- 1 - NC: 2025:KHC-D:1375 MFA No. 100377 of 2015 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 24TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.100377 OF 2015 (MV) BETWEEN: 1. SMT. AMBAKKA @ AMBAVVA W/O. VASAPPA KOTI, AGE: 50 YEARS, OCC: HOUSE HOLD, 2. SHASHIDHAR S/O. VASAPPA KOTI, AGE: 30 YEARS, OCC: AGRICULTURE NOW NIL, 3. RATHNAVVA D/O. VASAPPA KOTI, AGE: 25 YEARS, OCC: HOUSE HOLD, 4. SHRINIVAS S/O. VASAPPA KOTI, AGE: 23 YEARS, OCC: STUDENT, ALL APPELLANTS ARE R/O. DEVAGONDANAKATTI, TQ: RANEBENNUR, DIST: HAVERI. …APPELLANTS (BY SRI G.S. HULMANI, ADVOCATE) AND: 1. NAGARAJ S/O. GOURAPPA KAMSAGAR, AGE: MAJOR, OCC: BUSINESS, R/O. PUNYASTHALA, POST: CHANNAGERI, DIST: DAVANAGERE. 2. THE AUTHORIZED SIGNATORY, SHRIRAM GENERAL INSURANCE CO. LTD., E-8, EPIP RICO INDUSTRIAL AREA, SITA PURA, JAIPUR, RAJASTHAN-320022. …RESPONDENTS (BY SRI G.N. NARASAMMANAVAR, ADVOCATE FOR R1; SRI NAGARAJ C. KOLLOORI, ADVOCATE FOR R2.) R Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:1375 MFA No. 100377 of 2015 THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO MODIFY THE JUDGMENT AND AWARD PASSED BY THE PRL. SENIOR CIVIL JUDGE AND MACT, RANEBENNUR, IN MVC NO.478/2011 DATED 1ST SEPTEMBER 2014 BY ENHANCING THE COMPENSATION AS PRAYED FOR AND SET ASIDE THE FINDING AND DEDUCTIONS MADE TOWARDS CONTRIBUTORY NEGLIGENCE ON THE PART OF DECEASED AND SADDLE THE ENTIRE RESPONSIBILITY TO PAY COMPENSATION ON THE RESPONDENT NO.2/INSURANCE CO. AND COST THE APPEAL AND ETC.,. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) Heard the arguments of learned counsels appearing on both the sides and perused the material placed on record. 2. This appeal is filed by the appellants/claimants challenging the judgment and award dated 01.09.2014, passed by the Principal Senior Civil Judge and MACT, Ranebennur, in MVC No.478/2011, seeking for enhancement of compensation and also questioning 50% contributory negligence attributed on the deceased. 3. On 14.03.2011, at about 10.30 p.m. on Ranebennur-Harihar P.B. Raod, near Karur cross, when the deceased was proceeding on motorcycle bearing No.MH- - 3 - NC: 2025:KHC-D:1375 MFA No. 100377 of 2015 09/436 from Devagondanakatti village towards Harihar, near Karur cross, one lorry bearing No.KA-14/8415 was parked on the middle of the road in violation of traffic rules and regulations without putting signals or indicator or parking lights. The deceased without noticing the same dashed the parked lorry and due to the said impact, the deceased sustained fatal injuries and succumbed to the injuries on the spot. The claimants being wife and children of the deceased have filed claim petition under section 166 of the M.V.Act. The tribunal held that the driver of the parked lorry is negligent to the extent of 50% and deceased is rash and negligent for the remaining 50% and thus, apportioned the rash and negligence between the drivers of two vehicles. The tribunal has determined the compensation of Rs.22,68,000/-, out of which 50% is awarded to the claimants directing the respondent owner and insurer of the lorry to pay the amount. 4. Being aggrieved by it, attributing 50% of rashness and negligence on the part of deceased, for modifying the same by saddling entire negligence on the - 4 - NC: 2025:KHC-D:1375 MFA No. 100377 of 2015 driver of the parked lorry and also for not considering the income from agricultural lands, the claimants pray for enhancement of compensation. 5. Learned counsel for respondent insurance company justified the judgment and award passed by the tribunal. The tribunal after appreciating the evidence on record held that the deceased has dashed against an unattended lorry parked on the road without any signal lights, then negligence cannot be attributed solely to the driver of the vehicle who has parked the lorry, but equally negligence also to be attributed as on the part of decreased who was riding the motorcycle. 6. But, upon appreciating the evidence on record, more particularly, Ex.P.3 spot panchanama, in which it is stated that the lorry was parked on the road and there is 15 feet wide space from left side of the road to the left edge of the road and 15 feet wide space from the right side of the lorry to the right edge of the road. This proves the fact that the lorry was parked on the middle of the road. The accident is caused in the night hours at 10.30 p.m. It is the duty cast - 5 - NC: 2025:KHC-D:1375 MFA No. 100377 of 2015 upon the driver of the lorry to take all precautionary measures under whatever circumstances he was constrained to park the lorry on the middle of the road, it is also duty cast upon the driver and owner of the lorry to prove that indicators or signals have been put drawing attention of the other users of the road, but in this regard absolutely there is no evidence from the owner and driver of the lorry. 7. Regulation 3 of the Motor Vehicle (Driving) Regulations, 2017, stipulates as follows: “3. Duty towards other road users and the general public No vehicle shall be driven, stopped to parked on a road or in a public place in such a manner as is likely to endanger the safety of, or cause inconvenience to, other road users.” 8. Further, regulation 22 of the Regulations, stipulates as follows: 22. Stopping and parking.- (1) A vehicle shall not be stopped- (i) at a place where the road is narrow or the view is obstructed; - 6 - NC: 2025:KHC-D:1375 MFA No. 100377 of 2015 (ii) near or on a sharp bend; (iii) in an acceleration or a deceleration lane; (iv) on, or five meters before, a pedestrian crossing; (v) on a level crossing; (vi) five meters or less before a traffic light signal or “Give Way” sign or “STOP” sign or if a stationary vehicle is likely to obstruct these signs from the view of other road users; (vii) at designated bus stands if the vehicle is other than a bus; (viii) on a yellow box marked on road; and (ix) where prohibited by a mandatory “No Stopping” sign. (2) A vehicle shall not be parked- (a) at a place where stopping a vehicle is prohibited under sub-regulation (1); (b) on a main road or at a stretch of a road where the notified maximum speed limit is fifty kilometres per hour or more; (c) on a footpath, cycle track and pedestrian crossing; (d) before or after an intersection or a junction up to a distance of fifty - 7 - NC: 2025:KHC-D:1375 MFA No. 100377 of 2015 meters from the edge of the intersection or junction; (e) where it would block access to designated parking spaces; (f) near a bus stop, at the entrance to an educational institution or a hospital or if it is likely to block a traffic sign or a fire hydrant; (g) in a tunnel; (h) in a bus lane; (i) in front of the entrance or exit of a property; (j) where there is a continuous yellow line installed or painted on the carriageway on the kerb side; (k) away from the edge of the footpath; (l) opposite another parked vehicle; (m) if it is likely obstruct any other vehicle or cause inconvenience to any person; (n) alongside another parked vehicle; (o) beyond the specified duration at a place where parking is permitted for a specified duration only; (p) in a place where parking is permitted for a specified category or categories of vehicles and the vehicle does not belong to the specified category; - 8 - NC: 2025:KHC-D:1375 MFA No. 100377 of 2015 (q) by a driver who is not differently abled in a parking space reserved for vehicles driven by differently abled drivers; (r) in a manner other than that specified in the parking bays in a designated parking lot or in such a manner as to occupy excessive space; and (s) where parking is prohibited by a “No Parking” sign.” 9. Section 122 of the Motor Vehicles Act, 1988 stipulates as follows: “122. Leaving vehicle in dangerous position.—No person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers. Corresponding Law.-Section 122 corresponds to section 81 of the Motor Vehicles Act, 1939. Objects and Reasons.-Clause 122 lays down that no motor vehicle should be left on the public road in a dangerous position or in - 9 - NC: 2025:KHC-D:1375 MFA No. 100377 of 2015 such a manner to as to cause inconvenience to other road users or abandoned”. 10. The Division Bench of this Court in the case of Kumari Jyothi and others vs. Mohd. Usman Ali and others, reported in ILR 2002 KAR 893, were pleased to observe and laid down law as follows: “13. Nothing has been elicited in their cross-examination to show that lorry had parked with any sign or indicator. Neither the driver nor the cleaner of the lorry was examined to say that any sign or indication was provided in regard to the parked vehicle. Section 122 of the Motor Vehicles Act, 1988 provides that no person in charge of a motor vehicle shall cause or allow the vehicle to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers. In similar circumstances, the High Court of Gujarat in PREMLATA NILAMCHAND SHARMA vs HIRABHAI RANCHHODBHAI PATEL (1983 ACJ 290), the High Court of Punjab and Haryana in NIRMAL BHUTANI vs HARYANA STATE (1983 ACJ 640) and the Delhi High Court in PUSHPA RANI CHOPRA vs ANOKHA SINGH (1975 ACJ 396) have held that where the place was dark and where the vehicle was parked without any sign or indication to warn other - 10 - NC: 2025:KHC-D:1375 MFA No. 100377 of 2015 Road users, the negligence is on the driver of the parked vehicle and not the driver of any vehicle which dashes into such parked vehicle.” 11. In the present case, as discussed above, Ex.P.3 spot mahazar proves the fact that the lorry was parked unattended in the night hours at 10.30 p.m. without any signal or indicators drawing attention of other users of road. There is no evidence either by the driver or owner of the lorry that in what compelling circumstances the lorry was stationed or parked on the middle of the road. Also there is no evidence either by the driver or owner of the lorry proving that lights/indicators are put inviting attention of the other users of the road. Therefore, under these circumstances it is proved that the driver of the lorry was solely negligent in parking lorry on the middle of the road. Considering the time that the accident took place in the night hours at 10.30 p.m., it is mandatory on the part of the owner and driver of the lorry to put signal or indicator of the lorry, but there is no evidence by the respondents. Therefore, the tribunal has committed error in attributing 50% rash and negligence on the part of the deceased. Therefore, attribution of 50% of - 11 - NC: 2025:KHC-D:1375 MFA No. 100377 of 2015 rash and negligence on the part of the deceased is set aside and it is held that the driver of the lorry was alone responsible as he was negligent in parking the lorry unattended and also without putting any indicator/signal, on the middle of the road. 12. Learned counsel for the respondent insurance company submitted that some percentage of rash and negligence to be attributed on the part of the deceased as the deceased was riding the motorcycle with switching on the headlight of the motorcycle. Therefore, he could have noticed the parked lorry. Therefore, request to attribute some percentage of rash and negligence on the part of the deceased also. 13. This argument addressed by the learned counsel for respondent insurance company cannot be accepted for the reason that, it is duty cast upon the driver of the lorry being a heavy goods vehicle, to be more cautious and vigilant while stationing/parking lorry on the middle of the road. Furthermore, switching on indicators/signal of the lorry is having its own significance drawing attention of the other - 12 - NC: 2025:KHC-D:1375 MFA No. 100377 of 2015 users of the road and though the deceased was riding the motorcycle by switching on the headlight of the motorcycle, but he could not notice parked lorry since there is no reflection of indicators/signal lights as there was no indicator/signals. During the night time though the headlight of the motorcycle was switched on while riding the motorcycle, but rider of the motorcycle could not see the object beyond the focus limit of the headlight. Therefore, under such circumstances, why putting indicator/signals is made mandatory during night time is to make reflection of the said indicator indicating/drawing attention of the other users of the road. Considering the fact that the accident was caused in the night hours at 10.30 p.m., though headlight of the motorcycle was switched on, it has own limit upto certain distance visibility and beyond that the rider of the motorcycle could not see the object. Therefore for seeing the object beyond the focus limits of headlight, there must be some reflections through indicator/signals from the vehicles parked away from the distance of the motorcycle which was on ride. Since there is no signal or indicator, there could not be reflection of those lights. Hence the deceased could not see - 13 - NC: 2025:KHC-D:1375 MFA No. 100377 of 2015 the object/parked lorry on the road and though the headlight of the motorcycle were switched on, but when he approached the lorry, he could see the lorry, but at that time he could not control the motorcycle. Resultantly, compelling of impact to the lorry. Therefore, under these circumstances, rash and negligence could not be attributed on the part of the deceased. Therefore, with these reasons the entire negligence is attributed on the part of the parked lorry which was unattended by its driver. 14. The view taken by this Court is also supported by the decision of the Hon’ble Supreme Court in the case of Sushma vs. Nitin Ganapati Rangole and others, reported in AIR 2024 SC 4627, wherein at paragraphs No.40 and 41, it is held as under: “40. On a holistic analysis of the material available on record, it is established beyond the pale of doubt that the offending truck was parked in the middle of the road without any parking lights being switched on and without any markers or indicators being placed around the stationary vehicle so as to warn the incoming vehicular traffic. This omission by the person in control of the said truck was in clear violation of law. The accident took place on a - 14 - NC: 2025:KHC-D:1375 MFA No. 100377 of 2015 highway where the permissible speed limits are fairly high. In such a situation, it would be imprudent to hold that the driver of a vehicle, travelling through the highway in the dead of the night in pitch dark conditions, would be able to make out a stationary vehicle lying in the middle of the road within a reasonable distance so as to apply the brakes and avoid the collision. The situation would be compounded by the headlights of the vehicles coming from the opposite direction and make the viewing of the stationary vehicle even more difficult. Thus, the conclusion drawn by the Courts below that the driver of the car could have averted the accident by applying the brakes and hence, he was equally negligent and contributed to the accident on the application of principle of last opportunity is ex-facie perverse and cannot be sustained. Hence, it is a fit case warranting exercise of this Court's powers under Article 136 of the Constitution of India to interfere with the concurrent finding of facts. 41. We, therefore, hold that the person in control of the offending truck insured by respondent No. 2-Insurer, was fully responsible for the negligence leading to the accident.” 15. Therefore, it is held that the entire negligence is attributed on the part of the driver of the lorry. Thus, attribution of 50% of the negligence on the part of the deceased is hereby set aside. - 15 - NC: 2025:KHC-D:1375 MFA No. 100377 of 2015 16. Now coming to the aspect of quantum of compensation awarded by the tribunal, the tribunal held that income of the deceased was Rs.21,720/- per month as he was permanent employee of Grasim Industries Limited and is supported by Ex.P.12 salary slip and Ex.P.9 Form-16. The deceased was aged 54 years at the time of accident. In view of the decision of the Hon’ble Apex Court in case of National Insurance Company Limited vs. Pranay Sethi and others, reported in (2017) 16 Supreme Court Cases 680, considering the age of the deceased, 15% of the income added towards loss of future prospects in life is found to be correct. Deduction of 1/3rd of the income towards personal and living expenses of the deceased is also found to be correct, as the claimants are wife and three major children. Further, considering the age of the deceased multiplier 11 applied by the tribunal is also correct. Therefore, the compensation determined by the tribunal at Rs.21,98,064/- under the head loss of dependency is found to be just and proper and correct. But under other conventional heads, the tribunal has awarded lesser compensation. Therefore, it needs enhancement as under. - 16 - NC: 2025:KHC-D:1375 MFA No. 100377 of 2015 17. In view of the decision of the Hon’ble Supreme Court in the case of Magma General Insurance Co. Limited v. Nanu Ram & Others, reported in 2018 ACJ 2782 and in the case of Pranay Sethi (supra), the claimants are entitled to Rs.40,000/- each under the head ‘loss of consortium’, along with 10% escalation. There are four dependents who are wife and three children. Accordingly, Rs.1,76,000/- (Rs.40,000 x 4 + 10%) is awarded under the head ‘loss of consortium including loss of love and affection’. 18. Further, a compensation of Rs.15,000/- each is awarded under the head ‘loss of estate’ and ‘funeral and transportation’ respectively, along with 10% escalation. Therefore under these heads Rs.33,000/- (Rs.15,000 x 2 + 10%) is awarded. 19. Thus, the claimants would be entitled for total compensation under various heads as under: Sl. No. Heads. Amount in (Rs.) 1. Towards loss of dependency 21,98,064 - 17 - NC: 2025:KHC-D:1375 MFA No. 100377 of 2015 2. Towards loss of consortium (40,000 x 4 +10%) 1,76,000 3. Towards loss of estate and transportation of dead body & funeral expenses. (15,000 x 2 + 10%) 33,000 Total: 24,07,064 20. Therefore, the claimants are entitled for total compensation of Rs.24,07,064/- along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.22,68,000/- awarded by the tribunal. The insurance company is directed to deposit the entire compensation along with interest as stated above, within eight weeks from the date of receipt of a certified copy of this judgment. 21. In the result, I proceed to pass the following: ORDER i) The appeal is allowed in part. ii) The judgment and award dated 01.09.2014, passed by the Principal Senior Civil Judge and MACT, Ranebennur, in MVC No.478/2011, is modified. - 18 - NC: 2025:KHC-D:1375 MFA No. 100377 of 2015 iii) The rash and negligence to the extent of 50% apportioned in favour of the deceased is set aside. iv) The entire rash and negligence is saddled on the driver of the lorry parked on the middle of the road. v) The claimants are entitled for total compensation of Rs.24,07,064/- along with interest at the rate of 6% p.a. from the date of petition till its realization, as against the compensation of Rs.22,68,000/- awarded by the tribunal. vi) The insurance company shall deposit the above said compensation amount with interest within a period of eight weeks from the date of receipt of a copy of this judgment. vii) The order with regard to apportionment of compensation, deposit and - 19 - NC: 2025:KHC-D:1375 MFA No. 100377 of 2015 release of amount would be as per order of tribunal. viii) Send back trial Court records along with a copy of this judgment and award to the tribunal. ix) No order as to costs. x) Draw award accordingly. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE MRK CT: UMD List No.: 1 Sl No.: 33