- 1 - HC-KAR NC: 2025:KHC:25652 MFA No. 9736 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE C.M. POONACHA MISCELLANEOUS FIRST APPEAL NO. 9736 OF 2017 (MV-D) BETWEEN: 1. MRS PUSHPA W/O LATE C K SOMAN AGED ABOUT 52 YEARS, 2. MRS SANDHYA W/O JAYAKRISHNAN AGED ABOUT 29 YEARS 3. MRS PRIYA W/O SHREEJITH AGED ABOUT 26 YEARS ALL ARE RESIDING AT MOIDINABBA COMPOUND, IN FRONT OF CORPORATION BANK BAIKAMPADY MANGALURU-575011 …APPELLANTS (BY SRI. JEEVAN K, ADVOCATE) AND: 1. MR MANIKANTA S/O NAGESH AGED ABOUT 28 YEARS R/AT DOOR NO.1-284/2 DEVINAGAR, KUNJATHBAIL KAVOOR POST, MANGALURU PIN-575015 2. THE DIVISIONAL MANAGER NEW INDIA INSURANCE CO LTD 1ST FLOOR, RAM BHAVAN COMPLEX, Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:25652 MFA No. 9736 of 2017 KODIALBAIL MANGALURU-575003 …RESPONDENTS (BY SRI. S V HEGDE MULKHAND, ADVOCATE FOR R2 (VK NOT FILED) NOTICE TO R1 IS DISPENSED WITH V/O DTD 18.10.2019) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21/10/2016, PASSED IN MVC NO.1175/2015, ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER, MACT, D.K. MANGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C.M. POONACHA ORAL JUDGMENT The above appeal is filed under Section 173(1) of the Motor Vehicles Act, 19881 challenging the judgment and award dated 21.10.2016 passed in MVC No.1175/2015 by the IV Additional District Judge and Member MACT, D.K, Mangaluru2, wherein the Tribunal has partly allowed the claim petition and assessed the total compensation as `10,45,000/-. However, the Tribunal recorded a finding that the deceased was negligent to the extent of 25%. Hence, the Tribunal awarded 75% of the compensation assessed, i.e., `7,83,750/- together with interest at 6% p.a. Being aggrieved, the claimants have filed the above 1 Hereinafter referred to as ‘Act of 1988’ 2 Hereinafter referred to as ‘Tribunal’ - 3 - HC-KAR NC: 2025:KHC:25652 MFA No. 9736 of 2017 appeal challenging the finding of the Tribunal both on negligence as well as seeking for enhancement of the quantum of compensation. 2. For the sake of convenience, the parties herein are referred as per their rank before the Tribunal. 3. Heard the submissions of learned counsel Sri K.Jeevan, for the appellants/claimants and learned counsel Sri S.V.Hegde Mulkhand, for respondent No.2/insurer. 4. It is the contention of the claimants that the accident occurred when the deceased was standing on the edge of the road and the Tribunal erroneously has recorded a finding that the deceased was negligent to an extent of 25% in causing the accident. That having regard to the material on record, the driver of the offending vehicle ought to have been held as entirely negligent in causing the accident in question. That the quantum of compensation awarded is on the lower side and the same is required to be enhanced. 5. Per contra, learned counsel for the insurer vehemently justifies the finding recorded by the Tribunal on - 4 - HC-KAR NC: 2025:KHC:25652 MFA No. 9736 of 2017 negligence and contends that the deceased was crossing a National Highway and hence, the Tribunal has rightly assessed the negligent at 25%. That the compensation awarded is just and proper and ought not to be interfered with. 6. The submissions of both the learned counsels have been considered and the material on record including the records of the Tribunal have been considered. The questions that arise for consideration are : i. Whether the finding of negligence recorded by the Tribunal is erroneous and liable to be interfered with? ii. Whether the quantum of compensation is liable to be enhanced? Re. question No.(i): 7. It is the case of the claimants that when the deceased was standing by the side of the road i.e., the National Highway No.66, a Tata Sumo vehicle owned by respondent No.1 and insured by respondent No.2 came in a rash and negligent manner and at a high speed, the driver of the vehicle lost control of the same, came to the extreme right side of the road and hit the deceased causing the accident in - 5 - HC-KAR NC: 2025:KHC:25652 MFA No. 9736 of 2017 question. The eye-witness has been examined as PW.2, who was the complainant who lodged the complaint (Ex.P1). PW.2 has deposed that when the deceased was standing on the side of the tar road, the offending vehicle came in a rash and negligent manner and hit the deceased. In the cross- examination, PW.2 has denied the suggestion that the accident occurred in the middle of the road and further stated that the accident occurred at the edge of the road. It is forthcoming from the sketch (Ex.P6) that the road was 28 feet in width and the accident occurred 4 feet from the edge of the road. The Tribunal appreciating the said evidence has recorded a finding that the deceased was negligent to the extent of 25%. 8. In this context, it is relevant to notice that the insurer has denied that the accident occurred due to the rash and negligent driving of the driver of the insured vehicle and it was contended that the accident occurred due to the carelessness and negligent act of the deceased. In order to prove the occurrence of the accident, as averred in the claim petition, the claimants have examined the eye-witness (PW.2), who has deposed as noticed above, more particularly, that the - 6 - HC-KAR NC: 2025:KHC:25652 MFA No. 9736 of 2017 accident occurred at the edge of the road. The insurer has not adduced any oral evidence as also documentary evidence apart from marking the insurance policy as Ex.R1. 9. The insurer has not examined the driver of the offending vehicle. Although it is the contention of the learned counsel for the insurer that the finding of negligence recorded by the Tribunal is just and proper, it is relevant to note that PW.2 has stated that the deceased was standing at the edge of the road and the sketch discloses that the accident occurred at the edge of the road, i.e, about 4 feet from the edge of the road and the driver of the offending vehicle could have avoided the accident. When the road was 28 feet wide, in the absence of the insurer adducing the evidence of the driver of the insured vehicle and having regard to the material available on record, it is just and proper that the finding of negligence recorded by the Tribunal be interfered with and it be held that the deceased was negligent to an extent of 10% in causing the accident in question. 10. Accordingly, question No.(i) is answered partly in the affirmative. - 7 - HC-KAR NC: 2025:KHC:25652 MFA No. 9736 of 2017 Re. question No.(ii): 11. The deceased was aged 53 years as on the date of the accident and the appropriate multiplier assessed by the Tribunal is 11, which is just and proper. The deceased was stated to be a Contractor. However, no documents have been produced to demonstrate his income. The Tribunal assessed the notional income of the deceased as `7,500/- p.m. Having regard to the date of the accident, it is just and proper that the notional income of the deceased be re-assessed as `9,000/- p.m. 12. Having regard to the judgment of the Hon’ble Supreme Court in the case of National Insurance Company Ltd v. Pranay Sethi3, 10% is required to be added towards future prospects and 1/3rd has to be deducted towards personal expenses since the deceased was married and is survived by three dependents. Accordingly, the loss of dependency is re- assessed as (`9,000/- + 10% - 1/3 x12x11) `8,71,200/- as against `6,60,000/- awarded by the Tribunal. 3 (2018) 18 SCC 130 - 8 - HC-KAR NC: 2025:KHC:25652 MFA No. 9736 of 2017 13. Loss of consortium is required to be awarded to the claimants, who are the wife and children of the deceased in terms of the judgment of the Hon’ble Supreme Court in the case of Magma General Insurance Co.Ltd., v. Nanu Ram4 at ₹40,000/- each with escalation at 20%. Accordingly, the loss of consortium is re-assessed as (₹48,000/-x3) ₹1,44,000/-. 14. The compensation towards loss of estate and funeral expenses is also required to be awarded at ₹15,000/- each together with escalation at 20%. Accordingly, the compensation towards the same is re-assessed as ₹18,000/- each. 15. In view of the compensation awarded on conventional heads, the compensation awarded by the Tribunal towards funeral expenses, love and affection, loss of consortium and loss of estate awarded by the Tribunal stand suitably modified/set aside. 16. Accordingly, the quantum of compensation is re- assessed as follows: 4 (2018) 18 SCC 130 - 9 - HC-KAR NC: 2025:KHC:25652 MFA No. 9736 of 2017 Sl.No Compensation Head Amount Awarded by the Tribunal (`) Amount awarded by this Court (`) 1 Loss of dependency 660000.00 871200.00 2 Loss of estate 50000.00 18000.00 3 Loss of consortium 100000.00 144000.00 4 Funeral expenses 35000.00 18000.00 5 Loss of love and affection 200000.00 0.00 Total 1045000.00 1051200.00 17. The Tribunal has, assessed the total compensation of `10,45,000/- and after deducting 25% towards contributory negligence, awarded a compensation of `7,83,750/-. The finding of contributory negligence recorded by the Tribunal, having been interfered with and it having been held that the deceased was negligent to the extent of 10%, the compensation is accordingly re-assessed as (`10,51,200/- - `1,05,120/-) `9,46,080/-. 18. Accordingly, the claimants are entitled to enhanced compensation of (`9,46,080/- - `7,83,750/-) `1,62,330/-. 19. Taking judicial notice of the interest payable towards fixed deposits, it is just and proper to award interest at - 10 - HC-KAR NC: 2025:KHC:25652 MFA No. 9736 of 2017 the rate of 7% p.a., on the compensation as re-assessed by this Court. 20. Hence, question No.(ii) framed for consideration is answered in the affirmative. 21. In view of the aforementioned, the following: ORDER i) The appeal is allowed in part; ii) The judgment and award dated 21.10.2016 passed in MVC No.1175/2015 by the IV Additional District Judge and Member MACT, D.K, Mangaluru, is modified to the extent of holding that the claimants shall be entitled to a further compensation of `1,62,330/- together with interest at 7% p.a., from the date of petition till date of payment in addition to the compensation awarded by the Tribunal. In all other respects, the judgment and award of the Tribunal remains unaltered; iii) The insurer shall deposit the compensation awarded together with accrued interest within six weeks; iv) The enhanced compensation together with accrued interest shall be digitally released in - 11 - HC-KAR NC: 2025:KHC:25652 MFA No. 9736 of 2017 favour of the claimants in terms of the award of the Tribunal; v) The Registry to draw the modified award accordingly; vi) The records of the Tribunal be transmitted to the Tribunal forthwith; No costs. Sd/- (C.M. POONACHA) JUDGE ND List No.: 1 Sl No.: 41