Vidya W/O. Prakash Kumbar Vs Arvind S/O. Ramachandra Anegundi

SMT. PREMA W/O. MURIGEPPA KUMBAR, AGED ABOUT 56 YEARS, OCC: HOUSEHOLD WORK, R/O: MIG246, NAVANAGAR, HUBLI. NOW ALL ARE RESIDING AT NAVALAGUND. (SINCE THE APPELLANT NO.2 IS MINOR REPRESENTED BY HIS NATURAL GUARDIAN HIS MOTHER APPELLANT NO.1.)

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(BY SRI. SHIVAKUMAR S. BADAWADAGI, ADVOCATE)

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… APPELLANTS

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AND:

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ARAVIND S/O. RAMACHANDRA ANEGUNDI, AGE: MAJOR, OCC: BUSINESS, R/O: C/O. SRI. VENKATESHWAR FLOUR MILL, HUBLI, SHOLAUR ROAD, NAVALGUND, DIST: DHARWAD.

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UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE: TONTADARAYA VIDYAPEETHA BUILDING,

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P.B. ROAD, GADAG,

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POL NO.240702/31/07/01/00004894 VALID FROM 31/12/2007 TO 29/12/2008, HUBLI.

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MANJAPPA BASAPPA SULLAD,

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AGE: 53 YEARS, OCC: LORRY DRIVER, R/O: NAVALGUND, DIST: DHARWAD.

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SRI. MADHAV R. KULKARNI, AGE: MAJOR, OCC: BUSINESS, R/O: LALAJI MALJI INDUSTRIAL, HUBLI ROAD, GADAG.

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BHOJANASA S/O. MOTILASA RAIBAGI, AGE: MAJOR, OCC: BUSINESS, R/O: DASAR ONI, NEAR-DURGAVVA TEMPLE, GADAG.

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… RESPONDENTS (BY SRI. S.C. BHUTI, ADVOCATE FOR R2; R1, R3 AND R4-DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/SEC.173(1) OF MV ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED: 31.01.2012 PASSED IN MVC.NO.591/2008 ON THE FILE OF THE LEARNED I ADDL. SENIOR CIVIL JUDGE, AND ADDL. M.A.C.T., DHARWAD SITTING AT NAVALGUND.

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THIS APPEAL, COMING ON FOR FURTHER DICTATION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

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This appeal is filed by the claimants challenging the judgment and award dated 31.01.2012, passed in MVC No.591/2008, on the file of I Additional Senior Civil Judge and Additional MACT, Dharwad, sitting at Navalgund (for short, ‘Tribunal’), seeking enhancement of compensation.

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Brief facts leading to filing of this appeal are that on 05.06.2008, at about 1.30 p.m., near KEB grid of Bangareppa extension on Gadag-Hubli road near Annigeri village of Navalgund taluk, the deceased Prakash (for short, ‘deceased’) was proceeding on a motorcycle bearing registration No.KA-25/Q-7073 from Gadag to Hubli. At that time, respondent No.5 came by a motorcycle bearing registration No.KA-26/H-8836 from opposite direction in a rash and negligent manner and dashed against the deceased. Due to the impact, the deceased fell down on the road. At that time, a lorry bearing registration No.KA-25/B-132, being driven by respondent No.3, came with high speed and in a rash and negligent manner and ran over on the deceased. Due to which, the deceased died on the spot. The claimants, being wife,

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daughter and mother of the deceased, have filed the claim petition, seeking compensation.

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The Tribunal has awarded a compensation of Rs.4,24,000/- along with interest at the rate of 6% per annum from the date of petition till the date of deposit by fastening liability on respondent Nos.1, 2 and 5. It is held that respondent Nos.1 and 2, being owner and insurer of the lorry bearing registration No.KA-25/B-132, are jointly and severally liable to pay 50% of compensation amount and respondent No.5, being owner of the motorcycle bearing registration No.KA-26/H-8836, is liable to pay remaining 50% of compensation amount.

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The learned counsel for the appellants/claimants submitted that the accident occurred due to composite negligence between the motorcycle bearing registration No.KA-26/H-8836 and driver of lorry bearing registration No.KA-25/B-132. Due to this composite negligence, the deceased died in the accident. Though the Tribunal has correctly held that the owner and insurer of lorry are jointly and severally liable to pay 50% of compensation amount and

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respondent No.5, being owner of lorry bearing registration No.KA-25/B-132, is liable to pay remaining 50% of compensation amount, but liberty is not given to the claimants to proceed against the insurer of lorry to receive compensation in full by giving an option to respondent No.2/insurer to recover the same from respondent No.5. He places reliance on the judgment of Hon’ble Supreme Court in the case of KHENYEI Vs. NEW INDIA ASSURANCE COMPANY LIMITED AND OTHERS reported in (2015) 9 SCC 273 and a full bench decision of this Court in MFA No.4552/1997 C/w Cross Appeal No.11/1998 and MFA Nos.2217/1998, 2218/1998, 2219/1998, 2220/1998 and 2221/1998 dated 06.11.2003. Further, it is submitted that the quantum of compensation is on the lesser side. Therefore, prays for enhancement of compensation.

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Learned counsel for the appellants/claimants further submitted that the issue involved in the case is composite negligence between three vehicles therefore, prays for directing the Insurance Company to deposit entire award amount with a liberty to the Insurance Company to recover the remaining 50% of the award

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amount from respondent No.5. He also places reliance on the judgment of Hon’ble Supreme Court in the case Khenyei and also prays for enhancement of

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compensation.

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On the other hand, the learned counsel for respondent No.2/Insurance Company submitted that the Tribunal has correctly held the apportionment of rashness and negligence between the driver of lorry bearing registration No.KA-25/B-132 and rider of motorcycle bearing registration No.KA-26/H-8836. Further it is submitted that the rider of motorcycle alone is responsible for the accident and lorry driver had not dashed the deceased motorcycle. When the motorcycle bearing registration No.KA-26/H-8836 dashed the deceased motorcycle and since the road on which the accident was taken place is a State Highway and the driver of lorry could not control his lorry. Hence, constrained to run over on the deceased. Therefore, the driver of motorcycle bearing registration No.KA-26/H-8836 alone is responsible for the accident. Hence, respondent No.5 alone is liable to pay the compensation, but not by the Insurance Company.

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Further submitted that the Trial Court has

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correctly ordered by fastening liability on both lorry bearing Reg.No.KA-25/B-132 and motorcycle bearing Reg.No.KA-26/H-8836 to the accident 50% each and the Insurance Company has honoured by paying 50% of compensation whatever ordered by the Tribunal, but the claimants are entitled to receive remaining 50% of compensation amount from respondent No.5. Therefore, submitted that there is no need to make modification of the award passed by the Tribunal and also submitted that the quantum of compensation awarded by the Tribunal is just and proper, which needs no interference by this Court.

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Also, he places reliance on the judgment of Division Bench of this Court in the case of MANAGING DIRECTOR, KARNATAKA STATE ROAD TRANSPORT CORPORATION VS. K.S. VENKATARAMAPPA AND OTHERS reported in 2003 ACJ 597.

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The respondent No.2 has not challenged the judgment and award passed by the Tribunal. He places reliance

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on the judgment of Hon’ble Supreme Court in the case of UNITED INDIA INSURANCE COMPANY LTD., REPRESENTED BY ITS DIVISIONAL MANAGER R.N. NAYAK Vs. SMT. LUVIZA FERNANDIS AND OTHERS (2011 0 Supreme (Kar) 313).

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Upon hearing the learned counsel appearing for the

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parties, the points that would arise for consideration is:

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i) Whether, under the facts and circumstances involved in the case, the claimants/appellants are entitled to receive compensation from respondent No.2/Insurance Company in full with an option to reserve liberty to respondent No.2/Insurance Company to recover the remaining 50% of compensation amount from respondent No.5?

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ii) Whether, under the facts and circumstances involved in the case, the appellants/claimants are entitled for enhanced compensation amount?

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iii)What order?

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The factual matrix involved in the case, are not

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in dispute. Considering the manner in which the accident is caused is, it is because of composite negligence. The deceased had not contributed any contributory negligence.

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The deceased was riding the motorcycle bearing Reg.No.KA-25/Q-7073 coming from Gadag to Hubli and respondent No.5 was riding motorcycle bearing Reg.No.KA-26/H-8836 opposite to the deceased motorcycle by coming in the wrong side and dashed to the deceased motorcycle by which, the deceased fell down on the road and immediately, the driver of the lorry bearing Reg.No.KA-25/B-132 though noticed the said accident but without controlling the lorry had run over on the body of the deceased. Due to which, the deceased died on the spot. Therefore, it is composite negligence.

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The Hon’ble Supreme Court in the case of Khenyei’s case (Supra), at paragraph No.15, it is held as follows:

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“15. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the accident cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but due to the outcome of combination of negligence of two or more other

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persons. This Court in T.O. Anthony v. Karvarnan¹ has held that in case of contributory negligence, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder: (SCC pp. 750-51, paras 6-7)

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“6. ‘Composite negligence’ refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for

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1 (2008) 3 SCC 748

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damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence.

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Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of ‘composite negligence’ will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error.”

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Further, the Hon’ble Supreme Court in the case

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of Khenyei’s case (Supra) has discussed regarding claims arising out of composite negligence between the vehicles at paragraph No.22, which reads as under:

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“22. What emerges from the aforesaid discussion is as follows:

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22.1. In the case of composite negligence, the plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several.

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22.2. In the case of composite negligence, apportionment of compensation between two tortfeasors vis-à-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

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22.3. In case of all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the court/Tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability to that one may recover the sum from the other after making whole of the payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the court/Tribunal, in the main case one joint tortfeasor can recover the amount from the other in the execution proceedings.

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22.4. It would not be appropriate for the court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award.”

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Therefore, as per the principle of law laid down,

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the claimants are at liberty and are given right to recover the amount determined by the Tribunal/Court either of the insurer’s of vehicles or from owner of the vehicles. In the present case, upon considering the nature of accident, the Tribunal is correct by holding the rider of the motorcycle bearing Reg.No.KA_25/H-8836 and the driver of the lorry bearing Reg.No.KA-25/B-132 equally responsible for the accident as both were found rash and negligent in driving the respective vehicles. Therefore, the Tribunal is correct in fastening the liability equally making liable to pay compensation.

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But as per the principle of law laid down above stated, the claimants are given liberty to recover the entire amount from the insurer of the lorry bearing Reg.No.KA-25/B-132 with liberty to the insurer of the lorry to recover the remaining 50% of the award amount from respondent No.5, who is owner of the motorcycle bearing Reg.No.KA-26/H-8836. Therefore, the direction is issued

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to the insurer of the lorry to deposit the entire amount before the Tribunal with a right to the insurer of the lorry to recover remaining 50% of award amount from the owner of the motorcycle bearing Reg.No.KA-26/H-8836. Accordingly, to this extent, the judgment and award is modified.

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REGARDING QUANTUM OF COMEPENSATION:

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In the present case, the Tribunal has awarded

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compensation under various heads as under:

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1.	Transportation of dead body and funeral expenses.	10,000/-
2.	Loss of love and affection & Loss of consortium.	30,000/-
3.	Loss of living expenses.	3,84,000/-
	Total:	4,24,000/-

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The Tribunal awarded lesser amount of

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compensation contrary to the principles of law decided by the Hon’ble Supreme Court. Therefore, the same is required to be enhanced by modifying the judgment and award of the Tribunal.

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The accident is caused on 05.06.2008. The

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deceased as stated to be an Electric Contractor by profession as per Ex.P-14-service certificate, but there is no proof regarding income of the deceased therefore, for the year 2008, notional income at Rs.4,250/- p.m. is to be taken into consideration. The deceased was aged 31 years as on the date of the accident, therefore, the appropriate multiplier applicable is “16”. 40% of income is to be added towards loss of future prospects in life. There are three dependents, hence, 1/3^rd of income is to be deducted towards personal and living expenses. Hence, compensation under the head loss of dependency including loss of future prospects in life is re-assessed and quantified as follows:

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Rs.4,250/- + Rs.1,700/- (40% of Rs.4,250/-)

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Rs.5,950/- x 2/3 x 16 x 12 = Rs.7,61,600/-

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Accordingly, compensation of Rs.7,61,600/is

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awarded under the head loss of dependency including loss of future prospects in life.

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The Tribunal has awarded compensation of Rs.30,000/- towards loss of love and affection and and loss of consortium. The loss of love and affection and loss of consortium are having the same connotation. As per the judgment of the Hon’ble Supreme Court in the case of Magma General Insurance Co. Limited v. Nanu Ram & Others² , each claimants are entitled for Rs.40,000/-. Hence, in the present case, there are three dependants. Therefore, compensation of Rs.1,32,000/- (Rs.40,000/x 3 dependants + 10% escalation) is awarded under the head loss of consortium including loss of love and affection.

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2 2018 ACJ 2782

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The compensation of Rs.16,500/-

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(Rs.15,000/- + 10% escalation) is awarded under the

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head transportation of dead body and funeral expenses as against Rs.10,000/- awarded by the Tribunal.

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Further, a compensation of Rs.16,500/(Rs.15,000/- + 10% escalation) is awarded under the head loss of estate.

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Thus, in all, the appellants/claimants are entitled for total compensation as under:

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Sl. No.	Heads	Rs.
1	Loss of dependency including loss of future prospects in life	Rs.	7,61,600/-
2	Loss of consortium including loss of love and affection.	Rs.	1,32,000/-
3	Loss of estate	Rs.	16,500/-
4	Transportation of dead body and funeral expenses	Rs.	16,500/-
	Total	Rs.	9,26,600/-

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The Tribunal has awarded compensation of Rs.4,24,000/-, but the appellants/claimants are entitled to total compensation of Rs.9,26,600/-. Hence, the appellants/claimants are entitled to enhanced compensation of Rs.5,02,600/(Rs.9,26,600/Rs.4,24,000/-). Therefore, the appellants/claimants are entitled to enhanced compensation of Rs.5,02,600/along with interest at the rate of 6% per annum from the date of petition till the date of deposit.

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In the result, I proceed to pass the following:

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ORDER

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i. The appeal is allowed-in-part.

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ii. The judgment and award dated 31.01.2012 passed in MVC No.591/2012 on the file of I Additional Senior Civil Judge and Additional MACT, Dharwad, sitting at Navalagund, stands modified.

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iii. The claimants are entitled total compensation amount of Rs.9,26,600/as against Rs.4,24,000/- awarded by the Tribunal along

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with interest at the rate of 6% p.a. from the date of petition till the date of realization.

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iv. Respondent No.2/Insurance Company shall deposit entire compensation amount with liberty to recover 50% of compensation amount from respondent No.5/owner of the offending motorcycle along with interest at the rate of 6% p.a. from the date of petition till the date of realization.

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v. The apportionment, disbursement and deposit shall be made as per the award of the Tribunal.

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vi. Draw award accordingly.

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Sd/(HANCHATE SANJEEVKUMAR) JUDGE

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PMP para 1 to 7 SRA para 8 to end CT:BCK LIST NO.: 1 SL NO.: 28

Vidya W/O. Prakash Kumbar v. Arvind S/O. Ramachandra Anegundi

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Vidya W/O. Prakash Kumbar v. Arvind S/O. Ramachandra Anegundi

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