Omkaramma v. Mohammed Toufiq

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF AUGUST, 2026 BEFORE THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR MISCELLANEOUS FIRST APPEAL NO. 5672 OF 2026 (MV-D) BETWEEN:

¶1OMKARAMMA W/O LATE JAYANTHA AGED ABOUT 50 YEARS.

¶2SUNIL K.J. S/O LATE JAYANTHA AGED ABOUT 25 YEARS.

BOTH APPELLANTS ARE R/AT KUMBARAGOLLI CHIKKAMATTURU AAVINAHALLI POST SAGARA TALUK SHIVAMOGGA DISTRICT – 577 417. …APPELLANTS

(BY SRI ASHWATH C.M, ADVOCATE)

AND:

¶1MOHAMMED TOUFIQ S/O KHALID AGED ABOUT 32 YEARS R/AT NEAR DURGAMBA STREET No.80, AAVINAHALLI AND POST SAGARA TALUK, SHIVAMOGGA DISTRICT.

Location: HIGH COURT OF KARNATAKA ((((((((((((HC-KAR, NC:(2026:KHC:45795( MFA(No.(5672(of(2026( ( ,,,,,,,,,, , CNR:(KAHC010541982026( ( ( MOBILE,No.8762171942, OWNER,AND,DRIVER,OF,TATA,ACE,VEHICLE, BEARING,REG.,No.,KA,04,D,9494., ,

2., DIVISIONAL,MANAGER, UNITED,INDIA,INSURANCE,CO.,LTD.,, DIVISIONAL,OFFICE,, COURT,ROAD,,SAGARA, POLICY,No.2404033121P105455570, VALID,FROM,06.09.2021,TO,05.09.2022., …RESPONDENTS, , (BY,SMT.,H,C,LOKESHWARI,,ADVOCATE,FOR, ,SRI,A,RAVISHANKAR,,ADVOCATE,FOR,R2, ,V/O,DTD.,10.08.2026.,NOTICE,TO,R1,IS,D/W), , , THIS,MFA,IS,FILED,UNDER,SECTION,173(1),OF,MV,ACT, AGAINST, THE, JUDGMENT, AND, AWARD, DATED:18.03.2025,, PASSED,IN,MVC,No.458/2023,ON,THE,FILE,OF,THE,PRINCIPAL, SENIOR, CIVIL, JUDGE, AND, JMFC,, MACT,, SAGAR,, ALLOWING, THE, CLAIM, PETITION, FOR, COMPENSATION, AND, SEEKING, ENHANCEMENT,OF,COMPENSATION.,,,,,,,,,,,,,,,,,,,,,,, , , THIS, APPEAL, COMING, ON, FOR, ORDERS, THIS, DAY,, JUDGMENT,WAS,DELIVERED,THEREIN,AS,UNDER:, , CORAM:, HON'BLE,MR.,JUSTICE,SHIVASHANKAR,AMARANNAVAR, , ORAL(JUDGMENT( , This, appeal, is, filed, by, the, appellants/claimants, challenging, the, judgment, and, award, dated, 18.03.2025, passed,in,MVC,No.458/2023,by,the,Prl.Senior,Civil,Judge, and,MACT,,Sagar.,,

¶2Even though the appeal is listed today for admission, it is taken up for disposal with the consent of learned counsel for appellants and learned counsel for respondent No.2/insurer.

¶3The appellants/claimants made a claim petition praying to award compensation for the death of Jayantha (husband of claimant No.1 and father of claimant No.2) in a road traffic accident occurred on 21.04.2022 contending that accident occurred due to rash and negligent driving of the driver of Tata Ace bearing Regn.No.KA-04-D-9494. The Tribunal after recording the evidence of the parties, appreciating the evidence assessed the compensation and awarded compensation under various heads as under: Sl.No. Heads Amount in (Rs.)

¶01Loss of dependency 12,61,000/-

¶02Loss of love and affection 20,000/-

¶03Loss of consortium 80,000/-

¶04Medical expenses Nil

¶05Funeral expenses 10,000/-

¶06Loss of estate 10,000/-

Total 13,81,000/-

¶4The Tribunal held that deceased has also contributed to the accident and assessed the same at 25% and awarded only Rs.10,36,000/- (75% of Rs.13,81,000.00) with interest @ 6% p.a. from the date of petition till realization and directed respondent No.2/insurer to deposit the award amount with interest. The claimants have filed the present appeal challenging the contributory negligence attributed to the deceased and also sought enhancement of compensation awarded by the Tribunal.

¶5Heard learned counsel for the appellants and learned counsel for respondent No.2/insurer.

¶6Learned counsel for appellants would contend that there is nothing on record to indicate that deceased was not wearing helmet at the time of accident and inspite of that the Tribunal has held that deceased was not wearing helmet at the time of accident and contributed to the accident and fixed the same at 25%. There is no pleading

of insurer with regard to deceased not wearing helmet. There is no issue in that regard. Therefore, the Tribunal has erred in holding that deceased has contributed to the accident. The sole negligence is on the part of the driver of the insured vehicle. He further submits that the notional income fixed for the year 2022 is Rs.15,500/- p.m. and that is to be taken as against the income taken by the Tribunal based on minimum wages. The Tribunal has rightly applied multiplier '11', added 10% towards future prospects and deducted 1/3rd towards personal expenses of deceased. The Tribunal has not considered 10% escalation on conventional heads and compensation awarded for funeral expenses and loss of estate are on lower side. With this he prayed to allow the appeal.

¶7Learned counsel for respondent No.2/insurer would contend that in the seizure mahazar there is no mention of seizing of helmet of deceased and that itself indicate that he was not wearing helmet and the deceased succumbed to the injuries sustained to his head.

Considering the said aspect the Tribunal has rightly held that deceased has contributed to the accident to the extent of 25%. The compensation awarded by the Tribunal on all heads is just and proper and there are no grounds for enhancement. With this he prayed to dismiss the appeal.

¶8Having heard the learned counsels, the Court has perused the judgment, award and documents made available by the learned counsel for appellants.

¶9The accident occurred on 21.04.2022. At the time of accident deceased was riding the motor cycle and PW.2 was a pillion rider. Charge sheet has been filed against driver of Tata Ace bearing Regn.No.KA-04-D-9494. Respondent No.1 is driver and owner of insured vehicle. There is no charge sheet filed against the deceased for not wearing helmet. The police records does not indicate that deceased was not wearing helmet at the time of accident. The Tribunal without any basis has held that deceased was

not wearing helmet at the time of accident. Even though deceased was not wearing helmet at the time of accident that cannot be taken as contributory negligence on the part of the deceased. The Hon'ble Apex Court in the case of [M.Nithya and others vs. SBI General Insurance Co.Ltd (SLP(C) Nos.833-834/2023 DD 03.01.2025] has observed as under: "7. It is pertinent to observe that the Tribunal noted that the Insurance Company in their Counter contend that contributary negligence of the part of the deceased has to be fixed. However, the Tribunal did not frame any specific issue in that regard for determination. The Tribunal clearly finds negligence only on part of the driver of the lorry and therefore, the owner of the lorry and the Insurance Company which insured the said lorry are jointly and severally found liable to pay compensation. Therefore, when the Tribunal did not even frame an issue on contributary negligence, the High Court ought not to have considered that argument in order to reduce the compensation awarded. Even otherwise the Insurance Company did not lead any evidence on this aspect nor insisted for framing an issue. Merely making a bald assertion in their Counter Affidavit cannot derive any advantage. Hence, we are in agreement with the findings of the Tribunal that the accident took place only due to the

negligence of the driver of the lorry and therefore, the contributary negligence awarded on part of the deceased by the High Court suffers from an error and cannot be sustained."

¶10Considering the above aspect, the finding of the Tribunal that deceased has contributed to the accident to the extent of 25% is not proper and it requires to be set-aside. The accident occurred due to the sole negligence on the part of respondent No.1 – Driver and owner of Tata Ace vehicle. Respondent No.2 being the insurer of the said vehicle is liable to pay the entire compensation to claimants.

¶11The notional income fixed for the year 2022 is Rs.15,500/- by the Karnataka State Legal Services Authority. The said income is to be taken as against Rs.13,000/- taken by the Tribunal based on minimum wages. The Tribunal has rightly applied multiplier '11', added 10% towards future prospects and deducted 1/3rd towards personal expenses of the deceased. In view of the above, the loss of dependency is calculated as under:

Rs.15,500 + 1550 (10%) = Rs.17050/-Rs.17,050x12=2,04,600-1/3=1,36,400x11=15,00,400/-

¶12The claimants are wife and son of deceased and therefore, they are entitled to consortium in a sum of Rs.40,000/- each with 10% escalation i.e. Rs.44,000 x 2 = Rs.88,000/-. The claimants are entitled to funeral expenses and transportation of dead body in a sum of Rs.15,000/- with 10% escalation i.e. Rs.16,500/- as against Rs.10,000/- awarded by the Tribunal. The claimants are also entitled to loss of estate in a sum of Rs.15,000/- with 10% escalation i.e. Rs.16,500/- as against Rs.10,000/- awarded by the Tribunal.

¶13In view of the above, the claimants are entitled to compensation under various heads as under: Sl.No. Heads Amount in (Rs.)

¶01Loss of dependency 15,00,400/-

¶02Loss of consortium 88,000/-

¶03Loss of estate 16,500/-

¶04Funeral expenses 16,500/-

Total 16,21,400/-

¶14Considering the above aspects, the claimants are entitled to total compensation of Rs.16,21,400/- as against Rs.10,36,000/- awarded by the Tribunal with interest. Consequently, the claimants are entitled to enhanced compensation of Rs.5,85,400/- with interest @ 6% p.a. from the date of petition till realization. The claimants are not entitled to interest for the delay period of 376 days in filing the appeal as per order dated

25.08.2026 passed on I.A.1/2026. Respondent No.2/insurer is liable to pay the enhanced compensation with interest.

¶15In view of the above, the following: ORDER

i) The appeal is allowed in part.

ii) The appellants/claimants are entitled to enhanced compensation of Rs.5,85,400/- with interest @ 6% p.a. from the date of petition till realization.

iii) Respondent No.2/insurer shall deposit the enhanced compensation with interest before the Tribunal within a period of six weeks from this day.

iv) Appellants/claimants are entitled to release of entire enhanced compensation in the ratio of 60:40.

v) Appellants/claimants are not entitled to interest for delay period of 376 days in filing the appeal.

Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE

DKB List No.: 1 Sl No.: 12 Ct.sm