Mr Dhuma Suvarna Vs Mr Mohammad Juneda

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.1.2013 PASSED IN MVC NO. 338/2009 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND ADDL. MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶28

IN MFA NO. 6392/2013

¶29

BETWEEN:

¶30

MRS. JALAJA POOJARTHY, W/O LATE BOODA MESTRY, AGED ABOUT 54 YEARS.

¶31

SUMATHI, AGED ABOUT 31 YEARS, D/O LATE BOODA MESTRY.

¶32

JAYANTHI, AGED ABOUT 30 YEARS, D/O LATE BOODA MESTRY.

¶33

ALL ARE R/A KRISHNA NIVAS, NEAR KALMADY, KATTA BUDA, KODAVOOR VILLAGE, UDUPI-576101

¶34

...APPELLANTS

¶35

(BY SRI K SHASHIKANTH PRASAD, ADVOCATE)

¶36

3 - NC: 2025:KHC:30143 MFA No. 6963 of 2013 C/W MFA No. 6392 of 2013

¶37

HC-KAR

¶38

AND:

¶39

MR. MOHAMMAD JUNEDA, S/O MR. NAJEER AHAMAD MULLA, AGED ABOUT 39 YEARS, THABIB LAND, MANTOOR ROAD, HUBLI-580 029.

¶40

THE RELIANCE INSURANCE CO. LTD., OPP. HEAD POST OFFICE, UDUPI-576 101.

¶41

MR. DHUMA SUVARNA, S/O LATE SHEENA KARKERA, TULASI NIVAS, BADANIDIYOOR VILLAGE AND POST, THOTTAM-576 143, UDUPI TALUK.

¶42

...RESPONDENTS

¶43

(BY SRI ASHOK N PATIL, ADVOCATE FOR R-2; NOTICE TO R-1 IS DISPENSED WITH V/O DATED 02.09.2016; R3 - SERVED)

¶44

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.1.2013 PASSED IN MVC NO.338/2009 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶45

THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶46

CORAM: HON'BLE MR. JUSTICE C M JOSHI

¶47

4 - NC: 2025:KHC:30143 MFA No. 6963 of 2013 C/W MFA No. 6392 of 2013

¶48

HC-KAR

¶49

ORAL JUDGMENT

¶50

Heard the learned counsel appearing for appellants and respondent No.2-Insurance Company in these appeals.

¶51

Being aggrieved by the judgment and award passed in MVC No.338/2009 and MVC No.339/2009 by the learned Additional Senior Civil Judge and Additional MACT, Udupi, dated 28.01.2013, the petitioners in both the petitions have approached this Court in these appeals seeking enhancement of compensation.

¶52

The factual matrix of the case is that, on 31.12.2008, at 11.40 p.m., on NH-17, the deceased were travelling on a motor cycle bearing No.KA.19.H.6020 towards Mangalore, and near Karavali Junction at Udupi, a lorry bearing No. KA.22.A-5781 came from the back side of the motorcycle of the deceased and dashed against it, resulting in their death. Alleging that the accident was due to the negligence on the part of the driver of the lorry, the

¶53

5 - NC: 2025:KHC:30143 MFA No. 6963 of 2013 C/W MFA No. 6392 of 2013

¶54

HC-KAR

¶55

petitioners in both the petitions filed claim petitions before the Tribunal. The petitioners in MVC No. 338/2009 are the legal representatives of the deceased Dinesh Kotian, who was the rider of the motorcycle. The petitioners in MVC No.339/2009 are the legal representatives of the deceased Sridhar Bangera, who was the pillion rider of the motorcycle. They contended that the accident was due to the negligence on the part of the driver of the lorry and therefore, the owner and insurer of the lorry are liable to pay the compensation to them.

¶56

Resisting both the claim petitions, the

¶57

Insurance Company contended that the accident was due to the negligence on the part of the rider of the motorcycle also and that the compensation claimed is highly exorbitant, imaginary and untenable. It has also contended that the driver of the lorry was not having a valid driving licence etc., and as such, there is violation of the terms and conditions of the policy.

¶58

6 - NC: 2025:KHC:30143 MFA No. 6963 of 2013 C/W MFA No. 6392 of 2013

¶59

HC-KAR

¶60

During the pendency of the proceedings, the

¶61

mother of the deceased Sridhar Bangera died and her name was deleted. Since the Insurance Company has taken up the contention that all the parties are not arrayed in the claim petition No.339/2009, the father of deceased Dinesh Kotian, one Dhuma Suvarna, was also arrayed as the respondent No.3, being the successor in title of the motorcycle involved in the accident.

¶62

The Tribunal after framing the appropriate issues, recorded the evidence PW1 and PW2 and an eyewitness was examined as PW3; and Exhibits P1 to P10 were marked in evidence. No evidence was led on behalf of the respondent- Insurance Company. The owner of the lorry was placed exparte before the Tribunal.

¶63

After hearing the arguments, the Tribunal came to the conclusion that there was contributory negligence on the part of the rider of the motorcycle to the extent of 25% and therefore, it deducted such 25% of the

¶64

7 -

¶65

NC: 2025:KHC:30143 MFA No. 6963 of 2013 C/W MFA No. 6392 of 2013

¶66

HC-KAR

¶67

compensation amount awarded to the petitioners in both

¶68

the claim petitions. The Tribunal has awarded

¶69

compensation under different heads in both the petitions as below tables:

¶70

IN MVC No.338/2009

¶71

Loss of Dependency	2,88,000
Loss of estate	10,000
Towards love and affection in	10,000
favour of claimant No.1
Towards love and affection in	10,000
favour of claimants No.3 and 4 (Rs.5,000 each)
Transportation of dead body and	10,000
funeral ceremony
Total	Rs.3,28,000

¶72

IN MVC No.339/2009

¶73

Loss of Dependency	5,10,000
Loss of estate	10,000
Towards love and affection in	10,000
favour of claimant No.1
Towards love and affection in	10,000
favour of claimants No.2 and 3
(Rs.5,000 each)
Towards Transportation of dead	10,000
body and funeral ceremony
Total	Rs.5,50,000

¶74

8 - NC: 2025:KHC:30143 MFA No. 6963 of 2013 C/W MFA No. 6392 of 2013

¶75

HC-KAR

¶76

Being aggrieved by the said judgment, the petitioners in both the claim petitions have approached this Court in these appeals.

¶77

The learned counsel appearing for the

¶78

petitioners submit that the Tribunal erred in holding that there was contributory negligence on the part of the deceased Dinesh Kotian. He contends that deducting 25% towards the contributory negligence by the pillion rider is not sustainable in law, since it was a case of composite negligence for him. He further contends that the compensation awarded by the Tribunal is on the lower side since the Tribunal did not appreciate the notional income

¶79

of the deceased properly and the impugned judgment is not in consonance with the directions issued by the Apex

¶80

Court in the Constitution Bench Judgment of National

¶81

Insurance Company Limited v. Pranay Sethi and

¶82

others¹ . In this regard, he also relies on the judgment of

¶83

1 AIR 2017 SC 5157

¶84

9 - NC: 2025:KHC:30143 MFA No. 6963 of 2013 C/W MFA No. 6392 of 2013

¶85

HC-KAR

¶86

the Apex Court in the case of Khenyei Vs. New India

¶87

Assurance Co. Ltd. and others² . Therefore, he seeks indulgence of this Court in both these petitions and seek enhancement of the compensation.

¶88

10 . Per contra, learned counsel appearing for respondent No.2- Insurance Company contends that the compensation awarded by the Tribunal is just and proper and no indulgence is required towards enhancement of the same. He points out that petitioner No.1 in MVC No.338/2009, Dhuma Suvarana, is arrayed as respondent No. 3 in MVC No.339/2009, which is emanating from the death of the deceased Sridhar Bangera. Therefore, he contends that the compensation which is awarded to the share of respondent No.3 Dhuma Suvarana, be permitted to be attached towards any pay and recovery order that may be passed in these appeals.

¶89

The first aspect that needs to be considered is, whether the contributory negligence fastened upon the

¶90

2 (2015)9 SCC 273

¶91

10 - NC: 2025:KHC:30143 MFA No. 6963 of 2013 C/W MFA No. 6392 of 2013

¶92

HC-KAR

¶93

rider of the motorcycle to the extent of 25% is proper or not?.

¶94

The evidence available on record and that has been discussed by the Tribunal discloses that while the deceased were going on their motorcycle towards Mangalore, lorry owned by respondent No. 1 and insured by respondent No. 2 was going at their front and when the lorry stopped suddenly, the rider dashed against the hind side of the lorry resulting in an accident. It is contended that the accident was due to the abrupt stoppage of the lorry while it was in motion and therefore, contributory negligence could not have been attributed to the deceased Dinesh Kotian.

¶95

This argument appears to be misplaced. It is pertinent to note that when the lorry, which is a heavy goods vehicle was moving on the National Highway, it was incumbent upon the deceased Dinesh Kotian to keep a safe distance from the lorry since he was riding the same

¶96

11 -

¶97

NC: 2025:KHC:30143 MFA No. 6963 of 2013 C/W MFA No. 6392 of 2013

¶98

HC-KAR

¶99

behind the lorry. When such precaution was not taken by the deceased Dinesh Kotian, it cannot be said that there was no contributory negligence on the part of the deceased Dinesh Kotian in causing the accident. Had the deceased Dinesh Kotian had kept sufficient and appropriate distance as per the regulations of the Motor Vehicles Act, he could have stopped the two wheeler within such safe distance and as such, clearly there is a contributory negligence on the part of the deceased Dinesh Kotian. The assessment of 25% of the contributory negligence by the deceased Dinesh Kotian, as is done by the Tribunal, appears to be correct and no interference is required in the same.

¶100

It is pertinent to note that the contributory

¶101

negligence cannot be attributed to the deceased Sridhara Bengera since he was a pillion rider. The Tribunal without considering as to whether the deceased Sridhar Bangera

¶102

being the pillion rider had contributed towards the negligence, has directed deduction of 25% from the

¶103

12 -

¶104

NC: 2025:KHC:30143 MFA No. 6963 of 2013 C/W MFA No. 6392 of 2013

¶105

HC-KAR

¶106

compensation awarded to the claimants in MVC

¶107

No.339/2009.

¶108

The judgment of the Apex Court in the case of Khenyei Vs. New India Assurance Co. Ltd., and others (supra) clearly lays down the principle governing the composite negligence. It is relevant to note that prior to the judgment in Khenyei's case , there are two cases which are on the same lines by the Full Benches of this Court in the case of Ganesh Vs. Sayed Munned Ahmed and others³ and in the case of K.S.R.T.C. Vs. Arun @ Arvind and others⁴ wherein, it is emphatically laid down that incase of composite negligence petitioner is at liberty to claim compensation against any one of the tortfeasor. Both these decisions are reiterated and confirmed in Khenyei Vs. New India Assurance Co. Ltd. and others (supra).

¶109

3 ILR 1999.Kar.403

¶110

4 AIR 2004 Kar.149

¶111

13 - NC: 2025:KHC:30143 MFA No. 6963 of 2013 C/W MFA No. 6392 of 2013

¶112

HC-KAR

¶113

Therefore, at no stretch of imagination,

¶114

contributory negligence could not have been attributed to the deceased Sridhar Bangera and as such, the impugned judgment on this aspect deserves to be interfered with.

¶115

Coming to the assessment of the compensation,

¶116

it is worth to note that in both the claim petitions, the claimants were unable to establish the income of the deceased. The deceased Dinesh Kotian was aged about 33 years as appreciated by the Tribunal and there being no documentary evidence to prove such income, the Tribunal has resorted to adopting the notional income of ₹3,000/per month. The guidelines issued by the KSLSA for the purpose of settlement of disputes before the Lok adalat prescribe a notional income of ₹4,500/- for the year 2008. In umpteen number of judgments, this Court has held that the guidelines issued by the KSLSA are in general conformity with the wages fixed under the Minimum Wages Act, and therefore, the notional income has to be considered at ₹4,500/- per month. Adding 40% towards

¶117

14 -

¶118

NC: 2025:KHC:30143 MFA No. 6963 of 2013 C/W MFA No. 6392 of 2013

¶119

HC-KAR

¶120

the future prospects, the effective multiplicand would come to ₹6,300/-. Hence, the loss of dependency is calculated as 6,300 x 12x16x50%= ₹6,04,800 by adopting multiplier of 16 and deducting 50% towards personal expenses.

¶121

In addition to this, as held in the judgment of National Insurance Co. Ltd v. Pranay Sethi and others (Supra) , the petitioners are also entitled for loss of love and affection at ₹40,000/-, which needs to be enhanced 10% for every 3 years. Considering this aspect, and the fact that the said observation was made by the Apex Court in the year 2017, 3 escalations have to be granted and as such, the effective amount would be ₹52,000/- towards loss of love and affection. There being 3 dependents, each of them would get ₹52,000/- that is ₹1,56,000/-. Similarly, the petitioners are also entitled for

¶122

a sum of ₹19,500/- each towards loss of estate and funeral expenses. Out of the above compensation amount entitled, 25% deserves to be deducted towards the

¶123

15 - NC: 2025:KHC:30143 MFA No. 6963 of 2013 C/W MFA No. 6392 of 2013

¶124

HC-KAR

¶125

contributory negligence of the deceased Dinesh Kotian.

¶126

After deducting the 25% of the same, the effective

¶127

compensation will be as follows:

¶128

Loss of Dependency	₹6,04,800
Loss of estate	₹19,500
Towards loss of love and affection (52,000/-x 3)	₹1,56,000
Funeral expenses	₹19,500
Total	₹7,99,800
Less: Contributory Negligence at 25%	₹1,99,950
Total	₹5,99,850
Less: Awarded by Tribunal	₹3,28,000
Enhancement	₹2,71,850

¶129

Coming to the quantum of the compensation in

¶130

MVC No.339/2009, the petitioners contended that he was working in Gulf Country earning 2600 AED per month which is equivalent to ₹33,800/- per month. It is evident that before coming to India, he had left that job. Therefore, there is nothing on record to show that he was earning ₹33,800/- per month. However, the Tribunal has taken the income of the deceased Sridhar Bangera at

¶131

16 - NC: 2025:KHC:30143 MFA No. 6963 of 2013 C/W MFA No. 6392 of 2013

¶132

HC-KAR

¶133

₹5,000/- per month. Since it is slightly above the notional income, the same has to be retained and no interference is warranted. Hence, by adding 40% to the sum of ₹5,000/- towards the future prospects, effective multiplicand would come to ₹7,000/- per month. Hence, the loss of dependency is calculated as ₹7,000/- x 12 x 17 x 50% = ₹7,14,000/- by adopting multiplier of 17 for the age of 35 years and deducting 50% towards personal expenses as he was a bachelor.

¶134

In addition to the above compensation amount, there being 3 dependants, a sum of ₹1,56,000/- is entitled to them(52,000/- x 3) under the head of loss of love and affection. Similarly, a sum of ₹19,500/- each is awarded towards the loss of estate and the funeral expenses as below:

¶135

Loss of Dependency	₹7,14,000
Loss of estate	₹19,500
Towards loss of love and affection (52,000/-x 3)	₹1,56,000
Funeral expenses	₹19,500
Total	₹9,09,000
Less: Awarded by Tribunal Enhancement	₹5,50,000 ₹3,59,000

¶136

17 - NC: 2025:KHC:30143 MFA No. 6963 of 2013 C/W MFA No. 6392 of 2013

¶137

HC-KAR

¶138

The last aspect to be considered by this Court

¶139

is about the liability. As noted supra, the claimants in MVC No. 339/2009 are entitled for compensation without any deduction towards the contributory negligence. It is settled principles of law in view of the above cited decisions that the liability among the tortfeasors is joint and several. Hence, the petitioners are at liberty to seek the compensation amount from any one of the tortfeasors, who are arrayed as respondents in MVC No.339/2009. One of the respondent is none else than the petitioner No. 1 in MVC No.338/2009. Therefore, including the successors in interest of the motorcycle which was involved in the accident, the petitioners in MVC No.339/ 2009 are entitled to recover the same from any one of the tortfeasors. If the respondent No. 2-Insurance Company, being the indemnifier of the respondent No. 1 in MVC No.339/2009 compensates the petitioners fully, then the Insurance Company is at liberty to recover 25% of the

¶140

18 - NC: 2025:KHC:30143 MFA No. 6963 of 2013 C/W MFA No. 6392 of 2013

¶141

HC-KAR

¶142

compensation amount from respondent No.3 Dhuma

¶143

suvarna.

¶144

In view of the above, the appeals are allowed in part. Hence, the following:

¶145

ORDER

¶146

Both the appeals are allowed in part. The impugned judgment and award is modified.

¶147

A. The petitioners in MVC No.338/2009 are

¶148

entitled for a total sum of ₹2,71,950/- in addition to the compensation awarded by the Tribunal from respondent No.2-Insurance Company together with interest at 6% p.a., from the date of petition till its realisation.

¶149

B. The petitioners in MVC No.339/2009 are entitled for a sum of ₹3,59,000/- in addition to the compensation awarded by the Tribunal from any one of the tortfeasors together with interest at 6% p.a.,from the date of petition till its realisation.

¶150

19 - NC: 2025:KHC:30143 MFA No. 6963 of 2013 C/W MFA No. 6392 of 2013

¶151

HC-KAR

¶152

Respondent No.2- Insurance Company is at liberty to

¶153

pay the said amount to the claimants and then recover 25% of ₹9,09,000/- from petitioner No. 1 in MVC No. 338/2009. Interse liability between the insured (lorry owner) and the owner of the motorcycle is 75% and 25% respectively.

¶154

C. Rest of the order in respect of the

¶155

apportionment etc. remain unaltered.

¶156

D. The Insurance Company is at liberty to request

¶157

the Executing Court/the Tribunal in MVC No.338/2009 for withholding 25% of compensation petitioner No.1 therein.

¶158

Sd/(C M JOSHI) JUDGE

¶159

tsn* List No.: 1 Sl No.: 25

Mr Dhuma Suvarna v. Mr Mohammad Juneda

Case brief

What is this about?

What did the court decide?

Mr Dhuma Suvarna v. Mr Mohammad Juneda

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Pr Commisioner of Income Tax Vs M/S. Ibm United Kingdom

Chilume Social Service Society Vs the Income Tax Officer

Sri Sampathraju Vs M/S Idbi Bank Ltd.

Mr Abhishek Sirohi Vs Mr Chand Pasha

Legal Manager Vs Smt Ramakka

Sri. L. Madhu Vs Ashok P