1

IN THE HIGH COURT OF DHARWAD BENCH

DATED THIS THE 10 TH DAY OF JUNE 2016

BEFORE

THE HON’BLE MR. JUSTICE G. NARENDAR

MFA No.20611/2012 (MV) C/W MFA Nos.20608/2012, 20609/2012, 20610/2012

MFA No.20611/2012

BETWEEN

1. LAXMAWWA W/O MAHADEVAPPA KALLAD AGE: 55 YRS, OCC: HOUSE HOLD WORK, R/O TOTAGATTI, TALUK: ,

2. MANJULA W/O BALAPPA KALLAD AGE: 25 YRS, OCC: HOUSEHOLD WORK, R/O TOTAGATTI, TALUK: RAMDURG,

3. KUMARI NIRMALA D/O BALAPPA KALLAD AGE: 61/2 YRS, SINCE SHE IS MINOR REP. BY HER MINOR GUARDIAN AND NATURAL MOTHER APPELLANT NO.2 R/O TATAGATTI, TQ: RAMDURG. ... APPELLANTS

(BY SRI. H M DHARIGOND, ADV.) 2

AND

1. M/S SANGHI TRANSPORT COMPANY 20-3, ALBERI VITOR ROAD, BANGALORE DIST. HYDERABAD, ANDHRA PRADESH 500001 AND ALSO AT ACC GATE WADI, TALUK CHITTAP.

2. THE DIVISIONAL MANAGER, THE NEW ASSURANCE COMPANY LTD., THROUGH ITS DIVISIONAL OFFICE, CLUB ROAD, . ... RESPONDENTS

(BY SMT. PREETI SHASHANK, ADV. FOR R2, NOTICE TO R1 DISPNSED)

MFA FILED U/SEC.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DTD:2.12.2010 PASSED IN MVC.NO.506/2007 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE & MACT, BELGAUM, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

MFA No.20608/2012

BETWEEN

1. YALLANAGOUDA SHIVANAGOUDA PATIL @ PADEPPANAVAR AGE: 58 YEARS, OCC: AGRICULTURE, R/O: , TQ: RAMDURG, DIST: BELGAUM.

2. SUSHILA W/O YALLANAGOUDA PATIL @ PADEPPANNAVAR 3

AGE: 48 YEARS, OCC: HOUSEHOLD WORK, R/O: SIDNAL, TQ: RAMDURG, DIST: BELGAUM.

3. PRABHAVATI D/O YALLANAGOUDA PATIL @ PADEPPANNAVAR AGE: 22 YEARS, OCC: STUDENT, R/O: SIDNAL, TQ: RAMDURG, DIST: BELGAUM. ... APPELLANTS

(BY SRI. H M DHARIGOND, ADV.)

AND

1. M/S SANGHI TRANSPORT COMPANY 20-3, ALBERI VITOR ROAD, BANGALORE DIST, HYDERBAD, ANDHRA PRADESH, AND ALSO AT ACC GATE WADI, TQ: CHITTAPUR DIST: GULBARGA, KARNATAKA.

2. THE DIVISIONAL MANAGER THE NEW INDIA ASSURANCE CO. LTD., THROUGH ITS DIVISIONAL OFFICE, CLUB ROAD, BELGAUM. ... RESPONDENTS

(BY SMT. PREETI SHASHANK, ADV. FOR R2 NOTICE TO R1 IS DISPENSES WITH)

MFA FILED U/SEC.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DTD:2.12.2010 PASSED IN MVC.NO.500/2007 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE & MACT, BELGAUM, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. 4

MFA No. 20609/2012

BETWEEN

1. NINGAPPA GADIGEPPA BHUMANNAVAR AGE: 60 YEARS, OCC: AGRICULTURE, R/O: TOTAGATTI, TQ: , DIST: BELGAUM.

2. SHIVABASAWWA W/O NINGAPPA BHUMANNAVAR AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O: TOTAGATTI, TQ: RAIBAG. DIST: BELGAUM.

3. IRAPPA S/O NINGAPPA BHUMANNAVAR AGE: 23 YEARS, OCC: STUDENT, R/O: TOTAGATTI, TQ: RAIBAG. DIST: BELGAUM. ... APPELLANTS

(BY SRI. H M DHARIGOND, ADV.)

AND

1. M/S SANGHI TRANSPORT COMPANY 20-3, ALBERI VITOR ROAD, BANGALORE DIST, HYDERBAD, ANDHRA PRADESH AND ALSO AT ACC GATE WADI, TQ: CHITTAPUR DIST: GULBARGA, KARNATAKA

2. THE DIVISIONAL MANAGER THE NEW INDIA ASSURANCE CO. LTD., THROUGH ITS DIVISIONAL OFFICE, CLUB ROAD, BELGAUM. ... RESPONDENTS 5

(BY SMT: PREETHI SHASHANK, ADV. FOR R2 NOTICE TO R1 IS DISPENSED WITH)

MFA FILED U/SEC.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DTD:2.12.2010 PASSED IN MVC.NO.504/2007 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE & MACT, BELGAUM, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

MFA No. 20610/2012

BETWEEN

1. BASAVVA BASAPPA DYAMANAGOUDAR AGE: 60 YEARS, OCC: HOUSEHOLD WORK, R/O: TOTAGATTI, TQ: RAMDURG, DIST: BELGALUM.

2. MANJULA W/O PRAKASH DYAMANAGOUDAR AGE: 24 YEARS, OCC: HOUSEHOLD WORK, R/O: TOTAGATTI, TQ: RAMDURG, DIST: BELGAUM.

... APPELLANTS

(BY SRI. H M DHARIGOND, ADV.)

AND

1. M/S SANGHI TRANSPORT COMPANY 20-3, ALBERI VITOR ROAD, BANGALORE DIST, HYDERBAD, ANDHRA PRADESH, AND ALSO AT ACC GATE WADI, TQ: CHITTAPUR 6

DIST: GULBARGA, KARNATAKA.

2. THE DIVISIONAL MANAGER THE NEW INDIA ASSURANCE CO. LTD., THROUGH ITS DIVISIONAL OFFICE, CLUB ROAD, BELGAUM. ... RESPONDENTS

(BY SMT. PREETI SHASHANK, ADV. FOR R2 NOTICE TO R1 IS DISPESNED WITH)

MFA FILED U/SEC.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DTD:2.12.2010 PASSED IN MVC.NO.505/2007 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE & MACT, BELGAUM, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

JUDGMENT

Heard the learned counsel for the appellants and the respondents.

2. Appeals are listed for admission. With the consent of the learned counsels, appeals are taken up for final disposal as the claims arise in respect of the death that occurred in the year 2006. 7

3. The brief facts of the case, as pleaded by the claimants, are that in the night hours of 16/9/2006, two among the deceased persons were proceeding on a motor cycle bearing No.KA-24/H-2815 from to

Sidnal and that the deceased in MVC No.500/2007 was riding the motor cycle and the deceased in MVC

No.506/2007 was the pillion rider. They stopped the vehicle near a bridge on Belgaum –Bagalkot road in order to speak with their friends who were standing

(deceased in MVC Nos.504 and 505 of 2007). At that time, the offending vehicle, the truck bearing registration No.KA-32/A 1357, came from the Bagalkot side towards Belgaum, and was being driven in a rash and negligent manner at high speed and suddenly, the driver lost the control and dashed against the deceased persons resulting in their death.

4. The claimants are the parents and sister (MVC

Nos.500/07 and 504/07), mother and wife (MVC 8

No.505/07) and mother, wife and minor daughter (MVC

No.506/07) respectively. The Tribunal after assessing the material and testimony of the parties, was pleased to conclude that the deceased were negligent as all the four of them were proceedings in the single bike and have contributed to the occurrence of the accident and accordingly, attributed 50% of the contributory negligence to the deceased as all the four of them were proceeding in the bike, and it is in violation of the provisions of Section 128 of Motor Vehicles Act, 1988.

5. Being aggrieved by the same, the appellants are before this Court.

6. The learned counsel for the appellants would submit that the Tribunal has erred in simply relying on the police records to conclude that there was a violation of Section 128 of the Motor Vehicles Act. He would submit that there is no allegation that the deceased 9

were travelling on the wrong side of the road or had indulged any traffic violation. He would submit that two of them were standing and the two of the deceased were sitting on the bike and when they came across their friends, they had stopped the bike and other two deceased were standing on the road and at that time, the offending vehicle came and crashed into them.

Though such contention is raised, the appellants’ counsel is unable to place on record or point out any material, which was placed before the Tribunal to demonstrate the same.

7. Per contra, the learned counsel for the respondent–insurer would submit that the police records are of persuasive value and prima facie establish the contention on behalf of the insurer that the claimants are indeed violators of the provisions of

Section 128 of the Motor Vehicles Act and thereby have contributed to the occurrence of the accident. The 10

learned counsel for respondent would also rely upon the rulings of this Court in the case of P.S.Somaiah Vs.

Director, Bangalore Diary, reported in AIR (KAR)-2003-0-

258.

8. Be that as it may, a perusal of the materials and the pleadings would show that apart from the police records, alleging that all the four were traveling on a single bike, there is no other material and in fact it is admitted that charge sheet has been filed against the driver of the truck. But, as rightly contended and as held by the Hon’ble Apex Court in the case of the

Oriental Insurance Co.Ltd. Vs. Premalata Shukla and others, reported in (2007) 13 SCC 476, the FIR which has been relied upon and got marked by the claimants also speaks against them. The content of the FIR is not conclusive proof. But, as stated supra, the police records are of persuasive value and hence, in the considered opinion of this Court, contributing 50% of 11

the negligence to the deceased would be harsh and this

Court is of the considered opinion that the ends of

justice would be met if 40% contributory negligence is

attributed to the deceased. Hence, the finding of the

Tribunal with regard to the extent of contributory

negligence is modified and it is held that the

contributory negligence on behalf of the deceased is

assessed at 40% and hence, it is held that the insurer is

liable to compensate the claimants to an extent of 60%

of the sum that has been awarded at the hands of this

Court. The liability of the insurer is restricted to 60%

of the compensation awarded. The Compensation

awarded by the Tribunal are as follows:-

Heads Loss of love Funereal Towards Loss of Total Towards loss of and Conso- in MVC and loss of Nos. dependency Transpo- rtium affection rtation estate 500/07 2,52,000 15,000 5,000 5,000 - 2,77,000 504/07 2,52,000 15,000 5,000 5,000 - 2,77,000 505/07 4,08,000 5,000 5,000 5,000 5,000 4,28,000 506/07 4,32,000 10,000 5,000 5,000 5,000 4,57,000 12

9. The learned counsel for the appellants would draw the attention of the Court to the sums awarded by the Tribunal. He would submit that the Tribunal has awarded very meager sums under all the other heads of the claim and even the notional income fixed by the

Tribunal is on a lower side. The learned counsel for the appellants would fairly admit that the sums awarded under the conventional head and other heads are on the lower side.

10. It is seen that the Tribunal has fixed the notional income of the deceased at Rs.100/- per day.

Keeping in view the age of the deceased who are between the age of 22 to 26 years, the ends of justice would be met if the notional income is re-fixed at

Rs.3,750/-p.m. Accordingly, the compensation awarded under the head of loss of dependency requires to be enhanced in all the appeals. 13

11. The deceased in MVC No.500/2007 and

MVC No.504/2007 were bachelors, aged 24 years and

22 years respectively at the time of death and the parents and younger sister are the dependents. Hence, the loss of dependency, is calculated as follows :-

Rs.3,750/- x 50% x 12 x 18 = 4,05,000/-. The Tribunal has awarded Rs.2,52,000/- and hence the claimants are entitled to the enhanced compensation of Rs.1,53,000/-

(Rs.4,05,000/- minus Rs.2,52,000/-) under the head

‘loss of dependency’.

The deceased in MVC No.505/2007 was married, aged 26 years at the time of death and the mother and wife are the dependents. Hence, the loss of dependency, is calculated as follows :-

Rs.3,750/- x 12 x 2/3 x 17 = 5,10,000/-. The

Tribunal has awarded Rs.4,08,000/- and hence the claimants are entitled to the enhanced compensation of

Rs.1,02,000/- (Rs.5,10,000/- minus Rs.4,08,000/-) under the head ‘loss of dependency’. 14

The deceased in MVC No.506/2007 was aged 24 years at the time of death and the mother, wife and minor daughter are the dependents. Hence, the loss of dependency, is calculated as follows :-

Rs.3,750/- x 12 x 2/3 x 18 = Rs.5,40,000/-. The

Tribunal has awarded Rs.4,32,000/- and hence the claimants are entitled to the enhanced compensation of

Rs.1,08,000/- (Rs.5,40,000/- minus Rs.4,32,000/-) under the head ‘loss of dependency’.

12. The Tribunal has awarded a sum of

Rs.10,000/- under the head of loss of love and affection to the claimants in all the petitions. The said award is also very meager and it requires to be revised and enhanced. This Court is of the considered opinion that ends of justice would be met, if a sum of Rs.50,000/- is awarded to each of the claimants in all the petitions under the head of loss of love and affection and care and guidance. 15

13. The Tribunal has awarded sum of

Rs.5,000/- under the head loss of consortium in MVC

Nos.505 and 506 of 2007. The same is very meager and hence, taking into consideration the young age of the wives of the deceased, in both the petitions, who have lost their husband, a sum of Rs.50,000/- is awarded under the head of loss of consortium. Accordingly, compensation under the said head is enhanced by

Rs.45,000/-.

14. Further, The Tribunal has awarded a sum of

Rs.5,000/- under the head ‘loss of estate’ and another

Rs.5,000/- under the head funeral and transportation of dead body. The same is enhanced to Rs.20,000/- under both the heads in all the appeals.

15. In paragraph 6 of the judgment, it has been held that the contributory negligence of the deceased is to the extent of 40% and the liability of the insurer is restricted to 60% of the compensation awarded. 16

16. The details of the enhanced compensation

under different heads in all the appeals are shown in

the tabular coloumn below :-

Heads Loss of Funereal Towards Loss of Total Towards loss of and in MVC love and loss of conso- enhanced Nos. dependency Transpo- rtium amount affection rtation estate 500/07 Rs.1,53,000/- 1,35,000 - 3,28,000 20,000 20,000

504/07 Rs.1,53,000/- 1,35,000 20,000 20,000 - 3,28,000

505/07 Rs.1,02,000/- 95,000 20,000 20,000 45,000 2,82,000

506/07 Rs.1,08,000/- 1,40,000 20,000 20,000 45,000 3,33,000

17. Hence, the following:

ORDER

i) All the appeals are allowed in part;

ii) The judgment and award dated 2/12/2010 in

MVC Nos.500, 504, 505, 506 of 2007 on the file of

the I Addl. Senior Civil Judge and MACT,

Belgaum, are modified and the appellants are

entitled to the enhanced compensation, after 17

deducting the contributory negligence @ 40%, as

stated below:-

MFA No.20611/2012 – Rs.1,99,800/-

MFA No.20608/2012- Rs.1,96,800/-

MFA No.20609/2012 - Rs.1,96,800/-

MFA No.-20610/2012 Rs.1,69,200/-

iii) The enhanced compensation shall carry interest at

the rate of 9% p.a. from the date of petition till

deposit. iv) Respondent-insurer is directed to deposit the

enhanced compensation, as stated in (ii) above,

along with interest within six weeks from the date

of receipt of copy of this judgment, failing which,

the claimant shall be entitled to a enhanced rate

of interest at the rate of 15% p.a. 18

In view of the above order, there shall be no order as to costs and the parties are directed to bear their respective costs.

Office to draw up the decree accordingly.

Sd/- JUDGE Vmb/Rs