- 1 - NC: 2025:KHC-K:1529 MFA No. 201640 of 2018 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 7TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE C.M. JOSHI MISCL. FIRST APPEAL NO.201640/2018(MV-D) BETWEEN: SHASHIKALA W/O. BALAJI SINGH, AGE: 55 YEARS, OCC: HOUSEHOLD, R/O. JAYANAGAR, MANVI, NOW R/AT H.NO.6-2-139/28, BRB COLLEGE ROAD, NEAR MANIK NAGAR, RAICHUR. …APPELLANT (BY SRI VEERANAGOUDA MALIPATIL, ADVOCATE) AND: 1. CHINNAPPANGARI VISHWANTHAN S/O C. CHINNAPPAN, AGE: MAJOR, OCC: BUSINESS & OWNER OF TRACTOR BEARING REGD.NO.AP-03/TA-6273 & TROLLY BEARING NO.AP-03/TA-6274, R/O. # 12-15/1, PRAKASM ROAD, KUPPAM, CHITTOOR DIST. ANDHRA PRADESH-517 425. Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1529 MFA No. 201640 of 2018 2. THE UNITED INDIA ASSURANCE CO. LTD., NO.8-64, 8/172/8, BNG LAYOUT, IB ROAD, KUPPAM, CHITTOOR DIST., POLICY NO.051681311P105808905 VALID FROM 30.10.2014 TO 29.10.2015 THROUGH ITS BRANCH MANAGER, RAICHUR-584 102. 3. KESAR BAI W/O SHESHARAM SINGH, AGE: 86 YEARS, OCC: HOUSEHOLD, 4. RAGHU SINGH S/O BALAJI SINGH, AGE: 42 YEARS, OCC: PRIVATE SERVICE, 5. VENKAT SINGH S/O BALAJI SINGH, AGE: 32 YEARS, OCC: PRIVATE EMPLOYEE, RESPONDENT NOs.3 TO 5 ARE R/O MUDGAL, TQ. LINGASUGUR, NOW R/AT C/O. RAGHU SINGH, ASSISTANT MANAGER, J.K. FENNAR INDIA LTD., FIVE STAR, MIG-III, BHEL, RAMACHANDRAPURAM, HYDERABAD-500 032. 6. PADMA D/O BALAJI SINGH & W/O SATISH SING, AGE: 37 YEARS, OCC: HOUSEHOLD, R/O BANGALORE, NOW R/AT C/O RAGHU SINGH, ASSISTANT MANAGER, J.K. FENNAR INDIA LTD., FIVE STAR, MIG-III, BHEL, RAMACHANDRAPURAM, HYDERABAD-502 032. …RESPONDENTS (BY SRI RAHUL R. ASTURE, ADV. FOR R2; R1, R3 & R4 TO R6 - NOTICE DISPENSED WITH) - 3 - NC: 2025:KHC-K:1529 MFA No. 201640 of 2018 THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 03.07.2018, PASSED BY THE II ADDL. DIST. AND SESSIONS JUDGE, AT RAICHUR, IN MVC NO.68/2016 AND ENHANCE THE COMPENSATION AND FURTHER FIX THE ENTIRE LIABILITY TO PAY COMPENSATION ON THE 1ST AND 2ND RESPONDENT. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C.M. JOSHI ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE C.M. JOSHI) 1. Heard learned counsel appearing for the appellant and the learned counsel appearing for respondent No.2 – Insurance Company. 2. The petitioner-claimant is in this appeal against the judgment and award dated 03.07.2017 passed in MVC No.68/2016 by the II Additional District and Sessions Judge, Raichur, (hereinafter referred to as ‘the Tribunal’ for the sake of convenience), seeking indulgence of this Court regarding the contributory negligence in causing the alleged accident and the quantum of the compensation awarded by the - 4 - NC: 2025:KHC-K:1529 MFA No. 201640 of 2018 Tribunal on account of death of her husband in a road traffic accident. 3 The petitioner is wife of the deceased Balaji Singh, who succumbed to the injuries sustained in an accident that occurred on 19.09.2015. It was contended that, on that day at about 7:30 p.m., near Karegudda Cross on Kavital-Hirekotnekal Road, the driver of the Tractor bearing No.AP- 03/TA-6273 along with its Trailer had parked it on the road without any parking signals and indicators. The deceased Balaji Singh, aged 62 years, who was a pensioner was proceeding on his motorcycle bearing No.KA- 36/W-4664 and dashed to the said Tractor from behind and sustained injuries and succumbed to the same. It was contended that the deceased Balaji Singh was working in Hutti Gold Mines and he had retired about 2 years back and was receiving Rs.10,000/- per month as pension and was also doing business, by which, he was earning another sum of Rs.10,000/- every month. The concerned Police had registered the case and had filed the charge-sheet against - 5 - NC: 2025:KHC-K:1529 MFA No. 201640 of 2018 the driver of the tractor-trailer-unit as well as the deceased for their negligence. 4. On being served with the notice, respondent No.2 - Insurance Company alone appeared before the Tribunal and resisted the petition contending that the negligence was on the part of the deceased, since he did not exercise any precaution while driving on the road during night hours. It was contended that the tractor-trailer-unit was parked by the side of the road with signals and stones, etc., and therefore, the petition deserves to be dismissed. Inter alia, it also denied its liability, on the ground that the Tractor driver was not having a valid and effective driving license at the time of accident. 5. On the basis of the above pleadings, appropriate issues were framed by the Tribunal and the petitioner was examined as PW1 and an eyewitness of the accident was examined as PW2. Exs.P1 to P6 were marked on behalf of the petitioner. The respondent No.2 examined its official as RW1 and Ex.R1 was marked. - 6 - NC: 2025:KHC-K:1529 MFA No. 201640 of 2018 6. After hearing the arguments, the Tribunal came to the conclusion that the deceased had contributed negligence to the extent of 30% and it determined the compensation of Rs.5,61,000/- and ordered for deduction of 30% from it towards the contributory negligence of the deceased. Aggrieved by the said judgment and award, the petitioner is before this Court in appeal. 7. Learned counsel appearing for the appellant- petitioner would submit that the charge-sheet having been filed against the driver of the tractor-trailer-unit, the deceased being aged about 62 years, it being night hours, there should not have been any negligence that could be attributed to the deceased. It is submitted that the conclusions of the Tribunal that the testimony of PW1 cannot be believed in respect of the pension amount received by the deceased is also not correct and there is no justification for the Tribunal to adopt the income of Rs.6,000/- per month while calculating the compensation. 8. Per contra, learned counsel for respondent No.2 – Insurance Company defends the impugned judgment - 7 - NC: 2025:KHC-K:1529 MFA No. 201640 of 2018 contending that in the absence of any other material to show diligence on the part of the deceased, the contributory negligence assessed at 30% is proper and correct. He also submits that the quantum of compensation also need not be interfered with, since, there is no material produced to show the pension amount received by the deceased. 9. A careful perusal of the Tribunal records would reveal that the accident had occurred on Kavital-Hirekotnekal Road which is 18 feet wide, wherein, the deceased was coming on the road and the tractor-trailer-unit was parked on the left side of the road. The accident occurred at 7.30 p.m., and it was dark. The police papers also indicate that the tractor driver had parked the tractor-trailer-unit without there being any indicators, especially the reflectors at the back of the trailer. It is obvious that the trailer will not have any glowing parking lights, but it was incumbent upon the driver of the tractor to have fixed the reflectors as a safety measure. The investigation papers show that no such reflectors were fixed at the back. - 8 - NC: 2025:KHC-K:1529 MFA No. 201640 of 2018 10. So far as the negligence on the part of the deceased is concerned, he was aged about 62 years and was retired employee of Hutti Gold Mines. This fact is also borne out of the investigation papers, which are produced at Ex.P1 to 6. It is worth to note that the cross-examination of the PW1 also shows that the deceased was aged about 62 years and he had retired from his services at Hutti Gold Mines. Thus, the age of the deceased and the fact that he was a retired employee would make this Court to believe that he was not so negligent as a youngster could have been. Therefore, the negligence of 30% attributed to the deceased by the Tribunal appears to be without any justification. Nevertheless, it cannot be said that there is absolutely no negligence on the part of the deceased. It was also incumbent upon him that he should have driven in a manner, by which he could have controlled his vehicle after seeing obstacle in the headlights of his two wheeler. Therefore, it is evident that there was certain contributory negligence on the part of the deceased, but certainly it is lesser than the 30% assessed by the Tribunal. In the considered opinion of this - 9 - NC: 2025:KHC-K:1529 MFA No. 201640 of 2018 Court, bearing in mind the age of the deceased and that he was riding motorcycle and the other vehicle involved in the accident is a tractor-trailer-unit, it would be just and proper to assess the contributory negligence at 15%. 11. Coming to the quantum of the compensation, though it is contended by the petitioner that he was a retired employee of the Hatti Gold Mines, no documentary evidence is produced in this regard. The petitioner could have very well produced pension papers to show that the deceased was getting pension. However, it is relevant to note that the police papers clearly indicate that the deceased was a retired employee of Hatti Gold Mines and it was two years after his retirement. The police papers also indicate that the deceased used to go to Hatti Gold Mines on two wheeler every month to receive his pension. Under these circumstances, it is difficult to discard the say of PW1 and the police papers, which indicate he was a retired employee of the Hatti Gold Mines. Under these circumstances, adopting the notional income may not be justifiable. Notional income is to be adopted wherever there is - 10 - NC: 2025:KHC-K:1529 MFA No. 201640 of 2018 absolutely no material to show the income. In the case on hand there is material to show that he was receiving pension. But the quantum of the pension is not known. In that view of the matter, the income of the deceased has to be held at slightly higher rate than the notional income. 12. PW1 has stated in her testimony that the deceased was receiving Rs.10,000/- per month by way of pension. The notional income and the minimum wages for the year 2015 being around Rs.8,000/- the pension received by the deceased is accepted at Rs.10,000/- per month. In that view of the matter, the quantum of compensation is calculated as Rs.10,000/- x 12 x 2/3 x 7 = Rs.5,60,000/-. In addition to it, the petitioner is also entitled for a sum of Rs.52,000/- under the head of loss of consortium, a sum of Rs.19,500/- under the head of funeral expenses and another sum of Rs.19,500/- under head of loss of estate. In all, Rs.6,51,000/-. Out of this amount, 15% is to be deducted towards contributory negligence, resulting in the dependents entitled for 85% only, which comes to Rs.5,53,350/-. - 11 - NC: 2025:KHC-K:1529 MFA No. 201640 of 2018 13. In the result, the appeal deserves to be allowed in part and hence, the following: ORDER (i) The appeal is allowed in part. (ii) The impugned judgment and award passed by the Tribunal is hereby modified. (iii) The appellant and respondent No.3 are entitled for a sum of Rs.5,53,350/- with interest at the rate of 6% per annum from the date of petition till realization in the place of the compensation awarded by the Tribunal. (iv) The respondent No.2 – Insurance Company is directed to deposit the enhanced compensation along with interest within a period of 06 weeks from the date of receipt of a copy of this judgment. (v) The order passed by the Tribunal regarding apportionment, deposit and release is remained unaltered. Sd/- (C.M. JOSHI) JUDGE SBS List No.: 1 Sl No.: 62 CT: AK