- 1 - NC: 2025:KHC:12779 MFA No. 2627 of 2015 C/W MFA.CROB No. 34 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 2627 OF 2015 (MV-D) C/W MFA CROSS OBJECTION NO. 34 OF 2017 (MV-D) IN MFA No. 2627/2015 BETWEEN: LEGAL MANAGER ICICI LOMBARD GIC LTD., MYTHRI ARCADE, 1ST MAIN, SARASWATHIPURAM, MYSORE NOW REP. BY ITS LEGAL MANAGER, ICICI LOMBARD GIC LTD., #69, II FLOOR, SVR COMPLEX, 2ND FLOOR, HOSUR ROAD, BANGALORE-68. …APPELLANT (BY SRI. PRADEEP B., ADVOCATE) AND: 1. SMT. SHOBHA W/O LATE SHIVARAJU, NOW AGED ABOUT 32 YEARS, 2. M.S.MAHENDRA S/O LATE SHIVARAJU, NOW AGED ABOUT 9 YEARS, RESPONDENT NO.2 IS SINCE Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:12779 MFA No. 2627 of 2015 C/W MFA.CROB No. 34 of 2017 MINOR, REP BY HIS NATURAL GUARDIAN MOTHER R/AT MACHAGOWDANAHALLY VILLAGE, BASARALU HOBLI, MANDYA TALUK-571 401 3. MOTEGOWDA @ NINGEGOWDA S/O KARIGOWDA, NOW AGED ABOUT 75 YEARS, SINCE DEAD HIS LR’S 3A. KENGEGOWDA S/O LATE MOTEGOWDA AGED ABOUT 68 YEARS 3B. M.SHIVANNA S/O LATE MOTEGOWDA AGED ABOUT 64 YEARS BOTH ARE RESIDING AT 3897/1, SARITHA SADANA, 3RD CROSS, SHANKARA NAGAR MANDYA-571 401 3C. CHIKKABOREGOWDA S/O LATE MOTEGOWDA AGED ABOUT 69 YEARS 3D. KRISHNEGOWDA S/O LATE MOTEGOWDA AGED ABOUT 45 YEARS BOTH ARE R/AT MACHAGOWDANAHALLY VILLAGE BASARALU HOBLI MANDYA TAKUK AND DISTRICT-571 401 4. SMT.K.C.TANUJA W/O A.S.DEVARAJU, R/O NO.128, ANASOSALU VILLAGE, BASARALU HOBLI, MANDYA TALUK-571 401 …RESPONDENTS (BY SMT. ARCHANA MURTHY, ADVOCATE FOR R4 SRI.P.NATARAJU, ADVOCATE FOR R1, R2 & R3 (A) TO R3(D)) - 3 - NC: 2025:KHC:12779 MFA No. 2627 of 2015 C/W MFA.CROB No. 34 of 2017 THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:17.01.2015 PASSED IN MVC NO.293/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, MACT, MANDYA, AWARDING COMPENSATION OF RS.14,50,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT. IN MFA.CROB NO. 34/2017 BETWEEN: 1. SMT SHOBHA AGED ABOUT 34 YEARS, W/O LATE SHIVARAJU, 2. M.S.MAHENDRA AGED ABOUT 11 YEARS, S/O LATE SHIVARAJU, CROSS OBJECTOR NO.2 IS MINOR, REPRESENTED BY HIS NATURAL GUARDIAN MOTHER CROSS OBJECTOR SMT. SHOBHA, CROSS OBJECTOR NO.1 AND 2 ARE R/AT MACHEGOWDANAHALLY VILLAGE, BASARALU HOBLI, MANDYA TALUK AND DISTRICT-571 401 3. MOTEGOWDA & NINGEGOWDA SINCE DEAD BY LR’S 3A. KENGEGOWDA S/O LATE MOTEGOWDA AGED ABOUT 68 YEARS 3B. M.SHIVANNA S/O LATE MOTEGOWDA AGED ABOUT 64 YEARS 3C. CHIKKABOREGOWEDA AGED ABOUT 56 YEARS, S/O LATE MOTEGOWDA, 3D. KRISHNEGOWDA AGED ABOUT 50 YEARS, - 4 - NC: 2025:KHC:12779 MFA No. 2627 of 2015 C/W MFA.CROB No. 34 of 2017 S/O LATE MOTEGOWDA, CROSS OBJECTORS NO.3 (A), 3(C), AND 3(D) ARE R/AT MACHAGOWDANAHALLY VILLAGE BASARALU HOBLI MANDYA TALUK AND DISTRICT-571 401 ...CROS OBJECTORS (BY SRI. P.NATARAJU, ADVOCATE) AND: 1. SMT.K.C.THANUJA W/O A.S.DEVARAJU, R/O NO.128, ANASOSALU VILLAGE, BASARALU HOBLI, MANDYA TALUK-571 401 2. ICICI LOMBARD MOTOR INSURANCE CO. LTD., MYTHRI ARCADE, 1ST MAIN, SARASWATHIPURAM, MYSURU. NOW REPRESENTED BY ITS THE LEGAL MANAGER, ICICI LOMBARD GIC LTD., NO.69, 2ND FLOOR, SVR COMPLEX, HOSUR ROAD, BENGALURU-560 068 ...RESPONDENTS (BY SRI. A M VENKATESH, ADVOCATEFOR R2 R1- SERVED) THIS MFA CROB IN MFA NO.2627/2015 PASSED U/O 41 RULE WW OF CPC., AGAINST THE JUDGMENT AND AWARD DATED 17.01.2015 PASSED ON MVC NO. 293/2010 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN) AND MACT MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THESE APPEAL AND MFA CROB, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI - 5 - NC: 2025:KHC:12779 MFA No. 2627 of 2015 C/W MFA.CROB No. 34 of 2017 ORAL JUDGMENT Aggrieved by the order passed in MVC.No.293/2010 dated 17.01.2015 by the Principal Senior Civil Judge and MACT, Mandya, both insurance company as well as the claimants are before this Court. The insurance company has filed MFA.No.2627/2015 and the claimants have filed their cross objections in MFA.Crob.No.34/2017. 2. The facts of the case are that the claim petition was filed seeking compensation of an amount of Rs.24,20,000/- for the death of the deceased in the road accident that took place on 03.11.2009. It is the case of the claimants that the deceased had taken contract from Manmul for supply of milk from different milk producers co- operative societies and he was supplying the milk by driving the goods canter personally. It is the case of claimants that the society had called for a tender, the deceased had participated in the tender and he was earning an amount of Rs.75,000/- per month. It is their case that while the deceased was driving the vehicle on 03.11.2009 at about 9.30 pm., near Mandavya College in front of Roja Tea stall by the side of Mysore-Bangalore road, one lorry being - 6 - NC: 2025:KHC:12779 MFA No. 2627 of 2015 C/W MFA.CROB No. 34 of 2017 parked in the middle of the road by its driver without any kind of signal, as a result the canter dashed against the back portion of the lorry and the deceased had sustained injuries. Immediately, he was shifted to the hospital, but inspite of treatment, he died in the hospital at 10.50 pm. It is the case of the insurance company that it is because of the negligence on the part of the deceased, the accident had happened and the driver has switched on the parking lights and as such the insurance company is not liable to pay the compensation. The other ground that is taken is with regard to the driving licence of the deceased, it is their case that the deceased was not having the driving license to drive the vehicle. Even on that count also, the insurance company is not liable to pay the compensation. Then coming to the compensation, the Tribunal had considered the income at an amount of Rs.10,000/- per month. The claimants have relied on Ex.P.8, 10, 11 to 14 to 28, 31 to 35. As per Ex.P.35 their details with regard to the payments made for every 15 days and as per that the amount is varying from month to month and the least is being paid is Rs.36,697/-. The Tribunal had considered the income at an amount of - 7 - NC: 2025:KHC:12779 MFA No. 2627 of 2015 C/W MFA.CROB No. 34 of 2017 Rs.10,000/- per month and for coming to such conclusion, the Tribunal had observed that upon going through Ex.P.35 and Ex.P.8 that is passbook of Mandya District Co-operative Bank, which shows that the amount mentioned in both the documents are not exactly tallying with each other. When the person who has given evidence as PW3 was not present at the time of issuing Ex.P.11 to Ex.P.29 and when his evidence shows that he is not the author of the said document, then whatever the oral and documentary evidence adduced and produced by him cannot be accepted. Accordingly, the said evidence was discarded and the Tribunal had taken the income at Rs.10,000/- per month. 3. Basing on the evidence, the Tribunal had granted the compensation as per the table given below: Heads Compensation Awarded 1. Loss of dependency : Rs. 13,60,000/- 2. Towards transportation and funeral and 11th day ceremony expenses : Rs. 20,000/- 3. Towards loss of consortium : Rs. 25,000/- 4. Towards loss of love and affection and also protection : Rs. 20,000/- - 8 - NC: 2025:KHC:12779 MFA No. 2627 of 2015 C/W MFA.CROB No. 34 of 2017 5. Towards loss of estate : Rs. 25,000/- TOTAL : Rs. 14,50,000/- 4. Altogether the Tribunal had granted compensation of an amount of Rs.14,50,000/-. Aggrieved thereby seeking enhancement of the compensation, the claimants are before this Court and the insurance company is before this Court on negligence, liability as well as on the quantum of compensation. 5. Learned counsel appearing for appellant/ insurance company submits that the deceased was at fault and because of his negligence the accident occurred. He was not having a valid driving licence. It is submitted that the Tribunal had taken the income at Rs.10,000/- per month which is on the higher side without there being relevant material before the Tribunal. 6. Learned counsel appearing for the respondents/ claimants submits that when he had participated in the tender process and he being a successful bidder, when the contract is awarded to him and as per the contract when is transporting the milk and when the evidence clearly shows - 9 - NC: 2025:KHC:12779 MFA No. 2627 of 2015 C/W MFA.CROB No. 34 of 2017 that the amounts that have been paid to him, the Tribunal on the ground that PW3 has stated that he was not present at the time when these documents Ex.P.35 was issued, cannot be a ground for the Tribunal to discard the evidence placed by the claimants to show that the deceased was earning an amount of Rs.75,000/- per month. It is submitted that the said finding of the Tribunal is contrary to the evidence on record. It is further submitted that the police records clearly shows that the vehicle was parked at the night time on the middle of the road without switching on the parking lights. There is a clear negligence in the part of the driver of the parked vehicle. The Tribunal had rightly held that there is negligence and the owner and the insurer of the said vehicle are jointly and severally liable to pay the compensation and there is no question of contributory negligence on the part of the driver of the parked vehicle. 7. Having heard the learned counsels on either side, perused the material on record. The first contention is with regard to the contributory negligence. All the material placed on record clearly shows that the vehicle was parked in the middle of the road without switching on the parking - 10 - NC: 2025:KHC:12779 MFA No. 2627 of 2015 C/W MFA.CROB No. 34 of 2017 lights. It is the case of the insurance company that the parking lights were switched on and the other evidence on record shows that the parking lights were not switched on. In support of their contention, they have not examined any person or any witness and no evidence is adduced. In that case, the question of contributory negligence will not arise and the vehicle was parked on the road at 9.30 pm., it is a pure negligence on the part of the driver of the parked vehicle and as the same is insured by the insurance company, the insurance company is liable to pay the compensation. The next issue is with regard to the quantum of compensation and the other contention raised is about the driving licence. Coming to the quantum of compensation, this Court had perused the documents and the deceased was transporting the milk after initiating the tender process and he has been paid the amount. In those circumstances, the Tribunal had placed reliance on evidence of PW3 more than the exhibits and considered the income at an amount of Rs.10,000/- per month. In that view of the matter, this Court deems it appropriate to remand the matter back to the Tribunal by giving an opportunity to the - 11 - NC: 2025:KHC:12779 MFA No. 2627 of 2015 C/W MFA.CROB No. 34 of 2017 claimants as well as the insurance company to adduce further evidence as far as the income of the deceased is concerned and also with regard to the deceased was not having valid driving license and that aspect is also open for the insurance company. As per the driving license, it is stated that the age of the deceased was 38 years. While considering the compensation, the Tribunal can also consider all these aspects and it is open for both the parties to adduce evidence in respect of the compensation and as far as the negligence issue is concerned, this Court holds that it is because of the negligence on the part of the driver of the parked vehicle the accident has happened. Accordingly, this Court is passing the following: ORDER i. The impugned order passed in MVC.No.293/2010 dated 17.01.2015 by the Principal Senior Civil Judge and MACT, Mandya, is set aside and remanded back to the Tribunal. ii. Accordingly, the MFA.Crob.No.34/2017 filed by the claimants is allowed. - 12 - NC: 2025:KHC:12779 MFA No. 2627 of 2015 C/W MFA.CROB No. 34 of 2017 iii. MFA.No.2627/2015 filed by the insurance company is dismissed holding that the insurance company is liable to pay the compensation and there is no negligence on the part of the deceased. iv. All the parties are at liberty to adduce the evidence in support of their case with regard to the compensation, basing on the said evidence, the Tribunal shall consider and dispose off the matter within a period of 6 months from the date of receipt of the copy of this order. v. The parties shall appear before the Tribunal on 21.04.2025 without any further notice. vi. The amount in deposit shall be transferred to the Tribunal forthwith and the claimant is at liberty to withdraw the said amount subject to the result of the MVC petition. vii. No costs. viii. Pending miscellaneous petitions, if any, shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE BN/List No.: 1 Sl No.: 10