Karnataka High Court
The Divisional Controller Nekrtc vs Basalingmma W/O Late Ningappa ... on 7 December, 2021
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 07TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MFA.No.201183/2015
c/w
MFA.Crob.No.200029/2016 (MV)
MFA.No.201183/2015
BETWEEN:
THE DIVISIONAL CONTROLLER
NEKRTC, VIJAYAPUR DIVN
THROUGH ITS:
THE MANAGING DIRECTOR
NEKRTC, SARIGE SADAN
MAIN ROAD, KALABURAGI
REPRESENTED BY
THE CHIEF LAW OFFICER. ... APPELLANT
(BY SRI. SUBHASH MALLAPUR, ADVOCATE)
AND:
01. BASALINGAMMA W/O LATE NINGAPPA HALIGERA
AGE: 61 YEARS OCC: H.HOLD
R/O: DR.B. R. AMBEDKAR NAGAR,
YADGIRI-585 202.
02. PEERAPPA S/ODEVAPPA MAGALMANI
AGE: 46 YEARS OCC: DRIVER OF BUS NO.
KA-28-F-1949, WORKING AT MUDDEBIHAL
DEPOT, MUDDEBIHAL DIST: VIJAYAPUR-586 101.
... RESPONDENTS
(BY SRI. G. B. YADAV, ADVOCATE FOR R1;
RESPONDENT NO.2 IS ABATED VIDE ORDER DATED
22.07.2019)
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THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF THE MOTOR VEHICLES ACT,
PRAYING TO ALLOW THE ABOVE APPEAL AND
CONSEQUENTLY BE PLEASED TO ALLOW THE ABOVE
APPEAL AND CONSEQUENTLY BE PLEASED TO SET-ASIDE
THE JUDGMENT AND AWARD DATED 01.06.2015 PASSED
BY THE MEMBER OF MACT-II YADGIR IN
MVC.NO.168/2011.
MFA CROB.NO.200029/2016
BETWEEN:
SMT. BASALINGAMMA W/O LATE NINGAPPA HALIGERA
AGE: 60 YEARS OCC: HOUSEHOLD
R/O: DR.B. R. AMBEDKAR NAGAR
YADGIRI TQ: & DIST: YADGIRI.
... CROSS OBJECTOR
(BY SRI. GOPALKRISHNA B. YADAV, ADVOCATE)
AND:
01. PEERAPPA S/O DEVAPPA MAGALMANI
AGE: 45 YEARS OCC; NEKRTC BUS DRIVER
3
BEARING NO.KA-28-F-1949
WORKING ATMUDDEBIHAL DEPOT
MUDDEBIHAL DIST; VIJAYAPUR-586 101.
02. THE DIVISIONAL CONTROLLER, NEKRTC
BIJAPUR, THROUGH DIVISIONAL CONTROLLER
NEKRTC, YADGIRI-585 201.
... RESPONDENTS
(BY SRI. SRUBHASH MALLAPUR, ADVOCATE FOR R2;
NOTICE TO RESPONDENT NO.1 IS DISPENSED WITH
VIDE ORDER DATED VIDE ORDER DATED
22.07.2019)
THIS MFA.CROB IS FILED UNDER ORDER 41 RULE 22
OF THE CODE OF CIVIL PROCEDURE, PRAYING TO ALLOW
THIS CROSS-OBJECTION/APPEAL BY MODIFYING THE
AWARD OF JUDGMENT AND AWARD DATED 01.06.2015
PASSED BY THE COURT OF MEMBER OF MACT-II AT
YADGIRI IN MVC.NO.168/2014 AND AWARDED THE
COMPENSATION AS PRAYED IN THE CLAIM PETITION.
THESE MFA AND MFA.CROB COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
4
JUDGMENT
MFA.No.201183/2015 is filed by the appellant -
corporation and MFA.Crob.No.200029/2016 is filed by the
claimant against the judgment and order dated
01.06.2015 passed in MVC.No.168/2014 by the Member of
MACT-II at Yadgiri (henceforth referred as 'Tribunal').
02. The brief facts leading upto filing of the appeal
and MFA.Crob are that on 07.02.2014 at about 03.45 p.m.
on Jewargi-Sindagi road, near Jogur Petrol Bunk, the
deceased Mallappa was proceeding in Tum Tum Auto
Reg.No.KA-3309138, at that time the respondent No.1 the
driver of the KSRTC bus Reg.No.KA-28-F-1949 (henceforth
referred as 'offending bus') came from opposite direction in
a rash and negligent manner and dashed to the auto, in
which the deceased was traveling. Due to this impact the
deceased sustained grievous injuries and died in the
accident. The complaint was registered in Crime
No.34/2014 of Nelogi police station.
03. Thereupon the claimant being mother of the
deceased has filed a claim petition under Section 166 of
the M.V. Act seeking compensation of `.21,20,000/- on the
premise that the deceased was 22 years working as a
labour and earning `.12,000/- per month and contributing
same to the family welfare. The untimely death of the
deceased the claimant has suffered financial and mental
agony. Since, the offending bus driven by the respondent
No.1 is insured with respondent No.2. Hence, respondents
No.1 and 2 are jointly and severally liable to pay
compensation to the claimant. Hence, the claimant seeks
for compensation.
04. Upon service of notice the respondents No.1
and 2 appeared through their advocate. The respondent
No.1 failed to file written statement. The respondent No.2
has filed written statement denying the mode and manner
of accident, age, occupation and income of the deceased.
It is contended that the accident had taken place due to
negligence on the part of the driver of the Tom Tom. So,
claim against the respondents is not maintainable. The
claim petition is not maintainable for non-joinder of
necessary parties.
05. The Tribunal based on the pleadings of the
parties, framed issues and recorded evidence. The
claimant examined herself as PW.1 and marked seven
documents as Exs.P1 to Ex.P.7. One Peerappa examined
himself as RW.1 and no documents were marked.
06. The Tribunal based on the pleadings and
evidence on record held that the accident in question
occurred due to rash and negligent driving of the offending
bus by its driver causing death of the deceased.
Consequently, the Tribunal held that the claimant is
entitled for a total compensation of `.4,72,400/- along with
interest at the rate of 6% p.a. from the date of petition till
payment under the following heads:-
Sl. Heads Amount
No.
01. Towards loss of dependency `.04,37,400/-
02. Towards love and affection `.00,10,000/-
03. Towards loss of estate `.00,10,000/-
04. Towards funeral expenses `.00,10,000/-
05. Towards transportation of dead `.00,05,000/-
body
Total `.04,72,400/-
07. Being aggrieved by the aforesaid judgment and
award, the appellant - corporation is before this Court in
MFA.No.201183/2015 to set-aside the judgment and
award passed by the Tribunal and the claimant is before
this Court in MFA.Crob.No.200029/2016 seeking
enhancement of the compensation.
08. The learned counsel for the appellant -
corporation reiterating the grounds urged in the
appeal memorandum submitted that the Tribunal has
not assessed the factum of the negligence on the part
of the driver of the auto. He further submitted that
the spot panchanama at Ex.P.6 reveals that the
accident has occurred due to negligence on the part of
the auto. The said fact has not been taken into
consideration. Hence, sought for allowing the appeal.
09. The learned counsel for the cross objector -
claimant reiterating the grounds urged in the appeal
memorandum submitted that there was no accident has
occurred on account of negligence on the part of the driver
of the offending bus and not on the driver of the auto. He
further submits that the deceased was aged about 23
years and earning `.12,000/- per month. However, the
Tribunal has assessed the notional income of the deceased
only at `.6,000/- per month. No award of compensation
has been awarded under the head of future prospects or
any other conventional heads. Hence, sought for allowing
the appeal.
10. Heard the learned counsel for the parties and
perused the records.
11. The points that arise for consideration are:
i. Whether the appellant - corporation has made
out a case for interference in the judgment and
award of the Tribunal.?
ii. Whether the appellant - claimant has made
out a case for enhancement of the
compensation.?
12. The accident in question that occurred
involving auto and offending bus resulting in death of the
deceased is not in dispute. The spot of the accident as per
Ex.P6 would indicate that the accident has taken place in
the middle of the road. As per IMV report at Ex.P4, the
following damages are noted to the bus as well as to the
auto:
Damages to vehicle bearing registration No.KA-28/F-1949
i. Front body has pressed and damaged.
ii. Front wheel has dislocated.
iii. Top hood cover damaged.
iv. Read body both side damaged.
v. Wind screen glass dislocated.
vi. Wind screen frame both sides pressed and
damaged.
vii. Driver seat pressed and damaged.
viii. Passenger seat damaged.
ix. Read right side wheel dislocated.
Damages to the vehicle bearing registration No.KA-33/9138.
i. Front show pressed and damaged.
ii. Front wheel is dislocated and mudguard.
iii. Front show pressed and damged.
iv. Top hood cover damaged.
v. Refil body both side damaged.
vi. Wind screen glass dislocated.
vii. Wind screen frame parted.
viii. Driver seat damaged.
ix. Passenger seat damaged.
x. Rear right side of wheel dislocated.
13. Though the insurance company has raised the
issue of negligence, no independent witnesses have been
examined except RW.1 the driver of the bus. The
negligence has to be proved by leading cogent evidence.
The same cannot be determined on the basis of the sketch
or IMV report alone. However, the insurance company has
not led any evidence in this regard and in view of the
finding arrived at by the Tribunal to the effect that the
accident in question had occurred on account of rash and
negligent driving by the driver of the bus, the same has to
be sustained and cannot be interfered. Hence, point No.1
raised above is answered.
14. Adverting to the claim of the claimant for
enhancement of the compensation. The deceased, who
was a bachelor stated to have been earning `.12,000/- per
month. However, the Tribunal has taken the same at
`.6,000/- per month. This Court in the absence of
evidence with regard to the income of the victims of the
road traffic accident takes into consideration the chart
prepared by the Karnataka State Legal Services Authority.
In terms of which, the notional income of the victims of the
road traffic accident for the year 2014 is fixed at `.7,500/-
per month. In the instant case, the accident had occurred
on 07.02.2014, as such, the said income at Rs.7,500/- has
to be taken into consideration. The deceased was aged
about 22 years at the time of the accident and hence the
proper multiplier applicable is '18. As per the judgment of
the Apex Court in the case of NATIONAL INSURANCE
COMPANY LTD. VS. PRANAY SETHI [(2017) 16 SCC
680], deceased being a labour and aged about 22 years,
is entitled for addition of 40% of the established income
towards future prospects. Since the deceased was a
bachelor, 50% of the assessed income has to be deducted
towards personal and living expenses of the deceased.
Thus, the compensation towards loss of dependency
computed would be `.11,34,000/-. [`.7,500/- + 40%
(`.3,000) = `.10,500/-. `.10,500 - (50% towards
personal expenses) = `.5,250 x 12 x 18 (multiplier) =
`.11,34,000].
15. In terms of the law laid down by the Apex
Court in the case of MAGMA GENERAL INSURANCE
COMPANY LIMITED VERSUS NANU RAM ALIAS
CHUHRU RAM AND OTHERS [2018) 18 SCC 130]
which clarified in the subsequent judgment of the Apex
Court in the case of UNITED INDIA INSURANCE CO.
LTD., VS. SATINDER KAUR @ SATWINDER KAUR &
ORS. [2020 SCC ONLINE SC 410], the claimant being
the mother of the deceased is entitled for `40,000/-
towards filial consortium. In addition, the claimant is
entitled for `15,000/- towards loss of estate and `15,000/-
towards funeral expenses. Hence, the claimant is entitled
for enhanced compensation of `12,04,000/- as follows:
Heads By Tribunal By this Court
Loss of dependency `4,37,400/- `11,34,000/-
Loss of estate `10,000/- `15,000/-
Loss of consortium `10,000/- `40,000/-
(40,000x1)
Funeral expenses `15,000/- `15,000/-
Total `4,72,400/- `12,04,000/-
16. Thus, the claimant is entitled for enhanced
compensation of `12,04,000/- instead of `4,72,400/-
awarded by the Tribunal together with interest at 6% per
annum and therefore point No.2 raised above is answered
accordingly. Hence, the following:
ORDER
i. The cross objection filed by the
appellant/claimant is allowed in part.
ii. The appeal filed by the appellant -
Corporation is dismissed.
iii. The judgment and award passed
by the Tribunal in MVC No.168/2014 is
modified.
iv. The cross objector/claimant is
entitled for enhanced compensation of
`12,04,000/- instead of `4,72,400/-
awarded by the Tribunal together with
interest at 6% per annum from the date
of claim petition till its realization.
v. The appellant - corporation
company shall deposit the compensation
amount within a period of eight weeks
from the date of receipt of a certified
copy of this judgment.
vi. The order regarding deposit and
release made by the Tribunal shall
remain unaltered.
vii. The amount in deposit be
transmitted to the concerned Tribunal.
Sd/-
JUDGE
KJJ/Srt
