Kaneez Fatima vs The Managing Director Nekrtc
2021 Latest Caselaw 3523 Kant

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        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

   DATED THIS THE 26TH DAY OF OCTOBER 2021

                     PRESENT

       THE HON'BLE MR.JUSTICE R. DEVDAS
                        AND
 THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

  MISCELLANEOUS FIRST APPEAL No.200645/2020
                     C/W
MISCELLANEOUS FIRST APPEAL NO.200635/2020 (MV)


In MFA No.200645/2020

BETWEEN:

Kaneez Fatima W/o Late Shaikh Chand sab,
Aged: 54 years, Occ: Household,
R/o T-4-607/A16,
Near Macch Masjid, Mahatma Basaveshwar Colony,
Gulbarga.
                                       ..... Appellant
(By Sri.B.Ali Mohammed, Advocate)


AND:

The Managing Director NEKRTC,
Sargie Sadan Station Main Road,
Kalaburagi-585102.
                                    ..... Respondent
(By Smt.Sangeetha Bhadrashetty, Advocate)
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      This MFA is filed under Section 173(1) of the
Motor Vehicles Act, praying to call for the records in
MVC No.668/2018 on the file of Prl. Senior Civil Judge
& MACT, at Kalaburagi and the impugned judgment
and award dated 03.12.2019 caused in MVC
No.668/2018 on the file of Prl. Senior Civil Judge &
MACT, at Kalaburagi may be modified by granting
compensation has claimed in the claim petition and this
Miscellaneous First Appeal may be allowed as prayed
with cost in the interest of justice and equity.


In MFA No.200635/2020

BETWEEN:

The Managing Director,
NEKRTC, Sarige Sadana
Station Main Road, Kalaburagi,
Now presented through its
Chief Law Officer, NEKRTC,
Central Offices, Sarige Sadana,
Kalaburagi-585 102.
                                          ..... Appellant
(By Smt. Sangeetha Bhadrashetty, Advocate)


AND:

Kaneez Fatima W/o Late Shaikh Chand Sab,
Age: 55 years, Occ: Household,
R/o T-4-607/A16, Near Macch Masjid,
Mahatma Basaveshwar Colony,
Kalaburagi-585104.
                                    ..... Respondent
(By Sri. B.Ali Mohammed, Advocate)
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      This MFA is filed under Section 173(1) of the
Motor Vehicles Act, praying to call for the records in
MVC No.668/2018, dated 03.12.2019, by the Prl. Senior
Civil Judge & MACT, at Kalaburagi. Allow this appeal
by setting aside the impugned judgment and award in
MVC No.668/2018, dated 03.12.2019, by the Prl. Senior
Civil Judge & MACT, At Kalaburagi, in the interest of
justice.

     These appeals coming on for admission this day,
Rajendra Badamikar.-J., delivered the following:


                        JUDGMENT

These two appeals are filed challenging the

judgment and award passed by Prl. Senior Civil Judge &

MACT, Kalaburagi in MVC No.668/2018 dated

03.12.2019, whereby the Tribunal has allowed the

petition in part by awarding compensation of

Rs.39,37,000/- along with interest at the rate of 6% per

annum in favour of claimant.

2. MFA No.200645/2020 is filed by the

appellant/claimant seeking for enhancement while the

appeal MFA No.200635/2020 is filed by the

respondent/Corporation challenging the fastening the

liability on the ground that there is no negligence on the

part of the driver of the offending vehicle.

3. The factual matrix leading to this case are

that, on 14.05.2018 at 10.30 a.m. the deceased

Mohammad Mushtaq was proceeding on the bike

bearing Regn.No.KA-32/EN-5659 from Kalaburagi to

Afazalpur for attending the election duty. When he

reached Chacha Chowadari Hotel, Afazalpur, at that

time a KSRTC bus bearing its Regn.No.KA-28/F-1756

came from opposite direction, in high speed driven by

its driver in a rash and negligent manner and it dashed

against the bike of deceased, as a result the deceased

Mohammad Mushtaq sustained grievous injuries. He

was immediately shifted to Kamareddy Hospital in

Kalaburagi and later on referred to Yashoda Hospital

Hyderabad for higher treatment. However, on

16.05.2018 he succumbed to injuries while undergoing

treatment. The deceased was working as FDA in

Tahasildar Office, Afazalpur and he was drawing

monthly salary of Rs.31,159/-. The petitioner being the

mother and dependent has prayed for awarding

compensation of Rs.72,20,000/- by filing the claim

petition before the Tribunal.

4. The respondent-Corporation has put in

appearance and denied the age, occupation and income

of the deceased as pleaded in the petition. It is also

further asserted that the petitioner is not dependent on

the income of the deceased. It is also denied that the

deceased sustained fatal injury in the accident alleged

to have been caused by KSRTC bus bearing

Regn.No.KA-28/F-1756. It is further asserted that the

claim of the petitioner is unreasonable, exorbitant and

without any basis. As such the Corporation has sought

for rejection of the claim petition.

5. The Tribunal after appreciating the oral and

documentary evidence has awarded the compensation

of Rs.39,37,000/- under various heads as under:

1. Towards Loss of Dependency Rs.34,73,088/-

2. Towards Loss of Love and Rs.40,000/-

Affection

3. Towards Funeral Expenses Rs.15,000/-

4. Towards Medical Expenses Rs.4,08,684/-

             Total                          Rs.39,36,772/-
             Rounded off                    Rs.39,37,000/-

6. Being aggrieved by the award, the claimant

has filed petition for enhancement and the ground

urged by the claimant is that the income of the

deceased was taken on the lower side as the salary

certificate disclosed his specific salary, but the Tribunal

has taken his monthly salary of Rs.24,119/- as against

the documentary evidence. Hence, the claimant has

sought for enhancement.

7. On the contrary, the Corporation has filed

MFA No.200635/2020 aggrieved by the award and

specifically asserted that there is no negligence on the

part of the driver of the offending KSRTC bus and the

other hand it was exclusive negligence on the part of the

deceased. The Corporation has also disputed

compensation awarded under various heads and sought

for allowing the appeal and prayed for setting aside the

impugned award.

8. We have heard the arguments advanced by

the both the parties at length. The records of the trial

court are also secured and we have meticulously

perused them.

9. It is undisputed fact that the deceased was

working as FDA in Tahasildar Office, Afazlapur.

Further, it is also undisputed fact that he was a

bachelor and there is no dispute of the fact that the

petitioner/claimant is the mother and sole dependent of

the deceased. The Corporation is harping on the fact

that the accident is not because of the actionable

negligence on the part of the driver of the offending bus.

But from the records of the trial court at Ex.P1 it is

evident that the driver of the offending vehicle was

prosecuted in Crime No.120/2018 and later on charge

sheet has also been submitted against him as per

Ex.P4. Scene of offence mahazar at Ex.P9 clearly

establish that at the accident spot the road is running

in East-West direction. The KSRTC bus moving from

Afazalpur towards Kalaburagi while the deceased was

riding motorcycle from Kalaburagi towards Afazalpur.

The driver of the KSRTC bus ought to have driven the

vehicle on the left side i.e. Northern side of the road, but

the accident spot shown is on the Southern edge. This

document prima-facie establishes that there is

actionable negligence on the part of the driver of the

KSRTC bus who drove the bus on the wrong side of road

which has resulted in the accident. Hence, the

contention of the learned counsel for respondent-

Corporation that there is no actionable negligence on

the driver of the bus Corporation holds no water. This

finding of the tribunal cannot be said to be erroneous or

illegal so as to call for any interference by this court.

10. The claimant is aggrieved by the finding of

the Tribunal that the monthly salary was taken on the

lower side. Ex.P11 is the salary certificate for the

month of May-2018 for 16 days. Ex.P15 is the service

records of deceased and Ex.P15(a) discloses that the

basic of the deceased was Rs.27,650/- as on the date of

accident. The Tribunal has taken the monthly income

of the deceased at Rs.24,319/-, but what is the base for

the same is not at all forthcoming. The document

Ex.P15(a) discloses that the monthly basic salary of the

deceased was Rs.27,650/-. If DA and other allowances

are added, his monthly salary would be of Rs.30,689/-.

After deducting the professional tax of Rs.200/- his

monthly salary was Rs.30,489/-.

11. The Tribunal has rightly added future

prospects of 50% and if 50% of future prospects are

added, his monthly salary would be Rs.45,733/-. Since

the deceased was a bachelor, 50% is required to be

deducted for his personal expenses and hence he would

have contributed Rs.22,866/- towards his family. On

the contrary, the trial court has taken the same on

lower side. Hence under the head of loss of

dependency, the claimant is entitled for Rs.22,866 X 12

X 16 = 43,90,368/-. The Tribunal has rightly awarded

funeral expenses of Rs.15,000/-, Rs.40,000/- towards

loss of love and affection and Rs.4,08,684/- under the

head of medical expenses. The Tribunal has awarded

proper compensation under these various heads and

the award of compensation only under the loss of

dependency was on the lower side. Under these

circumstances, the claimant is entitled for total

compensation under different heads as under:

1. Towards Loss of Dependency Rs.43,90,368/-

2. Towards Funeral Expenses Rs.15,000/-

3. Towards Loss of Love and Rs.40,000/-

Affection

4. Towards Medical Expenses Rs.4,08,684/-

              Total                           Rs.48,54,052/-
              Rounded off                     Rs.48,54,000/-

12. Under these circumstances, the appeal filed

by the claimant in MFA No.200645/2020 needs is to be

allowed while MFA No.200635/2020 filed by the

respondent-Corporation needs to be dismissed.

Accordingly, we proceed to pass the following:

ORDER

MFA No.200645/2020 filed by the

claimant/appellant is hereby allowed in part.

MFA No.200635/2020 filed by the respondent-

Corporation is hereby dismissed.

The appellant is entitled for total compensation of

Rs.48,54,000/- as against the compensation of Rs.

Rs.39,37,000/- awarded by the tribunal with interest at

the rate of 6% from the date of petition.

The Corporation shall deposit the award amount

with interest within three months from today.

Sd/-

JUDGE

Sd/-

JUDGE SMP