Karnataka High Court
Mr. Nagappa S/O. Mahalingappa ... vs Mr. Sabanna S/O. Ramappa Kadakol on 12 September, 2024
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
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NC: 2024:KHC-D:13048-DB
MFA No. 101120 of 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 12TH DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 101120 OF 2017 (MV-D)
BETWEEN:
1. MR. NAGAPPA
S/O. MAHALINGAPPA MAHALINGPUR,
AGE 41 YEARS, OCC: COOLIE,
R/O. GUDAGOPPA, TQ: RAMADURG,
DIST: BELAGAVI.
2. KUMAR VEERESH
S/O. NAGAPPA MAHALINGPUR,
AGE 08 YEARS, OCC: STUDENT,
R/O. GUDAGOPPA, TQ: RAMADURG,
DIST: BELAGAVI.
Digitally signed
by JAGADISH T
R 3. KUMAR VIVEK
Location: High
Court of S/O. NAGAPPA MAHALINGPUR,
Karnataka,
Dharwad Bench AGE 07 YEARS, OCC: STUDENT,
R/O. GUDAGOPPA, TQ: RAMADURG,
DIST: BELAGAVI.
SINCE APPELLANT NO. 2 & 3 ARE MINORS
REP. BY THEIR NATURAL FATHER
APPELLANT NO.1 MR. NAGAPPA
S/O. MAHALINGAPPA MAHALINGPUR,
AGE 41 YEARS, OCC: COOLIE,
R/O. GUDAGOPPA, TQ: RAMADURG,
DIST: BELAGAVI.
...APPELLANTS
(BY SRI. HANAMANT R. LATUR, ADVOCATE)
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NC: 2024:KHC-D:13048-DB
MFA No. 101120 of 2017
AND:
1. MR. SABANNA S/O. RAMAPPA KADAKOL,
AGE 50 YEARS, OCC: AGRICULTURE,
R/O. KALLOLI, PIN-591224,
TQ: GOKAK, DIST: BELAGAVI.
2. MR. RAYAPPA S/O. BAGEWADI,
AGE 45 YEARS, OCC: AGRICULTURE,
R/O. KALLOLI, PIN-591224,
TQ: GOKAK, DIST: BELAGAVI.
3. IFFCO-TOKIO GENERAL INSURANCE CO. LTD.,
THROUGH ITS D.O. SHIKSHAKAR BHAVAN,
OPP: SANMAN HOTEL, COLLAGE ROAD,
BELAGAVI, PIN-590001.
4. HDFC-ERGO GENERAL INSURANCE CO. LTD.,
RAMAN HOUSE, H.T. PAREKH MARG,
NO -169, BACKBAY RECLAIMATION,
MUMBAI-400020.
...RESPONDENTS
(BY SRI. M. Y. KATAGI, ADV. FOR R3;
SRI. S. K. KAYAKAMATH, ADV. FOR R4;
NOTICE TO R1 SERVED;
NOTICE TO R2 DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
PRAYING TO ENHANCE THE COMPENSATION BY MODIFYING THE
JUDGMENT AND AWARD PASSED BY VIII ADDL. DISTRICT AND
SESSIONS JUDGE, BELAGAVI, IN MVC NO.1585/2014 DATED
12.04.2016 AND FIX THE ENTIRE NEGLIGENCE ON RESPONDENT
NO.3 AND 4, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
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NC: 2024:KHC-D:13048-DB
MFA No. 101120 of 2017
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL) This appeal is filed by the claimants challenging the liability to an extent of 40% saddled on the rider of motorcycle as well as quantum of compensation being aggrieved by judgment and award dated 12.04.2016 passed in MVC No.1585/2014 on the file of learned VIII Addl. District and Sessions Judge, Belagavi (for short, 'Tribunal').
2. Brief facts leading to filing of this appeal are that, one Smt. Shivaleela Nagappa Mahalingapur, the wife of claimant No.1 was proceeding on motorcycle bearing registration No.KA-24/E-7073, as a pillion rider, on 08.01.2014. When the motorcycle came near Hulkund-Yadwad Road, at that time, Tractor-Trailer bearing registration No.KA-24/TA-3338 & KA-49/T-4484 loaded with sugarcane was proceeding ahead of the motorcycle. While the rider of motorcycle was about to overtake the said vehicle, the driver of the tractor-trailer took right turn, as a result, big wheel of the tractor ran over the pillion rider, due to which, she sustained severe injuries and succumbed to the same at the spot. The deceased Shivaleela was aged about 25 years, was working at Sports School and -4- NC: 2024:KHC-D:13048-DB MFA No. 101120 of 2017 was earning Rs.8,000/- per month. Hence, the claimants filed claim petition before the Tribunal seeking compensation.
3. The respondents/Insurance Companies entered appearance before the Tribunal, filed objections by denying the accident, age, income and avocation of the deceased. They contended that the accident took place due to rash and negligent riding of rider of motorcycle and sought for dismissal of the claim petition.
4. The Tribunal recorded the evidence of the parties. Claimant No.1 examined himself as PW1, got marked Exs.P1 to P7. The respondents examined two witnesses as RW1 & RW2 and got marked Exs.R1 to R5. The Tribunal on appreciation of the evidence available on record has allowed the claim petition in part and awarded total compensation of Rs.3,18,600/- along with interest at the rate of 9% per annum by fixing contributory negligence to an extent of 40% on the rider of the motorcycle and 60% on the driver of the offending tractor-trailer. Being aggrieved, the claimants are in appeal.
5. Sri. Hanamant R. Latur, learned counsel appearing for the appellants-claimants with vehemence submits that the Tribunal committed an error in fastening the liability to an -5- NC: 2024:KHC-D:13048-DB MFA No. 101120 of 2017 extent of 40% on the rider of motorcycle. He submits that due to negligent act of the driver of the tractor-trailer, who took sudden right, the accident took place and there was no negligence on the part of the rider of the motorcycle. Hence, he seeks to saddle entire liability on the driver of the offending vehicle. Insofar as quantum of compensation is concerned, he submits that the Tribunal committed a grave error in assessing the income of the deceased at Rs.3,000/- per month, which is on the lower side. He further submits that the award of compensation under the conventional heads is also on the lower side. Thus, he seeks to enhance the compensation by allowing the appeal.
6. Sri. M.Y. Katagi & Sri. S.K.Kayakamath, learned counsel appearing for the respondents/Insurance Companies support the impugned judgment and award of the Tribunal and submit that due to rash and negligent riding of the rider of the motorcycle himself, the accident took place, hence, the Tribunal has rightly saddled liability on the rider of motorcycle to an extent of 40%. Insofar as quantum of compensation is concerned, they submit that the award of compensation by the -6- NC: 2024:KHC-D:13048-DB MFA No. 101120 of 2017 Tribunal under each heads is just and proper and does not call for interference. Hence, he seeks dismissal of appeal.
7. We have heard the arguments of the learned counsel appearing for the parties and perused the material available on record. The only point that arises for consideration in this appeal is, whether the impugned judgment and award of the Tribunal calls for any interference?
8. The parties to the proceedings do not dispute that in a road accident dated 8.1.2014, deceased Shivaleela, the wife of the claimant No.1 sustained grievous injuries and succumbed to those injuries. The claimants being the husband and minor children of the deceased filed claim petition for the accidental death of Smt.Shivaleela. The claimants are in appeal challenging the liability as well as quantum of compensation.
9. PW1 in his evidence has deposed that while he was overtaking the offending vehicle, one motorcycle was proceeding ahead and motorcycle of his brother was coming from backside. He has further deposed that when he gave horn to give side to him and while he was overtaking the said -7- NC: 2024:KHC-D:13048-DB MFA No. 101120 of 2017 vehicle, the driver of the offending vehicle took the tractor towards right side, as a result, the deceased came in contact with the big wheel of the tractor and due to severe injuries sustained by her, she died at the spot. The driver of the offending vehicle, who examined as RW2, has deposed that due to negligent act of rider of motorcycle, the accident took place. A perusal of the evidence of PW1 is clear that the rider of the motorcycle was overtaking the loaded tractor-trailer while another vehicle is proceeding ahead and another vehicle is coming from backside. Therefore, there is also negligence on the part of the rider of motorcycle. Moreover, he ought to have taken care while overtaking the loaded tractor. Even there is also fault on the part of the driver of the tractor that while he was proceeding on the left side, suddenly he took right side, due to which, the big wheel of the tractor came in contact with the pillion rider, who sustained severe injuries and succumbed to the same at the spot. Merely because the driver acquitted in criminal case itself is not sufficient to hold that there was no negligence on the part of the driver. The tractor with a trailer is a big vehicle that too loaded with sugar cane. Therefore, the driver of the tractor should have also taken care and caution -8- NC: 2024:KHC-D:13048-DB MFA No. 101120 of 2017 while proceeding with sugar cane load. Therefore, the driver of the tractor-trailer contributed to the accident in question in a larger extent. Thus, we are of the considered view that the finding of the Tribunal insofar as contributory negligence is required to be modified holding that the driver of the tractor- trailer and rider of the motorcycle have contributed to the accident in question to the extent of 75:25 respectively.
10. As regards the quantum of compensation is concerned, the Tribunal has assessed the income of the deceased at Rs.3,000/- per month, which is on the lower side. Admittedly, no cogent and acceptable evidence is placed before the Tribunal with regard to the income of the deceased. Therefore, we reassess the notional income of the deceased at Rs.7,500/- per month placing reliance on the notional income chart prepared by the Karnataka State Legal Services Authority. The deceased was aged about more than 25 years at the time of the accident. There is no dispute with regard to deduction of 1/3rd towards personal and living expenses of the deceased and appropriate multiplier of 17. The claimants would be entitled to an addition of 40% of the assessed income towards loss of future prospects of the deceased. Thus, the -9- NC: 2024:KHC-D:13048-DB MFA No. 101120 of 2017 claimants are entitled to modified compensation under the head of loss of dependency as under:
Rs.7,500 + 40% X 12 X 17 X 2/3 = Rs.14,28,000/-
11. In terms of decision of Hon'ble Apex Court in the case of Magma General Insurance Company Limited Vs. Nanu Ram & Others1, the appellants/claimants being husband and minor children of the deceased are entitled to a sum of Rs.48,000/- each towards loss of consortium, besides a sum of Rs.18,000/- under the head of loss of estate and Rs.18,000/- under the head of transportation of dead body and funeral expenses including 20% escalation.
12. Thus, the claimants would be entitled to modified compensation on the following heads:
Particulars Amount
(in Rs.)
Loss of dependency 14,28,000/-
Loss of estate & funeral expenses 36,000/-
Loss of consortium (Rs.48,000/- each) 1,44,000/-
Total 16,08,000/-
Less 25% negligence 4,02,000/-
Total Compensation 12,06,000/-
1
(2018) 18 SCC 130
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MFA No. 101120 of 2017
Thus, the claimants are entitled to a total compensation of Rs.12,06,000/- as against Rs.3,18,600/- awarded by the Tribunal.
13. In the result, we proceed to pass the following:
ORDER
a) The appeal stands allowed in part.
b) The impugned judgment and award of the Tribunal is modified to an extent that the claimants would be entitled to total compensation Rs.12,06,000/- as against Rs.3,18,600/- awarded by the Tribunal.
c) The enhanced compensation amount shall carry interest at the rate of 6% per annum from the date of petition till the date of payment.
d) The Respondents No.3 and 4/Insurance Companies jointly and severally are liable to pay the enhanced compensation amount and they are directed to deposit the same with accrued interest before the Tribunal within a
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NC: 2024:KHC-D:13048-DB MFA No. 101120 of 2017 period of six weeks from the date of receipt of certified copy of this judgment.
e) The apportionment, deposit and disbursement shall be made as per award of the Tribunal.
f) Draw modified award accordingly.
g) No costs.
Sd/-
(KRISHNA S.DIXIT)
JUDGE
Sd/-
(VIJAYKUMAR A.PATIL)
JUDGE
JTR/ct-an
List No.: 1 Sl No.: 4