Murughendra S/O Sivalingappa Torli Vs Pavan B.Udupudi and Ors.

MISCL. FIRST APPEAL NO.202112 OF 2016(MV-I), MISCL. FIRST APPEAL NO.202113 OF 2016(MV-I), MISCL. FIRST APPEAL NO.202114 OF 2016(MV-I), MISCL. FIRST APPEAL NO.200264 OF 2017(MV-I), MISCL. FIRST APPEAL NO.200265 OF 2017(MV-I), MISCL. FIRST APPEAL NO.200266 OF 2017(MV-I), MFA CROSS OBJ NO.200034 OF 2019(MV-D)

¶13

IN MFA NO.200467/2019:

¶14

BETWEEN:

¶15

Digitally signed by NIJAMUDDIN JAMKHANDI Location: HIGH COURT OF KARNATAKA

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THE MANAGER LEGAL

¶17

CHOLAMANDALAM MS GEN. INS. CO. LTD. UNIT NO.4, 9^TH FLOOR, LEVEL-06, GOLDEN HEIGHTS COMPLEX, 59^TH ‘C’ CROSS, INDUSTRIAL SUBURB, RAJAJI NAGAR, 4^TH MAIN, BENGALURU-560010.

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…APPELLANT

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(BY SRI MANJUNATH MALLAYYA SHETTY, ADVOCATE)

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AND:

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SMT. GEETA W/O VINAY @ VINAYAK JANGAMSHETTY, AGE: 28 YEARS, OCC: HOUSEHOLD,

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2 - NC: 2025:KHC-K:2096-DB MFA No. 200467 of 2019 C/W MFA No. 202112 of 2016 MFA No. 202113 of 2016 AND 5 OTHERS

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R/O W. NO. 12, BLDEA ROAD, BASAVESHWAR COLONY, VIJAYPUR-586101

¶24

SMT. MAHADEVI D/O MOHAN JANGAMSHETTY, AGE: 58 YEARS, OCC: HOUSEHOLD, R/O. W. NO. 12, BLDEA ROAD, BASAVESHWAR COLONY, VIJAYPUR-586101

¶25

MR. PAVAN B. UDUPUDI, PROP: M/S PAVAN LOGISTICS, AGE: 48 YEARS, OCC: BUSINESS, R/O LOKAPUR, TQ: MUDHOL DIST: BAGALKOT-587101.

¶26

KARABASAPPA S/O HANAMANTH LAVAGI, AGE: 45 YEARS, OCC: BUSINESS, R/O P NO.29, BASAVA NILAYA NEAR DCC BANK HO K C. NAGAR VIJAYAPURA-586101. (OWNER OF CAR NO KA-28-M-8453)

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THE DIVISIONAL MANAGER UNITED INDIA INSURANCE COMPANY LIMITED SANGAM BUILDING, P B NO 60 S. S. FRONT ROAD, VIJAYAPUR-586101.

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…RESPONDENTS

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(BY SRI S. S. MAMADAPUR, ADVOCATE FOR R-1 AND R-2; NOTICE TO R-3 AND R-4 SERVED; SRI SANJAY M. JOSHI, ADVOCATE FOR R-5)

¶30

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 25^TH DAY OF JUNE, 2018 PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL NO.3, VIJAYAPURA IN MVC NO.1744/2016 AND TO MODIFY THE COMPENSATION AWARDED.

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3 - NC: 2025:KHC-K:2096-DB MFA No. 200467 of 2019 C/W MFA No. 202112 of 2016 MFA No. 202113 of 2016 AND 5 OTHERS

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IN MFA NO.202112 OF 2016:

¶33

BETWEEN:

¶34

THE MANAGER LEGAL, CHOLAMANDALAM MS GEN.INS.CO.LTD NEAR LAXMI TEMPLE M. G. ROAD, VIJAYAPUR NOW REPRESENTED THROUGH MANAGER LEGAL CHOLAMANDALAM MS GEN.INS. CO. LTD., UNIT NO.4, 9^TH FLOOR, GOLDEN HEIGHTS COMPLEX, 59^TH ‘C’ CROSS, INDUSTRIAL SUBURB, RAJAJI NAGAR, 4^TH M BLOCK, BANGALORE-560010.

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…APPELLANT

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(BY SRI MANJUNATH MALLAYYA SHETTY, ADVOCATE)

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AND:

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MURUGENDRA S/O SHIVALINGAPPA TORLI, AGE: 31 YEARS, OCC: TAX PRACTITIONER, R/O GURUKUL ROAD, VIJAYAPURA-586101.

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PAVAN B.UDUPUDI, PROP: PAVAN LOGISTICS, A/P: LOKAPUR, TQ.MUDHOL, DIST.BAGALKOT - 587122.

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KARABASAPPA S/O HANAMANTH LAVAGI, AGE: 41 YEARS, OCC: BUSINESS, R/O P.NO.29, BASAVAN NILAYA, NEAR DCC BANK, H.O., K.C. NAGAR, VIJAYAPUR.-586101.

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THE MANAGER, UNITED INDIA INSURANCE CO. LTD. SANGAM BUILDING, P.B.NO.60, S.S.FRONT ROAD, VIJAYAPURA-586101.

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…RESPONDENTS

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4 - NC: 2025:KHC-K:2096-DB MFA No. 200467 of 2019 C/W MFA No. 202112 of 2016 MFA No. 202113 of 2016 AND 5 OTHERS

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(BY SRI SANGANABASAVA B. PATIL, ADVOCATE FOR R-1; SRI MANVENDRA REDDY, ADVOCATE FOR R4; NOTICE TO R-2 AND R-3 SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND AWARD DATED 24^TH DAY OF AUGUST, 2016 PASSED BY THE MOTOR ACCIDENTS CLAIMS TRIBUNAL NO.III, VIJAYAPUR AT VIJAYAPURA IN MVC NO.38/2015 AND TO MODIFY THE COMPENSATION AWARDED.

¶46

IN MFA NO.202113 OF 2016:

¶47

BETWEEN:

¶48

THE MANAGER, CHOLAMANDALAM MS GEN.INS.CO.LTD., NEAR LAXMI TEMPLE, M. G. ROAD VIJAYPUR NOW REPRESENTED THROUGH MANAGER LEGAL CHOLAMANDALAM MS GEN.INS. CO. LTD., UNIT NO.4, 9^TH FLOOR, GOLDEN HIGHTS COMPLEX, 59^TH ‘C’ CROSS, INDUSTRIAL SUBURB, RAJAJI NAGAR, 4^TH M BLOCK, BANGALORE-560010.

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…APPELLANT

¶50

(BY SRI MANJUNATH MALLAYYA SHETTY, ADVOCATE)

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AND:

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VIMALESH S/O RAMESH PORWAL, AGE:32 YEARS, OCC: BUSINESS, R/O ARIHANT COLONY, LINGADA ROAD, VIJAYAPURA, SINCE HE HAS LOST HIS MEMORY, REPRESENTED BY HIS NEXT FRIEND – HIS FATHER AS HIS NATURAL GUARDIAN RAMESH S/O GOMRAJ PORWAL, AGE:57 YEARS, OCC: BUSINESS,

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R/O ARIHANT COLONY, LINGADA ROAD, VIJAYAPUR-586101.

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PAVAN B.UDUPUDI, PROP: PAVAN LOGISTICS, A/P LOKAPUR, TQ.MUDHOL, DIST.BAGALKOT – 587122

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KARABASAPPA S/O HANAMANTH LAVAGI, AGE: 41 YEARS, OCC: BUSINESS, R/O P.NO.29, BASAVAN NILAYA, NEAR DCC BANK H.O.,K.C NAGAR, VIJAYAPURA-586101.

¶57

THE MANAGER, UNITED INDIA INSURANCE CO. LTD., SANGAM BUILDING, P.B.NO.60, S.S.FRONT ROAD, VIJAYAPURA-586101.

¶58

…RESPONDENTS

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(BY SRI MANVENDRA REDDY, ADVOCATE FOR R-4; NOTICE TO R-1 TO R-3 SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND AWARD DATED 24^TH DAY OF AUGUST, 2016 PASSED BY THE MOTOR ACCIDENTS CLAIMS TRIBUNAL NO.III, VIJAYAPURA AT VIJAYAPURA IN MVC NO.39/2015 AND TO MODIFY THE COMPENSATION AWARDED.

¶61

IN MFA NO.202114 OF 2016:

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BETWEEN:

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THE MANAGER LEGAL, CHOLAMANDALAM MS GEN.INS.CO.LTD., NEAR LAXMI TEMPLE M. G. ROAD, VIJAYAPUR-586101.

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NOW REPRESENTED THROUGH MANAGER LEGAL CHOLAMANDALAM MS GEN.INS. CO. LTD., UNIT NO.4, 9^TH FLOOR, GOLDEN HIGHTS COMPLEX, 59^TH ‘C’ CROSS, INDUSTRIAL SUBURB, RAJAJI NAGAR, 4^TH M BLOCK BANGALORE-560010.

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…APPELLANT

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(BY SRI MANJUNATH MALLAYYA SHETTY, ADVOCATE)

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AND:

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BASAVARAJ S/O JAYANAND KORI, AGE:32 YEARS, OCC: BUSINESS, R/O GURURAJ COLONY, ASHRAM ROAD, VIJAYAPURA-586101.

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PAVAN B.UDUPUDI, PROP:PAVAN LOGISTICS, A/P LOKAPUR, TQ.MUDHOL, DIST.BAGALKOT – 587122.

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KARABASAPPA S/O HANAMANTH LAVAGI, AGE:41 YEARS, OCC: BUSINESS, R/O P.NO.29, BASAVAN NILAYA, NEAR DCC BANK H.O.,K.C NAGAR, VIJAYAPURA-586101.

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THE MANAGER, UNITED INDIA INSURANCE CO. LTD., SANGAM BUILDING, P.B.NO.60,

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S.S.FRONT ROAD, VIJAYAPURA-586101.

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…RESPONDENTS

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(BY SRI MANVENDRA REDDY, ADVOCATE FOR R-4; V/O DATED 24.08.2022 NOTICE TO R-1 IS TREATED AS SERVED; NOTICE TO R-2 IS SERVED; V/O DATED 14.06.2023 APPEAL AGAINST R-3 IS DISMISSED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND AWARD DATED 24^TH DAY OF AUGUST, 2016 PASSED BY THE MOTOR ACCIDENTS CLAIMS TRIBUNAL NO.III, VIJAYAPURA AT VIJAYAPURA IN MVC NO.40/2015 AND TO MODIFY THE COMPENSATION AWARDED.

¶78

IN MFA NO.200264 OF 2017:

¶79

BETWEEN:

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MURUGHENDRA S/O SHIVALINGAPPA TORLI, AGE: 32 YEARS, OCC: TAX PRACTITIONER, R/O: GURUKUL ROAD, VIJAYAPUR-586101

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…APPELLANT

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(BY SRI SANGANABASAVA B. PATIL, ADVOCATE)

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AND:

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PAVAN B.UDUPUDI, PROP: PAVAN LOGISTICS, A/P: LOKAPUR, TQ: MUDHOL, DIST: BAGALKOT-587122

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THE BRANCH MANAGER, CHOLAMANDALAM MS GENERAL INSURANCE CO.LTD., NEAR LAXMI TEMPLE, M.G.ROAD VIJAYAPUR-586101

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KARABASAPPA S/O HANAMANTH LAVAGI, AGE: 42 YEARS, OCC: BUSINESS, R/O: P.NO.29, BASAVAN NILAYA, NEAR DCC BANK.H.O., K.C.NAGAR, VIJAYAPUR-586101

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THE BRANCH MANAGER, UNITED INDIA INSURANCE CO.LTD.,

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SANGAM BUILDING P.B.NO.60, S.S. FRONT ROAD, VIJAYPUR.586101

¶90

…RESPONDENTS

¶91

(BY SRI MANJUNATH MALLAYYA SHETTY, ADVOCATE FOR R-2; SRI MANVENDRA REDDY, ADVOCATE FOR R4; NOTICE TO R-1 AND R-3 SERVED)

¶92

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND AWARD PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL NO.III, VIJAYAPUR, AT-VIJAYAPUR IN M.V.C.NO.38/2015 DATED 24.08.2016 BY MODIFYING THE IMPUGNED ORDER AND TO ALLOW THE CLAIM PETITION BY GRANTING THE RELIEF AS PRAYED FOR BY THE APPELLANT.

¶93

IN MFA NO.200265 OF 2017:

¶94

BETWEEN:

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VIMALESH S/O RAMESH PORWAL, AGE:33 YEARS, OCC: BUSINESS, R/O: ARIHANT COLONY, LINGADA ROAD, VIJAYAPUR-586101. SINCE HE HAS LOST HIS MEMORY, REPRESENTED BY HIS NEXT FRIEND HIS FATHER AS NATURAL GUARDIAN, RAMESH S/O GOMRAJ PORWAL, AGE: 58 YEARS, OCC: BUSINESS R/O: ARIHANT COLONY, LINGADA ROAD, VIJAYAPUR-586101.

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…APPELLANT

¶97

(BY SRI SANGANABASAVA B. PATIL, ADVOCATE)

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AND:

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PAVAN B. UDUPUDI, PROP: PAVAN LOGISTICS, A/P: LOKAPUR, TQ: MUDHOL, DIST: BAGALKOT-587122

¶101

THE BRANCH MANAGER, CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD., NEAR LAXMI TEMPLE, M.G. ROAD, VIJAYAPUR-586101

¶102

KARABASAPPA S/O HANAMANTH LAVAGI, AGE: 42 YEARS, OCC: BUSINESS, R/O: 29, BASAVAN NILAYA, NEAR DCC BANCK, H.O., K.C. NAGAR, VIJAYAPUR-586101

¶103

THE BRANCH MANAGER, UNITED INDIA INSURANCE CO. LTD., SANGAM BUILDING. P.B. NO.60 S.S.S FRONT ROAD, VIJAYAPUR-586101

¶104

…RESPONDENTS

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(BY SRI MANJUNATH MALLAYYA SHETTY, ADVOCATE FOR R2; SRI MANVENDRA REDDY, ADVOCATE FOR R-4; NOTICE TO R-1 AND R-3 SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER

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SECTION 173(1) OF MV ACT, PRAYING TO CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND AWARD PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL NO.III, VIJAYAPUR AT-VIJAYAPUR IN M.V.C.NO.39/2015 DATED 24.08.2016 BY MODIFYING THE IMPUGNED ORDER AND TO

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10 -

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ALLOW THE CLAIM PETITION BY GRANTING THE RELIEF AS PRAYED FOR BY THE APPELLANT,

¶111

IN MFA NO.200266 OF 2017:

¶112

BETWEEN:

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BASAVARAJ S/O JAYANAND KORI, AGE: 33 YEARS, OCC: BUSINESS, R/O: GURURAJ COLONY, ASHRAM ROAD, VIJAYAPUR-586101.

¶114

…APPELLANT

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(BY SRI SANGANABASAVA B. PATIL, ADVOCATE)

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AND:

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PAVAN B. UDUPUDI, PROP: PAVAN LOGISTICS, A/P: LOKAPUR, TQ: MUDHOL, DIST: BAGALKOT-587122

¶118

THE BRANCH MANAGER, CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD., NEAR LAXMI TEMPLE, M.G. ROAD, VIJAYAPUR-586101

¶119

KARABASAPPA S/O HANAMANTH LAVAGI, AGE: 42 YEARS, OCC: BUSINESS, R/O: P NO. 29, BASAVAN NILAYA, NEAR DCC BANK, H.O., K.C. NAGAR, VIJAYAPUR-586101

¶120

THE BRANCH MANAGER, UNITED INDIA INSURANCE CO. LTD., SANGAM BUILDING. P.B. NO.60 S.S.S FRONT ROAD, VIJAYAPUR-586101

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…RESPONDENTS

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(BY SRI MANJUNATH MALLAYYA SHETTY, ADVOCATE FOR R-2; SRI MANVENDRA REDDY, ADVOCATE FOR R4; NOTICE TO R-1 AND R-3 SERVED)

¶124

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND AWARD PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL NO.III, VIJAYAPUR AT-VIJAYAPUR IN M.V.C.NO.40/2015 DATED 24.08.2016 BY MODIFYING THE IMPUGNED ORDER AND TO ALLOW THE CLAIM PETITION BY GRANTING THE RELIEF AS PRAYED FOR BY THE APPELLANT.

¶125

IN MFA CROB NO.200034 OF 2019:

¶126

BETWEEN:

¶127

SMT.GEETA

¶128

W/O VINAY @ VINAYAK JANGAMSHETTI, AGED ABOUT 28 YEARS,

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OCC: HOUSEHOLD WORK,

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SMT. MAHADEVI W/O MOHAN JANGAMSHETTI, AGE: 58 YEARS OCC: HOUSEHOLD WORK,

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BOTH ARE R/O W.NO. 12 BLDEA ROAD, BASAVESHWAR COLONY, VIJAYAPUR-586101

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…CROSS OBJECTORS

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(BY SRI S. S. MAMADAPUR, ADVOCATE)

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AND:

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MR.PAVAN B.UDUPUDI, PROP:M/S PAVAN LOGISTICS, AGED ABOUT 48 YEARS OCC: BUSINESS,

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R/O LOKAPUR TQ: MUDHOL DIST: BAGALKOT-587101.

¶138

THE MANAGER LEGAL, CHOLAMANDALAM M.S.GENERAL INSURANCE CO. LTD., UNIT, 9^TH FLOOR LEVEL-06, GOLDEN HEIGHTS COMPLEX, 59^TH C-CROSS INDUSTRIAL SUBURB RAJAJI NAGAR, 4^TH MAIN BENGALURU-560010.

¶139

SRI KARABASAPPA S/O HANAMANTH LAVAGI, AGE: 45 YEARS OCC: BUSINESS, R/O P.NO.29 BASAVA NILAYA, NEAR DCC BANK HEAD OFFICE, K.C. NAGAR VIJAYAPUR-586101.

¶140

THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD. SANGAM BUILDING PB NO.60 S.S. FRONT ROAD, VIJAYAPUR-586101.

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…RESPONDENTS

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(BY SRI MANJUNATH MALLAYYA SHETTY, ADVOCATE FOR R2; SRI MANVENDRA REDDY, ADVOCATE FOR R4; V/O DATED 14.12.2020 NOTICE TO R-1 AND R-3 IS DISPENSED WITH)

¶143

THIS MISCELLANEOUS FIRST APPEAL CROSS OBJECTION IS FILED UNDER ORDER 41 RULE 22 OF CPC PRAYING TO ENHANCE THE COMPENSATION AMOUNT BY SUITABLY MODIFYING THE JUDGMENT AND AWARD DATED 25.06.2018 PASSED BY THE MEMBER MACT-III VIJAYAPUR IN MVC NO.1744/2016.

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THESE APPEALS AND CROSS OBJECTION, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE K NATARAJAN AND

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HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

¶148

ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE K NATARAJAN)

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MFA Nos.200467/2019, 202112/2016, 202113/2016 and 202114/2016 are filed by the Cholamandalam M.S. General Insurance Company Limited challenging the negligence and liability whereas MFA Nos.200264/2017, 200265/2017, 200266/2017 and MFA Crob.No.200034/ 2019 are filed by the claimants seeking enhancement of compensation awarded by the Tribunal in MVC Nos.38/2015, 39/2015 and 40/2015 passed by the MACTIII, Vijayapur dated 24.08.2016 and MVC No.1744/2016 dated 25.06.2018 passed by the MACT-III, Vijayapur.

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We have heard the arguments of learned

¶152

counsel for the Insurance Company as well as the learned

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counsel for the claimants and other respondents-Insurance Company.

¶155

The case of the claimants before the Tribunal

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was that they have filed the claim petitions under Sections 166 of the M.V. Act claiming compensation for the death of one Vinay @ Vinayak in MVC No.1744/2016 and three injured persons in MVC Nos.38 to 40 of 2015. They have sustained injuries in the road traffic accident dated 25.09.2014. It is alleged that on the said date the deceased along with three injured persons were traveling in a car bearing Reg.No.KA-28/M-8452. When they were going on Vijayapur-Hubballi road, near Gobbaraguppi Cross, the car dashed against a parked lorry bearing Reg.No.KA-29/4842 which was parked on the middle of the road without following any Motor Vehicle Rules and keeping on indicators while parking the lorry. Due to which one person died and three persons suffered grievous injuries. They were admitted in the hospital for treatment. Due to the injuries, three persons suffered permanent

¶157

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¶158

disability and one person sustained head injury and died in the hospital on 28.07.2016 i.e., after 22 months of the accident. Hence, the claimants claimed compensation on various heads.

¶159

It is contended that this accident occurred due

¶160

to the parking of the lorry on the middle of the road without indicator and without taking any precautionary measures. Therefore, driver of the lorry and respondent No.2 - Insurer are liable to pay compensation. Insurer of the lorry appeared and filed statement of objections by denying the rash and negligence on the part of the driver of the lorry and it is contended that the complaint was filed by the cleaner of the lorry as against the driver of the car and he was rash and negligent in driving the car. The front side tyre of the lorry was burst and it was parked on the middle of the road. But the driver of the car was rash and negligent and dashed to the lorry. Therefore, there is no negligence on the part of the driver of the lorry in order to fix the liability on the owner of the lorry and insurer of

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the lorry and the liability shall be fixed on the owner and the insurer of the car. It is also contended that even otherwise, there is contributory negligence on the part of both drivers of both the vehicles. It is further contended that the interest awarded by the Tribunal at 9% is on the higher side and it must be 6%. Hence, prayed for dismissal of the petitions.

¶163

The Insurer of the car also appeared and filed statement of objection by denying the contention that the driver of the lorry has taken care and caution. It is contended that due to negligent parking of the lorry without any indicator, the accident has occurred. Therefore, the entire liability has to fixed on the owner and insurer of the lorry and hence prayed for dismissal of the claim petitions. However, they have admitted issuance of package policy.

¶164

Based on the pleadings, the Tribunal framed the

¶165

following issues:

¶166

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¶168

ISSUES IN MVC No.38/2015

¶169

Whether the petitioner proves that, accident dated 25.9.2014 was due to rash and negligent driving of Lorry bearing its Reg. No.KA-29/A-4842 by its driver, causing injuries to him?

¶170

Whether petitioner is entitled for award of compensation. If so, how much and from whom?

¶171

What order or award?

¶172

ISSUES IN MVC No. 39/2015

¶173

Whether the petitioner proves that, accident dated 25.9.2014 was due to rash and negligent driving of Lorry bearing its Reg. No.KA-29/A-4842 by its driver, causing injuries to him?

¶174

Whether petitioner is entitled for award of compensation. If so, how much and from whom?

¶175

What order or award?

¶176

ISSUES IN MVC No. 40/2015

¶177

Whether the petitioner proves that, accident dated 25.9.2014 was due to rash and negligent driving of Lorry bearing its Reg. No.KA-29/A-4842 by its driver, causing injuries to him?

¶178

Whether petitioner is entitled for award of compensation. If so, how much and from whom?

¶179

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What order or award?

¶181

ISSUE IN MVC No.1744/2016

¶182

Whether the petitioners prove that, accident dated 25.9.2014 was due to negligent parking of the Lorry bearing its Reg. No.KA-29/A-4842 on the middle of the road without laking any safety steps by its driver, resulting into death of Vinay @ Vinayak s/o Mohan Jangamshetti?

¶183

Whether the petitioners are entitled for award of compensation? If so, how much and from whom?

¶184

What order or award?”

¶185

The claimants in MVC Nos.38/2015 to 40/2015

¶186

examined PW-1 to PW-5. PW-2 stated to be father of the injured and PW-4 and PW-5 are the doctors who gave the disability certificate and they have got marked 88 documents. On behalf of the respondents, two witnesses have been examined, though admitted the issuance of insurance policy.

¶187

After hearing the arguments, the Tribunal allowed the claim petitions i.e., MVC Nos.38 to 40 of 2015 vide common judgment dated 24.08.2016 awarding

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¶189

compensation of Rs.3,25,000/- in MVC No.38/2015, Rs.2,39,000/- in MVC No.39/2015 and Rs.1,03,800/- in MVC No.40/2015 with 9% interest by fixing the liability on the insurer of the lorry - respondent No.2 and dismissing the claim petitions as against owner and insurer of the car.

¶190

The Tribunal in MVC No.1744/2016 dated 25.06.2018 for the death of Vinay @ Vinayak has awarded compensation of Rs.18,86,200/- by fixing the liability on the owner and insurer of the lorry. Being aggrieved by the fixing of liability on the owner and insurer of the lorry, the first four appeals have been filed by the Insurance Company. Claimants have filed other four appeals for enhancement of compensation.

¶191

Learned counsel for the appellant/Insurance Company has strenuously contended that the Tribunal committed an error in fixing the liability solely on the driver of the lorry even though there was contributory negligence on the part of both the drivers. The charge sheet was also filed against both the drivers of the car as

¶192

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well as driver of the lorry. Such being the case, fixing the liability solely on the Insurer of the lorry is not correct. It is contended that the lorry was forced to park on the road due to bursting of its tyre. Therefore, the question of fixing the liability solely on the driver of the lorry is not correct. The driver of the car could have taken care and caution while driving the vehicle and could have avoided the accident. Alternatively, prayed for fixing 50% negligence to both the drivers. Hence, prayed to allow their appeals.

¶194

Per contra, learned counsel for the claimants seriously contended that the Tribunal has not properly awarded compensation towards pain and suffering, attendant charges, food nourishment, loss of income during laid up period, loss of amenities, etc. The disability suffered by the claimants was also not properly ascertained and has awarded meager compensation. Hence, prayed for enhancing the same.

¶195

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Learned counsel appearing for claimant in MFA

¶197

No.200467/2019 strenuously contended that injuries were sustained by the deceased on 25.09.2014 in the accident. He was taken to the hospital, he has sustained head injuries. He has undergone surgery on the skull and he became paraphysial. Another surgery was done and he was inpatient for almost 22 months and succumbed to the injuries on 28.07.2016. Therefore, awarding of compensation in respect of medical expenses, attendant and conveyance charges is very meager amount. The injured deceased was admitted in the hospital at Hubballi and the residence of the deceased was Vijayapur. Therefore, the Tribunal should have considered awarding higher compensation towards attendant and conveyance charges. Hence, prayed for awarding one month salary to the attendant and apart from the conveyance charges, food and nourishment to the attendant. The deceased has suffered more pain and there must be award towards shadow of death of the deceased. Apart from that, it is

¶198

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contended that the income of the deceased taken by the Tribunal is very meager. The Tribunal should have considered the income as per the chart prepared by the Legal Services Authority. He also contended that the consortium was not properly awarded by the Tribunal. Therefore, he prayed to enhance the compensation on various heads.

¶200

Per contra, learned counsel for the respondent -

¶201

Insurance Company supported the compensation assessed by the Tribunal.

¶202

We have heard the arguments and perused the judgment and award passed by the Tribunal. The points that arise for our consideration are:

¶203

(i) Whether the Tribunal is justified in fixing the liability on the owner and insurer of the lorry in question which call for interference?

¶204

(ii) Whether the claimants are entitled for enhancement of compensation, if so, to what extent?

¶205

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On careful verification of the documents especially the Trial Court records called in MVC No.38/2015 i.e., MFA No.202112/2016, the claimants have examined and got marked various documents. The accident dated 25.09.2014 had occurred in the night at 11.30 p.m. when the lorry belonging to respondent No.1 was parked on the middle of the road and the driver of the car bearing Reg.No.KA-28/M-8453 dashed to the parked lorry is not in dispute. Admittedly, the accident had occurred at 11.30 p.m. where the lorry was stated to have parked on the middle of the road. As per the panchanama prepared by the police and investigation report submitted

¶207

by the police officer goes to show that the lorry was parked in the middle of the road. Of course the contention of the lorry cleaner that the tyre of the lorry was burst and therefore, they parked the lorry in the middle of the road. However, they have not adduced any evidence of either the cleaner or the driver of the lorry before the Court to show he has taken all the care and caution while parking

¶208

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¶209

the lorry on the middle of the road. The indicators of the lorry were not on. There is no mentioning in either the charge sheet or the FIR to show that the driver of the lorry had taken all care and caution while parking the lorry. But driver of the car dashed to the lorry due to which three persons injured one person sustained grievous injures and died after 22 months due to the injuries sustained. There is no dispute in respect of injuries sustained by the three injured persons and death of a person due to the accident.

¶210

Now the question is whether the fixing of liability solely on the owner and insurer of the lorry is correct or there must be contributory negligence must be fixed on both the drivers i.e., driver of the car as well as driver of the lorry. Admittedly, the charge sheet is filed by the police as against both the drivers which is marked as Ex.P-5 and P-6. It was mentioned by the police that accident was occurred due to rash and negligent driving of the car driver and parking of the lorry by the driver of the lorry. This charge sheet filed against the driver of the car

¶211

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¶212

was not challenged by the driver of the car before the court of law. Even the driver of the car also not appeared before the court and given any evidence that he was very slow in driving the vehicle in night hours by taking all the precautionary measures. Accident has occurred due to parking of the lorry by the driver of the driver without any indicator and also due to the rash and negligent driving of the driver of the car. Due to contributory negligence by both the drivers, this accident has occurred, due to which three persons got injured and one person died. Therefore, the contention of the learned counsel for the respondent that there is no negligence on the part of the driver of the car cannot be accepted. The learned counsel relied on the decision of the Hon’ble Apex Court wherein in the said case, driver of the car had given evidence before the court but in the present case the driver of the car not at all entered appearance and given any evidence. Even the owner of the car not given any evidence to show that there is no negligence on the part of the driver of the car.

¶213

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¶214

On the other hand, they have accepted the charge sheet filed by the police. Therefore, there was contributory negligence on the part of both the drivers of the vehicles. Therefore, the finding of the Tribunal that the accident was occurred purely on the negligence on the part of the driver of the lorry cannot be accepted. Hence, the finding of the Tribunal requires interference by this Court.

¶215

The lorry is a bigger vehicle and the car is a smaller vehicle and the lorry was parked in the middle of the road and not on the side of the road and accident has occurred in the dark i.e. at 11.30 p.m. Therefore, we propose to consider contributory negligence at 70% on the driver of the lorry and at 30% on the driver of the car. Accordingly, we answer point No.1.

¶216

As regards the computation of compensation in respect of the claimant – Murughendra in MFA.No.200264/2017 arising out of MVC.No.38/2015, it is stated that the claimant-injured is said to be working as a Chartered Accountant and earning income of Rs.40,000/-

¶217

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¶218

per month and he has also suffered disability of 20-25%, but the Tribunal did not award any compensation towards the loss of earning capacity and also it is contended that the amount of compensation awarded towards pain and suffering, food and nourishment charges, attendant charges and conveyance are also meager. Hence, prayed for enhancing the same.

¶219

We have perused the findings of the Tribunal in computing compensation in respect of the claimant – Murughendra in MVC.No.38/2015. As per the evidence adduced by the claimant, he has produced Ex.P10, P11, P12, P16 and P9 which are the income tax returns for the year 2010-11 to 2013-14 filed by him to show the income proof. As per the income tax returns for the year 2011-12, his income is Rs.13,166/- per month. As per the income tax returns at Ex.P10, income for the year 2012-13 is shown as Rs.18,364/- per month and as per Ex.P9 the income for the year 2013-14 is Rs.21,799/- per month. If we calculate the average income of 3 years i.e., from

¶220

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¶221

2011-12 to 2013-14, it comes to Rs.17,776/(Rs.53,329/3) per month. This should be the actual income of the injured-claimant, whereas the Tribunal has considered only Rs.16,500/-. Hence, we propose to increase the income of the claimant to Rs.17,776/-.

¶222

As regards the pain and sufferings, the Tribunal awarded Rs.20,000/- which is meager, as he has suffered grievous injuries. Hence, we propose to award Rs.40,000/towards pain and sufferings. The medical expenses awarded by the Tribunal at Rs.1,63,300/- which based on the documents, the same is hereby confirmed. The Tribunal awarded conveyance charges at Rs.3,200/-, attendant charges at Rs.5,000/- and food and nourishment at Rs.10,000/-, in total the Tribunal awarded Rs.18,200/-. Hence, we propose to award Rs.20,000/- instead of Rs.18,200/- under the said head.

¶223

As regard to the loss of income during the laid up period, the Tribunal considered for 7 months. There is no document to show that the claimant has laid up for 7

¶224

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¶225

months. Therefore, we propose to consider 4 months towards the loss of income during the treatment. Hence, loss of income during the laid up period is calculated as under:

¶226

4 x 17,776/- = Rs.71,104/-.

¶227

As regards the loss of amenities, the Tribunal has awarded only Rs.8,000/-. The claimant suffered grievous injuries and was laid up for 4 months. The Tribunal awarded Rs.1,63,300/- towards the medical expenses. Such being the case, awarding Rs.8,000/towards loss of amenities is very meager. Hence, we propose to award Rs.30,000/- towards the loss of amenities.

¶228

As regards the future loss of income due to permanent disability, though the Tribunal considered evidence of PW.2, but did not award any compensation. We are of the opinion that the Tribunal erred in not taking

¶229

any loss of income due to the permanent disability

¶230

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¶231

suffered by the claimant. As per the evidence of the Doctor, the claimant suffered 20-25% of disability, but as per Ex.P87, it is not specifically mentioned as to whether the disability is to the particular limb or whole body. Considering the nature of the work and injury sustained by him, we propose to consider 9% of disability towards the whole body. Hence, loss of income due to permanent disability is calculated as under:

¶232

Rs.17,776 x 12 x 17 x 9% = Rs.3,26,367/-

¶233

24. The claimant-Murughendra is entitled for the re-

¶234

assessed compensation under the following heads :-

¶235

Head of compensation	Compensation amount
Pain and sufferings	Rs.40,000/-
Medical expenses	Rs.1,63,300/-
Conveyance charges	Rs.10,000/-
Food and nourishment	Rs.5,000/-
Attendant charges	Rs.5,000/-
Loss of income during laid up period	Rs.71,104/-
Loss of amenities	Rs.30,000/-

¶236

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¶237

Future loss of income due to permanent disability	Rs.3,26,367/-
Total	Rs.6,50,771/-
Award by the Tribunal	Rs.3,25,000/-
Enhancement	Rs.3,25,771/-

¶238

As regards the computation of compensation in

¶239

respect of the claimant in MVC.No.39/2015, the age of the claimant is 31 years. He is said to be running a medical shop as pharmacist. The learned counsel for the appellantclaimant submits that the claimant was an income tax assessee and he has filed the income tax returns. As per the evidence, the document produced by PW.2 who is the father of the claimant, the income details for the year 2012-13 is at Rs.35,726/- per month, for the year 201314 is at Rs.30,299/- per month and as per Ex.P66, income

¶240

tax returns for the year 2014-15, the income is at Rs.34,190/- per month. If average income of the 3 previous years is considered i.e., from 2012-13 to 201415, it comes to Rs.33,405/- (Rs.1,00,215/3) per month. This should be the monthly income of the claimant. The

¶241

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¶242

Tribunal also considered the same. Therefore, we propose

¶243

to confirm the same.

¶244

As regards the pain and agony, the Tribunal awarded only Rs.25,000/-, but the claimant is said to be sustained head injury and he is unable to speak and suffering from memory loss. Therefore, his father was examined as PW.2. Considering the same, we propose to award Rs.40,000/- towards the pain and agony. The medical expenses incurred by the claimant was Rs.1,87,352/-, the same is hereby upheld based upon the document. As per the food, nourishment, attendant and conveyance charges, we propose to award Rs.20,000/instead of Rs.18,600/- awarded by the Tribunal. As regards the loss of income during laid up period, we propose to consider 3 months’ income as loss of income during laid up period, which comes to Rs.1,00,215/(Rs.33,405 x 3). Towards the loss of amenities, we propose to award Rs.30,000/- to the claimant.

¶245

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¶246

Though the learned counsel for the appellant

¶247

has contended that the claimant is suffering from memory loss and it is stated and examined by PW.2 - father, there is no positive evidence or document produced by them and not examined any expert before the Court to show that the claimant is suffering from memory loss. Thereby, he lost the income capacity.

¶248

Considering the fact and circumstances, the medical expenses spent by the claimant is Rs.1,87,352/and considering his previous income though there is no document to show his disability, we propose to award a global compensation of Rs.1,00,000/towards the disability/memory loss suffered by the claimant. Accordingly, the claimant – Vimalesh is entitled for the reassessed compensation as under:

¶249

Head of compensation	Compensation amount
Pain and sufferings	Rs.40,000/-
Medical expenses	Rs.1,87,352/-

¶250

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¶251

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¶252

Conveyance, food, nourishment Rs.20,000/-
and attendant charges
Loss of income during laid up Rs.1,00,215/-
period
Loss of amenities Rs.30,000/-
Future loss of income due to Rs.1,00,000/-
permanent disability
Total Rs.4,77,567/-
Award by the Tribunal Rs.2,39,000/-
Enhancement Rs.2,38,567/-

¶253

As regards the computation of compensation in MVC.No.40/2015, the age of the claimant is shown as 31 years and he is said to be earning income of Rs.40,000/-

¶254

per month by running a business of Security System i.e., fixing of CCTV cameras in the name and style of ‘Akash Enterprises’. The Ex.P72 is the Form VAT-7 Tax Registration Certificate. The Tribunal has considered his average income at Rs.12,500/-. There is no reason for enhancing the same. Hence, the income is considered as Rs.12,500/- per month. However, the Tribunal has awarded Rs.20,000/- towards pain and sufferings. Hence, we propose to award Rs.40,000/- towards pain and

¶255

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¶256

sufferings. The medical expenses at Rs.27,691/- awarded by the Tribunal is hereby confirmed. Towards food and nourishment charges, the Tribunal awarded Rs.13,600/-, but we propose to award Rs.15,000/-. Towards the loss of amenities, the Tribunal awarded only Rs.5,000/-, but there is no reason for reducing the said amount. Hence, we propose to award Rs.30,000/- towards the loss of future amenities. As the claimant took the treatment for short period, we propose to award Rs.12,500/- as loss of income during laid up period for one month.

¶257

As regards the disability, the Tribunal has not considered the disability and awarded any amount. The Tribunal did not consider the evidence of PW.4 – Dr. Satish Rashinkar who stated that the claimant suffered 10 to 15% disability to the whole body. However, looking into the nature of the injury, the Tribunal did not grant any award in respect of loss of future income. There is no reason for discarding the evidence of PW.4 – Dr. Satish Rashikar who was a surgeon and has given evidence

¶258

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¶259

before the Court regarding the disability. Therefore, considering the fact and circumstances, we propose to consider 5% disability to the whole body instead of 10 to 15% as stated by the doctor. Hence, loss of future income due to permanent disability is calculated as under:

¶260

Rs.12,500/- x 12 x 16 x 5% = Rs.1,20,000/-.

¶261

Accordingly, the claimant – Basavaraj Kori is

¶262

entitled for the re-assessed compensation as under:

¶263

Head of compensation	Compensation amount
Pain and sufferings	Rs.40,000/-
Medical expenses	Rs.27,691/-
Conveyance, food, nourishment and attendant charges	Rs.15,000/-
Loss of income during laid up period	Rs.12,500/-
Loss of amenities	Rs.30,000/-
Future loss of income due to permanent disability Total	Rs.1,20,000/- Rs.2,45,191/-
Award by the Tribunal	Rs.1,03,800/-
Enhancement	Rs.1,41,391/-

¶264

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¶265

As regards the MFA Cross Objection arising out

¶266

of MVC.No.1744/2016, there was death of the deceased Vinay @ Vinayak who said to be suffered injury in the said accident on 25.09.2014 and after the prolonged treatment he died in the hospital on 28.07.2016 and post mortem was also conducted. There is nexus between the injury and the death which is not seriously disputed by the Insurance Company or the insured. Therefore, there is no evidence to discard the evidence of PW.1.

¶267

As regards the income, the Tribunal has taken Rs.6,000/- per month as there is no proof of income produced by the claimants. Therefore, we consider the notional income as per the chart of the Karnataka State Legal Service Authority, for the year 2016 instead of the date of accident in the year 2014. The income is considered at Rs.8,750/- per month. As per the judgment of the Hon’ble Supreme Court in the case of National

¶268

Insurance Company Limited vs. Pranay Sethi and Others reported in (2017) 16 SCC 680, 40% income should be

¶269

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¶270

added as future prospects. Thus, future If Rs.8,750/- is considered as income and 40% of future prospect is added (8,750 + 3500), it comes to Rs.12,250/- per month. There are two claimants i.e, mother and wife of the deceased, therefore 1/3^rd of the income shall be deducted towards personal expenditure. If 1/3^rd is deducted from Rs.12,250/-, it comes to Rs.4,083/-. Thus, loss of

¶271

dependency is calculated as under:

¶272

Computation of loss of d	ependency
Description	Amount
Income	Rs.8,750.00
Addition to such income at the rate 40% towards future prospects	Rs.3,500.00
Monthly Income with the addition towards future prospects	Rs.12,250.00
Deduction of 1/3^rdtowards personal expenses	Rs.4083.00
Monthly income with addition of future prospects and deduction towards personal expenses	Rs.8167.00
Therefore, Annual Income (8167 x 12)	Rs.98,004.00
Multiplier	16
Loss of Dependency	Rs.15,68,064.00
Rounded off to	Rs.15,68,000.00

¶273

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¶274

The learned counsel for the claimant has

¶275

contended that the injured was though under treatment in the hospital at Hubbali, but the claimants of the injured were resided in Vijayapura. The deceased – Vinay @ Vinayak was admitted to the hospital on 05.09.2014 and he died on 28.07.2016. Almost 22 months he was under treatment and an attendant was deputed for taking care of the deceased. Therefore, we propose to award Rs.200/per day towards attendant charges. Hence, attendant charges during his treatment period is calculated as under:

¶276

Rs.200 x 30 x 22 = Rs.1,32,000/-

¶277

That apart, the claimants were residing in Vijayapura, they ought to have visited frequently to the hospital and they would have spent lot of amount towards food, conveyance charges and other miscellaneous expenditure. Therefore, we propose to award Rs.68,000/towards food, conveyance charges and other miscellaneous expenditure to the claimants.

¶278

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¶279

Both the claimants are entitled at Rs.40,000/-

¶280

each towards the loss of consortium as per the judgment of the Hon’ble Apex Court in the case of Magma General Insurance Company Limited vs. Nanuram alias Chuhru Ram & others reported in 2018 ACJ 2782. Though the Tribunal considered only Rs.40,000/-, we propose to award another Rs.40,000/- i.e., in total Rs.80,000/towards the loss of consortium and Rs.30,000/- towards the loss of estate and funeral expenses. The medical expenses at Rs.7,26,000/- awarded by the Tribunal is unaltered as the same is upheld by this Court. Accordingly, the compensation is re-assessed as under:

¶281

Description	Amount
Medical Expenses	Rs.7,26,000.00
Loss of dependency	Rs.15,68,000.00
Loss of consortium
(Rs.40,000/-x 2)	Rs.80,000.00
Attendant charges	Rs.1,32,000.00
Food, conveyance charges and other miscellaneous expenditure	Rs.68,000.00
Conventional head	Rs.30,000.00
Total	Rs.26,04,000.00
Award of the Tribunal	Rs.18,86,200.00
Enhanced Compensation	Rs.7,17,800.00

¶282

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¶283

The learned counsel for the Insurance Company

¶284

though strenuously disputed the contributory negligence, however we have held in point No.1 that there is contributory negligence under the ratio of 70% to the driver of the lorry and 30% to the driver of the car. The learned counsel for both the insurance companies have contended that 9% interest awarded by the Tribunal is exorbitant and excessive. Therefore, looking into the facts and circumstances, we propose to reduce the interest from 9% to 6% per annum.

¶285

Accordingly, we proceed to pass the following:

¶286

ORDER

¶287

i. MFA.No.200467/2019, MFA.No.202112/2016,

¶288

MFA.No.202113/2016 and MFA.No.202114/2016

¶289

filed by the Insurance Company are allowed in

¶290

part.

¶291

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¶293

ii. MFA.No.200264/2017, MFA.No.200265/2017 and MFA.No.200266/2017 filed by the

¶294

injured - claimants are allowed in part.

¶295

iii. MFA.Crob.No.200034/2019 filed by the filed by the claimants is allowed in part.

¶296

iv. The claimants – Murughendra, Vimalesh and Basavaraj Kori are entitled for an enhanced compensation of Rs.3,25,771/-, Rs.2,38,567/and Rs.1,41,391/respectively over and above the compensation awarded by the Tribunal.

¶297

v. The claimants in MVC.No.1744/2016 are entitled for an enhanced compensation of Rs.7,17,800/over and above the compensation awarded by the Tribunal.

¶298

vi. The Liability is fixed on the owner and insurer of the lorry at 70% and in respect of the owner and insurer of the car at 30%.

¶299

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¶300

vii. The interest awarded by the Tribunal at 9% per annum is reduced to 6% per annum and hence the award shall carry interest at the rate of 6% per annum from the date of petition till realization.

¶301

viii. Six weeks' time is granted for the insurance company to deposit the compensation amount.

¶302

The amount in deposit shall be transmitted to the concerned Tribunal along with the trial Court records.

¶303

Sd/(K NATARAJAN) JUDGE

¶304

Sd/(VIJAYKUMAR A. PATIL)

¶305

SWK/MCR

¶306

List No.: 1 Sl No.: 20 CT:SI

Murughendra S/O Sivalingappa Torli v. Pavan B.Udupudi and Ors.

Case brief

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Murughendra S/O Sivalingappa Torli v. Pavan B.Udupudi and Ors.

Case brief

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Why is it important?

What the court decided

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