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2023 Supreme(Online)(KAR) 19940
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MFA No. 5787 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 5787 OF 2015 (MV-D)
BETWEEN:
1.
SMT. MANJULA
W/O LATE MANJUNATHA
AGED ABOUT 24 YEARS,
2.
MASTER.M.SHEKAR
S/O LATE MANJUNATHA
AGED ABOUT 4½ YEARS,
3.
SRI.JELLY NARAYANAPPA
S/O LATE JELLY VENKATARAYAPPA
AGED ABOUT 69 YEARS,
4.
SMT. MUNIYAMMA
W/O JELLY NARAYANAPPA
AGED ABOUT 54 YEARS,
SINCE APPELLANT NO.2 MINOR
BEING REPRESENTED BY
HIS MOTHER-CUM-NATURAL GAURDIAN
SMT. MANJULA APPELLANT NO.1
ALL ARE R/AT YERRA LAKKENAHALLI VILLAGE,
BEECHAGANAHALLI VILLAGE,
SOMANAHALLY HOBLI,
GUDIBANDA TQ.
CHIKKABALLAPURA DISTRICT
…APPELLANTS
(BY SMT. SUGUNA R.REDDY, ADVOCATE)
Digitally signed by
JAI JYOTHI J
Location: HIGH
COURT OF
KARNATAKA
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MFA No. 5787 of 2015
AND:
1.
SRI BHARATH NANDAN
S/O N.RAMAKRISHNA, MAJOR IN AGE
R/AT NO.439, GROUND FLOOR,
12TH CROSS, DASARAHALLI ROAD
BHUVANRSHWARI NAGAR,
HEBBAL, BANGALORE-27
2.
THE BRANCH MANAGER
NATIONAL INSURANCE CO. LTD
NEAR DOOMLIGHT CIRCLE, NO.12/2,
NEW EXTENSION,
KOLAR-01.
3.
SRI NARAYANA SWAMY
S/O SRIRAMAPPA,
MAJOR IN AGE,
R/AT CHOLASHETTY VILLAGE,
GOWRIBIDANUR TQ,
CHIKKABALLAPUR DISTRICT.
…RESPONDENTS
(BY
SRI
RAVISH
BENNI,
ADVOCATE
FOR
R2,
R1-NOTICE
DISPENSED
WITH
V/O
DTD:12-12-2022,
R3-SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:6.5.2015 PASSED IN MVC
NO.2640/2012 ON THE FILE OF THE 8TH ADDITIONAL SMALL
CAUSES JUDGE, 33RD ACMM, MEMBER, MACT, BENGALURU,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 5787 of 2015
The
present
appeal
is
filed
by
the
appellants/claimants challenging the judgment and award
dated 06.05.2015 in MVC.No.2640/2012 passed by VIII
Addl. Small Causes Judge and MACT (SCCH-5), Bengaluru,
questioning the attribution of 30% of contributory
negligence on the part of the deceased and also for
seeking enhancement of compensation.
Brief facts of the case are that, on 04.03.2012
when
the
deceased-Manjunatha
was
moving
from
Beechaganahalli village on his TVS Max No.KA-40-R-2797
another vehicle bearing No.KA-01-MD-6330 driven in a
rash and negligent manner had struck the two wheeler
from rear side, resulting in death of the deceased-
Manjunatha.
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Heard the arguments from both sides and
perused the records.
Learned counsel for the appellants/claimants
submitted that the finding of the Tribunal is that the
deceased
has
also
attributed
30%
of
contributory
negligence because of the fact that the deceased has not
worn headgear, hence, contributory negligence cannot be
sustained, since that finding is only speculative in nature.
Therefore, submitted that the rash and negligent aspect is
to be ascertained as to who was driving the vehicle rashly
and negligently. Therefore, submitted that the said finding
is not correct. Further submitted that the quantum of
compensation awarded by the Tribunal is on the lesser
side. Therefore, prays for enhancement of compensation.
5.
Learned counsel for the appellants/claimants
placed reliance on the judgments of the Hon’ble Supreme
Court and this Court as under:
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i.
Suma G., and others Vs. Mohan and
Another reported in 2022(1) AKR 746;
ii.
Puttasiddamma
alias
Puttasiddi
and
another Vs. State of Karnataka reported in 2022(1)
AKR 749;
iii.
Meera Devi and another Vs. Himachal
Pradesh Road Transport Corporation and Others
reported in (2014) 4 SCC 511;
iv.
Assistant Electrical Engineer Vs. Satyendra
Rai and Another reported in (2014) 4 SCC 513;
v.
Sudhir Kumar Rana Vs. Surinder Singh &
Others reported in 2008 AIR SCW 3981; and
vi.
Indian Mercantile I.B Asson (Tenants) Vs.
Union of India & Others reported in 2008 AIR SCW
3983.
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6.
On
the
other
hand,
learned
counsel
for
respondent
No.2-Insurance
Company
submitted
that
non-wearing of helmet by the deceased itself is the
contributory aspect and that is correctly held by the
Tribunal. Therefore, prays to dismiss the appeal. Further
submitted that the quantum of compensation is correctly
assessed, which needs no interference.
7.
Learned counsel for respondent No.2-Insurance
Company placed reliance on the judgment of this Court in
the case of The Oriental Insurance Co., Ltd., Vs. Sri
Naresh Babu N., and Others1.
8.
By
placing
reliance
on
the
above
said
judgments, learned counsel for respondent No.2-Insurance
Company argued that this Court on the reason that the
deceased had not worn helmet and also the deceased was
not holding driving licence to drive the vehicle, therefore,
1 MFA.No.7074/2016 DD.06.12.2017
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attributing entire negligence on the part of the deceased,
thus allowed the appeal filed by the Insurance Company.
Therefore, submitted that, the present case also, it is
squarely
covered
by
the
above
stated
judgments.
Therefore, prays to dismiss the appeal.
9.
The factum of accident and death of the
deceased is not disputed. The Tribunal had observed that
the deceased had not worn helmet and if the deceased
had worn helmet, then the deceased might not have died.
Therefore, opined that non-wearing of helmet is also
contributory factor, hence, fastened 30% of contributory
negligence on the part of the deceased. Further opined
that the deceased was not possessing driving licence.
Therefore, this is also one of the contributory factor. Thus,
it is held that the deceased also contributed his negligence
towards the accident. But upon considering the accident
occurred, the accident is between car and motorcycle. The
deceased was driving the motor cycle bearing No.KA-40-R-
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2797 and at that time, th
