1

IN THE HIGH COURT OF DHARWAD BENCH

DATED THIS THE 16 TH DAY OF SEPTEMBER, 2016

BEFORE

THE HON’BLE MRS. JUSTICE S.SUJATHA

M.F.A NO.24469/2013 (MV)

C/w.

M.F.A. NOs.24468/2013, 24470/2013 (MV)

IN M.F.A NO.24469/2013:

BETWEEN:

THE DIVISIONAL MANAGER NATIONAL INSURANCE CO, LTD, MAHAVIR CHAMBERS, DIVISIONAL OFFICE, 1732, RAMADEV GALLI, , REPTD BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ARIHANT PLAZA, KESHWAPUR, HUBLI - 23 ... APPELLANT

(BY SRI. S.K. KAYAKAMATH, ADV.)

AND:

1. SMT. ANITA W/O. MUKUND KADAGAVE AGE: 40 YEARS, OCC: HOUSEWIFE R/O:MANJARI, TAL : , DIST: BELGAUM 2

2. KUMARI PREETAM D/O. MUKUND KADAGANVE AGE: 17 YEARS, OCC: STUDENT, R/O : MANJARI, TAL: CHIKODI, DIST: BELGAUM

3. KUM. PRIYADARSHAN S/O. MUKUND KADAGANVE AGE: 10 YEARS, OCC: STUDENT, R/O : MANJARI, TAL CHIKODI DIST: BELGAUM

(SINCE RESPONDENTS 2 AND 3 ARE MINORS REPTD BY RESPONDENT NO.1)

4. SMT PRABHAVATHI W/O. CHANDRAKANT KADAGAVE AGE: 62 YEARS, OCC: HOUSEHOLD WORK, R/O : NAVALIHAL,. TAL : CHIKODI, DIST: BELGAUM

SIDDAPPA ANNAPPA SHIRGANVE AGE: MAJOR, OCC: TRANSPORT BUSINESS, R/O : , TAL : , DIST: BELGAUM ... RESPONDENTS

(BY SRI. SANTOSH S. HATTIKATAGI, ADV., FOR R1-R4; SRI. VITTHAL S. TELI, ADV. FOR R5; R2 & R3 ARE MINORS REP. BY R1)

THIS MFA FILED U/SEC.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DTD:24/01/2013 PASSED IN MVC NO.2517/2011 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT-I, CHIKKODI AWARDING COMPENSATION OF Rs.17,13,400/- WITH 3

INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.

IN M.F.A NO.24468/2013:

BETWEEN:

THE DIVISIONAL MANAGER NATIONAL INSURANCE CO, LTD, MAHAVIR CHAMBERS, DIVISIONAL OFFICE, 1732, RAMADEV GALLI, BELGAUM, REPTD BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ARIHANT PLAZA, KESHWAPUR, HUBLI-23 ... APPELLANT

(BY SRI.S.K. KAYAKAMATH, ADV.)

AND:

1. SMT PRABHAVATHI W/O CHANDRAKANT KADAGANVE AGE: 57 YEARS, OCC:HOUSEHOLD WORK, R/O : NAVALIHAL, TAL : CHIKODI, DIST BELGAUM

2. SMT ANITA W/O MUKUND KADAGANVE AGE:37 YEARS,OCC:GOVT SERVICE R/O : NAVALIHAL, TAL CHIKODI DIST: BELGAUM

3. KUMARI PRITAM D/O. MUKUND KADAGANVE AGE: 17 YEARS,OCC:STUDENT, NAVLIHAL, TAL : CHIKODI DIST: BELGAUM 4

4. KUM PRIYADARSHAN S/O MUKUND KADAGANVE AGE: 14 YEARS,OCC:STUDENT, R/O : NAVALIHAL, TAL CHIKODI, DIST BELGAUM,

(SINCE RESPONDENT NO.3 AND 4 ARE MINORS REPTD BY RESPONDENT NO.2)

SIDDAPPA ANNAPPA SHIRGANVE AGE:MAJOR, OCC: TRANSPORT BUSINESS, R/O : SHIRAGUR, TAL : RAIBAG, DIST: BELGAUM (OWNER OF THE TRACTOR BEARING REG NO.AP-15-AA-4143 AND TRAILERS NO.KA-23-TA-5930 AND MH-10-H-9778) ... RESPONDENTS

(BY SRI. SANTOSH S. HATTIKATAGI, ADV., FOR R2; SRI. VITTHAL S. TELI, ADV. FOR R5; R1 – SERVED; R3 & R4 ARE MINORS REP. BY R5)

THIS MFA FILED U/SEC.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DTD:24/01/2013 PASSED IN MVC NO.1927/2011 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT-I, CHIKKODI AWARDING COMPENSATION OF Rs.17,13,400/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL REALISATION. IN M.F.A NO.24470/2013:

BETWEEN:

THE DIVISIONAL MANAGER NATIONAL INSURANCE CO, LTD, MAHAVIR CHAMBERS, ASHOK NAGAR, 5

NIPPANI, SUJATHA COMPLEX,HUBLI, BRANCH, REP. BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ARIHANT PLAZA, KESHWAPUR, HUBLI-23 ... APPELLANT

(BY SRI.S.K. KAYAKAMATH, ADV.)

AND:

1. SRI. RAOSAHEB APPA JADHAV @ ICHALKARANJI, AGE: 37 YEARS, OCC: AGRICULTURE R/O. MANJARI, TQ: CHIKODI, DIST: BELGAUM

2. SIDDAPPA ANNAPPA SHIRGANVE AGE: MAJOR, OCC: AGRICULTURE R/O. SHIRGUR, TQ: RAIBAG ... RESPONDENTS

(BY SRI. SANTOSH S. HATTIKATAGI, ADV., FOR R1; SRI. VITTHAL S. TELI, ADV. FOR R2)

THIS MFA FILED U/S 173(1) OF MV ACT 1988, AGAINST THE JUDGMENT AND AWARD DATED:24-01-2013 PASSED IN MVC NO.826/2012 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-I, CHIKODI, AWARDING THE COMPENSATION OF Rs.3,72,900/- WITH INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF PETITION TILL REALISATION.

THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: 6

JUDGMENT

These appeals are directed against the common

Judgment and Order passed by the Motor Accident

Claims Tribunal, Chikkodi [‘Tribunal’, for short], in MVC

Nos.2517/2011, 1927/2011 and 826/2012.

2. These appeals arise from the same accident and against the common Judgment. Hence, the same are heard together and disposed of by this common

Judgment.

3. The facts in brief are: that the claimants instituted the claim petition seeking compensation on account of the injuries/death contending that on 27.3.2011, the injured/deceased while travelling on a motor cycle bearing registration No.

KA-22-R-1645 as a pillion rider, the Tractor bearing registration No. AP-15-AA-4143 and Trailers attached to it bearing registration No. KA-23-TA-5930 and MH-10- 7

H-9778 collided with the motor cycle on which the injured/deceased were travelling as a result, the rider succumbed to the fatal injuries sustained in the accident and the pillion rider sustained grievous injuries. Based on this factual matrix, the compensation was sought by the claimants. The

Insurer contested the claim. The Tribunal, after appreciating the evidence on record, awarded the total compensation of Rs.17,13,400/- in MVC

Nos.2517/2011 and 1927/2011 and a sum of

Rs.3,72,900/- was awarded in MVC No.826/2012.

Being aggrieved, the appellant/insurer is before this

Court.

4. Learned Counsel appearing for the appellant would contend that the rider of the motor cycle, in fact, collided to the on going tractor trailer and while overtaking the tractor trailer the rider of the motor cycle has contributed for the accident. The Tribunal grossly 8

erred in not appreciating the contributory negligence on the part of the deceased for causing the accident in question. The owner of the motor cycle was arrayed as

Accused No.2 in the charge sheet for the offences committed under section 5 of the Motor Vehicles Act,

1988 [‘Act’ for short] which is punishable under section

180 of the Act. A conjoint reading of the police documents and the factual matrix of the case clearly establish that the rider of the motor cycle was negligent.

The Tribunal failed to consider this vital aspect in the right perspective and erred in fastening the liability on the appellant/insurer. The deceased had not followed the Rules of the Road Regulations, 1989. This factor was also lost sight of by the Tribunal.

5. As regards the quantum of compensation awarded by the Tribunal in MVC Nos.2517/2011 and

1927/2011, it is submitted that the claimants were the wife and children of the deceased in MVC 9

No.2517/2011 whereas the parents of the deceased were the claimants in MVC No.1927/2011. Admittedly, the wife of the deceased was an earning member who was working as a Nurse at Primary Health Centre,

Manjari and drawing salary of Rs.8,000/- per month.

In such circumstances, the Tribunal erred in reckoning the loss of dependency, deducting one-fourth of the income of the deceased determined i.e., Rs.1,15,200/- per annum. Elaborating the arguments on this point, learned Counsel placed reliance on the division Bench

Judgment of this Court in the case of ‘A.

MANAVALAGAN v. A. KRISHNAMURTHY AND

OTHERS’ reported in ILR 2014 KAR 3268 .

6. Learned Counsel further submitted that in view of the Judgment of this Court in A.

MANAVALAGAN’s case supra, the Tribunal ought to have followed the prescribed mode of calculation as specified in Paragraph – 20[iv] of the said Judgment. It 10

is contended that the Tribunal determining the loss of dependency deducting one-fourth as income of the deceased is perverse and contrary to the Judgment of A.

MANAVALAGAN’s case supra.

7. As regards MVC No.826/2012, it is submitted that PW.5 – Doctor who had examined the claimant/injured had assessed the permanent physical disability of 35% in respect of left limb whereas the

Tribunal assessed the permanent physical disability at

25% for the whole body. Accordingly, it is submitted that the loss of future income reckoned by the Tribunal on the basis of the assessment of permanent disability for the whole body at 25% is wholly unsustainable.

Thus, the learned Counsel seeks for reduction of the quantum of compensation of compensation awarded by the Tribunal. 11

8. Per contra, learned Counsel appearing for the claimants supporting the impugned Judgment and

Award would contend that outcome of the criminal proceedings cannot be the basis to come to a conclusion that the accident occurred owing to the contributory negligence of the deceased. No material evidence was placed on record by the appellant/insurer to establish the factum of contributory negligence of the deceased.

The Tribunal, after extensively examining the police records and the other material evidence available on record has held that the accident was caused only due to the negligence of the driver of the tractor-trailer

[offending vehicle]. The best evidence would have been the driver of the offending vehicle to establish the negligence alleged by the appellant/insurer on the part of the deceased. In the absence of the same, an adverse inference can be drawn for not examining the driver of the offending vehicle, the insurer failed to prove the contributory negligence of the deceased. 12

9. It is further submitted that the deceased had followed the Rules of the Road Regulations and the Act being beneficial legislation enacted for the benefit of the victims of the road accident has to be independently decided on the basis of the evidence made available before the Tribunal. All the allegations made by the appellant/insurer are to escape the liability of indemnifying the owner which deserves to be negated for want of concrete material evidence.

10. As regards the quantum of compensation, learned Counsel placing reliance on the Division Bench

Judgment of this Court in the case of ‘A. ARUN AND

ANOTHER v. H.B. PUSHPA AND ANOTHER’ reported in

2016 ACJ 798 , would contend that the Division Bench of this Court while considering the same set of facts has categorically held that A. MANAVALAGAN’s case supra is not applicable, where both the spouses were residing under a common roof. Accordingly, the Tribunal was 13

justified in computing the loss of dependency deducting one-fourth of the income of the deceased.

11. As regards MVC No.826/2012 is concerned, learned Counsel would submit that the Tribunal was right in assessing the disability to the whole body of the injured at 25% considering the nature and gravity of the injuries sustained by the claimant and the same cannot be found fault with.

12. Heard the learned Counsel for the parties and perused the material on record.

13. Regarding contributory negligence, it is evident from the records that the accident had occurred due to the rash and negligent driving by the driver of the tractor. Exhibit.P1-FIR, Exhibit.P2-complaint,

Exhibit.P3- charge sheet, Exhibit.P5-hand sketch map,

Exhibit.P11-motor vehicle accident report, Exhibit.R1-

Statement and Exhibit.R2-order sheet fortifies that the 14

accident had occurred due to the negligence of the driver of the offending vehicle. Much emphasis was placed by the learned Counsel for the appellant on the spot panchanama at Exhibit.P4 to contend that both the vehicles were moving in the same direction and the accident occurred when the rider of the motor cycle overtook the offending vehicle.

14. This argument of the learned Counsel is not worthy of acceptance since it is evident from the spot panchanama at Exhibit.P4 coupled with the other police records that at the time of the rider of the motor cycle overtaking the offending vehicle, the driver of the offending vehicle without giving any signal, turned suddenly to right side which resulted in causing the accident. It is well settled legal position that the contributory negligence has to be established by leading direct or corroborative evidence. No such evidence was led by the appellant/insurer to establish the 15

contributory negligence on the part of the deceased.

RW.1 was the Officer of the appellant/insurer who was not an eyewitness to the accident. As aforesaid, the relevant evidence would have been that of the driver of the offending vehicle. No efforts having been made by the appellant/insurer to examine any independent eyewitness, all the allegations now made by the appellant/insurer against the deceased are totally misconstrued, based only on imagination and surmises.

Thus, the challenge made by the appellant/insurer regarding the contributory negligence is rejected.

15. As regards the quantum of compensation, it is significant to note that the wife and the children of the deceased have filed MVC No.2517/2011 whereas the parents of the deceased have filed MVC No.1927/2011 seeking compensation for the death of the children in the accident in question. PW.1-wife of the deceased has categorically admitted that she was earning member 16

and was working as a Nurse at Primary Health Centre,

Manjari. It is further elicited from the cross examination that she was drawing salary of Rs.8,000/- per month and she was not dependent on the income of her husband. In such circumstances, the principles of law laid down by the Division Bench of this Court in A.

MANAVALAGAN’s case supra squarely applies.

16. In A. ARUN’s case supra, the Division Bench was considering a case wherein, the deceased was the wife and husband of the deceased claimant No.1 was a salaried person. It was the case where the deceased and the claimant residing together during the lifetime of the deceased. Substantial evidence was placed on record to establish the fact that both the deceased and the claimant were sharing their income with each other towards payment of house rent, purchase of car and to meet other expenses of the family. In that context, the

Division Bench had held that A. MANAVALAGAN’s case 17

supra is not applicable to the facts of that case. In such a scenario, A. ARUN’s case supra is not applicable to the facts of the present case.

17. Learned Counsel for the claimants placed reliance on the Judgment of the Hon’ble Apex Court in the case of ‘PUSHKAR MEHRA v. BRIJ MOHAN

KUSHWAHA AND OTHERS’ reported in 2013 [14]

SCALE 26 , to contend that the legal representatives of the deceased though earning members are to be construed as dependents of the deceased irrespective of their financial background.

18. The Hon’ble Apex Court in the said

Judgment, after considering the Judgment of A.

MANAVALAGAN’s case supra, distinguished the case of

A. MANAVALAGAN supra, as salary was proved by the documentary evidence. It is pertinent to note that the

Hon’ble Apex Court has not overruled A.

MANAVALAGAN’s case supra. Given the circumstances, 18

the salary of the wife of the deceased is proved. As such, the Judgment of PUSKAR MEHRA’s case supra is not applicable to the facts of the present case.

19. It is beneficial to refer to paragraph-20[iv]

Note of A. MANAVALAGAN’s case supra which runs thus:

“Paragraph 20 [iv] Note: The position would be different if the husband and wife, were both earning, and living together under a common roof, sharing the expenses. As stated in BURGESS v. FLORENCE NIGHTINGALE HOSPITAL (1955(1) Q.B. 349), 'when a husband and wife, with separate incomes are living together and sharing their expenses, and in consequence of that fact, their joint living expenses are less than twice the expenses of each one living separately, then each, by the fact of sharing, is conferring a benefit on the other'. This results in a higher savings, say, one-third of the income; In addition each spouse loses the benefit of services rendered by the other in managing 19

the household, which can be evaluated at say Rs. 1,000/- per month or Rs. 12,000/- per annum). In such a situation, the claimant (surviving spouse) will be entitled to compensation both under the head of loss of dependency (for loss of services rendered in managing the household) and loss to estate (savings to an extent of one-third of the income that is Rs. 3,000/- per month or Rs. 36000/- per annum). Therefore, the loss of dependency would be 12000x14=168,000/- and loss to estate would be 36000x14=504,000/-. In all Rs. 6,72,000/- will be the compensation.”

20. Applying the principles of law laid down by this Court in A. MANAVALAGAN’s case supra, the loss of dependency works out to Rs.1,76,400/- (Rs.1,050/- x

12 x 14), the loss of estate would be Rs.5,37,600/-

(Rs.3,200/- x 12 x 14) with the annual income of the deceased at Rs.1,15,200/- as determined by the

Tribunal. However, the compensation awarded by the

Tribunal under the different heads is meager. Applying 20

the principles of law laid down by the Hon’ble Apex

Court in the case of ‘RAJESH AND OTHERS v. RAJBIR

SINGH AND OTHERS’ reported in 2013 [9] SCC 54, the claimants shall be entitled to the compensation of

Rs.1,00,000/- towards love and affection, a sum of

Rs.1,00,000/- towards loss of consortium, a sum of

Rs.5,37,600/- towards loss of estate, a sum of

Rs.1,76,400/- towards loss of dependency, a sum of

Rs.25,000/- towards funeral expenses and conveyance,

Rs.4,63,773/- towards medical expenses, totaling to

Rs.14,02,773/- as against Rs.17,13,400/- awarded by the Tribunal. The said amount shall carry interest at

6% per annum from the date of the petition till the date of realization. The apportionment and disbursement of the award amount shall be in terms of the order passed by the Tribunal.

21. In MVC No.826/2012, the only grievance of the Insurer as regards the quantum of compensation 21

assessing the disability at 25% for the whole body of the injured. It is manifestly clear that the Doctor who was examined as PW.5 had assessed the permanent physical disability of 35% in respect of left limb only. In such a situation, it would be appropriate to re-assess the permanent physical disability to the whole body of the injured at 12%. Applying the same with the monthly income of Rs.6,000/-, as determined by the Tribunal, the loss of future income works out to Rs.1,29,600/-.

In all other respects, the compensation awarded by the

Tribunal remains unaltered. Thus, the claimants in

MVC No.826/2012 shall be entitled to total compensation of Rs.2,22,503/- rounded off to

Rs.2,22,500/- as against Rs.3,72,900/- awarded by the

Tribunal which shall carry interest at 6% per annum from the date of the petition till the realization.

22. The appeals are disposed of in terms of the above. 22

The amount in deposit shall be transferred to the jurisdictional Tribunal for disbursement.

Sd/- JUDGE

AN/-