- 1 - NC: 2025:KHC-D:1491-DB MFA No. 100436 of 2020 C/W MFA No. 101179 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 25TH DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO.100436 OF 2020 (MV-D) C/W MISCELLANEOUS FIRST APPEAL NO.101179 OF 2019 (MV-D) IN MFA NO.100436 OF 2020: BETWEEN: 1. SHAMSHAD W/O. MOHAMMED AKBAR KODIYAL, AGE: 47 YEARS, OCC: HOUSEWIFE, R/O: MUSLIMGALLI, SIRSI, TQ: SIRSI, DIST: UTTARA KANNADA-581401. 2. WASEEM S/O MOHAMMED AKBAR KODIYAL AGE: 28 YEARS, OCC: UNEMPLOYED, R/O: MUSLIMGALLI, SIRSI, TQ: SIRSI, DIST: UTTARA KANNADA-581401. 3. MUFEEN S/O MOHAMMED AKBAR KODIYAL AGE: 24 YEARS, OCC: STUDENT, R/O: MUSLIMGALLI, SIRSI, TQ: SIRSI, DIST: UTTARA KANNADA-581401. 4. SHIFA D/O MOHAMMED AKBAR KODIYAL AGE: 17 YEARS, OCC: STUDENT, SINCE MINOR REPRESENTED BY NEXT FRIEND MOTHER SHAMSAD W/O. MOHAMMED AKBAR KODIYAL Digitally signed by VANAMALA N Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:1491-DB MFA No. 100436 of 2020 C/W MFA No. 101179 of 2019 AGE: 47 YEARS, OCC: HOUSEWIFE, R/O: MUSLIMGALLI, SIRSI, TQ: SIRSI, DIST: UTTARA KANNADA-581401. …APPELLANTS (BY SRI. VISHWANATH HEGDE, ADVOCATE) AND: 1. YAR MOHAMMED MOHD SHAIKH AGED MAJOR, OCC: NOT KNOWN, NR. RATION CARD OFFICE, ANAND NAGAR, ZOPADPATTI ROAD, NO.15, PADWAL NAGAR, PIPELINE WAGLE, I.E. THANE, MAHARASTRA-400604. (OWNER OF THE LORRY BEARING REG.NO.MH-04-CU 3930) 2. THE RELIANCE GENERAL INSURANCE CO. LTD., REP. BY BRANCH MANAGER, BRANCH OFFICE: KALPATARU PRIME UNIT NO.2, FIRST FLOOR, PLOT NO.D-3, ROAD NO.16, WAGLE INDUSTRIAL ESTATE, THANE, MAHARASTRA-400604. POLICY NO: 1103252334014170 VALIDITY: 28-3-2016 TO 27.3.2017 …RESPONDENTS (BY SRI. G.N. RAICHUR, ADVOCATE FOR R2; NOTCE TO R1 IS DISPENSED WITH) THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 12.12.2018 PASSED IN MVC NO.483/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, SIRSI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. IN MFA NO.101179 OF 2019: BETWEEN: THE RELIANCE GENERAL INSURANCE COMPANY LTD., BRANCH OFFICE: KALPATARU PRIME UNIT NO.2, - 3 - NC: 2025:KHC-D:1491-DB MFA No. 100436 of 2020 C/W MFA No. 101179 of 2019 FIRST FLOOR, PLOT NO.D-3 ROAD, NO.16, WAGLE INDUSTRIAL ESTATE, THANE, MAHARASTRA-400604 POLICY NO.1103252334014170 VALIDITY 28-03-2016 TO 27-03-2017 REPRESENTED BY THE AUTHORIZED SIGNATORY …APPELLANT (BY SRI. G.N. RAICHUR, ADVOCATE) AND: 1. SHAMSHAD MOHAMMED AKBAR KODIYAL AGE: 47 YEARS, OCC: HOUSEWIFE, R/O MUSLIMGALLI, SIRSI (WIFE OF THE DECEASED) 2. WASEEM MOHAMMED AKBAR KODIYAL AGE: 27 YEARS, OCC: STUDENT (UNEMPLOYED) R/O MUSLIMGALLI SIRSI, (SON OF DECEASED) 3. MUFEEN MOHAMMED AKBAR KODIYAL AGE:23 YEARS, OCC:B.COM FINAL YEAR STUDENT, R/O MUSLIMGALLI SIRSI, (SON OF DECEASED) 4. SHIFA MOHAMMED AKBAR KODIYAL AGE:17 YEARS, OCC: STUDENT, SINCE MINOR REPRESENTED BY NEXT FRIEND MOTHER THE PETITIONER NO.1 R/O MUSLIMGALLI, SIRSI, (DAUGHTER OF DECEASED) 5. YAR MOHAMMED MOHD SHAIKH NR RATION CARD OFFICE, ANAND NAGAR, ZOPADPATTI, ROAD NO.15, PADWAL NAGAR, PIPELINE WAGLE I.E. THANE, MAHARASTRA 400604 (OWNER OF LORRY BEARING REG NO.MH-04-CU-3930) …RESPONDENTS (RESPONDENTS NO.1 TO 3 ARE SERVED; RESPONDENT NO.4 IS MINOR R/BY. RESPONDENT NO.1; NOTICE TO RESPONDENT NO.5 IS DISPENSED WITH) - 4 - NC: 2025:KHC-D:1491-DB MFA No. 100436 of 2020 C/W MFA No. 101179 of 2019 THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, PRAYING TO, CALL FOR THE RECORDS AND HERE THE PARTIES AND MODIFY THE JUDGMENT AND AWARD DATED 12.12.20218 PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND ADDL. M.A.C.T SIRSI IN MVC NO.483/2016 BY REDUCING THE COMPENSATION BY ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND EQUITY. THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD) These appeals are against the judgment and award dated 12.12.2018 in MVC No.483/2016 on the file of the Senior Civil Judge and Addl. M.A.C.T., Sirsi [for short, ‘the Tribunal’]. The Claimants’ appeal is in MFA No.100436/2020 and the Insurer’s appeal is in MFA No.101179/2019. This Court must observe that the Tribunal, though has found that the deceased had also contributed to the accident by his negligence and therefore 40% of the amount computed must be deducted, has not provided for such deduction. If the - 5 - NC: 2025:KHC-D:1491-DB MFA No. 100436 of 2020 C/W MFA No. 101179 of 2019 Tribunal had deducted 40% from Rs.21,38,000/- computed as compensation, the Tribunal should have granted only a sum of Rs.12,82,800/-. 2. The deceased was the owner of the lorry bearing registration No.KA-25/D-9632 and he was also the driver of this vehicle. On 20.07.2016, when he was driving this lorry on National Highway No.8 towards Ahmadabad-Maharashtra, there is an accident. The accident is between the deceased’s lorry and another lorry [Registration No.MH-04/CU-3930] insured with the Insurer. The claimants contend that the offending lorry was parked on the highway without indicator or signal to show that it was parked and that the deceased, because it was raining, could not stop the vehicle despite applying brake, and therefore, he drove his lorry into the parked lorry. The Insurer1, on the other hand, has contested the claim contending that the deceased himself had contributed to the accident, and therefore, there 1 The Insurer does not deny its liability. - 6 - NC: 2025:KHC-D:1491-DB MFA No. 100436 of 2020 C/W MFA No. 101179 of 2019 must be some deduction towards contributory negligence. However, the Insurer, to establish its defense, has not examined witness, but it has relied upon the Police records marked by the claimants. 3. The Tribunal considering these rival contentions, the Police records and the evidence of P.W.3 [Sri. Mohammed Akbar Kodiyal - the deceased’s son and an injured], has opined that the deceased, who had to drive rather carefully with the rain pouring was rash and negligent, and therefore, the contributory negligence at 40% must be attributed to him. The Tribunal, on the quantum of compensation to be awarded towards loss of dependency, has taken the deceased’s income at Rs.15,000/-. The Tribunal has also added 30% of such income towards future prospects and applied the multiplier of ‘13’ opining that the deceased was aged 50 years as on the date of the accident. The Tribunal has deducted 1/3rd of the salary towards personal expenses. - 7 - NC: 2025:KHC-D:1491-DB MFA No. 100436 of 2020 C/W MFA No. 101179 of 2019 4. Sri.G.N. Raichur, the learned counsel for the Insurer, and Sri.Vishwanath Hegde, the learned counsel for the claimants, submit that this Court will have to decide on: [i] Whether the Tribunal is justified in concluding that the deceased was negligent as well in attributing 40% to him, and [ii] Whether the Tribunal is justified in computing the loss of dependency taking the income of the deceased at Rs.15,000/- per month, applying the multiplier of ‘13’ and deducting 1/3rd towards personal expenditure. 5. Sri.Vishwanath Hegde submits that the Insurer has led no evidence and there is nothing on record to show that the offending vehicle had broken down and the requisites signals were put out including switching on the indicators to warn the others about the vehicle having broken down. The learned counsel emphasizes that the Motor Vehicles - 8 - NC: 2025:KHC-D:1491-DB MFA No. 100436 of 2020 C/W MFA No. 101179 of 2019 Act, 1988 and the Rules require the custodian/ driver of the concerned vehicle to ensure that the requisite signals are put out to warn the others. On the question of law, the learned counsel submits that the Apex Court in the recent decision in Sushma Vs. Nitin Ganapati Rangoli and Others2 has opined that contributory negligence cannot be attributed only because in hindsight it could be shown that the person who is alleged to have contributed should have acted differently. Sri. G.N. Raichur submits that in the light of the undisputed fact that the accident was in the early hours of the day and when there was a downpour, the Tribunal has rightly apportioned contributory negligence as against the deceased. 6. This Court, on the evidence on record, must first refer to the Accident Inspection Reports, which are marked as Exs.P2 and P3. The Inspection Report of the deceased’s vehicle establishes that [a] steering system, gearbox, and radiator were damaged 2 [2024] SCC Online SC 2584 - 9 - NC: 2025:KHC-D:1491-DB MFA No. 100436 of 2020 C/W MFA No. 101179 of 2019 and [b] the front wheels of the lorry were dislocated. The Inspector has also opined that because the vehicle is not in a roadworthy condition, it cannot be tested to opine whether there was any mechanical defect. The Inspection Report of the offending vehicle is marked as Ex.P3. The Inspector has recorded that the damage is only on the back side because of the impact and there was no mechanical defect. The next document is the spot mahazar [Ex.P.19]. This mahazar establishes that the accident is on a National Highway with three lanes on one side and a zebra crossing at a distance of 30 feet from the place of accident. This mahazar also shows that there were restaurants within 50 feet distance from the place of accident. The deceased’s son is examined as PW.3 and he was traveling with the deceased. He has stated that the offending vehicle was parked on the Highway without a signal or indicator and there was a downpour. The deceased had to be careful. - 10 - NC: 2025:KHC-D:1491-DB MFA No. 100436 of 2020 C/W MFA No. 101179 of 2019 7. It is under these circumstances that this Court must opine whether the Tribunal is justified in concluding that the deceased has contributed to the accident. If the damage to the deceased’s lorry shows that he could not control the vehicle, nothing is on record to show that any signal or indicator was put out by the custodian driver of the offending vehicle. The owner and driver of the offending vehicle have not been examined, and the Insurer has not examined the witness. The offending vehicle, [as per Ex.P3] did not have any mechanical defects, and the reason for parking on the Highway, if there was no mechanical defect, is not brought on record. 8. On a holistic reading of all these circumstances, in the light of the proposition in Sushma Vs. Nitin Ganapati Rangoli and Others [supra], this Court must opine that though both the deceased and the driver of the offending vehicle have contributed to the accident, the contribution by the - 11 - NC: 2025:KHC-D:1491-DB MFA No. 100436 of 2020 C/W MFA No. 101179 of 2019 driver of the offending vehicle must be higher. He had parked his lorry just 30 feet from the Zebra Crossing without an indicator. If the question is how much higher the contribution by the driver of the offending vehicle should be, this Court must assess the same based on the scale of preponderance of probabilities and the object of the MV Act. 9. The apportionment of 60:40 between the driver of the offending vehicle and the deceased, in this Court’s opinion will not be just, and the apportionment must be just because it will affect the grant of compensation. The stipulation in law is that the compensation must be just and reasonable. Therefore, this Court is of the considered view that the contributory negligence must be taken in the ratio of 75:25 between the driver of the offending vehicle and the deceased. 10. It is beyond cavil that if the victim in a road accident is aged above 60 years, there should be - 12 - NC: 2025:KHC-D:1491-DB MFA No. 100436 of 2020 C/W MFA No. 101179 of 2019 no addition towards future prospects and the multiplier should also be accordingly modulated depending on whether the victim was aged between 61 and 65 or 66 and 70. The deceased’s wife, the first claimant, has stated herself in her evidence that her husband was aged 62 years and this is seen in the deceased’s Driving Licence marked as Ex.P8. In the light of this undisturbed evidence, the Tribunal could not have relied upon assessment of the age in the postmortem to show that the deceased was 50 years old. As such, the multiplier will be ‘7’ and there cannot be any addition towards future prospects. 11. The next question is whether the Tribunal is justified in taking the income of the deceased at Rs.15,000/- per month. The Insurer does not dispute that the deceased was the owner of his truck or that it was attached with a transport and that he was earning a certain monthly income by such attachment. This fact is spoken to by P.W.5 - the - 13 - NC: 2025:KHC-D:1491-DB MFA No. 100436 of 2020 C/W MFA No. 101179 of 2019 President of Union of Transports. The insurer also does not dispute that the deceased was also working as a driver. These two undisputed circumstances show that the deceased was earning both as a driver and as an owner of the truck. The lorry is completely damaged and as such, there will be income from this source. 12. In the cases arising out of accident in the year 2016, income is taken at Rs.8,750/- for settlement in Lok-Adalat when there is no evidence of actual income. This Court must opine that the monthly income of the deceased as on the date of the accident must be considered not only in the light of the afore but also the fact that he was aged 61 years and was supplementing his income as a driver from the income accruing from the ownership of the lorry. When these are considered, this Court is of the view that it would be just and appropriate to take the income of the deceased at Rs.25,000/- per month. - 14 - NC: 2025:KHC-D:1491-DB MFA No. 100436 of 2020 C/W MFA No. 101179 of 2019 The loss of dependency must be computed with ‘7’ as the Multiplier and deducting 1/3rd towards personal expenses of the deceased. The claimants will only be entitled for a sum of Rs.10,50,500/- towards loss of dependency after deducting 25% towards contributory negligence. Computation of Loss of Dependency [In Rs.] Monthly Income 25,000.00 Deduction at 1/3 towards personal expenses 8,333.33 Monthly Income after deduction 16,666.67 Annual Income 2,00,000.00 Loss of dependency with multiplier of '7' 14,00,000.00 Deduction of 25% towards Contributory Negligence 3,50,000.00 The Loss of Dependency 10,50,000.00 In addition, all the claimants will be entitled to funeral/ transportation expenses and loss of consortium with addition at the 10% for every block - 15 - NC: 2025:KHC-D:1491-DB MFA No. 100436 of 2020 C/W MFA No. 101179 of 2019 of three years after the first block of three years. Hence, the compensation payable by the Insurer to the claimants as directed by the Tribunal to indemnify the Insurer will be in a sum of Rs.12,62,500/-. The details of the compensation are as follows:- Description By this Court Loss of dependency 10,50,500/- Loss of consortium 1,76,000/- Funeral/ Transportation Expenses 36,000/- Total 12,62,500/- The first and fourth claimants are the wife and daughter of the deceased. The fourth claimant was minor as of the accident, and the second and third claimants were majors. Therefore, there must be just apportionment of compensation amongst them. For the afore reasons, the following: - 16 - NC: 2025:KHC-D:1491-DB MFA No. 100436 of 2020 C/W MFA No. 101179 of 2019 ORDER [A] The appeals by the claimants and the Insurer are disposed of modifying the Tribunal’s judgment and award dated 12.12.2018 insofar as M.V.C. No.483/2016 granting a compensation of Rs.12,62,500/-. [B] The Second and third claimants shall be paid Rs.1,00,000/- with interest at 6% per annum, and the first and fourth claimants will be entitled equally to the remaining amount along with interest at 6% per annum. The interest shall be computed from the date of the claim petition with the Tribunal until the date of deposit after this order. [C] The Insurer is called upon to deposit Rs.12,62,500/- along with interest at 6% within eight [8] weeks. - 17 - NC: 2025:KHC-D:1491-DB MFA No. 100436 of 2020 C/W MFA No. 101179 of 2019 [D] The amount deposited by the insurer in M.F.A. No.101179/2019 is directed to be transmitted to the Trial Court. [E] The office is directed to transfer the Trial Court Records expeditiously. [F] The Tribunal is directed to disburse the amount to the claimants without insisting on deposit subject to identity. Sd/- (B.M.SHYAM PRASAD) JUDGE Sd/- (RAMACHANDRA D. HUDDAR) JUDGE RSH/PJ, CT:VP LIST NO.: 1 SL NO.: 20