Karnataka High Court

Nekrtc Bidar vs Smt.Lalaita W/O Late Bau ... on 6 December, 2021

Bench: R.Nataraj

                            1




         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

   DATED THIS THE 6TH DAY OF DECEMBER, 2021

                        BEFORE

        THE HON'BLE MR.JUSTICE R. NATARAJ

            M.F.A.No.201628/2016 (MV)
                       c/w
          M.F.A.No.201629/2016 (MV-I),
          M.F.A.No.201630/2016 (MV-I),
          M.F.A.No.201631/2016 (MV-I),
        M.F.A.Crob.No.200028/2017 (MV-D),
        M.F.A.Crob.No.200029/2017 (MV-I)

IN MFA 201628/2016:

BETWEEN

NEKRTC BIDAR
THROUGH ITSELF CHIEF LAW OFFICER
"SARIGE SADAN" MAIN ROAD,
KALABURAGI-585102
                                           ...APPELLANT
(BY SRI A. M. PATIL, ADVOCATE)

AND

SMT LALAITA W/O LATE BAU CHINCHOLIKAR
AGE: ABOUT 38 YEARS, OCC: COOLIE
R/O DUBALGUNDI, TQ:HUMNABAD
DIST: BIDAR
                                          ...RESPONDENT
(BY SRI BABU H. METAGUDDA, ADVOCATE)

   THIS MFA IS FILED U/S. 173(1) OF MV ACT PRAYING THAT
THIS HON'BLE COURT MAY BE PLEASED TO- ALLOW THIS
APPEAL AND CONSEQUENTLY BE PLEASED TO SET ASIDE THE
                             2




IMPUGNED JUDGMENT AND AWARD DATED 28.07.2016 PASSED
BY THE SENIOR CIVIL JUDGE AND MEMBER MACT, HUMNABAD
MAY BE PLEASED TO MODIFY THE JUDGMENT AND AWARD IN
MVC NO.631/14, IN THE INTEREST OF JUSTICE AND EQUITY.

IN MFA No.201629/2016:

BETWEEN

NEKRTC BIDAR
THROUGH ITSELF CHIEF LAW OFFICER,
"SARIGE SADAN" MAIN ROAD,
KALABURAGI - 585102.
                                            ...APPELLANT
(BY SRI A. M. PATIL, ADVOCATE)

AND:

SRI. ARJUN S/O SHANKAR KHAJURE
AGE 45 YEARS,
OCC: AGRICULTURE & MILK VENDING,
R/O DUBALGUNDI,
TQ.HUMNABAD, DIST.BIDAR.
                                          ...RESPONDENT
(NOTICE SERVED AND UNREPRESENTED)

   THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING THAT
THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE
IMPUGNED JUDGMENT AND AWARD DATED 28.07.2016 PASSED
BY THE SENIOR CIVIL JUDGE AND MEMBER MACT, HUMNABAD
MAY BE PLEASED TO MODIFY THE JUDGMENT AND AWARD IN
MVC NO.648/14, IN THE INTEREST OF JUSTICE AND EQUITY.


IN MFA No.201630/2016:

BETWEEN

NEKRTC BIDAR
THROUGH ITSELF CHIEF LAW OFFICER,
                             3




"SARIGE SADAN" MAIN ROAD,
KALABURAGI - 585102.
                                           ...APPELLANT
(BY SRI A. M. PATIL, ADVOCATE)

AND

SHRI.VISHWANATH S/O ERAPPA KHELGI
AGE 47 YEARS, OCC:AGRICULTURE
& FRUIT BUSINESS, R/O DUBALGUNDI,
TQ.HUMNABAD, DIST.BIDAR.
                                          ...RESPONDENT
(NOTICE SERVED AND UNREPRESENTED)

   THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING THAT
THIS HON'BLE COURT MAY BE PLEASED TO, ALLOW THE APPEAL
AND CONSEQUENTLY SET ASIDE THE IMPUGNED JUDGMENT
AND AWARD DATED 28.07.2016 PASSED BY THE SENIOR CIVIL
JUDGE AND MEMBER MACT, HUMNABAD AND MODIFY THE
JUDGMENT AND AWARD IN MVC NO.630/2014, IN THE
INTEREST OF JUSTICE AND EQUITY.


IN MFA No.201631/2016:

BETWEEN

NEKRTC BIDAR
THROUGH ITSELF CHIEF LAW OFFICER,
"SARIGE SADAN" MAIN ROAD,
KALABURAGI - 585102.
                                           ...APPELLANT
(BY SRI A. M. PATIL, ADVOCATE)

AND

SMT.INDUMATI W/O SHIVAJI KHAJURE
AGE 30 YEARS, OCC: AGRICULTURE & MILK
VENDING, R/O DUBALGUNDI,
                             4




TQ. HUMNABAD,
DIST. BIDAR.
                                           ...RESPONDENT
(BY SRI BABU H METAGUDDA, ADVOCATE)

   THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING THAT
THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE
IMPUGNED JUDGMENT AND AWARD DATED 28.07.2016 PASSED
BY THE SENIOR CIVIL JUDGE AND MEMBER MACT, HUMNABAD
MAY BE PLEASED TO MODIFY THE JUDGMENT AND AWARD IN
MVC 633/14 IN THE INTEREST OF JUSTICE AND EQUITY.


IN MFA CROB.NO.200028/2017:

BETWEEN

LALITA W/O LATE BABU CHINCHOLIKAR
AGE: 41 YEARS, OCC: COOLIE,
R/O DUBALGUNDI, HUMNABAD
DIST: BIDAR 584101
                                       ...CROSS OBJECTOR
(BY SRI BABU H. METAGUDDA, ADVOCATE)

AND

THE MANAGING DIRECTOR
NEKRTC THROUGH ITS MANAGING
DIRECTOR, KALABURAGI-585101
                                           ...RESPONDENT
(BY SRI A.M. PATIL, ADVOCATE)

   THIS MFA CROB. IS FILED UNDER ORDER LXI RULE 22 OF
CPC, PRAYING THAT THIS HON BLE COURT TO ALLOW THIS
CROSS OBJECTION AND MODIFY THE JUDGMENT AND AWARD
DATED 28.07.2016 PASSED IN M.V.C.NO.631/2014 BY THE
SENIOR CIVIL JUDGE AND MACT, AT HUMNABAD, AND
ENHANCING THE COMPENSATION FROM RS.7,30,200/- WITH
                             5




6% INTEREST TO RS.20,00,000/- WITH 12% INTEREST, IN THE
INTEREST OF JUSTICE AND EQUITY.



IN MFA CROB.NO.200029/2017:

BETWEEN

VISHWANATH S/O. ERAPPA KHELGI
AGE: 48 YEARS, OCC: AGRICULTURE &
FRUIT BUSINESS, R/O. DUBALGUNDI
HUMNABAD, DIST: BIDAR
                                       ...CROSS OBJECTOR
(BY SRI BABU H. METAGUDDA, ADVOCATE)


AND

THE MANAGING DIRECTOR
NEKRTC THROUGH ITS MANAGING
DIRECTOR, KALABURAGI-585101
                                           ...RESPONDENT
(BY SRI A. M. PATIL, ADVOCATE)


   THIS MFA CROB. IS FILED UNDER ORDER LXI RULE 22 OF
CPC, PRAYING THAT THIS HON BLE COURT TO ALLOW THIS
CROSS OBJECTION AND MODIFY THE JUDGMENT AND AWARD
DATED 28.07.2016 PASSED IN M.V.C.NO.630/2014 BY THE
SENIOR CIVIL JUDGE AND MACT, AT HUMNABAD, AND
ENHANCING THE COMPENSATION FROM RS.1,21,700/- WITH
6% INTEREST TO RS.14,00,000/- WITH 12% INTEREST, IN THE
INTEREST OF JUSTICE AND EQUITY.

     THE APPEALS AND CROSS OBJECTIONS HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON 30.09.2021 AND
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
                               6




                       JUDGMENT

MFA.Nos.201628/2016, 201629/2016, 201630/2016,

201631/2016 are filed by the owner/internal insurer of a

public transport passenger vehicle bearing registration

number KA-38-F-449 (henceforth referred as 'offending

vehicle') challenging the Judgment and Award passed by

the Senior Civil Judge MACT-I Humanabad (henceforth

referred as 'Tribunal') in MVC.Nos.631/2014, 648/2014,

630/2014 and 631/2014, in so far as it relates to the

finding regarding negligence and consequent the liability

fixed on it to pay the compensation.


     02.   MFA.Crob.No.200028/2017        is   filed    by   the

claimant         in           MVC.No.631/2014                and

MFA.Crob.No.200029/2017 is filed by the claimant in

MVC.No.630/2014 seeking enhancement of the

compensation awarded by the Tribunal.

03. The claimants in MFA.No.201629/2016,

201630/2016, 201631/2016 are the injured while the

claimant in MFA.No.201628/2016 is the legal

representative of the deceased.

04. It was the case of all the injured - claimants

and the legal representative of the deceased that they

were all traveling in a jeep bearing registration number

KA-38-M-467 on 11.09.2014 on Bhalki - Humanabad road.

At about 05.15 p.m. when the jeep was moving from

Dawargaon to Dubalgundi near Nagnoor cross, the driver

of the offending vehicle drove it in a rash and negligent

manner from the opposite direction and dashed against the

jeep, resulting in grievous injuries. The husband of the

claimant in MVC.No.631/2014 suffered serious injuries and

was shifted to the hospital, where he died on the same

day. A case in Crime No.115/2014 was registered against

the driver of the offending vehicle. The claimants alleged

that the accident was caused by the rash and negligent

driving by the driver of the offending vehicle and therefore

they filed separate claim petitions under Section 166 of the

Motor Vehicles Act claiming compensation from the

owner/internal insurer of the offending vehicle. They

claimed that the injured/deceased were young employed

and were earning a decent monthly income, which are as

follows:-

 MVC. Nos.     Age           Avocation            Monthly     Compensation
                                                  Income         Claimed
630/2014     45 Years    Agriculture / Fruit   Rs.12,000/-   Rs.14,00,000/-
                         Business
631/2014     45 Years    Household         /   Rs.10,000/-   Rs.20,00,000/-
                         Coolie
633/2014     30 Years    Agriculture / Milk    Rs.08,000/-   Rs.01,00,000/-
                         vending
645/2014     45 Years    Agriculture / milk    Rs.10,000/-   Rs.15,00,000/-
                         vending

05. The owner/internal insurer of the offending

vehicle contested the claim petitions and disputed the

involvement of the offending vehicle in the alleged

accident. It denied the age, avocation and income of the

injured / deceased. It claimed that the driver of the

offending vehicle had filed a counter complaint against the

driver of the jeep. It specifically contended that the

driver/owner of the jeep were proper and necessary

parties and sought dismissal of the claim petition for non-

joinder of necessary parties.

06. Based on these rival contentions, the claim

petitions were set-down for trial. The claimants in all the

petitions were examined as PW.1 and they marked

documents. In MVC.No.630/2014, a doctor was examined

as PW.2. In so far as the owner of the offending vehicle is

concerned, it examined the driver of the offending vehicle

as RW.1 and marked documents as Exs.R.1 and R2.

07. Based on the oral and documentary evidence,

the Tribunal held that the accident occurred due to the

rash and negligent driving by the driver of the offending

vehicle. In order to arrive at such a finding, the Tribunal

highly relied upon four circumstances namely, that (i)

neither the owner/driver had challenged the charge sheet

filed against the driver of the offending vehicle, (ii) all

documents marked by claimants indicated the occurrence

of the accident and proved the injuries sustained, (iii) that

the complaint lodged by the driver of the offending vehicle

against the driver of the jeep was an after thought which

was not pursued to its logical end (iv) that evidence of

RW.1 disclosed that the accident was due to his

negligence.

08. In so far as the quantum of compensation is

concerned, the Tribunal considered the following and

awarded the compensation in each of the cases.

MVC.    Age    Notional     Disability             Heads of Compensation
Nos.            Income      Assessed
630/   55     Rs.6,000/-    10%            Loss of future income : 79,200/-
2014          per month                    Pain and Agony        : 10,000/-
                                           Medical Expenses      : 10,500/-
                                           Attendant charges
                                           Food and conveyance : 06,000/-
                                           Amenities & nutrition : 10,000/-
                                           Loss of income during
                                           Laid up period        :   6000/-

                                           Total                 : 01,21,700/-

631/   40     Rs.6,000/-    Death          Loss of love and
2014          per month                    Affection             : 25,000/-
                                           Funeral Expenses
                                           And transportation    : 25,000/-
                                           Loss of dependency : 6,55,200/-
                                           Loss of Estate        : 25,000/-
                                           Total                 : 7,30,200/-
633/   40     Not           -              Pain and suffering    : 10,933/-
2014          considered                   Medical Expenses      :
                                           Attendant Charges
                                           Food and conveyance : 3,000/-
                                           Total                   : 13,933/-
648/   50     Rs.6,000/-    22%            Loss of future income : 2,05,920/-
2014          per month                    Pain and agony        : 10,000/-
                                           Medical expenses      : 1,22,052/-
                                           Attendant charges,
                                           Food and conveyance : 14,500/-
                                           Amenities and
                                           Nutrition              : 10,000/-
                                           Loss of income during
                                           Laid up period         : 6,000/-
                                           Total                 : 3,16,472/-

09. The Tribunal directed the insurer to pay the

compensation along with interest @ 6% per annum from

the date of the claim petition.

10. Being aggrieved by the aforesaid judgment and

award, the owner/internal insurer of the offending vehicle

filed appeals while the claimants in MVC.No.630/2014 and

631/2014 have filed cross-objections challenging the

quantum of compensation.

11. The learned counsel for the owner of the

offending vehicle has canvassed the following points:-

   (i)    That Ex.P.7 which is the motor vehicle inspector
          report    did   not    show   any   damage     to   the

offending vehicle, which falsified the case of the claimants that the offending vehicle dashed against the jeep. On the contrary, the left side of the jeep was damaged which proved that the jeep turned turtle due to the negligence of its driver.

(ii) That the claimants had alleged contributory negligence and therefore it was incumbent upon

the claimants to implead the owner/insurer/ driver of the jeep.

(iii) That the Tribunal misconstrued contributory and composite negligence as one and the same. He relied on the judgment of the Hon'ble Supreme Court in the case of Pawan Kumar and another vs Harikishan Das Mohanlal and others [(2014) 3 SCC 590].

(iv) That the Tribunal could not have relied upon the documents prepared during the investigation of the criminal case.

(v) That the parties had not adduced any evidence to establish the negligence of the driver of the offending vehicle.

(vi) That the Tribunal misread the evidence of RW.1 in holding that he had admitted his negligence.

12. In reply the learned counsel for the claimants

contended as follows:-

(i) That the claimants can proceed against any of the tortfeasors and therefore it was not necessary to implead the owner/driver of the jeep. He relied on the judgment of the Hon'ble

Supreme Court in Khenyei vs New India Assurance Company Limited and others [(2015) 9 SCC 273]. He also relied upon the judgment of the Supreme Court in Kamlesh and others vs. Attar Singh and others, [(2015) 15 SCC 364]. Further he relied on a judgment of the Division Bench of this Court in MFA.No.200204/2014 and the judgment of a Full Bench of this Court in Karnataka State Road Transport Corporation, by its Managing Director vs. Arun @ Aravind and others [ILR 2004 Kar 26].

(ii) That if the charge sheet was false, it was incumbent upon the owner/driver to challenge the same in the manner known to law or to seek further investigation. He relied upon the judgment of a Division Bench of this Court in Shimangola vs. Virupakshi and others, [2012 Kart MAC 61 (Kant)].

(iii) He contended that the claimants were all traveling in the jeep and therefore no negligence could be attributed to them and therefore the Tribunal was right in holding that the claimants were entitled to sue any one of the tortfeasors.

13. I have considered the submission of the

learned counsel for the parties and I have perused the

records of the Tribunal.

14. It is not much in dispute that the injured

claimants/deceased were all traveling in the jeep. It is also

not in dispute that the claimants were injured and another

died in the accident. While the driver of the jeep alleged

that it was driver of the offending vehicle who was

negligent and responsible for the accident, the driver of

the offending vehicle alleged that it was the driver of the

jeep who was negligent. This proves that both the vehicles

were found at the site of the accident. The motor vehicle

report indicates no damage on the offending vehicle, while

the left side of the jeep was damaged. Since, both the

vehicles were moving towards each other from opposite

direction and when the vehicles attempted to turn near

Mugnoor cross, the accident occurred. Therefore, it is

either that both the drivers were negligent or one of them

was negligent. The claimants have all stated that it was

the driver of the offending vehicle who was negligent and

based on a complaint, a charge sheet is filed against the

driver of the offending vehicle. The driver of the offending

vehicle, though claimed that a complaint was lodged by

him against the driver of the jeep, the same is an after

thought. Thus, the accident is due to the composite

negligence of the drivers of both the vehicles. The claim

that there were no damages on the offending vehicle, itself

cannot belie the occurrence of the accident, as drivers of

both the vehicles have accused each other of negligence.

In that view of the matter, the tribunal was right in holding

that the accident was due to the composite negligence of

the drivers of both the vehicles. Hence, the appeals filed

by the owner of the offending vehicle challenging the

finding of the tribunal in so far as the negligence on the

part of the driver of the offending vehicle, does not merit

consideration.

15. As regards the contention that the owner and

driver of the jeep were to be arrayed as parties and that

the claim was liable to be rejected for non joinder of

necessary parties, as held by the Apex Court in the case of

Khenyei (Supra), the claimant is entitled sue any one of

the tort feasors and it is for that tort feasor to recover the

proportionate compensation from the other tort feasor in

the execution proceedings. Hence, the contentions urged

by the owner of the offending vehicle does not merit

consideration.

16. In so far as the cross objections filed by the

claimants are concerned, in MFA Crob.No.200029/2017

(MVC No.630/2014), the claimant had suffered 2nd and 4th

metacarpal and 3rd phalanx left with hematoma and

sustained amputation of three fingers of left hand. The

Tribunal considered the disability suffered by the claimant

at 10% and the income of the claimant was considered at

Rs.6,000/- per month. As contended by the claimant, this

Court in similar circumstances has considered the notional

income of persons who are injured/died in the road traffic

accident at a sum of Rs.7,500/- per month. There is no

reason as to why the said benefit should be denied to the

claimant. The disability assessed by the Tribunal is just

and proper having regard to the injuries sustained.

Consequently, the compensation to which the claimant is

entitled to is re-determined as follows:

             Heads under which              Amount
            compensation awarded           (in Rupees)
     Pain and suffering                       10,000/-
     Medical expenses                         10,500/-
     Loss of income due to disability         99,000/-
     (7,500x12x10/100x11)
     Attendant, food and conveyance            6,000/-
     charges
     Nutrition and amenities                  10,000/-
     Loss of income during laid up             6,000/-
     period
                    Total                  1,41,500/-


      17.    In    MFA      Crob.No.200028/2017          (MVC

No.631/2014, the deceased was aged 45 years and was

employed as a daily wager. The tribunal had considered

his notional income at a sum of Rs.6000 per month, while

this Court has considered the income of a person, who is

injured/died in a road traffic accident in the 2014 at

Rs.7,500/-. In addition, the claimants were entitled loss of

future prospects at 10% of the notional income of the

deceased. The petitioner had married and hence 1/3rd of

her notional income was liable to be deducted out of her

notional income and future prospects. Therefore, the

claimants are entitled to the following compensation:

             Heads under which                       Amount
            compensation awarded                (in Rupees)
     Loss of dependency                              9,90,000/-
     (Rs.7,500/- + Rs.750/- x 2/3 x
     12 x 15)
     Loss of love and affection                       75,000/-
     Loss of estate                                   15,000/-
     Funeral      and         transportation          15,000/-
     charges
                      Total                     10,95,000/-

18. In view of the above the cross objection filed

by the claimant in MFA Crob.No.200028/2017 (MVC

No.631/2014 is allowed in part. The compensation

awarded by the Tribunal of a sum of Rs.7,30,200/- is

enhanced to a sum of Rs.10,95,000/- which is payable by

the owner and the internal insurer of the offending vehicle

along with interest at the rate of 6% per annum from the

date of claim petition till the date of realization.

19. The entire compensation amount along with

accrued interest shall be deposited in the name of the

claimant till her marriage. The guardian of the claimant

shall be entitled to withdraw the interest on the deposit for