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2023 Supreme(Online)(KAR) 18779
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NC: 2023:KHC-K:7114
MFA No. 200570 of 2017
C/W MFA.CROB No. 200069 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
MISCL. FIRST APPEAL NO. 200570 OF 2017 (MV-D)
C/W
MFA CROSS OBJ NO. 200069 OF 2023
IN MFA NO.200570/2017:
BETWEEN:
THE MANAGER LEGAL,
CHOLAMANDALAM MS GEN. INS. CO. LTD.,
1ST FLOOR, KALABURAGI SQUARE,
DESHPANDE NAGAR, HUBLI,
NOW REPRESENTED THROUGH
MANAGER LEGAL CHOLAMANDALAM MS GEN. INS,
CO. LTD., UNIT NO.4, 9TH FLOOR,
GOLDEN HEIGHTS COMPLEX, 59TH 'C' CROSS,
INDUSTRIAL SUBURB, RAJAJI NAGAR,
4TH M BLOCK, BANGALORE-560 010.
…APPELLANT
(BY SRI. MANJUNATH MALLAYYA SHETTY, ADVOCATE)
AND:
1.
RAMIJABEGUM @ RAMIJA
W/O DASTAGIRSAB SANKANAL,
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
2.
DASTAGIRSAB
S/O GOUSUSAB SANKANAL,
AGE: 40 YEARS, OCC: DRIVER,
BOTH R/O MAHIBUBNAGAR,
Digitally
signed by
LUCYGRACE
Location:
HIGH COURT
OF
KARNATAKA
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NC: 2023:KHC-K:7114
MFA No. 200570 of 2017
C/W MFA.CROB No. 200069 of 2023
MUDDEBIHAL, NOW RESIDING AT
IBRAHIMPUR PETH,
VIJAYAPURA-586 101.
3.
BASHIR AHMED
S/O DASTAGIRSAB KEMBHAVI,
AGE: MAJOR, OCC: BUSINESS,
R/O NEAR ASAR JAMIYA MASJID, TALIKOTI,
TQ. : MUDDEBIHAL, DIST. : VIJAYAPURA-586 101.
(OWNER OF LORRY BEARING
No.KA-28/BEARING REG. NO.-1152)
…RESPONDENTS
(BY SRI. HARSHAVARDHAN R. MALIPATIL ADV., FOR R1 & R2;
SMT. RATNA N. SHIVAYOGIMATH ADV., FOR R3)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 29TH DAY OF SEPTEMBER, 2016 PASSED BY
THE IV ADDL. DISTRICT JUDGE AND MEMBER, MACT-XIII,
VIJAYAPURA IN MVC NO.1345/2015 AND TO MODIFY THE
COMPENSATION AWARDED AND TO PASS SUCH OTHER ORDER
OR ORDERS AS THIS HON'BLE COURT DEEMS FIT UNDER THE
FACTS AND CIRCUMSTANCES OF THE CASE, INCLUDING THE
COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.
IN MFA CROB NO.200069/2023:
BETWEEN:
1.
RAMIJABEGUM @ RAMIJA
W/O DASTAGIRSAB SANKANAL,
AGE: 43 YEARS, OCC: H.H.WORK,
R/O MAHIBOOB NAGAR,
MUDDEBIHAL, NOW RESIDING AT
IBRAHMPUR PETH, VIJAYAPURA-586 101.
2.
DASTGIRSAB S/O GOUSUSAB SANKANAL,
AGE: 45 YEARS, OCC:DRIVER,
R/O MAHIBOOB NAGAR,
MUDDEBIHAL, NOW RESIDING AT
IBRAHMPUR PETH,
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NC: 2023:KHC-K:7114
MFA No. 200570 of 2017
C/W MFA.CROB No. 200069 of 2023
VIJAYAPURA-586 101.
…CROSS-OBJECTORS
(BY SRI. HARSHAVARDHAN R. MALIPATIL ADV., FOR CROSS
OBJECTORS)
AND:
1.
THE BRANCH MANAGER,
CHOLAMANDALAM GEN. INSURANCE CO. LTD.,
1ST FLOOR, KALABURAGI SQUARE,
DESHPANDE, NAGAR,
HUBLI-580 009.
2.
BASHIR AHMED
S/O DASTAGIRSAB KEMBHAVI,
AGE: MAJOR, OCC: BUSINESS,
R/O NEAR ASAR JAMIYA MASJID TALIKOT,
TQ: MUDDEBIHAL,
DIST: VIJAYAPURA-586 101.
…RESPONDENTS
(BY SRI. MANJUNATH MALLAYYA SHETTY ADV., FOR R1;
V/O DATED 24.08.2023 NOTICE TO R2 IS D/W)
THIS MFA CROB IS FILED UNDER ORDER 41 RULE 22 OF
CODE OF CIVIL PROCEDURE ACT PRAYING TO may kindly be
grant Rs.15,00,000/- (EXCULDING THE AMOUNT AWARDED BY
THE TRIBUNAL) ALONG WITH INTEREST BY ENHANCING
MODIFIED THE JUDGMENT AND AWARD OF THE IV ADDL. DIST
JUDGE AND MACT-XIII, VIJAYAPURA, DATED 29.09.2016 IN
MVC NO.1345 OF 2015, IN THE INTEREST OF JUSTICE AND
EQUITY.
This MFA AND MFA CROB, COMING ON FOR ORDERS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Challenging judgment and award dated 29.09.2016
passed by IV Addl. District Judge and Member, MACT-XIII,
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Vijayapura in MVC no.1345/2015, this appeal and cross-
objection are filed.
Shri
Manjunath
Mallayya
Shetty,
learned
counsel for insurance company submitted that appeal was
by insurer challenging finding of tribunal on contributory
negligence while claimants/cross-objectors are seeking
enhancement of compensation. It was submitted that as
per claimants, Maktumsab and his friends on 27.02.2015
were riding on a motorcycle bearing registration no.KA-
37/E-9988, when driver of lorry bearing registration
no.KA-28/B-1152 drove it in rash and negligent manner
and dashed against motorcycle inflicting fatal injuries on
Maktumsab. Alleging loss of dependency on account of
untimely death, parents of Maktumsab filed claim petition
under Section 166 of Motor Vehicles Act against owner and
insurer of lorry.
On contest wherein claim petition was opposed
on all counts including violation of terms and conditions of
policy, tribunal framed issues and recorded evidence.
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Claimant no.1 was examined as PW.1 and Exs.P.1 to P.7
were got marked. Official of insurer was examined as
RW.1 and Ex.R1 was got marked.
4.
On consideration, tribunal held that accident
was due to rash and negligent driving of insured vehicle by
its driver and Maktumsab died due to injuries sustained in
accident. It assessed compensation of `7,73,000/- and
held insurer liable to pay same with 6% interest. However,
while passing said award, tribunal did not consider
contributory negligence on part of rider of motorcycle.
5.
It was submitted that Maktumsab was riding
motorcycle with three pillion riders and since deceased
was unable to control motorcycle and accident was head-
on collision, same contributed for occurrence of accident
Failure of tribunal to consider this aspect and apportion
contributory negligence against rider, resulted in error. On
said ground, sought for allowing appeal.
6.
On other hand, Shri Harshavardhan R.Malipatil,
learned counsel for claimants/cross-objectors submitted
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that insofar as connected claim petitions, it was held that
entire negligence for causing accident was on lorry driver.
Said findings were confirmed by Division Bench in MFA
no.202144/2017 and connected matters disposed of on
24.01.2023 and therefore there was absolutely no merit in
appeal.
7.
For
enhancement,
it
was
submitted
that
deceased- Maktumsab was 21 years doing Centering work
and earning `20,000/- per month. However tribunal
considered notional income of `6,000/- and without adding
future prospects, awarded inadequate compensation and
even award under other heads called for enhancement.
8.
Heard learned counsel for parties. Perused
impugned judgment and award as well as records.
9.
From
above
submission,
since
insurer
is
challenging award on finding regarding contributory
negligence and claimants are seeking for enhancement of
compensation,
following
points
would
arise
for
consideration :
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“(i) Whether
finding
of
tribunal
on
contributory
negligence
calls
for
interference ?
(ii)
Whether
claimants
are
entitled
for
enhancement of compensation ?”
Point no.(i) :
10.
In order to establish actionable negligence
against lorry driver, claimants have relied on FIR,
Complaint,
Panchanama,
Inquest
panchanama,
Post
mortem report, Motor Vehicles report and Charge-sheet as
Exs.P.1 to P.7. On other hand, insurer has merely
produced insurance Policy as Ex.R1. On perusal of police
investigation records, it is seen that based on complaint,
FIR was registered against driver of lorry and after
investigation, charge-sheet is filed.
11.
It is further seen that in MFA no.202379/2017
and connected appeals filed by insurer against awards in
claim petitions arising out of same accident, this Court has
analyzed manner of occurrence of accident and held
against insurer. Division Bench has taken note of fact that
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accident occurred three feet from left side
