Kavya D/O Jagadish vs Shaikshavali S/O Buden Sab
2022 Latest Caselaw 1834 Kant

          IN THE HIGH COURT OF KARNATAKA,
                   DHARWAD BENCH

      DATED THIS THE 7TH DAY OF FEBRUARY 2022

                        PRESENT

       THE HON'BLE MR. JUSTICE S.G. PANDIT

                          AND

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

                MFA No.103068/2019
                       C/W.
              MFA NO.103069/2019 (MV)

IN MFA NO.103068/2019

BETWEEN

1.   KAVYA D/O JAGADISH
     AGE. 12 YEARS
     OCC. STUDENT

     (MINOR APPELLANT NO.1 IS
     REPRESENTED BY NATURAL GRANDMOTHER AND
     GUARDIAN SMT. LAKSHMI W/O LATE KUMARAPPA)

2.   SMT. LAKSHMI W/O LATE KUMARAPPA
     AGE. 61 YEARS
     OCC. HOUSEWIFE

     BOTH ARE RESIDENTS OF
     11TH WARD, ASHRAYA COLONY
     TEKKALAKOTE
     TQ. SIRUGUPPA, BALLARI DISTRICT.
                                        ...APPELLANTS
(BY SRI. MANJUNATH JADAI, ADVOCATE)
                            2



AND

1.    SHAIKSHAVALI S/O BUDEN SAB
      AGE.65 YEARS
      DRIVER OF KSRTC BUS
      BEARING NO.KA-34/F-970
      2ND DEPOT, BALLARI
      R/O D.NO.2817
      16TH WARD BEHIND BANGALORE BAKERY
      GUNDURAO STREET
      BALLARI-583101

2.    THE DIVISIONAL CONTROLLER
      NEKSRTC, BALLARI-583101
                                     ...RESPONDENTS

(BY SRI. SHIVAKUMAR S BADAWADAGI, ADVOCATE FOR R2, NOTICE TO R1 IS DISPENSED WITH)

THIS APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 19.06.2018 PASSED IN MVC NO.899/2013 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL-V, BALLARI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

IN MFA NO.103069/2019

BETWEEN

1. KAVYA D/O JAGADISH AGE. 12 YEARS OCC. STUDENT

(MINOR APPELLANT NO.1 IS REPRESENTED BY NATURAL GRANDMOTHER AND GUARDIAN SMT. LAKSHMI W/O LATE KUMARAPPA)

2. SMT. LAKSHMI W/O LATE KUMARAPPA AGE. 61 YEARS

OCC. HOUSEWIFE BOTH ARE RESIDENTS OF 11TH WARD, ASHRAYA COLONY, TEKKALAKOTE TQ. SIRUGUPPA, BALLARI DISTRICT.

...APPELLANTS (BY SRI. MANJUNATH JADAI, ADVOCATE)

AND

1. SHAIKSHAVALI S/O BUDEN SAB AGE.65 YEARS DRIVER OF KSRTC BUS BEARING NO.KA-34/F-970 2ND DEPOT, BALLARI R/O D.NO.2817 16TH WARD BEHIND BANGALORE BAKERY GUNDURAO STREET BALLARI-583101

2. THE DIVISIONAL CONTROLLER NEKSRTC, BALLARI-583101 ...RESPONDENTS (BY SRI. SHIVAKUMAR S BADAWADAGI, ADVOCATE FOR R2, NOTICE TO R1 IS DISPENSED WITH)

THIS APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 19.06.2018 PASSED IN MVC NO.900/2013 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL-V, BALLARI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, ANANT RAMANATH HEGDE J., DELIVERED THE FOLLOWING:

COMMON JUDGEMENT

Both MVC Nos.899/2013 and 900/2013 on the file of

the I Additional Senior Civil Judge and MACT-V, Ballari

were filed by 6-year-old Kum. Kavya and her grandmother

Smt.Lakshmi prayed for compensation of Rs.25,00,000.00

in both the claim petitions on account of the death of Mr

Jagadish. Kum. Kavya is the daughter and Smt. Lakshmi is

the mother of the deceased Jagadish.

2. The unfortunate accident took place on

13.02.2013 at about 7.30 p.m. when Mr Jagadish and his

wife Mrs Parvathi were proceeding on a Bajaj Platina

motorcycle bearing Reg.No.KA-34/U-3307 from Siruguppa

towards Tekkalakote. According to the claimants, Jagadish

was riding the bike slowly and cautiously. It is alleged that

the KSRTC bus bearing Reg.No.KA-34/F-970 came from

the opposite direction and dashed against the bike in a

rash and negligent manner, as a result of which Jagadish

died on the spot and his wife Parvathi died on the same

day in the hospital. Claim petition under Section 166 of the

Motor Vehicles Act is filed against respondent-Corporation

and the driver of the bus, was strongly resisted by the

Corporation on the ground that the deceased himself was

responsible for the accident. Despite best efforts made by

the driver who according to the Corporation was riding the

bus slowly and carefully, the accident could not be avoided

on account of the rash and negligent act of the rider of the

bike is the defence of the corporation.

3. The Tribunal framed the issue relating to rash

and negligence alleged by the claimants and after the trial

concluded that the driver of the bus, as well as the rider of

the bike, are responsible for the accident to the extent of

50% each. The Tribunal awarded compensation of

Rs.3,50,000.00 in MVC No.899/2013 and Rs.3,70,000.00

in MVC No.900/2013 and reduced the compensation to the

extent of 50% on account of contributory negligence of the

deceased.

4. Learned counsel for the appellants would urge

that the Tribunal committed a serious error in holding that

the rider of the bike was responsible for the accident.

Referring to the sketch produced by the claimants which

are marked at Ex.P.5, it is urged that the spot of the

accident mentioned in the sketch indicates that the KSRTC

bus crossed the divider line on the road and went on the

right lane and dashed against the bike which was coming

on the left side lane.

5. Learned counsel appearing for the Corporation

referring the same sketch and evidence of witnesses

examined on behalf of the claimants as well as the

evidence of the driver, would urge that the rider of the

bike has also contributed to the accident.

6. We have perused the sketch as well as the oral

evidence adduced by the parties.

7. From the sketch it is apparent that the

accident took place on a road that is a two-lane road. The

center of the road is demarcated by the divider. The sketch

would reveal that the bus has crossed the divider line and

hit the bike on the right side of the divider, which

demonstrates that the bus has crossed the lane on the

right side and proceeded on the lane meant for the vehicle

coming from the opposite side. Accordingly, the charge

sheet is filed against the driver of the bus. The charge

sheet does not indicate any negligence on the part of the

rider of the bike. Even the evidence on record including the

evidence led by the driver of the bus who tried to make

out a case that the rider of the bike is responsible for the

accident does not indicate any negligence on the part of

the rider of the bike.

8. It is also required to be noticed that the driver

of the bus has not lodged any complaint alleging

negligence on the rider of the bike. It is stated in the

cross-examination that his attempt to lodge a complaint

failed as the police refused to receive the complaint.

However, it is to be noticed that even if the police refused

to receive the complaint, the law provides for other

remedies to ensure that the complaint is registered. No

such remedy is availed by the driver of the Corporation.

Under the circumstances, the Tribunal committed an error

in holding that the rider of the bike also contributed to the

accident. This finding of the Tribunal is not supported by

any evidence and the same requires to be set aside. On

the other hand, this Court is of the view that the charge

sheet placed before the Tribunal would demonstrate that

the driver of the bus alone is responsible for the accident.

9. The next question that is required to be

considered is what is the compensation payable to the

claimants of the deceased.

10. Proof relating to the income of the deceased

persons is not established before the Tribunal by producing

any documentary evidence. Under the circumstances, this

Court has to take the notional income of the deceased

persons based on the chart prepared by the Karnataka

State Legal Services Authority. The accident is of the year

2013. As per the chart, the notional income of the

deceased person would be Rs.7,000.00 p.m. Deceased

Jagadish is survived by two dependants, namely his minor

child and mother and deceased Parvathi is also survived by

two dependants, namely her minor child and mother-in-

law. Hence, 1/3rd should be deducted towards the personal

expenditure of the deceased. Since Jagadish was 27 years

old and Parvathi was 24 years old, 40% of the assessed

income should be added towards future prospects. Since

the deceased Jagadish was aged 27 years, 17 multiplier is

to be adopted and since deceased Parvathi was aged 24

years, 18 multiplier is to be adopted.

11. As per the ratio laid down by the Hon'ble Apex

Court in Magma General Insurance Company Limited

Vs. Nanu Ram Alias Chuhru Ram and Others reported

in (2018) 18 SCC 130, the claimants would be entitled to

Rs.40,000.00 towards consortium. Thus, the compensation

payable to the claimants would be as under:

In MFA No.103068/2019 (MVC No.899/2013)

Loss of dependency Rs.13,32,936.00 (Rs.7,000.00 (income per month) + Rs.2,800.00 (40% addition towards future prospects) = Rs.9,800.00 - Rs.3,266.00 (1/3rd deduction towards personal

expenditure) = Rs.Rs.6,534.00 x 12 (months) x 17 (multiplier) = Rs.13,32,936.00 Loss of estate Rs.15,000.00 Transportation of dead body and Rs.15,000.00 funeral expenses Filial consortium Rs.80,000.00 (Rs.40,000.00 x 2) Total Rs.14,42,936.00

In MFA No.103069/2019 (MVC No.900/2013)

Loss of dependency Rs.14,11,344.00 (Rs.7,000.00 (income per month) + Rs.2,800.00 (40% addition towards future prospects) = Rs.9,800.00 - Rs.3,266.00 (1/3rd deduction towards personal expenditure) = Rs.Rs.6,534.00 x 12 (months) x 18 (multiplier) = Rs.14,11,344.00 Loss of estate Rs.15,000.00 Transportation of dead body and Rs.15,000.00 funeral expenses Filial consortium Rs.40,000.00 Total Rs.14,81,344.00

12. In view of the above, we pass the following:

ORDER

Both the appeals are allowed in part.

The judgement and award passed in MVC Nos.899/2013 and 900/2013 on the file of the I Additional Senior Civil Judge and MACT-V, Ballari stands modified.

The claimants in MFA No.103068/2019 (MVC No.899/2013) are entitled to Rs.14,42,936.00 as against Rs.3,50,000.00 awarded by the Tribunal.

The claimants In MFA No.103069/2019 (MVC No.900/2013) are entitled to Rs.14,81,344.00 as against Rs.3,70,000.00 awarded by the Tribunal.

Compensation in both the appeals shall carry interest at the rate of 6% p.a. payable by the insurer.

In other aspects, the award of the Tribunal stands unaltered.

Sd/-

JUDGE

Sd/-

JUDGE sh