In the High Court of Karnataka Kalaburagi Bench Dated This the 16 Day of January, 2015 Before: the Hon'ble Mr. Justice A.S.Pac

IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

DATED THIS THE 16 TH DAY OF JANUARY, 2015

BEFORE:

THE HON’BLE MR. JUSTICE A.S.PACHHAPURE

MISCELLANEOUS FIRST APPEAL No.30774/2012 C/W MISCELLANEOUS FIRST APPEAL Nos.30772/2012, 31231/2012 & 31229/2012 (MV)

IN MFA NO.30774/2012

BETWEEN

THE BRANCH MANAGER, ORIENTAL INSURANCE COMPANY LTD., RAICHUR, REPT. BY THE DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY LTD., N.G. COMPLEX, IST FLOOR, OPP: MINI VIDHANA SOUDHA, GULBARGA – 585 103 . … APPELLANT

(BY SRI MANJUNATH MALLAYYA SHETTY, ADV. FOR SRI UDAY P. HONGUNTIKAR, ADV.)

AND

1. SMT. LALITAMMA W/O LATE MUDUKAPPA AGE: 28 YEARS, OCC: HOUSEHOLD, R/O BAGALWAD VILLAGE, TQ: MANVI – 584 123, DIST: RAICHUR. 2

2. ANNAPURNA D/O LATE MUDUKAPPA, AGE: 6 YEARS, MINOR, OCC: STUDENT, R/O BAGALWAD VILLAGE, U/G OF RESPONDENT NO.1, TQ: MANVI – 584 123, DIST: RAICHUR.

3. TULJAMMA W/O RAMANNA, AGE: 63 YEARS, OCC: HOUSEHOLD, R/O BAGALWAD VILLAGE, TQ: MANVI – 584 123, DIST: RAICHUR.

4. SRI ANILSINGH S/O TAARA SINGH, AGE: 24 YEARS, OCC: DRIVER, R/O PINCHANAPURA GALLI, GURGUNTA ROAD, TQ: LINGASUGUR - 584 122, DIST: RAICHUR.

5. R.G. DHARMRAJ SINGH S/O GOVINDU SINGH, DEAD BY LR’S

5(A) ANILKUMAR @ ANILKUMAR SINGH, AGE: 35 YEARS, OCC: BUSINESS, R/O ANNAPOORNA BADAVANA, ISR ROAD, HOSPET – 583 201, DIST: RAICHUR. … RESPONDENTS

(SRI BABU H. METAGUDDA, ADV FOR R1 TO R3; NOTICE TO R4 & R5(A) IS DISPENSED WITH V/O DATED 08.01.2015)

THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 20.1.2012 PASSED IN MVC NO.8/2009 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE & 3

CJM (ADDITIONAL M.A.C.T) AT RAICHUR, PARTLY ALLOWING THE CLAIM PETITION AND AWARDING COMPENSATION OF RS.4,14,000/- WITH INTEREST AT 6% P.A.

IN MFA NO.30772/2012 BETWEEN

(BY SRI MANJUNATH MALLAYYA SHETTY, ADV. FOR SRI UDAY P. HONGUNTIKAR, ADV.)

AND

1. SMT. YASHODAMMA W/O LATE CHIDANANDA, AGE: 28 YEARS, OCC: HOUSEHOLD, R/O BAGALWAD VILLAGE, TQ: MANVI – 584 123, DIST: RAICHUR.

2. BASAVARAJ S/O CHIDANANDA, AGE: 8 YEARS, MINOR, OCC: STUDENT, R/O BAGALWAD VILLAGE, U/G OF RESPONDENT NO.1, TQ: MANVI – 584 123, DIST: RAICHUR.

3. KEERTANA D/O CHIDANANDA, AGE: 6 YEARS, MINOR, OCC: NIL, R/O BAGALWAD VILLAGE, U/G OF RESPONDENT No.1, TQ: MANVI – 584 123, DIST: RAICHUR. 4

4. SRI AMBOJAPPA S/O BASANNA, AGE: 68 YEARS, OCC: AGRICULTURE, R/O BAGALWAD VILLAGE, TQ: MANVI – 584 123, DIST: RAICHUR.

5. SMT. SHARADAMMA W/O AMBOJAPPA, AGE: 58 YEARS, OCC: HOUSEHOLD, R/O BAGALWAD VILLAGE, TQ: MANVI – 584 123, DIST: RAICHUR.

6. SRI ANILSINGH S/O TARA SING, AGE: 24 YEARS, OCC: DRIVER, R/O PINCHANAPURA GALLI, GURGUNTA ROAD, TQ: LINGASUGUR – 584 123, DIST: RAICHUR.

7. SRI. R.G. DHARMARAJ SINGH S/O GOVINDU SINGH, DEAD BY LR’S

7(A) ANILKUMAR @ ANILKUMAR SINGH, AGE: 38 YEARS, OCC: BUSINESS, R/O ANNAPURNA BADAVANA, ISR ROAD, HOSPET, DIST: BELLARY – 583 101. … RESPONDENTS

(SRI BABU H. METAGUDDA ADV. FOR R1 TO R5; NOTICE TO R6 & R7(A) DISPENSED WITH V/O DTD. 08.01.15)

THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 20.1.2012 PASSED IN MVC NO.7/2009 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE & CJM (ADDITIONAL M.A.C.T) AT RAICHUR, PARTLY ALLOWING THE CLAIM PETITION AND AWARDING COMPENSATION OF RS.4,86,000/- WITH INTEREST AT 6% P.A. 5

IN MFA NO.31231/2012

BETWEEN

1. SMT. YASHODAMMA W/O LATE CHIDANANDA, AGE: 28 YEARS, OCC: HOUSEHOLD,

2. BASAVARAJ S/O LATE CHIDANANDA, AGE: 8 YEARS, MINOR, OCC: STUDENT,

3. KEERTANA D/O CHIDANANDA, AGE: 6 YEARS, MINOR,

4. AMBOJAPPA S/O BASANNA, AGE: 68 YEARS,

5. SHARADAMMA W/O AMBOJAPPA, AGE: 58 YEARS, OCC: HOUSEHOLD,

APPELLANT NO.2 AND 3 ARE MINORS U/G OF APPELLANT NO.1,

ALL R/O BAGALWAD VILLAGE, TQ: MANVI, DIST: RAICHUR – 584 101. … APPELLANTS

(BY SRI BABU H. METAGUDDA, ADV.)

AND

1. SRI ANIL SINGH S/O TAARA SINGH, AGE: 24 YEARS, OCC: DRIVER OF TATA SCARPIO NO.KA-36/M-2817, R/O PINCHANAPURA GALLI, GURUGUNTA ROAD, TQ: LINGASUGUR, DIST: RAICHUR – 584 101. 6

2. R.G. DHARMARAJ SINGH S/O GOVINDU SINGH, DEAD BY LR’S

2-A. ANILKUMAR @ ANIL SINGH, AGE: 38 YEARS, OCC: BUSINESS, R/O ANNAPURNA BADAVANA, ISR ROAD, HOSPET, DIST: BELLARY.

3. THE BRANCH MANAGER, OREINTAL INSURANCE CO. LTD., CITY TALIKES ROAD, RAICHUR, DIST. RAICHUR – 584 101. … RESPONDENTS

(NOTICE TO R1 & R2(A) DISPENSED WITH V/O DTD. 19.6.14; SRI MANJUNATH MALLAYYA SHETTY, ADV FOR SRI UDAY P. HONGUNTIKAR, ADV. FOR R3)

IN MFA NO.31229/2012

BETWEEN

1. SMT. LALITAMMA W/O LATE MUDUKAPPA, AGE: 29 YEARS, OCC: HOUSEHOLD,

2. ANNAPURNA D/O LATE MUDUKAPPA, AGE: 6 YEARS, MINOR, U/G OF APPELLANT NO.1,

3. TULJAMMA W/O RAMANNA, AGE: 63 YEARS, 7

ALL ARE R/O BAGALWAD VILLAGE, TQ: MANVI, DIST: RAICHUR – 584 101. … APPELLANTS (BY SRI BABU H. METAGUDDA, ADV.)

AND

1. ANIL SINGH S/O TAARA SINGH, AGE: 24 YEARS, OCC: DRIVER OF TATA SCARPIO NO.KA-36/M-2817, R/O PINCHANAPURA GALLI, GURUGUNTA ROAD, TQ: LINGASUGUR, DIST: RAICHUR – 584 101.

2. R.G. DHARMARAJ SINGH S/O GOVINDU SINGH, DEAD BY LR’S

2-A. ANIL KUMAR @ ANIL SINGH, AGE: 38 YEARS, OCC: BUSINESS, R/O ANNAPURNA BADAVANA, ISR ROAD, HOSPET, DIST: BELLARY.

3. THE BRANCH MANAGER, OREINTAL INSURANCE CO. LTD., CITY TALIKES ROAD, RAICHUR – 584 101. … RESPONDENTS

(NOTICE TO R1 & R2(A) DISPENSED WITH V/O DATED 19.06.2014; SRI MANJUNATH MALLAYYA SHETTY, ADV. FOR SRI UDAY P. HONGUNTIKAR, ADV. FOR R3)

THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 20.1.2012 PASSED IN MVC NO.8/2009 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE & CJM (ADDITIONAL M.A.C.T) AT RAICHUR, PARTLY ALLOWING THE CLAIM PETITION AND ENHANCEMENT OF COMPENSATION. 8

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

JUDGMENT

In MFA Nos.30774/2012 and 30772/2012, the insurer has challenged its liability and also the quantum of compensation granted by the Tribunal for the death of Chidananda and Mudukappa in a motor vehicle accident, whereas in MFA

Nos.31231/2012 and 31229/2012, the claimants have sought for enhancement of the compensation.

2. The facts reveal that on 13.05.2009,

Mudukappa along with another were the pillion riders on the motorcycle bearing No.KA-36/Q-6054 and Chidananda was the rider. At that point of time, the Tata Scorpio bearing No.KA-35/M-2817 came from the hind side, driven in a rash and negligent manner and hit the motorcycle and thereby, Chidananda and Mudukappa sustained severe injuries and died. Their legal representatives made a claim for compensation in MVC Nos.7/2009 and 8/2009. 9

3. Both the cases were clubbed and common evidence was permitted.

4. The Tribunal, after hearing both the counsel and on appreciation of the evidence on record, awarded a sum of Rs.4,89,000/- as compensation in MVC No.7/2009 and a sum of

Rs.4,14,000/- as compensation in MVC No.8/2009.

It has directed the insurer to indemnify the owner. Aggrieved by the imposition of liability, challenging the finding on negligence and also the quantum of compensation, the insurer has filed MFA

Nos.30774/2012 and 30772/2012, whereas MFA

Nos.31231/2012 and 31229/2012 have been filed by the claimants, seeking enhancement.

5. Heard the learned counsel for both the parties.

6. The points that arise for my consideration in these appeals are, 10

1. Whether there was any negligence on the part of the rider of the motorcycle i.e., Chidananda?

2. Whether the insurer is liable to pay the compensation awarded by the Tribunal?

3. Whether the compensation awarded needs any variation?

7. Learned counsel for the insurer submits that three persons were riding the motorcycle and there is contribution of negligence on their part as well. Hence, he submits that the finding on negligence rendered by the Tribunal is improper and illegal. It is also his submission that the compensation awarded is on the higher side.

8. On the other hand, learned counsel for the claimants submits that the assessment of income by the Tribunal is on the lower side and proper compensation is not awarded on each of the heads. 11

9. Perusal of the material placed on record reveals that Ex.P1 is the first information report, Ex.P2 is the complaint, Ex.P3 is the charge sheet, whereas Ex.P5 is the IMV report. It is the driver of the scorpio vehicle who was charge sheeted in the present case and in the complaint as well, there is allegation against him that he was rash and negligent in driving the scorpio vehicle. In fact, the driver did not file any complaint either against the deceased or against any other person. That apart, the driver of the scorpio has not been examined before the

Tribunal to substantiate the said contentions.

When he said that the other driver was negligent, it is necessary for him to depose before the Court and speak about the facts of negligent act against the rider of the motorcycle. That apart, perusal of spot mahazer reveals that the spot of the accident was near the middle line of the road.

Anyhow, when the motorcycle was proceeding on the other portion of the road, the driver had an 12 opportunity to observe the persons who are coming on the road and it is necessary to note that it is the driver of the larger vehicle who has to take more care as compared with the rider of a smaller vehicle. Anyhow, the Tribunal has appreciated the evidence and on the basis of the aforesaid material, has come to the conclusion that the driver of the scoprio vehicle was negligent.

10. Though three persons cannot proceed on a motorcycle, mere presence of three persons on the vehicle itself is not an act of negligence. No positive act of negligence is proved from the material placed on record. It contributes the occurrence of an accident. Therefore, hitting a motorcycle on its hind side itself is an act of negligence and no grounds are made out by the insurer to call for interference in the said finding. 13

11. IN MFA Nos.31231/2012 & 30772/2012

(MVC No.7/2009)

Chidananda was the rider of the motorcycle.

He was 30 years old. His wife, two minor children and parents are the claimants. The deduction towards his personal expenses has to be 1/4, as there are more than four claimants. The multiplier applicable is 17. So far as income of the deceased is concerned, the Tribunal has taken it at Rs.3,000/- per month. In the Lok Adalaths, the income of a person in respect of the accidents of the year 2009 is considered at Rs.5,000/- per month. Hence, it would be proper to accept the same as the income of the deceased. Therefore, the net compensation payable towards loss of dependency would be Rs.5,000/- less 1/4 =

Rs.3,750/- x 12 x 17 = Rs.7,65,000/-. Deducting a sum of Rs.4,59,000/- awarded by the Tribunal, the appellants are entitled to an additional sum of

Rs.3,06,000/- on this head. 14

12. Only a sum of Rs.10,000/- has been awarded as compensation towards loss of consortium. The wife of the deceased was 25 years old at the time of his death. She has two minor children. There is no chance of her remarriage.

Hence, a sum of Rs.70,000/- appears to be just and reasonable. Deducting a sum of Rs.10,000/- awarded by the Tribunal, the appellants are entitled to an additional sum of Rs.60,000/- on this head.

13. No compensation is awarded towards loss of love and affection. As there are minor children and parents, it is jut and proper to award a sum of Rs.40,000/- on this head.

14. Thereby, the additional compensation payable to the appellants would be as under:

1 Towards loss of dependency : Rs.3,06,000/- 2 Towards loss of consortium : Rs.60,000/-

3 Towards loss of love and : Rs.40,000/- affection Total ::: Rs.4,06,000/- 15

The appellants are entitled to the aforesaid sum with interest at 9% p.a.

15. The amount awarded by the Tribunal is on the lower side and it needs enhancement as stated above. Therefore, MFA No.31231/12 is liable to be allowed in part and MFA No.30772/2012 is liable to be dismissed.

16. IN MFA Nos.31229/2012 & 30774/2012

(MVC No.8/2009)

Lalitamma is the widow of the deceased, Annapurna is the minor daughter, whereas Tuljamma is the mother of the deceased. Mudukappa was 35 years old. His income has been considered by the

Tribunal at Rs.3,000/- per month. As stated above, even in respect of a labourer, the income is considered at Rs.5,000/- in the Lok Adalaths.

Hence, that has to be considered as the income of deceased Mudukappa as well. Deducting 1/3 of it towards his personal expenses and applying the multiplier of 16 as held by the Tribunal, the net 16 compensation payable towards loss of dependency would be Rs.5,000/- less 1/3 = Rs.3,333.33/- x 12 x 16 = Rs.6,40,000/-. Deducting a sum of

Rs.3,84,000/- awarded by the Tribunal, the appellants are entitled to an additional sum of

Rs.2,56,000/- on this head.

17. As awarded in the above case, an additional sum of Rs.60,000/- has to be awarded towards loss of consortium, as only a sum of

Rs.10,000/- has been awarded by the Tribunal.

18. A sum of Rs.20,000/- has to be awarded towards loss of love and affection, as it is not awarded by the Tribunal.

19. Thereby, the additional compensation payable to the appellants would be as under:

1 Towards loss of dependency : Rs.2,56,000/-

2 Towards loss of consortium : Rs.60,000/-

3 Towards loss of love and : Rs.20,000/- affection Total ::: Rs.3,36,000/- 17

The appellants are entitled to the aforesaid sum with interest at 9% p.a.

Hence, MFA No.31229/2012 is liable to be allowed in part and MFA No.30774/2012 is liable to be dismissed.

Therefore, point No.1 is answered in negative and Point Nos.2 and 3 are answered in affirmative.

Consequently, MFA Nos.30774/2012 and

30772/2012 filed by the insurer are dismissed and

MFA Nos.31231/2012 and 31229/2012 filed by the claimants are allowed in part.

The appellants in MFA No.31231/2012 are entitled to a sum of Rs.4,06,000/- with interest at 9% p.a. from the date of the petition till its payment, in addition to the compensation awarded by the Tribunal.

Out of the enhanced compensation, a sum of

Rs.1,25,000/- is apportioned in favour of 18 appellant No.1 Smt. Yashoda and the same shall be deposited in her name in any nationalized Bank for a period of five years.

A sum of Rs.1,00,000/- each is apportioned in favour of minor appellant Nos.2 and 3 and the same shall be deposited in their names in any nationalized Bank until they attain the age of majority with a liberty to appellant No.1 to withdraw the accrued interest for the welfare of the minors.

The remaining amount of Rs.81,000/- shall be equally distributed amongst the parents of the deceased and shall be paid to them.

The appellants in MFA No.31229/2012 are entitled to a sum of Rs.3,36,000/- with interest at 9% p.a. from the date of the petition till its payment, in addition to the compensation awarded by the Tribunal. 19

Out of the enhanced compensation, a sum of

Rs.2,00,000/- is apportioned in favour of appellant No.1 - Lalitamma, the widow and out of the same, a sum of Rs.1,50,000/- shall be deposited in her name in any nationalized Bank for a period of five years and the remaining amount of

Rs.50,000/- shall be paid to her.

A sum of Rs.1,00,000/- is apportioned in favour of minor appellant No.2 and the same shall be deposited in her name in any nationalized Bank until she attains the age of majority with a liberty to appellant No.1 to withdraw the accrued interest for the welfare of the minor.

The remaining amount of Rs.36,000/- is payable to appellant No.3 – the mother of the deceased.

In view of dismissal of MFA Nos.30774/2012 and 30772/2012, I.A.Nos.2/2012 and 1/2012 filed 20 for stay in the said appeals do not survive for consideration and are accordingly disposed of.

The amount in deposit be transmitted to the

Tribunal.

Sd/- JUDGE