishable under Section 185 of the Motor Vehicles Act and Rules. In the chargesheet it appears there is no blood alcohol concentration report to show the percentage of alcohol contents in the blood. Merely on the breath test, if the police officer came to conclusion that driver of the vehicle had drunk and on that basis the Tribunal cannot hold that he was under influence of the alcohol. If blood alcohol concentration shows that alcohol contents in the blood is more than 0.03% from the blood sample of 100 ml of blood, then it would be considered as drunk and drive. The said material is absent in this case. Merely alcohol smell was emitting from the breath of driver is not sufficient to hold that he was under intoxication and unable to control his vehicle.
17. The respondent No. 2 has not examined the investigating officer to ascertain these facts. Evidence of R.W. 2 will not help the respondent No. 2 to prove its
- 13 -
NC: 2025:KHC-D:7069 MFA No. 100579 of 2015 C/W MFA No. 101368 of 2020 contention. Therefore, the findings of the Tribunal that since the driver of the lorry had consumed Liquor, liability of respondent No.2 is absolved as it amounts to violation of conditions of the policy. For aforesaid discussions, I answer point No. 2 in the negative.
18. Point No.3: Age of the deceased is undisputedly 19 years. His SSLC marks card as well as school leaving certificate are produced before the Tribunal which show that his date of birth is 31.07.1994. As per judgment of Hon'ble Supreme Court in Sarla Verma (supra) the applicable multiplier is '18'. The Tribunal erroneously took the multiplier on the basis of age of the younger parent, i.e., the claimant.
19. The Tribunal has taken income of the deceased as Rs.6,000/- per month. Admittedly except certain educational certificates of deceased produced by the claimant, there are no materials available on record. Merely holding a certificate is not sufficient to guess the income. Had he got proper employment, then only the
- 14 -
NC: 2025:KHC-D:7069 MFA No. 100579 of 2015 C/W MFA No. 101368 of 2020 Tribunal would have assessed the same and ascertained the income of the deceased. In the absence of the same, the Tribunal has rightly assessed the notional income of the deceased as Rs. 6,000/- per month.
20. As per the chart prepared by KALSA the notional income, in case of the accident of the year 2013, is Rs.7,000/-. The same could be applied to the present case.
21. Deceased was aged 19 years, therefore, 40% of his income has to be added towards future prospects as held by the Hon'ble Supreme Court in the case of National Insurance Company Limited vs Pranay Sethi & others reported in (2017) 16 SCC 680. Admittedly, deceased was unmarried. Therefore, 50% of his income has to be deducted towards personal expenses. On the basis of said figures, the amount of compensation under the head loss of dependency is to be assessed.
- 15 -
NC: 2025:KHC-D:7069 MFA No. 100579 of 2015 C/W MFA No. 101368 of 2020
21. As held in the case of Pranay Sethi (referred supra), compensation under the conventional heads has to be awarded.
22. For aforesaid discussions, following amount of compensation is awarded.
1. Loss of dependency 10,58,400.00
2. Loss of consortium 40,000.00
3. Loss of estate 15,000.00
4. Funeral expenses 15,000.00 Total 11,28,400.00 Award by the Tribunal 5,13,000.00 Enhancement 6,15,400.00
23. Claimant is also entitled for interest on the enhanced compensation at the rate of 6% per annum from the rate of petition till its realization.
24. The policy of insurance was in force as on the date of the accident. In issue number 2, it is held that the liability of respondent No.2-insurer cannot be absolved only on the ground of driver of the vehicle was chargesheeted under Section 185 of Motor Vehicle Act without there being any
- 16 -
NC: 2025:KHC-D:7069 MFA No. 100579 of 2015 C/W MFA No. 101368 of 2020 blood sample test. Therefore, respondent No.2-insurer is liable to pay the compensation.
25. For aforesaid discussions point No.3 is answered accordingly and I pass following order.
ORDER Both the appeals are allowed in part.
Judgment and award passed by the Senior Civil Judge and M.A.C.T. Khanapur dated 18.09.2014 in M.V.C. No. 1250/2013 is modified.
Claimant is entitled for enhancement of compensation of Rs.6,15,400/- with interest at rate of 6% per annum from the date of petition till its realization, excluding delayed period of 1,922 days in filing the appeal (as ordered on 03.11.2023).
Respondent No. 2 is liable to pay the entire amount of compensation with interest at 6% p.a. within a period of 6 weeks from the date of passing of the award.
The remaining portion of the order of the Tribunal is not disturbed.
- 17 -
NC: 2025:KHC-D:7069 MFA No. 100579 of 2015 C/W MFA No. 101368 of 2020 Send back the TCR to the title court along with copy of this judgment.
Sd/-
(UMESH M ADIGA) JUDGE bvv /ct-an list no.: 2 sl no.: 1