- 1 - NC: 2025:KHC-K:1505-DB MFA No. 200840 of 2019 C/W MFA No. 202341 of 2018 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 7TH 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.200840 OF 2019 (MV-D) C/W MISC. FIRST APPEAL NO.202341 OF 2018 (MV-D) IN MFA NO.200840/2019: BETWEEN: 1. AMARAYYA S/O MARTAYYA, AGE: 47 YEARS, OCC: AGRIL. 2. SMT. SHANTAMMA W/O AMARAYYA, AGE: 42 YEARS OCC: HOUSEHOLD. BOTH ARE R/AT KYATANATTI VILLAGE, NOW AT MASKI VILLAGE TQ: LINGASUGUR, DIST. RAICHUR-584101. …APPELLANTS (BY SRI. SHARANAGOWDA V. PATIL, ADVOCATE) AND: 1. NIRUPADI S/O RAJAPPA, AGE: 31 YEARS, OCC: DRIVER, R/O UDBAL VILLAGE, TQ: SINDHANUR, DIST: RAICHUR-584128. Digitally signed by NIJAMUDDIN JAMKHANDI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1505-DB MFA No. 200840 of 2019 C/W MFA No. 202341 of 2018 2. NEELAKANTAPPA S/O SHIVALINGAPPA, AGE: 47 YEARS, OCC: AGRIL AND BUSINESS, R/O: UDBAL VILLAGE, TQ: SINDHANUR DIST. RAICHUR-584128. 3. THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LTD., MOULESHWAR CHOWK CIRCLE, SATH KACHERI ROAD, RAICHUR-584101. …RESPONDENTS (BY SMT. ANURADHA M. DESAI, ADVOCATE FOR R3; V/O DATED 05.07.2022 NOTICE TO R-1 IS DISPENSED WITH; NOTICE TO R-2 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF MV ACT, PRAYING TO ALLOW THIS APPEAL BY MODIFY THE JUDGMENT AND AWARD DATED: 01.08.2018, PASSED BY THE SENIOR CIVIL JUDGE AND JMFC AND MOTOR ACCIDENT CLAIMS TRIBUNAL, AT LINGASUGUR, IN MVC.NO.74/2017 AND ENHANCE THE AWARD COMPENSATION OF Rs.16,34,000/- IN MFA NO.202341 OF 2018: BETWEEN: THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LTD, MOULESHWAR CHOWK CIRCLE, SATH KACHERI ROAD, RAICHUR-584101. …APPELLANT (BY SMT. ANURADHA M. DESAI, ADVOCATE) AND: 1. NIRUPADI S/O RAJAPPA, AGE: 30 YEARS OCC: DRIVER, R/O UDBAL VILLAGE, TQ: SINDHANUR DIST: RAICHUR-584101. - 3 - NC: 2025:KHC-K:1505-DB MFA No. 200840 of 2019 C/W MFA No. 202341 of 2018 2. NEELAKANTAPPA S/O SHIVALINGAPPA, AGE: 46 YEARS OCC: AGRI & BUSINESS, R/O UDBAL VILLAGE TQ:SINDHANUR DIST: RAICHUR-584101. 3. AMARAYYA S/O MURTAYYA, AGE: 46 YEARS OCC: AGRI, R/O KYATANATTI VILLAGE NOW RESIDING AT MASKI VILLAGE, TQ:LINGASUGUR, DIST: RAICHUR-584101 4. SHANTAMMA W/O AMARAYYA, AGE: 41 YEARS OCC: HOUSEHOLD R/O KYATANATTI VILLAGE, NOW RESIDING AT MASKI VILLAGE, TQ: LINGASUGUR DIST: RAICHUR-584101 …RESPONDENTS (BY SRI. SHARANAGOWDA V. PATIL, ADVOCATE FOR R3 & R4; NOTICE TO R-1 AND R-2 ARE SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF MV ACT, PRAYING TO ALLOW THE ABOVE MISC. FIRST APPEAL AND CONSEQUENTLY BE PLEASED TO MODIFY THE JUDGMENT AND AWARD DATED 01.08.2018 PASSED BY THE COURT OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, LINGASUGUR IN MVC.NO.74/2017. THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - NC: 2025:KHC-K:1505-DB MFA No. 200840 of 2019 C/W MFA No. 202341 of 2018 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.200840/2019 is filed by the claimants for enhancement of compensation, whereas MFA.No.202341/2018 is filed by the insurance company by challenging the liability fixed on the insurance company, as against the judgment and award passed by the Senior Civil Judge and JMFC and MACT, Lingasugur in MVC.No.74/2017 dated 01.08.2018. 02. Heard the arguments of learned counsel for both the parties. 03. Both these appeals are arising out of same judgment. Hence, these appeals are taken up for passing the common judgment. 04. The case of the claimants before the Tribunal is that they have filed a claim petition under Section 166 of the M.V. Act, for claiming compensation for the death of the deceased – Santosh who died in the road traffic accident on 30.07.2016. - 5 - NC: 2025:KHC-K:1505-DB MFA No. 200840 of 2019 C/W MFA No. 202341 of 2018 05. It is alleged in the petition that on 30.07.2016 at 07.00 p.m. the deceased – Santosh along with the pillion rider – Devrayya @ Devaraj were proceeding on the motorcycle from their land to Maski. When they are proceedings near the Maligouda land, at that time, the Trally bearing Reg.No.KA-36-TB-2426 belongs to the respondent No.2 - owner was parked on the road without any signal or parking light in the dark night. Due to which, the rider of the motorcycle dashed to the Trally and sustained injury and later he succumbed to the injuries. 06. The claimants have contended that due to the parking of the vehicle by the respondent No.1 - driver on the middle of the road without any indicator or parking indicator, this accident was occurred. Therefore, the respondents No.1 and 2 are negligence for the accident and due which the death was caused. The deceased was aged about 23 years and he was student and also doing agricultural work and earning Rs.25,000/- per month. He used to contribute the entire earning to his parents. The parents of the deceased had suffered loss of dependency. Hence, they are claimed the compensation on the various heads. - 6 - NC: 2025:KHC-K:1505-DB MFA No. 200840 of 2019 C/W MFA No. 202341 of 2018 07. The respondents No.1 and 2 appeared through counsel and filed their written objections. It is contended by the respondents No.1 and 2 that due to rash and negligent riding of the rider, the deceased has sustained the injuries and died. The pillion rider himself filed the complaint stating that it was negligence on the part of the rider. The respondents No.1 and 2 denied the age, income and occupation of the deceased. They further contended that if any liability arises, the same shall be fixed on the respondent No.3 – insurance company. They prayed for dismissal of the petition. 08. The respondent No.3 – insurance company also filed the written statement by denying the rash and negligent on the part of the driver of the Trally. It is taken a contention that the accident was occurred purely due to rash and negligent riding of the deceased and the charge- sheet was also filed against him. Therefore, now the liability is fixed on the insurance company is not correct. The insurance company also denied the age, income and occupation of the deceased. The insurance company contended that the compensation claimed is highly exorbitant. Hence, prayed for dismissal of the petition. - 7 - NC: 2025:KHC-K:1505-DB MFA No. 200840 of 2019 C/W MFA No. 202341 of 2018 09. Based upon the above pleadings, the Tribunal has framed the following issues:- I. Whether the petitioner proves that Santhosh has succumbed to grievous injuries when he was proceeding in his motor cycle and hit the trailer bearing its Reg. No.KA-36/TB-2426 due to actionable negligent act on respondent No.1 who parked his trailer on Maski - Balaganur road without following rules and caused road traffic accident on 30-07-2016 at 7.20 PM? II. Whether the respondent No.2 proves that there was a contributory negligence on the part of both vehicles involved in the accident dated 30-07-2016? III. Whether the petition is bad for non joinder of necessary parties? IV. Whether the petitioners are entitled for compensation claimed? If so, what quantum? V. What orders or award?” - 8 - NC: 2025:KHC-K:1505-DB MFA No. 200840 of 2019 C/W MFA No. 202341 of 2018 10. On behalf of the claimants, the claimant No.1 examined as PW.1 and got marked Ex.P.1 to 11 documents. On behalf of the respondents No.1 and 2 they have not examined any witnesses. On behalf of the respondent No.3 – insurance company, RW.1 examined and two documents marked as Ex.R.1 and 2. 11. After hearing the arguments, the Tribunal answered the issue No.1 in the affirmative, issues No.2 and 3 in the negative and issue No.4 partly in the affirmative. The Tribunal has partly allowed the claim petition, by awarding the compensation at Rs.13,66,000/- with interest at the rate of 9% p.a. and fixed the entire liability on the respondent No.3 – insurance company. 12. Feeling aggrieved by the same, the respondent No.3 – insurance company filed MFA.No.202341/2018, whereas the claimants have filed appeal in MFA.No.200840/2019 for enhancement of the compensation. - 9 - NC: 2025:KHC-K:1505-DB MFA No. 200840 of 2019 C/W MFA No. 202341 of 2018 13. The learned counsel for the claimants contended that though the Tribunal has considered the factum of accident and held against the respondents No.1 and 2 and liability is fixed on the respondent No.3 – insurance company, but while calculating the income of the deceased, the Tribunal has considered the income of the deceased at Rs.9,000/- per month, but the future prospects of 40% is not considered. Therefore, prayed for enhancement of compensation. 14. Per contra, the learned counsel for the respondent No.3 – insurance company disputed the liability fixed on it, only on the ground that the FIR itself is filed against the deceased who is in rash and negligent riding the motorcycle, as per the complaint filed by very pillion rider of the motorcycle. The claimants are not examined the pillion rider before the Tribunal for impeaching the evidence. It is also contended that the Tribunal without proper appreciation of the evidence on - 10 - NC: 2025:KHC-K:1505-DB MFA No. 200840 of 2019 C/W MFA No. 202341 of 2018 record wrongly fixed the liability on the insurance company, even though the charge-sheet has not been filed against the Trally driver in respect of offences punishable under Sections 279 or 304 (A) of IPC, expect offence punishable under Section 283 of IPC for obstructing the road. Therefore, fixing of the liability exclusively on the insurance company is not correct. Therefore, it is contended that the liability shall be exonerate, as there is no rash and negligent on the part of the driver of the Trally. However, it is also admitted that there is charge- sheet filed only for the offence punishable under Section 283 of IPC. Therefore, at least 50% should be considered as contributory negligence on the part of the respondents No.1 and 2. Hence, prayed for allowing its appeal and dismissing the appeal filed by the claimants. - 11 - NC: 2025:KHC-K:1505-DB MFA No. 200840 of 2019 C/W MFA No. 202341 of 2018 15. Having heard the arguments and perused the records, the points that arise for our consideration are that: i) Whether the petitioner proves that the accident occurred on 30.07.2016 is solely due to the obstruction on the road by trally belongs to respondent No.2 in the middle of the road without any indicator, due to which the deceased-rider met with an accident and died? ii) Whether the appellant – Insurance Company proves that the accident was occurred purely due to rash and negligent riding of the motorcycle by the deceased- rider? iii) Whether the judgment and award passed by the Tribunal requires interference? iv) Whether the compensation awarded by the Tribunal is just and proper and required enhancement? - 12 - NC: 2025:KHC-K:1505-DB MFA No. 200840 of 2019 C/W MFA No. 202341 of 2018 16. We have perused the records. The accident dated 30.07.2016 and the death of the rider of the motorcycle is not in dispute. The Ex.P1 is the certified copy of the FIR, Ex.P2 is the certified copy of the complaint, Ex.P3 is the certified copy of the inquest panchanama, Ex.P4 is the certified copy of spot panchanama, Ex.P5 is the sketch map, Ex.P8 is Post Mortem report and Ex.P9 is the copy of the charge sheet. On perusal of the complaint, it is clearly held by the pillion rider of the motorcycle stating that himself and rider- Santosh were proceeding on the road and due to the rash and negligent riding of Santosh and also a trally was parked on the road without indicator, the deceased dashed to the parked vehicle belonging to respondents No.1 and 2 and died. 17. The police after the detailed investigation and considering the spot inspection and IMV report, had filed the charge sheet as per Ex.P9, where it is held by the Investigating Officer that this accident was occurred due to the rash and negligent driving of the rider of the - 13 - NC: 2025:KHC-K:1505-DB MFA No. 200840 of 2019 C/W MFA No. 202341 of 2018 motorcycle who also did not possess any valid driving license. Hence, charge sheet was filed for the offences punishable under Section 279 of IPC for rash and negligent driving and Section 304(A) of IPC for being negligent death by himself to the accident and Section 337 of IPC for causing injury to the pillion rider also and Section 181 of Motor Vehicles Act for not holding the valid driving license. Whereas the charge sheet against respondent No.2 is filed for obstructing the public way and due to which causing any accident and injury to others. On perusal of the same, the police have filed charge sheet against both the rider of the motorcycle as well as the owner and driver of the trally vehicle which was parked on the middle of the road. 18. It is evident from the records and facts of the case under the panchanama, sketch and IMV report that, if the vehicle of respondents No.1 and 2 was not parked on the middle of the road or if it is parked with proper indicator, the accident might have avoided by the deceased and could not occurred. - 14 - NC: 2025:KHC-K:1505-DB MFA No. 200840 of 2019 C/W MFA No. 202341 of 2018 19. That apart, the deceased also in rash and negligent riding at 07.00 p.m. who did not possess license and rode the vehicle in high speed and dashed to the trally vehicle, reveals that both rider of the motorcycle as well as the trally owner and driver of the trally have also contributed negligence for the accident. 20. Apart from that, the claimants have not examined the independent eyewitnesses. But the Insurance Company was not examined any third party eyewitnesses or conducted any separate investigation to show, that this accident is purely due to the rash and negligent driving of the rider of the motorcycle. Therefore, we are of the view that the accident was occurred due to the contributory negligence of both rider of the motorcycle as well as respondents No.1 and 2 who parked the vehicle on road without any proper indicator nor taking any precautionary measure. - 15 - NC: 2025:KHC-K:1505-DB MFA No. 200840 of 2019 C/W MFA No. 202341 of 2018 21. As regard to the ratio and negligence, the motorcycle is a small vehicle and the trally was parked on the middle of the road. Therefore, we propose to take 30% of contributory negligence on the rider of the motorcycle and 70% on respondents No.1 and 2 who parked the vehicle on the road without any indicator. Though, the learned counsel for the respondents No.1 and 2 contended that at least 50% of contributory negligence should be considered towards the rider of the motorcycle, but looking into the facts and circumstances, we are of the opinion that 30% shall be fixed on the rider of the motorcycle and 70% on the respondents No.1 and 2 as contributory negligence. 22. The Tribunal without considering the document and without any independent evidence for the witnesses has come to the conclusion, by fixing entire liability on respondents No.1 and 2 by exonerating the charges against the deceased rider which is not correct. Therefore, the part of the findings of issue No.1 of the Tribunal is required to be modified and hence, we answer point No.1 - 16 - NC: 2025:KHC-K:1505-DB MFA No. 200840 of 2019 C/W MFA No. 202341 of 2018 in partly affirmative and the contributory negligence on the part of rider of the motorcycle is at 30% and owner of the vehicle is at 70%. Hence, we answer point Nos.2 and 3 in the partly affirmatively. 23. As regards the computation of the compensation, the Tribunal has considered the monthly income of the deceased at Rs.9,000/-, who is a student, B. Com graduate and could have bright future. The Insurance Company has not disputed seriously in respect of the income taken by the Tribunal. Therefore, we propose to consider Rs.9,000/- as income of the deceased. However, the Tribunal committed an error by not considering 40% of the future prospectus as per the judgment of the Hon’ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others1. Hence, we propose to take 40% as future prospectus and the compensation under the head of loss of dependency is calculated as under: 1 (2017) 16 SCC 680 - 17 - NC: 2025:KHC-K:1505-DB MFA No. 200840 of 2019 C/W MFA No. 202341 of 2018 Computation of loss of dependency Description Amount Income Rs.9,000.00 Addition to such income at the rate 40% towards future prospects Rs.3,600.00 Monthly Income with the addition towards future prospects Rs.12,600.00 Deduction of 50% towards personal expenses Rs.6,300.00 Monthly income with addition of future prospects and deduction towards personal expenses Rs.6,300.00 Therefore, Annual Income Rs.75,600.00 Multiplier 18 Loss of Dependency Rs.13,60,800.00 24. Thus the loss of dependency comes to Rs.13,60,800/- and we propose to award Rs.80,000/- towards loss of consortium and Rs.30,000/- towards conventional head. Thus, the compensation is re-assessed as under: Description Amount Loss of dependency Rs.13,60,800.00 Loss of consortium Rs.80,000.00 Conventional head Rs.30,000.00 Total Rs.14,70,800.00 Award of the Tribunal Rs.13,66,000.00 Enhanced Compensation Rs.1,04,800.00 - 18 - NC: 2025:KHC-K:1505-DB MFA No. 200840 of 2019 C/W MFA No. 202341 of 2018 25. However, in view of the 30% liability is fixed on the rider, if 30% of Rs.14,70,800/- is calculated Rs.4,41,240/- would be the contributory negligence towards the liability of the deceased and 70% comes to Rs.10,29,560/- which should be the actual compensation entitled by the claimants. 26. Accordingly, we proceed to pass the following: ORDER (i) Both the appeals filed by the claimants and the Insurance Company are allowed in part. (ii) The judgment and award dated 01.08.2018 passed in MVC.No.74/2017 by the Senior Civil Judge and JMFC and MACT, Lingasugur is modified. - 19 - NC: 2025:KHC-K:1505-DB MFA No. 200840 of 2019 C/W MFA No. 202341 of 2018 (iii) The claimants are entitled for compensation of Rs.10,29,560/- as against Rs.13,66,000/- awarded by the Tribunal which shall carry interest at the rate of 6% per annum from the date of petition till the date of realization. (iv) The apportionment made by the Tribunal is unaltered. The amount in deposit shall be transmitted to the concerned Tribunal along with Trial Court records forthwith. Sd/- (K NATARAJAN) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE KJJ,MCR List No.: 1 Sl No.: 13 CT:SI