MFA NO.1342 of 2023 - 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02nd DAY OF MAY, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA MISCELLANEOUS FIRST APPEAL NO.1342 OF 2023 BETWEEN: 1. ABDUL KAREEM @ KAREEM S/O ABU BYARY AGED 52 YEARS 2. SMT. FATHIMA ZOHARA W/O ABDUL KAREEM @ KAREEM AGED 47 YEARS 3. MOHAMMED AZMAN S/O ABDUL KAREEM @ KAREEM AGED 20 YEARS 4. MOHAMMED RAMIZ S/O ABDUL KAREEM @ KAREEM AGED 17 YEARS 5. MOHAMMED RAZI S/O ABDUL KAREEM @ KAREEM AGED 14 YEARS APPELLANTS NO.4 AND 5 ARE MINORS AND HENCE REPRESENTED THROUGH IS NATURAL GUARDIAN FATHER, THE APPELLANT NO.1 HEREIN ALL ARE R/O D.NO.2-79/1 RAMANAGARA, KALLADKA POST GOLTHAMAJALU, BANTAWAL TALUK PRESENTLY R/AT FLAT NO.1, J.M. ROAD, BUNDER MANGALURU …APPELLANTS (BY SRI. G.R. PRASAD B.R. ADVOCATE) MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.05.06 14:39:10 +0530 MFA NO.1342 of 2023 - 2 - AND: 1. NEW INDIA ASSURANCE COMPANY LIMITED JEEVAN SEVA BUILDING 2ND FLOOR, S.V. ROAD, SANTACRUZ WEST MUMBAI LOCAL OFFICE: 4TH FLOOR, FORTUNE BUILDING OPP. TO ATHENA HOSPITAL, FALNIR MANGALURU 575 001 REPRESENTED BY ITS MANAGER 2. MR. B. MONAPPA NAIK S/O B.SUBBA NAIK AGED ABOUT 54 YEARS R/O DOOR NO.1-34 BARANIKERE HOUSE, MINI POST BANTWAL - 574 325 …RESPONDENTS (BY SRI. VENKATESH KAMATH, ADVOCATE FOR R1; R2 SERVED, UNREPRESENTED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 26.04.2022 PASSED IN MVC NO.982 OF 2020 ON THE FILE OF THE III ADDITIONAL DISTRICT & SESSIONS JUDGE, MACT-IV, DAKSHINA KANNADS, MANGALURU. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 15.04.2025, COMING ON FOR “PRONOUNCEMENT OF ORDERS” THIS DAY, THE COURT DELIVERED THE FOLLOWING: CAV JUDGMENT (PER: HON'BLE MR. JUSTICE G BASAVARAJA) Appellant-claimant has preferred this appeal against the judgment and award dated 26th April 2022 passed in MVC No.982 of 2020 by the III Additional District & Sessions Judge, Motor Accident Claims Tribunal-IV, Dakshina Kannada, MFA NO.1342 of 2023 - 3 - Mangaluru (for short hereinafter referred to as “the Tribunal”) questioning the saddling of 50% contributory negligence on behalf of the deceased and also seeking enhancement in compensation. 2. The brief facts leading to this appeal are that the petitioner/claimants have filed claim petition seeking compensation for the death of Mohammed Ajmal in the road traffic accident. It is the case of petitioners that on 14th January 2020, when Mohammed Ajmal was travelling on his Honda Matrix Scooter bearing registration number KA-19/EG- 9826 on Mani – Mysore National Highway and at 6.50 pm, while passing near Mani village of Bantwal Taluk, the motorcycle bearing registration number KA-19/EC-8175 was coming from opposite direction being ridden by its rider in a rash and negligent manner. It is stated that a dog suddenly came on the road and in order to avoid hitting to the dog, the rider of the offending motorcycle came to the wrong side and hit to the motorcycle of Mohammad Ajmal, resulting in Mohammed Ajmal sustaining grievous injuries. Immediately, he was shifted to Highland Hospital, Mangalore, wherein he was declared as dead. It is stated in the claim petition that the deceased was 19 years as on the date of accident and was earning MFA NO.1342 of 2023 - 4 - Rs.15,000/- per month. It is stated that petitioners 1 & 2 are the parents and petitioners 3 to 5 are siblings of Mohammad Ajmal and all were dependent on him. It is also stated that the family has lost the earning member and hence claimed compensation from the insured and insurer of the offending vehicle. 3. In furtherance of issuance of summons, respondent No.1 did not appear and was placed ex-parte. Respondent No.2 appeared through counsel and filed objection statement contending that the accident in question was due to negligence on the part of the rider of the deceased. There was no negligence on the part of the rider of the offending motorcycle by the respondent No.2, and therefore respondent No.2 is not liable to pay compensation. It is further stated that the rider of the offending motorcycle was not having the driving license at the time of accident, and therefore, the insured of the motorcycle-respondent No.2 has committed breach of policy conditions. On all these grounds, respondent No.2 sought to reject the claim petition. 4. Based on the pleadings, the Tribunal framed issues. To prove the case, father of the deceased has been examined as PW1 and another witness has been examined as PW2 and MFA NO.1342 of 2023 - 5 - got marked eight documents as per Exhibits P1 to P8. On behalf of respondents, respondent No.2 has examined the Divisional Manager as RW1 and another witness as RW2 and marked eleven documents as per Exhibits R1 to R11. 5. Having heard the arguments on both sides, the Tribunal has partly allowed the claim petition with respect to petitioners 2 to 5 and rejected the claim petition in respect of petitioner No.1. The Tribunal awarded the compensation of Rs.12,53,400/- along with interest at 6% per annum from the date of petition till realisation. The Tribunal observed that the deceased had also contributed to the accident in an extent of 50% and hence saddled contributory of negligence on the deceased and rider of the offending motorcycle in the ratio of 50:50. Being aggrieved by saddling of contributory negligence on the part of the deceased, the claimants have preferred this appeal, so also, seeking enhancement in the compensation. 6. Siri Guruprasad B.R., learned Counsel appearing for the appellant/claimants submitted that the award passed by the Tribunal is on the lower side, and the same is passed without considering the materials produced by the claimants. The deceased was aged 19 years and was working under his father in his hotel and getting salary of Rs.15,000/- per month. MFA NO.1342 of 2023 - 6 - However, the Tribunal has considered the income of the deceased at Rs.14,000/- per month, which is on the lower side. It is further contended that it was a specific contention of the claimants before the Tribunal that the deceased was riding his scooter in a slow and careful manner, however, the accident occurred due to rash and negligent riding of motorcycle by the Rider of the offending motorcycle. Hence, the saddling of 50% contributory negligence on the part of the deceased is bad and contrary to materials available on record, and the same is able to be set aside. On all these grounds, he sought to allow the appeal by enhancing the compensation. 7. On the other hand, Sri Venkatesh Kamath, learned Council appearing for the Respondent No.1-insurance Company submitted that the Tribunal has considered the materials placed before it in its proper perspective and has awarded the just compensation. It is also contended that the Tribunal was justified in saddling contributory negligence in an extent of 50% on the deceased on the basis of the evidence on record and he submitted that there is no ground for interference in this appeal and accordingly sought for dismissal of the appeal. 8. Having heard the arguments and perusal of records the following points would arise for my consideration: MFA NO.1342 of 2023 - 7 - 1. Whether appellants have made out a ground to interfere with the impugned judgment and award passed by the tribunal? 2. What order? 9. My answer to the above points would be as under: Point No.1: In the negative; Point No.2: As per final order Regarding Point No.1: 10. I have gone through the impugned judgment and award and also perused the records. The accident is not in dispute and the death of Mohammed Ajmal, rider of the motorcycle is also not in dispute. It has also come in the evidence that the rider of the offending motorcycle also sustained grievous injuries and later he too succumbed to the injuries sustained in the accident. 11. The claimants have contended that the deceased was aged nineteen years and was earning Rs.15,000/- per month and was aged nineteen years as on the date of accident. In this regard, the Tribunal has observed that the claimants have not produced any document to show that the as on the date of accident the deceased was aged nineteen years. The MFA NO.1342 of 2023 - 8 - claimants, except contending that the deceased was assisting his father in hotel business, have not produced any documentary evidence to show the income of the deceased. In that view of the matter, the Tribunal has taken the notional income of the deceased at Rs.14,000/- per month. In cases where the income of the deceased is not proved, this court takes the notional income as per the charge prepared by the Karnataka Legal Services Authority, commensurate with the year of accident. In the case on hand, the accident took place on 14th January, 2020. As per the chart prepared by the Legal Services Authority, the notional income is at Rs.13,750/- per month, where as the Tribunal has taken it at Rs.14,000/- per month. As per Exhibit P5 which is the post-mortem report, the age of the deceased is shown as 20 years and accordingly, following the judgment of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in (2009)6 SCC 121, the appropriate multiplier would be 18 and the same is taken by the Tribunal and awarded the compensation of Rs.21,16,800/- towards loss of dependency. The Tribunal has held that appellant No.1 is not dependent and dismissed the claim petition as against appellant No.1 and has awarded compensation towards loss of consortium appellants 2 to 5 each at Rs.40,000/- each which comes to Rs.1,60,000/- and MFA NO.1342 of 2023 - 9 - further awarded Rs.15,000/- towards loss estate and towards funeral expenses. Hence, the total compensation to which the claimants are entitled would be Rs.23,06,800/- against the compensation of Rs.25,06,800/- awarded by the Tribunal. 12. As regards the negligence on the part of the riders of motorcycle is concerned, after thorough investigation, the Investigating Officer has submitted charge sheet against riders of both motorcycles. The appellants have not placed any material to discard the charge-sheet submitted by the Investigating Officer. The Tribunal has observed as to the sketch of the accident prepared by the investigating officer which shows that accident occurred on the middle of the road and thus, believing the records, it was held that both the riders of the motorcyles have contributed equally to the accident and accordingly saddled contributory negligence on both the riders of the motorcycle in the ratio of 50:50. Under such circumstance, I do not find any ground to interfere with the conclusion arrived at by the Tribunal and the same cannot be found fault with. Moreover, Respondent-Insurance Company has not preferred appeal against the impugned judgment and award of the Tribunal. Accordingly, I answer point No.1 in the negative. MFA NO.1342 of 2023 - 10 - Regarding Point No.2: 13. In the result, I proceed to pass the following: O R D E R (i) Appeal is dismissed. (ii) Judgment and award dated 26th April 2022 passed in MVC No.982 of 2020 by the III Additional District & Sessions Judge, Motor Accident Claims Tribunal-IV, Dakshina Kannada, Mangaluru, is confirmed. Sd/- (G BASAVARAJA) JUDGE lnn