Karnataka High Court
Divisional Controller vs Nethravathi on 4 July, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:25396
MFA No. 2461 of 2023
C/W MFA No. 6526 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 2461 OF 2023 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 6526 OF 2023(MV-D)
IN MFA NO.2461/2023
BETWEEN:
1. NETHRAVATHI
W/O LATE DEVARAJU,
AGED ABOUT 32 YEARS,
2. DEEKSHA
D/O LATE DEVARAJU,
AGED ABOUT 12 YEARS,
3. DIMPAL
Digitally signed by D/O LATE DEVARAJU,
VEDAVATHI A K AGED ABOUT 10 YEARS,
Location: High
Court of Karnataka
4. JAYALAKSHMI
W/O RANGASWAMY,
AGED ABOUT 64 YEARS,
ALL ARE R/AT BHUVANAHALLI VILLAGE,
KASABA HOBLI,
HASSAN TALUK.
SINCE PETITIONER NO.2 AND 3 ARE MINORS,
THEY ARE REPRESENTED BY THEIR MOTHER
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NC: 2024:KHC:25396
MFA No. 2461 of 2023
C/W MFA No. 6526 of 2023
AND NATURAL GUARDIAN
SMT. NETHRAVATHI
W/O DEVARAJU.
...APPELLANTS
(BY SRI. GIRISH B. BALADARE, ADVOCATE)
AND:
DIVISIONAL CONTROLLER,
K.S.R.T.C.,
HASSAN DEPO,
HASSAN - 573 201.
...RESPONDENT
(BY SRI. F.S.DABALI, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 08.02.2023 PASSED IN MVC NO. 1722/2019
ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND
JMFC, HASSAN, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO.6526/2023
BETWEEN:
DIVISIONAL CONTROLLER
K.S.R.T.C.,
HASSAN DEPO,
HASSAN - 573 201.
NOW REPRESENTED BY IT'S CHIEF LAW OFFICER,
KSRTC, CENTRAL OFFICE,
SHANTHINAGARA, K.H.ROAD,
BENGALURU - 560 027.
...APPELLANT
(BY SRI. F.S.DABALI, ADVOCATE)
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NC: 2024:KHC:25396
MFA No. 2461 of 2023
C/W MFA No. 6526 of 2023
AND:
1. NETHRAVATHI
W/O LATE DEVARAJU,
AGED ABOUT 32 YEARS,
2. DEEKSHA
D/O LATE DEVARAJU,
AGED ABOUT 12 YEARS,
3. DIMPAL
D/O LATE DEVARAJU,
AGED ABOUT 10 YEARS,
SINCE RESPONDENTS NO.2 AND 3 ARE MINORS,
THEY ARE REPRESENTED BY THEIR MOTHER
AND NATURAL GUARDIAN RESPONDENT NO.1
SMT. NETHRAVATHI,
W/O DEVARAJU.
4. JAYALAKSHMI
W/O RANGASWAMY,
AGED ABOUT 64 YEARS,
ALL ARE RESPONDENTS ARE
R/AT BHUVANAHALLI VILLAGE,
KASABA HOBLI, HASSAN TALUK - 573 201.
...RESPONDENTS
(BY SRI. GIRISH B. BALADARE, ADVOCATE FOR R1 TO R4;
R2 & R3 ARE MINORS REPRESENTED BY R1)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED.08.02.2023 PASSED IN MVC NO.1722/2019 ON
THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND
JMFC, HASSAN, AWARDING COMPENSATION OF
RS.17,98,450/- WITH INTEREST AT 9 PERCENT P.A. FROM THE
DATE OF PETITION TILL REALIZATION.
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NC: 2024:KHC:25396
MFA No. 2461 of 2023
C/W MFA No. 6526 of 2023
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
M.F.A. No.2461/2023 is filed by the claimants for enhancement of compensation and M.F.A. No.6526/2023 is filed by the KSRTC challenging negligence and the liability of compensation granted by the II Additional Senior Civil Judge and JMFC, Motor Accident Claims Tribunal, Hassan, in M.V.C. No.1722/2019, dated 08.02.2023.
2. Heard the learned counsel appearing for the parties.
3. The appellants in M.F.A. No. 2461/2023 are the petitioners, the appellant in M.F.A. No. 6526/2023 is the respondent-KSRTC in MVC No.1526/2014. The rank of the parties before the Tribunal is retained for the sake convenience.
4. The case of the petitioners is that the petitioners filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation for the death of one Devaraju, the husband of the first petitioner. It was stated in the petition -5- NC: 2024:KHC:25396 MFA No. 2461 of 2023 C/W MFA No. 6526 of 2023 that on 06.08.2019 at about 3.15 p.m., while the deceased Devaraju after alighting his pillion rider opposite to Sanjeevani hospital, Salagame road, Hassan, was sitting on the bike, which was in starting condition, at that time, the driver of the KSRTC bus drove the same in rash and negligent manner and dashed to the deceased's bike. As a result of which, the deceased sustained severe head injury and died on the spot. The police registered FIR and filed charge sheet against the driver of the bus. Hence, the petitioners-claimants filed the claim petition seeking the compensation of Rs.30 lakhs.
5. In response to the notice, the respondent-KSRTC appeared before the Tribunal and filed statement of objection denying the rash and negligent driving of the bus and also denied the accident, age and income of the deceased, and contended that the accident was occurred because of the negligence of the deceased Devaraju and accordingly prayed for dismissal of the petition.
6. Based upon the same, the Tribunal framed the following two issues:
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NC: 2024:KHC:25396 MFA No. 2461 of 2023 C/W MFA No. 6526 of 2023
1) ಾಂಕ 06-08-2019 ರಂದು 1 ೇ ಅ ಾರರ ಗಂಡ ಮೃತ ೇವ ಾಜು ಇವರು ಮ ಾ ಹ ಸು ಾರು 3-15 ಗಂ ೆ ಸಮಯದ ! ತಮ" #ಾಬು #ೈ&ನ (ಂ)ಾಗ ಕು*+ದ, ವ &-ಯನು #ೈ&.ಂದ /ೆಳ1ೆ ಇ*2 #ೈ3 4ಾ56 ಾ7/ೊಂಡು 9ೊರಡಲು .ಂ+ ಾ,ಗ, ಮುಂ)ಾಗ ಂದ /ೆ.ಎ<.ಆ>.?.2 ಬ< @ಾಲಕ ಅ+Aೇಗ ಮತು- ಅBಾಗರೂಕCೆDಂದ @ಾಲ ೆ ಾ7/ೊಂಡು ಬಂದು ಮೃತ ೇವ ಾಜುರವರ #ೈ3 ಬಲ)ಾಗ 9ಾ ಂಡEೆF 7&H ಾ7ದ ಪJKಾಮ ೇವ ಾಜು #ೈ3 ಸLೕತ /ೆಳ/ೆH Mದು, +ೕವNAಾO 1ಾಯ1ೊಂಡು ಸPಳದ !Qೕ ಮೃತಪ?5ರುವR ಾO ಅ ಾರರು 4ಾSೕತು ಪ7ಸುವ ೇ?
2. ಅ ಾರರು ತಮ" ಅ ಯ ! /ೇ*ರುವ ಪJ9ಾರ ಪTೆಯಲು ಅಶಹ ಾOರುವ ೆ ? ಅಹ ಾOದ, ! ಎಷು5 ಪN ಾಣದ ಪJ9ಾರ ಪTೆಯಲು ಅಹ ರು?
3. ಾಡುವ ಆ ೇಶ ಅಥAಾ ಅAಾ>Y ಏನು ?
7. On behalf of the petitioners, petitioner No.1 was examined as P.W.1 and examined one T. Krishnaraju as P.W.2, and got marked 11 documents as per the exhibits P.1 to P.11. On the other hand, the KSRTC bus driver was examined as R.W.1 and got marked two documents as exhibits R.1 and 2.
8. After hearing the arguments, the Tribunal answered issue No.1 in the affirmative and issue No.2 partly in the affirmative and awarded the compensation of Rs.17,98,450/- -7-
NC: 2024:KHC:25396 MFA No. 2461 of 2023 C/W MFA No. 6526 of 2023 with interest at 9% per annum from the date of petition till realization. Being aggrieved by the same, the petitioners have filed the present appeal seeking enhancement of the compensation and the KSRTC has also filed the appeal challenging the liability and seeking reduction in the quantum of compensation.
9. Learned counsel for the appellants-petitioners has contended that the Tribunal has committed an error in considering the income of the deceased at Rs.12,000/- per month as notional income. Even for the accidents of the year 2019, Rs.14,000/- is considered in Lok Adalaths. It is further contended that 40% towards future prospects is required to be granted. Accordingly, prayed for allowing the appeal.
10. Per contra, learned counsel for the respondent- KSRTC has seriously contended that there was no negligence on the part of the driver of the bus. The deceased was fully in drunken stage and he came on the middle of the road and died. The driver of the KSRTC himself gave complaint against the deceased as per Exhibit R2. The learned counsel further -8- NC: 2024:KHC:25396 MFA No. 2461 of 2023 C/W MFA No. 6526 of 2023 contended that the PM report clearly reveals that there was consumption of Ethyl alcohol (67.43 mg / 100ml of blood) by the deceased, and the deceased was not wearing helmet, due to which the accident had occurred. It is also contended that Exhibit P9-the sketch reveals that the deceased was standing on the vehicle on the opposite direction which was in starting condition. Therefore, no liability can be fixed on the driver of the bus. Even otherwise, there is contributory negligence on the part of the deceased. The quantum of compensation shall also be reduced. Therefore, prayed for dismissal of the appeal filed with the appellant-petitioners by allowing the appeal filed by the KSRTC.
11. Having heard the learned counsel appearing for the parties, perused the records.
12. The points that arise for consideration are,
(i) Whether the Tribunal is justified in holding that the accident was occurred due to rash and negligent driving of the driver of the KSRTC bus ?
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NC: 2024:KHC:25396 MFA No. 2461 of 2023 C/W MFA No. 6526 of 2023
(ii) Whether the deceased also contributed to the negligence due to intoxication and riding without wearing helmet on the middle of the road ?
(iii) Whether the petitioners - claimants are entitled for enhancement of compensation ?
(iv) If so, what order?
13. The case of the petitioners is that on 06.08.2019, the deceased, after alighting the pillion rider, was sitting on the bike, which was in starting condition, on the middle of the road. At that time, the driver of the respondent-KSRTC bus drive the same in the opposite direction and dashed against the motor bike, due to which the deceased fell down and sustained injuries and died on the spot. Petitioner No.1 is examined as P.W.1 and got marked the documents. P.W. 1 is not an eye witness to the incident. P.W.2 is the complainant and he has not seen the incident. While going on the place of incident, he found that there was the accident and immediately, he went and saw that the deceased was known person to him and immediately, the bus was stopped. In the cross examination, P.W.2 has admitted, normally, the bus going on the opposite road should go on the left side. He further admitted in exhibit P.5-sketch, where the accident occurred, the deceased was
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NC: 2024:KHC:25396 MFA No. 2461 of 2023 C/W MFA No. 6526 of 2023 standing on the bike on the middle of the road. He also admitted that the deceased could have parked the vehicle on the left side of the road.
14. Therefore, the admission made by P.W.2 indicates that the deceased came on the scooter on the opposite direction and was standing on the middle of the road. It is pertinent to note that the claimants also have not examined the person who was the pillion rider. P.W.2, while going on the same direction, filed the complaint who said to have seen the accident.
15. The averments made in the complaint says that the accident was occurred on the middle of the road and the police sent the dead body to the hospital for post mortem. The post mortem report produced by the petitioners at exhibit P.7 shows that internal parts like left kidney and right kidney and some visceral were collected from the body of the deceased and were sent to the FSL for analysis. The doctor in the report at exhibit P.8 has opined that the deceased consumed Ethyl Alcohol (67.43 mg / 100ml of blood) which reveals that the deceased
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NC: 2024:KHC:25396 MFA No. 2461 of 2023 C/W MFA No. 6526 of 2023 was fully in drunken condition at the time of the accident. It is also to be noticed that the deceased was not wearing helmet at the time of incident, which goes to show that the deceased came on the opposite direction on the middle of the road and said to be parked the vehicle, due to which the KSRTC bus came in the opposite direction, touched the handle of the motor bike due to which the deceased fell down and sustained injuries and died on the spot.
16. But, the deceased has also contributed to the accident in not wearing helmet and he came on the middle of the road and had consumed alcohol at the time of accident. Therefore, the Tribunal is not justified in considering that the accident has mainly occurred due to the rash and negligent driving of the driver of the KSRTC bus. But, the deceased also contributed to the accident. Therefore, I hold that the deceased has contributed to the accident to the tune of 25% and the driver of the KSRTC bus has contributed to the tune of 75%.
17. As regards the quantum of compensation, the accident was occurred in the year 2019. The Tribunal has
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NC: 2024:KHC:25396 MFA No. 2461 of 2023 C/W MFA No. 6526 of 2023 considered the income of the deceased at Rs.12,000/- per month. However, for the accidents of the year 2019, the Lok Adalaths have taken Rs.14,000/- per month. The deceased has left behind his wife, children and mother. Therefore, taking 40% towards future prospects out of Rs.14,000/-, it would come to Rs.5,600 and the income would come to Rs.19,600/- per month. If one-fourth is deducted towards personal expenses out of the said amount, Rs.14,700/- per month would be the net income. The deceased was aged 32 years at the time of accident and the appropriate multiplier would be 16. Therefore, Rs.28,22,400/- (Rs.14,700/- x 12 x 16) would be the loss of dependency.
18. The 1st claimant-1st petitioner is his wife and claimant Nos.2 and 3 are her children and claimant No.4 is the mother of the deceased. Therefore, they are entitled for Rs.40,000/- each towards consortium, which comes to Rs.1,60,000/- , and Rs.30,000/- towards loss of estate. In all, the petitioners-claimants entitled to the total compensation of Rs.30,12,400/-.
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NC: 2024:KHC:25396 MFA No. 2461 of 2023 C/W MFA No. 6526 of 2023
19. The compensation awarded by the Tribunal is modified as below:
Loss of dependency 28,22,400/-
Loss of love and affection 1,60,000/-
and consortium
Loss of estate 30,000/-
Total 30,12,400/-
20. In view of the contributory negligence on the part of the deceased, if 25% out of Rs.30,12,400/-is deducted, it would come to Rs.7,53,100/- and the remaining amount of Rs.22,59,300/- to be paid by the KSRTC, which would be the enhanced compensation.
21. Accordingly, I proceed to pass the following :
ORDER
(i) Both the appeals are allowed in part.
(ii) The appellant-claimants are entitled for the compensation of Rs.30,12,400/- together with interest at the rate of 6% per annum, from the date of claim petition till the date of realisation.
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NC: 2024:KHC:25396 MFA No. 2461 of 2023 C/W MFA No. 6526 of 2023
(iii) Out of the compensation of out of enhanced compensation of Rs.30,12,400/-, the KSRTC after deducting 25% on the enhanced compensation i.e. Rs.7,53,100/-, is directed to pay Rs.22,59,300/- together with interest at the rate of 6% per annum, from the date of claim petition till the date of realisation.
(vi) The respondent-KSRTC is directed to deposit the enhanced compensation with interest at 6% per annum, within 60 days from the date of receipt of a copy of the award;
(v) The amount in deposit shall be transmitted to the Tribunal.
(vi) The apportionment made by the Tribunal is hereby confirmed.
Sd/-
JUDGE CS List No.: 1 Sl No.: 59 CT:SK