THE PRINCIPAL COMMISSIONER, vs. MS. RENUKA G.,

- 1 - IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 11TH DAY OF JANUARY 2021

PRESENT

THE HON’BLE MR. JUSTICE G.NARENDAR

AND

THE HON’BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

MFA NO.101131/2017 C/w. MFA Nos.100003/2017, 100004/2017 100005/2017, 101130/2017 101132/2017, 101133/2017 AND 101134/2017 (MV)

IN MFA NO.101131/2017:

BETWEEN

THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, AT 2ND FLOOR, DHAMANEKAR ARCADE, DR. B.R.AMBEDKAR ROAD, BELAGAVI, NOW REP. BY ITS AUTHORIZED SIGNATORY REGIONAL OFFICE, HUBBALLI. ...APPELLANT (BY SRI.RAJASHEKHAR S.ARANI, ADVOCATE)

AND 1. SHRI VIJAY S/O VIJANATH KADOLKAR AGE: 56 YEARS, OCC: CYCLE REPAIRER (NOW NIL) R/O: KALMESHWAR GALLI, KANGRALI BK, TQ/DIST: BELAGAVI-590001.

- 2 - AGE: MAJOR, OCC: BUSINESS, R/O "MANOGANGA", PLOT NO.17, 1ST MAIN 2ND CROSS, SHIVAJI NAGAR, BELAGAVI-590001

THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 29.09.2016 PASSED IN MVC NO.259/2015 ON THE FILE OF THE V ADDL. DISTRICT AND SESSIONS JUDGE AND MEMBER VI ADDL. MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

IN MFA No.100003/2017:

BETWEEN:

- 3 - R/O: KALMESHWAR GALLI, KANGRALI BK, TQ & DIST: BELAGAVI-590010.

AND 1. RAJKUMAR S/O MANOHAR KHATAVKAR AGE: MAJOR, OCC: BUSINESS R/O: "MANOGANGA", PLOT NO.17, IST MAIN, 2ND CROSS, SHIVAJI NAGAR, BELAGAVI-590016

(BY SRI.RAJASHEKHAR S ARANI, ADV. FOR R2 SRI M.Y.KATAGI, ADV.FOR R4, NOTICE TO R1 IS DISPENSED WITH, NOTICE TO R3 SERVED)

- 4 - THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 29.09.2016 PASSED IN MVC NO.258/2015 ON THE FILE OF THE V ADDL. DISTRICT AND SESSIONS JUDGE AND MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, VI, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

IN MFA NO.100004 OF 2017 BETWEEN:

VIJAY S/O VAIJANATH KADOLKAR AGE: 56 YEARS, OCC: CYCLE REPAIRER, NOW NIL, R/O: KALMESHWAR GALLI, KANGRALI BK, TQ & DIST: BELAGAVI-590010. ...APPELLANT (BY SRI.HANMANTH R.LATUR, ADVOCATE) AND 1. SHRI RAJKUMAR S/O MANOHAR KHATAVKAR AGE: MAJOR, OCC: BUSINESS R/O: "MANOGANGA", PLOT NO.17, IST MAIN, 2ND CROSS, SHIVAJI NAGAR, BELAGAVI-590016

- 5 - NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE AT CLUB ROAD, BELAGAVI-590002. …..RESPONDENTS (BY SRI.RAJASHEKHAR S ARANI, ADV. FOR R2 SRI M.Y.KATAGI, ADV. FOR R4, R1 & R3 – SERVED)

THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 29.09.2016 PASSED IN MVC NO.259/2015 ON THE FILE OF THE V ADDL. DISTRICT AND SESSIONS JUDGE AND MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, VI, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

IN MFA NO.100005 OF 2017: BETWEEN:

SMT.KALPANA W/O VIJAY KADOLKAR AGE: 42 YEARS, OCC: BUSINESS NOW NIL, R/O: KALMESHWAR GALLI, KANGRALI BK, TQ & DIST: BELAGAVI-590010. ...APPELLANT (BY SRI.HANAMANT R.LATUR, ADVOCATE)

AND:

- 6 - R/BY ITS PROPRIETOR MR.ASLAM MAHIBUB SHAIKH AGE: MAJOR, OCC: BUSINESS R/O: A/P 356A, SHENDURJANE, GAVATHAN, SHENDURJANE TQ: WAI, DIST: SATARA-412803.

THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 29.09.2016 PASSED IN MVC NO.260/2015 ON THE FILE OF THE V ADDL. DISTRICT AND SESSIONS JUDGE AND MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, VI, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

IN MFA NO.101130 OF 2017 BETWEEN:

THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, AT 2ND FLOOR, DHAMANEKAR ARCADE, DR. B.R.AMBEDKAR ROAD, BELAGAVI, NOW REP. BY ITS AUTHORIZED SIGNATORY DEPUTY MANAGER, REGIONAL OFFICE, HUBBALLI. ...APPELLANT (BY SRI.RAJASHEKHAR S.ARANI, ADVOCATE)

AND 1. SMT. SUMAN W/O SUBHASH KADOLKAR AGE: 52 YEARS, OCC: HOUSEHOLD WORK, R/O: KALMESHWAR GALLI,

- 7 - KANGRALI BK, TQ/DIST: BELAGAVI-590001

- 8 - THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 29.09.2016 PASSED IN MVC NO.258/2015 ON THE FILE OF THE V ADDL. DISTRICT AND SESSIONS JUDGE AND MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, VI, BELAGAVI, AWARDING COMPENSATION OF RS.25,01,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL ITS REALISATION.

IN MFA NO.101132 OF 2017 BETWEEN:

THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, AT 2ND FLOOR, DHAMANEKAR ARCADE, DR. B.R.AMBEDKAR ROAD, BELAGAVI, NOW REP. BY ITS AUTHORIZED SIGNATORY REGIONAL OFFICE, HUBBALLI. ...APPELLANT (BY SRI.RAJASHEKHAR S ARANI, ADVOCATE)

AND: 1. SMT. KALPANA W/O VIJAY KADOLKAR AGE: 42 YEARS, OCC: BUSINES (NOW NIL) R/O: KALMESHWAR GALLI, KANGRALI BK, TQ/DIST: BELAGAVI-590001

- 9 - CAPTIAN VEHICLE BEARING, REG.NO.MH-11/A-9502)

THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 29.09.2016 PASSED IN MVC NO.260/2015 ON THE FILE OF THE V ADDL. DISTRICT AND SESSIONS JUDGE AND MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, VI, BELAGAVI, AWARDING COMPENSATION OF RS.3,05,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL ITS REALISATION.

IN MFA NO.101133 OF 2017 BETWEEN:

THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, AT 2ND FLOOR, DHAMANEKAR ARCADE, DR. B.R.AMBEDKAR ROAD, BELAGAVI, NOW REP. BY ITS AUTHORIZED SIGNATORY REGIONAL OFFICE, HUBBALLI. ...APPELLANT (BY SRI.RAJASHEKHAR S.ARANI, ADVOCATE)

AND 1. SHRI RAHUL S/O VIJAY KADOLKAR AGE: 26 YEARS, OCC: MASON (NOW NIL) R/O: KALMESHWAR GALLI, KANGRALI BK, TQ/DIST: BELAGAVI-590001

- 10 - 2. SHRI RAJAKUMAR S/O MANOHAR KHATAVKAR AGE: MAJOR, OCC: BUSINESS, R/O "MANOGANGA", PLOT NO.17, IST MAIN 2ND CROSS, SHIVAJI NAGAR, BELAGAVI-590001

THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 29.09.2016 PASSED IN MVC NO.261/2015 ON THE FILE OF THE V ADDL. DISTRICT AND SESSIONS JUDGE AND MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, VI, BELAGAVI, AWARDING COMPENSATION OF RS.15,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL ITS REALISATION.

IN MFA NO.101134 OF 2017:

BETWEEN

THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, AT 2ND FLOOR, DHAMANEKAR ARCADE, DR. B.R.AMBEDKAR ROAD, BELAGAVI, NOW REP. BY ITS AUTHORIZED SIGNATORY REGIONAL OFFICE, HUBBALLI. ...APPELLANT (BY SRI.RAJASHEKHAR S.ARANI, ADVOCATE)

- 11 - AND

THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 29.09.2016 PASSED IN MVC NO.262/2015 ON THE FILE OF THE V ADDL. DISTRICT AND SESSIONS JUDGE AND MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL, VI, BELAGAVI, AWARDING COMPENSATION OF RS.25,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL ITS REALISATION.

THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, HANCHATE SANJEEVKUMAR J., DELIVERED THE FOLLOWING:

- 12 - COMMON JUDGMENT Though these appeals are listed for admission today, with the consent of both the parties, same are taken up for final disposal. 2. All these appeals are by the Insurance Company and claimants arising out of five claim petitions which were numbered as MVC Nos.258/2015, 259/2015, 260/2015, 261/2015 and 262/2015 questioning the common judgment and award passed in above MVC cases dated 29.09.2016 on the file of V Additional District and Sessions Judge and MACT-VI, Belagavi (hereinafter referred to as ‘Tribunal’ for short) and since the facts and law to be decided in all these appeals are common, the above appeals are disposed of by this common judgment. 3. For convenient and easy reference, the parties in the appeals are referred as claimants and Insurance Company. 4. The brief facts, which are necessary for disposal of the appeals are as under: Claim petitions came to be filed by the claimants under Section 166 of the Motor Vehicles Act for grant of compensation which were registered as MVC Nos.258/2015, 259/2015,

- 13 - 260/2015, 261/2015 and 262/2015. It is contended that the claimants in MVC Nos.259/2015 to 262/2015 and one Subhash Vaijanath Kadolkar (deceased in MVC No.258/2015) were traveling in Chevrolet Tavera vehicle bearing No.KA-22/N-6642 on 16.11.2014 from Belagavi to Satara and at about 7.30 a.m. when the said vehicle reached near Pune-Bengaluru road within the limits of Kashil village, Satara taluk, another Chevrolet Tavera Captain vehicle bearing No.MH-11/A-9502 driven by its driver at a high speed, rash and negligent manner dashed to I-20 car bearing No.MH-09/BX-5709 which was going ahead of it and as such the said I-20 car dashed to Tavera vehicle bearing No.MH-43/A-5238 which was going in front of it and further the said Tavera dashed to Luxury Bus bearing No.MH-03/N-9316 and in this series of accident, the driver of Chevrolet Tavera vehicle bearing No.KA-22/N-6642 in order to avoid the accident took his vehicle towards right side and thereby dashed to the Container truck bearing No.HR-55/P-9480 and further it dashed to Tavera vehicle bearing No.MH-43/A-5238 and caused the accident. Due to the impact of the said accident, the inmates of Chevrolet Tavera vehicle bearing No.KA-22/N-6642 i.e. deceased in MVC No.258/2015 sustained injuries and succumbed to the injuries

- 14 - during the treatment in the hospital and other claimants in MVC Nos.259/2015 to 262/2015 have sustained grievous injuries. It is further contended that the deceased and the claimants were traveling in Chevrolet Tavera vehicle bearing No.KA-22/N- 6642. Therefore, the legal heirs of the deceased and other injured claimants have filed claim petitions and sought for awarding of suitable compensation. 5. The Tribunal on cumulative consideration of oral and documentary evidence on record, allowed the claim petitions in part and awarded compensation of Rs.25,01,000/- on account of death of Subhash Vaijanath Kadolkar in MVC No.258/2015 and for the injuries sustained by the claimants, Rs.2,68,000/- in MVC No.259/2015, Rs.3,05,000/- in MVC No.260/2015, Rs.15,000/- in MVC No.261/2015 and Rs.25,000/- in MVC No.262/2015 has been awarded with interest at the rate of 9% p.a. from the date of petition till realization. 6. It is that common judgment which is under challenge in these appeals by the Insurance Company and the claimants questioning the liability and quantum of compensation awarded by the Tribunal, respectively in their respective appeals.

- 15 - 7. Learned counsel appearing for the appellant- Insurance Company in MFA No.101130/2017 (arising out of MVC No.258/2015), MFA No.101131/2017 (arising out of MVC No.259/2015), MFA No.101132/2017 (arising out of MVC No.260/2015), MFA No.101133/2017 (arising out of MVC No.261/2015) and MFA No.101134/2017 (arising out of MVC No.262/2015) argued that the accident was caused due to the rash and negligent driving of Chevrolet Tavera Captain vehicle bearing No.MH-11/A-9502 also, but the entire negligence is attributed on the part of the driver of Chevrolet Tavera vehicle bearing No.KA-22/N-6642. Therefore, fastening the entire liability on the insurer of Chevrolet Tavera vehicle bearing No.KA-22/N-6642 is not correct. Therefore, he submitted that the driver of Chevrolet Tavera Captain vehicle bearing No.MH- 11/A-9502 has also contributed his rashness and negligence to the accident and therefore the liability be fixed on the said vehicle also and fastening the entire liability on the appellant- Insurance Company (insurer of Chevrolet Tavera vehicle bearing No.KA-22/N-6642) is not correct. 8. Further, he submitted that in the complaint and FIR it is alleged that the accident has been taken place because of the

- 16 - rash and negligent driving of the driver of Chevrolet Tavera vehicle bearing No.KA-22/N-6642 and also by the driver of Chevrolet Tavera Captain vehicle bearing No.MH-11/A-9502. Therefore, fastening the entire liability on the appellant- Insurance Company is not correct when there is evidence on record that there is contributory negligence on the part of the driver of Chevrolet Tavera Captain vehicle bearing No.MH-11/A- 9502. 9. The learned counsel further submitted that the amount of compensation awarded by the Tribunal in MVC No.258/2015 (MFA No.100003/2017), MVC No.259/2015 (MFA No.100004/2017) and MVC No.260/2015 (MFA No.100005/2017) is on the higher side and exorbitant and therefore, prays for allowing the appeals filed by Insurance Company by reducing the compensation amount awarded by the Tribunal. 10. On the other hand, learned counsel appearing on behalf of the claimants in MFA Nos.100003/2017 (arising out of MVC No.258/2015), 100004/2017 (arising out of MVC No.259/2015) and 100005/2017 (arising out of MVC No.260/2015) submitted that the amount of compensation

- 17 - awarded by the Tribunal is on the lower side and prays for enhancement of compensation. 11. In the present case, the series of accident had occurred totally involving six vehicles i.e. Chevrolet Tavera vehicle bearing No.KA-22/N-6642, Chevrolet Tavera Captain vehicle bearing No.MH-11/A-9502, I-20 car bearing No.MH-09/B- 5709, Tavera vehicle bearing No.MH-43/A-5238, Luxury bus bearing No.MH-03/N-9316 and container truck bearing No.HR- 55/P-9480. In the FIR, Jawab and spot panchanama which are produced as Exs.P.1, P.2 and P.4 and P.1(a), P.2(a), and P.4(a) (including Kannada translations) reveal that the accident was caused due to the rash and negligent driving of Chevrolet Tavera Captain vehicle bearing No.MH-11/A-9502 and another Chevrolet Tavera vehicle bearing No.KA-22/N-6642. All the above stated documentary evidences unequivocally prove the fact that the accident was caused due to the rash and negligent driving of above stated two Tavera vehicles, but the Tribunal has fastened the entire liability on the owner and insurer of Chevrolet Tavera vehicle bearing No.KA-22/N-6642 alone and exonerated the owner and insurer of another Cevrolet Tavera Captain vehicle bearing No.MH-11/A-9502. When this being the facts and

- 18 - evidences revealed from the evidence on record including the spot panchanama and charge sheet, it is proved that the accident was caused due to the rash and negligent driving of the drivers of both Chevrolet Tavera Captain vehicle bearing No.MH- 11/A-9502 and Chevrolet Tavera vehicle bearing No.KA-22/N- 6642. 12. In MFA Nos.101131/17, 101130/2017, 101132/2017, 101133/2017 and 101134/2017 filed by the Insurance Company, upon considering the documentary evidence which is marked as Exs.P.3 and P.3(a)-Khabari Jawab which is reported by the police constable of Boraganv police station, it is clearly proved that the manner in which the drivers of above stated both offending vehicles have driven the respective vehicles and caused the accident. Therefore, upon re-appreciating the evidence on record, it is proved that both the drivers of Chevrolet Tavera Captain vehicle bearing No.MH-11/A-9502 and Chevrolet Tavera vehicle bearing No.KA-22/N-6642 have contributed negligence in the ratio of 50:50 each as could be seen from the evidence on record. But, the Tribunal has fastened the entire liability on the owner and insurer of Chevrolet Tavera vehicle bearing No.KA- 22/N-6642 which is found to be perverse in nature as it is

- 19 - contrary to the evidence on record. Therefore, in this regard, the judgment and award passed with respect to all the claim petitions insofar as fastening the liability entirely on the owner and insurer of Chevrolet Tavera vehicle bearing No.KA-22/N- 6642 is liable to be modified. Therefore, it is modified to the effect that the accident has caused due to the contributory negligence of each of the drivers of Chevrolet Tavera vehicle bearing No.KA-22/N-6642 and Chevrolet Tavera Captain vehicle bearing No.MH-11/A-9502 as having equally contributed for the accident. Accordingly, the negligence is attributed in the ratio of 50:50 each to both the offending vehicles above stated. 13. Accordingly, the respondents No.1 and 2-owner and insurer of Chevrolet Tavera vehicle bearing No.KA-22/N-6642 are jointly and severally held liable to pay 50% of the compensation and respondents No.3 and 4-owner and insurer of Chevrolet Tavera Captain vehicle bearing No.MH-11/A-9502 are jointly and severally held liable to pay 50% of the compensation. Therefore, to this extent, MFA No.101131/2017 filed by the Insurance Company is liable to be allowed in part insofar as the liability for payment of compensation is concerned.

- 20 - 14. Since respondents No.1 to 4 are held liable to pay the compensation, MFA Nos.101130/2017, 101132/2017, 101133/2017 and 101134/2017 filed by the Insurance Company are also liable to be allowed in part insofar as the liability for payment of compensation is concerned. 15. In MFA No.100003/2017 (arising out of MVC No.258/2015), the Tribunal has awarded a compensation of Rs.25,01,000/- with interest at 9% p.a. It is stated that the deceased was working in Maratha Co-operative Bank Limited, Belagavi and was drawing salary of Rs.28,476/- and the salary certificate produced by the claimants as per Ex.P.8 proves that the deceased was working as sub-staff in the said Bank. In support of Ex.P.8, the Manager of the Bank is examined as PW.6 and in his evidence he has stated that the deceased was drawing salary of Rs.28,476/- p.m., but as per the salary certificate- Ex.P.8 it is proved that the deceased was drawing salary of Rs.27,976/- p.m. and accordingly, the Tribunal has considered the monthly income of the deceased at Rs.27,980/-. The deceased was paying Rs.200/- p.m. towards professional tax and was making subscription of Rs.3081/- p.m. towards income tax. Therefore, the Tribunal has come to the conclusion that the

- 21 - deceased was a income tax payee and was contributing Rs.4,777/- p.a. towards income tax. Therefore, after deducting Rs.4,777/- towards income tax and Rs.2,400/- towards professional tax paid by the deceased from Rs.3,35,760/- (Rs.27,980 x 12), annual income would be Rs.3,28,583/-. Therefore, we do not find any incorrect approach by the Tribunal while adopting the monthly income of the deceased as it is supported by salary certificate-Ex.P.8 coupled with the evidence of Bank Manager-PW.6. 16. Further, as per medical records Ex.P.6-postmortem report, the age of the deceased is stated as 58 years. Therefore, as per the judgment of the Hon’ble Supreme Court in the case of Sarla Verma (Smt) and Others Vs Delhi Transport Corporation and Another, reported in (2009) 6 SCC 121, the appropriate multiplier would be 9. The Tribunal has accordingly adopted the multiplier as 9. Further, the Tribunal has considered the appellant No.1 as wife of the deceased and other appellants are the major sons and daughter. Considering the number of dependants of the deceased, the Tribunal has deducted 1/3rd of the income towards living and personal expenses of the

- 22 - deceased and granted compensation of Rs.22,67,226/- under the head of loss of dependency. 17. Further, the deceased was working as sub-staff in Maratha Co-operative Bank Limited in a permanent nature of job as it is proved by the evidence of Bank Manager, who is examined as PW.6 and salary certificate at Ex.P.8. Since the deceased was aged 58 years, income towards future prospects is to be added. Accordingly, the Tribunal as per the judgment of the Hon’ble Apex Court in the case of Rajesh and Others Vs. Rajbir Singh and Others reported in 2013 ACJ 1403, has added 15% of the income towards future prospects while awarding the compensation under the head of loss of dependency. 18. Further, the Tribunal has awarded compensation of Rs.1,00,000/- towards loss of consortium to appellant No.1, Rs.1,00,000/- towards loss of estate and Rs.25,000/- towards funeral expenses and transportation of body and Rs.8,000/- towards medical expenses which is just and proper compensation on all the heads. Therefore, there is no need to interfere with the quantum of compensation awarded by the Tribunal in MVC No.258/2015. Therefore, the appeal filed by the claimants in MFA No.100003/2017 is liable to be dismissed as there is no need to

- 23 - interfere with the quantum of compensation awarded by the Tribunal. 19. In MFA No.100004/2017 (arising out of MVC No.259/2015), the claimant had filed claim petition claiming compensation on account of the injuries sustained by him in the road traffic accident as above stated. The claimant was aged about 55 years as on the date of the accident and had claimed that he was earning Rs.15,000/- p.m. as cycle repairer. As the profession of the claimant is cycle repairer and in the absence of any proof of income, the Tribunal has taken the notional income of the claimant at Rs.7,000/- p.m. as the accident was taken place in the year 2014. Ex.P.18-Radiology report shows that the claimant had sustained fracture of right temporo-parietal bones. The Tribunal has taken permanent physical disability to the extent of 8% to the whole body and by applying multiplier 11, had granted compensation of Rs.73,920/- under the head of loss of future income. 20. Upon considering the evidences on record as discussed above, we do not find any infirmity in assessing the permanent disability at 8% and adopting notional income at Rs.7,000/- p.m. and applying multiplier 11 and therefore the

- 24 - amount of compensation awarded under the head of loss of future income is perfectly justifiable and there is no need to make interference with the same. 21. Further, the Tribunal has awarded a sum of Rs.50,000/- towards pain and suffering, Rs.25,000/- towards loss of future amentite4s and Rs.15,000/- towards loss of life expectancy and Rs.80,000/- towards medical expenses and Rs.3,000 towards conveyance, nourishment and attendant charges and Rs.21,000/- towards loss of income during laid up period. Therefore, considering the nature of injuries sustained and the disability occurred, the compensation amount awarded under each heads is found to be proper, correct and justifiable and therefore, there is no need to make interference with the same. Hence, MFA No.100004/2017 is liable to be dismissed. 22. In MFA No.100005/2017 (arising out of MVC No.260/2015), the claimant was doing tailoring work and earning Rs.10,000/- pm. and was aged 40 years as on the date of the accident. Ex.P.73 is the certificate issued by Taluka Panchayat Belgaum which indicates that the claimant has passed the tailoring examination. Therefore, the Tribunal has adopted the notional income at Rs.7,000/- p.m. and considered the age of

- 25 - the claimant as 42 years as per the medical record Ex.P.68- wound certificate and accordingly adopted appropriate multiplier at 14 which is found to be correct. Then the Tribunal has awarded compensation of Rs.1,41,120/- under the head of loss of future income. The claimant had sustained fracture of right ulna and blunt injury to abdomen and the disability certificate- Ex.P.72 issued by PW.7 shows that the claimant had sustained 20% of permanent physical disability to the whole body. Even though PW.7 is not a treated doctor, if the evidence of PW.7 and disability certificate are carefully considered, the claimant has suffered 25% of permanent disability and the Tribunal ought to have taken the same at 20% but the Tribunal has erred in taking the disability at 12% which is on the lower side. Therefore, 20% of the permanent disability is to be adopted considering the medical evidence produced by the claimant in this regard. Therefore, the amount of compensation under the head of loss of future income is to be recalculated and quantified as under: Rs.7,000 x 20/100 x 14 x 12 = Rs.2,35,200/- 23. Accordingly, the claimant is entitled for Rs.2,35,200/- under the head of loss of future income. Further, the Tribunal has awarded compensation of Rs.60,000/- towards pain and

- 26 - suffering, Rs.25,000/- towards loss of future amenities, Rs.15,000/- towards loss of life expectancy, Rs.39,000/- towards medical expenses, Rs.3,000/- towards nourishment, conveyance and attendant charge and Rs.21,000/- towards loss of income during laid up period which are found to be proper and correct. Therefore, the compensation awarded on other heads is not liable to be disturbed as it is properly awarded. Therefore, the claimant in the present case is entitled for additional amount of compensation at Rs.94,080/- which is rounded of to Rs.94,000/- (Rs.2,35,200 – Rs.1,41,120 = Rs.94,080/-) under the head of loss of future income. Accordingly, MFA No.100005/2017 is liable to be allowed in part. 24. The Tribunal has awarded interest at the rate of 9% p.a. on the compensation amount which is found to be on higher side. Therefore, interest at the rate of 7% p.a. is to be awarded on the compensation amount awarded to the claimants in all the appeals. Accordingly, the common judgment and award under challenge in all the appeals is liable to be modified to the extent above stated. Hence, we proceed to pass the following:

- 27 - ORDER Appeals filed by the Insurance Company in MFA Nos.101131/2017, 101130/2017, 101132/2017, 101133/2017 and 101134/2017 are hereby allowed in part. Appeals filed by the claimants in MFA Nos.100003/2017 and 100004/2017 are hereby dismissed. Appeal filed by the claimant in MFA No.100005/2017 is hereby allowed in part. The claimant in MFA No.100005/2017 is entitled for additional compensation of Rs.94,000/-. The compensation amount determined by the Tribunal and the enhanced compensation in respect of all the claim petitions shall carry interest at 7% p.a. from the date of petition till realization. The judgment and award passed in MVC Nos.258/2015, 259/2015, 260/2015, 261/2015 and 262/2015 dated 29.09.2016 on the file of V Additional District and Sessions Judge and MACT-VI, Belagavi is modified so far as fastening the liability is concerned and quantum of compensation is concerned in MVC No.260/2015 and also grant of rate of interest is concerned.

- 28 - Hence, the owner and insurer of Chevrolet Tavera vehicle bearing No.KA-22/N-6642 is liable to pay 50% of the compensation amount and the owner and insurer of Chevrolet Tavera vehicle bearing No.MH-11/A-9502 is liable to pay 50% of the compensation amount. The compensation amount is ordered to be deposited by the respective Insurance Companies within six weeks from the date of receipt of a certified copy of this order. Amount in deposit, if any, is ordered to be transferred to the Tribunal forthwith. In all other respects, the award of the Tribunal stands unaltered. No order as to costs. Office to draw modified award accordingly. In view of the above order, pending I.A’s do not survive for consideration.

Sd/- JUDGE

Sd/- JUDGE

- 29 - GNJ & HSJ :

MFA No.101131/2017 26.02.2021

and connected matters

ORDER ON MEMO FOR ‘BEING SPOKEN TO’ FILED BY THE RESPONDENT NO.4

In the present case the judgment and award passed by the Tribunal is modified to the extent that the liability is fixed at 50%:50% each on the appellant who is Insurer of the Chevrolet Tavera vehicle bearing Reg.No.KA-22-N- 6642 and liability of remaining 50% was put to respondent No.4 who is the Insurer of Chevrolet Tavera Captain vehicle bearing Reg.No.MH-11/A-9502.

- 30 - Javab, spot panchanama and charge sheet. But the learned counsel for the respondent No.4 submitted that even though the owner of the Chevrolet Tavera Captain vehicle bearing RegNo.MH-11-A-9502 is also responsible for causing series of accident but the claimants have sustained injuries and death of the deceased was occurred mainly due to the Chevrolet Tavera vehicle bearing Reg.No.KA-22-N-6642. Therefore, fastening liability of 50%:50% on respondent No.4 is not correct as the driver of the Captain vehicle bearing Reg.No.MH- 11/A-9502 has not directly attributed causing injuries to the claimants, as there are series of accident occurred. The driver of the Captain vehicle bearing Reg.No.MH- 11/A-9502 driven by its driver came in high speed and in a rash and negligent manner, dashed to I-20 car bearing Reg.No.MH-09/BX-5709 which was going ahead of the said vehicle and thereafter the said I-20 car dashed to another vehicle bearing Reg.No.MH-43-A-5238 which was going infront of I-20 car and thereafter the said

- 31 - vehicle bearing Reg.No.MH-43/A-5238 dashed to Luxury bus bearing Reg.No.MI-03/N-9316 and in that process the driver of liability vehicle bearing Reg.No.KA-22-N- 6642 in order to avoid the accident took his vehicle towards right side and thereby dashed to the Container vehicle bearing Reg.No.HR-55-P-9480 and the said vehicle dashed further to a vehicle bearing Reg.No.MH- 43/A-5238. Therefore, under these circumstances, when there is no direct hit between the vehicles bearing Reg.No.KA-22-N-6642 and the vehicle bearing Reg.No.MH-11/A-9502, hence, the counsel for respondent No.4 contended that liability of 35% can be fastened on respondent No.4 – Insurance Company and remaining 65% of liability can be fastened on the appellant-Insurance Company. 3. We find force in the submission made by the learned counsel for respondent No.4 that even though driver of Captain vehicle bearing Reg.No.MH-11/A-9502 has caused the accident first but in the said series of

- 32 - accident the driver of the car bearing Reg.No.KA-22-N- 6642 had taken the vehicle towards right side and dashed to the Container vehicle bearing Reg.No.HR-55-P- 9480. Therefore, the contributory negligence can be attributed to the ratio of 65:35 between the appellant- Insurance Company who is insurer of the vehicle bearing Reg.No.KA-22-N-6642 and respondent No.4 – Insurance Company who is insurer of the vehicle bearing Reg.No.MH-11/A-9502 respectively. Therefore to this extent, the percentage of contributory negligence is liable to be modified upon accepting the memo for ‘being spoken to’ and accordingly, the ratio of liability fixed in the judgment is modified to the extent that the appellant/Insurance Company is liable to pay 65% of the total compensation amount and respondent No.4- Insurance Company is liable to pay 35% of total compensation amount.

Accordingly, the judgment and decree passed by this court on 11.01.2021 is hereby modified to the extent

- 33 - that the appellant-Insurance Company is liable to pay the companion to the extent of 65% and the respondent No.4-New India Assurance Company is liable to pay the compensation to the extent of 35% to the claimants with interest at the rate of 7% per annum from the date of petition till its realization. To this extent the memo for 'being spoken to' is accepted.

Registry is hereby directed to draw the decree as per this reviewed order under the memo for 'being spoken to'.

Sd/- JUDGE

Sd/-

JUDGE