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2023 Supreme(Online)(KAR) 6105
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MFA No. 8832 of 2018 C/W
MFA No. 9898 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.8832 OF 2018 C/W
MISCELLANEOUS FIRST APPEAL NO.9898 OF 2018(MV-D)
IN M.F.A.No.8832/2018
BETWEEN:
1.
THE ORIENTAL INSURANCE COMPANY LIMITED,
TP HUB, REGIONAL OFFICE,
LEO SHOPPING COMPLEX,
NO.44/46, RESIDENCY ROAD CROSS,
BENGALURU – 560 025.
NOW REPRESENTED BY MANAGER LEGAL.
…APPELLANT
(BY SRI. ASHOK N PATIL., ADVOCATE)
AND:
1.
SWETHA,
W/O LATE SIDDARAJU,
AGED ABOUT 28 YEARS,
2.
MEGHANA S.,
D/O LATE SIDDARAJU,
AGED ABOUT 9 YEARS,
3.
KUSHAL DURGA S,
S/O LATE SIDDARAJU,
AGED ABOUT 02 YEARS,
Digitally signed
by JAI JYOTHI J
Location: HIGH
COURT OF
KARNATAKA
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MFA No. 8832 of 2018 C/W
MFA No. 9898 of 2018
4.
REVANNA ,
S/O BORAIAH,
AGED ABOUT 61 YEARS,
5.
VENKATAMMA,
W/O REVANNA,
AGED ABOUT 58 YEARS,
ALL ARE R/AT KERE BEEDI,
KANAKAPURA TOWN,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT.
RESPONDENT NO.2 AND 3 ARE MINORS
AND HENCE REP. THEIR MOTHER AND
NATURAL GUARDIAN RESPONDENT NO.1
6.
HANUMEGOWDA,
S/O CHIKKAKEMPEGOWDA,
MAJOR,
R/AT KOKKAREHOSAHALLI VILLAGE,
UYYAMBALLI HOBLI,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT.
7.
THE NEW INDIA ASSURANCE CO.LTD.,
REGIONAL OFFICE,
NO.9, 2ND FLOOR,
MAHALAKSHMI CHAMBERS,
M.G.ROAD,
BENGALURU – 01.
8.
KRISHNA,
S/O THOVASAIAH,
R/AT KERE BEEDI,
KANAKAPURA TOWN,
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MFA No. 8832 of 2018 C/W
MFA No. 9898 of 2018
KANAKAPURA TALUK,
RAMANAGARA DISTRICT.
…RESPONDENTS
(BY SMT.NITHYA, ADVOCATE FOR
SRI.PRAKASH M.H., ADVOCATE FOR R1 TO R5;
R6 TO R8 ARE SERVED;
SRI.E.I.SANMATHI, ADVOCATE FOR R7)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 13.07.2018 PASSED IN MVC
NO.392/2016 ON THE FILE OF THE I ADDITIONAL SMALL
CAUSES JUDGE & MACT, BENGALURU [SCCH-11], AWARDING
COMPENSATION OF RS.14,81,200/- WITH INTEREST @ 6% P.A
FROM
THE
DATE
OF
PETITION
TILL
THE
DATE
OF
REALIZATION.
IN M.F.A.No.9898/2018
BETWEEN:
1.
SMT.SHWETHA,
W/O LATE SIDDARAJU,
AGED ABOUT 29 YEARS,
2.
MEGHANA S.,
D/O LATE SIDDARAJU,
AGED ABOUT 10 YEARS,
3.
KUSHAL DURGA S,
S/O LATE SIDDARAJU,
AGED ABOUT 03 YEARS,
4.
REVANNA ,
S/O BORAIAH,
AGED ABOUT 62 YEARS,
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MFA No. 8832 of 2018 C/W
MFA No. 9898 of 2018
5.
VENKATAMMA,
W/O REVANNA,
AGED ABOUT 59 YEARS,
ALL ARE R/AT KERE BEEDI,
KANAKAPURA TOWN,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT – 562 117.
APPELLANT NO.2 AND 3 ARE MINORS
AND HENCE REP. BY THEIR MOTHER AND
NATURAL GUARDIAN APPELLANT NO.1
…APPELLANTS
(BY SMT.NITHYA, ADVOCATE FOR
SRI.PRAKASH M.H., ADVOCATE)
AND:
1.
HANUMEGOWDA,
S/O CHIKKAKEMPEGOWDA,
MAJOR,
R/AT KOKKAREHOSAHALLI VILLAGE,
UYYAMBALLI HOBLI,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT.
2.
THE NEW INDIA ASSURANCE CO.LTD.,
REGIONAL OFFICE,
NO.9, 2ND FLOOR,
MAHALAKSHMI CHAMBERS,
M.G.ROAD,
BENGALURU – 560 001.
REPRESENTED BY ITS MANAGER.
3.
KRISHNA,
S/O THOVASAIAH,
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MFA No. 8832 of 2018 C/W
MFA No. 9898 of 2018
R/AT KERE BEEDI,
KANAKAPURA TOWN,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT – 562 117.
4.
THE ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE,
LEO SHOPPING COMPLEX,
NO.44/45, RESIDENCY ROAD,
BENGALURU – 560 025.
REPRESENTED BY ITS MANAGER.
…RESPONDENTS
(BY SRI.E.I.SANMATHI, ADVOCATE FOR R2;
SRI.ASHOK N PATIL., ADVOCATE FOR R4;
R1 NOTICE HELD SUFFICIENT VIDE ORDER
DATED 29.10.2022; R3 – NOTICE SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 13.07.2018 PASSED IN MVC
NO.392/2016 ON THE FILE OF THE I ADDITIONAL SMALL
CAUSES JUDGE & MACT, BENGALURU [SCCH-11], PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
The apportionment of liability for a motor vehicle accident and the assessment of contributory negligence are based on the specific facts and circumstances of each case.
Headnote:
MOTOR VEHICLE ACCIDENT - RASH AND NEGLIGENT DRIVING - APPORTIONMENT OF LIABILITY - QUANTUM OF COMPENSATION - ENHANCEMENT - CONTRIBUTORY NEGLIGENCE - ABSENCE OF HELMET - EFFECT
Fact of the Case:
The deceased was a pillion rider on a motorcycle that was involved in an accident with another motorcycle. The Tribunal apportioned liability for the accident equally between the drivers of both motorcycles and awarded compensation to the claimants. The insurance company appealed, arguing that the deceased was also negligent for not wearing a helmet and that the apportionment of liability should be revised. The claimants cross-appealed, seeking an enhancement of the compensation awarded.
Finding of the Court:
The Court held that the Tribunal was correct in apportioning liability equally between the drivers of both motorcycles, as there was no head-on collision and both drivers had contributed to the accident. The Court also held that the deceased's failure to wear a helmet did not amount to contributory negligence. The Court further held that the Tribunal had erred in calculating the deceased's age and income, and revised the quantum of compensation accordingly.
Issues: 1. Whether the apportionment of liability for the accident was correct.2. Whether the deceased's failure to wear a helmet amounted to contributory negligence.3. Whether the Tribunal had erred in calculating the deceased's age and income.
Ratio Decidendi: 1. The apportionment of liability for the accident was correct as there was no head-on collision and both drivers had contributed to the accident.2. The deceased's failure to wear a helmet did not amount to contributory negligence.3. The Tribunal had erred in calculating the deceased's age and income, and the quantum of compensation was revised accordingly.
Final Decision: The Court allowed the insurance company's appeal in part and the claimants' cross-appeal in part. The apportionment of liability for the accident was upheld, but the quantum of compensation was enhanced.
MFA
No.8832/2018
is
filed
by
the
Insurance
Company challenging the judgment and award dated
13.07.2018 passed in MVC.No.392/2016 by the MACT,
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Bangalore (SCCH-11), quantum of compensation as well
as rash and negligent aspect.
MFA No.989/2018 is filed by the claimants
challenging the aforesaid judgment and award seeking
enhancement of compensation.
The brief facts of the case are that on
09.05.2015 at about 12.30 p.m., the deceased Siddaraju
@ Siddappa was proceeding in a motorcycle bearing
No.KA-42-L-8325 as a pillion rider, when he reached near
Anjaneya Temple, Kokkarehosahalli Village, Uyyamballi
Hobli, Kanakapura Taluk, Ramanagara District, at that
time, another motorcycle bearing No.KA-51-Q-6655 came
in a rash and negligent manner and dashed against the
motorcycle, in which the deceased was proceeding. Due to
the impact, the deceased succumbed to the injuries.
Therefore, the claimants have filed claim petition under
Section 166 of the MV Act seeking compensation.
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Heard the arguments on both sides and perused
the records.
The Tribunal has awarded the compensation
under various heads as follows:
Sl.No.
Particulars
Amount (in.Rs.)
Loss of estate
15,000.00
Loss of consortium
40,000.00
Funeral expenses
15,000.00
Loss of dependency
14,11,200.00
Total
14,81,200.00
Learned counsel appearing for the appellant-
Insurance Company in MFA No.8832/2018 submitted that
the rider of the motorcycle bearing No.KA-51-Q-6655 does
not have driving license. Therefore, he is not expertise in
driving the motorcycle. Hence, his contribution to the
accident is more in proportion in comparison to the rider of
the motorcycle bearing No.KA-42-L-8325. Therefore, it is
submitted that the rash and negligent aspect made by the
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Tribunal in the ratio of 50:50 is not correct. Hence,
requested the rider of the motorcycle bearing No.KA-51-Q-
6655 would be fastened more in proportion.
Further, it is submitted that the deceased has
not worn helmet even though as a pillion rider. Therefore,
the deceased has also contributed his negligence. Hence, a
contributory negligence be made on the part of the
deceased also.
Further, it is submitted that the deceased was
36 years old as from Ex.P12-election identity card but the
Tribunal has committed an error in taking the deceased
age as 35 years old. Therefore, it is submitted that the age
of the deceased can be considered as 36 years old. Hence,
prays for modification of the quantum of compensation as
well the apportionment of rash and negligent aspect as
submitted above.
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9.
On the other hand, learned counsel appearing
for the appellants/claimants submitted that the rash and
negligent aspect made by the Tribunal in the ratio of
50:50 is correct, which needs no interference. Further,
submitted that just because the deceased being a pillion
rider has not worn helmet that would not be a ground to
say that the deceased has contributed negligence.
Therefore, it is submitted that the deceased was not rash
and negligent. Further, it is submitted that the quantum of
compensation awarded by the Tribunal is on the lesser
side. Hence, prays for enhancement of the compensation.
REGARDING RASH AND NEGLIGENT ASPECT:
10. In the present case, the deceased was a pillion
rider in motorcycle bearing No. KA-42-L-8325. There is no
head on collision between the two motorcycle bearing
No.KA-42-L-8325 and No.KA-51-Q-6655. The Tribunal has
fastened the liability on both
the
drivers of the
motorcycles at equal proportion in the ratio of 50:50. Just
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because the driver of the motorcycle bearing No.KA-51-Q-
6655 was not having driving license that does not mean
that he is solely responsible for the accident. The driver of
the motorcycle bearing No.KA-42-L-8325 if had driven the
motorcycle in conscious and careful manner then the
accident would have been avoided. Also, more particularly
upon perusing the evidence on record, after investigation
by the police, the charge sheet is filed against both
