- 1 - NC: 2025:KHC-D:3933 MFA No. 102149 of 2014 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.102149 OF 2014 (MV-D) BETWEEN: DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, SEETA SMRITI, P.B. NO.156, 1568, MARUTI GALLI, BELAGAVI-590 002. REP. BY ITS DIVISIONAL MANAGER. …APPELLANT (BY SRI SHARANAPPA S.KOLIWAD, ADVOCATE) AND: 1. SMT. MAHADEVI W/O. SADASHIV MAJAGI, AGE: 47 YEARS, OCC: HOUSE HOLD WORK, R/O: NIDASOSHIWADI, TQ: HUKKERI, DIST: BELAGAVI. 2. SHRI KASHINATH S/O. SADASHIV MAJAGI, AGE: 33 YEARS, OCC: NIL, R/O: NIDASOSHIWADI, TQ: HUKKERI, DIST: BELAGAVI. 3. RAFIQ S/O. IMAM SANADI, AGE: 34 YEARS, OCC: MECHANIC, R/O: NILAJI, TQ: GADHINGLAJ, NOW AT: MADDI GALLI, SANKESHWARI, TQ: HUKKERI, DIST: BELAGAVI. …RESPONDENTS (BY SMT. SUNANDA A.PATIL, ADVOCATE FOR R1 AND R2; NOTICE TO R3 IS SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT 1988, PRAYING TO MODIFY THE AWARD DATED 19.03.2014, PASSED IN MVC.NO.2689/2011 ON THE FILE OF THE I ADDL. DISTRICT JUDGE AND MACT-II, BELAGAVI AND EXAMINE THE SAME, IN THE INTEREST OF JUSTICE. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:3933 MFA No. 102149 of 2014 THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) The appeal is filed by the appellant/Insurance Company challenging the judgment and award dated 19.03.2014 passed in MVC No.2689/2011 by the I Additional District Judge and MACT-II, Belgaum (hereinafter referred to as ‘the Tribunal’ for short) on the ground that there was contributory negligence also by the rider of the motorcycle, but the Tribunal has fastened entire liability on the Insurance Company, who is insurer of the Tempo Trax bearing Reg.No.MH-14/G-5997. 2. Further, raised ground that the monthly income is taken at Rs.7,000/- by the Tribunal is on higher side, but it ought to have been at Rs.6,000/- p.m. Further, raised ground that claimant No.2 is major son and remaining dependent is the wife, hence, half of the income ought to have been deducted, but not 1/3rd towards personal and living expenses. - 3 - NC: 2025:KHC-D:3933 MFA No. 102149 of 2014 3. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Tribunal. 4. In the present case, the deceased was traveling as pillion rider in the motorcycle bearing Reg.No.KA-23/K- 6043. The Tribunal after perusing the evidence on record it is proved that the width of the road is 18 feet and the accident is caused 7 feet from the West side and 11 feet from the East side. Therefore, still both the vehicles were having sufficient space to cross each other, but the Tempo Trax has deviated of 2 feet and caused the accident in the middle of the road. Hence, the Tribunal had found fault with that both the driver of Tempo Trax and rider of the motorcycle have caused the accident. Therefore, it was held that there was contributory negligence between both the driver of Tempo Trax and rider of the motorcycle. 5. The Tribunal has given finding in this regard at paragraph No.12 that both the driver of Tempo Trax and rider of the motorcycle have contributed to the accident, but - 4 - NC: 2025:KHC-D:3933 MFA No. 102149 of 2014 failed to apportion the negligence between the driver of the Tempo Trax and rider of the motorcycle. For the deceased, it is the composite negligence by both the Tempo Trax and the motorcycle. When the Tribunal has held that the rider of the motorcycle has also contributed negligence in another case in MVC No.2690/2011, therefore, deducted 25% of compensation awarded in case of injuries sustained by the rider of the motorcycle. But in the present case, the Tribunal has not deducted 25% of compensation amount payable by the insurer of the Tempo Trax. Therefore, when it is proved that both the driver of the Tempo Trax and rider of the motorcycle have contributed 75:25 of rashness and negligence, then the deceased being pillion rider is entitled 75% of compensation from the owner and insurer of the Tempo Trax and 25% of compensation from the owner and insurer of the motorcycle. 6. In case of the deceased, composite negligence is evident. Therefore, the appellant/insurer of the Tempo Trax, shall pay the entire compensation amount to the claimants at first instance to the claimants, then recover 25% of - 5 - NC: 2025:KHC-D:3933 MFA No. 102149 of 2014 compensation from the owner and insurer of the motorcycle bearing Reg.No.KA-23/K-6043 in view of principle of law laid down by the Hon’ble Supreme Court in KHENYEI VS. NEW INDIA ASSURANCE COMPANY LTD (Khenyei case)1. 7. In the present case, the deceased was aged 50 years old at the time of accident. The accident occurred on 14.11.2011. The Tribunal has taken monthly income of Rs.7,000/- by considering the fact that deceased was owner of irrigated land and was cultivating sugarcane crop, as it is produced at Ex.P9 and Ex.10. Further, Ex.P7 is the Lavani chits and Ex.P8 is 8 weighment slips, which proved the fact that deceased was growing sugarcane and sold the said crop to sugar factories. Hence, it is proved that deceased was an agriculturist and was cultivating sugarcane crop, which is for commercial purpose. Hence, as per the income proof of deceased, the income is to be taken as Rs.7,000/- per month. In view of the decision of the Hon’ble Apex Court in case of National Insurance Company Limited vs. Pranay 1 (2015) 9 SCC 273 - 6 - NC: 2025:KHC-D:3933 MFA No. 102149 of 2014 Sethi and others2 (Pranay Sethi Case), 25% of the income is to be added towards loss of future prospects in life. There are totally two legal heirs i.e., wife and son. Therefore 1/3rd of the income is to be deducted towards personal and living expenses. Considering the age of the deceased, the appropriate applicable multiplier is 13. Therefore, loss of dependency is hereby re-assessed and quantified as follows: Rs.7,000/- + Rs.1,750/- (25% of Rs.7,000/-) Rs.8,750/- x 2/3 x 13 x 12 = Rs.9,10,000/- 8. In view of the decision of the Hon’ble Supreme Court in the case of Magma General Insurance Co. Limited v. Nanu Ram & Others3, 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. Accordingly, Rs.88,000/- (Rs.40,000 x 2 + 10%) is awarded under the head ‘loss of consortium including loss of love and affection’. 2 (2017) 16 SCC 680 3 2018 ACJ 2782 - 7 - NC: 2025:KHC-D:3933 MFA No. 102149 of 2014 9. 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. 10. Thus, the claimants would be entitled for compensation under various heads as under: Sl. No. Heads. Amount in (Rs.) 1. Towards loss of dependency 9,10,000/- 2. Towards loss of consortium (40,000 x 2 +10%) 88,000/- 3. Towards loss of estate and transportation of dead body & funeral expenses. (15,000 x 2 + 10%) 33,000/- Total: 10,31,000/- 11. Therefore, the claimants are entitled for compensation of Rs.10,31,000/- along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.10,76,400/- awarded by the Tribunal. The Insurance Company is directed to deposit the - 8 - NC: 2025:KHC-D:3933 MFA No. 102149 of 2014 compensation within eight weeks from the date of receipt of a certified copy of this judgment. 12. In the result, I proceed to pass the following: ORDER i. The appeal is allowed in part. ii. The judgment and award dated 19.03.2014, passed in MVC No.2689/2011, by the Court of I Additional District Judge & MACT-II, Belgaum, stands modified. iii. The claimants are entitled for total compensation of Rs.10,31,000/- along with interest at the rate of 6% p.a. from the date of petition till its realization as against Rs.10,76,400/- awarded by the Tribunal. iv. The Insurance Company shall deposit the compensation amount within a period of eight weeks from the date of receipt of a copy of this judgment. v. The order with regard to apportionment of compensation, deposit and release of amount would be as per order of Tribunal. - 9 - NC: 2025:KHC-D:3933 MFA No. 102149 of 2014 vi. The amount in deposit made by the appellant/Insurance Company shall be transmitted to the Tribunal. vii. Send back the trial Court records along with a copy of this judgment. viii. No order as to costs. ix. Draw award accordingly. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE SRA: para 1 to 6 PMP: para 7 to end List No.: 1 Sl No.: 45 bvn