Karnataka High Court
Alliabi W/O Bashasab @ Bashumia ... vs The Divisional Controller Nekrtc on 22 July, 2021
Author: S.G.Pandit And M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF JULY 2021
PRESENT
THE HON'BLE MR.JUSTICE S.G.PANDIT
AND
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MISCELLANEOUS FIRST APPEAL NO. 200762/2016(MV)
BETWEEN:
1. Allabi W/o Bashasab @ Bashumia
Age: 39 years, Occ: Nil
R/o: Ward No.25, Janata Colony
Sindhanur, now residing at
Nijalingappa Colony, Raichur-585401.
2. Bashasab @ Bashumia S/o Alimuddin
Age: 41 years, Occ: Coolie, now Nil
R/o: Ward No.25, Janata Colony
Sindhanur, now residing at
Nijalingappa Colony, Raichur-585401.
3. Sania D/o Bashasab @ Bashumia
Age: 15 years, Occ: Coolie, now Nil
R/o: Ward No.25, Janata Colony
Sindhanur, now residing at
Nijalingappa Colony
Minor, reptd. by his N/F A-2
Raichur-585401.
4. Mohd. Asif S/o Bashasab @ Bashumia
Age: 9 years, Occ: Coolie, now Nill
R/o: Ward No.25, Janata Colony
Sindhanur, now residing at
2
Nijalingappa Colony,
Minor, reptd., by his N/F A-2
Raichur-585401.
... Appellants
(By Sri Babu H. Metagudda, Advocate)
AND:
The Divisional Controller
NEKRTC Raichur Division
Raichur-585401.
... Respondent
(By Sri. Subhash Mallapur, Advocate)
This Miscellaneous First Appeal is filed under Section
173(1) of MV Act, praying to Call for the records in MVC
No.321/2015, allow this appeal and modify the Judgment
and Award dated:06.02.2016 passed in MVC No.321/2015
on the file of the II Addl. Dist, & Sessions Judge at Raichur,
and enhancing the compensation from Rs.8,82,000/- with
6% interest to Rs.95,00,000/- with 12% interest.
This appeal coming on for final hearing this day,
M.G.S.Kamal, J., delivered the following:
JUDGMENT
This appeal is filed under Section 173(1) of the
Motor Vehicles Act, 1988 (for short, 'the Act') by the
claimants against the judgment and award dated
06.02.2016 passed in MVC No.821/2015 on the file of
the II Additional District and Sessions Judge at Raichur
(hereinafter referred to as "the Tribunal" for short).
2. The facts leading up to the filing of the present
appeal briefly stated are that on 25.05.2015 at about
4.00 p.m., the deceased was proceeding on the motor
cycle bearing registration No.KA-36/EE-8302 from
Lingasugur to Hutti and when he reached near
Gurulingappa's land at Honhalli on Lingasugur-
Gulbarga road, a Bus bearing registration No.KA-36/
F-618 driven by its driver in a rash and negligent
manner came from the opposite direction dashed
against the motorcycle of the deceased resulting in the
deceased sustaining grievous injuries and succumbed
to the same on the spot.
3. The claimants being parents, younger sister and
younger brother filed claim petition under Section 166
of the Act seeking compensation in a sum of
Rs.95,00,000/- with interest at the rate of 12% p.a. on
the ground that the deceased was aged about 20 years
at the time of accident and was working at Goldsmith's
place, earning a sum of Rs.15,000/- p.m., and was
contributing his entire earnings for the maintenance of
the family. That the untimely death of the deceased on
account of rash and negligent driving of the offending
vehicle by its driver, the claimants have been put to
emotional and financial distress. Hence, sought for
compensation.
4. Upon service of notice, the respondent appeared
and filed statement of objections denying the age,
occupation and income of the deceased. It is further
contended that the accident occurred due to sole
negligence on the part of the deceased and that there
was no negligence on the part of the driver of the
offending bus and as such, sought for dismissal of the
claim petition.
5. The Tribunal, based on the pleadings framed the
issues and recorded evidence. Mother of the deceased
got examined herself as P.W.1 and one Javeed Hussain
was examined as P.W.2. As many as 8 documents have
been exhibited as Ex.P1 to Ex.P8. One Siddappa has
been examined as R.W.1 on behalf of the respondent.
6. The Tribunal, on appreciation of the evidence has
held that the accident occurred due to the composite
negligence on the part of the deceased and the driver of
the offending bus. As such the negligence was
apportioned at the ratio of 50:50, thereby attributing
contributory negligence equally on the deceased and on
the driver of the bus. While assessing the quantum of
compensation, the Tribunal had taken monthly income
of the deceased at Rs.10,000/- and adding 30% to the
same towards future prospects has awarded total
compensation of Rs.15,64,000/- and directed the
respondent to deposit 50% of the compensation together
with interest at the rate of 6% p.a. Being aggrieved by
the said judgment and award, the claimants are before
this Court.
7. Learned counsel for the appellants/claimants
submitted that the Tribunal erred in assessing and
attributing contributory negligence on the rider of the
motor cycle; that the deceased was earning Rs.15,000/-
p.m., but the Tribunal erred in assessing the income at
Rs.10,000/- p.m., which is on the lower side; that the
future prospects added at 30% has to be enhanced to
40%; that the deduction of 50% towards personal
expenses was incorrect in as much as the deceased was
the only earning member of the family having parents
and one younger sister and one younger brother.
Hence, sought for enhancement of compensation.
8. On the other hand, learned counsel for the
Insurance Company submitted that assessment of
negligence and grant of compensation by the Tribunal is
just and proper. He submitted that deduction made at
50% towards personal expenses need not be interfered
with, in as much as the deceased was bachelor and
father of the deceased is stated to have been earning.
Hence, sought for dismissal of the appeal.
9. Heard the learned counsel for the parties and
perused the appeal papers. The points that arise for
consideration in this appeal are with regard to liability
and quantum of compensation.
10. Learned counsel for the claimants submitted that
the accident occurred solely on account of rash and
negligent driving of the offending bus by its driver and
there was no negligence of any nature attributable to
the deceased rider. On perusal of the records, viz.,
sketch of the spot forming part of the FIR, it is seen that
the accident occurred right on the middle of the road.
Admittedly, there was no eye-witness to the accident. In
view of the spot sketch forming part of the record, the
finding of the Tribunal with regard to occurrence of the
accident on account of composite negligence does not
warrant interference by this Court.
11. Adverting to the issue with regard to quantum of
compensation, the claimants have not produced any
cogent evidence to justify the case of the claimants that
the deceased was earning Rs.15,000/- p.m. Though
that Ex.P7-salary certificate is produced and the author
of the said document one Mr.Javeed Hussain has been
examined, in view of the fact that no material evidence
is produced by the claimants with regard to actual
payment of the said sum of Rs.15,000/-, we are of the
considered opinion that assessment of income of the
deceased at Rs.10,000/- p.m. made by the Tribunal is
just and proper. However, as contended by the learned
counsel for the claimants, addition of future prospects
at 30% by the Tribunal is incorrect. In view of decision
of the Constitution Bench of the Apex Court in
NATIONAL INSURANCE COMPANY LIMITED v/s
PRANAY SETHI AND OTHERS reported in (2017) 16
SCC 680, the deceased being 19 years of age, the
claimants would be entitled for adding 40% of the
assessed income towards future prospects. Considering
the age of the deceased the appropriate multiplier to be
adopted is 18.
12. It is necessary to note at this juncture that mother
of the deceased who was examined as P.W.1 in her
deposition at paragraph 6 has deposed that her
deceased son was the only earning member in the
family and the entire family was solely depending upon
his income and due to his sudden death, they have lost
their complete dependency and there is no one to look
after and maintain them. In the cross-examination of
the said witness, nothing worthwhile has been elicited
and in fact had reiterated the deposition made as above.
In view of the law laid down by the Hon'ble Apex Court
in the case of SARLA VERMA AND OTHERS v/s DELHI
TRANSPORT CORPORATION AND ANOTHER reported
in (2009) 6 SCC 121 which is reiterated in the case of
MAGMA GENERAL INSURANCE COMPANY LIMITED
v/s. NANU RAM & ORS. reported in (2018) 18 SCC
130 wherein it is held that, ".... However, where the
family of the bachelor is large and dependent on the
income of the deceased, as in a case where he has a
widowed mother and large number of younger non-
earning sisters or brothers, his personal and living
expenses may be restricted to one-third and the
contribution to the family will be taken as two-third".
13. In view of the aforesaid evidence and in view of the
legal position, we are of the view that the deduction
made by the Tribunal at 50% towards the personal
expenses of the deceased is required to be reduced to
1/3rd.
14. In view of the law laid down by the Hon'ble Apex
Court in Magma General Insurance Company
(supra), the claimants being parents, younger sister
and younger brother of the deceased are entitled to
Rs.40,000/- each towards loss of love and affection. In
addition to that, Rs.15,000/- towards funeral expenses
and Rs.15,000/- towards loss of estate. Hence, the
claimants would be entitled for the following
compensation:
1. Loss of dependency:
10,000+40% x 12 x 18
= 30,24,000 - 1/3 (10,08,000) = Rs. 20,16,000/-
2. Loss of love and affection:
Rs.40,000 x 4 = Rs. 1,60,000/-
3. Funeral expenses: = Rs. 15,000/-
4. Loss of estate: = Rs. 15,000/-
---------------------
Total Rs.22,06,000/-
---------------------
Since the Tribunal has deducted 50% towards
contributory negligence, the claimants are entitled to
compensation of Rs.11,03,000/-.
15. Accordingly, the appeal is allowed in part. The
judgment and award dated 06.02.2016 in MVC
No.321/2015 on the file of the II Additional District and
Sessions Judge at Raichur is modified. The claimants
are entitled for total compensation of Rs.11,03,000/- as
against Rs.8,82,000/- awarded by the Tribunal, thereby
the claimants are entitled for enhanced compensation of
Rs.2,21,000/-.
The enhanced compensation amount shall carry
interest at the rate of 6% p.a., as awarded by the
Tribunal.
Sd/-
JUDGE
Sd/-
JUDGE
mpk/-*
