Extracted from the PDF above. The PDF is authoritative.
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NC: 2025:KHC-K:1654-DB MFA No. 200849 of 2019 C/W MFA No. 200510 of 2019
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 17TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR. JUSTICE K NATARAJAN AND THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
MISC. FIRST APPEAL NO.200849 OF 2019 (MV-D) C/W MISC. FIRST APPEAL NO.200510 OF 2019(MV-D)
MFA NO.200849/2019:
BETWEEN:
1.
JAGADISH SHIPUR S/O DASHRATH SHIPUR, AGE: 30 YEARS, OCC: UNEMPLOYED,
2.
HUCHAPPA SHIPUR S/O DASHRATH SHIPUR, AGE: 34 YEARS, OCC: AGRICULTURIST,
3.
RENUKAMMA SHIPUR D/O DASHRATH SHIPUR, AGE: 28 YEARS, OCC: UNEMPLOYED,
4.. VENKAMMA SHIPUR D/O DASHRATH SHIPUR, AGE: 26 YEARS, OCC: STUDENT, ALL THE APPELLANTS ARE R/O J. MALLAPUR TQ. & DIST: RAICHUR-584101.
…APPELLANTS (BY SRI. SHARANAGOWDA V. PATIL, ADVOCATE)
Digitally signed by NIJAMUDDIN JAMKHANDI Location: HIGH COURT OF KARNATAKA
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AND:
1.
MD. KHALID S/O MD. ISMAIL, AGE: 42 YEARS, OCC: HEAVY MOTOR VEHICLE DRIVER, R/O ANDROON QUILLA, RAICHUR KARNATAKA-584101.
2.
MOHAMMED QUTBUDDIN S/O MOHAMMED USMAN, AGE: ABOUT: 52 YEARS, OCC: OWNER OF LORRY, R/O H.NO.2-1-89, ANDROON QUILLA, RAICHUR-584101.
3.
SHRIRAM GENERAL INSURANCE CO. LTD., S5, 2ND FLOOR, MONARCH CHAMBERS INFANTRY ROAD, BANGALORE-560001.
4.
TIRUPATHI SHIPUR S/O DASHRATH SHIPUR, AGE ABOUT: 33 YEARS, OCC: POLICE CANSTABLE, R/O J. MALLAPUR P.O. JEGARKAL, TQ & DIST: RAICHUR-584101.
BY HIS LRS. MR. HUCHAPPA SHIPUR.
S/O DASHRATH SHIPUR, ABED ABOUT: 37 YEARS, OCC: UNEMPLOYED, R/O J. MALLAPUR VILLAGE P.O. JEGARKAL, TQ & DIST: RAICHUR-584101.
5.
THE ORIENTAL INSURANCE CO. LTD, BRANCH OFFICE RAICHUR, 11/9/5, 1ST FLOOR, KATKAM KRISTAIAH COMPLEX, CITY TALKIES ROAD, RAICHUR-584102.
…RESPONDENTS
(BY SMT. BHADRASHETTY SANGEETA, ADVOCATE FOR R3 SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R5;
V/O DATED 12.07.2021 NOTICE TO R1, R2 AND R4 ARE DISPENSED WITH)
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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF M.V. ACT, PRAYING TO MODIFY THE
JUDGMENT AND AWARD PASSED BY THE COURT OF THE II ADDL. DIST. AND SESSIONS JUDGE AND MACT, RAICHUR IN MVC.NO.69/2012 DATED 19.11.2018 AND BE PLEASED TO ALLOW THE CLAIM PETITION BY GRANTING THE RELIEF AS PRAYED FOR BY THE APPELLANTS.
IN MFA.NO.200510 OF 2019:
BETWEEN:
SHRIRAM GENERAL INSURANCE COMPANY LTD., S-5, 2ND FLOOR, MONARCH CHAMBERS, INFANTRY ROAD, BANGALORE-560001.
REPRESENTED BY ITS AUTHORIZED SIGNATORY, DIVISIONAL OFFICE, BANGALORE-560076.
…APPELLANT
(BY SMT. BHADRASHETTY SANGEETA, ADVOCATE)
AND:
1.
JAGADISH SHIPUR S/O DASHRATH SHIPUR, AGE:30 YEARS, OCC: UNEMPLOYED,
2.
HUCHAPPA SHIPUR S/O DASHRATH SHIPUR, AGE:34 YEARS, OCC: AGRICULTURIST,
3.
RENUKAMMA SHIPUR D/O DASHRATH SHIPUR, AGE:28 YEARS, OCC: NOW NOT KNOWN,
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4.
VENKAMMA SHIPUR D/O DASHRATH SHIPUR, AGE:26 YEARS, OCC: NOW NOT KNOWN, ALL RESPONDENTS 1-4 HEREIN, ARE R/O J.MALLAPUR, TQ. & DIST. RAICHUR-584134.
…RESPONDENTS
(BY SRI. SHARANAGOWDA V. PATIL, ADVOCATE FOR R1 TO R4;
SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R8;
V/O DATED 06.04.2023 NOTICE TO R6 IS DISPENSED WITH;
V/O DATED 28.02.2023 NOTICE TO R5 IS HELD SUFFICIENT;
R-7 IS SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF M.V. ACT, PRAYING TO A) CALL FOR THE RECORDS IN MVC.NO.69/2012 DATED 19.11.2018 BY THE II ADDL. DISTRICT AND SESSIONS JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, RAICHUR, B) ALLOW THIS APPEAL BY SETTING ASIDE THE IMPUGNED JUDGMENT AND AWARD IN MVC.NO.69/2012 DATED 19.11.2018 BY THE II ADDL. DISTRICT AND SESSIONS JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, RAICHUR.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CORAM: HON'BLE MR. JUSTICE K NATARAJAN AND HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE K NATARAJAN) The MFA.No.200849/2019 is filed by the claimants for enhancement of the compensation, whereas the MFA.No.200510/2019 is filed by the insurance company by challenging the liability as well as the quantum of compensation against the judgment and award passed by the II Additional District and Sessions Judge and MACT, Raichur, in MVC.No.69/2012 dated 19.11.2018. 02. Heard the learned counsel for both the parties. 03. The appellants in MFA.No.200849/2019 are treated as claimants and the appellant in MFA.No.200510/2019 is treated as respondent – insurance in these appeals. - 6 -
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04. The case of the claimants before the Tribunal is that they have filed the claim petition under Section 166 of the M.V. Act, claiming compensation of Rs.51,00,000/- for the death of their brother the deceased – Thirupati Shivpur, in a road traffic accident on 23.08.2011. 05. It is contended that the deceased - Virupaxi and the deceased – Thirupati Shivapur were proceeding on a motorcycle bearing Reg.No.KA-25-EB-5610 on 23.08.2011 from Desai Camp and the deceased - Thirupati was the rider of the motorcycle and was riding slowly and cautiously at about 09.00 p.m., when they reached near the Gali Durgamma Temple near the Manikera Camp, at that time the respondent No.1 being the driver of the Lorry bearing Reg.No.KA-36-6069 had parked the lorry in the middle of the road without any indicator, due to which the motorcycle dashed to the lorry and both the rider and the pillion rider sustained injuries and died on the spot. - 7 -
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06. The claimants taken contention that the deceased was the police constable and their brother. He is earning more than Rs.10,000/- salary per month. They are all dependents of the deceased – brother. Due to the untimely death, they have lost the dependency. This accident was occurred due to the rash and negligence on the part of the lorry driver who parked the lorry in the middle of the road. The respondent No.3 - insurance company is liable to pay compensation. Hence, they claimed the compensation. 07.
The respondents appeared and filed the objections denying the rash and negligent driving, age, income, occupation and dependency of the deceased. 08. The Tribunal framed 03 issues which are as under:- I. Whether petitioners prove that the accident dated 23.08.2011 was due to rash and negligence on the part of driver of lorry bearing Reg.No.KA-36/6069 resulting in the death of Thirupathi.? - 8 -
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II. Whether petitioners are entitled for award of compensation? If so, how much and from whom.? III. What order or award.? 09. Earlier the insurance company and the claimants have filed the appeals before this Court in MFA.No.33087/2013 and MFA.No.201710/2014. The Division Bench of this Court has remitted the matter back to the Tribunal for considering the quantum of compensation. However, Coordinate Bench of this Court up held the contributory negligence held by the Tribunal on Issue No.1 and the matter was remitted back. Once again, the Tribunal has passed the award by awarding the compensation at Rs.15,83,868/- which is as under:- Sl. No. Heads Compensation Awarded
1. Loss of dependency Rs.15,53,868/-
2. Transportation and funeral expenses Rs.15,000/-
3. Loss of Estate Rs.15,000/-
Total Rs.15,83,868/-
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10. Being aggrieved by the same, the claimants filed the appeal as well as the insurance company is also before this Court. 11. The learned counsel for the claimants has contended that though the Tribunal has considered the income of the deceased at Rs.10,156/- per month and added 50% of the salary as future prospects. But 50% deduction towards the personal expenditure is not correct, since there were 04 dependents in the family. All the brothers and sisters are unmarried. Therefore, deduction of 50% is not correct. Hence, prayed for deduct 1/3rd of the salary towards personal expenditures. Though, there is no ground urged in the appeal.
However, the learned counsel for the claimants orally argued that all the 04 claimants shall be considered as dependents of the deceased. It is also contended that the contributory negligence and fixing the liability on both deceased as well as on the owner of the lorry is not correct. Hence, prayed for allowing the appeal. - 10 -
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12. On the other hand, the learned counsel appearing for the respondent – insurance company though supported fixing of 50% liability, but contended that the claimants are only siblings and they were not considered as dependents as per the judgment of the Hon’ble Supreme Court in the case of The New India Assurance Company vs. Anand Pal in SLP (CIVIL) No.7805/202 D.D. 04.12.2023 and in the case of Sarla Verma (Smt.) and Others. v. Delhi Transport Corporation and Another reported in (2009) 6 SCC 121 and contented that the brothers and sisters cannot be considered as dependency. Therefore, they are entitled only for loss of estate and 50% deduction is correct. It is also contended that the fixing contributory negligence on the part of the rider of the motorcycle as well as on the driver / owner of lorry and 50% on the insurance company is already up held by Coordinate Bench of this Court in MFA.No.33087/2013 and MFA.No.201710/2014 and
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contended that the contributory negligence cannot be exonerated, which is already attained finality. It is also contended that the awarding interest at the rate of 8% p.a. shall be reduced to 6% p.a. Hence, prayed for allowing the appeal. 13. On the other hand, the learned counsel for the claimants has sought 18% p.a. instead of 8% p.a. fixed by the Tribunal. 14. Having heard the arguments and perused the records. The points that arise for our consideration are:- I. Whether the contributory negligence at 50% each fixed by the Tribunal call for any interference by this Court.? II.
Whether the quantum of compensation amount awarded by the Tribunal is just and fair and required for any enhancement by way of modification.? III. Whether rate of interest is required to be modified.? If so to what extent.? - 12 -
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15. Regarding the point No.1, the learned counsel for the claimants has contended that the Tribunal has committed error in fixing the contributory negligence at 50% each on both driver and rider of the motorcycle, which is not correct. On the other hand, the learned counsel for the respondent – insurance company has contended that this issue has been already dealt with by the earlier bench of this Court in MFA.No.33087/2013 and MFA.No.201710/2014. The judgment copy is also placed before this Court. We are verified the same, where at para No.11 of the judgment the Coordinate Bench of this Court has categorically held after considering the facts of the case, as under:-
“under these circumstances, the grounds taken by the appellant that fixing 50% liability on the insurance company of the two wheeler it is contrary to the facts cannot be accepted. Accordingly, said submission is rejected. The reasons have been assigned by the Tribunal for fixing 50% negligence on both the vehicles which are sound and proper and no grounds for interference, MFA.No.33087/2013 is rejected.”
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16. On reading of this findings of the earlier bench of this Court, where the contention of the insurance company was rejected and fixing the liability at 50% has been already up held by this Court, which findings has been also affected the claimants’ case as they are not challenged it, which attend the finality. Therefore, fixing the liability at 50% ratio cannot be interfered by this Court. The Tribunal rightly answered the issue No.1. Accordingly, we found no ground to interference in this regard. 17.
As regards to the computation of compensation, the claimants’ case is that claimant No.1 - Jagadish who is aged about 23 years, the claimant No.2 – Huchappa who is aged about 27 years, claimant No.3 – Renukamma who is aged about 21 years and younger sister and claimant No.4 – Venkamma who is aged about 19 years and both are unmarried sisters and claimant No.4 said to be student. They have also contended that the deceased was only earning member. However, on perusal of the age of
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the deceased and the age of the claimant No.2 – Huchappa, which reveals that the Huchappa is the elder brother of the deceased. That apart it is also seen from the records that the claimants have no parents. Therefore, normally the elder son of the family will takes burden maintaining the family. Of course, the deceased is also second son who was only with difference of one year age, both could have look after the family members. There is no contrary evidence on record to show the claimant No.1 - Jagadish also an earning member, but it is stated unemployed. The claimants No.3 and 4 are the unemployed and though they are majors that person are unmarried sisters and claimant No.4 also a student. The Tribunal though considered that the claimants No.3 and 4 are the dependents, however, we are of the opinion that in the absence of any rebuttal evidence for the respondent – insurance company, we also consider the Jagadish – claimant No.1 is non earning member of the deceased family. The claimant No.2 - Huchappa, who is the elder
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brother of the deceased cannot be considered as dependent, as his occupation was shown as agriculturist. Such being the case, the claimant No.2 cannot be considered as non earning member of the family of the deceased. 18. Now, coming to the arguments advanced by the
learned counsel for the appellants and the respondents, where the claimants can consider as dependents of the deceased. The
learned counsel for the claimants contended that the claimants are the dependents of the deceased – brother. For the purpose of computation of the compensation, the claimants should be considered as dependents of the deceased. In this regard, the learned counsel for the claimants referred the judgment of the Hon’ble Supreme Court in the case of The New India Assurance Company vs. Anand Pal in SLP (CIVIL) No.7805/202 D.D. 04.12.2023 and held at Para Nos.4 and 5 as under:-
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“4. In support of his contention, Mr. Kumar relies on Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121 wherein this Court held as under:
"31. Where the deceased was a bachelor and the different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father."
5. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents as because they will either be independent and earning, or married, or be dependent on the father.”
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19. A careful reading of paragraphs No.4 and 5 of the judgment of the Hon’ble Supreme Court in the case of Anand Pal (supra), where the Apex Court has relied upon the judgment of the Smt. Sarla Verma’s case and discussed at Para No.31 of the judgment.
Reading of the last three lines of the said judgment it clearly reveals that the Hon’ble Apex Court held that in the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or being dependent on the father. 20. We are of the considered opinion that this case on hand is not applicable to the above principle laid down in the said judgment of the Hon’ble Supreme Court, since in this case, both the mother and father had died long back. Only the claimant No.2 was a agriculturist and earning member of the family. The deceased subsequently secured the job and during his service, he was met with an accident and died. As we already held that the claimant No.1 is also unemployed, claimants No.3 and 4 are
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unmarried sisters and claimant No.2 is the agriculturist. Such being the case, this case is not on par with the
judgment of the Hon’ble Supreme Court in Anand Pal’s case, since the claimants No.1, 3 and 4 are not independent and they are not earning any income and they are totally depend upon the income of their brother – claimant No.2 and also the deceased. Therefore, in our view, claimants No.1, 3 and 4 are treated as dependent of the deceased-rider. The judgment relied by the learned counsel for the insurance company is not applicable to the case on hand. 21. Insofar as the computation of compensation, the Tribunal has considered the income of the deceased at Rs.10,156/-, after deducting the professional tax at Rs.150/- as per the salary certificate of the deceased. As already held above, the deceased is having a permanent job with fixed salary. Therefore, 50% of the salary should be considered as future prospects as additional income which is calculated as Rs.5,078/- + Rs.10,156/- it comes to Rs.15,234/-. - 19 -
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22. Insofar as deduction is concerned, learned counsel for the insurance company has contended that since the deceased was a bachelor, 50% should be deducted towards the personal and living expenses. But as per the judgment of the Hon’ble Supreme Court in the case of Smt. Sarla Verma’s, at para 15 which reads as under:
“15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelor, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because
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they will either be independent and earning, or married, or be dependant on the father.
Thus, even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.”
23. On reading of this judgment passed by the Hon’ble Apex Court, where the dependents are more and even though the deceased is a bachelor and mother is widowed, the deduction cannot be 50%, it should be 1/3rd. In this case, there are three dependents and the mother is not alive. Such being the case, definitely the deceased is having more responsibility of educating the sisters and he has to perform the marriage of both the sisters and also
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the unmarried brother. Such being the case, it cannot be considered that the deceased may spend 50% of his income towards the personal expenditure, he might have dedicated the total amount to his family for necessity and maintenance. Such being the case, the question of deducting 50% towards the personal and living expenses cannot be considered as per the facts and circumstances of the case. 24. The Tribunal considering the evidence on record has committed error in deducting 50% of the income towards personal expenditure. The learned counsel for appellants-claimants has rightly contended that 1/3rd shall be deducted as per the decision of the Hon’ble Supreme Court in the case of Smt. Sarla Verma’s referred supra. Therefore, if 1/3rd i.e., Rs.5,078/- is deducted from Rs.15,234/- it comes to Rs.10,156/-. This should be the income of the deceased. Loss of dependency: Rs.10,156 x 12 x 17 = Rs.20,71,824/-.
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25. The Tribunal though considered the case and awarded no amount towards the loss of consortium and loss of love and affection. Therefore, we are proposed to award Rs.25,000/- each to the claimants including the claimant No.2. Totally we propose to award Rs.1,00,000/- (Rs.25,000/- x 4) towards loss of love and affection. The Tribunal awarded Rs.30,000/- towards loss of estate and funeral expenses and the same is retained. Thus, the claimants are entitled for compensation as calculated under: Description Amount Loss of dependency Rs.20,71,824.00 Loss of love and affection Rs.1,00,000.00 Conventional head Rs.30,000.00 Total Rs.22,01,824.00 Rounded off to Rs.22,01,900.00 Award of the Tribunal Rs.7,91,900.00 Enhanced Compensation Rs.14,10,000.00
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26. Thus, the claimants in the claim petition are entitled to a total compensation of Rs.22,01,900/- as against Rs.7,91,900/- awarded by the Tribunal. Out of which as already held above 50% shall be deducted towards the contributory negligence on the part of the deceased which comes to Rs.11,00,950/-. 27. In pursuance to the interest on award, normally the Court used to award 6% per annum. The Tribunal has awarded 8% per annum and there is no reason assigned for awarding 8% per annum. Though, the learned counsel for claimants contended and requested to enhance the interest to 18% per annum, but we do not find any reason for enhancing the same. However, normally the Courts are required to grant 6% interest per annum as rightly contended by the learned counsel for the insurance company. 28. Accordingly, we proceed to pass the following:
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ORDER
(i) Both the appeals are allowed in part.
(ii) The claimants are entitled for compensation of Rs.11,00,950/- (half of Rs.22,01,900/-).
(iii) The claimants are entitled for 6% interest on the compensation amount from the date of petition till the date of realization.
(iv) The appellant-insurance company shall deposit the entire compensation amount with accrued interest before the Tribunal within a period of eight weeks from the date of receipt of certified copy of this judgment.
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(v) The amount in deposit, if any, shall be transmitted to the Tribunal along with trial Court records forthwith.
Sd/- (K NATARAJAN) JUDGE
Sd/- (VIJAYKUMAR A. PATIL) JUDGE KJJ/MCR List No.: 1 Sl No.: 39 CT:SI