Shekamma D/O Hussainamma vs Mahaboob Sab S/O Khasim Sab
2022 Latest Caselaw 11461 Kant

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                                                                  MFA No. 101604 of 2015


                                         IN THE HIGH COURT OF KARNATAKA

                                                  DHARWAD BENCH

                                     DATED THIS THE 22ND DAY OF AUGUST, 2022

                                                      BEFORE
                                       THE HON'BLE MR JUSTICE H.P.SANDESH
                              MISCELLANEOUS FIRST APPEAL NO. 101604 OF 2015 (MV)
                             BETWEEN:

                             1.   SHEKAMMA D/O HUSSAINAMMA
                                  AGE:51 YEARS, OCC. HOUSE WIFE
                                  R/O W.NO.25, AMBA NAGARA
                                  NEAR MAREMMA TEMPLE
                                  TQ. SIRUGUPPA
                                  DIST. BALLARI
                                                                   ...APPELLANT
                             (BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE)

                             AND:

                             1.   MAHABOOB SAB S/O KHASIM SAB
                                  AGE:49 YEARS, DRIVER OF THE BUS NO.KA-34/A-1319
                                  R/O 2ND CROSS, BANDOMOT, BALLARI

                             2.   BASAVARAJ S/O LATE MALLIKARJUNA GOUDA
          Digitally signed
                                  AGE:46 YEARS, OWNER OF THE BUS NO.KA-34/A-1319
J
          by J MAMATHA            R/O SRI. GANESH TRAVELS 1ST LINK ROAD
          Location:
MAMATHA   Dharwad
          Date: 2022.08.25
                                  2ND CROSS,
          10:24:44 +0530          PARVATHI NAGAR BALLARI

                             3.   THE DIVISIONAL MANAGER
                                  THE NEW INDIA ASSURANCE CO.LTD.,
                                  EDIGA HOSTEL COMPLEX, 1ST FLOOR
                                  DOUBLE ROAD,
                                  BALLARI
                                                                       ...RESPONDENTS
                             (BY SRI. PREETI SHASHANK, ADV. FOR R3,
                               NOTICE TO R1 AND R2 DISPENSED WITH)
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                                         MFA No. 101604 of 2015


    THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED 20.03.2015
PASSED IN MVC NO.164/2014 ON THE FILE OF THE MEMBER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL-II BALLARI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY.
THE COURT DELIVERED THE FOLLOWING.

                           JUDGMENT

Though this matter is listed for admission, with the

consent of learned counsel appearing for the parties, the

matter is taken up for final disposal.

2. The factual matrix of the case of the claimant

before the Tribunal is that on 27.12.2013 at about 6.20 p.m.,

the deceased Subramanya (son of the claimant) was traveling

in a bus bearing registration No.KA-34/A-1319 from Rampura

towards Ballari and when the said bus was proceeding on

Ballari-Bengaluru road, near Halakundi mutt, the driver of the

said vehicle drove the same in a rash and negligent manner

and suddenly jumped the speed breaker, as a result of which

Subramanya fell down from the bus and sustained grievous

injuries all over his body and succumbed to the injuries at

10.15 p.m. on the same day while he was under treatment at

VIMS Hospital, Ballari. It is the further case of the claimant

MFA No. 101604 of 2015

that at the time of accident, her son was aged about 33 years

and working as SA Grade-II in KPTCL, Rampur and earning

Rs.19,630/- per month. Due to the untimely death of her son,

the claimant has lost her bread earner. Hence, she filed claim

petition before the Tribunal seeking for compensation.

3. In support of her claim, the claimant got examined

herself as PW-1 and got marked documents Ex.P.1 to Ex.P.12.

On the other hand, respondent No.3 examined his employee as

RW-1 and got marked one document as Ex.R.1. The Tribunal

after assessing both oral and documentary evidence allowed

the claim petition awarding compensation of Rs.10,33,650/-

with interest at the rate of 6% p.a. Being aggrieved by the

judgment and award, the claimant has filed the present appeal

challenging contributory negligence on the part of the deceased

to the extent of 25% and also seeking for enhancement of

compensation.

4. Learned counsel for the appellant/claimant would

contend that the Tribunal erred in apportioning negligence on

the part of the deceased at 25% but ought to have fixed entire

liability on the driver of the bus. The Tribunal also committed

MFA No. 101604 of 2015

error in applying multiplier of 13 by taking the age of the

mother but the same had to be 16 by taking the age of the

deceased. The Tribunal also committed error while calculating

loss of dependency by taking the net salary into consideration

instead of gross salary. Hence, the impugned judgment and

award requires interference of this Court.

5. Per contra, learned counsel appearing for the

Insurance Company submits that the Tribunal has rightly taken

into consideration the net salary of the deceased while

awarding loss of dependency and awarded just and reasonable

compensation by taking note of the fact that the deceased was

standing on the footboard of the bus while travelling. Hence,

the Tribunal has rightly apportioned contributory negligence to

the extent of 25% on the part of the deceased.

6. Having heard the learned counsel appearing for the

parties and also on perusal of the material available on record,

the points that arise for consideration of this Court are:

i) Whether the Tribunal has committed error in

apportioning contributory negligent to the extent of

25% on the part of the deceased?

MFA No. 101604 of 2015

ii) Whether the Tribunal was right in taking into

consideration net salary instead of gross salary of

the deceased while computing loss of dependency?

iii) What order?

Reg:Point No.1:

7. The contention of the learned counsel appearing for

the claimant/appellant is that the Tribunal has committed error

in accepting the evidence of RW-1 who is not an eyewitness to

the incident. It is his further contention that the Insurance

Company has neither examined the driver of the bus or the

conductor of the bus and it is only these 2 persons who can

speak about the negligence on the part of the deceased.

However, the Tribunal in its order has recorded that merely

because the deceased was standing on the foot board while the

bus was moving, the entire negligence cannot be attributed to

the deceased as it was the duty of the conductor and the driver

of the bus to close the door. It also further noted that it was

not the case of the respondent that the door was closed at the

time of the accident and despite the same, the door was

opened and deceased jumped out of the moving bus. Even if it

MFA No. 101604 of 2015

is construed that the door was opened and the deceased

jumped out, there is certainly once again negligence on the

part of the conductor for not having closed the door properly.

It also further noted that the very act of the driver of the

vehicle driving in such a speed, so that one of the passengers

jumped out of the vehicle in a place where road humps are

existing, will clearly demonstrate the rash and negligent driving

on the part of the driver of the offending vehicle. Hence, the

Tribunal ought to have held it is the driver and conductor of the

bus who were solely responsible for the accident and ought to

have attributed entire negligence on the part of the driver of

the bus.

8. Though, it is the contention of the learned counsel

for the respondent/Insurance Company that the deceased was

standing on the foot board and accident occurred on account of

his negligence, in order to substantiate the same, neither the

driver nor the conductor has been examined before the Tribunal

and only RW-1 has been examined who was not an eyewitness

to the accident. When there is no cogent evidence to show

negligence on the part of the deceased, the Tribunal committed

error in apportioning 25% negligence on the part of the

MFA No. 101604 of 2015

deceased. Hence, the said finding of the Tribunal requires to

be set aside. Accordingly, I answer point No.1 in the

affirmative.

Reg:Point No.2:

9. The claim of the claimant before the Tribunal is that

the deceased was working in the KPTCL as permanent

employee and to prove the said fact Ex.P.10 is marked wherein

it is shown that the gross salary of the deceased was

Rs.19,630/-. Out of the said amount, Rs.200/- has to be

deducted towards professional tax and after deducting the

same, it comes to Rs.19,430/-. In order to substantiate

whether the deceased was paying any income tax, no material

is placed before the Court by the Insurance Company and

elicited anything in the cross-examination. Hence, the income

of the deceased has to be taken at Rs.19,430/-. In view of the

judgment of the Hon'ble Apex Court in NATIONAL

INSURANCE COMPANY LIMITED VS. PRANAY SETHI AND

OTHERS reported in AIR 2017 SC 5157, 50% has to be

added towards future prospects as the deceased was a

permanent employee. If it is added, it comes to

MFA No. 101604 of 2015

Rs.19,430+9715=Rs.29,145/-. Out of the said amount, 50%

has to be deducted towards personal expenses of the deceased

as he was a bachelor, which comes to Rs.14,572/-. As the

deceased was aged 33 years at the time of the accident,

multiplier of 16 has to be adopted. Accordingly, the claimant is

entitled to Rs.27,97,824/- (Rs.14,572X12X12) towards loss of

dependency.

10. The claimant is also entitled to a sum of

Rs.73,000/- towards loss of love and affection and loss of

estate and funeral expenses.

11. In all, the claimant is entitled to a total

compensation of Rs.28,70,824/- as against the sum of

Rs.10,33,650/- awarded by the Tribunal.

12. In view of the above discussions, I pass the

following:

ORDER

i) The appeal is allowed in part,

MFA No. 101604 of 2015

ii) The judgment and award dated 20.03.2015 passed

by the Member, Motor Accidents Claim Tribunal-II,

Ballari, in M.V.C.No.164/2014 stands modified.

iii) The claimant is entitled to total compensation of

Rs.28,70,824/- as against a sum of Rs.10,33,650/-

awarded by the Tribunal.

iv) The enhanced compensation shall carry interest at

the rate of 6% p.a. from the date of petition till

realization.

v) The order of the Tribunal with regard to release of

the amount is undisturbed.

vi) The Insurance Company is directed to pay the

difference amount within four weeks.

vii) The registry is directed to send back the TCR

forthwith.

(Sd/-) JUDGE

JM